Opinion
101837/05.
Decided June 11, 2010.
The motion for summary judgment by the municipal defendants (hereinafter "the City") is granted.
This case arises from an incident that occurred on August 27, 2004, when plaintiff was brutally beaten into a coma in the lobby of his apartment building. The four assailants, who were known to plaintiff, were subsequently apprehended and ultimately incarcerated for their role in the crime. In his current action against the City, plaintiff alleges, inter alia, that police officers called to the vicinity regarding a prior dispute between plaintiff's sister and defendant Gerald Stokley failed to make any arrests or otherwise prevent a subsequent attack upon plaintiff.
To the extent relevant, it is alleged that plaintiff, his sister Joelis, and a friend, Marcella Dinton, were leaving plaintiff's apartment building when they were approached by defendants Joseph Stokley, Gerald Stokley and two other individuals (EBT of Pablo Saldana, Jr, pp 24-27). Joelis and defendant Joseph Stokely apparently got into an argument ( id. at 32-33), whereupon defendant Gerald Stokley made a gesture toward plaintiff which the latter perceived as a physical threat ( id. at 35). Gerald then pushed Joelis in the head, causing her to strike a car. At this point, plaintiff and Gerald got into an argument ( id. at 35-36). Joelis called 911 and four police officers arrived at the scene in a police van ( id. at 37-38, 42-43).
Plaintiff testified at his deposition that prior to the arrival of the police, Joseph Stokley had threatened to kill him, and that similar threats were repeated in the presence of the police ( id. at 39, 43). After plaintiff and his sister attempted to explain to the police the chronology of events which had preceded their arrival, one of the police officers allegedly stated that they (the police) were not required "to do nothing [sic]" ( id. at 43). Plaintiff further recalled that the police separated the parties by telling plaintiff and his friends to "stay here", while defendants were told to "move back, move down the street by the two buildings" ( id. at 45-46). Plaintiff also alleges that he (1) heard his sister warn the police officers that "something [was] going to happen", and (2) informed one of the officers that he was going "upstairs to get my clothes and get out of here" ( id. at 46). Plaintiff saw that all of the defendants with the exception of Gerald Stokley had moved away as instructed by the police, but that the latter remained and entered plaintiff's apartment building ( id. at 46). When he walked into the lobby, plaintiff claimed that he saw Gerald standing next to one of his prior companions, Marcella ( id. at 48-49). At this point, plaintiff allegedly pushed the elevator button, but while he was waiting for the elevator to arrive, he noticed that Gerald Stokley was proceeding towards him ( id. at 49). In response, plaintiff purportedly turned to run, but states that he has no recollection of anything that transpired between that moment and the time that he awoke in the hospital ( id. at 52, 57).
Police Officer Vito Plaia testified at his deposition that in response to a "1050" (police radio code for "disorderly group"), he arrived at the vicinity of plaintiff's apartment building, where he saw a "large group on a corner of the street . . . about twenty-five to thirty-five people" (EBT of Vito Plaia, pp 14-15). Officer Plaia spoke with plaintiff's sister, who told him that she was punched in the face by defendant Gerald Stokley ( id. at 15). He also spoke with the purported assailant, who told the officer that he had been slapped by Ms. Saldana ( id. at 15). Officer Plaia then checked the latter's face, but observed no visible injuries ( id. at 15). Officer Plaia then testified that "for [his] safety, for [his] partner's safety and for the public's safety, [he] dispersed the crowd" ( id. at 16-17), which was successfully accomplished with the exception of a few stragglers. At this point, Officer Plaia went back to his patrol vehicle and made a radio call stating that the situation was "90 yellow" ( i.e., "no crime committed") ( id.).
Following the passage of a few minutes, plaintiff's sister ran up to Officer Plaia screaming that her brother had been assaulted ( id. at 19).In response, Officer Plaia and his partner ran into the apartment lobby, where they found plainiff "laying down in a pool of blood" ( id.). Officer Plaia then cleared the lobby and called for an ambulance ( id. at 21). According to Officer Plaia, he did not recall seeing anyone in the original crowd making threats prior to the assault, nor did he have the requisite cause to search or take any specific individual into custody at the scene ( id. at 22-26). The officer never thought that the situation would escalate as it did ( id. at 30).
It is familiar law that a municipal defendant is immune from liability for conduct involving the exercise of discretion and reasoned judgment, and that this veil of immunity extends to the actions of police officers engaged in law enforcement provided that the actions taken are not inconsistent with acceptable police practice ( see Arias v. City of New York , 22 AD3d 436 , 437 [2nd Dept 2005]). Stated differently, when official action involves the exercise of discretion or expert judgment in matters of policy that are not exclusively ministerial, a municipal defendant is not generally answerable in damages for any injurious consequences of that action. In this regard, it is well established that the provision of security against physical attacks by third persons is a governmental function involving policymaking that must take into account, inter alia, the nature of the risk presented, and that no liability will arise from the exercise of such function absent a special duty of protection ( see Pope v. State of New York , 19 AD3d 573 [2nd Dept 2005]).
