The opinion of the court was delivered by: Pigott, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
On May 27, 2005 at approximately 6:30 p.m., New York City Police Officers Williams and Loor received a complaint from a pedestrian that two men had just attempted to rob him with a gun. The officers pursued one of the suspects from 125th Street, along Lenox Avenue, onto 126th Street. Officer Williams transmitted the attempted robbery complaint over the radio while Officer Loor drove their police cruiser to the corner of 126th Street and Lenox Avenue, parking two car lengths away from the suspect. When the officers got out of the cruiser and ordered the suspect to drop his weapon, he pointed the gun at them and started shooting. The officers returned fire and sought cover behind a trailer on the south side of the street; the suspect hid behind a van farther up 126th Street on the same side.
Officer Loor then ran from the south side of 126th Street to the north side positioning himself behind a tree directly across the street from the suspect. The suspect fired at Officer Loor, who responded in kind. According to the pretrial testimony, Officer Loor did not see any bystanders in the area while he was shooting, and the area near the suspect was clear of pedestrians. Officer Williams--who continued using the trailer for cover--observed the suspect back onto the sidewalk from behind the van and, having a view of the suspect's profile and being concerned for Officer Loor's safety, fired one or two shots at the suspect. She testified that she did not observe any pedestrians in the area when discharging her weapon.
During the melee, three other officers appeared on the scene. Officer Garcia heard a scream from the direction of Lenox Avenue. He walked toward the commotion and observed the suspect shoot at Officers Williams and Loor and then hide behind the van. Officer Garcia took cover in a brownstone well on the north side of the street. He had a clear view of the suspect and fired at him out of concern for Officer Loor, who was taking fire; Officer Garcia did not see any pedestrians or bystanders on the street.
Officers Beddows and Eckert separately responded to the scene. Officer Beddows took cover on the north side of the street behind a cruiser. He observed the suspect firing shots from behind the van. Officer Beddows had a clear view when he fired two shots at the suspect, and he saw no pedestrians on the street other than the suspect.
Officer Eckert positioned his cruiser in front of the van. He observed only the suspect and did not see any other pedestrians on the block. He walked toward the rear of his cruiser and took cover behind a car on the south side of the street. During the exchange of gunfire between Officer Loor and the suspect, the suspect moved to the sidewalk and Officer Eckert, having a clear view, fired one shot at the suspect. Officer Eckert reholstered his weapon and saw Officer Loor walking toward the suspect, who was lying face down on the ground. Officers Loor and Eckert met near the suspect and Officer Loor kicked the firearm away from the suspect's hand.
Plaintiff Tammy Johnson was playing with her 18-month-old daughter and socializing with neighbors on 126th Street near her residence when she heard gunshots, which sent her neighbors fleeing into the house. Johnson saw two men running toward her, one of whom was carrying a gun. Johnson and her daughter lay on the ground behind a white SUV, which was two vehicles away from the van behind which the suspect was hiding. She looked under the SUV and saw the suspect on the south side of the street lying on the ground shooting at a police officer across the street. An errant bullet struck Johnson's elbow.*fn1
Johnson, individually and on behalf of her daughter, commenced this negligence action against the City and police officers alleging, among other things, that the officers negligently discharged their firearms in violation of department guidelines. The City interposed an answer and, upon completion of discovery, moved for summary judgment on the ground that the officers exercised their professional judgment and acted reasonably in returning fire once fired upon.
Johnson opposed the City's motion and cross moved for summary judgment on liability, claiming that the officers violated Police Procedure No. 203.12, entitled "Deadly Physical Force," which sets forth the guidelines for the use of firearms. The relevant guidelines state that:
"(a) Police officers shall not use deadly physical force against another person unless they have probable cause to believe that they must protect themselves or another person present from imminent death or serious physical injury.
(b) Police officers shall not discharge their weapons when doing so will unnecessarily endanger innocent persons."
Johnson argued that the officers violated subsection (b).
Supreme Court denied Johnson's cross motion insofar as relevant to this appeal, and the City's motion for summary judgment, holding that although the City met its burden of establishing that the officers exercised their professional judgment, there was an issue of fact as to whether the officers violated police guidelines by discharging their weapons.
The Appellate Division, in a 3-2 decision, reversed and dismissed the complaint, holding that Johnson failed to show that the officers violated any of the guidelines. The court pointed to the uncontradicted testimony of the officers that there were no pedestrians in sight as the officers "sought to protect themselves and their fellow officers by returning fire" (65 AD3d 476, 477 [1st Dept 2009]). It concluded that, absent any proof that there were pedestrians in view, the report from Johnson's expert that there were questions of fact as to whether the officers violated police guidelines was without merit (see id. at 477-478). The dissenters, on the other hand, concluded that the deposition testimonies of Officers Garcia and Beddows, where they testified that they did not look for bystanders while they were shooting at the suspect, raised an issue of ...