Perez v City of New York

[*1] Perez v City of New York 2009 NY Slip Op 51196(U) [23 Misc 3d 1139(A)] Decided on June 11, 2009 Supreme Court, Kings County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 11, 2009
Supreme Court, Kings County

Kristin Perez, Individually and as Administratrix of the Estate of George Perez, Deceased, Plaintiff,

against

The City of New York and Javier Colon, Defendant.(s)



33632/05



The plaintiffs are represented by the law firm of Kramer & Pollack, LLP, by Joshua D. Pollack, Esq., the defendants are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Rita M. Klann, Esq., of counsel.

Robert J. Miller, J.

This is a tragic case involving the accidental shooting by an off duty police officer of his best friend while the officer was administratively unloading his gun. The Court is required to review and apply the law of respondeat superior to the facts of the case.

The plaintiff Kristin Perez as the adminstratrix of the estate of her deceased husband George Perez (Perez) seeks recovery in a wrongful death action that arose out of a discharge of the defendant Javier Colon's (Colon) police weapon and asserts that the defendant the City of New York (City) is liable for the off-duty shooting through the theory of respondeat superior.

The defendant City moves for summary judgment pursuant to CPLR § 3212 to dismiss the complaint asserting that Police Officer Colon was off duty and not acting within the scope of his employment when the accidental shooting took place, that there is no evidence of negligence on the part of the City in its decision to hire, retain or train the co-defendant Colon, nor is there evidence to support a Civil Rights Law §1983 claim. Plaintiff cross-moves for partial summary judgment on the issue of whether officer Colon was acting within the scope of his employment when he discharged the gun.

As a preliminary matter, plaintiff argues that the defendant's motion should be denied as the plaintiff's note of issue was filed on January 30, 2008 and CPLR § 3212 (a) provides that a motion for summary judgment must be made no later that 120 days after the filing of the note of issue. Plaintiff argues that since the motion was filed on May 30, 2008, it was one (1) day late, and the court should deny the motion.

A motion is made when the motion is served. (Rivera v Glen Oaks Village Owners, Inc., 29 AD3d 560 [2d Dept 2006].) In this case, the City's motion was served on May 29, 2008

by mail and therefore was served within the 120 day statutory period. The Court will consider the summary judgment motions.

On September 15, 2004, off-duty Police Officer Colon accidentally shot and killed [*2]George Perez, while unloading his Smith and Wesson pistol at the residence of Robert McDermott. Colon was not working on the date of the incident. Colon testified at his deposition that he made plans to meet the decedent George Perez, a close friend, at a restaurant with some other people at which time he secured his weapon in a bag in the trunk of Perez's car because he did not want to carry it into the bar/restaurant. Colon testified that he had one beer at the restaurant. After they were finished at the restaurant, Colon re-holstered his gun before he drove with Perez to pick up another friend and go from Manhattan to Brooklyn, en route stopping to purchase a case of beer. Once in Brooklyn, they went into the apartment of their friend, Robert McDermott. After arriving at the apartment, Colon decided to remove the weapon he was carrying, he testified as follows:

Q. In this circumstance, other than it dug into your leg, was it your intentionto drink beer that night?

A. Yeah. We were going to have a couple of beers. We were going to beplaying cards. It wasn't going to be anything excessive.

Q. The fact that you were going to have a few beers, did you take that intoconsideration in your reason for unloading the weapon?

A. Yeah. I mean, you know, I don't want to have, you know, I thought it wasbest, like I said, to my discretion, I thought it was better to get the gununloaded and just put it away, you know. (Emphasis added)

(Colon November 9, 2007deposition at T. 68)[FN1]

Colon further testified that when he started to perform the administrative unload of his

weapon he was standing alone in the kitchen and Perez was in the bathroom. When Colon was in the process of unloading the weapon, it discharged just as Perez suddenly emerged through the bathroom door into the kitchen and he was shot in the jaw, which ultimately led to his death.

Colon started at the New York Police Department Academy in January of 2004 which he attended for six months. He received fire arms training at the range for a ten day period. He testified that he did an administrative unload of his weapon approximately sixteen (16) to seventeen (17) times before the date of the incident. Colon further testified that he was instructed as to what to do with his weapon while he was off duty, which was to safe guard his weapon at all times. Colon believed this meant that he was to keep it on his person at all times when it was possible, or to leave it in a safe place or locked up in a gun case. Colon said he received no additional training from the time he graduated the [*3]Police Academy in July 2004 through the date of the incident, September 15, 2004.

