Shands v Escalona

Shands v Escalona 2007 NY Slip Op 07930 [44 AD3d 524] October 23, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

Deborah Shands, Respondent,
v
Reynaldo Escalona et al., Defendants, and City of New York, Appellant.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (Mordecai Newman of counsel), for appellant.

Ofshtein & Ross, P.C., Brooklyn (Stuart K. Gechlik of counsel), for respondent.

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered January 13, 2006, which denied defendant City's motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, the City's motion granted, and the complaint dismissed as against it. The Clerk is directed to enter judgment accordingly.

Plaintiff alleges that a police officer was negligent when, due to flooding at her intended exit, he guided her back onto the highway, and that as a result her vehicle was struck by a tractor-trailer owned and operated by the codefendants. Accepting plaintiffs version of the facts, any negligence on the part of the officer was committed in the course of a discretionary act for which the City is immune from suit, absent a special relationship (see Kovit v Estate of Hallums, 4 NY3d 499 [2005]). There are no issues of fact as to the existence of a special relationship. Concur—Lippman, P.J., Andrias, Williams, Buckley and Malone, JJ.