Trimble v. City of Albany

• Decision Date: 23 November 2016
• Citation: 42 N.Y.S.3d 432,144 A.D.3d 1484,2016 N.Y. Slip Op. 07912
• Parties: John TRIMBLE et al., Appellants, v. CITY OF ALBANY et al., Respondents.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1484

42 N.Y.S.3d 432

2016 N.Y. Slip Op. 07912

John TRIMBLE et al., Appellants,

v.CITY OF ALBANY et al., Respondents.

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

Nov. 23, 2016.

Bixby Crable & Stiglmeier PLLC, Albany (Robert H. Bixby of counsel), for appellants.

John J. Reilly, Corporation Counsel, Albany (Valerie A. Lubanko of counsel), for respondents.

Before: PETERS, P.J., GARRY, EGAN JR., ROSE and MULVEY, JJ.

PETERS, P.J.

On the evening of February 2, 2013, a fire occurred at plaintiffs' home in the City of Albany. Plaintiff John Trimble immediately called 911 to report the emergency, and defendant Department of Fire and Emergency Services of the City of Albany (hereinafter the Department) responded to the scene and undertook efforts to extinguish the fire. Plaintiffs allege that, some time later, the Department's lead investigator advised them that the fire had been fully extinguished and that it was safe to enter the premises. Accordingly, plaintiffs reentered the home to secure the premises and remove certain personal belongings and then left to spend the night with relatives. Several hours later, the fire rekindled and destroyed the house. Following an investigation, the Department's Fire Investigative Unit concluded that the rekindling of the fire was caused by embers from the initial fire that had gone undetected in a window well beneath the kitchen.

Plaintiffs commenced this negligence action against defendants seeking to recover damages. Defendants moved to dismiss the complaint on the grounds that plaintiffs' allegations failed to establish the existence of a special relationship giving rise to a duty of care and, further, that the firefighters on the scene were performing discretionary governmental functions for which liability cannot be imposed. Such motion was thereafter converted to a motion for summary judgment and the parties were provided additional time to submit evidentiary proof on the issue of governmental immunity. Following the parties' submissions, Supreme Court granted defendants' motion and dismissed the complaint, finding the absence of a special relationship and that defendants were, in any event, entitled to governmental immunity from liability. For the reasons that follow, we reverse.

Generally, a municipality may not be held liable for the negligent performance of a governmental function, such as police and fire protection, because the duty to provide such protection is owed to the public at large rather than to any particular individual (see Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425–426, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ; Valdez v. City of New York, 18 N.Y.3d 69, 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011] ; Laratro v. City of New York, 8 N.Y.3d 79, 82–83, 828 N.Y.S.2d 280, 861 N.E.2d 95 [2006] ). “However, where a municipality voluntarily undertakes to act on behalf of a specific citizen, who relies on a promise of protection offered by the municipality to his or her detriment, liability will attach because the municipality will have created a special relationship with the citizen seeking protection” (Stata v. Village of Waterford, 225 A.D.2d 163, 167, 649 N.Y.S.2d 232 [1996] ; see Coleson v. City of New York, 24 N.Y.3d 476, 481, 999 N.Y.S.2d 810, 24 N.E.3d 1074 [2014] ; Kircher v. City of Jamestown,

74 N.Y.2d 251, 256, 544 N.Y.S.2d 995, 543 N.E.2d 443 [1989] ). To establish a special relationship, plaintiffs were required to 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] ; accord Coleson v. City of New York, 24 N.Y.3d at 481, 999 N.Y.S.2d 810, 24 N.E.3d 1074 ; McLean v. City of New York, 12 N.Y.3d 194, 201, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009] ).

