SEYMOUR v. The City of New York, et al., Defendants-Respondents.

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Supreme Court, Appellate Division, First Department, New York.

Harry SEYMOUR, Jr., Plaintiff-Appellant, v. GATEWAY PRODUCTIONS, INC., etc., et al., Defendants, The City of New York, et al., Defendants-Respondents.

Decided: June 27, 2002

WILLIAMS, P.J., NARDELLI, SAXE, SULLIVAN and FRIEDMAN, JJ. Lisa M. Comeau, for Plaintiff-Appellant. Helen P. Brown, for Defendants-Respondents.

Order, Supreme Court, New York County (Marcy Friedman, J.), entered February 6, 2002, which granted plaintiff's motion to reargue an order of the same court and Justice, entered May 3, 2001, granting the motion of defendants City of New York and the Department of Corrections of the City of New York for summary judgment dismissing the complaint as against them, and, upon reargument, adhered to its prior order, unanimously affirmed, without costs.

 Plaintiff's testimony at a hearing, held pursuant to General Municipal Law § 50-h, established that defendant, an off-duty correction officer, was acting purely out of personal motives when he punched plaintiff in the face without provocation while inside a café, and then followed when plaintiff was taken outside by a bouncer.   Once outside, the officer repeatedly pushed plaintiff, briefly displayed his shield, and told plaintiff he was under arrest, at which point another man, who had also been involved in the altercation inside the café, stabbed plaintiff from behind.   The court properly found that since all of the off-duty officer's actions were brought on by a matter wholly personal in nature, the source of which was not job-related, he was not acting within the scope of his employment (see, Cardona v. Cruz, 271 A.D.2d 221, 222, 705 N.Y.S.2d 368;  Stavitz v. City of New York, 98 A.D.2d 529, 533, 471 N.Y.S.2d 272).

 There was no factual basis for plaintiff's negligent hiring claim since the officer was not only acting outside the scope of his employment, he was not under the supervision or control of the City at the time (see, Cardona, supra;  Lemp v. Lewis, 226 A.D.2d 907, 908, 641 N.Y.S.2d 158).