Brunelle v. City of New York

269 A.D.2d 347, 702 N.Y.S.2d 648, 2000 N.Y. App. Div. LEXIS 1178

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Polizzi, J.), dated January 29, 1998, as denied that branch of his motion which was to restore to the trial calendar his cause of action pursuant to General Municipal Law § 205-e and granted that branch of the cross motion of the defendant City of New York which was for summary judgment dismissing that cause of action.

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

The defendant, City of New York, was entitled to summary judgment dismissing the cause of action pursuant to General Municipal Law § 205-e inasmuch as none of the predicate violations set forth in the pleadings was sufficient to support such a cause of action (see, Gonzalez v Iocovello, 93 NY2d 539, 551; Desmond v City of New York, 88 NY2d 455; St. Jacques v City of New York, 88 NY2d 920). In any event, the Supreme Court properly concluded that under the circumstances, the use of deadly force by the plaintiffs fellow officer was justified as a matter of law, as it is undisputed that the plaintiff police officer was struggling with a machine-gun-wielding suspect when a bullet fired by another officer struck the plaintiff in the hand (see, Penal Law § 35.30). Bracken, J. P., Thompson, Sullivan and Krausman, JJ., concur.