When Colon went to the firearms and tactics section for training, he received a recruit manual, with a firearm tactics section. The Police Student Guide, Firearms Tactics Section, January 2004 given to Police officer Colon during his training reads in pertinent part as follows:

Chapter IV General Regulations

A uniformed member of the service is required to be

armed at all times when in the City of New York, unless

otherwise directed, or while off duty at the officers's own

discretion when:

a. Possession of a firearm, under the circumstances, would

unnecessarily create a risk of loss or theft of the firearm.

Circumstances may include, participation in sporting activities,

attendance at beach and pool, etc., OR

b. On vacation, OR

c. Engaged in authorized off duty employment, OR

d. Engaged in any activity of a nature whereby it would be

advisable NOT to carry a firearm. Such activities especially

include those at which alcoholic beverages are consumed.

The City produced Police Officer Corti (Corti) to testify at a deposition. Officer Corti is a firearms instructor assigned to the firearms and tactics section of the police department. He is a certified master firearms instructor by New York State and his duties included curriculum and development training for firearms. Corti testified that the firearms training during the period of time when Colon was trained was done according to the manual (General Regulations) and that"...we say to every recruit that comes through - if you know that you are gonna go out after work and your intention is to consume alcoholic beverages, it would be highly advisable to secure you weapon in your locker at work." Officer Corti also testified that the officers had discretion with the use and the carrying of their firearm.

To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in its favor (GTF Mtkg, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965, 967 [1985] ).Issue finding rather than issue determination is its function (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957] ). The evidence will be construed in the light most favorable to the one moved against (Weiss v. Garfield, 21 [*4]AD2d 156 [3rd Dept 1964] ). Under the doctrine of

respondeat superior, an employer is responsible for the torts of an employee who acts within the scope of his or her employment. (Riviello v Waldron, 47 NY2d 297 [1979]). The purpose and theory of the rule is to make the employer responsible for the employee's tortious acts when

done in furtherance of the employer's business with the employer bearing the costs to compensate the victim of tortious acts (Adams v NY City Tr. Auth., 88 NY2d 116 [1996]).

In determining whether to apply the doctrine of respondeat superior, there is no rigid test as to whether at a given moment in time an employee is engaged in the employer's business

(Riley v Standard Oil of N.Y, 231 NY 301 [1921]). Court's review whether the employee's acts fall within the direction and control of the employer (Johnson v Daily News, 32 NY2d 33 [1974]); were done as a part of work assigned (Restatement (Third) of Agency § 7.07 [2006]) were the acts performed under the authority of the employer (Cook v Drigant, 289 NY 313 [1942]); were the acts in furtherance of the employer's interest (Sims v Bergamo, 3 NY2d 531 [1957]); were the acts in the discharge of a duty to the employer. (Joseph v City of Buffalo, 83 NY2d 141 [1994]).

Addressing whether Police Officer Colon was in the scope of his employment with the New York City Police Department, the plaintiff has the burden of establishing by a fair preponderance of the credible evidence that the shooting occurred while Police Officer Colon was acting within the scope of his employment. (Hacker v City of New York, 26 AD2d 400 [1st Dept 1966], aff. 20 NY2d 722 [1967], cert denied 390 US 1036 [1968], Valentin v Candy Corner, 254 AD2d 272 [2d Dept 1998].) Plaintiff asserts that Colon was in the scope of his

employment because when Colon was performing a required administrative unload of his gun he was acting in furtherance of his employers interest. Plaintiff argues as follows:

Notwithstanding the above, if the City's motion

is entertained, their motion should be denied and

partial summary judgment should be granted to

plaintiff on the issue as to whether Police Officer

Javier Colon was within the scope of his employment [*5]

when, in order to safeguard his weapon, he was

unloading his weapon and shot the decedent ,

George Perez.

***************************

In the case at hand, Police Officer Colon was trained

to safeguard his weapon that he was required to carry.

The shooting that occurred while he was performing

the administrative unload to safeguard his weapon

was within the scope of his employment with the

City of New York Police Department in furtherance

of his employer's interest or in furthering his employer's

business. He was not moonlighting, he was not in the

process of intentionally discharging his gun and he was

in the process of doing what he was told to do.

Thus, plaintiff claims that Colon's actions fall within the respondent superior doctrine in

that he was acting within the scope of his employment as he was doing what he was required to do, i.e carry and safeguard his weapon.