Here, the City has demonstrated, prima facie, that Officer Plaia's decision regarding the level of security to be provided was based upon the exercise of his reasoned judgment, and that both it and he are exempt from liability under the governmental immunity doctrine ( see Pope v. State of New York, 19 AD3d at 573). In opposition, plaintiff has failed to raise a triable issue of fact.
The decision of whether to stop and apprehend an individual acting in a suspicious manner, or to place said individual under observation for any particular period of time, is clearly a discretionary decision which a police officer must make at the point of contact, and cannot fairly be subjected to second-guessing on the grounds of, e.g., negligence ( see Rodriguez v. City of New York, 189 AD2d 166, 177 [1st Dept 1993]). The decision of whether or when to make an arrest involves an on-the-spot exercise of professional judgment on the part of the police, and even though it may appear in retrospect to have been ill-advised, that instantaneous exercise of discretionary, expert judgment inevitably involves matters of policy for which both the actor and his or her employer remain immune ( id. at 177-178). In any event, "[i]t is not for the courts to say how best to handle [civil disturbances]" ( Betancur v. City of New York , 11 AD3d 266 , 268 [1st Dept 2004], lv denied 4 NY3d 707). Neither was the duty imposed by law upon the Police Department "to arrest criminals. . . disperse unlawful assemblages. . . and protect victims of crimes enacted for the special benefit of. . . [any particular person] or [those] members of the general public who may become [the] victims of crimes" ( id. at 268; see Lauer v. City of New York, 95 NY2d 95).
The rationale for this principle is easily stated, i.e., that the duty to provide protection is owed to the public at large, rather than to any particular individual ( see Davis v. New York City Tr Auth , 63 AD3d 990 [2nd Dept 2009]; Conde v. City of New York , 24 AD3d 595 [2nd Dept 2005]). Therefore, the government is held to be immune from torts arising out of the performance of its police officers, even if otherwise negligent, unless the plaintiff can show the presence of a "special relationship" or a "special duty" ( see Taebi v. Suffolk County Police Dept , 31 AD3d 531 [2nd Dept 2006]; Conde v. City of New York, 24 AD3d at 596; Basher v. City of New York, 268 AD2d 546 [2nd Dept 2000]). The elements required to establish such a relationship are well established, and include (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) the injured party's justifiable reliance upon the municipality's affirmative undertaking ( see Davis v. New York City Tr Auth, 63 AD3d at 991; Taebi v. Suffolk County Police Dept, 31 AD3d at 532; Conde v. City of New York, 24 AD3d at 596; Basher v. City of New York, 268 AD2d at 547). These long standing principles are based on the realistic notion that the City has limited resources and cannot be expected to assert its presence in all places at one time, as well as the fact that the duty to provide police protection ordinarily is owed to the public at large and not to any specific class or person ( see Rodriguez v. City of New York, 189 AD2d at 172).
In this case, plaintiff at bar has failed to submit evidence sufficient to raise a triable issue of fact as to the existence of any special relationship between himself and the police officers who responded to his sister's 911 call. Thus, there is no proof that the officers to whom plaintiff spoke assumed an affirmative duty to furnish him with protection ( see Taebi v. Suffolk County Police Dept, 31 AD3d at 532), nor is there any evidence of plaintiff's justifiable reliance on or expectation of any such intervention on his behalf ( see Davis v. New York City Tr Auth, 63 AD3d at 990; Conde v. City of New York, 24 AD3d at 597; Valdez v. City of New York, ___ AD3d ___, 2010 NY Slip Op 3495 [1st Dept]). In fact, any such claim is untenable in view of plaintiff's deposition testimony to the effect that he was told by one of the officers that they were not required to take any official action at the scene of disturbance (EBT of Pablo Saldana Jr at p 43). Accordingly, he could not reasonably rely upon the presence of continuing police protection ( see Basher v. City of New York, 268 AD2d at 547; accord Valdez v. City of New York, 2010 NY Slip Op 3495 at 5-6; Badillo v. City of New York , 35 AD3d 307 , 308 [1st Dept 2006]).
Finally, plaintiff does not oppose the City's arguments concerning the dismissal of those causes of action predicated on (a) 42 USC 1983, (b) negligent hiring and retention, or (c)punitive damages.
Accordingly, it is
ORDERED that the motion for summary judgment by defendants the City of New York, the New York City Police Department and "John" and "Jane" Does, Police Officers Whose Names Are Not Yet Known or Identified is granted; and it is further
ORDERED that the complaint and any cross claims against these defendants are hereby severed and dismissed; and it is further
ORDERED that the Clerk enter judgment and mark his records accordingly.