Perlov v. Port Auth. of N.Y. & N.J.

• Decision Date: 30 December 2020
• Docket Number: 2018–06265,Index No. 501644/17
• Citation: 139 N.Y.S.3d 324,189 A.D.3d 1624
• Parties: Eugena PERLOV, etc., et al., appellants, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, respondent.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1624

139 N.Y.S.3d 324

Eugena PERLOV, etc., et al., appellants,

v.PORT AUTHORITY OF NEW YORK AND NEW JERSEY, respondent.

2018–06265

Index No. 501644/17

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

Argued—October 1, 2020

December 30, 2020

DECISION & ORDER

In an action to recover damages for wrongful death, the plaintiffs appeal from an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated April 19, 2018. The order granted the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action is denied.

Background

In January 2017, the wife of the decedent, Vladimir Perlov (hereinafter the decedent), individually and as administrator of the decedent's estate, and the decedent's daughter commenced this wrongful death action against the Port Authority of the State of New York and New Jersey (hereinafter the Port Authority), as owner and operator of the George Washington Bridge (hereinafter the bridge). The plaintiffs seek to recover damages arising out of the Port Authority's alleged negligence in failing to prevent the suicide of the decedent, who the plaintiffs alleged died after he jumped off the north walkway of the bridge into the Hudson River in January 2016. In their complaint, the plaintiffs alleged that the Port Authority, inter alia, negligently failed to maintain the bridge in a reasonably safe condition by failing to install suicide-prevention barriers along the pedestrian walkways of the bridge despite being aware of the "extraordinary number of suicides attempted at the location." Specifically, the plaintiffs alleged, among other things, that there is a suicide attempt at the bridge every 3½ days, and that 93 people have died from jumping off the bridge's pedestrian walkways in the 7 years leading up the to alleged suicide of the decedent. The Port Authority subsequently moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action, among other things, on the ground that the Port Authority was acting in a governmental capacity and the complaint failed to allege the existence of a special duty owed by the Port Authority to the decedent. In an order dated April 9, 2018 (hereinafter the April 2018 order), the Supreme Court granted the motion on the ground that the Port Authority did not have a duty to prevent the decedent's suicide. The plaintiffs appeal. We reverse.

Procedural Posture

"In determining a motion to dismiss a complaint for failure to state a cause of action (see CPLR 3211[a][7] ), the court must read the complaint liberally and assume that the plaintiffs' allegations are true" ( Heeran v. Long Is. Power Auth. [LIPA], 141 A.D.3d 561, 562, 36 N.Y.S.3d 165, affd sub nom. Connolly v. Long Is. Power Auth., 30 N.Y.3d 719, 70 N.Y.S.3d 909, 94 N.E.3d 471 ). "If the allegations, as supplemented by any affidavits, fit within any cognizable legal theory, the court must deny the motion to dismiss" ( id. at 562, 36 N.Y.S.3d 165 ). "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" ( Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38, 827 N.Y.S.2d 231 ). Here, no discovery has yet occurred nor has any evidence been presented. The plaintiffs allege in the complaint that the death of the decedent arose from the Port Authority's failure to maintain the bridge in a reasonably safe condition (see e.g. Turturro v. City of New York, 28 N.Y.3d 469, 479, 45 N.Y.S.3d 874, 68 N.E.3d 693 ) in its construction, operation, and maintenance of the bridge. Contrary to the contention of our colleagues in the dissent, assuming these allegations to be true for the purposes of this motion pursuant to CPLR 3211(a)(7), the allegations are sufficient to support a determination that the Port Authority was acting in its proprietary capacity and is subject to the same principles of tort law as a private landowner (see Miller v. State of New York, 62 N.Y.2d 506, 511, 478 N.Y.S.2d 829, 467 N.E.2d 493 ; Heeran v. Long Is. Power Auth. [LIPA], 141 A.D.3d at 563, 36 N.Y.S.3d 165 ).

Proprietary versus Governmental Role

As recognized by our colleagues in the dissent, the legislative declaration that the Port Authority is engaging in an essential government function by operating and maintaining the bridge (see McKinney's Uncons. Laws of N.Y. § 6515 ) "is not determinative with respect to the applicability of the government[ ] immunity doctrine to shield [it] from tort liability" ( Heeran v. Long Is. Power Auth. [LIPA], 141 A.D.3d at 566, 36 N.Y.S.3d 165 ).

