Opinion
10-06-2017
Henry J. WATERMAN, Jr., Plaintiff–Respondent, v. CITY OF ROCHESTER and David J. Bagley, Ii, Defendants–Appellants.
Brian F. Curran, Corporation Counsel, Rochester (Spencer L. Ash of counsel), for Defendants–Appellants. Cellino & Barnes, P.C., Rochester (K. John Wright of counsel), for Plaintiff–Respondent.
Brian F. Curran, Corporation Counsel, Rochester (Spencer L. Ash of counsel), for Defendants–Appellants.
Cellino & Barnes, P.C., Rochester (K. John Wright of counsel), for Plaintiff–Respondent.
MEMORANDUM:Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint. Contrary to defendants' contention, they are not entitled to governmental immunity. "Governmental immunity does not apply when a public employee, acting in the course of his or her employment, commits an ordinary tort that anyone else might commit—for example, when the employee is negligent in driving a [vehicle]" ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 432, 972 N.Y.S.2d 169, 995 N.E.2d 131 [Smith, J., concurring] ). Contrary to defendants' further contention, the court did not abuse its discretion in refusing to consider unauthenticated and uncertified exhibits submitted in support of their motion (see Dyer v. 930 Flushing, LLC, 118 A.D.3d 742, 742–743, 987 N.Y.S.2d 206 ; see also McBryant v. Pisa Holding Corp., 110 A.D.3d 1034, 1035, 973 N.Y.S.2d 757 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, and WINSLOW, JJ., concur.