HENRY WATERMAN JR PLAINTIFF RESPONDENT v. CITY OF ROCHESTER AND DAVID BAGLEY II DEFENDANTS APPELLANTS (2017)

Supreme Court, Appellate Division, Fourth Department.

HENRY J. WATERMAN, JR., PLAINTIFF–RESPONDENT, v. CITY OF ROCHESTER AND DAVID J. BAGLEY, II, DEFENDANTS–APPELLANTS.

CA 17–00114

Decided: October 06, 2017

PRESENT: CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW, JJ.

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 AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

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 NY3d 420, 432 [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 AD3d 742, 742–743; see also McBryant v. Pisa Holding Corp., 110 AD3d 1034, 1035).

Mark W. Bennett

Clerk of the Court

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