Cockburn v. City of N.Y.

• Decision Date: 17 June 2015
• Docket Number: 2014-00250
• Citation: 2015 N.Y. Slip Op. 05146,10 N.Y.S.3d 630,129 A.D.3d 895
• Parties: Dwayne COCKBURN, etc., et al., respondents, v. CITY OF NEW YORK, et al., appellants.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 895

10 N.Y.S.3d 630

2015 N.Y. Slip Op. 05146

Dwayne COCKBURN, etc., et al., respondents

v.CITY OF NEW YORK, et al., appellants.

2014-00250

Supreme Court, Appellate Division, Second Department, New York.

June 17, 2015.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Ronald E. Sternberg of counsel), for appellants.

Dalli & Marino, LLP (John Dalli and Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Brian J. Isaac ], of counsel), for respondents.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.

Opinion

In an action, inter alia, to recover damages for wrongful death, etc., the defendants appeal from an order of the Supreme Court, Kings County (Landicino, J.), dated July 5, 2013, which denied their motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint is granted.

On December 27, 2010, at approximately 7:00 a.m., Jason Cockburn made a telephone call to the 911 emergency number requesting an ambulance shortly after finding his mother Lillie R. Cockburn (hereinafter the decedent) lying on the bathroom floor and assisting her to bed. The 911 operator told him that the call would be sent out, and forwarded it to an emergency medical service (hereinafter EMS) operator. The EMS operator told Jason to monitor the decedent's condition and call back if her condition changed. At about 2 p.m., Jason drove the decedent to the hospital, where she died a short time later, at approximately 3 p.m. It is undisputed that a recent snowstorm had blanketed the area, blocking streets on the date of the 911 call.

Thereafter, the decedent's son, Dwayne Cockburn, individually and as executor of the decedent's estate, and Jason Cockburn (hereinafter together the plaintiffs), commenced this action, inter alia, to recover damages for wrongful death and loss of services against the defendants City of New York and several of its departments (hereinafter collectively the defendants). The plaintiffs alleged that the defendants were negligent in responding to the 911 call and in failing to prepare for, and respond to, the snowstorm.

The defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(7). The Supreme Court denied the motion.

As a general rule, “a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection, fire protection or ambulance services” (Etienne v. New York City Police Dept., 37 A.D.3d 647, 649, 830 N.Y.S.2d 349 ). When a negligence cause of action is asserted against a municipality, and the municipality's conduct is proprietary in nature, the municipality is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties (see Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 446–447, 933 N.Y.S.2d 164, 957 N.E.2d 733 ). If it is determined that a municipality was exercising a governmental function, the municipality may not be held liable unless it owed a special duty to the injured party (see Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; Valdez v. City of New York, 18 N.Y.3d 69, 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 ; Kupferstein v. City of New York, 101 A.D.3d 952, 953, 957 N.Y.S.2d 200 ). “A ‘special duty’ is ‘a duty to exercise reasonable care toward the plaintiff,’ and is ‘born of a special relationship between the plaintiff and the governmental entity’ ” (Flagstar Bank, FSB v. State of New York, 114 A.D.3d 138, 143, 978 N.Y.S.2d 266, quoting Pelaez v. Seide, 2 N.Y.3d 186, 189, 198–199, 778 N.Y.S.2d 111, 810 N.E.2d 393 ). Insofar as relevant here, to establish a special relationship against a municipality which was exercising a governmental function, a plaintiff must show: “(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, 513 N.Y.S.2d 372, 505 N.E.2d 937 ; see Valdez v. City of New York, 18 N.Y.3d at 80, 936 N.Y.S.2d 587, 960 N.E.2d 356 ).

Here, the Supreme Court erred in denying that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging that the defendants were negligent in responding to the 911 call. On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction (see CPLR 3026 ). The facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Thomas v. LaSalle Bank N.A.,

79 A.D.3d 1015, 1017, 913 N.Y.S.2d 742 ).

A municipal emergency response system is a classic governmental, rather than proprietary, function (see Applewhite v. Accuhealth, Inc.,

21 N.Y.3d at 430, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; see also Valdez v. City of New York, 18 N.Y.3d at 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 ). Contrary to the plaintiffs' contentions, the complaint fails to allege any facts tending to show knowledge by the defendants that inaction would lead to harm, or that there was any justifiable reliance on any promise made by the defendants. Accordingly, the complaint fails to state facts from which it could be found that there was a special relationship between the decedent and the defendants and, therefore, the complaint does not state a...