Opinion
March 16, 1987
Appeal from the Supreme Court, Kings County (Clemente, J.).
Ordered that the order is affirmed, with costs.
The affidavits submitted at Special Term raise a question of fact as to whether the appellant, who allegedly assaulted the plaintiff, was at that time acting outside the scope of his employment as a New York City police officer. Accordingly, whether the appellant is united in interest with his employer, the defendant City of New York (which was timely served with process), for Statute of Limitations purposes (CPLR 203 [b]) cannot be determined at this juncture (cf., Matter of Parker v Port Auth., 113 A.D.2d 763; see also, Connell v. Hayden, 83 A.D.2d 30, 48). Therefore, vacatur of the order which had dismissed the complaint against the appellant was warranted.
The appellant's further contention that leave to reargue was improperly granted is without merit (see, Rodney v. New York Pyrotechnic Prods. Co., 112 A.D.2d 410). Niehoff, J.P., Lawrence, Rubin and Sullivan, JJ., concur.