Sauickie v. City of N.Y.

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: Ramos, D.J.
• Decision Date: 29 June 2018
• Docket Number: 17 Civ. 2662 (ER)
• Citation: Estate of Sauickie v. City of N.Y., 17 Civ. 2662 (ER) (S.D. N.Y. Jun 29, 2018)
• Parties: THE ESTATE OF THOMAS SAUICKIE, JR., by its administratrix ad prosequendum, TRACIE J. ORR, TRACIE J. ORR, individually, and CHLOE SAUICKIE, by her g/a/l, TRACIE J. ORR, Plaintiffs, v. CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, FIRE DEPARTMENT OF THE CITY OF NEW YORK, FIRE DEPARTMENT OF NEW YORK CITY EMERGENCY MEDICAL SERVICES, MOISES M. CLASE, CARIDAD A. CLASE, JOHN DOES (1-5), and ABC CORP. (1-5), Defendants.

THE ESTATE OF THOMAS SAUICKIE, JR.,by its administratrix ad prosequendum,TRACIE J. ORR, TRACIE J. ORR, individually, and CHLOE SAUICKIE,by her g/a/l, TRACIE J. ORR, Plaintiffs, v. CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT,FIRE DEPARTMENT OF THE CITY OF NEW YORK,FIRE DEPARTMENT OF NEW YORK CITY EMERGENCY MEDICAL SERVICES,MOISES M. CLASE, CARIDAD A. CLASE, JOHN DOES (1-5),and ABC CORP. (1-5), Defendants.

17 Civ. 2662 (ER)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

June 29, 2018

OPINION AND ORDER

Ramos, D.J.:

The Estate of Thomas Sauickie, Jr., Tracie J. Orr, individually and as administratrix ad prosequendum of the Estate, and Chloe Sauickie, by her guardian ad litem Tracie J. Orr (collectively, "Plaintiffs"), bring this diversity action against the City of New York, the New York City Police Department ("NYPD"), the Fire Department of the City of New York, the Fire Department of New York City Emergency Medical Services (collectively, the "City Defendants"), Moises M. Clase, and Caridad A. Clase (collectively, the "Clase Defendants"). Plaintiffs allege that the City Defendants were negligent in failing to respond to the scene of a motor vehicle accident involving Plaintiffs, which resulted in the death of Thomas Sauickie, Jr. The City Defendants have moved to dismiss the First Amended Complaint ("FAC") for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the City Defendants' motion to dismiss is GRANTED.

I. Factual and Procedural Background¹

On January 21, 2016, at approximately 5:00 p.m., Thomas Sauickie, Jr., his wife Tracie J. Orr, and their daughter Chloe Sauickie were traveling in their car on the FDR Drive near East 42nd Street in New York City when they were involved in an automobile accident with another car. FAC ¶¶ 5-6, 14-15, Doc. 45. Between 5:00 p.m. and 7:27 p.m., Plaintiffs placed multiple calls to the NYPD requesting immediate assistance "due to [Plaintiffs'] being stopped in a dangerous location." Id. ¶¶ 16, 28. In each call, Plaintiffs notified the NYPD of their location on the FDR Drive and that they needed assistance to "get out of harm's way due to the dangerous location they were in on the FDR Drive." Id. ¶ 31. The operator "advised and promised . . . on multiple occasions that NYPD would respond to the scene of the accident." Id. ¶ 17.

Plaintiffs waited for approximately two hours or longer, but the NYPD did not respond to the scene. Id. ¶ 19. Plaintiffs were "unable to continue to wait in the same location due to the danger they were in." Id. Thomas Sauickie then saw an NYPD officer stationed across the FDR Drive and crossed the FDR Drive to talk to him. Id. ¶ 20. The FAC alleges, upon information and belief, that Sauickie informed the officer of the accident, the NYPD's failure to respond, and Plaintiffs' location, and the officer agreed to "some form of assistance." Id. ¶¶ 20, 38. Sauickie then "was allowed" to cross the FDR Drive back to his vehicle. Id. ¶ 20. On his way back across the FDR Drive, Sauickie was struck by a car owned by Defendants Moises M. Clase and Caridad A. Clase at approximately 7:27 p.m. Id. ¶ 21. Tracie Orr and Chloe Sauickie "were in direct proximity to" and witnessed this accident. Id. ¶ 22. Sauickie died from his injuries the following day, January 22, 2016. Id. ¶ 23.

Plaintiffs filed their original Complaint on April 13, 2017. Doc. 2. Plaintiffs then filed the FAC on August 29, 2017, asserting the following claims against all Defendants: (1) negligence; (2) wrongful death, on behalf of the Estate of Thomas Sauickie, Jr.; (3) negligent infliction of emotional distress, on behalf of Tracie J. Orr and Chloe Sauickie; and (4) survival action for injuries on behalf of the Estate. FAC ¶¶ 24-61. The City Defendants moved to dismiss the FAC for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) on October 5, 2017. Doc. 50. Both Plaintiffs and the Clase Defendants oppose the City Defendants' motion to dismiss. See Pls.' Opp. Mem., Doc. 57; Clase Defs.' Opp. Mem., Doc. 56.

