Kelsey v City of New York

Kelsey v City of New York 2013 NY Slip Op 05439 Decided on July 24, 2013 Appellate Division, Second 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 July 24, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RUTH C. BALKIN, J.P.
L. PRISCILLA HALL
PLUMMER E. LOTT
SANDRA L. SGROI, JJ.
2012-06628
(Index No. 15818/09)

[*1]Valerie Kelsey, etc., et al., appellants,

v

City of New York, et al., respondents.




Law Offices of K.C. Okoli, P.C., New York, N.Y., for appellants.
Michael A. Cardozo, Corporation Counsel, New York, N.Y.
(Kristin M. Helmers and Deborah A.
Brenner of counsel), for respondents.


DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), dated May 22, 2012, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Under the doctrine of governmental function immunity, " [g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general'" (Valdez v City of New York, 18 NY3d 69, 76-77, quoting McLean v City of New York, 12 NY3d 194, 203; see Miserendino v City of Mount Vernon, 96 AD3d 810).

Here, the defendants met their prima facie burden of establishing their entitlement to judgment as a matter of law by demonstrating that the allegedly negligent acts of the defendant police officers were discretionary and not ministerial (see Arias v City of New York, 22 AD3d 436, 437). In opposition, the plaintiffs failed to raise a triable issue of fact.

The plaintiffs' remaining contentions either are without merit or need not be reached in light of our determination.

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the complaint.
BALKIN, J.P., HALL, LOTT and SGROI, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court