| Fitzgerald v City of New York |
| 2014 NY Slip Op 04897 [119 AD3d 520] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Mary Fitzgerald, Respondent, v City of NewYork, Appellant. |
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart andMarta Ross of counsel), for appellant.
Lynch Lynch Held Rosenberg, P.C., Suffern, N.Y. (Kelly M. Purcaro of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Queens County (Flug, J.), entered April 10, 2012, whichdenied its motion for summary judgment dismissing the complaint and granted theplaintiff's cross motion for leave to amend the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff, a nurse, allegedly was injured at Elmhurst Hospital by an inmate whowas escorted to the hospital by two officers employed by the New York City Departmentof Correction. The plaintiff commenced this action against the City of New York torecover damages for personal injuries, alleging that the City's negligence in supervisingthe inmate was a proximate cause of her injuries.
"[A]n agency of government is not liable for the negligent performance of agovernmental function unless there existed a special duty to the injured person, incontrast to a general duty owed to the public" (McLean v City of New York, 12 NY3d 194, 199 [2009][internal quotation marks omitted]). A special duty may arise where the followingelements are present: "(1) an assumption by the municipality, through promises oractions, 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)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" (Applewhite v Accuhealth, Inc.,21 NY3d 420, 430-431 [2013] [internal quotation marks omitted]).
Here, the City failed to demonstrate the absence of material issues of fact regardingwhether these elements were present in the instant case (see Alvarez v ProspectHosp., 68 NY2d 320, [*2]324 [1986]). Accordingly,the Supreme Court properly denied the City's motion for summary judgment dismissingthe complaint.
The Supreme Court also providently exercised its discretion in granting the plaintiff'scross motion for leave to amend the complaint. The proposed amendments were neitherpalpably insufficient nor patently devoid of merit, and there was no evidence that theamendments would prejudice or surprise the City (see Courthouse Corporate Ctr., LLC v Schulman, 89 AD3d672 [2011]; Fusca v A& S Constr., LLC, 84 AD3d 1155, 1158 [2011]). Skelos, J.P., Lott, Romanand Cohen, JJ., concur.