Summary
holding summary judgment inappropriate where municipal defendant failed to offer any evidence of officers' training or of "whether such training was the result of an informed, duly-considered municipal decision"
Summary of this case from Cuellar v. LoveOpinion
July 30, 1998
Appeal from the Supreme Court, New York County (Robert Lippmann, J.).
The motion court erred in granting defendant City summary judgment, where the City failed to offer any evidentiary proof whatsoever in satisfaction of its initial burden to produce admissible evidence demonstrating that no triable issues of fact exist as to plaintiff's claims ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). With reference to the respondeat superior claim, not only is determination as a matter of law generally inappropriate ( see, Frazier v. State of New York, 64 N.Y.2d 802, 803; Riviello v. Waldron, 47 N.Y.2d 297, 302-303), there was no proof in this record tending to establish that the individual defendants acted outside the scope of their employment ( see, Davis v. City of New York, 226 A.D.2d 271; Pekarsky v. City of New York, 240 A.D.2d 645, lv denied 91 N.Y.2d 806). Indeed, the only related proof in the record was that submitted by plaintiff opposing summary judgment and consisting of deposition testimony by defendant Martin to the effect that she was acting within the scope of her duties. References to Martin's credibility and her criminal conviction for assaulting plaintiff do not suffice as proof, since credibility is not at issue on summary judgment ( Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341; Communications Entertainment Corp. v. Hibbard Brown Co., 202 A.D.2d 191), and a conclusive determination as to the facts presented and the issues decided in the assault conviction is precluded here for lack of record evidence.
With reference to plaintiff's negligent-training claim, the City failed to offer evidence either as to the training actually provided to the individual defendants or as to whether any such training was the result of an informed, duly-considered municipal decision ( see, Weiss v. Fote, 7 N.Y.2d 579; Appelbaum v. County of Sullivan, 222 A.D.2d 987), instead relying on counsel's bare assertion that defendants' graduation from the correction officers training program establishes per se the adequacy of their training. Consequently, defendant City's reliance on Weiss v. Fote (supra), is inapposite.
Concur — Milonas, J. P., Williams, Tom and Andrias, JJ.