| Dixon v Village of Spring Val. |
| 2008 NY Slip Op 03579 [50 AD3d 943] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Ramona Dixon, Appellant, v Village of Spring Valley etal., Respondents, et al., Defendants. |
—[*1] Miranda Sokoloff Sambursky Slone Verveniotis LLP, Mineola, N.Y., for respondents. Pillinger Miller Tarallo, LLP, Elmsford, N.Y., for defendant William Paul Faist VolunteerAmbulance Corps., Inc.
In an action, inter alia, to recover damages for personal injuries and wrongful death, theplaintiff appeals, as limited by her brief, from so much of a judgment of the Supreme Court,Rockland County (Sherwood, J.), dated June 13, 2006, as, upon so much of an order of the samecourt dated April 5, 2006, as granted the motion of the defendants Village of Spring Valley,Spring Valley Police Department, and Peter Russell for summary judgment dismissing thecomplaint insofar as asserted against them, is in favor of those defendants and against her,dismissing the complaint insofar as asserted against those defendants.
Ordered that the judgment is affirmed insofar as appealed from, with costs to therespondents.
" 'As a general rule, a public entity is immune from negligence claims arising out of theperformance of its governmental functions, including police and fire protections, unless theinjured person establishes a special relationship with the public entity which would create aspecial duty of protection with respect to that individual' " (Thompson v Town of Brookhaven, 34 AD3d 448, 449 [2006],[*2]quoting Sandstrom v Rodriguez, 221 AD2d 513, 514[1995]; see Kircher v City of Jamestown, 74 NY2d 251 [1989]; Cuffy v City of NewYork, 69 NY2d 255 [1987]).
The plaintiff has the heavy burden of establishing the existence of a special relationship byproving all of the following elements: (1) an assumption by the municipality, through promisesor actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge onthe part of the municipality's agents that inaction could lead to harm; (3) some form of directcontact between the municipality's agents and the injured party; and (4) the party's justifiablereliance on the municipality's affirmative undertaking (see Cuffy v City of New York, 69NY2d at 260; Thompson v Town of Brookhaven, 34 AD3d at 449; Clarke v City of New York, 18 AD3d796 [2005]).
The respondents established their prima facie entitlement to summary judgment dismissingthe complaint as to them. In opposition, the plaintiff failed to raise a triable issue of fact as towhether the decedent's agent Margaret Dixon justifiably relied on the respondents' affirmativeundertaking to provide medical assistance to the decedent. It is the plaintiff's burden to show thatthe respondents' conduct actually lulled the decedent or her agent into a false sense of security,induced them either to relax their own vigilance or forego other avenues of protection, andthereby placed the decedent in a worse position than she would have been in had the respondentsnever assumed the duty (see Conde vCity of New York, 24 AD3d 595, 597 [2005]; Finch v County of Saratoga, 305AD2d 771, 773 [2003]). The plaintiff submitted the affidavit of Margaret Dixon, who stated thatshe could have taken the decedent by car to a nearby hospital, instead of waiting for medicalassistance from the respondents. However, on this record, it cannot be said that any reliance onthe respondents placed the decedent in a worse position than she would have been in if theynever assumed the duty to help. Accordingly, the Supreme Court properly awarded summaryjudgment to the respondents. Rivera, J.P., Skelos, Santucci and Belen, JJ., concur.