VALENTIN v. New York City Transit Authority, Appellant. (1998)

In an action to recover damages for personal injuries, the defendant New York City Transit Authority appeals from a judgment of the Supreme Court, Kings County (Garry, J.), entered July 3, 1997, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $150,000.

ORDERED that the judgment is reversed, on the law, with costs, and the complaint is dismissed.

On October 31, 1981, the plaintiff, while in an arcade, was accidentally shot in the back by the defendant Benjamin Wilson, a New York City Transit Authority Police Officer.   Wilson was off-duty and was moonlighting as a game-room attendant at the time of the incident.   The altercation which led to the shooting involved an individual who is not a party to this action.

 To invoke the doctrine of respondent superior, the “[p]laintiff has the burden of establishing by a fair preponderance of the credible evidence that the act complained of occurred while [the defendant police officer] was acting within the scope of his employment for the City of New York” (Hacker v. City of New York, 26 A.D.2d 400, 402, 275 N.Y.S.2d 146, affd. 20 N.Y.2d 722, 283 N.Y.S.2d 46, 229 N.E.2d 613, cert. denied 390 U.S. 1036, 88 S.Ct. 1436, 20 L.Ed.2d 296;  see also, McDowell v. City of New York, 208 A.D.2d 507, 616 N.Y.S.2d 788).   Here, the jury verdict as against the New York City Transit Authority cannot be sustained because the plaintiff has failed to establish that Wilson was acting within the scope of his employment with the New York City Transit Authority Police Department (see, Pekarsky v. City of New York, 240 A.D.2d 645, 659 N.Y.S.2d 496;  see also, McDowell v. City of New York, supra).

MEMORANDUM BY THE COURT.