dissents and votes to reverse in the following memorandum. Greenblott, J. P. (dissenting). In my view, subparagraph 2h of the amended claim, which alleges that a State University instructor intentionally and maliciously inflicted emotional harm upon claimant, a student, should also have been dismissed for failure to state a cause of action. The instructor’s conduct of which claimant complains was obviously neither within the scope of his employment nor done in furtherance of his duties to his employer, the State (see, e.g., Sauter v New York Tribune, 305 NY 442, 444; Rymanowski v Pan Amer. World Airways, 70 AD2d 738; Riviello v *721Waldron, 63 AD2d 592; Mortiz v Pines Hotel, 52 AD2d 1020). Since the claim nowhere alleges specifically that the instructor was acting within the scope of his employment or facts from which such an allegation could be inferred, a cause of action against the State based upon a theory of respondeat superior has not been set forth (see 57 CJS, Master and Servant, § 614). Moreover, in an opposing affidavit, claimant’s counsel, presumably aware of the above legal principles, specifically stated that the amended claim "does not seek to hold the State liable in tort on a theory of respondeat superior for the tortious conduct” of the instructor. Instead, he claims that a cause of action against the State has been set forth properly based upon a theory of negligent supervision by the instructor’s supervisors. However, since the cause of action is based upon conclusory statements unsupported by any factual allegations, the claim should have been dismissed (Alaxanian v City of Troy, 69 AD2d 937). Accordingly, I respectfully dissent and vote to reverse.