Zibbon v. Town of Cheektowaga

• Decision Date: 09 April 1976
• Parties: Michael ZIBBON, as Administrator of the Goods, Chattels and Credits of William Anthony Deyo, Jr., Deceased, Appellant, v. The TOWN OF CHEEKTOWAGA, New York, Respondent. Michael ZIBBON, as Administrator of the Goods, Chattels and Credits of Michele Zibbon Deyo, Deceased, Appellant, v. The TOWN OF CHEEKTOWAGA, New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 152

382 N.Y.S.2d 152

51 A.D.2d 448

Michael ZIBBON, as Administrator of the Goods, Chattels and Credits of William Anthony Deyo, Jr., Deceased, Appellant, v. The TOWN OF CHEEKTOWAGA, New York, Respondent.

Michael ZIBBON, as Administrator of the Goods, Chattels and Credits of Michele Zibbon Deyo, Deceased, Appellant, v. The TOWN OF CHEEKTOWAGA, New York, Respondent.

Supreme Court, Appellate Division, Fourth Department.

April 9, 1976.

Brown, Kelly, Turner, Hassett & Leach, Buffalo, for appellant Zibbon for William Deyo, Jr., deceased (Roger A. Olson, Buffalo, of counsel).

Michaels, Michaels & Wineburg, Auburn, for appellant Zibbon for Michele Zibbon Deyo, deceased (Lee S. Michaels, Auburn, of counsel).

Miles, Cochrane, Grosse & Rossetti, Buffalo, for respondent (Raymond T. Miles, Buffalo, of counsel).

Before MARSH, P.J., and CARDAMONE, SIMONS, MAHONEY and GOLDMAN, JJ.

CARDAMONE, Justice:

Plaintiff appeals from an order of Special Term, Erie County which granted summary judgment to defendant Town of Cheektowaga and dismissed the complaint in two actions for wrongful death. These actions were commenced by William Zibbon in his capacity as the administrator of the Estates of both William and Michelle Deyo against the Town of Cheektowaga. The decedents were shot to death by Andrew J. Pieszala, a/k/a Charles Ventura on August 18, 1971 at approximately 10:30 P.M. Pieszala was subsequently convicted of the murders. The complaint alleges that the Town Police were negligent in the performance of their duties, such negligence being responsible for the untimely death of both William and Michelle Deyo.

Special Term granted the Town's motion for summary judgment on the ground that the Town Police owed no duty to the decedents, special or otherwise, and that, therefore, no breach of duty could have occurred to impose liability for negligence on the Town.

We agree that there was no special duty for the Cheektowaga Police to perform toward the decedents. It is well-settled that a municipality, acting in its governmental capacity for the protection of the general public, cannot be cast in damages for a mere failure to furnish adequate protection to a particular individual to whom it has assumed no special duty (Bass v. City of New York, 38 A.D.2d 407, 330 N.Y.S.2d 569, affd. 32 N.Y.2d 894, 346 N.Y.S.2d 814, 300 N.E.2d 154; Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860; Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635; Evers v. Westerberg, 38 A.D.2d 751, 329 N.Y.S.2d 615; Tuthill v. City of Rochester, 32 A.D.2d 873, 301 N.Y.S.2d 648).

A 'special duty' has been found to exist to an informer who collaborated with the police in the arrest and prosecution of a criminal (Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534); to a school child at a guard-street crossing where local police assume the burden in the event that a regular crossing guard becomes ill (Florence v. Goldberg, 48 A.D.2d 917, 369 N.Y.S.2d 794); and to a person under a court order of protection (Baker v. City of New York, 25 A.D.2d 770, 269 N.Y.S.2d 515). Appellant contends that the lack of speculation as to the probability that a serious crime would be committed and the demonstrated capability of Pieszala to carry out the threat imposed a special duty on the Town Police. The Court of Appeals, however, has refused to impose a special duty on police that would dictate how limited resources should be allocated, 'even to those who may be the particular seekers of protection based on specific hazards' (Riss v. City of New York, supra, 22 N.Y.2d at 582, 293 N.Y.S.2d at 898, 240 N.E.2d at 860).

Thus, although no special duty existed, the Town could still be found liable on the principle that '(i)f conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward' (Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167, 159 N.E. 896, 898). One who voluntarily undertakes a duty is responsible for negligence in the performance of such an assumed duty even though the duty did not exist before it was voluntarily assumed (Bloom v. City of New York, 78 Misc.2d 1077, 357 N.Y.S.2d 979; Schuster v. City of New York, supra, 5 N.Y.2d at p. 87, 180 N.Y.S.2d at p. 274, 154 N.E.2d at p. 541 (concurring opinion)). The leading text in the tort field, citing Chief Judge Cardozo's opinion in Moch, states that the question is 'essentially one of whether the defendant has gone so far in what he has actually done, and has got himself into such a relation with the plaintiff, that he has begun to effect the interests of the plaintiff adversely, as distinguished from merely failing to confer a benefit upon him' (Prosser, Law of Torts (4th ed) p. 340; see, Isereau v. Stone, 207 Misc. 941, 140 N.Y.S.2d 582, revd. on other grounds, 3 A.D.2d 243, 160 N.Y.S.2d 336; Jones v. County of Herkimer, 51 Misc.2d 130, 272 N.Y.S.2d 925).

