Opinion
(1599) CA 01-01406
December 21, 2001.
(Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Summary Judgment.)
PRESENT: PIGOTT, JR., P.J., HAYES, WISNER, SCUDDER AND BURNS, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed.
Memorandum:
Supreme Court erred in denying defendant's motion seeking summary judgment dismissing the complaint. A municipality does not owe a duty of care to any individual unless there is a special relationship between the municipality and the individual ( see generally, Cuffy v. City of New York, 69 N.Y.2d 255, 260). Defendant met its initial burden by establishing as a matter of law that it had no special relationship with plaintiffs, and plaintiffs, who did not appear in opposition to the motion, failed to raise an issue of fact ( see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Contrary to plaintiffs' contention, no special relationship was created between plaintiffs and defendant when defendant responded to a call from plaintiff Marilyn Ehmke reporting that water from a sewer line was entering her basement. "To establish a `special relationship', [plaintiffs] must show that the municipality, through affirmative acts or promises, `has lulled [them] into foregoing other available avenues of protection or that it has voluntarily assumed a duty separate from that which is owed to the public generally'" ( Rood Utils. v. City of Auburn, 233 A.D.2d 873, 874). Defendant had an established procedure for responding to emergency calls from residents and thus its response, whether timely or not, is not "`a duty separate from that which is owed to the public generally'" ( Rood Utils. v. City of Auburn, supra, at 874).