Summary
In Lazan, the order of the Appellate Division should be reversed, with costs, defendant's motion for summary judgment dismissing the complaint granted and the certified question answered in the negative.
Summary of this case from Kovit v. Estate of HallumsOpinion
2003-09296
October 18, 2004.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated October 8, 2003, which denied its motion for summary judgment dismissing the complaint.
Before: H. Miller, J.P., Goldstein, Cozier and Skelos, JJ., concur.
Ordered that the order is affirmed, with costs.
Where, as here, the complaint alleges that a police officer undertook to direct the injured plaintiff to move his vehicle off the Long Island Expressway, the Supreme Court correctly characterized the plaintiffs' allegations against the defendant as misfeasance rather than nonfeasance ( see Kovit v. Estate of Hallums, 261 AD2d 442; see also Persaud v. City of New York, 267 AD2d 220). As such, the plaintiffs were not required to demonstrate the existence of a special relationship with the defendant ( see Persaud v. City of New York, supra; cf. Escribano v. Town of Haverstraw, 303 AD2d 621).
There is a triable issue of fact as to whether, under the attendant circumstances, the officer was negligent in directing the injured plaintiff to move his vehicle from the shoulder of the expressway ( see Kovit v. Estate of Hallums, supra; Persaud v. City of New York, supra). Accordingly, the Supreme Court correctly denied the motion for summary judgment.