Opinion
November 9, 1993
Appeal from the Supreme Court, New York County (Helen Freedman, J.).
While questions of whether an employee's actions fall within the scope of his employment are ordinarily questions of fact for a jury, where there are no disputed facts and there is no question that the employee's acts fall outside the scope of his employment, as here, the determination becomes one of law for the court and not one of fact for the jury (see, e.g., Horowitz v Sears, Roebuck Co., 137 A.D.2d 492, lv denied 72 N.Y.2d 803; see generally, Riviello v Waldron, 47 N.Y.2d 297, 302-303). Moreover, the mere fact that an employee's actions, which are the subject of inquiry, occurred during the time of his employment, does not conclusively demonstrate that said actions were within the scope of his employment or that he was performing said acts in the furtherance of his employer's business (see, Heindel v Bowery Sav. Bank, 138 A.D.2d 787; Stavitz v City of New York, 98 A.D.2d 529, 531). Clearly, the actions complained of, as a matter of law, were wholly personal in nature, outside the scope of his employment, and not in furtherance of defendant hospital's business (Cornell v State of New York, 46 N.Y.2d 1032). Accordingly, the complaint seeking to impose liability upon defendant hospital pursuant to the doctrine of respondeat superior was properly dismissed.
Concur — Rosenberger, J.P., Wallach, Kupferman, Asch and Kassal, JJ.