Opinion
July 27, 1998
Appeal from the Supreme Court, Kings County (Belen, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the defendant's contentions, evidence indicating that it specifically instructed its security guards to refrain from physical contact with customers does not compel the conclusion that, as a matter of law, the security guard in question was acting beyond the scope of his employment when he allegedly assaulted the plaintiff (see, Riviello v. Waldron, 47 N.Y.2d 297, 302; see also, Sims v. Bergamo, 3 N.Y.2d 531; Smith v. The Limited, 237 A.D.2d 345; Young Bai Choi v. D D Novelties, 157 A.D.2d 777). As stated by the Supreme Court, the circumstances surrounding the altercation are in sharp dispute such that summary judgment on the plaintiffs assault claim is inappropriate (see, Zuckerman v. City of New York, 49 N.Y.2d 557).
Rosenblatt, J. P., Ritter, Copertino and Florio, JJ., concur.