Summary
holding that correction officer's assault of prisoner was outside the scope of employment
Summary of this case from Jackson v. MastrantonioOpinion
May 31, 1990
Appeal from the Supreme Court, Albany County (Hughes, J.).
This matter has been before us twice previously ( 128 A.D.2d 281; 105 A.D.2d 904, affg 123 Misc.2d 446) and the pertinent facts are set forth in our most recent remittal ( 128 A.D.2d 281, supra). Before Supreme Court upon remittal, the parties cross-moved for summary judgment. Supreme Court denied both motions but ruled that plaintiff was not entitled to recover counsel fees. These cross appeals followed.
The dispositive issue is whether plaintiff was acting within the scope of his employment on December 3, 1982 when he opened the jail cell confining Calvin Jenkins, thereby allowing two correction officers to physically assault Jenkins. Our review of the record reveals that at the time in question, plaintiff was supervising an area of the jail which included Jenkins' cell. His supervisory duties included control over the lock box by which cell doors were opened. Plaintiff testified at an examination before trial that he knew that Jenkins was in cell 23 under a keeplock order, pursuant to which the cell was only to be opened by order of a supervisor, for meals or in an emergency. Despite an absence of such circumstances, plaintiff opened cell 23, allowing the two other officers access to Jenkins. It further appears from the record that plaintiff was involved in preparing a false report concerning what had occurred and accepted a disciplinary penalty for his conduct in this affair.
Considering these facts against the factors applicable in deciding whether an employee's conduct was within the scope of employment (see, Riviello v. Waldron, 47 N.Y.2d 297, 303), we conclude that plaintiff's actions were outside the scope of his employment. Plaintiff undertook acts contrary to known operating procedures and the essential correctional facility goal of maintaining order, discipline and control. Plaintiff's participation in the Jenkins matter reveals acts undertaken knowingly which indicate an intentional course of conduct contrary to institutional rules, training and common sense. Under such circumstances, plaintiff is not entitled to indemnification under Public Officers Law § 17 (3) (a). We likewise find no entitlement to counsel fees in this action (see, e.g., Matter of Garcia v. Abrams, 98 A.D.2d 871, 873, amended 101 A.D.2d 601).
Order modified, on the law, without costs, by reversing so much thereof as denied defendants' cross motion for summary judgment; cross motion granted, summary judgment awarded to defendants and complaint dismissed; and, as so modified, affirmed. Mahoney, P.J., Casey, Weiss, Levine and Harvey, JJ., concur.