Montauban v. Haitian Transfer Express Co. , 128 A.D.2d 595 ( 1987 )

In an action, inter alia, to recover damages for wrongful death and assault, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Bernstein, J.), dated May 27, 1986, as denied her motion for partial summary judgment against the defendant Epic Protection and Intelligence System, Ltd., on the first and second causes of action stated in the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The papers submitted by the parties on the plaintiff’s motion for summary judgment clearly show the existence of an issue of fact as to whether the employee of the defendant Epic Protection and Intelligence System, Ltd., was acting within the scope of his employment when he shot and killed the plaintiff’s decedent (see, Riviello v Waldron, 47 NY2d 297). It was therefore proper to deny the motion. Niehoff, J. P., Rubin, Kunzeman and Harwood, JJ., concur.