KELLY v. CITY OF NEW YORK (2005)

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated August 5, 2003, which granted the motion of the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The decedent Stephen Kelly, Sr., was shot and killed by the defendant Radames Ortiz, an off-duty police officer employed by the defendant City of New York, after an altercation arising from a traffic dispute.   Ortiz was subsequently convicted of manslaughter and assault.   The plaintiff commenced this action, alleging, inter alia, that the City was negligent in its retention and supervision of Ortiz, whom it knew or should have known had violent propensities. The Supreme Court granted the City's motion for summary judgment dismissing the complaint insofar as asserted against it.

The plaintiff argues that the Supreme Court improperly dismissed the complaint against the City insofar as it alleged that the City was negligent in its retention and supervision of Ortiz.   In opposition to the City's prima facie demonstration of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether the City knew or should have known that Ortiz had a propensity for the conduct which caused the death of the decedent (see Cherry v. Tucker, 5 A.D.3d 422, 773 N.Y.S.2d 405;  Sato v. Correa, 272 A.D.2d 389, 707 N.Y.S.2d 371;  Doe v. State of New York, 267 A.D.2d 913, 700 N.Y.S.2d 554).

The plaintiff's remaining contentions are without merit.