| Freeman v City of New York |
| 2013 NY Slip Op 07707 [111 AD3d 780] |
| November 20, 2013 |
| Appellate Division, Second Department |
| Laura Freeman, Individually and as Administrator of theEstate of Yvonne Freeman, Deceased, Respondent, v City of New York et al.,Appellants. |
—[*1] Rubenstein & Rynecki, Brooklyn, N.Y. (Klioptra Vrontos of counsel), forrespondent.
In an action, inter alia, to recover damages for wrongful death, the defendants appealfrom an order of the Supreme Court, Queens County (Flug J.), entered June 20, 2012,which denied their motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint andgranted the plaintiffs' cross motion for leave to serve an amended complaint.
Ordered that the order is reversed, on the law and in the exercise of discretion, withcosts, the plaintiffs' cross motion for leave to serve an amended complaint is denied, andthe defendants' motion to dismiss the complaint for failure to state a cause of action isgranted.
On the morning of December 27, 2010, in the aftermath of a major blizzard, YvonneFreeman (hereinafter the decedent) began to experience difficulty breathing while at herhome in Queens, which she shared with the plaintiff, her adult daughter. According tothe original complaint, the plaintiff attempted "but was unable to communicate with anoperator or personnel of the 911 emergency telephone system" to request assistance forher mother. Later that morning, the decedent died at home. The plaintiff thereaftercommenced this action alleging, inter alia, that the defendants, the City of New York andthe New York City Department of Sanitation, were negligent in failing to provideemergency services, and in failing to prepare for, and respond to, the snowstorm.
The defendants moved to dismiss the complaint for failure to state a cause of action,arguing, inter alia, that since it was conceded in the complaint that there had been nocommunication with 911 personnel, the plaintiff could not demonstrate a "specialrelationship" necessary to hold them liable in this case. The plaintiff opposed the motionand cross-moved for leave to amend her complaint. In opposition to the defendants'motion and in support of her cross motion, the plaintiff submitted affidavits from variousindividuals. These affiants stated that they had called and spoken to 911 operators on theday of the incident, that they had informed the operators of the "medical emergency," andthat they were told by the 911 operators that an ambulance would be sent to thedecedent's house, but that no ambulance arrived. The plaintiff also submitted a proposedamended complaint which, inter alia, incorporated these allegations. The Supreme Courtdenied the [*2]defendants' motion and granted theplaintiffs' cross motion for leave to serve the proposed amended complaint.
The Supreme Court should have granted the defendants' motion to dismiss thecomplaint. When considering a motion to dismiss pursuant to CPLR 3211 (a) (7), "the[initial] sole criterion is whether the pleading states a cause of action, and if from its fourcorners factual allegations are discerned which taken together manifest any cause ofaction cognizable at law" (Guggenheimer v Ginzburg, 43 NY2d 268, 275[1977]). For the purpose of determining a motion to dismiss a complaint, the factsalleged therein must be deemed to be true, and the plaintiff must be accorded the benefitof every possible inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).Moreover, the "court may consider affidavits submitted by the plaintiff to remedy anydefects in the complaint and, upon considering such affidavits, the facts alleged thereinmust also be assumed to be true" (Pasquaretto v Long Is. Univ., 106 AD3d 794, 795 [2013]).
As a general rule, "a municipality may not be held liable to a person injured by thebreach of a duty owed to the general public, such as a duty to provide police protection,fire protection or ambulance services" (Etienne v New York City Police Dept., 37 AD3d 647, 649[2007]). There is, however, a "narrow class of cases in which [the courts] haverecognized an exception to this general rule and have upheld tort claims based upon a'special relationship' between the municipality and the claimant" (Cuffy v City ofNew York, 69 NY2d 255, 260 [1987], quoting De Long v County of Erie,60 NY2d 296, 304 [1983]). Such special relationship imposes a specific duty upon themunicipality to act on behalf of the claimant (see Miller v State of New York, 62NY2d 506, 510 [1984]; see also Cuffy v City of New York, 69 NY2d at 260;Napolitano v County of Suffolk, 61 NY2d 863 [1984]). As articulated by theCourt of Appeals in Cuffy v City of New York, "[t]he elements of this 'specialrelationship' are: (1) an assumption by the municipality, through promises or actions, ofan affirmative duty to act on behalf of the party who was injured; (2) knowledge on thepart of the municipality's agents that inaction could lead to harm; (3) some form of directcontact between the municipality's agents and the injured party; and (4) that party'sjustifiable reliance on the municipality's affirmative undertaking" (Cuffy v City ofNew York, 69 NY2d at 260).
Here, the complaint fails to allege any facts tending to show that there was any"direct contact" between the decedent and the defendants or that there was any"justifiable reliance" on any promise made to the decedent by the defendants.Accordingly, the complaint does not state facts from which it could be found that therewas a special relationship between the decedent and the defendants necessary to assert anegligence cause of action against the defendants (see Laratro v City of New York, 8 NY3d 79 [2006]). In theabsence of any allegation of such a relationship, the complaint cannot state a viable causeof action against the City based on its alleged negligence in failing to send an ambulanceto the decedent's home.
Furthermore, under the circumstances of this case, the allegations in the complaintthat the defendants were negligent in preparing for and responding to the subjectsnowstorm, like the allegation regarding the 911 emergency response, also implicate theexercise of a governmental function. The defendants are similarly immune from liabilityin connection with their exercise of such function in the absence of a special relationship,which was not sufficiently pleaded (see Matter of World Trade Ctr. Bombing Litig., 17 NY3d428, 446-447 [2011]; seealso Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013]; Sebastian vState of New York, 93 NY2d 790, 793 [1999]). Accordingly, the Supreme Courtshould have granted the motion to dismiss the complaint for failure to state a cause ofaction.
The Supreme Court should have denied the plaintiff's cross motion for leave to servethe proposed amended complaint. Although "[a] determination whether to grant suchleave is within the Supreme Court's broad discretion, and the exercise of that discretionwill not be lightly disturbed" (Peerless Ins. Co. v Micro Fibertek, Inc., 67 AD3d 978, 980[2009]), leave to amend a pleading should not be granted where the proposedamendment is "palpably insufficient" (Malanga v Chamberlain, 71 AD3d 644, 646 [2010],quoting G.K. Alan Assoc., Inc.v Lazzari, 44 AD3d 95, 99 [2007]). Here, the proposed amended complaint waspalpably insufficient since, even if the additional allegations were considered andaccepted as true, there was no basis for concluding that they sufficiently alleged factsfrom which it could be found that a special relationship was somehow created betweenthe [*3]defendants and the decedent (see Gotlin v City of New York,90 AD3d 605, 606-607 [2011]). Dillon, J.P., Sgroi, Cohen and Miller, JJ., concur.