PEREZ v. Police Officer Frank Speringo, et al., Defendants-Respondents. (2002)

Order, Supreme Court, New York County (Marcy Friedman, J.), entered January 4, 2001, which, inter alia, denied defendant City of New York's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

 The evidence indicating that defendant police officer Speringo, although off duty, was attempting to make an arrest at the time his service revolver discharged killing plaintiff's decedent, an innocent bystander, was sufficient to raise a triable issue as to whether the shooting occurred in the course of Speringo's employment and, accordingly, as to whether defendant City is answerable for Speringo's conduct on a respondeat superior theory (see Riviello v. Waldron, 47 N.Y.2d 297, 302-303, 418 N.Y.S.2d 300, 391 N.E.2d 1278).   In addition, given, inter alia, the substantiated complaints pre-dating the shooting of plaintiff's decedent lodged against Speringo with the Civilian Complaint Review Board, there exist triable issues as to whether the City negligently trained Speringo and/or retained him in its employ (see T.W. v. City of New York, 286 A.D.2d 243, 729 N.Y.S.2d 96).