Cristina v. City of New York

Full title: MARIA CRISTINA AGUIRRE, Plaintiff, v. THE CITY OF NEW YORK, THE NEW YORK…

Court: Supreme Court of the State of New York, New York County

Date published: Jun 9, 2011

2011 N.Y. Slip Op. 31589 (N.Y. Sup. Ct. 2011)

Opinion

107826/10.

June 9, 2011.

DECISION/ORDER

HON. CYNTHIA S. KERN, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:__________________________________________

1 2 3 4

Papers Numbered Notice of Motion and Affidavits Annexed.......................... Notice of Cross Motion and Answering Affidavits.................. Affirmations in Opposition to the Cross-Motion.................. Replying Affidavits............................................ Exhibits......................................................

Plaintiff commenced the instant action to recover damages for personal injuries she allegedly sustained when she was struck by a car as she was crossing the street at the intersection of 34^th Street and 2^nd Avenue in Manhattan. Defendants The City of New York and the New York City Police Department (together, the "City") now move for summary judgment on the ground that the actions of the police officer directing traffic at the intersection were discretionary and, therefore, render the City immune from liability and/or because no special relationship exists between plaintiff and the City and on the grounds that a claim for negligent hiring and/or retention cannot lie where the employee was acting within the scope of his employment. For the reasons set forth more fully below, the City's motion is granted.

The relevant facts are as follows. Plaintiff was crossing the street at the intersection of 34^th Street and 2^nd Avenue on November 12, 2009 at 4:00 pm when she was struck by a vehicle. At the time, a police officer was directing traffic at the intersection. Plaintiff alleges that the police officer negligently directed the vehicle which struck her to proceed through the intersection while she was lawfully crossing there and that this negligent direction of traffic caused the accident.

The state of the case law on municipal immunity is somewhat ambiguous. The Court of Appeals has specifically held that governments or municipalities are immune from liability for the actions of their agencies if those actions were discretionary. See McLean v City of New York, 12 N.Y.3d 194, 203 (2009). The McLean court explained that, "Governmental action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff . . ." Id. In McLean, the Court of Appeals specifically held that the "special relationship" exception can only apply if the governmental action at issue is ministerial. See id. Subsequently, in Dinardo v City of New York, 13 N.Y.3d 872 (2009), Chief Judge Lippman stated in his concurrence that although he believed that the McLean decision "effectively eliminates the special relationship exception," the court was nevertheless constrained by its holding. See id. at 876. However, in Valdez v City of New York, the First Department subsequently held that "it is inconceivable that the Court [in McLean] intended to eliminate the special duty exception" in police cases." 74 A.D.3d 76 (1^st Dept 2010). The Valdez court went on to hold that the analysis should begin, not end, with whether the municipality had a special relationship with the plaintiff. See id. at 78. In Valdez, the First Department explicitly stated that "the Court [in McLean] did not intend to eliminate the special duty exception" and that, when police action is involved, "a governmental agency's liability for negligent performance depends in the first instance on whether a special relationship existed." Id. at 78 (emphasis added). This court will therefore follow Valdez and determine first if such a special relationship existed. If not, the inquiry ends there. See id.

The elements of this "special relationship" are: "(1) an assumption by the municipality, through promises or action, 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 at 260-61 (1987) ( citations omitted).

The City is entitled to summary judgment because there was no special relationship between plaintiff and the municipality. As an initial matter, plaintiff does not even plead a special relationship. In addition, she fails to establish that there was any promise or assumption by the municipality of an affirmative duty to act on her behalf or that there was any direct contact between her and the police officer who was directing traffic before the accident.

To the extent plaintiff is making any claim for negligent hiring and/or retention of the officer who was directing traffic, that claim is also dismissed. "Where an employee is acting within the scope of his employment, thereby rendering the employer liable for any damages caused by the employee's negligence under a theory of respondeat superior, no claim may proceed against the employer for negligence hiring or retention." Karoon v New York City Transit Auth., 241 A.D.2d 323 (1^st Dept. 1997). Because it is undisputed that the police officer was acting within the scope of his employment, this principle applies.

Finally, this motion is not premature. More discovery is not required. The facts in this matter are undisputed. "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion." Davila v New York City Transit Auth., 66 A.D.3d 952, 953-54 (2^nd Dept 2009); see also Brown v Bauman, 42 A.D.3d 390, 392-93 (1^st Dept 2007). Plaintiff fails to offer any basis other than speculation for her claim that further discovery would uncover facts sufficient to deny summary judgment.

Accordingly, defendant City's motion is granted. Plaintiff's complaint and any cross-claims against the City are dismissed in their entirety. This constitutes the decision and order of the court.