JACCARINO v. SUPERMARKETS GENERAL CORPORATION

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

Joseph JACCARINO, Respondent, v. SUPERMARKETS GENERAL CORPORATION, d/b/a Pathmark, Appellant.

Decided: July 27, 1998

Before ROSENBLATT, J.P., RITTER, COPERTINO and FLORIO, JJ. Kral, Clerkin, Redmond, Ryan, Perry & Girvan, New York, N.Y. (J. McGarry Costello of counsel), for appellant. Mitchell K. Friedman, Brooklyn, N.Y., for respondent.

In an action to recover damages for assault, false arrest, and negligent hiring, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Belen, J.), dated July 31, 1997, as denied that branch of its motion which was for summary judgment dismissing the plaintiff's cause of action to recover damages for assault.

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

 Contrary to the defendant's contentions, evidence indicating that it specifically instructed its security guards to refrain from physical contact with customers does not compel the conclusion that, as a matter of law, the security guard in question was acting beyond the scope of his employment when he allegedly assaulted the plaintiff (see, Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278;  see also, Sims v. Bergamo, 3 N.Y.2d 531, 169 N.Y.S.2d 449, 147 N.E.2d 1;  Smith v. The Limited, 237 A.D.2d 345, 655 N.Y.S.2d 418;  Young Bai Choi v. D & D Novelties, 157 A.D.2d 777, 550 N.Y.S.2d 376).   As stated by the Supreme Court, the circumstances surrounding the altercation are in sharp dispute such that summary judgment on the plaintiff's assault claim is inappropriate (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

MEMORANDUM BY THE COURT.

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