It is well established that “an agency of government is not liable for the negligent performance of a governmental function unless there existed ‘a special duty to the injured person, in contrast to a general duty owed to the public.’ Such a duty ...—‘a duty to exercise reasonable care toward the plaintiff’—is ‘born of a special relationship between the plaintiff and the governmental entity’ ” (McLean v. City of New York, 12 N.Y.3d 194, 199, 878 N.Y.S.2d 238, 905 N.E.2d 1167 ; see Bower v. City of Lockport, 115 A.D.3d 1201, 1202–1203, 982 N.Y.S.2d 621, lv. denied 24 N.Y.3d 905, 2014 WL 4693176 ). Defendants established their entitlement to summary judgment dismissing the complaint on the ground that they did not owe a special duty to plaintiff (see Valdez v. City of New York, 18 N.Y.3d 69, 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 ; Bower, 115 A.D.3d at 1202–1203, 982 N.Y.S.2d 621 ), but instead acted under their police power to protect the general public.

Here, only the first and fourth elements are at issue. We conclude that defendants met their burden on the motion by establishing as a matter of law that there was no voluntary assumption of a duty of care, and plaintiff failed to raise a triable issue of fact whether defendants assumed, through promise or action, any duty to act on decedent's behalf (seeFlynn v. Town of Southampton , 177 A.D.3d 855, 858, 111 N.Y.S.3d 350 [2d Dept. 2019] ; Bower v. City of Lockport , 115 A.D.3d 1201, 1203, 982 N.Y.S.2d 621 [4th Dept. 2014], lv denied 24 N.Y.3d 905, 2014 WL 4693176 [2014] ). Moreover, even assuming, arguendo, that plaintiff raised a triable issue of fact with respect to that element, we conclude that defendants also met their initial burden by establishing that any alleged reliance upon representations made by defendants or their agents was not justifiable, and plaintiff failed to raise a triable issue of fact in that regard (seeBower , 115 A.D.3d at 1203, 982 N.Y.S.2d 621 ; see alsoMiddleton v. Town of Salina , 108 A.D.3d 1052, 1054, 969 N.Y.S.2d 634 [4th Dept. 2013] ).

Blesser's alleged conduct would have been actionable under state law as a battery. See Bower v. City of Lockport, 115 A.D.3d 1201, 1204, 982 N.Y.S.2d 621, 625 (4th Dep't 2014) (listing elements of battery as “bodily contact, made with intent, and offensive in nature” (internal quotation marks omitted)); Cotter v. Summit Sec. Servs., Inc., 14 A.D.3d 475, 475, 788 N.Y.S.2d 153, 154 (2d Dep't 2005) (same); Zgraggen v. Wilsey, 200 A.D.2d 818, 819, 606 N.Y.S.2d 444, 445 (3d Dep't 1994)(same); see also Hassan v. Marriott Corp., 243 A.D.2d 406, 407, 663 N.Y.S.2d 558, 559 (1st Dep't 1997) (“To maintain a cause of action for battery, plaintiffs must prove bodily contact, with intent that was offensive in nature.” (citation omitted)).

It is conduct that evinces a reckless disregard for the rights of others or ‘smacks' of intentional wrongdoing, ” Colnaghi, U.S.A., supra, 81 N.Y.2d at 823-24, 595 N.Y.S.2d at 383. The Fourth Department once held that a plaintiff failed to meet his burden “of establishing that the police officers' conduct” evinced “ ‘a reckless disregard for the rights of others or smack[] of intentional wrongdoing'” to assert gross negligence on the part of those officers, Bower v. City of Lockport, 115 A.D.3d 1201, 1204, 982 N.Y.S.2d 621, 625 (4th Dep't 2014). Additionally, the district court in Glowczenski observed,

Governmental immunity applies "[w]hen a negligence claim is asserted against a municipality or its employees," Velez v. City of New York, 730 F.3d 128, 134 (2d Cir. 2013) (citing Valdez, 960 N.E.2d at 361), but does not shield officers from allegations of assault and battery, which are intentional torts. See, e.g., Bower v. City of Lockport, 982 N.Y.S.2d 621, 624-25 (N.Y. App. Div. 2014) (analyzing government immunity with regard only to negligence claims and not to assault and battery claims). In sum, because there is a material dispute as to whether there was probable cause to arrest Blacksun Greene, under New York law Blacksun's assault and battery claim must survive summary judgment.

First, under the public duty rule, a municipality's general duty to the public at large "does not create a duty of care running to a specific individual sufficient to support a negligence claim[ ] unless the facts demonstrate that a special duty was created." Bower v. City of Lockport , 115 A.D.3d 1201, 982 N.Y.S.2d 621, 623 (4th Dep't 2014). As the New York Court of Appeals has explained, "[w]e have deemed it necessary to restrict the scope of duty in this manner because the government is not an insurer against harm suffered by its citizenry at the hands of third parties."

“ ‘To be entitled to qualified immunity, it must be established that it was objectively reasonable for the police officer[s] involved to believe that [their] conduct was appropriate under the circumstances, or that officers of reasonable competence could disagree as to whether [their] conduct was proper’ ” (Rew v. County of Niagara, 115 A.D.3d 1316, 1318, 983 N.Y.S.2d 170 ). Here, defendants submitted evidence establishing that their conduct “ ‘was undertaken in the exercise of reasoned professional judgment of the officers' ” (Bower v. City of Lockport, 115 A.D.3d 1201, 1203, 982 N.Y.S.2d 621, lv. denied 24 N.Y.3d 905, 2014 WL 4693176 ). However, they also submitted plaintiff's deposition testimony and her testimony at the General Municipal Law § 50–h hearing, as well as decedent's testimony at the section 50–h hearing and the deposition testimony of a neighbor who witnessed the events, thereby raising an issue of fact whether decedent “had a mental illness and that he was conducting himself in a manner likely to result in serious harm to himself or others” (Smolian v. Port Auth. of N.Y. & N.J., 128 A.D.3d 796, 799, 9 N.Y.S.3d 329 ). Specifically, plaintiff testified that a paramedic suggested to the police that they afford decedent some time in which to recover from the effects of the seizure, and the neighbor testified that, after the police lifted decedent from the chair, decedent said, “[O]k, I'll go, I'll go.” Decedent testified that he said that he would go to the hospital but that he needed “some time to really just get [his] bearings and just figure out what's goin

Plaintiff's inference that the foundation pier discovery would have led to the unveiling of the buried debris issue is too untenable on which to premise a higher form of gross negligence responsibility. See e.g. Bower v. City of Lockport, 115 AD3d 1201, 1204 (4th Dept 2014) (gross negligence claim was dismissed).