Opinion
January 10, 1994
Appeal from the Supreme Court, Suffolk County (Doyle, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs payable by the plaintiffs-respondents, so much of the order dated May 16, 1991, as denied the appellant's motion for summary judgment is vacated, the motion is granted, and the complaint in Action No. 2 is dismissed insofar as it is asserted against the appellant and all cross claims against it are dismissed.
The decedent, a mechanic at a sand and gravel mining business, died when a sand and gravel pit collapsed. The plaintiffs alleged that the Town negligently issued and renewed a permit to operate the sand and gravel mine even though the Town knew that its operation was dangerous and violated numerous Town ordinances.
It is well-settled that a municipality cannot be held liable for injuries resulting from a failure to exercise its police powers absent a special relationship existing between the municipality and the injured party (see, Sorichetti v. City of New York, 65 N.Y.2d 461; Worth Distribs. v. Latham, 59 N.Y.2d 231). The elements of this special relationship are: (1) an assumption by the municipality through promises 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) the justifiable reliance on the municipality's affirmative undertaking (see, Cuffy v. City of New York, 69 N.Y.2d 255, 260).
We find that the plaintiffs failed to establish that the Town affirmatively undertook to protect the plaintiff's decedent and that the plaintiff's decedent detrimentally relied on the Town's assurances of protection (see, O'Connor v. City of New York, 58 N.Y.2d 184; see also, Kircher v. City of Jamestown, 74 N.Y.2d 251).
Furthermore, contrary to the plaintiffs' contention, we find that the Town did not enter into a stipulation limiting its time to make a motion for summary judgment. Bracken, J.P., Balletta, Miller and Pizzuto, JJ., concur.