Opinion
2014-05-6
Nzingha EWADI, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents, Camila Lopez, Defendant.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Jeffrey D. Friedlander, Acting Corporation Counsel, New York (Susan P. Greenberg of counsel), for respondents.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Jeffrey D. Friedlander, Acting Corporation Counsel, New York (Susan P. Greenberg of counsel), for respondents.
GONZALEZ, P.J., MAZZARELLI, SWEENY, MANZANET–DANIELS, CLARK, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 19, 2013, which, to the extent appealed from as limited by the briefs, granted the municipal defendants' motion for summary judgment dismissing the complaint as against the City of New York and Fire Department of the City of New York, unanimously affirmed, without costs.
Plaintiff testified at his deposition that the only words spoken to her by firefighters arriving to extinguish the fire at the building in which she was trapped were, “Hold on.” These words are too vague to manifest an assumption by firefighters of a voluntary duty to plaintiff beyond that owed to the general public ( see Coleson v. City of New York, 106 A.D.3d 474, 474–475, 964 N.Y.S.2d 419 [1st Dept.2013] ). The balance of plaintiff's assertions are insufficient to raise an issue that the fire department assumed direction and control in the face of a “known[ ] blatant” danger, and affirmatively placed plaintiff in harm's way ( see Abraham v. City of New York, 39 A.D.3d 21, 28, 828 N.Y.S.2d 502 [2d Dept.2007],lv. denied10 N.Y.3d 707, 859 N.Y.S.2d 392, 889 N.E.2d 79 [2008];see also e.g. Garrett v. Holiday Inns, 58 N.Y.2d 253, 262, 460 N.Y.S.2d 774, 447 N.E.2d 717 [1983] ).
Plaintiff's argument that misfeasance does not require a special relationship to create a duty is unavailing ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 426 n. 1, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ).