Valdez v. the City of N.Y.

• Decision Date: 29 April 2010
• Citation: 2010 N.Y. Slip Op. 03495,74 A.D.3d 76,901 N.Y.S.2d 166
• Parties: Carmen VALDEZ, Individually and as Mother and Natural Guardian of Ceasar Marti, et al., Plaintiffs–Respondents,v.The CITY OF NEW YORK, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

74 A.D.3d 76

901 N.Y.S.2d 166

2010 N.Y. Slip Op. 03495

Carmen VALDEZ, Individually and as Mother and Natural Guardian of Ceasar Marti, et al., Plaintiffs–Respondents,

v.The CITY OF NEW YORK, et al., Defendants–Appellants.

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

April 29, 2010.

Michael A. Cardozo, Corporation Counsel, New York (Mordecai Newman, Larry A. Sonnenshein and Lavanya Pisupati of counsel), for appellants.

Sivin & Miller, LLP, New York (Edward Sivin of counsel), for respondents.ANGELA M. MAZZARELLI, J.P., DAVID B. SAXE, JAMES M. CATTERSON, LELAND G. DeGRASSE, SHEILA ABDUS–SALAAM, JJ.CATTERSON, J.

In this action, plaintiff Carmen Valdez is seeking damages for injuries she sustained after her former boyfriend shot and seriously wounded her outside her apartment. The shooting followed a telephone call in which the boyfriend, Felix Perez, threatened to kill the plaintiff. It is undisputed that the assault occurred approximately 24 hours after a police officer, who knew that the plaintiff had an order of protection against Perez, told her that the police would arrest him immediately.

The plaintiff asserts a “special relationship” exception to the general rule that a municipality cannot be held liable for injuries resulting from the failure to provide adequate police protection. See Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 374, 505 N.E.2d 937, 939 (1987). We examine her claim in the light of the most recent Court of Appeals rulings, specifically focusing on the element of justifiable reliance, an element we find lacking in this case.

As a threshold matter, we reject the notion that McLean v. City of New York, 12 N.Y.3d 194, 878 N.Y.S.2d 238, 905 N.E.2d 1167 (2009), and the Court's follow-up decision in Dinardo v.City of New York, 13 N.Y.3d 872, 893 N.Y.S.2d 818, 921 N.E.2d 585 (2009), constrain our decision in this case. We recognize that in McLean, the Court held that a special duty exception to governmental immunity applies only to ministerial actions, and not discretionary ones; and further, in Dinardo, Chief Judge Lippman, in concurrence, observed that since provision of police protection is necessarily discretionary in nature, then under the rule announced in McLean, the special duty exception is essentially eliminated, and a plaintiff will never be able to recover for a failure to provide adequate police protection. Dinardo, 13 N.Y.3d at 876, 893 N.Y.S.2d at 821, 921 N.E.2d 585.

However, we find the resolution lies in accepting that the Court did not intend to eliminate the special duty exception, but rather specifically recognized that its precedent established a subset of police action or nonaction that can provide a basis for liability. Indeed, the focus by the McLean Court on the decision in Cuffy, 69 N.Y.2d 255, 513 N.Y.S.2d 372, 505 N.E.2d 937 appears to reinforce the well-established rule that a governmental agency's liability for negligent performance depends in the first instance on whether a special relationship existed with the injured person. The Court specifically lists the special duty exception established in Cuffy as one of the three ways a special relationship can form and thus sustain liability against a municipality. The Court highlights the four elements that establish such a special duty exception, and then finds that such elements were not present in the McLean case. McLean, 12 N.Y.3d at 201, 878 N.Y.S.2d at 243, 905 N.E.2d 1167.

It is inconceivable then, that the Court intended to eliminate the special duty exception upon which liability in police cases can be found without explicitly reversing the position it appears to solidly reiterate by citing Cuffy at length in the decision. On the contrary, both McLean and Dinardo support the position that the starting point of any analysis as to governmental liability is whether a special relationship existed; and not whether the governmental action is ministerial or discretionary. See McLean, 12 N.Y.3d at 203, 878 N.Y.S.2d at 245, 905 N.E.2d 1167 (“[i]n [ Pelaez and Kovit ] we found no special relationship or special duty. Thus there could be no liability, whether the actions at issue were characterized as ministerial or discretionary.”); see also Dinardo, 13 N.Y.3d at 874, 893 N.Y.S.2d at 819, 921 N.E.2d 585 (the Court had no occasion to decide that question of whether action is discretionary or ministerial since there is no rational process by which a jury could have reached a finding that plaintiff justifiably relied on assurances).

