Joseph v. City of Buffalo

• Decision Date: 16 November 1990
• Parties: Susan JOSEPH, as Parent and Natural Guardian of Randie Joseph, II, Respondent-Appellant, v. CITY OF BUFFALO, New York, Appellant-Respondent, and Randie Joseph, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 954

562 N.Y.S.2d 954

167 A.D.2d 830

Susan JOSEPH, as Parent and Natural Guardian of Randie Joseph, II, Respondent-Appellant, v. CITY OF BUFFALO, New York, Appellant-Respondent and Randie Joseph, Respondent-Appellant.

Supreme Court of New York, Appellate Division Fourth Department.

November 16, 1990

O'Shea, Reynolds, Napier, Quinn & Cummings by Kenneth Kirby, Buffalo, for appellant-respondent. Miserendino, Krull & Foley by Philip Celniker, Buffalo, for respondents-appellants, Susan Joseph and Randie Joseph, II. Magavern & Magavern by Peter Beiewech, Buffalo, for respondent-appellant, Randie Joseph.

MEMORANDUM:

In affirming Supreme Court we note that the dissenters stretch to reach a result which was not requested before Special Term or on appeal.

All concur, except DENMAN and BALIO, JJ., who dissent in part and vote to modify, in the following Memorandum: We respectfully dissent, in part.

Defendant Randie Joseph, a Buffalo police officer, returned to his home shortly after 8:00 a.m. on December 10, 1976, following completion of his work shift. He played for a time with his two children, then placed his loaded police revolver under the mattress of his three-year-old son's bed. A short time later, the son apparently rolled up the mattress, found the gun and shot himself in the head. Plaintiff, the infant's mother, instituted this action on her son's behalf against defendant Joseph and the City of Buffalo in 1984. The City brought a third-party action against Randie Joseph for a judgment declaring that Joseph was not acting within the scope of his employment when he placed the gun under the mattress and when the accident occurred. By prior order of the court, the two actions were consolidated. Following joinder of issue, defendant Randie Joseph moved for summary judgment on the issues of whether he was acting within the scope of his employment at the time of the accident and whether the City is vicariously liable for his conduct. Plaintiff made a separate motion for partial summary judgment on the issue of liability of defendant Joseph. Supreme Court granted plaintiff's motion, holding that, as a matter of law, defendant Randie Joseph was negligent in the handling of his weapon. The court denied defendant Joseph's application for summary judgment, however, concluding that factual questions existed on the issue whether defendant Joseph was acting within the scope of his employment. Plaintiff and defendant Randie Joseph have appealed from that portion of the order which denied defendant Joseph's motion for summary judgment on the issue of the City's liability. In her brief on appeal, however, plaintiff does not address that issue. Her sole contention is that the part of the order granting her partial summary judgment on the issue of defendant Joseph's negligence should be affirmed. Defendant Joseph contends that the City failed to raise an issue of fact on the scope of his employment and that, as a matter of law, summary judgment should have been granted in his favor holding the City vicariously liable for his acts. The City did not appeal from that portion of the order denying defendant Joseph's motion on the issue of the City's liability; it appealed only from that portion of the order holding that, as a matter of law, Joseph was negligent. Supreme Court erred in concluding that, because Joseph was required to be available for duty and to carry his gun at all times, there were factual issues whether Joseph's negligence was within the scope of his employment. The court's reliance upon Kull v. City of New York, 32 N.Y.2d 951, 347 N.Y.S.2d 205, 300 N.E.2d 736, rev'g 40 A.D.2d 829, 337 N.Y.S.2d 341, was misplaced, despite its factual similarities to the subject case. In Kull, a police officer, while at home two and one-half hours before he was to report for duty, placed his revolver on top of a television set in order to answer the phone. An infant guest in the home picked up the gun and shot himself in the leg. The Court of Appeals reversed on the dissenting memorandum at the Appellate Division, which concluded that, because the employer's regulations required that patrolmen be available for duty at all times and carry a revolver at all times, "it cannot be said that the patrolman's actions with regard to his revolver were not in furtherance of his employer's interests" (Kull v. City of New York, 40 A.D.2d 829, 829-830, 337 N.Y.S.2d 341 [dissenting memorandum]. Two years after Kull was decided and one year prior to the subject incident, however, the Legislature enacted section 50-j of the General Municipal Law, defining the indemnification responsibility and liability of municipalities for the acts of police officers. Subdivision 2 of that section provides that off-duty officers "shall be deemed to be acting in the discharge of duty when engaged in the immediate and actual performance of a public duty imposed by law " (emphasis added). A municipality may not, therefore, be held vicariously liable for the acts of an off-duty officer "absent some evidence that [the officer] was at least arguably engaged in police business" as opposed to a private matter (Garcia v. City of New York, 104 A.D.2d 438, 439, 478 N.Y.S.2d 957 aff'd 65 N.Y.2d 805, 493 N.Y.S.2d...