Department not liable for injury to police officer using gym equipment during his or her lunch hour that it had not provided
2014 NY Slip Op 50158(U), Supreme Court, Queens County [Not selected for publication in the Official Reports]
In an action to recover damages for personal injuries allegedly sustained by a police officer [Plaintiff] when he fell due to an allegedly insufficient amount of space between the exercise equipment in the gym of a New City Police Department precinct [NYPD], State Supreme Court Judge Phyllis Orlikoff Flug noted that New York General Municipal Law (GML) §205-e provides a police officer with the right to recover for injuries sustained "while in the discharge or performance at any time or place of any duty imposed by the police commissioner, police chief or other superior officer of the police department."
Judge Flug concluded that GML §205-e was not relevant in this instance and granted the City’s motion to dismiss Plaintiff’s claim.
The court noted that in his deposition Plaintiff said that the accident occurred while he was using the gym in the precinct during his lunch break and that he was not under any duty to use the gym. Thus, explained the court, “Plaintiff fails to raise a triable issue of fact in opposition [to the City’s motion and] the mere fact that he was wearing his uniform and [was] ‘on call’ at the time of the accident does not demonstrate that he was injured while in the discharge or performance of a duty imposed on him.”
The court also ruled in favor of the City with respect to Plaintiff's common law negligence cause of action.
Here, said Judge Flug, a defendant seeking summary judgment in a slip-and-fall case has the initial burden of making a prima facieshowing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.
The City had established that it did not create the allegedly defective condition by submitting the deposition testimony of a police officer employed in the building maintenance section of the NYPD who stated that, in his experience, “the precinct gyms are set up by individual officers on a voluntary basis, not the NYPD or the City.”
As Plaintiff failed to raise a triable issue of fact in opposition, the court ruled that as the police officers were acting on a voluntary basis in setting up the gym, the City cannot be held liable for their actions in allegedly creating the defective condition.
The decision is posted on the Internet at:
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