Rodriguez v. Town of Clarkstown Police Department

Appellate Division of the Supreme Court of New York

Rodriguez v. Town of Clarkstown Police Department

123 A.D.3d 690, 999 N.Y.S.2d 422

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

DecidedDecember 3, 2014

Docket2013-07699

StatusPublished

This text of 123 A.D.3d 690 (Rodriguez v. Town of Clarkstown Police Department) 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

Rodriguez v. Town of Clarkstown Police Department, 123 A.D.3d 690, 999 N.Y.S.2d 422 (N.Y. Ct. App. 2014).

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Opinion

In an action, inter alia, to recover damages for negligence, the defendants Town of Clarkstown Police Department and Town of Clarkstown appeal from so much of an order of the Supreme Court, Rockland County (Loehr, J.), dated June 28, 2013, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendants Town of Clarkstown Police Department and Town of Clarkstown for summary judgment dismissing the complaint insofar as asserted against them is granted.

Under the doctrine of governmental function immunity, “ ‘[government 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 [2011], quoting McLean v City of New York, 12 NY3d 194, 203 [2009]; see Kelsey v City of New York, 108 AD3d 689, 689 [2013]; Miserendino v City of Mount Vernon, 96 AD3d 810, 810 [2012]).

Here, the defendants Town of Clarkstown Police Department and Town of Clarkstown (hereinafter together the Town defendants) established their prima facie entitlement to judgment as a matter of law by demonstrating that the allegedly negligent *691 acts of the police officers were discretionary and not ministerial (see Kelsey v City of New York, 108 AD3d at 689; Arias v City of New York, 22 AD3d 436, 437 [2005]). In opposition, the plaintiffs failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted the Town defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them.

Dillon, J.P., Miller, Maltese and Duffy, JJ., concur.

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In an action, inter alia, to recover damages for negligence, the defendants Town of Clarkstown Police Department and Town of Clarkstown appeal from so much of an order of the Supreme Court, Rockland County (Loehr, J.), dated June 28, 2013, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendants Town of Clarkstown Police Department and Town of Clarkstown for summary judgment dismissing the complaint insofar as asserted against them is granted.

Under the doctrine of governmental function immunity, “ ‘[government 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 [2011], quoting McLean v City of New York, 12 NY3d 194, 203 [2009]; see Kelsey v City of New York, 108 AD3d 689, 689 [2013]; Miserendino v City of Mount Vernon, 96 AD3d 810, 810 [2012]).

Here, the defendants Town of Clarkstown Police Department and Town of Clarkstown (hereinafter together the Town defendants) established their prima facie entitlement to judgment as a matter of law by demonstrating that the allegedly negligent *691 acts of the police officers were discretionary and not ministerial (see Kelsey v City of New York, 108 AD3d at 689; Arias v City of New York, 22 AD3d 436, 437 [2005]). In opposition, the plaintiffs failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted the Town defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them.

Dillon, J.P., Miller, Maltese and Duffy, JJ., concur.

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Bluebook (online)

123 A.D.3d 690, 999 N.Y.S.2d 422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-town-of-clarkstown-police-department-nyappdiv-2014.

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