| Lewis v City of New York |
| 2015 NY Slip Op 06896 |
| Decided on September 23, 2015 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on September 23, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
RUTH C. BALKIN
ROBERT J. MILLER
HECTOR D. LASALLE, JJ.
2014-07258
(Index No. 15065/10)
v
City of New York, respondent.
Ira S. Newman, Great Neck, N.Y. (Evan M. Goldberg of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Elizabeth S. Natrella of counsel), for respondent.
DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), dated May 13, 2014, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff, a New York City police officer, was shot in the torso while in the process of apprehending a suspect in Queens County. At the time of the shooting, the plaintiff was wearing a bullet-proof vest issued by the City of New York that did not cover the bullet's entry point. It is undisputed that the vest worn by the plaintiff was in good condition and compliant with standards set by the National Institute of Justice.
The plaintiff commenced this action against the City, asserting causes of action based on, among other things, common-law negligence and violations of General Municipal Law § 205-e. The plaintiff claims that his injuries were caused by the City's negligence in failing to provide him with a vest that covered a larger area of his torso, and that the City had provided larger vests to most other officers and to new recruits.
The Supreme Court properly granted the City's motion for summary judgment dismissing the complaint. The City established its prima facie entitlement to judgment as a matter of law on the ground of qualified immunity. The City's decision-making process regarding the particular type of vests it issues to police officers is a discretionary governmental function (see McCormack v City of New York, 80 NY2d 808, 811; Loschiavo v City of New York, 84 AD3d 1179, 1180; Miniero v City of New York, 65 AD3d 861, 863; Amodio v City of New York, 33 AD3d 456, 457) and, contrary to the plaintiff's contention, the City demonstrated that its decision in this case was not irrational or arbitrary. In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).
RIVERA, J.P., BALKIN, MILLER and LASALLE, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court