| Salone v Town of Hempstead |
| 2012 NY Slip Op 00352 [91 AD3d 746] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| William Salone et al., Respondents, v Town of Hempstead,Appellant. |
—[*1] Philip J. Rizzuto, P.C., Carle Place, N.Y. (Kristen N. Reed of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Nassau County (Marber, J.), entered December 6, 2010, whichdenied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
The plaintiffs alleged that the infant plaintiff was injured by three unidentified youths whoattacked him during the course of a pick-up game of basketball in a park owned and maintainedby the defendant, Town of Hempstead. The infant plaintiff, by his mother, and his mother, suingderivatively, commenced this action alleging that the Town was negligent in failing to provideadequate security at the park.
The Town moved for summary judgment dismissing the complaint. It contended, amongother things, that it was immune from liability because providing security in the park constituteda governmental function. The Supreme Court denied the motion.
Generally, when a municipal defendant "acts in a proprietary capacity as a landlord, it issubject to the same principles of tort law as is a private landlord" (Miller v State of NewYork, 62 NY2d 506, 511 [1984]; see Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 446[2011]; see also Vestal v County ofSuffolk, 7 AD3d 613, 614 [2004]). However, "[p]ublic entities remain immune fromnegligence claims arising out of the performance of their governmental functions, includingpolice protection, unless the injured person establishes a special relationship with the entity,which would create a specific duty to protect that individual, and the individual relied on theperformance of that duty" (Miller v State of New York, 62 NY2d at 510; see Matterof World Trade Ctr. Bombing Litig., 17 NY3d at 446; Cuffy v City of New York, 69NY2d 255, 260 [1987]; see also Pope vState of New York, 19 AD3d 573, 573-574 [2005]).
Since "the varied functions of a governmental entity can be interspersed with both [*2]governmental and proprietary elements, the determination of theprimary capacity under which a governmental agency was acting turns solely on the acts oromissions claimed to have caused the injury" (Matter of World Trade Ctr. BombingLitig., 17 NY3d at 447; see Miller v State of New York, 62 NY2d at 513). In otherwords, "[i]t is the specific act or omission out of which the injury is claimed to have arisen andthe capacity in which that act or failure to act occurred which governs liability, not whether theagency involved is engaged generally in proprietary activity or is in control of the location inwhich the injury occurred" (Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182[1982]).
Here, the alleged deficiencies in the security measures taken by the defendant at the park,including the allotment of personnel to patrol the park, arose from the allocation of thedefendant's security resources. Such deficiencies involving policymaking as to the nature of therisks presented at the park implicated the defendant's governmental function, not its proprietaryrole as owner of the premises (see Bonner v City of New York, 73 NY2d 930 [1989];Cuffy v City of New York, 69 NY2d at 260; Miller v State of New York, 62NY2d 506 [1984]; Rashed v State of New York, 232 AD2d 394, 394-395 [1996];Marilyn S. v City of New York, 134 AD2d 583 [1987], affd 73 NY2d 910[1989]). Under the circumstances of this case, by submitting evidence showing that there was nodirect contact between the infant plaintiff and any Town employee prior to the alleged attack, theTown demonstrated that it owed no special duty to him, and thereby established its entitlement tojudgment as a matter of law (see Pelaezv Seide, 2 NY3d 186, 202 [2004]; Cuffy v City of New York, 69 NY2d at260-262; Dickerson v City of New York, 258 AD2d 433 [1999]). In opposition to theTown's motion for summary judgment dismissing the complaint, the plaintiffs failed to raise atriable issue of fact. Accordingly, the Town's motion should have been granted.
In view of the foregoing, it is unnecessary to reach the plaintiffs' contention that the allegedattack was foreseeable (see e.g. Pope v State of New York, 19 AD3d at 574). Skelos,J.P., Hall, Austin and Miller, JJ., concur. [Prior Case History: 29 Misc 3d 1235(A), 2010 NYSlip Op 52166(U).]