| Rew v County of Niagara |
| 2014 NY Slip Op 02170 [115 AD3d 1316] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| Michael J. Rew, Appellant, v County of Niagara et al.,Respondents. |
—[*1] Gibson, McAskill & Crosby, LLP, Buffalo (Elizabeth M. Bergen of counsel), fordefendants-respondents.
Appeal from a judgment of the Supreme Court, Niagara County (Ralph A. Boniello,III, J.), entered November 29, 2012. The judgment, insofar as appealed from, grantedthose parts of the motion of defendants seeking summary judgment dismissing the firstcause of action insofar as it asserts claims for negligent training and supervision againstdefendant Niagara County Sheriff Thomas Beilein and dismissing the fourth cause ofaction.
It is hereby ordered that the judgment insofar as appealed from is unanimouslyreversed on the law without costs, defendants' motion is denied in part, and the firstcause of action insofar as it asserts claims for negligent training and supervision againstdefendant Niagara County Sheriff Thomas Beilein and the fourth cause of action arereinstated.
Memorandum: In this action to recover damages for personal injuries he sustainedwhen he was shot by defendant Niagara County Sheriff's Deputy Cory Diez (deputysheriff), plaintiff appeals from an order granting defendants' motion for summaryjudgment dismissing the amended complaint. As a preliminary matter, we note that theorder from which plaintiff appeals was subsumed in the final judgment, from which noappeal was taken. In the exercise of our discretion, we treat the notice of appeal as validand deem the appeal as taken from the judgment (see Gray v Williams, 108 AD3d 1085, 1086 [2013];Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988, 988 [1988]; seealso CPLR 5501 [c]; 5520 [c]).
Plaintiff contends for the first time on appeal that defendants failed to meet theirinitial burden on their motion because their medical expert was not qualified to render anopinion with respect to the position of plaintiff's body and the path of the bullet inplaintiff's body when plaintiff was shot, and because the expert's affidavit wasspeculative and conclusory. We nevertheless review those contentions inasmuch as theyinvolve "question[s] of law appearing on the face of the record . . . [that]could not have been avoided by the opposing party if brought to that party's attention in atimely manner" (Oram v Capone, 206 AD2d 839, 840 [1994]; see Mills v Mills, 111 AD3d1306, 1306-1307 [2013]). Plaintiff's contention is without merit, however,because[*2]"the opinion at issue did not require expertisein the workings of firearms and ammunition, but in the effect of gunshots on humantissue and the conclusions to be drawn therefrom. The medical [expert]'s extensivetraining and experience qualified [him] to provide such an opinion" (People v Harris, 99 AD3d608, 608 [2012], lv denied 21 NY3d 1004 [2013]; see People v Robinson, 61AD3d 784, 784 [2009], lv denied 12 NY3d 920 [2009]; People v South, 47 AD3d734, 735-736 [2008], lv denied 17 NY3d 862 [2011]). We reject plaintiff'sfurther contention that the affidavit of defendants' medical expert was speculative andconclusory (see generally Diaz v New York Downtown Hosp., 99 NY2d 542,544 [2002]; Romano v Stanley, 90 NY2d 444, 451-452 [1997]; Potter vPolozie, 303 AD2d 943, 944 [2003]).
Plaintiff's additional contention that defendants failed to attach copies of theevidence upon which their medical expert relied in reaching his opinion is also raised forthe first time on appeal. That contention is not properly before us, however, inasmuch asany evidentiary deficiency "could have been obviated or cured by factual showings orlegal countersteps" by defendants had plaintiff raised the issue in Supreme Court (Ring v Jones, 13 AD3d1078, 1079 [2004] [internal quotation marks omitted]; see Oram, 206 AD2dat 840; see also InnovativeTransmission & Engine Co., LLC v Massaro, 37 AD3d 1199, 1201 [2007]). Wehave considered plaintiff's remaining contentions with respect to the affidavit andopinion of defendants' medical expert, and conclude that they are without merit.
We agree, however, with plaintiff's further contention "that the court improperlyresolved credibility issues on [the] motion for summary judgment when it determinedthat the deposition testimony of [plaintiff] was not credible" (Auble v Doyle, 38 AD3d1264, 1265-1266 [2007]). With respect to the fourth cause of action, against thedeputy sheriff, defendants contended that the deputy sheriff's actions were entitled toqualified immunity. "To be entitled to qualified immunity, it must be established that itwas objectively reasonable for the police officer involved to believe that his or herconduct was appropriate under the circumstances, or that officers of reasonablecompetence could disagree as to whether his or her conduct was proper" (Delgado v City of New York,86 AD3d 502, 510 [2011]). According to plaintiff, the actions of the deputy sheriffwho shot him were not objectively reasonable because plaintiff was asleep when thedeputy sheriff shot him, and plaintiff testified to that fact several times. The courtnevertheless concluded that plaintiff was standing upright when the deputy sheriff shothim, thus implicitly determining that plaintiff's testimony was not credible. "It is not thecourt's function on a motion for summary judgment to assess credibility" (Ferrante vAmerican Lung Assn., 90 NY2d 623, 631 [1997]; see Givens v Rochester CitySchool Dist., 262 AD2d 933, 933 [1999]). Inasmuch as plaintiff testified that he wasasleep in a chair when the deputy sheriff shot him, he has raised a triable issue of factwhether the deputy sheriff's actions were objectively reasonable, and thus the court erredin granting the motion to that extent.
We agree with the further contention of plaintiff that the court erred in dismissing thefirst cause of action insofar as it asserts claims for negligent supervision and trainingagainst defendant Niagara County Sheriff Thomas Beilein (Sheriff). "It has been heldthat a cause of action sounding in negligence is legally sustainable . . . whenthe injured party demonstrates that he was injured due to the negligent training andsupervision of a law enforcement officer" (Barr v County of Albany, 50 NY2d247, 257 [1980]). Here, defendants failed to sustain their initial burden of establishingtheir entitlement to summary judgment dismissing the first cause of action insofar as itasserts claims for negligent training and supervision against the Sheriff becausedefendants submitted no evidence establishing that the Sheriff was not negligent intraining or supervising the deputy sheriff (see Mendez v City of New York, 7 AD3d 766, 768 [2004];Beauchamp v City of NewYork, 3 AD3d 465, 467 [2004]). The court therefore should have denied thatpart of defendants' motion (see Martinetti v Town of New Hartford Police Dept.,307 AD2d 735, 736 [2003]), "regardless of the sufficiency of the opposing papers"(Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Present—Smith, J.P.,Fahey, Carni, Sconiers and Valentino, JJ.