Flowers v. New York City Transit Authority ( 1999 )

—Order, Supreme Court, New York County (Robert Lippmann, J.), entered June 11, 1998, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

No issue of fact is raised as to whether defendant’s employee, a token booth clerk, was acting within the scope of his employment when he allegedly assaulted plaintiff in an effort to make him stop panhandling in front of the booth. The evidence clearly shows that the clerk was instructed and trained to deal with problems of this kind by activating an emergency communications system connecting the token booth with personnel in station command, from whom the clerk was to take instructions. The alleged assault was such a wide departure from this normal method of performance as not to be reasonably anticipated by defendant (cf., Riviello v Waldron, 47 NY2d 297, 303-304). Accordingly, defendant cannot be held vicariously liable for its employee’s tort under the doctrine of respondeat superior, and the complaint was properly dismissed. Concur— Sullivan, J. P., Nardelli, Mazzarelli, Wallach and Friedman, JJ.