Ferris v. S.L. Capital Corp.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered June 15, 2000, which granted defendants-respondents’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Plaintiff alleges that following a minor traffic accident between the taxi cab in which he was a passenger and defendants’ bus, he got out of the cab, approached the window next to the driver’s seat, berated codefendant bus driver’s driving and returned to the cab, whereupon the bus driver got out of the bus, approached the cab and punched plaintiff in the face through the open cab window. The record establishes that there were no passengers on the bus. The motion court correctly held that such allegations fail to show that the bus driver was acting within the scope of his employment when he punched plaintiff, and that defendant bus owners therefore cannot be held liable on the theory of respondeat superior (see, Stavitz v City of New York, 98 AD2d 529, 531-532, citing Vargas v Correa, 416 F Supp 266, 272; compare, Adams v New York City Tr. Auth., 211 AD2d 285, 294-295, affd on other grounds 88 NY2d 116, with Smalls v New York City Tr. Auth., 264 AD2d 771). Concur — Rosenberger, J. P., Mazzarelli, Ellerin, Wallach and Marlow, JJ.