Harris by Harris v. City of New York

• Citation: 147 A.D.2d 186,542 N.Y.S.2d 550
• Parties: Laverne HARRIS, an infant by her father and natural guardian, Calvin HARRIS, and Calvin Harris, individually, Plaintiffs-Appellants, v. The CITY OF NEW YORK Defendant-Respondent, and Melbrooke Contracting Corp., Defendant.
• Decision Date: 13 June 1989
• Court: New York Supreme Court Appellate Division

Page 550

542 N.Y.S.2d 550

147 A.D.2d 186

Laverne HARRIS, an infant by her father and natural guardian, Calvin HARRIS, and Calvin Harris individually, Plaintiffs-Appellants, v. The CITY OF NEW YORK Defendant-Respondent and Melbrooke Contracting Corp., Defendant.

Supreme Court, Appellate Division First Department.

June 13, 1989.

Philip M. Damashek, P.C. and Sally Weinraub, P.C., New York City, for plaintiffs-appellants.

Alfred Weinstein, of counsel (Leonard Koerner and Leslie Skolnick with him on the brief; Peter L. Zimroth, Corp. Counsel, New York City, atty.) for defendant-respondent.

Before KUPFERMAN, J.P., and ASCH, WALLACH, SMITH and RUBIN, JJ.

RUBIN, Justice.

The facts of this case are stated in the examination before trial of plaintiff Calvin Harris, the father of plaintiff Laverne Harris. On December 29, 1981, Calvin Harris was assaulted and shot in the hand by one Maurice Abisdid. Mr. Abisdid was apparently convinced that Mr. Harris possessed information concerning the whereabouts of Abisdid's son and son's mother, Gwen Nix, Harris's wife's niece. When informed by Mr. Harris that he did not know where Nix and her son might be living, Abisdid pulled a large black gun, put the barrel in Harris's back and threatened that "if I didn't tell him where Gwen and his son was that he was going to kill me and come back for my family." When Harris ran away, Abisdid fired two shots, the second of which struck Harris in the left hand. Harris then flagged down a passing taxi cab and went to Bronx-Lebanon Hospital where he was admitted and remained for "several weeks" according to his affidavit sworn to on June 15, 1987.

During the time he was hospitalized, Calvin Harris maintains that, on "several occasions," he was visited by detectives, specifically one Detective Nealon. During his hospitalization, Harris and his wife provided the police with the name, physical description and photograph of his assailant. Two or three days after his release from the hospital, Harris went to the 44th Precinct, where he again spoke with Detective Nealon and also with Detectives Walsh and Pagano. He told them that he feared for his life and his family and asked for protection, a request which he had also made during his stay in the hospital. According to Harris's deposition, "They told me not to worry because they would take care of the matter. They would apprehend the boy, and they would have someone watching my house." Harris alleges that he made several such visits and numerous telephone calls to the precinct house subsequent to his discharge from Bronx-Lebanon Hospital and was repeatedly reassured that his home would be watched and the suspect apprehended.

On February 6, 1982, Maurice Abisdid shot Laverne Harris in the face as she walked into the Harris's apartment after Calvin Harris opened the door for her. The bullet struck Laverne Harris in the face, and she suffered the loss of her right eye. Approximately two more shots were fired as Calvin Harris struggled to close the apartment door against Abisdid and an unidentified accomplice. Six days later, according to Harris's deposition, Maurice Abisdid was arrested for the two shootings and subsequently convicted of the crimes.

The IAS court denied a motion by plaintiffs to restore the case to the calendar and granted summary judgment on a cross motion by the City seeking summary judgment (CPLR 3212) or, alternatively, dismissal of the complaint on the ground that it fails to state a cause of action (CPLR 3211(a)(7)). The City contended that plaintiffs have failed to establish a "special relationship" between themselves and the municipality which is prerequisite to recovery. In granting the cross motion, the IAS court held that the testimony of Calvin Harris, taken at his examination before trial, constitutes no more than "mere allegations" as to the existence of such a relationship and is therefore legally insufficient to defeat the City's motion for summary judgment.

