KARI ANN FULL, INDIVIDUALLY, AND AS PERMANENT GUARDIAN OF SHANE D. FULL, PLAINTIFF-APPELLANT,
MONROE COUNTY SHERIFF'S DEPARTMENT, MONROE COUNTY SHERIFF, CITY OF ROCHESTER, CITY OF ROCHESTER POLICE DEPARTMENT, TOWN OF GREECE, COUNTY OF MONROE, MONROE COUNTY AIRPORT AUTHORITY, DEFENDANTS-RESPONDENTS, ET AL., DEFENDANT. (APPEAL NO. 3.)
WILLIG, PLLC, AMHERST (LINDA LALLI STARK OF COUNSEL), FOR
MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (MATTHEW D.
BROWN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS MONROE COUNTY
SHERIFF'S DEPARTMENT, MONROE COUNTY SHERIFF, COUNTY OF
MONROE, AND MONROE COUNTY AIRPORT AUTHORITY.
& IACOVANGELO, LLP, ROCHESTER (JOHN C. PALERMO OF
COUNSEL), FOR DEFENDANT-RESPONDENT TOWN OF GREECE. ROCHESTER
PRESENT: WHALEN, P.J., DEJOSEPH, CURRAN, AND WINSLOW, JJ.
from a judgment of the Supreme Court, Monroe County (J. Scott
Odorisi, J.), entered November 18, 2015. The judgment
dismissed the complaint against defendants-respondents.
hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Plaintiff, individually and as permanent guardian of her
husband, Shane D. Full (Full), commenced this negligence
action against, inter alia, defendants County of Monroe, the
Monroe County Sheriff, the Monroe County Sheriff's
Department, and the Monroe County Airport Authority
(collectively, County defendants), the City of Rochester and
the City of Rochester Police Department (collectively, City
defendants), and the Town of Greece, seeking damages for
injuries sustained by Full when he was struck by a motor
vehicle. On the day of the accident, the County of Monroe
(County) sponsored an air show at Ontario Beach Park, which
is owned by the City of Rochester (City) and operated by the
County. To accommodate the vehicular traffic in the vicinity
of the air show, an inter-agency task force involved in the
planning of the air show temporarily designated Beach Avenue,
normally a two-way street, as a one-way street in which the
traffic could travel only westbound. Side streets were
barricaded, and parking was banned along the length of the
Beach Avenue corridor. Just prior to the accident, Full drove
along the corridor, pulled into a private driveway, exited
his vehicle, and crossed the street to seek parking advice
from pedestrians. As Full re-crossed the street, he was
struck by an oncoming vehicle, suffering severe brain
County defendants, City defendants, and the Town of Greece
moved separately for summary judgment dismissing the
complaint against them. In appeal No. 3, plaintiff appeals
from a judgment that granted the motions and dismissed the
complaint against those defendants. The order and amended
order appealed from in appeal Nos. 1 and 2, respectively,
were subsumed within the judgment appealed from in appeal No.
3 (see Matter of Aho, 39 N.Y.2d 241, 248). Thus, we
dismiss the appeals from the order and amended order in
appeal Nos. 1 and 2. In appeal No. 3, we affirm.
outset, we note that on appeal plaintiff does not challenge
Supreme Court's dismissal of the complaint against the
Monroe County Sheriff and the Town of Greece, and we
therefore deem any issues with respect to those defendants
abandoned (see Ciesinski v Town of Aurora, 202
A.D.2d 984, 984). Moreover, we conclude that the court
properly granted that part of the County defendants'
motion seeking dismissal of the complaint against the Monroe
County Sheriff's Department on the ground that it is not
a proper party. "[A] Sheriff's Department does not
have a legal identity separate from the County..., and thus
an action against the Sheriff's Department is, in effect,
an action against the County itself' " (Johanson
v County of Erie, 134 A.D.3d 1530, 1531-1532).
respect to the merits, contrary to plaintiff's
contention, we conclude that the creation of the Beach Avenue
corridor was a governmental function, and thus, the allegedly
negligent conversion of Beach Avenue into a one-way street is
not actionable in the absence of a special duty to Full
(see McLean v City of New York, 12 N.Y.3d 194, 199).
"[T]raffic regulation is a classic example of a
governmental function" (Balsam v Delma Eng'g
Corp., 90 N.Y.2d 966, 968), and the governmental
function of traffic regulation of the County, the Monroe
County Airport Authority and the City defendants (hereafter,
defendants) did not become a proprietary function merely
because it was undertaken in furtherance of the proprietary
air show (see Bailey v City of New York, 102 A.D.3d
606, 606; Devivo v Adeyemo, 70 A.D.3d 587, 587).
Plaintiff does not allege that defendants failed in their
responsibility to physically maintain Beach Avenue, which
would be a breach of a proprietary duty (see Balsam,
90 N.Y.2d at 968), and defendants' traffic regulation
cannot be considered "integral" to the proprietary
further conclude that defendants established as a matter of
law that they did not have a special duty to Full. To prove a
special duty to Full, plaintiff "must establish [t]he
elements of a special relationship includ[ing]... direct
contact between the municipalit[ies'] agents and [Full],
and [Full's] justifiable reliance... on the
municipalit[ies'] affirmative promise to act' "
(Bynum v Camp Bisco, LLC, 135 A.D.3d 1060, 1061).
Defendants met their initial burden of establishing as a
matter of law that there was no special duty inasmuch as Full
did not have any direct contact with any of defendants'
representatives, and plaintiff failed to raise a triable
issue of fact (see generally Zuckerman v City of New
York, 49 N.Y.2d 557, 562). Thus, no special duty
existed, and any alleged negligent act with respect to the
creation of the Beach Avenue corridor is not actionable
(see Bynum, 135 A.D.3d at 1062; Rollins v New
York City Bd. of Educ., 68 A.D.3d 540, 541;
McPherson v New York City Hous. Auth., 228 A.D.2d
654, 655). In the absence of a special duty, plaintiff's
remaining contention regarding defendants' governmental
function immunity defense is rendered academic (see
Valdez v City of New York, 18 N.Y.3d 69, 84).
agree with plaintiff that the court erred in determining that
plaintiff's cause of action for negligence under state
law against defendants is preempted by federal law (see
generally Summers v Delta Airlines, 805 F.Supp.2d 874,
886-887). Furthermore, the alleged negligence of defendants
in sponsoring the air show, including their decision to
locate the show at Ontario Beach Park and their alleged
failure to keep greater distance between the purportedly
distracting planes and nearby pedestrians and drivers, arose
from proprietary functions and thus are " subject to the
same principles of tort law as a private [party]' "
(Matter of World Trade Ctr. Bombing Litig., 17
N.Y.3d 428, 446). We conclude, however, that defendants
established as a matter of law that any negligent operation
of the air show was not a proximate cause of Full's
injuries. The undisputed evidence establishes that neither
Full nor the driver of the vehicle was distracted by the
overhead airplanes in the moments before the accident, and
plaintiff has failed ...