SMALLS v. NEW YORK CITY TRANSIT AUTHORITY (1999)

In an action, inter alia, to recover damages for assault, the defendant New York City Transit Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated June 26, 1998, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant New York City Transit Authority (hereinafter the NYCTA) failed to establish its entitlement to judgment as a matter of law regarding whether its employee, a bus driver, was acting beyond the scope of his employment during his altercation with a passenger (see, CPLR 3212[b];  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278).   The circumstances surrounding the altercation are in sharp dispute such that summary judgment is inappropriate (see, Zuckerman v. City of New York, supra;  Jaccarino v. Supermarkets Gen. Corp., 252 A.D.2d 572, 676 N.Y.S.2d 606).

Furthermore, the NYCTA is not entitled to judgment as a matter of law on the evidence presented with regard to the causes of action alleging negligent hiring and retention of its employee (see, Detone v. Bullit Courier Serv., 140 A.D.2d 278, 528 N.Y.S.2d 575).

MEMORANDUM BY THE COURT.