Opinion
001664/06.
Decided December 2, 2010.
Philip Rizzuto, P.C., Kristen Reed, Esq., Carle Place, NY, Attorneys for the Plaintiffs.
Rivkin Radler, George K. DeHaven, Esq., Uniondale, NY, Attorneys for the Defendant.
Papers Submitted: Notice of Motion ............ x Affirmation in Opposition ... x Reply Affirmation ........... x
Upon the foregoing papers, the motion by the Defendant for an order pursuant to CPLR § 3212, granting it summary judgment is decided as hereinafter provided.
This is an action brought by the Plaintiffs to recover damages for personal injuries allegedly sustained by the Plaintiff, WILLIAM SALONE ("SALONE"), as a result of the Defendant's alleged negligence in failing to provide adequate security and failing to enforce rules regarding non-residents at Shell Creek Park in Island Park, Town of Hempstead. Specifically, the Plaintiff, SALONE, claims in his complaint that on May 15, 2005, he was assaulted by three (3) non-resident teenage boys during a basketball game at Shell Creek Park. The Plaintiff alleges that he was a lawful patron of Shell Creek Park on that date as he was a lawful resident of the Town of Hempstead. He claims in his complaint that at approximately 4:45 p.m. on May 15, 2005, due to the Defendant's failure to keep the public park in reasonably safe condition, he was caused to sustain physical injuries. The crux of the Plaintiff's complaint is that the Defendant failed to provide adequate security, failed to prevent the incident from occurring and failed to enforce a Town regulation limiting access to the park to Town residents.
The Defendant, in support of its motion for summary judgment, contends that police protection and crime prevention are classic examples of a governmental function undertaken for the protection and safety of the public pursuant to general policing powers. The Defendant argues that, in order for liability to be imposed upon a municipality for failing to adequately perform a governmental function, there must be proof of a "special relationship" between the plaintiff and the municipality. The Defendant contends that the Plaintiffs cannot satisfy the elements required to establish a "special relationship" and, therefore, no such relationship exists in the instant case. As evidence that no special relationship existed between the Plaintiff, SALONE and the municipality, the Defendant cites to the Plaintiff, SALONE's Examination Before Trial, dated October 31, 2007, wherein he testified that he first spoke to park personnel only after the incident occurred. Since there was no affirmative duty to act on behalf of the Plaintiff and there was no knowledge on the part of the municipality that inaction could lead to harm, the Defendant contends that there can be no liability on the part of the municipality. As such, the Defendant requests that the Court grant the motion for summary judgment, dismissing the Plaintiff's complaint.
In opposition, the Plaintiffs argue that it has been repeatedly held that when a municipality operates a park, there is a duty which is owed to patrons to exercise reasonable and ordinary care against foreseeable dangers, which includes the furnishing of an adequate degree of general supervision. It is further contended by the Plaintiffs that, in its operation of a public park, a municipality has a duty to exercise reasonable care in maintaining its property in a reasonably safe condition. This includes a duty to maintain minimal security measures in the face of foreseeable criminal acts by third persons when a landowner knows or has reason to know from past experiences that there is a likelihood of conduct on the part of third persons which is likely to endanger the safety of a visitor. Based on the record, the Plaintiffs argue that the municipality knew or should have known that the conduct of third persons was likely to endanger the safety of lawful visitors of the park, and as such, a question of fact exists as to whether the municipality provided adequate supervision under these circumstances.
Issue finding, rather than issue determination, is the key to summary judgment. In re Cuttitto Family Trust, 10 AD3d 656 (2nd Dept. 2004); Greco v. Posillico, 290 AD2d 532 (2nd Dept. 2002); Gniewek v. Consolidated Edison Co., 271 AD2d 643 (2nd Dept. 2000); Judice v. DeAngelo, 272 AD2d 583 (2nd Dept. 2000). The court should refrain from making credibility determinations, ( see S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 NY2d 338 (1974); Surdo v. Albany Collision Supply Inc. , 8 AD3d 655 (2nd Dept. 2004); Greco v. Posillico, supra; Petri v. Half Off Cards, Inc., 284 AD2d 444 (2nd Dept. 2001), and the papers should be scrutinized carefully in the light most favorable to the party opposing the motion. Glover v. City of New York, 298 AD2d 428 (2nd Dept. 2002); Perez v. Exel Logistics, 278 AD2d 213 (2nd Dept. 2000).