II. Legal Standard

A. Standard Under Rule 12(b)(6)

When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). The Court is not required to credit "mere conclusory statements" or "threadbare recitals of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Id. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). The plaintiff must allege sufficient facts to show "more than a sheer possibility that a defendant has acted unlawfully." Id. If the plaintiffhas not "nudged [his] claims . . . across the line from conceivable to plausible," the complaint must be dismissed. Id. at 680 (citing Twombly, 550 U.S. at 570).

B. Matters Outside the Pleadings

On a motion to dismiss pursuant to Rule 12(b)(6), the Court is generally only required to look at the allegations on the face of the complaint. Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). The Court may consider documents other than the complaint if the documents are "attached to the complaint or incorporated in it by reference" and "deemed part of the pleading." Id. If matters outside the pleadings are presented with a Rule 12(b)(6) motion, the Court has the option to either "'exclude the additional material and decide the motion on the complaint alone' or 'convert the motion to one for summary judgment under Fed. R. Civ. P. 56 and afford all parties the opportunity to present supporting material.'" Willing v. Suffolk Cty. Dep't. of Soc. Servs., 09 Civ. 5285 (ADS) (ETB), 2010 U.S. Dist. LEXIS 68908, at *4 (E.D.N.Y. July 8, 2010) (quoting Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000)).

Here, the City Defendants annexed to their Rule 12(b)(6) motion papers a transcript of Tracie J. Orr's testimony at a hearing held on June 29, 2016, pursuant to New York General Municipal Law § 50-h ("50-h testimony").² See Beck Decl. Ex. C, Doc. 51. The City Defendants relied on parts of the testimony as additional support for their motion to dismiss. See City Defs.' Mem. ¶ 4, Doc. 53; City Defs.' Reply Mem. ¶ 8, Doc. 58. However, courts in this circuit typically decline to consider 50-h testimony submitted by defendants when ruling on a Rule 12(b)(6) motion. See, e.g., Fontanez v. Skepple, 12 Civ. 1582 (ER), 2013 U.S. Dist. LEXIS31720, at *5-7 (S.D.N.Y. Mar. 6, 2013) (declining to consider the 50-h testimony proffered by the defendant when ruling on the defendant's Rule 12(b)(6) motion), aff'd, 563 F. App'x 847 (2d Cir. 2014); Aguilera v. County of Nassau, 425 F. Supp. 2d 320, 322-23 (E.D.N.Y. 2006) (declining to consider 50-h testimony on a Rule 12(b)(6) motion where the plaintiff did not "incorporate his 50-h testimony by reference in the complaint" or "attach[] the transcript to the complaint, in whole or in part"). Accordingly, the Court will not consider Orr's 50-h testimony in ruling on the City Defendants' Rule 12(b)(6) motion.

III. DISCUSSION

As a general rule, a municipality cannot be held liable for ordinary negligence as a result of its performance of a governmental function unless it owed a "special duty" to the injured party. Applewhite v. Accuhealth, Inc., 995 N.E.2d 131, 133 (N.Y. 2013). Police and fire protection has long been recognized as quintessential governmental functions. Id. at 134. In order to plead a prima facie case of ordinary negligence against the City Defendants in this case, Plaintiffs must allege sufficient factual matter for this Court to draw reasonable inferences that (1) the City Defendants established a special relationship with Plaintiffs, (2) the City Defendants breached their special duty, and (3) the City Defendants' breach of the special duty was the actual and proximate cause of the death of Sauickie. See Duguay v. City of New York, 861 F. Supp. 2d 236, 245 (S.D.N.Y. 2012) ("To establish a prima facie case of negligence under New York law, 'a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.'" (quoting Lerner v. Fleet Bank, N.A., 459 F.3d 273, 286 (2d Cir. 2006))).

A municipality establishes a special relationship with a plaintiff when there is "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act onbehalf 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, 505 N.E.2d 937, 940 (N.Y. 1987).

Plaintiffs correctly state that "[w]hether a special relationship exists is generally a question for the jury." Coleson v. City of New York, 24 N.E.3d 1074, 1079 (N.Y. 2014); see Pls.' Opp. Mem. 6. However, courts have granted Rule 12(b)(6) motions when the plaintiff fails to allege or provide the factual predicate for a special relationship in the complaint. Gross v. City of Albany, 14 Civ. 0736, 2015 U.S. Dist. LEXIS 130678, at *31-32 (N.D.N.Y. Sept. 29, 2015) (citing Blackstock v. Bd. of Educ., 921 N.Y.S.2d 858 (App. Div. 1st Dep't 2011)). Accordingly, the Court must assess whether Plaintiffs have pleaded sufficient factual matter supporting...