Practice point: The plaintiff moved for summary judgment on the claim of an assault by an alleged City police officer, submitting a certificate of disposition from the
Supreme Court indicating that the alleged officer had been convicted
of assault in the third degree and reckless endangerment in the second
degree in connection with the assault at issue. The plaintiff contended
that the City's tenth affirmative defense constituted an admission that the alleged officer
had been acting within the scope of his employment. The Appellate Division held that the Supreme Court erred in granting the motion. The affirmative defense, in pertinent part, stated that, "such acts as were committed . . . in the
scope of employment were justified." In light of the conditional nature
of this language, and the City's denials that the alleged officer had been
acting within the scope of his employment, the City's affirmative
defense did not constitute an admission.
Student note: A
plaintiff may not deem those allegations set forth in an answer that
are favorable to him or her to be admissions, while refusing to be bound
by those allegations that are unfavorable.
Case: Hollinden v. City of New York, NY Slip Op 05676 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Disclosure of written accident reports.
