Lewis v. City of New York

Appellate Division of the Supreme Court of New York

Lewis v. City of New York

131 A.D.3d 1134, 16 N.Y.S.3d 621

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 23, 2015

Docket2014-07258

StatusPublished

This text of 131 A.D.3d 1134 (Lewis v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lewis v. City of New York, 131 A.D.3d 1134, 16 N.Y.S.3d 621 (N.Y. Ct. App. 2015).

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Opinion

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), dated May 13, 2014, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff, a New York City police officer, was shot in the *1135 torso while in the process of apprehending a suspect in Queens County. At the time of the shooting, the plaintiff was wearing a bullet-proof vest issued by the City of New York that did not cover the bullet’s entry point. It is undisputed that the vest worn by the plaintiff was in good condition and compliant with standards set by the National Institute of Justice.

The plaintiff commenced this action against the City, asserting causes of action based on, among other things, common-law negligence and violations of General Municipal Law § 205-e. The plaintiff claims that his injuries were caused by the City’s negligence in failing to provide him with a vest that covered a larger area of his torso, and that the City had provided larger vests to most other officers and to new recruits.

The Supreme Court properly granted the City’s motion for summary judgment dismissing the complaint. The City established its prima facie entitlement to judgment as a matter of law on the ground of qualified immunity. The City’s decision-making process regarding the particular type of vests it issues to police officers is a discretionary governmental function (see McCormack v City of New York, 80 NY2d 808, 811 [1992]; Loschiavo v City of New York, 84 AD3d 1179, 1180 [2011]; Miniero v City of New York, 65 AD3d 861, 863 [2009]; Amodio v City of New York, 33 AD3d 456, 457 [2006]) and, contrary to the plaintiff’s contention, the City demonstrated that its decision in this case was not irrational or arbitrary. In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Rivera, J.R, Balkin, Miller and LaSalle, JJ., concur.

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In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), dated May 13, 2014, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff, a New York City police officer, was shot in the *1135 torso while in the process of apprehending a suspect in Queens County. At the time of the shooting, the plaintiff was wearing a bullet-proof vest issued by the City of New York that did not cover the bullet’s entry point. It is undisputed that the vest worn by the plaintiff was in good condition and compliant with standards set by the National Institute of Justice.

The plaintiff commenced this action against the City, asserting causes of action based on, among other things, common-law negligence and violations of General Municipal Law § 205-e. The plaintiff claims that his injuries were caused by the City’s negligence in failing to provide him with a vest that covered a larger area of his torso, and that the City had provided larger vests to most other officers and to new recruits.

The Supreme Court properly granted the City’s motion for summary judgment dismissing the complaint. The City established its prima facie entitlement to judgment as a matter of law on the ground of qualified immunity. The City’s decision-making process regarding the particular type of vests it issues to police officers is a discretionary governmental function (see McCormack v City of New York, 80 NY2d 808, 811 [1992]; Loschiavo v City of New York, 84 AD3d 1179, 1180 [2011]; Miniero v City of New York, 65 AD3d 861, 863 [2009]; Amodio v City of New York, 33 AD3d 456, 457 [2006]) and, contrary to the plaintiff’s contention, the City demonstrated that its decision in this case was not irrational or arbitrary. In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Rivera, J.R, Balkin, Miller and LaSalle, JJ., concur.

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Bluebook (online)

131 A.D.3d 1134, 16 N.Y.S.3d 621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-city-of-new-york-nyappdiv-2015.

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