Kelly v. City of New York

16 A.D.3d 463, 791 N.Y.S.2d 637, 2005 N.Y. App. Div. LEXIS 2616

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 2005
• Status: Published

Opinion

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J), dated August 5, 2003, which granted the motion of the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

The decedent Stephen Kelly, Sr., was shot and killed by the defendant Radames Ortiz, an off-duty police officer employed by the defendant City of New York, after an altercation arising from a traffic dispute. Ortiz was subsequently convicted of manslaughter and assault. The plaintiff commenced this action, alleging, inter alia, that the City was negligent in its retention and supervision of Ortiz, whom it knew or should have known had violent propensities. The Supreme Court granted the City’s motion for summary judgment dismissing the complaint insofar as asserted against it.

The plaintiff argues that the Supreme Court improperly dismissed the complaint against the City insofar as it alleged that the City was negligent in its retention and supervision of Ortiz. In opposition to the City’s prima facie demonstration of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether the City knew or should have known that Ortiz had a propensity for the conduct which caused the death of the decedent (see Cherry v Tucker, 5 AD3d 422 [2004]; Sato v Correa, 272 AD2d 389 [2000]; Doe v State of New York, 267 AD2d 913 [1999]).

The plaintiff’s remaining contentions are without merit. Prudenti, P.J., S. Miller, Ritter and Goldstein, JJ., concur.