Dailey-Russell v City of New York

[*1] Dailey-Russell v City of New York 2015 NY Slip Op 51834(U) Decided on December 11, 2015 Supreme Court, Queens County Flug, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 11, 2015
Supreme Court, Queens County

Sandra Dailey-Russell, Plaintiff,

against

The City of New York, Defendant.



19692/13



Joseph L. Decolator, Esq.(Attorney for Plaintiff)1399 Franklin Avenue, Suite 300Garden City, NY 11530

Andrea A. Long, Esq.Corporation Counsel(Attorney for Defendant)89-17 Sutphin Blvd.Jamaica, NY 11435
Phyllis Orlikoff Flug, J.

The following papers numbered 1 to 7 read on this motion

Notice of Motion1 - 2

Notice of Cross-Motion3 - 4

Memorandum of Law5

Affirmation in Opposition/Reply6

Reply Affirmation7

Defendant, the City of New York (hereinafter "City"), moves inter alia for summary judgment, dismissing plaintiff's complaint as asserted against. Plaintiff, Sandra Dailey-Russel, cross-moves inter alia for summary judgment on her common law negligence claim against defendant.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff on March 29, 2013, during the course of her employment with the New York City Police Department (hereinafter "NYPD"), when a car door was closed on her right hand at the intersection of 111th Avenue and Sutphin Boulevard, in the County of Queens, City and State of New York.

On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case . . ." (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

It is well settled that a police officer may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment (Walder v. City of New York, 14 NY3d 192, 194 [2010] (quoting Zanghi v. Niagra Frontier Transp. Commn., 85 NY2d 423, 436 [1995])).

Specifically, this rule, referred to as the firefighter's rule, bars recovery where the officer's performance of his or her duties increased the risk of the injury happening, rather than merely furnishing the occasion for the injury (See Moore v. City of New York, 126 AD3d 679, 680 [2d Dept. 2015] (citing Walder, supra, at 194-95; Zanghi, supra, at 436); see also Delio v. City of New York, 8 AD3d 325 [2d Dept. 2004]).

However, where the injuries are wholly unrelated to the assumed risks of police duty, recovery under a common-law negligence theory is not barred (See Delio, supra, at 325).

In Delio v. City of New York, supra, the Appellate Division, Second Department, specifically held that a police officer's common law negligence action to recover damages sustained when a fellow officer closed a patrol car door on his hand during a traffic stop was not barred by the firefighter's rule.

Defendant's claim that the facts of this case are sufficiently different than the facts in Delio to warrant the application of the firefighter's rule is wholly without merit.

While defendant claims that the injuries sustained in this case were are result of the officers needing to rush to their next location, thus increasing the risk of this injury happening, defendant's own witness specifically testified at his deposition that the officers were not in any rush and that there was no urgency to get to the next location.

Plaintiff likewise fails to demonstrate her entitlement to judgment as she has failed to fails to demonstrate her freedom from comparative fault (See Pinilla v. New York City Transit Auth., 122 AD3d 703, 705 [2d Dept. 2014]; Boston v. City of New York, 51 AD3d 615, 616 [2d Dept. 2008]).

Accordingly the motion and cross-motion are both denied, in their entirety.

December 11, 2015 ____________________

J.S.C.