I respectfully dissent and would reverse the judgment dismissing the complaint.
The facts are not in dispute. On October 10,1979, Robert Warner, a correction officer employed by the State of New York, was set upon and robbed in the elevator of an apartment building by two individuals who were armed with weapons. When the perpetrators alighted from the elevator, Warner gave chase, apparently in order to effect an arrest. He identified himself as a police officer saying “Hold it, Police” and when the perpetrators didn’t stop, he fired at them with his personal off-duty Colt Detective Special. The claimant, Kevin Frazier, who was walking along the walkway some 10 feet behind the perpetrators and in front of Warner, was struck in the left foot. Warner succeeded in apprehending one of the perpetrators. As required by the Rules of the State Department of Correction, he filed an “Incident Report”, setting forth the circumstances under which his weapon had been discharged.
Claim was made against the State and the matter was ultimately tried before the Court of Claims on the issue of liability only. Following the examination of the claimant Frazier, a recess was taken and the court conferred with counsel in chambers.
The record reveals that immediately following that conference, the court rendered its decision dismissing the complaint. The parties apparently agreed to certify one question for the court to consider: “Whether or not a correction officer who is off duty, who apprehends an individual who had committed a robbery and who had injured a third person, whether or not under those facts, the State of New York is liable. On the theory that, since the correction officer is a peace officer, that the State would be responsible for the negligence of a peace officer, if he is indeed found to be negligible [sic] while apprehending someone.” The court dismissed the complaint, holding that “even though correction officers are peace officers and are *276permitted to carry weapons and to effectuate arrests without warrants, the State of New York is not liable in damages for the actions of such an officer who is off-duty and is effectuating an arrest while off duty discharging a firearm.”
The court below apparently found as a matter of law, and by affirming that dismissal the majority here holds, that Warner was not “acting within the scope of his employment” and thus that no liability can be attributed to the State under the doctrine of respondeat superior.
The respondent argues in its brief that Warner was a “correction officer” employed at Green Haven Correctional Institution, whose duties encompass supervision and control over inmates assigned to Green Haven and that “the duties of correction officers do not extend outside the confines of the correctional facility to which the correction officer is assigned nor beyond the hours of the officers shift.” Respondent acknowledges however, that Warner was a “peace officer” at the time of the occurrence, but argues that the “State [should not] be held liable in this case based solely on the ground that Warner was a ‘peace officer’.”
In addressing the “scope of employment” issue under a fact pattern remarkably similar to the case at bar, the Appellate Division, Third Department, held that a correction officer employed by the Correction Department of the City of New York, who, while off duty, was injured in attempting to pursue two thieves he observed robbing a cash register, was entitled to recover workers’ compensation benefits. The court rejected the City of New York’s assertion that the officer’s disability was not caused by an accident “arising out of and in the course of his employment” holding that “[a]s a peace officer, respondent had the authority to make an arrest without a warrant for a crime committed in his presence * * * While general prevention of crime is not a usual duty of a correction officer, nevertheless, as a ‘peace officer’, he is not an ordinary citizen and assumes the duty to prevent crime and apprehend criminals. Having such authority, it was his duty to attempt to make an arrest (Schultz v. Greenwood Cemetery, 190 N.Y. 276) and appellant [City of New York] must, therefore, *277assume liability for injury sustained as a result of respondent’s attempts to carry out that duty”. (Matter of Quinlan v City of New York, 33 AD2d 714; see, also, Matter of Iazzetta [State of New York], NYLJ, March 31, 1980, p 11, col 4, where late claim was allowed against the State for damages resulting from a shooting of claimant by his father-in-law who also was a clerk of the Civil Court and as a “peace officer” may have been affecting an arrest for violation of an order of protection issued by the Family Court.)
While Quinlan (supra) involved the question of whether or not the “peace officer” was entitled to workers’ compensation benefits for his injuries, the rule of law enunciated by the court there is equally applicable here. Surely, if the City of New York must assume liability for injuries to a correction officer, sustained as a result of his attempts to carry out his duty as a “peace officer” to “prevent crime and apprehend criminals”, an innocent bystander injured as the result of a correction officer’s attempt as a “peace officer” to carry out such duty is entitled to no less from the State of New York.
Nor does the decision by the Court of Appeals in Lundberg v State of New York (25 NY2d 467) require a different conclusion. In Lundberg, plaintiff’s intestate was killed as the result of a head-on auto collision with a State employee, Sandilands, who was driving back to his place of employment at the Allegheny Reservoir Project near Salamanca, after a weekend holiday at his home in Buffalo. He normally would stay at the reservoir during the week and would go home to his family on weekends. The State reimbursed him for his living expenses at Salamanca and paid the mileage expenses for his trips back and forth.
