
    [629 NE2d 1354, 608 NYS2d 396]
    Susan Joseph, as Parent and Natural Guardian of Randie Joseph, II, an Infant, Appellant, v City of Buffalo et al., Respondents. (And Another Action.)
    Argued January 13, 1994;
    decided February 17, 1994
    
      POINTS OF COUNSEL
    
      Miserendino, Krull & Foley, P. C., Buffalo (Philip Celniker, Michael R. Drumm and Joseph G. Krenitsky of counsel), for appellant.
    I. General Municipal Law § 50-j does not contravene or restrict applicable common-law principles of vicarious liability. (Kull v City of New York, 32 NY2d 951; Collins v City of New York, 11 Misc 2d 76, 8 AD2d 613, 7 NY2d 822; Alifieris v American Airlines, 63 NY2d 370; Riviello v Waldron, 47 NY2d 297; Frazier v State of New York, 64 NY2d 802; Stavitz v City of New York, 98 AD2d 529; Wilson v City of New York, 173 AD2d 276; Clancy v County of Nassau, 142 AD2d 626; Mastroianni v Incorporated Vil. of Hempstead, 166 AD2d 560; Fuller v City of Yonkers, 100 AD2d 926.) II. The position of the City of Buffalo and the decisions of the Court below are inconsistent on the question of the existence of "factual issues” which preclude granting summary judgment.
    
      Napier, Fitzgerald & Kirby, Buffalo (Kenneth R. Kirby of counsel), for City of Buffalo, respondent.
    I. Based on the undisputed facts, the Court below properly granted the City of Buffalo’s motion for summary judgment. (Dinkins v Farley, 106 Misc 2d 593.) II. Whether analyzed pursuant to General Municipal Law § 50-j or under the doctrine of respondeat superior, as a matter of law, codefendant was not in the course and scope of employment at the time the gun discharged or when codefendant, after dozing allegedly stored the loaded, unlocked gun under his son’s bed before taking his children downstairs with him. (Lundberg v State of New York, 25 NY2d 467; Collins v City of New York, 11 Misc 2d 76, 8 AD2d 613, 7 NY2d 822; Kull v City of New York, 40 AD2d 829, 32 NY2d 951.) III. General Municipal Law § 50-j (2) controls the result here, plaintiffs unpersuasive arguments notwithstanding. (Dinkins v Farley, 106 Misc 2d 593; Sanders v Winship, 57 NY2d 391; Matter of Evans v Berry, 262 NY 61; Berger v City of New York, 260 App Div 402, 285 NY 723; Breen v Mortgage Commn., 285 NY 425; Alifieris v American Airlines, 63 NY2d 370; Matter of Wilson v Board of Educ., 39 AD2d 965; Barasch v Micucci, 49 NY2d 594; People v Dethloff, 283 NY 309.) IV. Implicit in plaintiff’s argument is a collateral attack on a discretionary governmental function; for this reason, the doctrine of respondeat superior avails plaintiff not, for immunity attaches to such acts. (Mon v City of New York, 78 NY2d 309; Haddock v City of New York, 75 NY2d 478; Arteaga v State of New York, 72 NY2d 212; Desa v City of New York, 188 AD2d 313; Blatt v New York City Hous. Auth., 123 AD2d 591.) V. Plaintiff’s cases are either inapposite, neutral or favor respondent’s position. (Alifieris v American Airlines, 63 NY2d 370; Collins v City of New York, 11 Misc 2d 76, 8 AD2d 613, 7 NY2d 822; Riviello v Waldron, 47 NY2d 297; Mott v Consumers’ Ice Co., 73 NY 543; Desa v City of New York, 188 AD2d 313, 81 NY2d 706; Shapiro v United Med. Serv., 15 NY2d 200; Dinkins v Farley, 106 Misc 2d 593; Frazier v State of New York, 64 NY2d 802.) VI. The cases cited by plaintiff which involved judgments for the municipality are not inconsistent with and do not require a different result here. (Garcia v City of New York, 104 AD2d 438; Fuller v City of Yonkers, 100 AD2d 926.) VII. Doctrine of "law of the case” was no bar to the result reached by the Court below. (Garcia v City of New York, 104 AD2d 438; Rogers v Decker, 131 NY 490; Smith v Town of Warwick, 71 AD2d 618.)
    
