Opinion
July 7, 1988
Appeal from the Supreme Court, Chautauqua County, Cass, J.
Present — Denman, J.P., Boomer, Pine, Balio and Davis, JJ.
Order unanimously reversed on the law without costs, and defendants' motion for summary judgment granted. Memorandum: Plaintiff Deborah Kircher was forced into her own car, driven to a remote area and brutally beaten and raped. Two persons observed the abduction, attempted unsuccessfully to intervene, and gave chase in their own vehicle. When the witnesses lost sight of the other car, they stopped and reported the incident to a City of Jamestown police officer. The officer said he would report the matter, but apparently did not. Plaintiff seeks to hold the officer and the city liable for their failure to respond to the witnesses' report.
Absent a special relationship or the assumption of a special duty toward the plaintiff, a municipality is not liable for the failure to provide police protection (Cuffy v. City of New York, 69 N.Y.2d 255; De Long v. County of Erie, 60 N.Y.2d 296). Plaintiff's status as a possible victim of crime did not give rise to a special relationship (see, Riss v. City of New York, 22 N.Y.2d 579; Zibbon v. Town of Cheektowaga, 51 A.D.2d 448, appeal dismissed 39 N.Y.2d 1056), and there was no direct contact between defendants and the plaintiff upon which a special duty could be based (see, Cuffy v. City of New York, supra). Moreover, plaintiff does not claim that she relied upon an assurance of protection to her detriment (Cuffy v. City of New York, supra; Yearwood v. Town of Brighton, 101 A.D.2d 498, affd 64 N.Y.2d 667) or that defendants engaged in any affirmative acts giving rise to a duty to her (see, De Long v. County of Erie, supra; Zibbon v. Town of Cheektowaga, supra). Plaintiff failed to demonstrate any factual basis for the existence of a special duty, and defendants' motion for summary judgment should have been granted.
Plaintiff's claim that the officer's conduct was outside the scope of governmental immunity lacks merit. The failure to respond to the report of possible criminal activity or to offer assistance in a situation arguably requiring police intervention amounts to a failure to provide police protection to the general public and is within the scope of governmental immunity (see, Helman v. County of Warren, 67 N.Y.2d 799, affg 111 A.D.2d 560; Evers v. Westerberg, 32 N.Y.2d 684, affg 38 A.D.2d 751; Zibbon v Town of Cheektowaga, 51 A.D.2d 448, supra).