The test on a motion for summary judgment is whether the pleadings raise a triable issue of fact (Hartford Acc. & Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 350 N.Y.S.2d 895, 305 N.E.2d 907; Di Sabato v. Soffes, 9 A.D.2d 297, 193 N.Y.S.2d 184). In this regard, the credibility of the parties is not generally a proper consideration for the court (S.J. Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776), and statements made in oposition to the motion must be initially accepted as true (Patrolmen's Benevolent Assn. v. City of New York, 27 N.Y.2d 410, 415, 318 N.Y.S.2d 477, 267 N.E.2d 259; Cohn v. Lionel Corp., 21 N.Y.2d 559, 289 N.Y.S.2d 404, 236 N.E.2d 634). Issues of fact raised by testimony given during examinations before trial will operate to preclude the granting of summary judgment (Stillman v. Ford, 22 N.Y.2d 48, 54, 290 N.Y.S.2d 893, 238 N.E.2d 304; Cohoes Rod & Gun Club, Inc. v. Firemen's Ins. Co. of Newark, 134 A.D.2d 782, 521 N.Y.S.2d 836; Unger v. 351 Broadway Rest. Corp., 54 A.D.2d 695, 387 N.Y.S.2d 287; Durant v. Grange Silo Co., 12 A.D.2d 694, 207 N.Y.S.2d 691).

It was error for the lower court to characterize Calvin Harris's deposition testimony as "mere allegations." Rather, it must be regarded as indicative of the evidence to be adduced at trial from a competent witness. It is significant that, in support of its cross motion, the City refrained from submitting an affidavit by anyone with personal knowledge of the facts (CPLR 3212(b)) or an acceptable substitute for an affidavit, such as deposition testimony (Olan v. Farrell Lines, 64 N.Y.2d 1092, 489 N.Y.S.2d 884, 479 N.E.2d 229). The City's pleadings contain only counsel's bald conclusory assertion that the facts do not support the imposition of a special duty upon the City to protect Laverne Harris, a statement which can be accorded no probative value (Hasbrouck v. City of Gloversville, 102 A.D.2d 905, 477 N.Y.S.2d 486, affd. 63 N.Y.2d 916, 483 N.Y.S.2d 214, 472 N.E.2d 1042; Farragut Gardens No. 5 v. Milrot, 23 A.D.2d 889, 260 N.Y.S.2d 597) unless supported by documentary evidence (Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718). It is clear, therefore, that the City, in order to prevail, must demonstrate that the complaint is insufficient as a matter of law. Upon such an application, the function of the court is even more limited than on a motion for summary judgment generally, the operative criterion being that "a complaint should not be dismissed on a pleading motion so long as, when the plaintiff is given the benefit of every possible favorable inference, a cause of action exists" (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970; Arrington v. New York Times Co., 55 N.Y.2d 433, 442, 449 N.Y.S.2d 941, 434 N.E.2d 1319).

Turning to the merits of the case, the City first contends that any assurances of police protection upon which plaintiffs may have relied have not been shown to have been authorized by the City. In view of the imposition of liability based upon assurances of police protection given by a telephone operator (De Long v. County of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d 611, 457 N.E.2d 717), it cannot be said that, as a matter of law, plaintiffs' reliance upon assurances allegedly given by detectives in charge of the investigation was unjustified. Moreover, it is patently unreasonable to require a citizen to make inquiry into the precinct chain of command to determine the authority of an individual detective to make provision for the protection of the citizen and his family.

As an additional consideration, the leading case in this area of tort law holds that where, as here, "persons actually have aided in the apprehension or prosecution of enemies of society under the criminal law, a reciprocal duty arises on the part of society to use reasonable care for their police protection, at least where reasonably demanded or sought" (Schuster v. City of New York, 5 N.Y.2d 75, 81, 180 N.Y.S.2d 265, 154 N.E.2d 534). The furnishing of Abisdid's name, physical description and photograph to the police by the Harrises certainly aided in his apprehension. Therefore, even in the absence of any promise of protection, there is precedent (albeit by a sharply divided court) to indicate that the duty to provide police protection devolved upon the City by operation of law.

The City also argues that, under the circumstances, plaintiffs' reliance upon the detectives' alleged representations was unjustified. This contention is based entirely upon the Court of Appeals decision in Cuffy v. City of New York, 69 N.Y.2d 255, 513 N.Y.S.2d 372, 505 N.E.2d 937.

The Cuffy case indeed bears some factual similarity to the matter under review. The Cuffys were promised that their assailant "would be arrested or something else would be done 'first thing in the morning' " (69 N.Y.2d 255, 263, 513 N.Y.S.2d 372, 505 N.E.2d 937). In the instant case, the police are alleged to have promised, in Calvin Harris's words, "They would apprehend the boy, and they...