Bloom v. City of New York

• Decision Date: 07 June 1974
• Citation: 357 N.Y.S.2d 979,78 Misc.2d 1077
• Parties: Philip BLOOM et al., Plaintiffs, v. The CITY OF NEW YORK, Defendant.
• Court: New York Supreme Court

Page 979

357 N.Y.S.2d 979

78 Misc.2d 1077

Philip BLOOM et al., Plaintiffs, v. The CITY OF NEW YORK, Defendant.

Supreme Court, Individual Calendar, New York County, Part 14.

June 7, 1974.

Kelner, Stelljes & Glotzer, New York City (Gilbert S. Glotzer, New York City, of counsel), for plaintiffs.

Adrian P. Burke, Corp. Counsel, New York City (Jack Cherrill, New York City, and Elliot Mermelstein, Laurelton, of counsel), for defendant.

HAROLD BAER, Justice:

This is a motion for an order dismissing the complaint pursuant to CPLR 3211(a)(7) on the grounds that the complaint fails to state a cause of action.

This is an action brought on behalf of numerous store owners whose premises were vandalized and destroyed during the civil disturbances which occurred in the spring of 1968. The motion to dismiss is predicated on the settled proposition that absent statutory authority no action of common law lies against a municipality for property damage sustained by an individual by reason of mob violence or riots (Finkelstein v. City of New York, 182 Misc. 271, 47 N.Y.S.2d 156, affd. 269 App.Div. 662, 53 N.Y.S.2d 465, affd. 295 N.Y. 730, 65 N.E.2d 432; 146 West 117th Street v. City of New York, City Ct., 50 N.Y.S.2d 569; Mr. Paint Shop v. City of Rochester, 44 Misc.2d 684, 254 N.Y.S.2d 728; Mandel v. City of New York, Volume 166, #24, NYLJ August 4, 1971, p. 12, col. 7), and indeed this court has recently had occasion to pass on a similar case which resulted in a dismissal of the complaint (Gray v. City of New York and Holmes Electric Co., NJLJ March 22, 1974).

The plaintiffs in the instant case urge that this case is distinguishable from the above cited cases in that the liability in this case is based on the doctrine enunciated in Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534. The Schuster case stated that although as a general rule the City of New York, or any municipality, cannot be held liable for damages as a result of a failure to furnish police protection, it can be held liable where it assumes a duty to provide police protection but does so in a negligent manner.

If these allegations be proven, and for the purposes of this motion they must be conceded (Cohn v. Lionel Corp., 21 N.Y.2d 559, 289 N.Y.S.2d 404, 236 N.E.2d 634), then there is indeed a viable cause of action. Schuster, in effect, applied to a municipality the cardinal principle of tort law that one who voluntarily undertakes a duty, is responsible for negligence in the performance of such an assumed duty even though the duty did not exist before it was voluntarily assumed (W. Proesser, Law of Torts, 3rd Ed., p. 339; Marks v. Nambil Realty, 245 N.Y. 256, 157 N.E. 129; Frazer v. Bader, 263 App.Div. 838, 31 N.Y.S.2d 522; Schuster v. City of New York, supra).

In the instant case the plaintiffs allege that the city by its officials encouraged and permitted the looting and destruction of plaintiffs' property, prevented the plaintiffs from protecting their property and assured them that they would receive police protection. The complaint then alleges that the defendant stood by and permitted the looting and destruction to occur.

It is precisely on these points that this case is distinguishable from the cases relied upon by the defendant in that in the cases cited there was no duty and no affirmative action was taken to assume such a duty. In the case at bar it is alleged that the plaintiffs were ready, willing and able to protect their premises but that they were restrained by the police who assured them that proper police protection would be provided. There is therefore alleged an affirmative series...