Opinion
07-05-2016
Bakari KINSEY, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Harmon Linder & Rogowsky, New York (Mitchell Dranow of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Devin Slack of counsel), for respondents.
Harmon Linder & Rogowsky, New York (Mitchell Dranow of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Devin Slack of counsel), for respondents.
SWEENY, J.P., ACOSTA, FEINMAN, KAPNICK, KAHN, JJ.
Opinion Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered May 21, 2015, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
New York City police officers and emergency medical technicians [EMTs] responded to a 911 call regarding plaintiff, who suffered from bipolar disorder. When they arrived, plaintiff appeared calm, and wanted help. The police convinced plaintiff to enter an ambulance, but after he was seated and his vital signs were taken, he opened the ambulance door, ran up five flights of stairs of a nearby building and, while attempting to climb down the fire escape, fell to the ground.
Defendants made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that they owed no special duty to plaintiff (see McLean v. City of New York, 12 N.Y.3d 194, 199, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009] ), other than “that owed the public generally” (Lauer v. City of New York, 95 N.Y.2d 95, 100, 711 N.Y.S.2d 112, 733 N.E.2d 184 [2000] ). In opposition, plaintiff failed to raise an issue of fact (see Torres v. City of New York, 116 A.D.3d 947, 983 N.Y.S.2d 855 [2d Dept.2014] ; compare Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ). Moreover, since the decisions of the City's police officers and EMTs were discretionary ones, the City is protected by governmental immunity (see Valdez v. City of New York, 18 N.Y.3d 69, 79, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011] ) and, even if such decisions prove to be erroneous, they do not cast the City in damages (see DiMeo v. Rotterdam Emergency Med. Servs., Inc., 110 A.D.3d 1423, 1424, 974 N.Y.S.2d 178 [3d Dept.2013], lv. denied 22 N.Y.3d 864, 2014 WL 1281739 [2014] ).
We have considered plaintiff's remaining arguments and find them unavailing.