Joseph Pungello v City of New York

Pungello v City of New York 2005 NY Slip Op 03605 [18 AD3d 216] May 3, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 20, 2005

Joseph Pungello, Appellant,
v
City of New York et al., Defendants, Sidney Des Jardin, Appellant, and New York City Housing Authority, Respondent.

—[*1]

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered on or about December 9, 2003, which granted the motion of defendant New York City Housing Authority for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.

Plaintiff was shot by defendant Des Jardin. At the time, Des Jardin, although employed as a Housing Authority detective, was off duty in civilian attire, walking his dog near his home on premises not belonging to the Housing Authority, and the evidence of record establishes that the altercation arose from motives of a purely personal sort, bearing no relation to any law enforcement responsibilities Des Jardin may have had in his official capacity. Under these circumstances, it is clear as a matter of law that plaintiff may not hold the Housing Authority accountable for Des Jardin's actions on a respondeat superior theory (see Seymour v Gateway Prods., Inc., 295 AD2d 278 [2002]; Pekarsky v City of New York, 240 AD2d 645 [1997], lv denied 91 NY2d 806 [1998]; Stavitz v City of New York, 98 AD2d 529 [1984]; Mahmood v City of New York, 2003 WL 21047728, *3, 2003 US Dist LEXIS 7745, *11-12 [SD NY, May 8, 2003]). [*2]

We have reviewed appellants' remaining arguments and find them unavailing. Concur—Tom, J.P., Saxe, Friedman, Marlow and Catterson, JJ.