In this case, therefore, we do not need to reach the issue of whether the action was discretionary or ministerial since the plaintiff ultimately fails to establish the element of justifiable reliance for a special duty exception. In asserting a special relationship exception to the general rule that a municipality cannot be held liable for injuries resulting from the failure to provide adequate police protection, the plaintiff has the burden of establishing such a relationship by showing that (1) the municipality assumed an affirmative duty, through promises or actions, to act on behalf of the injured party; (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) the party's justifiable reliance on the municipality's undertaking. Cuffy, 69 N.Y.2d at 260, 513 N.Y.S.2d at 375, 505 N.E.2d 937.

In this case, the first three elements are not at issue. However, the defendants assert that the trial court erred in its finding that the plaintiff established justifiable reliance on the City's undertaking. For the reasons set forth below, we agree with the defendants, and reverse the trial court.

Specifically, Cuffy and its progeny stand for the proposition that the justifiable reliance element cannot be satisfied by evidence of a plaintiff's belief in, or expectation of adequate police protection. See also Badillo v. City of New York, 35 A.D.3d 307, 308, 827 N.Y.S.2d 133, 134 (1st Dept.2006) (decedents' alleged reasonable expectation that help was on the way after 911 cell phone call not enough to establish justifiable reliance), citing Grieshaber v. City of Albany, 279 A.D.2d 232, 235–236, 720 N.Y.S.2d 214, 216 (3rd Dept.2001), lv. denied, 96 N.Y.2d 719, 733 N.Y.S.2d 371, 759 N.E.2d 370 (2001); Clark v. Town of Ticonderoga, 291 A.D.2d 597, 737 N.Y.S.2d 412 (3rd Dept.2002), lv. denied, 98 N.Y.2d 604, 746 N.Y.S.2d 278, 773 N.E.2d 1016 (2002),(reliance element cannot be satisfied by evidence of plaintiff's hope or even belief); see also Finch v. County of Saratoga, 305 A.D.2d 771, 773, 758 N.Y.S.2d 220, 223 (3rd Dept.2003).

Unfortunately for her case, the plaintiff does not argue more. In her appellate brief, the plaintiff reiterates her testimony to assert that “when she opened her apartment door she believed [the police] had acted on [their] promise [...] to arrest Perez immediately” (emphasis added). Nor does her actual testimony indicate that her reliance was based on anything more than mere belief.

The plaintiff, who renewed an order of protection against Perez, testified that on July 19, 1996, Perez called her and threatened to kill her. She decided to leave her apartment but, on her way to her grandmother's house, she called the police precinct. Officer Torres told her: “[D]on't worry, don't worry, we're going to arrest him. Go to your home and don't worry anymore.”

The plaintiff then returned to her apartment with her children. The plaintiff explained that she thought the arrest was going to be “ immediately” because Torres “told me to go back immediately to my house.”

The plaintiff further testified that she was expecting Torres to call her to tell her about Perez's arrest because the police had called her on a prior occasion to confirm they had served the order of protection on him. She testified that she remained in her apartment with her sons until about 24 hours after the telephone conversation with Officer Torres. She then left her apartment to take out the garbage. At that time, Perez accosted her in the hallway and repeatedly shot her.

The plaintiff conceded that at the time she stepped out of her apartment on July 20, 1996, she had not received a call from Torres, or any other police officer. Nor did she call the police precinct at any time to ascertain that Perez had been arrested.

The defendants correctly assert that the instant case is factually indistinguishable from Cuffy. In that case, the Court of Appeals determined that a verbal assurance, without more, did not constitute a sufficient basis for the plaintiff's justifiable reliance. Cuffy, 69 N.Y.2d at 263, 513 N.Y.S.2d at 376, 505 N.E.2d 937. There, the plaintiff sought police protection for himself and his family because of a tenant's abusive conduct. He told the police that, unless he was given police protection, he was going to leave his apartment. The police told the plaintiff that he should not worry and that the police would do something about the situation “first thing in the morning.” Id., at 259, 513 N.Y.S.2d at 374, 505 N.E.2d 937. The police did not act on the promise and the plaintiff's wife and son suffered injuries in an altercation with the tenant on the following evening.

The Court determined that the plaintiff's reliance on the police officer's promise was not justified because by midday the family had not seen any police activity outside its home, and the plaintiff was aware that the police had done nothing to restrain the tenant. In other words, whatever reliance Cuffy may have legitimately placed on the police officer's promise was not valid once it was no longer “first thing in the morning.” Similarly, in this case, even if some justifiable reliance could be found on the plaintiff's behalf, it was certainly no longer valid by the end of the first day when the plaintiff had not received the expected phone call about...