| Keselman v City of New York |
| 2012 NY Slip Op 04136 [95 AD3d 1278] |
| May 30, 2012 |
| Appellate Division, Second Department |
| Vladimir Keselman, Appellant, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Mordecai Newman andGraham Morrison of counsel), for respondents.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Kings County (Sherman,J.), dated November 5, 2010, as granted the defendants' motion for summary judgmentdismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff commenced this action against the defendants, City of New York, PoliceOfficer Anibal Martinez, and the then-New York City Police Commissioner, Bernard Kerik, interalia, to recover damages for personal injuries, false imprisonment, and inattention to medicalneeds arising out of an incident that occurred on November 3, 2000. The Supreme Court properlygranted those branches of the defendants' motion which were for summary judgment dismissingthe causes of action to recover damages for false imprisonment and inattention to medical needson the ground that they were barred by the doctrine of res judicata. "[U]nder the transactionalapproach adopted by New York in res judicata jurisprudence, once a claim is brought to a finalconclusion, all other claims arising out of the same transaction or series of transactions arebarred, even if based upon different theories or if seeking a different remedy" (Grossman v New York Life Ins. Co.,90 AD3d 990, 991 [2011] [internal quotation marks omitted]). The defendants demonstratedtheir prima facie entitlement to judgment as a matter of law dismissing those causes of action bypresenting evidence that they were barred by a prior judgment (see Keselman v City of NewYork, 179 Fed Appx 774 [2d Cir 2006]). In opposition, the plaintiff failed to raise a triableissue of fact.
The Supreme Court also properly granted those branches of the defendants' motion whichwere for summary judgment dismissing the causes of action predicated on malfeasance, fraud,false representation, and negligence. With respect to those causes of action, the plaintiff alleged,inter alia, that the defendant police officer, among other things, declined to arrest a nonparty thatthe plaintiff sought to have arrested. "Generally, a municipality may not be held liable for thefailure to provide police protection because the duty to provide such protection is owed to thepublic at large, rather than to any particular individual. A narrow exception to the rule existswhere a special [*2]relationship exists between the municipalityand the injured party" (Brown v City ofNew York, 73 AD3d 1113, 1114 [2010] [internal quotation marks and citationsomitted]). The elements of this "special relationship" are: " '(1) an assumption by themunicipality, through promises or actions, of an affirmative duty to act on behalf of the partywho was injured; (2) knowledge on the part of the municipality's agents that inaction could leadto harm; (3) some form of direct contact between the municipality's agents and the injured party;and (4) that party's justifiable reliance on the municipality's affirmative undertaking' " (Valdez v City of New York, 18 NY3d69, 80 [2011], quoting Cuffy v City of New York, 69 NY2d 255, 260 [1987]).Further, "a municipality is not to be held liable for judgmental errors in the exercise of itsgovernmental functions" (Rodriguez v City of New York, 189 AD2d 166, 175 [1993][internal quotation marks omitted]; see Matter of Bullion v Safir, 249 AD2d 386 [1998]).A decision to arrest an individual involves "the exercise of discretion or expert judgment in apolicy matter and thus is cloaked with governmental immunity" (Rodriguez v City of NewYork, 189 AD2d at 177-178). The defendants demonstrated their prima facie entitlement tojudgment as a matter of law dismissing the causes of action predicated on malfeasance, fraud,false representation, and negligence by presenting evidence that they did not have a specialrelationship with the plaintiff (see Cuffy v City of New York, 69 NY2d at 260;Brown v City of New York, 73 AD3d at 1114), and also because they were immune fromliability for any injury the plaintiff may have sustained arising from a decision by the defendantpolice officer whether or not to arrest the nonparty (see Rodriguez v City of New York,189 AD2d at 177-178). In opposition, the plaintiff failed to raise a triable issue of fact (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]).
The plaintiff's remaining contentions either are without merit or not properly before thisCourt. Dillon, J.P., Leventhal, Hall and Austin, JJ., concur.