Opinion
4510
November 4, 2004.
Order and judgment (one paper), Supreme Court, New York County (Martin Shulman, J.), entered December 4, 2003, which, after a jury trial, granted defendant-respondent's motion for judgment notwithstanding the verdict, unanimously affirmed, without costs.
Before: Tom, J.P., Saxe, Lerner, Marlow and Sweeny, JJ.
The credible evidence demonstrated that the acts of defendant's employee, an off-duty police sergeant, were dictated by personal motives stemming from a traffic altercation with plaintiff as the two passed through the Triborough Bridge toll plaza. At the time the sergeant motioned for plaintiff to pull over, he was not in uniform, did not display his badge, and gave no indication that he was a police officer. Only after plaintiff pulled his vehicle to the side of the road did the sergeant approach and state that he was a police officer. Given the circumstances, there was no basis upon which to conclude that he acted within the scope of his employment during this occurrence ( Davis v. City of New York, 226 AD2d 271, lv denied 88 NY2d 815).