Sargent v. City of New York

Decision Date16 March 1987
Citation128 A.D.2d 693,513 N.Y.S.2d 194
PartiesDouglas SARGENT, Respondent, v. CITY OF NEW YORK, et al., Defendants, Jerome Martinez, Appellant.
CourtNew York Supreme Court — Appellate Division

Richard Hartman, Little Neck (Bruce R. Bekritsky, of counsel), for appellant.

Ronald James D'Angelo, Brooklyn, for respondent.

Before NIEHOFF, J.P., and LAWRENCE, RUBIN and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries sustained as the result of an alleged assault, the defendant Jerome Martinez appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated January 29, 1986, which granted the plaintiff's motion for leave to reargue the appellant's motion which had sought, inter alia, to dismiss the action as against him, and upon reargument, denied the appellant's motion and vacated a prior order of the same court, dated May 2, 1982, which dismissed the action as against the appellant.

ORDERED that the order is affirmed, with costs.

The affidavits submitted at Special Term raise a question of fact as to whether the appellant, who allegedly assaulted the plaintiff, was at that time acting outside the scope of his employment as a New York City police officer. Accordingly, whether the appellant is united in interest with his employer, the defendant City of New York (which was timely served with process) for Statute of Limitations purposes (CPLR 203[b] ) cannot be determined at this juncture (cf. Matter of Parker v. Port Auth. of N.Y. & N.J., 113 A.D.2d 763, 493 N.Y.S.2d 355; see also, Connell v. Hayden, 83 A.D.2d 30, 48, 443 N.Y.S.2d 383). Therefore, vacatur of the order which had dismissed the complaint against the appellant was warranted.

The appellant's further contention that leave to reargue was improperly granted is without merit (see, Rodney v. New York Pyrotechnic Prods. Co., 112 A.D.2d 410, 492 N.Y.S.2d 69).

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4 cases
  • LeBlanc v. Skinner
    • United States
    • New York Supreme Court — Appellate Division
    • December 12, 2012
    ...537;Brock v. Bua, 83 A.D.2d 61, 443 N.Y.S.2d 407;Assad v. City of New York, 238 A.D.2d 456, 457, 656 N.Y.S.2d 669;Sargent v. City of New York, 128 A.D.2d 693, 513 N.Y.S.2d 194). Accordingly, the Supreme Court properly denied those branches of the Skinner defendants' motion which were for su......
  • Strada v. City of N.Y.
    • United States
    • U.S. District Court — Eastern District of New York
    • July 11, 2014
    ...did not, as a matter of law, require a finding that the officer and the City were not united in interest); Sargent v. City of New York, 513 N.Y.S.2d 194, 195 (App. Div. 1987) ("The affidavits submitted at Special Term raise a question of fact as to whether the appellant . . . was at that ti......
  • Vazquez v. City of New York
    • United States
    • New York Supreme Court — Appellate Division
    • July 17, 1995
    ...Thus, it cannot be determined as a matter of law whether Malavey is united in interest with his employer (see, Sargent v. City of New York, 128 A.D.2d 693, 513 N.Y.S.2d 194; cf., Matter of Parker v. Port Auth. of N.Y. and N.J., 113 A.D.2d 763, 493 N.Y.S.2d ...
  • Assad v. City of New York
    • United States
    • New York Supreme Court — Appellate Division
    • April 21, 1997
    ...with process), for Statute of Limitations purposes (see, CPLR 203[b] ), cannot be determined at this juncture" (Sargent v. City of New York, 128 A.D.2d 693, 694, 513 N.Y.S.2d 194; see also, Vazquez v. City of New York, 217 A.D.2d 614, 629 N.Y.S.2d 475). Indeed, the respondent, while off-dut......

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