O'HARA, O'CONNELL & CIOTOLI, FAYETTEVILLE (FRANK
S. GATTUSO OF COUNSEL), FOR PLAINTIFF-APPELLANT.
P. STAMEY, CORPORATION COUNSEL, SYRACUSE (MARY L.
D'AGOSTINO OF COUNSEL), FOR DEFENDANT-RESPONDENT CITY OF
PRESENT: PERADOTTO, J.P., LINDLEY, TROUTMAN, AND SCUDDER, JJ.
from an order and judgment (one paper) of the Supreme Court,
Onondaga County (James P. Murphy, J.), entered January 11,
2016. The order and judgment granted defendants' motion
for summary judgment dismissing the complaint.
hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.
In March 2007, the owner of the building in which plaintiff
rented an apartment shot his own wife and took one or more
relatives hostage. An intense, 24-hour standoff with police
officers ensued. When negotiators were unable to end the
standoff, police officers fired CS gas canisters into the
building, including into plaintiff's apartment.
Unbeknownst to the officers, plaintiff was inside her
apartment. Following her telephone call to 911, plaintiff was
extracted from the apartment, whereupon she was interviewed
by police officers for several hours without any medical
assistance or decontamination efforts.
thereafter commenced a federal action against, inter alia,
defendant City of Syracuse (Malay v City of
Syracuse, 638 F.Supp.2d 303, 308 [NDNY 2009]), but the
federal causes of action were dismissed, and the District
Court declined to exercise jurisdiction over the state causes
of action (Malay v City of Syracuse, ___ F.Supp.2d
___, 2011 WL 4595201, *1 [NDNY 2011], appeal
dismissed ___ F.Supp.2d ___ [2d Cir 2012]). Plaintiff
thereafter commenced this negligence action seeking damages
for injuries she allegedly sustained as a result of the
incident. Although a prior motion to dismiss the complaint
was granted, the Court of Appeals reversed (see Malay v
City of Syracuse, 25 N.Y.3d 323, 325-326, revg
113 A.D.3d 1141). Defendants thereafter moved for summary
judgment dismissing the complaint. We conclude that Supreme
Court properly granted that motion.
agree with defendants that they established as a matter of
law that they were immune from liability under the
"professional judgment rule" (Johnson v City of
New York, 15 N.Y.3d 676, 680, rearg denied 16
N.Y.3d 807). That 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"
(id. at 680 [internal quotation marks omitted];
see Valdez v City of New York, 18 N.Y.3d 69, 75-76).
Nevertheless, the professional judgment rule
"presupposes that judgment and discretion are exercised
in compliance with the municipality's procedures, because
the very basis for the value judgment supporting immunity and
denying individual recovery becomes irrelevant where the
municipality violates its own internal rules and
policies and exercises no judgment or discretion' "
(Johnson, 15 N.Y.3d at 681 [emphasis added]; see
Valdez, 18 N.Y.3d at 80; Lubecki v City of New
York, 304 A.D.2d 224, 233-234, lv denied 2
we conclude that defendants established as a matter of law
that the police officers' conduct in firing the CS gas
canisters into the building involved the exercise of
professional judgment, and plaintiff failed to raise a
triable issue of fact (see Johnson, 15 N.Y.3d at
681; Arias v City of New York, 22 A.D.3d 436, 437;
cf. Lubecki, 304 A.D.2d at 234-235). Contrary to
plaintiff's contention, "[t]here was no evidence
presented by... plaintiff, through [her] expert or otherwise,
to show any immutable departmental procedures that
must invariably be followed" in the use of CS gas
canisters (Rodriguez v City of New York, 189 A.D.2d
166, 177 [emphasis added]). Although plaintiff contends that
the police officers did not comply with the chemical
munitions manual provided by the Defense Technology Federal
Laboratories, there is no evidence that the manual was ever
adopted by the City of Syracuse Police Department and thus no
evidence that the police officers violated their "
own internal rules and policies' "
(Johnson, 15 N.Y.3d at 681 [emphasis added]).
Moreover, here, as in Johnson, the manual did not
contain mandatory directives but, rather, afforded officers
"discretion to make a judgment call as to when, and
under what circumstances, it [was] necessary to
discharge" the gas canisters (id.).
the decision to interview plaintiff immediately in order to
obtain vital information to end the standoff was a
discretionary determination and was not in violation of any
internal policies and procedures (see generally
id.). We thus conclude that the court properly granted
defendants' motion for summary judgment dismissing the
negligence causes of action against them.
plaintiff correctly contends that the court failed to address
her cause of action alleging negligent training and
supervision of the police officers, we nevertheless address
the merits of that contention inasmuch as "they were
argued before the [court] and were briefed by the
parties" (Meyer v North Shore-Long Is. Jewish Health
Sys., Inc., 137 A.D.3d 878, 879, lv denied 28
N.Y.3d 909). We conclude that the cause of action concerning
negligent supervision and training was properly dismissed
inasmuch as such a cause of action does "not lie where,
as here, the employee[s] [are] acting within the scope of
[their] employment, thereby rendering the employer liable for
damages caused by the employee[s'] negligence under the
theory of respondeat superior" (Watson v
Strack, 5 A.D.3d 1067, 1068; see Karoon v New York
City Tr. Auth., 241 A.D.2d 323, 324).
as we conclude that dismissal was appropriate by application
of the professional judgment rule, we do not address