Smith v. KleingardnerSmith v. Kleingardner
This action was commenced to recover damages for injuries sustained by plaintiff Harry Smith (hereinafter plaintiff) as a result of an altercation on September 11, 1999 at the Beaverkill Inn in Parksville, Sullivan County. Defendant Allie Kleingardner was present at the Beaverkill Inn that evening. At approximately 1:00 a.m., several patrons came running into the bar, hollering that an armed man was in the parking lot threatening to kill someone. Kleingardner, a deputy sheriff employed with defendant Sullivan County Sheriff‘s Department and assigned to the jail facility run by defendant County of Sullivan (hereinafter collectively referred to as defendants), averred that he instructed the bartender to call the State Troopers while he went to the parking lot to try to “calm them down.” Upon his arrival, Kleingardner encountered a large group of people confronting plaintiff, who was drunk and agitated. Kleingardner showed plaintiff his badge, told him that he worked for the Sheriff‘s Department and that the State Troopers had already been called. He also warned plaintiff that if he did not leave immediately, he would be arrested when the police arrived.1 Plaintiff got back into his truck and began to leave the parking lot.
As Kleingardner was walking back to the tavern, a member of the crowd threw something at plaintiff‘s truck. Plaintiff stopped, got out of his truck and began to approach the screaming crowd, which was now proceeding towards him. Again, Kleingardner attempted to intercede, instructing plaintiff to leave the area. When Kleingardner escorted plaintiff to his truck, plaintiff suddenly stopped and announced that he was going to kill someone; he reached into the truck and grabbed a gun. Kleingardner
In August 2000, plaintiffs commenced this action alleging, among other things, that due to Kleingardner‘s employment and training as a peace officer, Kleingardner‘s actions during the altercation were within the scope of his employment, thereby making defendants liable under the doctrine of respondeat superior. In July 2003, defendants moved for summary judgment by contending that Kleingardner was acting outside the scope of his employment. Supreme Court granted the motion and this appeal ensued.
Defendants, as “the proponent of a summary judgment motion[,] [made] a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]) by alleging that Kleingardner was off-duty at the time of the incident and that his actions were not job-related (see Matter of Schenectady Police Benevolent Assn. v City of Schenectady, 299 AD2d 717, 718-719 [2002]; Seymour v Gateway Prods., 295 AD2d 278, 278 [2002]; Cardona v Cruz, 271 AD2d 221, 222 [2000]; Pekarsky v City of New York, 240 AD2d 645, 645 [1997], lv denied 91 NY2d 806 [1998]; Stavitz v City of New York, 98 AD2d 529, 531-532 [1984]). The burden then properly shifted to plaintiff to produce evidentiary proof in admissible form sufficient to establish the existence of a triable issue of fact (see Alvarez v Prospect Hosp., supra at 324).
While we acknowledge that plaintiffs only submitted an attorney‘s affirmation which annexed the deposition testimony of Daniel Hogue, the Sheriff of Sullivan County, Hogue‘s testimony gave rise to a question of fact as to whether Kleingardner was acting within the scope of his employment at the time. Hogue explained that peace officers were permitted to carry a gun and make arrests. As a peace officer, Kleingardner would have the power of arrest when a crime is committed in his presence. Despite the fact that Kleingardner was off-duty at the time of the
Cardona, P.J., Mercure, Spain and Carpinello, JJ., concur. Ordered that the order and judgment is reversed, on the law, with costs, and motion denied.