IN RE: Application of Gary WASHIO (1997)

Judgment, Supreme Court, New York County (Fern Fisher-Brandveen, J.), entered December 22, 1995, which, insofar as appealed from, denied petitioner's application pursuant to CPLR article 78 in the nature of mandamus to compel respondents to defend and indemnify petitioner in a civil action, and dismissed the petition, unanimously affirmed, without costs.

The court properly determined that a rational basis existed to deny legal representation and indemnification to petitioner.   The findings of the Police Department's assistant deputy commissioner for trials in the disciplinary proceeding arising out of the incident in question indicated that petitioner was not acting within the scope of his employment when he first encountered the complaining motorist (see, Matter of Williams v. City of New York, 64 N.Y.2d 800, 486 N.Y.S.2d 918, 476 N.E.2d 317).   Petitioner's provocative and abusive behavior, arising out of a purely personal dispute, cannot be characterized as a natural and foreseeable aspect of his work duties (see, Blood v. Bd. of Educ., 121 A.D.2d 128, 130, 509 N.Y.S.2d 530).

MEMORANDUM DECISION.