Waterman v. City of Rochester

Appellate Division of the Supreme Court of New York

Waterman v. City of Rochester

2017 NY Slip Op 7048, 154 A.D.3d 1297, 60 N.Y.S.3d 924

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

DecidedOctober 6, 2017

Docket1026 CA 17-00114

StatusPublished

This text of 2017 NY Slip Op 7048 (Waterman v. City of Rochester) 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

Waterman v. City of Rochester, 2017 NY Slip Op 7048, 154 A.D.3d 1297, 60 N.Y.S.3d 924 (N.Y. Ct. App. 2017).

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Opinion

Appeal from an order of the Supreme Court, Monroe County (Elma A. Bellini, J.), entered July 27, 2016. The order denied the motion of defendants for summary judgment dismissing the complaint and granted the cross motion of plaintiff for summary judgment on the issue of proximate cause.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint. Contrary to defendants’ contention, they are not entitled to governmental immunity. “Governmental immunity does not apply when a public employee, acting in the course of his or her employment, commits an ordinary tort that anyone else might commit — for example, when the employee is negligent in driving a [vehicle]” (Applewhite v Accuhealth, Inc., 21 NY3d 420, 432 [2013, Smith, J., concurring]). Contrary to defendants’ further contention, the court did not abuse its discretion in refusing to consider unauthenticated and uncertified exhibits submitted in support of their motion (see Dyer v 930 Flushing, LLC, 118 AD3d 742, 742-743 [2014]; see also McBryant v Pisa Holding Corp., 110 AD3d 1034, 1035 [2013]).

Present — Centra, J.P., Carni, Lindley, Troutman and Winslow, JJ.

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Appeal from an order of the Supreme Court, Monroe County (Elma A. Bellini, J.), entered July 27, 2016. The order denied the motion of defendants for summary judgment dismissing the complaint and granted the cross motion of plaintiff for summary judgment on the issue of proximate cause.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint. Contrary to defendants’ contention, they are not entitled to governmental immunity. “Governmental immunity does not apply when a public employee, acting in the course of his or her employment, commits an ordinary tort that anyone else might commit — for example, when the employee is negligent in driving a [vehicle]” (Applewhite v Accuhealth, Inc., 21 NY3d 420, 432 [2013, Smith, J., concurring]). Contrary to defendants’ further contention, the court did not abuse its discretion in refusing to consider unauthenticated and uncertified exhibits submitted in support of their motion (see Dyer v 930 Flushing, LLC, 118 AD3d 742, 742-743 [2014]; see also McBryant v Pisa Holding Corp., 110 AD3d 1034, 1035 [2013]).

Present — Centra, J.P., Carni, Lindley, Troutman and Winslow, JJ.

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Bluebook (online)

2017 NY Slip Op 7048, 154 A.D.3d 1297, 60 N.Y.S.3d 924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waterman-v-city-of-rochester-nyappdiv-2017.

Opinion

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