| Brinkerhoff v County of St. Lawrence |
| 2010 NY Slip Op 01560 [70 AD3d 1272] |
| February 25, 2010 |
| Appellate Division, Third Department |
| Barbara Brinkerhoff, as Administrator of the Estate of DavidBrinkerhoff, Deceased, Appellant, v County of St. Lawrence et al.,Respondents. |
—[*1] Hancock & Estabrook, L.L.P., Syracuse (Janet D. Callahan of counsel), forrespondents.
Kavanagh, J. Appeal from an order of the Supreme Court (Demarest, J.), entered March 30,2009 in St. Lawrence County, which granted defendants' motion to dismiss the complaint.
On April 24, 2007, Travis Trim, after being stopped for a minor traffic infraction in theVillage of Margaretville, Delaware County, pulled out a handgun, shot State Trooper MattGombosi and fled.[FN1]A State Police Mobile Response Team was dispatched to the area and, the next day, located Trimhiding in a vacant house. As the Response Team approached the premises, Trim opened fire and,during the ensuing confrontation, State Trooper David Brinkerhoff, a member of the ResponseTeam, was shot and subsequently died as the result of his injuries.
Trim had been on probation for a petit larceny conviction and was under the supervision ofdefendant St. Lawrence County Department of Probation during the 20-month period [*2]immediately prior to the shooting. While on probation and prior tothe shooting, Trim was arrested and charged with purchasing alcohol for three underage friends,but was not cited by the Probation Department for violating the terms of his probation. Twomonths later, in December 2006, the Probation Department obtained a warrant for Trim's arrestfor a probation violation after he was found to have alcohol and marihuana in his dormitoryroom at the State University of New York at Canton, but failed to forward the warrant forexecution to a law enforcement agency or enter it into the Division of Probation and CorrectionalAlternatives Registrant System computer database as required by state probation divisionregulations.
Plaintiff, Brinkerhoff's wife and administrator of his estate, commenced this action claimingthat, had defendants properly supervised Trim's probation and processed the warrant for hisarrest, Trim would not have been at large and the shooting that resulted in Brinkerhoff's deathwould not have occurred.[FN2]Defendants moved to dismiss the complaint and Supreme Court granted the motion, promptingthis appeal.
In this appeal, plaintiff only challenges Supreme Court's dismissal of her cause of actionseeking damages for her husband's wrongful death pursuant to General Municipal Law §205-e. That statute was enacted to provide police officers with a statutory cause of action bywhich they could recover damages for any injury or wrongful death that "occurs directly orindirectly as a result of any neglect . . . of any person . . . in failing tocomply with the requirements of any of the statutes, ordinances, rules, orders and requirementsof the federal, state, county, village, town or city governments or of . . . theirdepartments, divisions and bureaus" (General Municipal Law § 205-e [1]). However,while this provision was enacted in response to the common-law rule that barred police officersfrom recovering for injuries sustained in the line of duty (see Santangelo v State of NewYork, 71 NY2d 393, 396-397 [1988]), it was not intended to provide police officers with anygreater rights than the public at large (see Galapo v City of New York, 95 NY2d 568,575 [2000]; Montalvo v City of New York, 46 AD3d 772, 773 [2007], lv denied10 NY3d 707 [2008]), and liability under this statute can only be imposed "where injury is theresult of negligent non-compliance with well-developed bodies of law and regulation whichimpose clear duties" (Desmond v City of New York, 88 NY2d 455, 464 [1996] [internalquotation marks, emphasis and citation omitted]; see Williams v City of New York, 2NY3d 352, 364 [2004]; Galapo v City of New York, 95 NY2d at 574; Gonzalez vIocovello, 93 NY2d 539, 550 [1999]).
Initially, we note that even if, as plaintiff alleges, defendants failed to comply with theProbation Department's own regulations in the processing of Trim's arrest warrant or in themanner in which it supervised his probation, it may not, as a governmental agency, be held"liable for the negligent performance of a governmental function unless there existed 'a specialduty to the injured person, in contrast to a general duty owed to the public' " at large(McLean v City of New York, 12 NY3d 194, 199 [2009], quoting Garrett v HolidayInns, 58 NY2d 253, 261 [1983]; see Lauer v City of New York, 95 NY2d 95, 99[2000]). For such relationship to have existed at the time of the shooting, plaintiff must show"(1) an assumption by [defendants], [*3]through promises oractions, of an affirmative duty to act on behalf of [Brinkerhoff]. . . ; (2) knowledgeon the part of [defendants'] agents that inaction could lead to harm; (3) some form of directcontact between [defendants] and [Brinkerhoff]; and (4) [Brinkerhoff's] justifiable reliance on[defendants'] affirmative undertaking" (Cuffy v City of New York, 69 NY2d 255, 260[1987]; see Pelaez v Seide, 2 NY3d 186, 199 [2004]; Lauer v City of New York,95 NY2d at 100-101).
Here, plaintiff has not only failed to allege that such a relationship existed, but has notpresented any evidence that would, upon a search of the record, support a finding thatBrinkerhoff and defendants had any type of relationship upon which liability pursuant to GeneralMunicipal Law § 205-e could be based. In that regard, it is undisputed that there had beenno contact between defendants and Brinkerhoff regarding Trim prior to this incident, or thatBrinkerhoff in any way relied upon defendants to his detriment prior to coming in contact withTrim. Brinkerhoff, as a member of the Response Team, was assigned to participate in the searchfor Trim, not because a warrant on the probation violation existed for Trim's arrest or that he wasa probation violator, but because Trim had shot and attempted to seriously injure another policeofficer. Absent some evidence of a special duty owed by defendants to Brinkerhoff, in additionto the general duty owed by defendants to the public at large, liability premised on GeneralMunicipal Law § 205-e, on these facts, cannot be said to exist. Therefore, Supreme Court'sdecision granting defendants' motion to dismiss must be, in all respects, affirmed.
Peters, J.P., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs. [Prior Case History: 24 Misc 3d 426.]
Footnote 1: Gombosi was wearing a Kevlarvest and, as a result, was not seriously injured.
Footnote 2: We note that had the warrantbeen executed and Trim been taken into custody, a court—upon finding that he hadviolated probation—could have, in its discretion, continued him on probation or sentencedhim to a period of incarceration (see CPL 410.70 [5]).