      Magavern & Magavem, Buffalo (George R. Rich of counsel), for Randie Joseph, respondent.
    I. Section 50-j of the General Municipal Law does not restrict common-law principles of respondeat superior and, in any event, defendant-respondent Joseph’s actions fell within the parameters of section 50-j. (Collins v City of New York, 11 Misc 2d 76, 8 AD2d 613, 7 NY2d 822; Garcia v City of New York, 104 AD2d 438, 65 NY2d 805; Stavitz v City of New York, 98 AD2d 529; Alifieris v American Airlines, 63 NY2d 370.) II. The prior decisions of the Court below on the question of the existence of factual issues as to whether defendant-respondent Joseph was acting within the scope of his employment are in conflict and by their very existence define an issue of fact.
   OPINION OF THE COURT

Smith, J.

The primary issue in this case is whether defendant City of Buffalo is entitled to summary judgment on the issue of its vicarious liability for the acts of defendant Joseph, an off-duty police officer, that resulted in severe injuries to his infant son.

On December 10, 1976, at approximately 8:00 a.m., defendant Randie Joseph, a police officer with the Buffalo Police Department, completed his eight-hour work shift and returned home carrying his loaded police service revolver. Defendant then went to the upstairs bedroom of his infant children, where he lay down on the bed of his three-year-old son, placed the unlocked, loaded revolver underneath the mattress, and observed his children as they played. As defendant later reclined downstairs on his living room couch, he heard the sound of a firearm being discharged. He ran upstairs to find his son underneath the mattress of his bed with a gunshot wound to his head. Defendant’s son had apparently rolled up the mattress and found defendant’s service revolver, which had discharged, injuring the infant.

Plaintiff, the child’s mother, commenced this personal injury action against the City of Buffalo alleging vicarious liability under the doctrine of respondeat superior. The City initiated a third-party action against Joseph for a judgment declaring that defendant was not acting within the scope of his employment when he placed the gun under his son’s mattress and when the accident occurred. Plaintiff moved for partial summary judgment against both defendants on the issue of liability. Plaintiff also joined Joseph’s motion for summary judgment on the issue of the City’s vicarious liability. Supreme Court granted plaintiff’s motion for partial summary judgment against Joseph on the issue of liability, and, citing Kull v City of New York (32 NY2d 951, revg 40 AD2d 829), denied defendant Joseph’s summary judgment motion against the City. The court concluded that whether Joseph’s negligence was attributable to the City of Buffalo could not be determined as a matter of law, but rather had to be left to the trier of fact. The Appellate Division affirmed, with two Justices dissenting (167 AD2d 830). While the majority declined to reach the issue of the vicarious liability of the municipality, the dissent determined that Supreme Court’s reliance on Kull v City of New York, which was decided prior to the enactment of General Municipal Law § 50-j, was misplaced because under section 50-j "[a] municipality [cannot] be held vicariously liable for the acts of an off-duty officer 'absent some evidence that [the officer] was at least arguably engaged in police business’ as opposed to a private matter” (id., at 832). Thus, the dissent concluded that summary judgment should be granted dismissing the action against the City since Joseph was not engaged in police business when he placed the gun under his son’s mattress and when the accident occurred.

Thereafter, Supreme Court granted plaintiff’s request for further discovery, denied in part defendant City’s cross motion for a protective order, and directed that the City’s motion for summary judgment be held in abeyance pending the completion of discovery and further submissions. The Appellate Division reversed, on the law, granted the City’s motion for summary judgment, and dismissed the complaint against that defendant (187 AD2d 946). The Court expressly adopted the analysis set forth in the dissent on the prior appeal and concluded that Joseph, at the time of the conduct in issue, was not engaged in any police business and that the City is not vicariously liable for his conduct (id., at 947). This Court granted plaintiff’s motion for leave to appeal.

