TEITELBAUM v. CITY OF NEW YORK

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Supreme Court, Appellate Division, Second Department, New York.

Rachel TEITELBAUM, etc., et al., Appellants, v. CITY OF NEW YORK, et al., Respondents, et al., Defendants.

Decided: December 30, 2002

MYRIAM J. ALTMAN, J.P., SONDRA MILLER, THOMAS A. ADAMS and WILLIAM F. MASTRO, JJ. DeBlasio, Figman, Epstein & LaRocca, P.C., New York, NY, (Breakstone Law Firm, P.C., Bellmore, NY, [Jay L.T. Breakstone] of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York, NY, (Larry A. Sonnenshein and Grace Goodman of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated September 28, 2001, which granted the motion of the defendants the City of New York and the New York City Police Department for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiffs commenced this action against, among others, the City of New York and the New York City Police Department (hereinafter collectively the City) after the injured plaintiff was struck by a stolen vehicle being followed by the police.   The accident occurred when an officer sounded his intermittent siren while he was stuck in traffic on a one-way street in a densely-populated area, and the driver of the stolen vehicle, who was approximately one half-block ahead, mounted the sidewalk.

The City established its prima facie entitlement to summary judgment by demonstrating that the police officer's conduct was not reckless.   The officer's alleged violation of internal guidelines relating to pursuits failed to establish that his conduct was reckless (see Powell v. City of Mount Vernon, 228 A.D.2d 572, 644 N.Y.S.2d 766;  cf.  Allen v. Town of Amherst, 294 A.D.2d 828, 740 N.Y.S.2d 904).   Additionally, the affidavit of the plaintiffs' expert, which was premised on the internal guidelines, was conclusory.   Accordingly, the plaintiffs did not raise a triable issue of fact and the Supreme Court properly granted the City's motion for summary judgment.

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