Bailey v City of New York

Bailey v City of New York 2013 NY Slip Op 00440 Decided on January 29, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 29, 2013
Mazzarelli, J.P., Renwick, Richter, Gische, Clark, JJ.
9109 302894/09

[*1]Sharon Bailey, Plaintiff-Appellant-Respondent, The

v

City of New York, Defendant-Respondent, Wallace C. Steidle, Defendant-Respondent-Appellant.




Sullivan Papain Block McGrath & Cannavo P.C., New York
(Stephen C. Glasser of counsel), for appellant-respondent.
Law Offices of James J. Toomey, New York (Eric P. Tosca of
counsel), for respondent-appellant.
Michael A. Cardozo, Corporation Counsel, New York (Jane L.
Gordon of counsel), for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered July 26, 2011, which granted defendant City of New York's motion for summary judgment dismissing the complaint and cross claim against it, and granted plaintiff's motion for summary judgment on the issue of liability as against defendant Steidle, unanimously affirmed, without costs.

Plaintiff seeks damages for injuries she allegedly suffered when the vehicle in which she was a passenger was struck in the rear by the vehicle driven by defendant Steidle at an intersection at which the traffic had been stopped by a police officer. The officer was part of a motorcycle parade escort and had halted all other traffic entering the intersection so that the parade could proceed. The City cannot be held liable for plaintiff's injuries because the officer was engaged in the discretionary act of traffic control (see Valdez v City of New York, 18 NY3d 69, 75 [2011]; Lewis v City of New York, 82 AD3d 410 [1st Dept 2011], lv denied 16 NY3d 713 [2011]).

The record demonstrates that the vehicle in which plaintiff was riding was stopped when [*2]Steidle's vehicle struck it in the rear end. Steidle failed to offer a non-negligent explanation for the collision (see Androvic v Metropolitan Transp. Auth., 95 AD3d 610 [1st Dept 2012]; Johnson v Phillips, 261 AD2d 269, 271 [1st Dept 1999]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 29, 2013

CLERK