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Kelsey v. City of New York

Supreme Court of New York, Second Department

July 24, 2013

Valerie Kelsey, etc., et al., appellants,
v.
City of New York, et al., respondents. (Index No. 15818/09)

Law Offices of K.C. Okoli, P.C., New York, N.Y., for appellants.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Deborah A. Brenner of counsel), for respondents.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, SANDRA L. SGROI, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), dated May 22, 2012, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Under the doctrine of governmental function immunity, " [g]overnment 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 N.Y.3d 69, 76-77, quoting McLean v City of New York, 12 N.Y.3d 194, 203; see Miserendino v City of Mount Vernon, 96 A.D.3d 810).

Here, the defendants met their prima facie burden of establishing their entitlement to judgment as a matter of law by demonstrating that the allegedly negligent acts of the defendant police officers were discretionary and not ministerial (see Arias v City of New York, 22 A.D.3d 436, 437). In opposition, the plaintiffs failed to raise a triable issue of fact.

The plaintiffs' remaining contentions either are without merit or need not be reached in light of our determination.

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the complaint.

BALKIN, J.P., HALL, LOTT and SGROI, JJ., concur.


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