Morris v. City of New York , 603 N.Y.S.2d 463 ( 1993 )

Kupferman, J.,

dissents in a memorandum as follows: I

would affirm the determination dismissing the complaint, but with leave to replead.

For the City of New York to be liable, the acts must have been within the scope of employment (Cornell v State of New York, 46 NY2d 1032).

All the plaintiff alleges is that on the day of the incident both she, a court officer, and the alleged attacker, an Assistant District Attorney, were present at 80 Centre Street, he in the course and scope of his employment with the District Attorney’s office, and that he "intentionally, maliciously, violently and wantonly struck, battered, harassed and verbally and physically abused” her.

The situation seems so bizarre that it, at the very least, should be fleshed out in the complaint before the cause of action can be considered sufficiently pleaded to bring it within the "scope of employment”.

[The unpublished decision and order of this Court entered on August 26, 1993 is hereby recalled and vacated. (See, 197 AD2d 478.)]