James v City of New York

James v City of New York 2020 NY Slip Op 01720 Decided on March 12, 2020 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 March 12, 2020
Friedman, J.P., Kapnick, Oing, González, JJ.
11272 451494/15

[*1] Latoya James, Plaintiff-Appellant,

v

The City of New York, et al., Defendants-Respondents.

Sim & Depaola, LLP, Bayside (Sang J. Sim of counsel), for appellant.

James E. Johnson, Corporation Counsel, New York (Claibourne Henry of counsel), for respondents.

Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered on or about February 13, 2019, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The record shows that four police officers were on foot patrol when an individual suddenly attacked them with a hatchet, injuring two of the officers, and prompting the other two to open fire. During the sequence of events, an errant bullet struck plaintiff as she was running and ducking for cover.

Defendants established prima facie entitlement to judgment as a matter of law by showing that the officers did not violate New York City Police Department Patrol Guide § 203-12 in discharging their weapons. The officers were exercising their discretion and judgment in response to an emergency situation caused by the sudden attack on their fellow officers with a hatchet, which endangered the lives of the officers as well as the public, and the individual's subsequent conduct of rushing toward one of the officers with the hatchet in hand (see Johnson v City of New York, 15 NY3d 676 [2010]). That the officers did not observe bystanders under these circumstances is insufficient to raise an issue of fact as to whether they unnecessarily endangered innocent persons (id. at 681-682).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 12, 2020

CLERK