Maldovan v. Cnty. of Erie

• Decision Date: 13 November 2020
• Docket Number: CA 19–01338,584
• Citation: 188 A.D.3d 1597,134 N.Y.S.3d 594
• Parties: William D. MALDOVAN, Public Administrator, as Administrator of the Estate of Laura Cummings, Deceased, Plaintiff-Respondent, v. COUNTY OF ERIE and Timothy B. Howard, Erie County Sheriff, Defendants-Appellants. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1597
134 N.Y.S.3d 594

William D. MALDOVAN, Public Administrator, as Administrator of the Estate of Laura Cummings, Deceased, Plaintiff-Respondent,
v.
COUNTY OF ERIE and Timothy B. Howard, Erie County Sheriff, Defendants-Appellants. (Appeal No. 1.)

584
CA 19–01338

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

Entered: November 13, 2020

WALSH, ROBERTS & GRACE, BUFFALO (ROBERT P. GOODWIN OF COUNSEL), AND MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, FOR DEFENDANTS-APPELLANTS.

CONNORS LLP, BUFFALO (JOHN T. LOSS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, NEMOYER, CURRAN, AND WINSLOW, JJ.

134 N.Y.S.3d 596

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the complaints are dismissed.

Memorandum: Plaintiff commenced actions, later consolidated, against defendants, County of Erie (County) and Timothy B. Howard, Erie County Sheriff (Sheriff), seeking, inter alia, to recover damages for the pain and suffering of plaintiff's decedent, and for her wrongful death, after she was killed by her mother, Eva Cummings. An investigation after decedent's death revealed that she had suffered from physical and sexual abuse by her half-brother, Luke Wright, and her mother in the months leading up to her death in January 2010. Both the mother and Wright were convicted of their crimes and sentenced to lengthy prison terms. As outlined in our prior appeal upon defendants' motions to dismiss the complaints ( Mosey v. County of Erie , 117 A.D.3d 1381, 1382-1383, 984 N.Y.S.2d 706 [4th Dept. 2014] ), plaintiff asserted various negligence claims against the County based, among other things, on the investigations by child protective services (CPS) and adult protective services (APS) of complaints of possible abuse of decedent in her home in June 2009 and September 2009. Plaintiff asserted that the Sheriff was liable for, inter alia, negligently hiring, training, supervising, and retaining two deputies who found decedent in November 2009 after she ran away from her home and returned her to her home.

In appeal No. 1, defendants appeal from an order denying their motion for summary judgment dismissing the complaints and, in appeal No. 2, plaintiff appeals from an order denying his motion for summary judgment on the issue of liability.

We address first the County's contentions in appeal No. 1. We agree with the County that it is entitled to summary judgment dismissing the complaints against it on the ground that no special duty exists as a matter of law. When a negligence claim is asserted against a municipality, the court must first determine whether the municipality was engaged in a proprietary function or acted in a governmental capacity (see Applewhite v. Accuhealth, Inc. , 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ; Preaster v. City of Syracuse , 160 A.D.3d 1423, 1423, 75 N.Y.S.3d 727 [4th Dept. 2018], lv denied 32 N.Y.3d 902, 2018 WL 4259039 [2018] ). Here, there is no dispute that the County, through the actions of CPS and APS, was acting in a governmental capacity (see Applewhite , 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 ). When a municipality acts in a governmental capacity, it is subject to tort liability only if it owed a special duty to the injured party (see id. at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 ). Plaintiff asserts that a special relationship was formed based on the County's voluntary assumption of a duty to keep decedent safe, a duty on which decedent and others justifiably relied (see generally

134 N.Y.S.3d 597

Coleson v. City of New York , 24 N.Y.3d 476, 481, 999 N.Y.S.2d 810, 24 N.E.3d 1074 [2014] ; Applewhite , 21 N.Y.3d at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; Pelaez v. Seide , 2 N.Y.3d 186, 199-200, 778 N.Y.S.2d 111, 810 N.E.2d 393 [2004] ). To establish that special relationship, 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 [1987] ; see Applewhite , 21 N.Y.3d at 430-431, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; Valdez v. City of New York , 18 N.Y.3d 69, 80, 936 N.Y.S.2d 587, ...