Plaintiff cites Kull v City of New York, 32 NY2d 951 [1973], a Court of Appeals decision which adopted the Appellate Division, Second Department's dissenting opinion in a case where a police officer who was at home 2 ½ hours before his shift, was getting dressed and left a loaded gun on the top of a televison when he went to answer the door. An infant picked up the gun and it went off. The Court in Kull found that the officer was acting in

the scope of duty. The dissenting opinion adopted by the Court of Appeals found:

In my opinion, it was error for the trial court to hold that

any negligence on the part of the patrolman was not attributable

to his employer, the sole defendant. Defendant's regulations

require that patrolmen be available for duty at all times and that

they carry a revolver at all times. Under the circumstances, it

cannot be said that the patrolman's actions with regard to

his revolver were not in furtherance of his employer's interests [*6]

(Collins v. City of New York, 11 Misc 2d 76, affd. 8A D 2d 613,

affd. 7 N Y 2d 822). The issue of whether the patrolman was

negligent and whether his negligence was in the course of his

employment should have been left to the jury. Furthermore,

plaintiffs had advanced the theory that defendant was negligent

in improperly instructing the patrolman in the care and

maintenance of his revolver. This issue should also have

been presented to the jury.

The City in support of its summary judgment motion relies on Joseph v City of Buffalo, 83 NY2d 141 [1994]. In Joseph, although the officer was required to carry his service revolver while off duty, the Court of Appeals found that the officer was not acting within the scope of his

employment when after work he left his loaded, unlocked revolver under a mattress and it accidently discharged. The court in Joseph held:

Here, Joseph was not acting in the performance

of his duties and within the scope of his employment

when he placed the gun under his son's mattress and

when the accident occurred as he napped in his home.

Rather, he returned home from work, placed the unlocked,

loaded revolver underneath his son's mattress and gone [sic]

downstairs to rest when his revolver accidentally discharged

several hours later. Thus, it cannot be said that Joseph was

engaged in the immediate and actual performance of a public

duty imposed by law. The fact that rules 4.8.6 and 4.1.9 of

the Rules for the Government and Discipline of the Police

Department of the City of Buffalo require police officers to

carry their service revolvers while off duty, and to undertake

the same responsibility for the suppression of disturbances and

in the arrest of offenders when off duty as when on duty, does

not warrant a different result. [*7]

The Court here finds that the Police Officer Colon's decision was discretionary in choosing to bring his service revolver out in a social setting, in order to play a game of cards and to drink beer which were acts that are personal in nature. Colon therefor placed himself in the situation of needing to perform an administrative unload to safe guard his gun.Furthermore, Colon's own testimony shows he was aware that taking a gun to a friend's house was left to his discretion. Officer Corti's testimony also shows that officers were trained that carrying a gun in a social setting was left to their discretion and the manual that Office Colon received himself describes that the situation was discretionary.

Moreover, any nexus between Colon's employment by the City and his administrative

unload at his friends house was severed by time, distance and Colon's independent activities and decisions. (Hoffman v City of New York, 302 AD2d 573 [2d Dept 2003].) Specifically , here Colon made a decision to take his gun with him when he picked up a friend (T. 50), he than locked his gun in his friends car when he went for food and drinks (T. 54) , he than purchased a case of beer (T. 63) to take to a friends house to play cards (T. 61), he than took the gun out of the trunk of the car and brought it into his friends house where he decided to perform the administrative unload (T. 67). The totality of all Colon's decisions take him out of the scope of his employment and therefore, under these facts, plaintiff has failed to meet its burden that he was acting within the scope of his duty and not involved in a personal matter. (Stavitz v City of New York, 98 AD2d 529 [1st Dept 1989]).

Addressing next the claim of negligent hiring and training, recovery on a negligent hiring or retention theory requires a showing that the employer was on notice of the relevant tortious propensities of the wrongdoing employee. (Coffey v. City of New York,. 49 AD3d 449 [2008].) Plaintiff offers no evidence that the City knew or should have known of any propensity by Colon to safeguard his gun in a negligent manner (Pinkney v City of New York, 52 AD3d 242 [1st Dept 2008]).

As to the plaintiff's claims of violation of the plaintiff's civil rights pursuant to 42 USC §

1983, the Court finds that there are only conclusory allegations and no documentary or evidentiary support to a find of custom and practice of the City Police Department in violation of civil rights. (Monelle v Department of Social Services, 436 US 658 [ 1978]) or to establish any

failure by the City in properly training its officers which might amount to a deliberate indifference to the constitutional rights of others (see Pinkey, supra).

Accordingly the City's motion for summary judgement is granted and the Plaintiff's

cross-motion for summary judgement is denied.

The Clerk of the Court is directed to enter judgment dismissing the complaint and all cross claims as against the City. The case is transferred to a non-City part.

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

June 11, 2009 Footnotes

Footnote 1:References to the deposition transcript are cited as T.