Turning to the applicable law germane to the issues presented herein, it is well settled that "in the construction of facilities for use within a public park, and in the operation, maintenance and supervision of the park and of the facilities provided, a [municipality] does not exercise a governmental function and the duty devolves upon it to exercise ordinary care". Collentine v. City of New York, 279 NY 119 (1938).
The Defendant's argument that a "special relationship" must exist between the Plaintiff, SALONE and the municipality in order for liability to be imposed is misplaced. The function of operating, maintaining and supervising a park is not a governmental function and a "special relationship" is not a necessary prerequisite for the imposition of liability upon the municipality. The duty of a municipality, to those who are invited to avail themselves of such facilities, is more than that owed by a private landholder to a trespasser or licensee. Caldwell v. Village of Island Park, 304 NY 268 (1952). Several of the cases on which the Defendant relies are clearly distinguishable as they involve claims regarding the allocation of police resources and/or legislative-executive decision making (i.e., Balsam v. Delma Engineering, 90 NY2d 966 (1997) [municipality's police officers' failure to close a public roadway]; Kircher v. City of Jamestown, 74 NY2d 251 (1989) [police officer's negligent failure to render police assistance to the plaintiff]; Cuffy v. City of New York, 69 NY2d 255 (1987) [no special relationship between the police and the injured party where promise of protection made to injured party's father and not directly to injured party]; Eckert v. State of New York , 3 AD3d 470 (2nd Dept. 2004) [police officers' failure to replace extinguished road flares at the scene of an accident on a public roadway]). Notably, none of the cases to which the Defendant cited involves a public park for the use of residents where a duty is imposed upon the municipality to provide minimal security and keep the park in a reasonably safe condition.
Once it has been established that a duty exists, the Court must determine whether an issue of fact exists with regard to the municipality's notice, or lack thereof, of the likelihood of the conduct of third persons endangering the welfare and safety of lawful visitors of the park. Cooney v. Town of Oyster Bay, 251 AD2d 364 (2nd Dept. 1998). The Plaintiffs's counsel states that prior to the incident on May 15, 2005, Hempstead Town Councilman, Anthony Santino, at a Town meeting recognized that residents were complaining of non-residents' use of the park. Thereafter, due to the ongoing complaints by residents and continued violence at the park, the Town implemented a rule requiring sign up sheets at the basketball court which would require those individuals that wish to use the court to show proper identification of residency. Mr. Santino was also quoted in a newspaper article stating that he would look into increasing security at the park. See Herald Community Newspaper, Island Park, dated May 1, 2003, attached to the Plaintiffs' Affirmation in Opposition as Exhibit "B".
While the Court recognizes that newspaper articles are not admissible proof, Young v. Fleary, 226 AD2d 454, 455 (2nd Dept. 1996) (newspaper articles submitted on summary judgment motion constitute inadmissible hearsay), the Plaintiffs's counsel also cites to the sworn testimony of John Frances Zappolo, Park Supervisor, who acknowledged that proof of identification was required to use the park facilities. See Examination Before Trial of John Frances Zappolo, dated March 27, 2008, attached to the Plaintiffs' opposition as Exhibit "C", page 15. Additionally, the sworn testimony of Park Supervisor, Gregory Michael was submitted to show that park security was increased from two persons to three or four persons. See Examination Before Trial of Gregory Michael, dated August 17, 2007, attached to the Plaintiffs' opposition as Exhibit "D", pages 47-59. Mr. Michael testified that, at the time of the incident, there was only one employee on duty at the park.