"The varying nature of civic activities engaged in by the State may sometimes partake of both proprietary and governmental aspects" ( Sebastian v. State of New York, 93 N.Y.2d 790, 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 ). "For instance, the State may act in its proprietary capacity as a landlord by virtue of its ownership of and control over a public facility and at the same time act in its governmental capacity by providing police protection to maintain law and order at that facility" ( id. at 793–794, 698 N.Y.S.2d 601, 720 N.E.2d 878 ). "A governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions" ( Miller v. State of New York, 62 N.Y.2d at 511–512, 478 N.Y.S.2d 829, 467 N.E.2d 493 ; see e.g. Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 446, 933 N.Y.S.2d 164, 957 N.E.2d 733 ). "Because this dichotomy is easier to state than to apply in some factual scenarios, the determination categorizing the conduct of a municipality may present a close question for the courts to decide" ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 ). "For that reason, courts must examine the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred" ( Tara N.P. v. Western Suffolk Bd. of Coop. Educ. Servs., 28 N.Y.3d 709, 713, 49 N.Y.S.3d 362, 71 N.E.3d 950 [internal quotation marks omitted]).

Here, in evaluating whether the complaint alleges facts which, if true, are sufficient to show that the Port Authority was acting in a proprietary rather than governmental capacity, we are guided by this Court's analysis of what constitutes proprietary action versus governmental action in Turturro v. City of New York , 127 A.D.3d 732, 735, 5 N.Y.S.3d 306, affd 28 N.Y.3d at 478–479, 45 N.Y.S.3d 874, 68 N.E.3d 693. In Turturro, the plaintiffs, a mother and her son, a minor, who was seriously injured when he was struck by a speeding vehicle while he was riding his bicycle on a roadway in Brooklyn, alleged that the City of New York had the obligation to conduct a traffic study and implement traffic calming measures through roadway design changes to decrease the frequency of speeding on that road and that the City was aware of the frequent complaints of ongoing speeding on the roadway at issue (see id. at 735, 5 N.Y.S.3d 306 ). The plaintiffs alleged that the City's negligence in undertaking such measures was a proximate cause of the child's injuries (see id. at 738, 5 N.Y.S.3d 306 ). The Court of Appeals rejected the City's argument that the plaintiffs were claiming, in effect, that the City failed to prevent unlawful behavior by police enforcement (see Turturro v. City of New York, 28 N.Y.3d at 480–481, 45 N.Y.S.3d 874, 68 N.E.3d 693 ). This Court recognized that the plaintiffs did not allege that the City was negligent in failing to allocate adequate police resources to enforce speed limits on the roadway. Rather, we held, and the Court of Appeals affirmed, that the specific acts or omissions which the plaintiffs alleged caused the child's injuries arose from the City's failure to keep the roadway in a reasonably safe condition, which constituted a proprietary function within the field of roadway design and safety (see Turturro v. City of New York, 127 A.D.3d at 737–738, 5 N.Y.S.3d 306 ). Specifically, in Turturro, this Court determined, and the Court of Appeals agreed, that the alleged increased frequency of speeding cars on the roadway at issue could be found to be unreasonably dangerous and the City's alleged negligence in terms of failing to study the problem and implement a plan to mitigate it could be found to be the proximate cause of the plaintiff's injuries (see id. ), and that such alleged omissions by the City fell within its proprietary function subject to the ordinary rules of negligence (see id. at 735 ). Notably, the City did not dispute that maintaining roadways in a safe condition falls within the proprietary role of the City (see Turturro v. City of New York, 28 N.Y.3d at 480, 45 N.Y.S.3d 874, 68 N.E.3d 693 ).

"Historically, the maintenance of roads and highways was performed by both private entities and local governments, with each subject to the ordinary rules of negligence" ( Wittorf v. City of New York, 23 N.Y.3d 473, 479, 991 N.Y.S.2d 578, 15 N.E.3d 333 ). The Court of Appeals has held that highway planning, design, and maintenance "are proprietary functions, arising from a municipality's ‘proprietary duty to keep its roads and highways in a reasonably safe condition’ " ( Turturro v. City of New York, 28 N.Y.3d at 479, 45 N.Y.S.3d 874, 68 N.E.3d 693, quoting Wittorf v. City of New York, 23 N.Y.3d at 480, 991 N.Y.S.2d 578, 15 N.E.3d 333 ). Here, based on the Turturro analysis of what constitutes a proprietary role, the complaint alleges that the decedent's death arose from the dangerous condition of the bridge in its construction, operation, and maintenance,...