Application

Brown v Bay Ridge Nissan, 2009 NY Slip Op 51565(U) (App. Term, 2nd, 2009)

Plaintiff brought this action to recover damages based upon an
alleged improper sale of her automobile at auction. At the commencement
of the nonjury trial, the attorney for defendants Bay Ridge Nissan and
Santo Perremuto (hereinafter defendants) moved to dismiss based on the
existence of a stipulation of settlement and release, or, in the
alternative, for an adjournment to have their witnesses present at
trial. The Civil Court denied the application. Following the trial, the
court awarded plaintiff the principal sum of $12,500 as against
defendants.

In the circumstances presented, it was an improvident exercise
of discretion for the court to deny defendants' attorney's application
for an adjournment. Said attorney's failure to have the witnesses
present, in the expectation that a trial would not be required in light
of the existence of an alleged stipulation of discontinuance and
release, was reasonable. Accordingly, the judgment, insofar as appealed
from, is reversed and a new trial ordered as to defendants Bay Ridge
Nissan and Santo Perremuto, at which the circumstances surrounding the
execution and enforceability of the stipulation of discontinuance and
release may be more fully developed (see Citibank, N.A. v Rehn, 20 Misc 3d 139[A], 2008 NY Slip Op 51569[U] [App Term, 2d & 11th Jud Dists 2008]). 

We note that an employee may be held liable for his own tortious
acts whether or not he is acting within the scope of his employment (53
NY Jur 2d, Employment Relations § 349).

The bold is mine.