FORSTER v. James H. Kalendarian, Defendant. (2003)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered August 29, 2001, which, to the extent appealed from, granted the municipal defendants' motion for summary judgment dismissing the complaint and cross claims as against them, and denied plaintiff's cross motion for leave to amend the complaint to assert a cause of action against the municipal defendants for violation of General Municipal Law § 205-e, predicated on a violation of Labor Law § 27-a(3), unanimously affirmed, without costs.

 The alleged breaches of proper police procedure described by plaintiff's expert are grounded in the Patrol Guide.   Plaintiff, however, may not use a violation of the Patrol Guide as a predicate to establish a violation of Labor Law § 27-a(3) and then use that Labor Law § 27-a(3) violation as a predicate for a General Municipal Law § 205-e claim (see Galapo v. City of New York, 95 N.Y.2d 568, 721 N.Y.S.2d 857, 744 N.E.2d 685;  Capotosto v. City of New York, 288 A.D.2d 419, 734 N.Y.S.2d 102, lv. denied 98 N.Y.2d 602, 744 N.Y.S.2d 762, 771 N.E.2d 835).   The Police Department training lessons and videos described by certain police officers at their examinations before trial, which are “not part of a duly enacted body of law or regulation” imposing “clear legal duties” (Galapo, 95 N.Y.2d at 574, 575, 721 N.Y.S.2d 857, 744 N.E.2d 685), also failed to provide a predicate for alleging a Labor Law § 27-a(3) violation as a ground for Municipal Law § 205-e liability (see Flynn v. City of New York, 258 A.D.2d 129, 693 N.Y.S.2d 569).   Moreover, plaintiff's injuries, which occurred on an open highway when he was struck by defendant Kalendarian's vehicle, did not constitute the type of “recognized” hazard contemplated by Labor Law § 27-a(3) (see Sciangula v. City of New York, 250 A.D.2d 833, 673 N.Y.S.2d 454).   In any event, the theory of plaintiff, who bore the burden of establishing the merit of her amended claim, that had cones and flares been in decedent's patrol car, decedent would have followed proper police procedure and placed his vehicle at a different location, was speculative and did not tend to show a practical or reasonable connection with the alleged violation (see Kenavan v. City of New York, 267 A.D.2d 353, 355, 700 N.Y.S.2d 69, lv. denied 95 N.Y.2d 756, 712 N.Y.S.2d 448, 734 N.E.2d 760).

We have considered plaintiff's remaining arguments and find them unavailing.