Opinion
No. 2020-02175 Index No. 17461/14
01-31-2024
Frank Marino, Jr., appellant, v. City of New York, et al., respondents.
Torgan Cooper & Aaron, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Jillian Rosen], of counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Daniel Matza-Brown, Jesse A. Townsend, and Geoffrey Curfman of counsel), for respondents.
Torgan Cooper & Aaron, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Jillian Rosen], of counsel), for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Daniel Matza-Brown, Jesse A. Townsend, and Geoffrey Curfman of counsel), for respondents.
MARK C. DILLON, J.P. LINDA CHRISTOPHER LARA J. GENOVESI BARRY E. WARHIT, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered December 23, 2019. The order, insofar as appealed from, granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging negligence and denied the plaintiff's cross-motion for leave to amend the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when he came in contact with the propeller of a boat's outboard motor while he was being rescued from the waters of Jamaica Bay by members of the Fire Department of the City of New York, Marine Division. The complaint, as amplified by the bill of particulars, alleged, among other things, that the defendants were negligent in permitting the plaintiff to drift toward the boat's outboard motors after throwing him a rope.
The defendants moved, inter alia, for summary judgment dismissing the cause of action alleging negligence. The plaintiff opposed the motion and cross-moved for leave to amend the complaint. In an order entered December 23, 2019, the Supreme Court, among other things, granted that branch of the defendants' motion and denied the plaintiff's cross-motion. The plaintiff appeals.
"When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose" (Applewhite v Accuhealth, Inc., 21 N.Y.3d 420, 425; see Turturro v City of New York, 28 N.Y.3d 469, 477). "If the municipality is engaged in a proprietary function, it is subject to suit under the ordinary rules of negligence" (Trenholm-Owens v City of Yonkers, 197 A.D.3d 521, 523; see Applewhite v Accuhealth, Inc., 21 N.Y.3d at 425; Canberg v County of Nassau, 214 A.D.3d 943, 945). "In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers" (Applewhite v Accuhealth, Inc., 21 N.Y.3d at 425 [internal quotation marks omitted]). "If the municipality was acting in a governmental capacity, then the plaintiff must prove the existence of a special duty as an element of his or her negligence cause of action" (Canberg v County of Nassau, 214 A.D.3d at 945; see Ferreira v City of Binghamton, 38 N.Y.3d 298, 308).
Here, the defendants were acting in a governmental capacity when the plaintiff was injured during the firefighters' rescue operation (see Applewhite v Accuhealth, Inc., 21 N.Y.3d at 425; Ortiz v City of New York, 171 A.D.3d 1198, 1200; Kadymir v New York City Trans. Auth., 55 A.D.3d 549, 552). Since the defendants were acting in a governmental capacity, the plaintiff was required to prove that the defendants owed him a special duty (see Canberg v County of Nassau, 214 A.D.3d at 945). A special duty can arise, as relevant here, where "the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally" or "the municipality took positive control of a known and dangerous safety condition" (Applewhite v Accuhealth, Inc., 21 N.Y.3d at 426). The elements of a special duty based upon voluntary assumption of a duty are: "(1) an assumption by the municipality, through promises or actions, 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 255, 260; see Estate of M.D. v State of New York, 199 A.D.3d 754, 756-757). "Of the four factors, the 'justifiable reliance' element is particularly 'critical' because it 'provides the essential causative link between the special duty assumed by the municipality and the alleged injury'" (Halberstam v Port Auth. of N.Y. & N.J., 175 A.D.3d 1264, 1266-1267, quoting Valdez v City of New York, 18 N.Y.3d 69, 81).
Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging negligence by establishing that they did not owe a special duty to the plaintiff, and the plaintiff failed to raise a triable issue of fact in opposition (see Halberstam v Port Auth. of N.Y. & N.J., 175 A.D.3d at 1267). The plaintiff's submissions failed to establish that the defendants lulled the plaintiff into a false sense of security, or induced him to forego other avenues of assistance, and therefore placed the plaintiff in a worse position than he would have been had the defendants never assumed the duty (see Marks-Barcia v Village of Sleepy Hollow Ambulance Corps, 183 A.D.3d 883, 885; Halberstam v Port Auth. of N.Y. & N.J., 175 A.D.3d at 1267; Dixon v Village of Spring Val., 50 A.D.3d 943, 944). Further, the plaintiff's submissions failed to establish that the defendants assumed positive direction and control in the face of a known, blatant, and dangerous safety violation (see Garrett v Holiday Inns, 58 N.Y.2d 253, 262). Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging negligence.
Further, since no special duty existed, the Supreme Court properly denied the plaintiff's cross-motion for leave to amend the complaint (see Koyko v City of New York, 189 A.D.3d 811).
In light of our determination, we need not reach the parties' remaining contentions.
DILLON, J.P., CHRISTOPHER, GENOVESI and WARHIT, JJ., concur.