To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. '(I)ssue-finding, rather than issue-determination, is the key to the procedure' (Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 505, 144 N.E.2d 387, 392). Because summary judgment is the procedural equivalent of a trial, where there is any significant doubt whether there is a material issue of fact or where the material issue of fact is 'arguable', summary judgment must be denied (Phillips v. Kantor & Co., 31 N.Y.2d 307, 338 N.Y.S.2d 882, 291 N.E.2d 129). Further, the courts are increasingly reluctant to grant summary judgment against a plaintiff in a wrongful death action since the plaintiff is not held to as high degree of proof as where an injured plaintiff can himself describe the occurrence (Reilly v. New York City Transit, 34 N.Y.2d 764, 358 N.Y.S.2d 137, 314 N.E.2d 877; Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744).

In this context and taking whatever can be implied from the pleadings 'by fair and reasonable intendment' (Dulberg v. Mock, 1 N.Y.2d 54, 56, 150 N.Y.S.2d 180, 181, 133 N.E.2d 695, 696) and assuming, as we must, that all of the allegations are true (Cohn v. Lionel Corp., 21 N.Y.2d 559, 289 N.Y.S.2d 404, 236 N.E.2d 634; Kober v. Kober, 16 N.Y.2d 191, 193, 264 N.Y.S.2d 364, 365, 211 N.E.2d 817, 818), we find that at about 4:30 A.M. on the morning of August 18, 1971 the Cheektowaga Police Department received the following teletype message from the Cayuga County Sheriff's Department:

'APB PD Cheektowaga Charles Ventura (with description) wanted for aggravated harassment believed to be operating a 68--69 Oldsmobile Convertible blue with white top registration unk. Possibly heading to 17 Hillside Dr Cheektowaga NY Res of past girlfriend. Stated that he would kill her. Believed to have shot out window of Holvert res Center Street, Union Springs, NY with shotgun 8--18--71 11--30pm. Subject is known to use shotgun and has threatened to kill any police officer who tries to stop him. Subject is dangerous. Warrant, prints and photos on file Cayuga Co. So. Auburn, NY time 4--00 am.'

Ventura, a/k/a Andrew Pieszala, had for a period of approximately four years threatened, harassed and assaulted Michelle Deyo. A specific instance of violent conduct resulted in Pieszala's conviction for attempting to shoot Michelle when he fired shots into her former home in Auburn, New York. Another instance arose in June, 1970 when Pieszala was charged with possession of a dangerous weapon and drugs as the result of his pointing a pistol at a girl in Cheektowaga whom he had mistaken for Michelle Deyo. He pleaded guilty to a reduced charge; however, at the sentencing he became agitated and threatened the Town Justice who thereupon committed him for a mental examination. Pieszala was hospitalized at Meyer Memorial Hospital and was diagnosed as a psychotic depressive, dangerous to himself and to other people. While serving his sentence, Pieszala was voluntarily committed to Matteawan for the remainder of his term.

On August 17, 1971, one day before the murder of William and Michelle Deyo, Pieszala was in Union Springs, New York and had threatened another woman by the name of Corrinne Holvert. He shot out a window in her residence and threatened to 'take care of a couple in Buffalo'. Miss Holvert contacted the local police in Cayuga County, who contacted the Cheektowaga Police Department at approximately 4:30 A.M. on August 18, 1971. The 'All Points Bulletin' received by the police referred to the 'shot out window'. Thus, the police had a reason to believe a dangerous, highly agitated criminal, armed and intending to murder Michelle Deyo was presently on his way to her residence for that purpose. As a result of the information they received, the Cheektowaga Police called and warned William Deyo of these facts at about 5:00 A.M. and advised him to stay away from the windows, not to answer the door, to keep the lights out, and, further, that if he saw or heard anything to call the police who would have cars in the area. He told Deyo that the police would keep a routine check on the house. ¹

Confirmation of the Deyos' belief that they were being afforded some degree of police protection is found in the testimony of William Zibbon who spoke to his daughter, Michelle Deyo, at 5:50 A.M. and asked her to spend the day at his house. Michelle replied that she was safer at home and that 'there are police cars all over the place'. Further evidence that the Deyos' relied upon the police for some measure of protection is found in the fact that an unloaded shotgun was discovered in the Deyos' closet and from the state of undress that the victims were in at the time of the shooting at 10:30 P.M.

In fact, the action taken by the police was as follows: The police officer on patrol...