PINKNEY v. CITY OF NEW YORK (2008)

Orders, Supreme Court, Bronx County (Janice L. Bowman, J.), entered May 3, 2007, which dismissed the complaint, unanimously affirmed, without costs.

 In this wrongful death action, the court properly found the City not liable on the basis of respondeat superior inasmuch as defendant Williams was not acting within the scope of his employment as a police officer when he visited the decedent, a fellow police officer, at her apartment for personal reasons and spent the night with her as he had done numerous times before, and she used his off-duty weapon to commit suicide (see Joseph v. City of Buffalo, 83 N.Y.2d 141, 146, 608 N.Y.S.2d 396, 629 N.E.2d 1354 [1994];   Maginniss v. City of New York, 216 A.D.2d 134, 629 N.Y.S.2d 200 [1995], lv. denied 87 N.Y.2d 943, 641 N.Y.S.2d 825, 664 N.E.2d 890 [1996] ).  Nor was the City liable for negligent hiring, retention, training or supervision, given the absence of evidence that it knew or should have known of any propensity by Williams to safeguard his firearm in a negligent manner (Coffey v. City of New York, 49 A.D.3d 449, 853 N.Y.S.2d 551 [2008];  see also Naegele v. Archdiocese of N.Y., 39 A.D.3d 270, 833 N.Y.S.2d 79 [2007], lv. denied 9 N.Y.3d 803, 840 N.Y.S.2d 763, 872 N.E.2d 876 [2007] ).

 Nor did plaintiffs establish any failure by the City in properly training its police officers, which might amount to deliberate indifference to the constitutional rights of others under 42 USC § 1983 (see City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 [1989] ).

 With respect to the officer's personal liability, even if plaintiffs could show it was negligent for him to leave his unloaded weapon in the room, they failed to produce a scintilla of evidence in the record to suggest he should have anticipated the decedent would take her own life (see McGuire v. Triborough Bridge & Tunnel Auth., 305 A.D.2d 322, 323, 760 N.Y.S.2d 469 [2003], lv. denied 1 N.Y.3d 510, 777 N.Y.S.2d 19, 808 N.E.2d 1278 [2004] ).