Opinion
2014-05-1
Vincent CASALE, et al., Plaintiffs–Respondents, v. CITY OF NEW YORK, et al., Defendants–Appellants, John Doe, et al., Defendants. Darlene C. Hogan, Third–Party Plaintiff, v. Kevin Maltezo, et al., Third–Party Defendants–Respondents, Officer M. Kahn, etc., Third–Party Defendant–Appellant.
Jeffrey D. Friedlander, Acting Corporation Counsel, New York (Fay Ng of counsel), for appellants. McCabe Collins McGeough & Fowler, LLP, Carle Place (Allison Jill Henig of counsel), for Maltezo, respondents.
Jeffrey D. Friedlander, Acting Corporation Counsel, New York (Fay Ng of counsel), for appellants. McCabe Collins McGeough & Fowler, LLP, Carle Place (Allison Jill Henig of counsel), for Maltezo, respondents.
TOM, J.P., FRIEDMAN, ANDRIAS, SAXE, DeGRASSE, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered July 5, 2012, which denied the City defendants' motion to dismiss the complaint and all cross claims against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff Vincent Casale alleges that he was injured when the vehicle operated by third-party defendant Kevin Maltezo, in which he was a passenger, was struck while proceeding through a green light by a vehicle operated by defendant/third-party plaintiff Darlene Hogan after Hogan was waved through a red light by third-party defendant Officer M. Kahn. The City defendants cannot be held liable for Vincent's injuries, even if the injuries resulted from Officer Kahn's negligence, because Kahn was engaged in the discretionary governmental function of traffic control ( see Valdez v. City of New York, 18 N.Y.3d 69, 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011];McLean v. City of New York, 12 N.Y.3d 194, 202, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009];Lewis v. City of New York, 82 A.D.3d 410, 918 N.Y.S.2d 70 [1st Dept.2011],lv. denied16 N.Y.3d 713, 2011 WL 1756521 [2011];Devivo v. Adeyemo, 70 A.D.3d 587, 894 N.Y.S.2d 747 [1st Dept.2010] ).