Because there is an issue of fact as to whether the police officers violated a New York City Police Department guideline that prohibits unnecessarily endangering innocent persons by failing to ascertain the presence of bystanders before firing their weapons, I respectfully dissent and would reverse the order of the Appellate Division.
Generally, municipalities are immunized from liability for the exercise of discretion by their agencies or officials. When official acts, including those of police officers (see Rodriguez v City of New York, 189 AD2d 166, 178 [1st Dept 1993]), involve the exercise of discretion or reasoned judgment, there is no liability for injuries even if the official action is negligent or malicious (see Tango v Tulevech, 61 NY2d 34, 40 [1983]).
However, this broad protection is neither absolute, nor automatically afforded, as the municipality must exercise discretion in compliance with its own procedures (see Haddock v City of New York, 75 NY2d 478, 486 [1990]). Governmental immunity will not be provided “where the municipality violates its own internal rules and policies and exercises no judgment or discretion” (id. at 485). In the context of police officers, immunity “does not extend to situations where the employee, a police officer, violates acceptable police practice” (Lubecki v City of New York, 304 AD2d 224, 233-234 [1st Dept 2003], citing Rodriguez, 189 AD2d at 178).
New York City Police Department Procedure No. 203-12, entitled “Deadly Physical Force,” as relevant here, commands that “b. Police officers shall not discharge their weapons when doing so will unnecessarily endanger innocent persons.”
Here, there is an issue of fact as to whether the police officers violated this elemental requirement. Record evidence establishes the presence of bystanders in the immediate area of the shooting. For example, photographic evidence indicates plaintiffs were in close proximity to the suspect, who was positioned approximately two car lengths away. A crime scene sketch, created by the Police Department Crime Scene Unit, showing the relative positions of all the individuals involved in the incident indicates that when Officer Garcia fired his weapon, he was *683positioned across the street from plaintiffs and the suspect. The sketch also supports the inference that plaintiffs, who were taking cover behind a parked vehicle, should have been plainly visible to Officer Garcia as he fired at the suspect just beyond them.
Further, when questioned about the incident, Officer Garcia answered that he never affirmatively looked for pedestrians before firing his weapon. Officer Beddows similarly testified that he did not determine whether pedestrians were present before firing his weapon. In fact, he stated that he did not look for bystanders until “after pretty much everything was done.” Given the close proximity of plaintiffs to the suspect, the admitted failure of some officers to look for bystanders before firing their weapons creates a triable issue as to whether the police violated departmental guidelines prohibiting actions that unnecessarily endanger innocent persons.
While I acknowledge the difficulties faced by police officers in the performance of their duties, I find it troubling that some of the officers in this incident failed to observe the surrounding area prior to firing their weapons. Our governmental immunity precedent is premised on the inherent requirement that reasoned judgment be used in exercising discretion. And where, as here, there is evidence that police officers failed to look for innocent persons before firing their weapons, it does not seem possible to conclude as a matter of law that the necessary judgment was exercised and, concomitantly, that there was no violation of the guideline against unnecessarily endangering innocent persons. As this Court has previously stated, immunity will not be provided where “[t]here is no indication that . . . the City made any effort to comply with its own personnel procedures” (Haddock, 75 NY2d at 485).
The majority relies on Rodriguez and Lubecki to conclude that there is no issue of fact as to whether the officers violated guidelines because plaintiffs were not in the line of police fire. However, the applicable guideline does not merely prohibit police from discharging their weapons when there is a civilian directly in the path of police fire. Rodriguez and Lubecki dealt with facts indicating clear violations of police guidelines because of certain injury to innocent persons. In Rodriguez, an officer fired through a crowd at a suspect, and in Lubecki, officers fired at a suspect holding an innocent person hostage. While these cases present classic scenarios of endangerment, they should not be understood to be the exclusive examples of violations of
*684the applicable guideline. For the subject guideline’s intended purpose and protections to be afforded, the exercise of reasoned judgment must be extended to situations where civilians are close enough to a target to be endangered. Here, the record establishes the presence of plaintiffs in the immediate area of the suspect and the affirmative failure of the officers to look for innocent persons before firing their weapons. In a summary judgment context particularly, where a court’s function is “issue-finding, rather than issue-determination” (Pirrelli v Long Is. R.R., 226 AD2d 166, 166 [1996]), plaintiffs have raised sufficient questions of fact on the issue of unnecessary endangerment to warrant a trial.
Judges Graffeo, Read and Smith concur with Judge Pigott; Judge Jones dissents and votes to reverse in a separate opinion in which Chief Judge Lippman and Judge Ciparick concur.
Order affirmed, with costs.