Estate of Scheuer v. City of New York

• Decision Date: 05 August 2004
• Docket Number: 3517.,3516.,3518.
• Citation: 10 A.D.3d 272,2004 NY Slip Op 06305,780 N.Y.S.2d 597
• Parties: ESTATE OF CLARA SCHEUER, Deceased, et al., Respondents-Appellants v. CITY OF NEW YORK et al., Appellants-Respondents, and PARKCHESTER SOUTH CONDOMINIUMS, INC., et al., Respondents. ESTATE OF CLARA SCHEUER, Deceased, et al., Appellants-Respondents, v. CITY OF NEW YORK et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

10 A.D.3d 272

780 N.Y.S.2d 597

2004 NY Slip Op 06305

ESTATE OF CLARA SCHEUER, Deceased, et al., Respondents-Appellants v. CITY OF NEW YORK et al., Appellants-Respondents, and PARKCHESTER SOUTH CONDOMINIUMS, INC., et al., Respondents.

ESTATE OF CLARA SCHEUER, Deceased, et al., Appellants-Respondents, v. CITY OF NEW YORK et al., Respondents-Appellants.

3516.

3517.

3518.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided August 5, 2004.

Orders, Supreme Court, New York County (Marcy S. Friedman, J.), entered April 3, 2002 and February 27, 2003, which, in an action arising out of an allegedly negligent search for plaintiffs' decedent, partially granted motions for summary judgment by defendants City of New York and the New York City Police Department (collectively to be referred to as the NYPD), Parkchester Management Corp., Parkchester Apartment Corp. and Supervisory Management Corp. (collectively to be referred to as Management), and Parkchester South Condominiums (Condominiums), unanimously modified, on the law, to dismiss the action against the city defendants in its entirety, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.

Plaintiffs maintain that their 91-year-old decedent wandered from her apartment after her home health care aide left for the evening, and that it was not until almost three weeks later, after an unsuccessful search by the NYPD of the decedent's apartment complex, that the decedent was found by a Management employee in an unlocked, vacant apartment two floors directly below her apartment. An autopsy determined that a heart attack was the cause of death.

The motion court properly dismissed so much of the first, fourth and fifth causes of action that allege the NYPD's search of the vacant apartments was negligent, and that such negligence caused the decedent pain and suffering and, ultimately, her death, upon findings that the NYPD's missing person investigation was a discretionary, not ministerial, task (see Tango v Tulevech, 61 NY2d 34, 40-41 [1983]), and that the NYPD did not owe the decedent a special duty to search for her (see Cuffy v City of New York, 69 NY2d 255, 260 [1987]). Although the NYPD allegedly gave plaintiffs, the decedent's relatives, assurances that it had conducted a proper search, which included all vacant apartments, the assurances were never conveyed to the decedent and the relatives were not the decedent's agents (compare Sorichetti v City of New York, 65 NY2d 461 [1985]).

The motion court erred, however, in failing to dismiss plaintiffs' remaining claims against the NYPD for emotional distress arising from the purportedly negligent search for the decedent. In determining whether a special duty to plaintiffs exists, courts must be mindful "of the precedential, and consequential, future effects of their rulings, and `limit the legal consequences of wrongs to a controllable degree'" (Lauer v City of New York, 95 NY2d 95, 100 [2000], quoting Tobin v Grossman, 24 NY2d 609, 619 [1969]). In order to establish a special duty the requirement that plaintiffs show their justifiable reliance on the municipality's affirmative undertaking is consistent with the purpose of the special duty rule in that it places controllable limits on the scope of the municipality's duty and prevents the exception from overwhelming the general rule of governmental immunity (Kircher v City of...