| Newsome v County of Suffolk |
| 2013 NY Slip Op 05805 [109 AD3d 802] |
| September 11, 2013 |
| Appellate Division, Second Department |
| Terron Newsome, Respondent, v County ofSuffolk et al., Appellants. |
—[*1] Donald H. Hazelton, P.C., Williston Park, N.Y. (Thomas Torto and Jason Levine ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from somuch of an order of the Supreme Court, Suffolk County (Mayer, J.), dated January 26,2012, as denied that branch of their motion which was for summary judgment dismissingthe complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action alleging negligence after he was bitten on June11, 2008, by a dog employed by the canine unit of the Suffolk County PoliceDepartment. When the incident occurred, the plaintiff, a custodian, was at AmityvilleHigh School at the request of police personnel, who needed him to open certain doors inorder to conduct a search. The Supreme Court denied that branch of the defendants'motion which was for summary judgment dismissing the complaint on the ground ofimmunity. The defendants appeal.
"The professional judgment rule insulates a municipality from liability for itsemployees' performance of their duties where the . . . conduct involves theexercise of professional judgment such as electing one among many acceptable methodsof carrying out tasks, or making tactical decisions" (Johnson v City of New York, 15 NY3d 676, 680 [2010][internal quotation marks omitted]). However, "the immunity afforded a municipality forits employee's discretionary conduct does not extend to situations where the employee, apolice officer, violates acceptable police practice" (Lubecki v City of New York,304 AD2d 224, 233-234 [2003]; see Johnson v City of New York, 15 NY3d at681; Haddock v City of New York, 75 NY2d 478, 485 [1990]).
Here, the defendants did not establish their prima facie entitlement to judgment as amatter of law. A question of fact with respect to whether the conduct of the dog's handlerwas consistent with acceptable police practice was presented by the defendants'evidentiary submissions (cf.Arias v City of New York, 22 AD3d 436, 437 [2005]). Accordingly, summaryjudgment was properly denied, regardless of the sufficiency of the plaintiff's opposingpapers (see Cerniglia vCardiology Consultants of Westchester, P.C., 97 AD3d 520, 521-522 [2012]; Quintana v Wallace, 95 AD3d1287, [*2]1287-1288 [2012]). Angiolillo, J.P.,Chambers, Sgroi and Cohen, JJ., concur.