Stevens v. Kellar

• Decision Date: 19 December 2013
• Citation: 977 N.Y.S.2d 461,2013 N.Y. Slip Op. 08499,112 A.D.3d 1206
• Parties: Michael Wayne STEVENS, Appellant, v. Richard P. KELLAR, Individually and as Officer in Charge, Defendant, and Town of New Berlin, Respondent.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1206

977 N.Y.S.2d 461

2013 N.Y. Slip Op. 08499

Michael Wayne STEVENS, Appellant,

v. Richard P. KELLAR, Individually and as Officer in Charge, Defendant,andTown of New Berlin, Respondent.

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

Dec. 19, 2013.

Aswad & Ingraham, Binghamton (Rachel E. Miller of counsel), for appellant.

Underberg & Kessler, LLP, Rochester (David H. Fitch of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, SPAIN and EGAN JR., JJ.

EGAN JR., J.

Appeal from an order of the Supreme Court (Dowd, J.), entered December 20, 2012 in Chenango County, which granted a motion by defendant Town of New Berlin for summary judgment dismissing the complaint against it.

On the evening of October 29, 2008, plaintiff drove to the South Town Pub in the hamlet of South New Berlin, Town of New Berlin, Chenango County to “hang out.” The establishment was offering a “dollar can night” promotion and, between approximately 7:15 p.m. that evening and 12:30 a.m. the following morning, plaintiff consumed approximately 12 cans of beer. Shortly before closing, Jessica Allen, who was in a romantic relationship with defendant Richard P. Kellar, the Officer in Charge of the New Berlin Police Department, came into the pub with a girlfriend to buy beer.¹ Following an exchange between plaintiff and Allen, the substance of which is subject to considerable dispute,² Allen and her girlfriend left the bar and returned to Kellar's residence. After listening to Allen's version of what allegedly transpired at the pub, Kellar—accompanied by Allen—drove to the pub in Allen's car and confronted plaintiff, who was standing outside smoking a cigarette. An altercation ensued, during the course of which plaintiff suffered various injuries, including a fractured arm and a broken wrist. Disciplinary charges subsequently were lodged against Kellar, who ultimately resigned from his position.

Plaintiff thereafter commenced this action against Kellar and defendant Town of New Berlin contending, among other things, that the Town was vicariously liable for Kellar's actions. Following joinder of issue and discovery, the Town moved for summary judgment dismissing the complaint against it. Supreme Court granted the Town's motion, finding that Kellar was not acting within the scope of his employment at the time of the incident but, rather, was at the pub “as a ticked off boyfriend upset about conduct directed at his girlfriend by plaintiff.” This appeal by plaintiff ensued.

We affirm. “The doctrine of respondeat superior renders an employer vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment” (Burlarley v. Wal–Mart Stores, Inc., 75 A.D.3d 955, 956, 904 N.Y.S.2d 826 [2010] [internal quotation marks and citation omitted]; see Mazzarella v. Syracuse Diocese, 100 A.D.3d 1384, 1385, 953 N.Y.S.2d 436 [2012]; Danner–Cantalino v. City of New York, 85 A.D.3d 709, 710, 926 N.Y.S.2d 109 [2011] ). Thus, “where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment” (Danner–Cantalino v. City of New York, 85 A.D.3d at 710, 926 N.Y.S.2d 109 [internal quotation marks and citation omitted]; see Mazzarella v. Syracuse Diocese, 100 A.D.3d at 1385, 953 N.Y.S.2d 436; Burlarley v. Wal–Mart Stores, Inc., 75 A.D.3d at 956, 904 N.Y.S.2d 826). Notably, and as is relevant to the matter before us, “[a] municipality cannot be held vicariously liable for acts perpetrated by a member of its police force in the course of engaging in a personal dispute, without any genuine official purpose, whether or not the police officer characterizes such conduct as an arrest or incident to an arrest” (Campos v. City of New York, 32 A.D.3d 287, 291–292, 821 N.Y.S.2d 19 [2006], lv. denied8 N.Y.3d 816, 839 N.Y.S.2d 454, 870 N.E.2d 695 [2007], appeal dismissed9 N.Y.3d 953, 846 N.Y.S.2d 77, 877 N.E.2d 295 [2007] ).

Kellar, by his own admission, was not on duty when he went to the pub in Allen's personal vehicle during the early morning hours of October 30, 2008; he also was not in uniform, was not carrying his police radio, did not identify himself as a police officer, did not report the alleged assault upon Allen to his dispatcher or another law enforcement agency, did not at any time attempt to take plaintiff into custody and, as acknowledged at oral argument, was not carrying his weapon. Indeed, upon arriving at the pub, Kellar stated to plaintiff, “I'm not here as a cop.” Further, when pressed as to his reasons for confronting plaintiff, Kellar acknowledged that he only wanted “to see what [plaintiff's] side of ... the story was” and admitted that he was not there to “officially” investigate the alleged assault. Such proof, in our view, was more than sufficient to discharge the Town's initial burden on its motion for summary judgment. As plaintiff failed to tender sufficient admissible proof to raise a question of fact as to whether Kellar was acting within the scope of his employment at the time of the altercation with plaintiff, the Town was entitled to summary judgment dismissing plaintiff's vicarious liability claims against it ( see Danner–Cantalino v. City of New York, 85 A.D.3d at 710, 926 N.Y.S.2d 109; Perez v. City of New York, 79 A.D.3d 835, 836–837, 912 N.Y.S.2d 691 [2010]; Pungello v. City of New York, 18 A.D.3d 216, 216, 795 N.Y.S.2d 3 [2005]; Seymour v. Gateway Prods., 295 A.D.2d 278, 278, 744 N.Y.S.2d 398 [2002]; cf. Campos v. City of New York, 32 A.D.3d at 290–291, 821 N.Y.S.2d 19; Lucey v. State of New York, 73 A.D.2d 998, 998, 424 N.Y.S.2d 38 [1980]; Davis v. City of New York, 226 A.D.2d 271, 272, 641 N.Y.S.2d 275 [1996], lv. denied88 N.Y.2d 815, 651 N.Y.S.2d 17, 673 N.E.2d...