Summary
holding that City owed no special duty to plaintiff for alleged failure to provide adequate security to prevent attacks by third parties at homeless shelter where incident occurred
Summary of this case from Metropolitan Dade Cty. v. DubonOpinion
April 26, 1999
Appeal from the Supreme Court, Kings County (Bruno, J.).
Ordered that the order is affirmed, with costs.
Contrary to the plaintiffs' contention, the Supreme Court properly granted the defendant's cross motion for summary judgment dismissing the complaint. The plaintiffs' theory of recovery was premised upon the defendant's failure to provide an adequate and proper security force to prevent attacks by third parties at the homeless shelter where the incident occurred. It is well settled that such a claim implicates a governmental function, liability for the performance of which is barred absent the breach of a special duty owed to the injured party ( see, Clinger v. New York City Tr. Auth., 85 N.Y.2d 957; Bonner v. City of New York, 73 N.Y.2d 930; Marilyn S. v. City of New York, 134 A.D.2d 583, affd 73 N.Y.2d 910; Thomas v. City of New York, 214 A.D.2d 724; Lasker v. City of New York, 194 A.D.2d 646). Since there was no special relationship in this case, the plaintiffs are precluded from recovering under this theory ( see, Manning v. Ardsley Union Free School Dist., 246 A.D.2d 632; Jacobellis v. City of New York, 197 A.D.2d 671; Wolff v. City of New York, 190 A.D.2d 732).
The Supreme Court did not improvidently exercise its discretion in denying the plaintiffs' motion for leave to amend the complaint to assert additional causes of action premised upon an alleged failure to provide a safe workplace. Since that duty does not extend to risks inherent in the very work to be performed by the injured party ( see, Gasper v. Ford Motor Co., 13 N.Y.2d 104, 110; Cannon v. State of New York, 232 A.D.2d 444; Meyers v. City of New York, 230 A.D.2d 691), the proposed amendment was without merit ( see, Dos v. Scelsa Villacara, 200 A.D.2d 705; Sanford v. Sanford, 176 A.D.2d 932).
Therefore, the Supreme Court properly denied the plaintiffs' motion to strike the defendant's answer for failure to comply with discovery, since the disclosure sought by the plaintiffs could not have cured the defects in their claims.
Mangano, P. J., H. Miller, Feuerstein, Schmidt and Smith, JJ., concur.