| Brown v City of New York |
| 2010 NY Slip Op 04536 [73 AD3d 1113] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Candice Brown, Appellant, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow,Elizabeth Gallay, Craig Koster, and John Hogrogian of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Rothenberg, J.), dated January 7, 2009, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
In 2002 the plaintiff's neighbors, Andrea Campbell and her daughter, Shanie Campbell(hereinafter together the Campbells), allegedly engaged in a course of conduct which included,inter alia, verbal abuse and physical confrontations directed toward the plaintiff. The Campbells'conduct allegedly culminated in an incident that occurred on September 26, 2002, when ShanieCampbell, aided and assisted by Andrea Campbell, stabbed the plaintiff in the eye. Thegravamen of the plaintiff's complaint is the alleged failure on the part of the defendant, the Cityof New York, to provide adequate police protection.
"Generally, a municipality may not be held liable for the failure to provide police protectionbecause the duty to provide such protection is owed to the public at large, rather than to anyparticular individual" (Conde v City of New York, 24 AD3d 595, 596 [2005]; seeCuffy v City of New York, 69 NY2d 255, 260 [1987]). A narrow exception to the rule existswhere a special relationship exists between the municipality and the injured party or parties(see Mastroianni v County of Suffolk, 91 NY2d 198, 203 [1997]; Cuffy v City ofNew York, 69 NY2d at 260; Conde v City of New York, 24 AD3d at 596;Basher v City of New York, 268 AD2d 546, 547 [2000]). The elements required to provethe existence of a special relationship are (1) an assumption by the municipality, throughpromises or actions, of an affirmative duty to act on behalf of the party who was injured, (2)knowledge on the part of the municipality's agents that inaction could lead to harm, (3) someform of direct contact between the municipality's agents and the injured party, and (4) the injuredparty's justifiable reliance on the municipality's affirmative undertaking (see Mastroianni vCounty of Suffolk, 91 NY2d at 204; Cuffy v City of New York, 69 NY2d at 260).
In this case, the City established its prima facie entitlement to judgment as a matter [*2]of law dismissing the complaint by demonstrating that the facts, astestified to by the plaintiff, failed to establish the existence of a special relationship (seegenerally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In opposition, the plaintifffailed to raise a triable issue of fact.
First, there was no affirmative undertaking by the City to provide the plaintiff with policeprotection. The assurances by the City were, at best, vague and ambiguous. Essentially, theseassurances amounted to general statements by Police "Captain Vinny," such as "don't worry. [Iam] going to take care of it." The plaintiff repeatedly was told to "call the police" if anythingactually happened. Although police officers allegedly were stationed in the area, the plaintiff wasnever told by "Captain Vinny" when the officers would be present or how long they wouldremain.
Second, the plaintiff did not justifiably rely upon any affirmative undertaking by the City."The element of reliance 'provides the essential causative link between the "special duty"assumed by the municipality and the alleged injury. Indeed, at the heart of most of these "specialduty" cases is the unfairness that the courts have perceived in precluding recovery when amunicipality's voluntary undertaking has lulled the injured party into a false sense of securityand has thereby induced him [or her] either to relax his [or her] own vigilance or to forgo otheravailable avenues of protection.' " (Conde v City of New York, 24 AD3d at 597, quotingCuffy v City of New York, 69 NY2d at 261).
It is the plaintiff's burden to show that the City's conduct actually lulled her into a false senseof security, induced her either to relax her own vigilance or forgo other avenues of protection,and thereby placed her in a worse position than she would have been had the City never assumedthe duty (see Conde v City of New York, 24 AD3d at 597; Finch v County ofSaratoga, 305 AD2d 771, 773 [2003]; Clark v Town of Ticonderoga, 291 AD2d 597,599 [2002]).
Recently, in Dinardo v City of New York (13 NY3d 872 [2009]), the Court ofAppeals explained that the "assurance by the municipal defendant must be definite enough togenerate justifiable reliance by the plaintiff" (id. at 874). In Dinardo, the Court ofAppeals noted that vaguely worded statements by the defendant therein that "something" wasbeing done "without any indication of when, or if, such relief would come, did not, as a matter oflaw, constitute an action that would lull a plaintiff into a false sense of security or otherwisegenerate justifiable reliance" (id.). Similarly, here, "Captain Vinny['s]" assurances of"don't worry" or "[I am] going to take care of it," even when considered in conjunction with thepurported police presence on the plaintiff's block, did not lull the plaintiff into a false sense ofsecurity or otherwise generate justifiable reliance. The plaintiff testified at her examinationbefore trial that, in August and September 2002, she was still being harassed by the Campbellsand that she continued to feel unsafe.
Accordingly, the Supreme Court properly granted the City's motion for summary judgmentdismissing the complaint. Rivera, J.P., Dickerson, Chambers and Hall, JJ., concur.