Libertella v. Maenza

• Decision Date: 24 August 1959
• Citation: 21 Misc.2d 317,191 N.Y.S.2d 191
• Parties: Joseph LIBERTELLA, as Administrator of the Estate of Grace Libertella, as Guardian ad Litem of Diane Libertella, an infant, and individually, and Helen Fiorelli as Administratrix of the Estate of Elaine Fiorelli and individually, Plaintiffs, v. Carmen MAENZA, Mary Maenza and the Town of Harrison, New York, Defendants.
• Court: New York Supreme Court

Page 191

191 N.Y.S.2d 191

21 Misc.2d 317

Joseph LIBERTELLA, as Administrator of the Estate of Grace Libertella, as Guardian ad Litem of Diane Libertella, an infant, and individually, and Helen Fiorelli as Administratrix of the Estate of Elaine Fiorelli and individually, Plaintiffs, v. Carmen MAENZA, Mary Maenza and the Town of Harrison, New York, Defendants.

Supreme Court, Westchester County.

Aug. 24, 1959.

Benjamin I. Taylor, Jr., Town Atty., Harrison (James J. McMahan, New York City, of counsel), for defendant, Town of Harrison, for the motion.

Kahn, Riley & Boeggeman, White Plains (John E. Boeggeman, White Plains, and Richard J. Rubin, White Plains, of counsel), for plaintiffs, in opposition.

ARTHUR D. BRENNAN, Justice.

This is a motion by the defendant, Town of Harrison, to dismiss the complaint for legal insufficiency.

While the complaint is inartistically drawn in some respects, this Court construes the causes of action as seeking to recover damages for personal injuries and deaths which occurred as the result of an accident on November 16, 1957, when an automobile operated by the male defendant left the highway and struck a tree. In so far as the town is concerned, this Court construes the complaint as alleging that a police officer of said town observed that the aforesaid automobile, when it stopped at a traffic light some distance from the scene of the accident, was occupied by 15 passengers (inclusive of the infant-plaintiff and the intestates of the other plaintiffs herein) and that he failed to apprehend the operator and prevent him from the further operation of said automobile in violation of the Vehicle and Traffic Law of this State. (Undoubtedly, the violation referred to related to Section 81(15) of the Vehicle and Traffic Law, in effect at the time of the alleged accident and prohibiting the operation of overloaded vehicles.) This Court further construes the complaint as alleging that such a number of persons obstructed the view of the operator and his control of the subject automobile.

It seems to this Court that the most that can be spelled out of these essential facts is an alleged failure on the part of the police officer of the town to furnish the infant-plaintiff and plaintiffs' intestates with requisite police protection. The town, as an instrumentality of the state, is under a duty to furnish police protection to its citizens and residents; and Section 89 of the Vehicle and Traffic Law (in force at the time of the alleged accident) did then provide that it shall be the duty of peace officers to strictly and impartially enforce, among others, the provisions of the aforesaid Section 81 of the Vehicle and Traffic Law. However, it has been held, repeatedly, that the duty to furnish police and fire protection goes to its citizens and residents as a whole and a duty running to the public generally does not inure to a member of the public individually, save only in such instance where the Legislature clearly so provides. Steitz v. City of Beacon, 295 N.Y. 51, 56, 64 N.E.2d 704, 706, 163 A.L.R. 342.

Since 1945, it is no longer necessary in determining the liability of a municipal corporation to consider whether the alleged negligent act relates to a governmental or proprietary function. The waiver of sovereign immunity by Section 8 (formerly Section 12-a) of the Court of Claims Act simply subjects the state and its subdivisions to the same liability as individuals or corporations. Where, as here, no claim is made that the affirmative action of the town's policeman inflicted injury upon any particular person or persons, but the claim is that the policeman omitted to take steps which were necessary to avoid injury to members of the public, such non-feasance constitutes a failure of police protection which is not a basis for civil liability to individuals. Steitz v. City of Beacon, supra; and Murrain v. Wilson Line, 270 App.Div. 372, 59 N.Y.S.2d 750, affirmed 296 N.Y. 845, 72 N.E.2d 29.

In Murrain v. Wilson Line, supra, and in numerous cases decided thereafter, emphasis was placed upon negligent acts of commission or misfeasance committed by agents of a municipality in the performance of a governmental function, for which a municipality was held...