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Newsome v. County of Suffolk

Supreme Court of New York, Second Department

September 11, 2013

Terron Newsome, respondent,
v.
County of Suffolk, et al., appellants Index No. 21932/09

Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Marcia J.Lynn of counsel), for appellants.

Donald H. Hazelton, P.C., Williston Park, N.Y. (Thomas Torto and Jason Levine of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Suffolk County (Mayer, J.), dated January 26, 2012, as denied that branch of their motion which was for summary judgment dismissing the complaint.

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

The plaintiff commenced this action alleging negligence after he was bitten on June 11, 2008, by a dog employed by the canine unit of the Suffolk County Police Department. When the incident occurred, the plaintiff, a custodian, was at Amityville High School at the request of police personnel, who needed him to open certain doors in order to conduct a search. The Supreme Court denied that branch of the defendants' motion which was for summary judgment dismissing the complaint on the ground of immunity. The defendants appeal.

"The professional judgment rule insulates a municipality from liability for its employees' performance of their duties where the... conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions" (Johnson v City of New York, 15 N.Y.3d 676, 680 [internal quotation marks omitted]). However, "the immunity afforded a municipality for its employee's discretionary conduct does not extend to situations where the employee, a police officer, violates acceptable police practice" (Lubecki v City of New York, 304 A.D.2d 224, 233-234; see Johnson v City of New York, 15 N.Y.3d at 681; Haddock v City of New York, 75 N.Y.2d 478, 485).

Here, the defendants did not establish their prima facie entitlement to judgment as a matter of law. A question of fact with respect to whether the conduct of the dog's handler was consistent with acceptable police practice was presented by the defendants' evidentiary submissions (cf. Arias v City of New York, 22 A.D.3d 436, 437). Accordingly, summary judgment was properly denied, regardless of the sufficiency of the plaintiff's opposing papers (see Cerniglia v Cardiology Consultants of Westchester, P.C., 97 A.D.3d 520, 521-522; Quintana v Wallace, 95 A.D.3d 1287, 1287-1288).

ANGIOLILLO, J.P., CHAMBERS, SGROI and COHEN, JJ., concur.


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