| Gabriel v City of New York |
| 2011 NY Slip Op 08558 [89 AD3d 982] |
| November 22, 2011 |
| Appellate Division, Second Department |
| Marjorie Gabriel, Appellant, v City of New York et al.,Respondents, et al., Defendants. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein, AlysonEstess, and Sharyn Rootenberg of counsel), for respondents. McManus, Collura & Richter, P.C., New York, N.Y. (Peter D. Suglia of counsel), for defendantsSheltering Arms Children's Services and Paul Nye.
In an action to recover damages for negligence and negligent infliction of emotional distress, theplaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County(Sherman, J.), dated May 11, 2010, as granted that branch of the motion of the defendants City ofNew York, Administration of Children's Services, New York City Police Department, DetectiveAhearn, Detective Scotto, Captain Curry, Sergeant Martin, and Detective Lewis which was forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs to the respondents.
The plaintiff commenced this action to recover damages for negligence and negligent infliction ofemotional distress alleging, inter alia, that certain negligent conduct on the part of the defendantsresulted in the murder of her minor child (hereinafter the child) and the child's burial in a cemeteryknown as Potter's Field. The defendants City of New York, Administration of Children's Services(hereinafter ACS), New York City Police Department (hereinafter the NYPD), Detective Ahearn,Detective Scotto, Captain Curry, Sergeant Martin, and Detective Lewis (hereinafter collectively theCity defendants) moved, inter alia, for summary judgment dismissing the complaint insofar as assertedagainst them.
The City defendants established their prima facie entitlement to judgment as a matter of lawdismissing those causes of action which were to recover damages from the City and ACS based onallegations that ACS negligently placed and/or supervised the child, to recover damages from the City,the NYPD, and Detective Scotto based on allegations that Detective Scotto violated Family Court Act§ 168, to recover damages from the City, the NYPD, and Captain Curry based on allegationsthat Captain Curry negligently supervised the child's missing person investigation, and otherwise torecover damages from the individually named members of the NYPD. The City defendantsdemonstrated that the plaintiff did not include these theories of liability or the individually namedmembers of the NYPD in her notice of claim (see Semprini v Village of [*2]Southampton,48 AD3d 543, 544 [2008]; Santoro vTown of Smithtown, 40 AD3d 736, 737 [2007]; Mahase v Manhattan & Bronx Surface Tr. Operating Auth., 3 AD3d410 [2004]; Mazzilli v City of New York, 154 AD2d 355, 357 [1989]; Urena v Cityof New York, 221 AD2d 429 [1995]; Bryant v City of New York, 188 AD2d 445, 446[1992]). In opposition, the plaintiff failed to raise a triable issue of fact (see generally Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]).
Further, the City defendants established their prima facie entitlement to judgment as a matter of lawdismissing those causes of action which were to recover damages based on allegations, consistent withthose included in the notice of claim, that the NYPD negligently investigated the child's missing personcase and failed to expeditiously determine that an unidentified body discovered by the authorities inWestchester County was that of the child so as to notify the plaintiff of the child's death. The Citydefendants demonstrated that the NYPD's challenged acts with respect to the subject investigationwere discretionary rather than ministerial, and, thus, that they could not form the basis of tort liability(see generally McLean v City of NewYork, 12 NY3d 194, 203 [2009]; Lauer v City of New York, 95 NY2d 95, 99[2000]; see also Estate of Scheuer v City ofNew York, 10 AD3d 272, 273 [2004]). In any event, the City defendants demonstrated,prima facie, that the plaintiff did not justifiably rely on any affirmative undertaking of the NYPD and itsmembers, and, therefore, that there was no special relationship upon which liability could be predicated(see Cuffy v City of New York, 69 NY2d 255 [1987]; Carossia v City of New York, 39 AD3d 429 [2007]). In opposition, theplaintiff failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2dat 324).
Accordingly, the Supreme Court properly granted that branch of the City defendants' motion whichwas for summary judgment dismissing the complaint insofar as asserted against them.
In light of our determination, we need not reach the parties' remaining contentions. Skelos, J.P.,Balkin, Leventhal and Lott, JJ., concur.