Opinion
06-21-2017
Andrew S. FARRAGO, plaintiff, v. COUNTY OF SUFFOLK, et al., respondents, Robert Gillman, appellant.
Russo, Apoznanski & Tambasco, Melville, N.Y. (Susan J. Mitola of counsel), for appellant. Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Marcia J. Lynn of counsel), for respondents.
Russo, Apoznanski & Tambasco, Melville, N.Y. (Susan J. Mitola of counsel), for appellant.
Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Marcia J. Lynn of counsel), for respondents.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, SHERI S. ROMAN, and VALERIE BRATHWAITE NELSON, JJ.
In an action to recover damages for personal injuries, the defendant Robert Gillman appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated May 7, 2015, which granted the motion of the defendants County of Suffolk, Suffolk County Police Department, and Suffolk County Highway Patrol Motorcycle Division for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.
ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendants County of Suffolk, Suffolk County Police Department, and Suffolk County Highway Patrol Motorcycle Division which was for summary judgment dismissing the complaint insofar as asserted against them is dismissed, as the appellant is not aggrieved by that portion of the order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the respondents, payable by the appellant.
This action arises from an accident in which a motorcycle operated by the plaintiff struck a vehicle operated by the defendant Robert Gillman. At the time of the accident, the plaintiff was participating in a charity motorcycle run. The plaintiff commenced this action to recover damages for injuries that he allegedly sustained as a result of the accident against the defendants County of Suffolk, Suffolk County Police Department, and Suffolk County Highway Patrol Motorcycle Division (hereinafter collectively the County defendants), as well as Gillman. The complaint alleged, among other things, that the County defendants were negligent in failing to properly control traffic along the route of the motorcycle run, and specifically, at the location of the accident. In their answers, the County defendants asserted a cross claim against Gillman alleging comparative negligence, and Gillman asserted a cross claim against the County defendants for contribution and indemnification. Following discovery, the County defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that they were shielded from liability by the doctrine of governmental immunity. The Supreme Court granted the motion, and Gillman appeals.
The Supreme Court properly granted that branch of the County defendants' motion which was for summary judgment dismissing Gillman's cross claim against them for contribution and indemnification. Contrary to Gillman's contention, the County defendants established their prima facie entitlement to judgment as a matter of law pursuant to the governmental function immunity defense with evidence that the conduct complained of involved the exercise of the police officers' professional judgment, and was therefore discretionary (see Valdez v. City of New York, 18 N.Y.3d 69, 75–76, 936 N.Y.S.2d 587, 960 N.E.2d 356 ; Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 452, 933 N.Y.S.2d 164, 957 N.E.2d 733 ; Murchison v. State of New York, 97 A.D.3d 1014, 1017, 949 N.Y.S.2d 789 ; Kadymir v. New York City Tr. Auth., 55 A.D.3d 549, 551, 865 N.Y.S.2d 269 ). In opposition, Gillman failed to raise a triable issue of fact (see McLean v. City of New York, 12 N.Y.3d 194, 203, 878 N.Y.S.2d 238, 905 N.E.2d 1167 ; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).