Summary
holding that a bartender who fought with a patron in the bar's parking lot was acting outside the scope of his employment
Summary of this case from Victory v. PatakiOpinion
April 1, 1991
Appeal from the Supreme Court, Queens County (Posner, J.).
Ordered that the cross appeal from so much of the order as denied the plaintiff's motion for leave to introduce certain photographs as evidence of his injuries at an impending trial on the issue of damages is dismissed; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that the plaintiff is awarded one bill of costs payable by the appellants-respondents appearing separately and filing separate briefs.
On February 26, 1982, the plaintiff Peter Savarese and several friends were asked to leave the Tamaqua Bar and Grill in Brooklyn. Savarese returned to the bar during the early morning hours of February 27, after closing time, and an altercation ensued in the parking lot. Savarese was arrested by the defendants John Ruiz and Francis Murnane, off-duty police officers employed by the defendant New York City Housing Authority (hereinafter NYCHA), who happened to be on the premises. Savarese commenced this action, alleging, inter alia, that Ruiz and Murnane, while acting within the scope of their employment, assaulted him and permitted others to assault him. Savarese conceded at trial that his arrest was lawful, and no issue as to the legality of the arrest was presented to the jury. After a trial solely on the issue of liability, the jury, in response to interrogatories, determined that Ruiz and Murnane had not committed a battery but that they had permitted other persons to strike Savarese after his arrest. The jury also determined that Ruiz and Murnane were not acting within the scope of their authority as NYCHA employees at the time of the incident.
We conclude that the court properly set aside the jury's verdict on the issue of whether Ruiz and Murnane were acting within the scope of their employment. The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his servant while acting within the scope of employment (see, Riviello v. Waldron, 47 N.Y.2d 297, 302; Quadrozzi v. Norcem, Inc., 125 A.D.2d 559, 561). This doctrine applies to the actions of NYCHA police officers who attempt to effect arrests while off-duty (see, Parris v. New York City Hous. Auth., 121 A.D.2d 436). Intentional torts as well as negligent acts may fall within the scope of employment. In either situation, the employer need not have foreseen the precise act or the exact manner of injury as long as the general type of conduct may have been reasonably expected (see, Riviello v. Waldron, supra). In the instant case, the jury determined that the defendant officers permitted others to strike Savarese after his arrest. As employees of the New York City Housing Authority, the defendant officers were under a duty to protect Savarese while he was in their custody. The jury's determination that the officers were acting outside the scope of their employment when they failed to perform that duty is contrary to the weight of the evidence (see, e.g., Clancy v County of Nassau, 142 A.D.2d 626; see generally, Nicastro v Park, 113 A.D.2d 129). The trial court concluded that the jury's finding on this issue may have been the result of its erroneous charge on scope of employment.
The court properly dismissed the complaint as against the defendants Tamaqua Bar Grill and its owner, Edward Sarubbi Sr., as Savarese failed to establish their liability for the acts of their employees on a theory of respondeat superior. The testimony of Edward Sarubbi, Jr., who was working as a bartender at the bar, indicated that he and his brothers, who were also bartenders, acted for solely personal ends during the altercation with Savarese, rather than in furtherance of or as incident to the bar's business. Consequently, liability for their acts may not be imputed to their employer (see, Horowitz v. Sears, Roebuck Co., 137 A.D.2d 492; Island Associated Coop. v. Hartmann, 118 A.D.2d 830).
Savarese argues that he should be permitted to amend his complaint to add a claim for punitive damages. However, since the court reserved decision as to whether it would allow this amendment, this court may not review this contention (see, Lopez v. Massachusetts Mut. Life Ins., 170 A.D.2d 583; Katz v Katz, 68 A.D.2d 536, 541; CPLR 5501 [a] [1]).
Additionally, Savarese contends that the court erred in denying his motion, in effect, for a ruling on the admissibility of evidence concerning his injuries at the forthcoming trial on the issue of damages. We have previously held that such an evidentiary ruling, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission (see, Pellegrino v. New York City Tr. Auth., 141 A.D.2d 709, 709-710; see also, Mauro v. Village of Freeport, 113 A.D.2d 876; Cotgreave v. Public Adm'r of Imperial County, 91 A.D.2d 600, 601).
The contention of the defendant Ruiz that Savarese's attorney repeatedly mischaracterized the trial evidence during his summation is unpreserved for appellate review, as he failed to object to any of the alleged comments (see, Seneca Dress Co. v Bea-Jay Mfg. Corp., 156 A.D.2d 894, 895; Murray v. Robin, 108 A.D.2d 903). In any event, the remarks in question were not so flagrant or excessive as to warrant a new trial (see, Murray v Robin, supra).
We find the parties' remaining contentions to be either unpreserved for appellate review, academic, or without merit. Brown, J.P., Sullivan, Eiber and O'Brien, JJ., concur.