Hollinden v City of New York, 2013 NY Slip Op 05676 (2d Dept. 2013)
I guess this goes into the category: Be careful what you plead? A strange case.
“The plaintiff moved for summary judgment against the City on the first cause of action, submitting a certificate of disposition from the Supreme Court, Queens County, indicating that Dennis 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 tenth affirmative defense constituted an admission that Dennis had been acting within the scope of his employment. The Supreme Court granted the motion.
The Supreme Court erred in granting the motion. The City’s affirmative defense was 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 Dennis had in fact been acting within the scope of his employment, the City’s tenth affirmative defense did not constitute an admission. [*2]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”
