Opinion
Argued November 2, 2000.
December 6, 2000.
In an action to recover damages for malicious prosecution, the defendant Town of Hempstead appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Winick, J.), entered November 23, 1999, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
Rivkin, Radler Kremer, LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and Stuart M. Bodoff of counsel), for appellant.
Steven Cohn, P.C., Carle Place, N.Y. (Susan E. Dantzig of counsel), for respondent.
Ryan Brennan, LLP, Floral Park, N.Y. (John E. Ryan of counsel), for defendants.
Before: LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, FRED T. SANTUCCI, LEO F. McGINITY, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
"As a general rule, employers are held vicariously liable for their employees' torts only to the extent that the underlying acts were within the scope of the employment" (Adams v. New York City Tr. Auth., 88 N.Y.2d 116, 119). Contrary to the contentions of the defendant Town of Hempstead (hereinafter the Town), the plaintiff raised triable issues of fact with respect to whether the defendant Daniel Davis was acting within the scope of his employment so as to render the Town vicariously liable for his acts (see, Riviello v. Waldron, 47 N.Y.2d 297, 303). Further, there are questions of fact as to whether Davis played an active role in the prosecution of the plaintiff (cf., DeFilippo v. County of Nassau, 183 A.D.2d 695).