SMALLS v. NEW YORK CITY TRANSIT AUTHORITY

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant New York City Transit Authority (hereinafter the NYCTA) failed to establish its entitlement to judgment as a matter of law regarding whether its employee, a bus driver, was acting beyond the scope of his employment during his altercation with a passenger ( see, CPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Riviello v. Waldron, 47 N.Y.2d 297, 302). The circumstances surrounding the altercation are in sharp dispute such that summary judgment is inappropriate ( see, Zuckerman v. City of New York, supra; Jaccarino v. Supermarkets Gen. Corp., 252 A.D.2d 572).

Furthermore, the NYCTA is not entitled to judgment as a matter of law on the evidence presented with regard to the causes of action alleging negligent hiring and retention of its employee ( see, Detone v. Bullit Courier Serv., 140 A.D.2d 278).

O'BRIEN, J.P., SULLIVAN, H. MILLER, and SMITH, JJ., concur.