SHUBERT v. SANTOS (2003)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered November 2, 2001, which, inter alia, granted defendants-respondents' cross motion for summary judgment dismissing the complaint and cross claims as against them, unanimously affirmed, without costs.

Plaintiff, while working as a police officer, was injured at the scene of an automobile accident and, in this action, seeks to impose liability for his harm upon the municipal defendants on a negligence theory and pursuant to General Municipal Law § 205-e, alleging that they mismanaged the accident scene and, in so doing, violated Vehicle and Traffic Law § 1104(e).   The action against the municipal defendants was, however, properly dismissed since the choice of means to safeguard those responding to the accident scene constituted the sort of discretionary exercise for which the municipal defendants cannot be held liable (see Smullen v. City of New York, 214 A.D.2d 508, 625 N.Y.S.2d 545, lv. denied 86 N.Y.2d 705, 632 N.Y.S.2d 498, 656 N.E.2d 597).   No triable issue exists as to whether the municipal defendants violated Vehicle and Traffic Law § 1104-e by recklessly operating an emergency vehicle, and thus the necessary predicate violation for a General Municipal Law § 205-e claim has not been furnished.

With the dismissal of plaintiffs' direct causes of action, the derivative claim necessarily must also fail (see Shay v. Jerkins, 263 A.D.2d 475, 692 N.Y.S.2d 730).