| Shinn v City of New York |
| 2009 NY Slip Op 06244 [65 AD3d 621] |
| August 18, 2009 |
| Appellate Division, Second Department |
| Cecilia Ann Shinn, Appellant, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz andDeborah A. Brenner of counsel), for respondents City of New York, Adult Protective Services,and the New York City Police Department.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Kerrigan, J.), dated January 15, 2008, whichgranted that branch of the motion of the defendants City of New York, Adult Protective Services,and the New York City Police Department which was for summary judgment dismissing thecomplaint insofar as asserted against them and, sua sponte, dismissed the complaint pursuant toCPLR 3215 (c) insofar as asserted against the defendant Animal Care & Control.
Ordered that on the Court's own motion, the notice of appeal from so much of the order as,sua sponte, dismissed the complaint pursuant to CPLR 3215 (c) insofar as asserted against thedefendant Animal Care & Control is deemed to be an application for leave to appeal, and leaveto appeal from that portion of the order is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants City of New York, AdultProtective Services, and the New York City Police Department.
The defendants City of New York, Adult Protective Services, and the New York City PoliceDepartment (hereinafter collectively the municipal defendants) submitted evidencedemonstrating that the actions taken by their employees were taken pursuant to a court ordergranting access to the plaintiff as an adult person believed to be in need of protective services(see Social Services Law § 473-c). Thus, the municipal defendants were immunefrom civil liability, as their employees' actions were within the scope of their employment(see Social Services Law § 473 [3]; Mental Hygiene Law § 9.59 [a]).Accordingly, the municipal defendants established their prima facie entitlement to summaryjudgment. In opposition, the plaintiff failed to raise a triable issue of fact, and the Supreme Courtproperly granted summary judgment dismissing the complaint insofar as asserted against themunicipal defendants (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Since the plaintiff failed to seek leave to enter a default judgment within one year of [*2]the default of the defendant Animal Care & Control, and did notdemonstrate that she had a reasonable excuse for that failure or that the complaint had merit (see Mattera v Capric, 54 AD3d827 [2008]; Scrimenti v DryHarbor Nursing Home, 34 AD3d 439 [2006]), the Supreme Court also properlydismissed the complaint insofar as asserted against the defendant Animal Care & Control(see CPLR 3215 [c]). Rivera, J.P., Skelos, Balkin and Leventhal, JJ., concur.