The Plaintiffs also retained the services of security expert, Henry R. Murphy, a Certified Protection Professional, to support the proposition that the Defendant's failure to provide adequate security within Shell Creek Park caused the Plaintiff's injuries. Mr. Murphy states in his affidavit that he reviewed the following materials: the deposition transcripts of John Francis Zappola, Gregory Michael, William Salone and Ellen Salone; the two (2) Herald Newspaper articles dated Mary 6, 2003 and May 1, 2003; the Nassau County Police crime report No. 32SR — 205CR 0038172; a photograph of the incident location depicting the rules and regulations of using the facilities and; the Town of Hempstead occurrence notice. "[It] is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness". Hambsch v. NYCTA, 63 NY2d 723, 725, citing Cassano v. Hagstrom, 5 NY2d 643, 646, rearg. denied, 6 NY2d 882; DeTommaso v. M.J. Fitzgerald Construction Corp., 138 AD2d 341 (2nd Dept 1988); O'Shea v. Sarro, 106 AD2d 435 (2nd Dept 1984). Paragraph six of Mr. Murphy's affidavit is based upon his review of the Herald Newspaper articles. As previously stated, newspaper articles are inadmissible hearsay and any portion of Mr. Murphy's opinion that is based upon such inadmissible hearsay will not be considered by this Court.
However, paragraphs seven, eight and nine of Mr. Murphy's affidavit may be considered in determining whether an issue of fact exists regarding the presence of adequate security at the park and compliance with park rules and regulations on the date of the incident. Specifically, Mr. Murphy states that Park Supervisor, Gregory Michael testified that he began checking for proof of residency after the Town Hall meeting February 26, 2003. See Affidavit of Henry R. Murphy, dated June 29, 2010, attached to the Plaintiffs' Affirmation in Opposition as Exhibit "A". Park Supervisor Michael also testified that although park security was increased from two personnel to four personnel, the number was subsequently decreased to two personnel. Additionally, at the time of the Plaintiff's assault, there were no park personnel present as one was on a break and the other was performing administration duties at the administration building. Id. Mr. Murphy also states in his affidavit that the Park Departmental rules and regulations regarding identification of persons using the basketball court were not complied with. Id. Mr. Murphy concluded with a reasonable degree of certainty that the Defendant's failure to provide the promised additional security at the basketball court within Shell Creek Park was the cause of the Plaintiff's injuries on May 15, 2005. While Mr. Murphy's affidavit is in no way conclusive of the municipality's negligence, the affidavit, viewed in conjunction with deposition testimony in the record, is sufficient to raise an issue of fact.
In light of the foregoing, the Court finds that the Plaintiff presented sufficient proof to raise an issue of fact with regard to whether the Defendant breached its duty to maintain minimal security measures in the face of foreseeable criminal acts by third persons. The Defendant had reason to know from past experiences that there was a likelihood of conduct on the part of third persons which was likely to endanger the safety of visitors. The deposition testimony of Park Supervisors, Gregory Michael and John Frances Zappolo confirmed that additional park security was necessary after a Town Hall meeting was held and that a procedure of requiring identification from visitors would be implemented to ensure only residents of the Town of Hempstead would have use of the park, including the basketball court. The Plaintiff raised an issue of fact as to whether the minimal security was provided and whether the procedure for checking the identification of residents was followed. Compare Cooney v. Town of Oyster Bay, 251 AD2d 364 (2nd Dept. 1998) (complaint dismissed against the Town where plaintiff failed to raise a triable issue of fact that the Town was on notice of conduct on the part of third persons which was likely to endanger the safety of visitors to the park).
Accordingly, it is hereby
ORDERED, that the Defendant's motion for summary judgment, pursuant to CPLR § 3212, seeking an order dismissing the Plaintiffs' complaint, is DENIED.
This constitutes the decision and order of the Court.