Santaiti v. Town of Ramapo

• Decision Date: 20 June 2018
• Docket Number: Index No. 31509/16,2017–05259,2017–03742
• Citation: 162 A.D.3d 921,80 N.Y.S.3d 288
• Parties: Diana SANTAITI, etc., respondent, v. TOWN OF RAMAPO, etc., appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 921
80 N.Y.S.3d 288

Diana SANTAITI, etc., respondent,
v.
TOWN OF RAMAPO, etc., appellant, et al., defendants.

2017–03742
2017–05259
Index No. 31509/16

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

Argued—January 30, 2018
June 20, 2018

80 N.Y.S.3d 290

Sokoloff Stern LLP, Carle Place, N.Y. (Steven C. Stern and David A. Gold of counsel), for appellant.

Levine & Gilbert, New York, N.Y. (Harvey A. Levine of counsel), for respondent.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries and wrongful death, the

80 N.Y.S.3d 291

defendant Town of Ramapo appeals from (1) an order of the Supreme Court, Westchester County (Linda Christopher, J.), dated February 24, 2017, and (2) an amended order of the Supreme Court, Rockland County (Linda Christopher, J.), dated May 4, 2017. The amended order, insofar as appealed from, denied that branch of the motion of the defendant Town of Ramapo, made jointly with the defendant Town of Ramapo Police Department, which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it.

ORDERED that the appeal from the order dated February 24, 2017, is dismissed, as that order was superseded by the amended order dated May 4, 2017; and it is further,

ORDERED that the amended order dated May 4, 2017, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

This action was commenced by the plaintiff in her capacity as the administrator of the estate of her mother, Patricia A. Nigro, who was shot and killed by her husband, William T. Groesbeck.

The complaint alleged that Nigro and Groesbeck lived together at a residence in Sloatsburg, New York, which was within the jurisdiction of the defendant Town of Ramapo Police Department (hereinafter the Town police department). The complaint also alleged that Groesbeck was a former police officer who had worked for the Ramsey, New Jersey Police Department. The complaint alleged that although Groesbeck possessed a "carry weapon" while residing at the Sloatsburg residence, he did not possess a license to carry or possess the weapon in the State of New York.

The complaint alleged that, on an unspecified date in 2015, Nigro contacted the Town police department after Groesbeck physically assaulted her. The complaint alleged that members of the Town police department responded to the couple's Sloatsburg residence, where Nigro told them that Groesbeck had assaulted her and that she feared for her life. Nigro allegedly notified the responding police officers that Groesbeck possessed a handgun. The complaint alleged that the officers confiscated Groesbeck's handgun but did not arrest him.

The complaint alleged that the Town police department later learned that Groesbeck had been a police officer in New Jersey and that it "illegally and irresponsibly returned" the handgun to Groesbeck "even though he could not produce and in fact did not have a license" to possess the handgun in the State of New York.

The complaint alleged that on October 21, 2015, Groesbeck viciously beat Nigro, causing skull fractures and other internal injuries. Groesbeck then shot and killed Nigro with the same handgun that had been returned to him by the Town police department. After murdering Nigro, Groesbeck took his own life.

The plaintiff sought to recover damages against, among others, the Town of Ramapo for personal injuries and wrongful death. The complaint alleged that the Town, by virtue of the actions of the Town police department, was negligent in returning the handgun to Groesbeck. The complaint alleged that the Town police department did not have the legal authority to return the handgun to Groesbeck since he was not licensed to possess it in the State of New York. The complaint further alleged that Nigro had relied upon the fact that the Town police department would comply with existing law.

80 N.Y.S.3d 292

The Town moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, submitting evidence in support of its motion. The Town argued that it did not owe Nigro a duty of care since there was no special relationship between her and the Town police department. The Town further contended that Groesbeck's criminal acts were a superseding cause of Nigro's death. Finally, the Town argued that the doctrine of governmental immunity shielded it from liability for the discretionary actions alleged in the complaint. In an amended order dated May 4, 2017, the Supreme Court denied that branch of the Town's motion. The Town appeals.

"When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose" ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; see Tara N.P. v. Western Suffolk Bd. of Co-op. Educ. Servs., 28 N.Y.3d 709, 713, 49 N.Y.S.3d 362, 71 N.E.3d 950 ). "A government entity performs a purely proprietary role when its activities essentially substitute for or supplement traditionally private enterprises" ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [internal quotation marks omitted] ). "In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers" ( id. [internal quotation marks omitted] ). "Police and fire protection are examples of long-recognized, quintessential governmental functions" ( id. ; see Valdez v. City of New York, 18 N.Y.3d 69, 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 ). Here, given the allegations of negligence contained in the complaint, we conclude that the Town was engaged in a governmental function at the time that the causes of action arose (see Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; Valdez v. City of New York, 18 N.Y.3d at 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 ).

Once it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a duty to the injured party (see Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 ). In order to sustain liability against a municipality engaged in a governmental function, "the duty breached must be more than that owed the public generally" ( Lauer v. City of New York, 95 N.Y.2d 95, 100, 711 N.Y.S.2d 112, 733 N.E.2d 184 ; see Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; Valdez v. City of New York, 18 N.Y.3d at 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 ). Indeed, "although a municipality owes a general duty to the public at large ... this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created" ( Valdez v. City of New York, 18 N.Y.3d at 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 ; see Coleson v. City of New York, 24 N.Y.3d 476, 481, 999 N.Y.S.2d 810, 24 N.E.3d 1074 ; Pelaez v. Seide, 2 N.Y.3d 186, 198, 778 N.Y.S.2d 111, 810 N.E.2d 393 ). A "special duty" is "a duty [that] is born of a special relationship between the plaintiff and the governmental entity" ( Pelaez v. Seide, 2 N.Y.3d at 198–199, 778 N.Y.S.2d 111, 810 N.E.2d 393 ; see Cockburn v. City of New York, 129 A.D.3d 895, 896, 10 N.Y.S.3d 630 ).

As relevant here, a special relationship may be formed when the following

80 N.Y.S.3d 293

elements are present: "(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 ).

Since the existence of a duty is an essential element of a negligence cause of action, a plaintiff bears the ultimate burden of pleading and proving the existence of a special duty (see Tara N.P. v. Western Suffolk Bd. of Co-op. Educ. Servs., 28 N.Y.3d at 714, 49 N.Y.S.3d 362, 71 N.E.3d 950 ; Lauer v. City of New York, 95 N.Y.2d at 100–101, 711 N.Y.S.2d 112, 733 N.E.2d 184 ). "Whether a special relationship exists is generally a question for the jury" ( Coleson v. City of New York, 24 N.Y.3d at 483, 999 N.Y.S.2d 810, 24 N.E.3d 1074 ; see De Long v. County of Erie, 60 N.Y.2d 296, 306, 469 N.Y.S.2d 611, 457 N.E.2d 717 ).

On appeal, the Town contends that the Supreme Court erred in denying that branch of its motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it. The Town argues that it did not owe a special duty to Nigro.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint...