May 14, 2013
Joseph Stashkevetch, Plaintiff-Appellant, The
City of New York, et al., Defendants-Respondents.
Storch Amini & Munves, P.C., New York (Mattew Kane of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Elliott M. Davis of counsel), for respondents.
Friedman, J.P., Richter, Feinman, Gische, Clark, JJ.
Order, Supreme Court, New York County (Geoffrey D. S. Wright, J.), entered on or about November 21, 2011, which granted plaintiff's motion to reargue defendants' in limine motion to dismiss the complaint and upon reargument, adhered to the prior order, same court and Justice, entered on or about September 27, 2011, granting defendants' motion pursuant to CPLR 4404 based on the inadequacy of the notice of claim, unanimously affirmed, without costs. Appeal from the September 27, 2011 order, unanimously dismissed, without costs.
In this action for personal injuries allegedly sustained by plaintiff when his bicycle hit a depression in a grassy area, after he was diverted from the bicycle path in a City park due to cleaning activities by defendants' employees on a retaining wall, defendants moved to dismiss at the close of plaintiff's case, on the ground, first raised by the trial court, that the notice of claim was inadequate. As defendants concede, and we agree, the trial court improvidently granted the motion on this ground. On reargument, the court also improvidently raised the doctrine of assumption of risk sua sponte. Nevertheless, dismissal of the complaint is warranted on the alternate ground, raised before the trial court, that defendants' employees were engaged in a governmental function giving rise to the governmental immunity defense. Diverting traffic to protect the public from the harsh chemicals used in the cleaning process was a discretionary act performed by public employees in the exercise of reasoned judgment ( see Valdez v City of New York, 18 N.Y.3d 69 ; Wittorf v City of New York, 104 A.D.3d 584 [1st Dept 2013]). Accordingly, the City cannot be liable for this conduct and the motion to dismiss the complaint was properly granted.