| Cockburn v City of New York |
| 2015 NY Slip Op 05146 [129 AD3d 895] |
| June 17, 2015 |
| Appellate Division, Second Department |
[*1]
| Dwayne Cockburn et al., Respondents, v Cityof New York et al., Appellants. |
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnensheinand Ronald E. Sternberg of counsel), for appellants.
Dalli & Marino, LLP (John Dalli and Pollack, Pollack, Isaac & De Cicco,LLP, New York, N.Y. [Brian J. Isaac], of counsel), for respondents.
In an action, inter alia, to recover damages for wrongful death, etc., the defendantsappeal from an order of the Supreme Court, Kings County (Landicino, J.), dated July 5,2013, which denied their motion pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motionpursuant to CPLR 3211 (a) (7) to dismiss the complaint is granted.
On December 27, 2010, at approximately 7:00 a.m., Jason Cockburn made atelephone call to the 911 emergency number requesting an ambulance shortly afterfinding his mother Lillie R. Cockburn (hereinafter the decedent) lying on the bathroomfloor and assisting her to bed. The 911 operator told him that the call would be sent out,and forwarded it to an emergency medical service (hereinafter EMS) operator. The EMSoperator told Jason to monitor the decedent's condition and call back if her conditionchanged. At about 2 p.m., Jason drove the decedent to the hospital, where she died ashort time later, at approximately 3 p.m. It is undisputed that a recent snowstorm hadblanketed the area, blocking streets on the date of the 911 call.
Thereafter, the decedent's son, Dwayne Cockburn, individually and as executor ofthe decedent's estate, and Jason Cockburn (hereinafter together the plaintiffs),commenced this action, inter alia, to recover damages for wrongful death and loss ofservices against the defendants City of New York and several of its departments(hereinafter collectively the defendants). The plaintiffs alleged that the defendants werenegligent in responding to the 911 call and in failing to prepare for, and respond to, thesnowstorm.
The defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (7). TheSupreme Court denied the motion.
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]). When a negligence cause of action is asserted against a municipality, and themunicipality's conduct [*2]is proprietary in nature, themunicipality is subject to suit under the ordinary rules of negligence applicable tonongovernmental parties (seeApplewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013]; Matter of World Trade Ctr.Bombing Litig., 17 NY3d 428, 446-447 [2011]). If it is determined that amunicipality was exercising a governmental function, the municipality may not be heldliable unless it owed a special duty to the injured party (see Applewhite v Accuhealth,Inc., 21 NY3d at 426; Valdez v City of New York, 18 NY3d 69, 75 [2011]; Kupferstein v City of NewYork, 101 AD3d 952, 953 [2012]). "A 'special duty' is 'a duty to exercisereasonable care toward the plaintiff,' and is 'born of a special relationship between theplaintiff and the governmental entity' " (Flagstar Bank, FSB v State of New York, 114 AD3d 138,143 [2013], quoting Pelaez vSeide, 2 NY3d 186, 189, 198-199 [2004]). Insofar as relevant here, to establisha special relationship against a municipality which was exercising a governmentalfunction, a plaintiff must show: "(1) an assumption by the municipality, through promisesor actions, 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"(Cuffy v City of New York, 69 NY2d 255, 260 [1987]; see Valdez v City ofNew York, 18 NY3d at 80).
Here, the Supreme Court erred in denying that branch of the defendants' motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging that thedefendants were negligent in responding to the 911 call. On a motion to dismiss pursuantto CPLR 3211 (a) (7), the complaint is to be afforded a liberal construction (seeCPLR 3026). The facts alleged are presumed to be true, the plaintiff is afforded thebenefit of every favorable inference, and the court is to determine only whether the factsas alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d83, 87 [1994]; Thomas vLaSalle Bank N.A., 79 AD3d 1015, 1017 [2010]).
A municipal emergency response system is a classic governmental, rather thanproprietary, function (see Applewhite v Accuhealth, Inc., 21 NY3d at 430; seealso Valdez v City of New York, 18 NY3d at 75). Contrary to the plaintiffs'contentions, the complaint fails to allege any facts tending to show knowledge by thedefendants that inaction would lead to harm, or that there was any justifiable reliance onany promise made by the defendants. Accordingly, the complaint fails to state facts fromwhich it could be found that there was a special relationship between the decedent andthe defendants and, therefore, the complaint does not state a viable cause of actionagainst the defendants based upon their alleged negligence in responding to the 911 call(see Estate of Gail Radvin vCity of New York, 119 AD3d 730, 733 [2014]; Freeman v City of New York,111 AD3d 780, 782 [2013]; cf. Applewhite v Accuhealth, Inc., 21 NY3d at431).
Furthermore, the Supreme Court improperly denied that branch of the defendants'motion which was to dismiss the cause of action alleging that the defendants failed toprepare for, and respond to, the snowstorm. A municipality is obligated to maintain thestreets and highways within its jurisdiction in a reasonably safe condition for travel(see Lopes v Rostad, 45 NY2d 617, 624 [1978]; Mazzella v City of New York,72 AD3d 755 [2010]; Gonzalez v City of New York, 148 AD2d 668[1989]). A municipality will be deemed to have been engaged in a governmental functionwhen its acts are undertaken for the protection and safety of the public pursuant to thegeneral police powers (see Applewhite v Accuhealth, Inc., 21 NY3d at 425).Under the circumstances presented here, the defendants' snow removal operation on thepublic streets was a traditionally governmental function, rather than a proprietaryfunction (see Estate of Gail Radvin v City of New York, 119 AD3d at 733;Freeman v City of New York, 111 AD3d at 782; cf. Wittorf v City of NewYork, 23 NY3d 473 [2014]; McGowan v State of New York, 41 AD3d 670 [2007];Pappo v State of New York, 233 AD2d 379 [1996]; Zuckerman v State ofNew York, 209 AD2d 510 [1994]). Moreover, the plaintiffs failed to sufficientlyallege in their complaint the existence of a special relationship between the decedent andthe defendants as to the defendants' snow removal function (see Estate of Gail Radvinv City of New York, 119 AD3d at 733; Freeman v City of New York, 111AD3d at 782).
In light of the foregoing, the Supreme Court should have granted the defendants'motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint. Rivera, J.P., Cohen,Hinds-Radix and Barros, JJ., concur.