Construing the evidence in the light most favorable to plaintiffs and providing them the benefit of every favorable inference (see McKenna v. Reale, 137 A.D.3d 1533, 1534, 29 N.Y.S.3d 596 [2016] ; Bynum v. Camp Bisco, LLC, 135 A.D.3d 1060, 1061–1062, 22 N.Y.S.3d 677 [2016] ), we conclude that plaintiffs raised a triable issue of fact as to whether a special relationship existed. With regard to the first element, there is no dispute that defendants' agents dispatched the Department to plaintiffs' residence in response to their 911 call for assistance and that the responding crew thereafter assumed control over the ongoing fire. Even if the Department's actions in that regard simply constituted the performance of a duty owed to the public generally (compare De Long v. County of Erie, 60 N.Y.2d 296, 304–305, 469 N.Y.S.2d 611, 457 N.E.2d 717 [1983], Grieshaber v. City of Albany, 279 A.D.2d 232, 235, 720 N.Y.S.2d 214 [2001], lv. denied 96 N.Y.2d 719, 733 N.Y.S.2d 371, 759 N.E.2d 370 [2001], and Page v. City of Niagara Falls, 277 A.D.2d 1047, 1047, 716 N.Y.S.2d 173 [2000], with Bishop v. Bostick, 141 A.D.2d 487, 488, 529 N.Y.S.2d 116 [1988], and Kroger v. City of Mount Vernon, 104 A.D.2d 855, 856, 480 N.Y.S.2d 370 [1984] ), we are of the view that, by making affirmative representations to plaintiffs that the fire had been fully extinguished and that it was safe to reenter the home, the Department assumed an affirmative duty to plaintiffs (see Kodryanu v. City of New York, 274 A.D.2d 376, 377, 709 N.Y.S.2d 627 [2000] ; Miller v. Morania Oil of Long Is., O.C.P., 194 A.D.2d 770, 771, 599 N.Y.S.2d 303 [1993] ; S.C. Freidfertig Bldrs. v. Spano Plumbing & Heating, 173 A.D.2d 454, 456, 570 N.Y.S.2d 78 [1991] ; cf. Smullen v. City of New York, 28 N.Y.2d 66, 71–72, 320 N.Y.S.2d 19, 268 N.E.2d 763 [1971] ). As for the second and third elements, knowledge on the part of the Department that inaction could result in harm can be reasonably inferred from the circumstances (see Stata v. Village of Waterford, 225 A.D.2d at 167, 649 N.Y.S.2d 232 ; see also Page v. City of Niagara Falls, 277 A.D.2d at 1047, 716 N.Y.S.2d 173 ), and the Department's employees undisputedly had direct contact with plaintiffs. With respect to the final element, plaintiffs allege that they relied upon the Department's assurances that the fire was completely extinguished in choosing to leave their home unattended for the evening. Under these circumstances, a jury could find that plaintiffs' reliance on the Department's assurances was reasonable and that such assurances “lulled [them] into a false sense of security and ... thereby induced [them] ... to forego other available avenues of protection” with regard to the property (Cuffy v. City of New York, 69 N.Y.2d at 261, 513 N.Y.S.2d 372, 505 N.E.2d 937 ; see Coleson v. City of New York, 24 N.Y.3d at 483, 999 N.Y.S.2d 810, 24 N.E.3d 1074 ; De Long v. County of Erie, 60 N.Y.2d at 305, 469 N.Y.S.2d 611, 457 N.E.2d 717 ). We therefore find sufficient evidence from which a trier of fact could find that a special relationship existed between plaintiffs and the Department (see Kodryanu v. City of New York, 274 A.D.2d at 377, 709 N.Y.S.2d 627 ; Miller v. Morania Oil of Long Is., O.C.P., 194 A.D.2d at 771, 599 N.Y.S.2d 303 ; S.C. Freidfertig Bldrs. v. Spano Plumbing & Heating, 173 A.D.2d at 456, 570 N.Y.S.2d 78 ).

Nor can we agree with Supreme Court's conclusion that the complaint must be dismissed on the basis of governmental immunity. The common-law doctrine of governmental immunity “shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions” (Valdez v. City of New York, 18 N.Y.3d at 76, 936 N.Y.S.2d 587, 960 N.E.2d 356 ). “In order to prevail on a governmental function immunity defense, [however,] a municipality must do much more than merely allege that its employee was engaged in activities involving the exercise of discretion” (id. at 79, 936 N.Y.S.2d 587, 960 N.E.2d 356 ). Even where the functions and duties of the municipal actor's particular position entail the exercise of discretion and judgment, the governmental function immunity defense is only available when “ ‘the conduct giving rise to the claim is related to an exercise of that discretion’ ” (id....