Contrary to plaintiff’s assertion, section 50-j of the General Municipal Law does not preclude summary judgment in this case. That statute governs the ultimate responsibility for negligence in the performance of duties by police officers. Subdivision (1) provides, in part, that a city shall assume the liability for the negligent act or tort of a duly appointed police officer of such municipality "provided such police officer, at the time of the negligent act or tort complained of, was acting in the performance of his duties and within the scope of his employment.” A police officer is deemed to be acting in the discharge of duty "when engaged in the immediate and actual performance of a public duty imposed by law and such public duty performed was for the benefit of the citizens of the community * * * and the municipal corporation * * * derived no special benefit in its corporate capacity” (General Municipal Law § 50-j [2]).

Here, Joseph was not acting in the performance of his duties and within the scope of his employment when he placed the gun under his son’s mattress and when the accident occurred as he napped in his home. Rather, he had returned home from work, placed the unlocked, loaded revolver underneath his son’s mattress and gone downstairs to rest when his revolver accidentally discharged several hours later. Thus, it cannot be said that Joseph was engaged in the immediate and actual performance of a public duty imposed by law. The fact that rules 4.8.6 and 4.1.9 of Rules for the Government and Discipline of the Police Department of the City of Buffalo require police officers to carry their service revolvers while off duty, and to undertake the same responsibility for the suppression of disturbances and in the arrest of offenders when off duty as when on duty, does not warrant a different result. Furthermore, rule 4.8.3 states that police officers "shall be responsible for the security of their firearms at all times.”

We must examine Kull v City of New York (supra) and the impact, if any, of section 50-j. In Kull, a police officer was preparing to go on his tour of duty. He had just finished shaving and was walking toward his kitchen carrying his revolver. He placed the revolver on a television set in order to put on his shirt. Shortly thereafter, the infant plaintiff picked up the revolver and was injured when it accidentally discharged. That feature materially differentiates Kull from the present case, where the officer left his loaded service revolver unattended under his infant son’s mattress for several hours while he napped in his own home. That conduct is wholly unrelated to any duty involving his employment.

The Appellate Division majority in Kull determined that there was no evidence upon which a jury could find that the police officer was acting within the scope of his employment at the time of the accident (40 AD2d 829, supra). Noting that the Police Department’s regulations required the police officer to be available for duty at all times and to carry a revolver at all times, the dissent concluded that the issue of whether the police officer’s actions were "in furtherance of his employer’s interests” was a question of fact for the jury, and that it was error for the trial court to hold, as a matter of law, that any negligence on the part of the police officer was not attributable to the Police Department, the sole defendant (id., at 830). This Court reversed on the dissenting opinion at the Appellate Division (32 NY2d 951, supra).

Section 50-j was intended to extend the applicability of the previous General Municipal Law § 50-j, which was limited to the City of New York, "to all counties, cities, towns, villages, authorities and agencies to require them to assume the liability of and save harmless any duly appointed police officer for any negligent act committed in the performance of his duties and within the scope of his employment” (Mem of Dept of State, Bill Jacket, L 1975, ch 843). The purpose of the statute is to protect police officers from liability for their negligent acts while in the furtherance of their employers’ interests, or in the statutory words "in the immediate and actual performance of a public duty imposed by law” (General Municipal Law § 50-j [2]). This purpose does not affect the force of Kull v City of New York, our distinguishing it, or the applicable common-law principles of vicarious liability.

We have examined plaintiff’s remaining contentions and conclude that they are without merit.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges Simons, Beliacosa, Levine and Ciparick concur; Judge Titone taking no part.

Order affirmed, with costs. 
      
       Defendant Joseph’s cross motion for leave to appeal was dismissed as untimely.
     