Opinion
August 20, 1984
Appeal from the Supreme Court, Kings County (Jordan, J.).
Judgment reversed, on the law and the facts, with costs, and complaint dismissed.
Plaintiff was injured on July 27, 1972, at approximately 4:10 P.M., when he was shot in the leg by Gregory Arroyo, who was then a police officer with the City of New York. Upon a prior appeal in this case, we held that the verdict in favor of plaintiff was against the weight of the evidence and granted a new trial ( Garcia v City of New York, 87 A.D.2d 643). If the testimony then lacked credulity, the variations in that testimony have not added to its probative value and the verdict cannot stand (see Barcelo v Horn Hardart Co., 11 A.D.2d 651; 10 Carmody-Wait 2d, N Y Prac, § 70:403, p. 668; Note, Successive Appeals and the Law of the Case, 62 Harv L Rev 286, 291; 5B CJS, Appeal Error, § 1964, subd. c, par [3], pp. 567-570).
While ordinarily we should view our prior determination as implicitly holding that plaintiff had established a prima facie case and follow that determination as the law of the case ( Politi v Irvmar Realty Corp., 13 A.D.2d 469; Vanguard Tours v Town of Yorktown, 102 A.D.2d 868), the doctrine of the law of the case is flexible, not an inescapable straightjacket ( Martin v City of Cohoes, 37 N.Y.2d 162, 165, mot. to dismiss app granted mot. for lv. to app den. 39 N.Y.2d 740; People v Palumbo, 79 A.D.2d 518, 519, aff'd 53 N.Y.2d 894). On this record, we are compelled to conclude that it was "utterly irrational for [the] jury to reach the result it has" and, therefore, dismiss the complaint ( Cohen v Hallmark Cards, 45 N.Y.2d 493, 499; see O'Boyle v Avis Rent-A-Car System, 78 A.D.2d 431, 439).
As a result of the prior dismissal of plaintiff's claim of negligent hiring, the sole question presented to the jury at this trial was whether Arroyo was acting within the scope of his employment at the time of the shooting. The act could have been in the scope of Arroyo's employment only if he was on duty at the time and if the act were negligent rather than intentional in nature ( Cornell v State of New York, 46 N.Y.2d 1032; Sauter v New York Tribune, 305 N.Y. 442). True, in certain circumstances an intentional tort by an employee may be within the scope of employment (cf. O'Donnell v K-Mart Corp., 100 A.D.2d 488). But the firing of a service revolver twice at plaintiff cannot, absent some evidence that Arroyo was at least arguably engaged in police business, be considered within the scope of his employment ( Hacker v City of New York, 20 N.Y.2d 722, affg on opn. at 26 A.D.2d 400, cert. den. 390 U.S. 1036; Pacheco v City of New York, 11 Misc.2d 80, aff'd 285 App. Div. 1031).
Plaintiff's own testimony established that the shooting was deliberate and this is the only rational explanation for the event. The testimony of plaintiff's medical expert, received over objection, is entitled to no weight. The witness was not a ballistics expert and therefore much of his testimony was beyond the sphere of his expertise and his theory was predicated on pure supposition and conjecture (see People v Cohen, 50 N.Y.2d 908, 910; Matter of Burris v Lewis, 2 N.Y.2d 323, 327; People v Harding, 59 A.D.2d 897, 898; Richardson, Evidence [Prince, 10th ed], § 367).
"`"When we say that there is no evidence to go to a jury, we do not mean that there is literally none, but that there is none that ought reasonably to satisfy a jury that the fact sought to be proved is established"'" ( Blum v Fresh Grown Preserve Corp., 292 N.Y. 241, 246, quoting Matter of Case, 214 N.Y. 199, 204, which in turn quotes Jewell v Parr, 13 CB 916). This is such a case.
Accordingly, the city may not be held vicariously liable for plaintiff's injuries and the complaint should be dismissed ( Hacker v City of New York, supra). Titone, J.P., Mangano, Gibbons and O'Connor, JJ., concur.