| Rodriguez v County of Rockland |
| 2007 NY Slip Op 06855 [43 AD3d 1026] |
| September 18, 2007 |
| Appellate Division, Second Department |
| Orlando Rodriguez et al., Appellants, v County ofRockland et al., Respondents, et al., Defendants. |
—[*1] James J. Killerlane (David Samel, New York, N.Y.), for respondents County of Rocklandand Rockland County Sheriff's Department. Babchik & Young, LLP, White Plains, N.Y. (James E. Musurca of counsel), for respondentVillage of Haverstraw.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Rockland County (Weiner, J.), entered November 23, 2005, as amendedby an order of the same court entered January 9, 2006, which granted the motion of the defendantVillage of Haverstraw, joined by the defendants County of Rockland and Rockland CountySheriff's Department, pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as assertedagainst them, and denied their cross motion pursuant to CPLR 3025 (b) for leave to amend thecomplaint.
Ordered that the order, as amended, is affirmed, with one bill of costs to the respondentsappearing separately and filing separate briefs.
The plaintiff Orlando Rodriguez (hereinafter Rodriguez), a State Patrol Trooper assigned asan undercover police officer, was assaulted by the defendant Isaiah Eurie when Rodriguez waspurchasing narcotics as part of a joint task force. Rodriguez, with his wife, the plaintiff Luz D.Rodriguez, suing derivatively, commenced this action to recover damages for injuries hepurportedly sustained as a result of the assault. The complaint alleged, inter alia, that variousdefendants failed to warn Rodriguez that Eurie had been released from jail on bail. The [*2]complaint further alleged that when Rodriguez attempted topurchase narcotics as part of his continuing undercover duties, Eurie recognized him as anundercover officer and assaulted him.
In a pre-answer motion pursuant to CPLR 3211 (a) (7), the defendant Village of Haverstrawmoved to dismiss the complaint insofar as asserted against it on the ground, inter alia, that thecomplaint failed to plead a violation of General Obligations Law § 11-106. The defendantsCounty of Rockland and Rockland County Sheriff's Department (hereinafter collectively theCounty), without serving a notice of motion or cross motion, submitted an affirmation seekingthe same relief and adopting and incorporating the Village's submissions. The plaintiffs opposedboth applications and cross-moved for leave to amend their complaint to allege a violation ofGeneral Obligations Law § 11-106. The Supreme Court granted the Village's motion todismiss the complaint as asserted against it and denied the plaintiffs's cross motion. The courtthen amended its prior order to include relief granting dismissal of the complaint against theCounty. The plaintiff appeals. We now affirm the order as amended.
Although the County failed to include a notice of motion or cross motion with itssubmissions, under the circumstances presented here, the Supreme Court properly entertained itsapplication (see Tulley v Straus, 265 AD2d 399 [1999]; Fox Wander W.Neighborhood Assn. v Luther Forest Community Assn., 178 AD2d 871 [1991]; Catania vLippman, 98 AD2d 826 [1983]; cf. Hergerton v Hergerton, 235 AD2d 395 [1997]).The County's argument for dismissal was premised on the same legal argument as the Village'smotion to dismiss, which the County adopted and incorporated by reference. Further, theplaintiffs obviously had notice of the County's submissions since they are referenced in theplaintiffs' response.
As to the merits, on a motion to dismiss pursuant to CPLR 3211 (a) (7), a court must acceptthe complaint's allegations as true, "according the plaintiff the benefit of every favorableinference, and determining only whether the facts alleged 'fit within any cognizable legal theory'" (Rodriguez v City of New York,35 AD3d 702, 703-704 [2006], quoting Sokoloff v Harriman Estates Dev. Corp., 96NY2d 409, 414 [2001]).
The complaint fails to state a negligence cause of action against the County and the Village(hereinafter the respondents), since it does not adequately allege that a special relationshipexisted between the respondents and Rodriguez sufficient to overcome the barrier ofgovernmental immunity that otherwise bars the instant suit by the plaintiffs against therespondents (see Pelaez v Seide, 2NY3d 186, 193 [2004]; Abraham vCity of New York, 39 AD3d 21, 25 [2007]).
Moreover, the complaint fails to state a cause of action based on a violation of GeneralObligations Law § 11-106. This provision "allows police officers to bring tort claims formost work injuries that occur in the line of duty. Importantly, however, section 11-106 maintainsthe common-law bar on tort claims against 'the police officer's . . . employer orco-employee' " (Williams v City of NewYork, 2 NY3d 352, 363 [2004], quoting General Obligations Law § 11-106 [1]).In this case, the relationship that Rodriguez had with the respondents by participating in a jointtask force was akin to that of his relationship with his employer. In passing General ObligationsLaw § 11-106, the Legislature barred suits against a police officer's employer orco-employee to restrict the imposition of further financial burdens on municipalities (seeGrogan v City of New York, 259 AD2d 240 [1999]). Given the public policy underlyingGeneral Obligations Law § 11-106, the instant action is likewise barred as to therespondents on such grounds (id.). Accordingly, the Supreme Court properly dismissedthe complaint insofar as asserted against the respondents since the complaint [*3]failed to state a cause of action for which relief may be granted asagainst them (see CPLR 3211 [a] [7]).
In light of this determination, the parties' remaining contentions either need not be addressedor are without merit. Mastro, J.P., Covello, McCarthy and Dickerson, JJ., concur.