Opinion
October 3, 1994
Appeal from the Supreme Court, Queens County (Berkowitz, J.).
Ordered that the judgment is reversed insofar as appealed from, on the law, with one bill of costs, and the complaint is dismissed as asserted against the defendant City of New York.
When the plaintiff invokes the doctrine of respondeat superior, the "[p]laintiff has the burden of establishing by a fair preponderance of the credible evidence that the act complained of occurred while [defendant police officer] was acting within the scope of his employment for the City of New York" (Hacker v. City of New York, 26 A.D.2d 400, 402-403, affd 20 N.Y.2d 722, cert denied 390 U.S. 1036; see also, Clarke v. City of New York, 178 A.D.2d 458; Mastroianni v. Incorporated Vil. of Hempstead, 166 A.D.2d 560). Here, the plaintiff has failed to establish that the defendant Rudolph Hays was acting within the scope of his employment as a New York City police officer when, while off-duty, he shot the plaintiff's decedent, Sharon Walker (see, Joseph v. City of Buffalo, 83 N.Y.2d 141; Hacker v. City of New York, 26 A.D.2d 400, supra; see generally, Mastroianni v Incorporated Vil. of Hempstead, supra). Accordingly, since there is no rational basis to support the jury verdict, the judgment against the City of New York must be reversed and the complaint dismissed insofar as it is asserted against the City. Rosenblatt, J.P., Miller, Ritter and Hart, JJ., concur.