Opinion
No. 9449/10.
01-07-2015
Matthew ORITZ, Plaintiff, v. The CITY OF NEW YORK and The New York City Police Department, Defendants.
Opinion
Defendants, the City of New York and the New York City Police Department (hereinafter, collectively, “City”), move inter alia for summary judgment, dismissing plaintiff's complaint and all cross-claims asserted against them.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff on September 5, 2008 at the Italian Feast Festival when he was shot multiple times at or near the intersection of Gates Avenue and Fresh Pond Road, in the County of Queens, City and State of New York. Plaintiff claims that movants' failure to provide sufficient security, protection and oversight allowed for an outbreak and escalation of public violence which resulted in the subject shooting.
On a motion for summary judgment, the proponent “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ...” (Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 852 [1985] ). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986] ).
“When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose” (Applewhite v. Accuhealth, Inc., 21 NY3d 420, 425 [2013] ). This determination turns solely on the acts or omissions claimed to have caused the injury (See Salone v. Town of Hempstead, 91 AD3d 746 [2d Dept.2012] ).
The gravamen of plaintiff's complaint is that defendants failed to provide sufficient security, protection and oversight of the festival so as to prevent the outbreak of public violence that led to his injuries.
It is well settled that the provision of police protection is a quintessential government function (See Applewhite, supra at 425; Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 446 [2011] ; see also Keselman v. City of New York, 95 AD3d 1278, 1279–80 [2d Dept.2012] ; Rivera v. City of New York, 90 AD3d 735, 736 [2d Dept.2011] ).
Nevertheless, in the affirmation submitted in opposition to the motion, plaintiff's attorney claims that defendants were acting in a proprietary function because the security measures undertaken were done for the benefit of the specific business and vendors operating at the festival and were not for the benefit of the general public.
As an initial matter, this claim is completely belied by the fact that, in the same affirmation, plaintiff's attorney claims that defendants security measures were undertaken to address crowding and disorderly behavior that posed a dangerous condition to the public at large.
Moreover, the mere fact that defendants were securing an area being operated by private businesses does not change the fact that those measures were undertaken for the benefit of the public and are therefore properly considered a governmental function (See World Trade Ctr. Bombing Litig., supra, at 446–50; cf. Granata v. City of White Plains, 120 AD3d 1187, 1188–89 [2d Dept.2014] ). Notably, there is no allegation that defendants were compensated by these private businesses or that these private business exercised any control over the manner in which defendants discharged their duty to provide police protection (Cf. St. Andrew v. O'Brien, 45 AD3d 1024, 1026–27 [3d Dept.2007] ).
At the very least, any proprietary role undertaken by defendants was minimal and the actions at issue here were overwhelming governmental in nature (See Clinger v. New York City Transit Auth., 85 N.Y.2d 957, 959 [1995] ).
Once it is determined that the municipality was acting in a governmental capacity, the next inquiry is whether the municipality owed a “special duty” to the injured party (See Applewhite, supra, at 426; see also Jerideau v. Huntington Union Free Sch. Dist., 21 AD3d 992, 992–93 [2d Dept.2005] [internal citations omitted] ).
“A special relationship can be formed in one of three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant, and dangerous safety violation” (McLean v. City of New York, 12 NY3d 194, 199 [2009] (quoting Pelaez v. Seide, 2 NY3d 186, 199–200 [2004] )).
Liability based on a municipality's assumption of positive direction and control in the face of a known, blatant, and dangerous safety violation is limited only to those rare circumstances where the municipality has affirmatively acted to place the plaintiff in harm's way (See Sutton v. City of New York, 119 AD3d 851, 852 [2d Dept.2014] ; Abraham v. City of New York, 39 AD3d 21, 28 [2d Dept.2007] ).
Plaintiff's claim that defendants failed to act to address the crowd situation and thereby affirmatively directed him into a path of danger is insufficient to establish a special relationship under this analysis (See Sutton, supra, at 853).
In addition, defendants' knowledge that disorderly conduct and crowd congestion had occurred at the previous festival constitutes awareness of an unknown, though potentially serious, safety risk, but is insufficient to establish awareness of a “blatant and dangerous safety violation” (See Abraham, supra, at 28). Notably, there is no allegation that defendants ever falsely represented to anyone that the festival would be completely free of any crowd congestion or disorderly conduct (See id. ).
Plaintiff also claims that a special relationship was formed by his justifiable reliance on the municipality's voluntary assumption of a duty for his benefit.
The elements of a special relationship formed in this manner are “(1) an assumption by the municipality, through promises or 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 N.Y.2d 255, 260 [1987] ).
Here, plaintiff's own deposition testimony makes clear that he did not have any direct contact with the police until several minutes after he was shot and the absence of any direct contact prior to the incident negates the existence of a special relationship (See Sutton, supra, at 852; see also Merced v. City of New York, 75 N.Y.2d 798, 799–800 [1990] ; Kircher v. City of Jamestown, 74 N.Y.2d 251, 255 [1989] ; D'Ambra v. Di Donna, 305 A.D.2d 958, 959 [3d Dept.2003] ; Gillette v. City of Elmira, 285 A.D.2d 909, 910 [3d Dept.2001] ).
Moreover, contrary to plaintiff's contentions, no special duty was created by the City's involvement in the festival as a result of complaints made regarding the prior festival, as there is no basis for finding that plaintiff relied on the City's involvement to his detriment (See Gillette, supra, at 911; see also Brown v. City of New York, 73 AD3d 1113, 1114–15 [2d Dept.2010] ).
Plaintiff's belief that there would be security personnel at the festival based on his experience attending a similar festival in Pennsylvania does not constitute justifiable reliance as his own testimony demonstrates that he did not see any police at the festival prior to being shot (See Alava v. City of New York, 54 AD3d 565, 566 [1st Dept.2008] ; see also Valdez v. City of New York, 18 NY3d 69, 81–83 [2011] ; Clark v. Town of Ticonderoga, 291 A.D.2d 597, 599 [3d Dept.2002] ; cf. Mastroianni v. County of Suffolk, 91 N.Y.2d 198, 201–05 [1997] ).
The lack of any evidence that plaintiff ever communicated any information to defendants, prior to the shooting, concerning the shooter or lack of security, or that defendants' ever made any promise of protection directly to him, an on which he relied, precludes any finding of a special duty (See Alava, supra, at 566; see also Merced, supra, at 800).
Accordingly, defendant's motion is granted, and plaintiff's complaint is dismissed, in its entirety.
The parties remaining contentions have been rendered moot and are not addressed.