Claudio v. Sawyer ( 2015 )

Claudio v Sawyer (2015 NY Slip Op 02560)

Claudio v Sawyer

2015 NY Slip Op 02560

Decided on March 26, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 26, 2015
Gonzalez, P.J., Acosta, Moskowitz, Richter, Feinman, JJ.

14627 104877/10

[*1] Lisa Claudio, as Administrator of the Estate of Jayson Tirado, etc., et al., Plaintiffs-Appellants,

v

Sean Sawyer, Defendant, The City of New York, Defendant-Respondent.

Queller, Fisher, Washor, Fuchs & Kool, LLP, New York (Matthew J. Maiorana of counsel), for appellants.

Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondent.

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered November 1, 2013, which granted defendant City of New York's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

In this action alleging, among other things, causes of action against defendant City for negligent training and instruction arising from the shooting of decedent by defendant Sawyer, an off-duty police officer, after a "road rage" related altercation, the motion court properly found that, defendant Sawyer's act of shooting the decedent was a private, intentional act that occurred outside the scope of his employment as a police officer. Accordingly, any alleged deficiencies in the City's training and instruction of its officers could not have proximately caused decedent's injuries (see Campos v City of New York, 32 AD3d 287, 291-292 [1st Dept 2006], appeal denied 8 NY3d 816 [2007], lv dismissed 9 NY3d 953 [2007]; Cardona v Cruz, 271 AD2d 221, 222 [1st Dept 2000]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 26, 2015

CLERK