Sandilands applied for and was awarded workers’ compensation benefits for the injuries he sustained in the accident. Lundberg’s widow brought suit for Lundberg’s pain and suffering and his wrongful death. Citing the general rule that an employee driving to and from work is not acting in the scope of his employment, the Court of Appeals ordered the claim of Lundberg’s widow dismissed. In so doing, the court emphasized the lack of control by the employer over the employee in such a situation. It found *278that Sandilands was not driving his car in furtherance of his work at the time of the accident, but was “engaged in an independent personal activity over which the State had no control.” (Lundberg v State of New York, 25 NY2d, at p 471.) The majority of the court rejected the finding that Sandilands was acting within the “scope of employment” and thus was entitled to workers’ compensation benefits as establishing that the State was liable for Lundberg’s injuries and death under the doctrine of respondeat superior. The court stated that “[i]t is necessary for an employee seeking to obtain compensation benefits to establish only that his injury was caused by an activity related to his job, whereas the doctrine of respondeat superior has clearly not received such wide application because of the requirement that the employee be under the control of the employer at the time of the injury.” (Lundberg v State of New York, supra, p 472; emphasis added.) Thus the degree to which the employee is subject to the control of the employer in respect to the particular act or activity that produces the injury is a critical factor in determining whether vicarious liability attaches to the employer under the doctrine of respondeat superior.
Here, the State clearly exercises control over its correction officers in respect to the ownership and use of weapons, both those issued to them while on duty within the correctional facility, and the personal weapons they are permitted to carry while off duty. The officers are required to qualify at least once a year in the use of those weapons. They are required to register their personal weapons with the department and to report any incidents that may occur during their off-duty hours that involve the use of their weapons. The department further may prohibit their carrying weapons when off duty and doubtless has promulgated rules and regulations governing the type and caliber of the weapons that may be carried and the ammunition that may be used. All of this is consistent with the status of correction officers as “peace officers” and their statutory authority to make arrests for felonies committed in their presence.* That being so, it seems clear, beyond contradic*279tion that the State of New York exercised control over Warner in respect to the possession and use of his weapon.
The fact that Warner was “off duty” and was not then performing duties of supervision and control over inmates assigned to Green Haven Correctional Institution, does not compel the conclusion as a matter of law, that he was not, at the time of the incident “acting within the scope of his employment”.
While under the rule of respondeat superior, the masters’ vicarious liability for the act of the servant derives from the fact that the servant is acting within the “scope of his employment”, our Court of Appeals has recognized that the definition of “scope of employment”, has not been an unchanging one and that “for an employee to be regarded as acting within the scope of his employment, the employer need not have forseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected * * * it suffices that the tortious conduct be a natural incident of the employment” (Riviello v Waldron, 47 NY2d 297, 304).
Indeed, it has been said that “[florseeability is the State’s current criterion for measuring an employer’s liability for conduct of employees whose behavior is alleged to have taken them beyond the scope of their employment. In a respondeat superior context, foreseeability differs significantly from the £ “forseeably unreasonable risk of harm that spells negligence” ’ (Bushey & Sons v United States, 398 F2d 167, 171). It is foresight which must impel the prudent man to £ “perceive the harm likely to flow from his long-run activity in spite of all reasonable precautions on his own part.” ’ The test thus is more similar to that utilized in workers’ compensation litigation than in circumstances where direct negligence is the question” (O’Boyle v Avis Rent-A-Car System, 78 AD2d 431, 440-441; see, also, Bushey & Sons v United States, 398 F2d 167; Makoske v Lombardy, 47 AD2d 284, affd 39 NY2d 773).
Thus, for Warner “to be regarded as acting within the scope of his employment, [the State] need not have foreseen the precise act or the exact manner of the injury”. (Riviello v Waldron, 47 NY2d 297, 304, supra.) Certainly this type of *280conduct, the negligent use of his firearm in his capacity as a “peace officer”, which capacity derives from his employment as a correction officer and pursuant to which, he was subject to the State’s control “may have been reasonably expected” (supra, p 304) and thus “within the scope of his employment”.
It was error therefore for the court to dismiss the complaint as a matter of law. The complaint should be reinstated and a new trial ordered.
Ross, J. P., and Silverman, J., concur with Bloom, J.; Asch and Alexander, JJ., dissent in an opinion by Alexander, J.
Judgment, Court of Claims of State of New York, entered on August 16, 1982, affirmed, without costs and without disbursements.
The facts in Stavitz v City of New York (98 AD2d 529) are so completely inapposite to the issue here presented as to make citation thereto totally unwarranted. As is clear from the majority’s brief statement of the facts, no crime had been or was being committed by Stavitz, thus his arrest by Officer Fabbri, was without any cause other *279than personal hostility.