| Hughes-Berg v Mueller |
| 2008 NY Slip Op 03423 [50 AD3d 856] |
| April 15, 2008 |
| Appellate Division, Second Department |
| Diane Hughes-Berg et al., Appellants, v Michael Mueller,Defendant, and Incorporated Village of Rockville Centre et al.,Respondents. |
—[*1] Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, N.Y. (William E. Morrissey, Jr., ofcounsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Nassau County (Mahon, J.), entered February 1, 2007, which granted themotion of the defendants Incorporated Village of Rockville Centre, Rockville Centre PoliceDepartment, and John Fitzpatrick for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order is affirmed, with costs.
On December 10, 2003 the plaintiff Diane Hughes-Berg (hereinafter the plaintiff) becameintoxicated after consuming four to five glasses of red wine while attending a holiday party at arestaurant located in the defendant Incorporated Village of Rockville Centre. Following the party,she walked to a nearby bar with a coworker. At the bar, the plaintiff felt disoriented afterconsuming another glass of red wine. She left the bar to get some fresh air and collapsed on anearby sidewalk. The defendant Michael Mueller, who was driving in his motor vehicle,witnessed the plaintiff collapse and summoned the police by calling 911. The defendant JohnFitzpatrick, a police officer from the defendant Rockville Centre Police Department, respondedto the 911 call, whereupon he observed the plaintiff sitting on a bench with Mueller standing nextto her. Although Officer Fitzpatrick did not have a clear recollection of knowing Muellerpersonally, he noted that [*2]Mueller was wearing a GemmaTowing shirt, which was a tow company that the Rockville Centre Police Department had used ataccident scenes.
After the plaintiff allegedly told the officer that she did not need any medical assistance, shedid not want a taxi to take her home, and there was no one he could call to pick her up, sheaccepted a ride home with Mueller, providing a Long Beach address as her residence. Althoughthe plaintiff had alcohol on her breath, she allegedly spoke clearly, albeit slowly, and walked tothe car without assistance. Subsequently, the plaintiff reported that Mueller physically andsexually assaulted her.
The plaintiff and her husband, suing derivatively, commenced this action against theIncorporated Village of Rockville Centre, the Rockville Centre Police Department, OfficerFitzpatrick (hereinafter collectively the defendants), and Mueller. The plaintiffs alleged that thedefendants negligently performed their duties by placing the injured plaintiff in Mueller's careand custody.
A municipal defendant is immune from liability for negligence claims arising from theperformance of its governmental functions unless the plaintiff can establish the existence of aspecial relationship between the injured party and the municipal defendant (see Kircher v Cityof Jamestown, 74 NY2d 251, 256 [1989]; Cuffy v City of New York, 69 NY2d 255,260 [1987]; Thompson v Town ofBrookhaven, 34 AD3d 448, 449 [2006]; Sandstrom v Rodriguez, 221 AD2d513, 514 [1995]). The elements of a special relationship are: (1) an assumption by a municipality,through promises or actions, of an affirmative duty to act on behalf of the injured party; (2)knowledge on the part of a municipality's agents that inaction could lead to harm; (3) some formof direct contact between the municipality's agents and the injured party; and (4) that party'sjustifiable reliance on the municipality's affirmative undertaking (see Kovit v Estate of Hallums, 4 NY3d499, 506-507 [2005]; Cuffy v City of New York, 69 NY2d at 260).
Here, the defendants demonstrated their prima facie entitlement to summary judgment byestablishing the absence of any special relationship with the plaintiff. In response, the plaintiffsfailed to raise a triable issue of fact. Specifically, the plaintiffs failed to demonstrate that OfficerFitzpatrick assumed an affirmative duty to act on behalf of the plaintiff (see Lynch v State of New York, 37AD3d 772, 773 [2007]; Eckert vState of New York, 3 AD3d 470 [2004]; Respass v City of New York, 288AD2d 286, 287 [2001]; Lorenzo v City of New York, 192 AD2d 586, 588-589 [1993]).At a hearing pursuant to General Municipal Law § 50-h and at her examination beforetrial, the plaintiff testified that she did not recall how it was decided that Mueller would give hera ride home and she did not remember the officer telling her to go home with Mueller.
In opposition to the defendants' motion for summary judgment, however, the plaintiff statedin an affidavit that the officer put her in Mueller's vehicle and gave her verbal assurances thatMueller would take her home. This affidavit thus presented a feigned factual issue designed toavoid the consequences of her earlier statements and was insufficient to raise a triable issue offact (see Karwowski v New York CityTr. Auth., 44 AD3d 826 [2007]; Stancil v Supermarkets Gen., 16 AD3d 402, 403 [2005];Marcelle v New York City Tr. Auth., 289 AD2d 459 [2001]; Nieves v ISS CleaningServs. Group, 284 AD2d 441, 442 [2001]).
Accordingly, the defendants were entitled to summary judgment. Rivera, J.P., Spolzino,Dillon and Balkin, JJ., concur.