Opinion
# 2013-009-040 Claim No. 122988 Motion No. M-84031
12-19-2013
ELIZABETH D. McDONALD v. THE STATE OF NEW YORK
TED A. BARRACO, ESQ. HON. ERIC T. SCHNEIDERMAN Attorney General BY: Ed J. Thompson, Esq., Assistant Attorney General, Of Counsel.
Synopsis
Defendant's motion to dismiss this claim for failure to state a cause of action was granted based upon claimant's failure to establish that a "special duty" was owed to her, and further that the actions complained of were the result of a discretionary governmental action for which the State is absolutely immune from liability.
Case information
UID: 2013-009-040 Claimant(s): ELIZABETH D. McDONALD Claimant short name: McDONALD Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 122988 Motion number(s): M-84031 Cross-motion number(s): Judge: NICHOLAS V. MIDEY JR. Claimant's attorney: TED A. BARRACO, ESQ. HON. ERIC T. SCHNEIDERMAN Attorney General Defendant's attorney: BY: Ed J. Thompson, Esq., Assistant Attorney General, Of Counsel. Third-party defendant's attorney: Signature date: December 19, 2013 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant has brought this motion pursuant to CPLR 3211 seeking an order dismissing the claim for failure to state a cause of action.
The following papers were considered by the Court in connection with this motion:
Notice of Motion; Affirmation of Ed J. Thompson, Esq., Assistant Attorney General, with Exhibits (including Affidavit of Andrew Jasie as Exhibit C) 1,2
Memorandum of Law 3
Reply Affirmation of Ted A. Barraco, Esq., with Exhibits 4
As set forth in her claim and the papers submitted with this motion, claimant alleges that she called 911 on July 20, 2011 to report that she was the victim of numerous crimes, including sexual assault, harassment, menacing, and stalking committed by one Eden Torres. On that date, New York State Trooper Robert Weston responded to the call, and made a report of claimant's accusations. The next day, New York State Police Investigator Andrew J. Jasie met with claimant at her home and continued the investigation. Claimant met again with Investigator Jasie two days later, on July 23, 2011, and alleges that Investigator Jasie advised her that Mr. Torres would be arrested that day and charged with stalking.
Claimant further alleges that later that day, Investigator Jasie informed claimant's attorney that Mr. Torres would not be arrested that evening, but would be arrested the following day on July 24, 2011.
Claimant states that Mr. Torres was not arrested that day, and that claimant's attorney was informed on August 5, 2011 that Mr. Torres would not be arrested for any of the alleged crimes.
Claimant has instituted the within claim seeking damages based upon negligence, negligent hiring, supervision and training, conspiracy, and the denial of claimant's civil rights, including the denial of equal protection under both the federal and state constitutions based upon the failure of the New York State Police in failing to proceed with the arrest of Mr. Torres.
Defendant now moves to dismiss this claim for failure to state a cause of action.
The facts of this case, as alleged by claimant in her claim and in the papers before the Court on this motion, fall squarely within the realm of cases decided by the Court of Appeals within the past few years addressing and clarifying what is know as the "governmental function immunity defense".
In McLean v City of New York (12 NY3d 194 [2009]), the Court of Appeals clarified the distinction between "ministerial" functions and "discretionary" actions, and held that "[g]overnment 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, apart from any duty to the public in general." (Id. at 203).
Subsequent decisions from the Court of Appeals have not only re-iterated this rule, but have also emphasized the fact that a claimant must first establish that he or she was owed a "special duty", above and beyond the general duty owed to the public.
In order to succeed in establishing this "special duty" or "special relationship", a claimant must satisfy each and every one of four requirements: (1) the assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; (2) knowledge by the agents of that municipality that inaction could lead to harm; (3) some form of direct contact between the agents of the municipality and the injured party; and (4) the injured party's justifiable reliance on the affirmative promise (Cuffy v City of New York, 69 NY2d 255, 260 [1987]).
In Valdez v City of New York (18 NY3d 69 [2011]), a case with a very similar fact pattern to the one presented in this claim, the Court of Appeals specifically addressed this "special duty" requirement. In Valdez, a police officer had promised a woman over the telephone that her ex-boyfriend, who had threatened her, was going to be arrested. The officer assured the woman that it was safe for her to return home to her apartment since the boyfriend was going to be arrested. However, the police failed to arrest the ex-boyfriend, and he shot the woman the following day when she opened her apartment door.
In that case, the Court of Appeals determined that the woman had not established the formation of a special relationship, and therefore no special duty had been created. The Court held that the woman could not satisfy the "justifiable reliance" requirement (as set forth in Cuffy) in that she was not justified in relying upon the verbal promise made to her by the police officer. Therefore, since the plaintiff in Valdez had not established the special relationship, she therefore had not established any special duty that was owed to her by the municipality. Without any such duty, liability could not be imposed against the municipality.
The crucial facts of this case mirror those in Valdez. In this case, the claimant was promised by a police investigator that her assailant was going to be arrested that day. The alleged assailant, however, was not arrested, and approximately two weeks later claimant was advised that he was not going to be arrested. Therefore, in accordance with the Court of Appeals decision in Valdez, this Court must also find that claimant was not justified in relying upon the verbal promise made to her, and therefore, claimant is unable to establish a special relationship and that a special duty was owed to her.
In this particular claim, claimant has not alleged that she was assaulted, threatened, harassed, or that she suffered any physical injuries from the alleged assailant during the time from when she was informed that he would be arrested (July 23, 2011) to the time when she was advised that Mr. Torres was not going to be arrested (August 5, 2011).
Since claimant is unable to establish that she was owed a special duty under the facts and circumstances of this case, no liability can be imposed against the defendant.
Under McLean if claimant had been able to establish a special relationship, and that a duty was owed specifically to her, she also had to establish that the action which the defendant failed to undertake was purely ministerial, since a discretionary municipal act may never be the basis for liability (McLean v City of New York, 12 NY3d 194, 203).
In this particular matter, and as set forth in the affidavit of Andrew Jasie (Exhibit C to Items 1, 2) he "thoroughly investigated" claimant's allegations, and he was "advised by the Monroe County and Wayne County District Attorney's Offices not to make an arrest." Based on these facts, the Court finds that the decision by Investigator Jasie not to proceed with the arrest of Mr. Torres was based upon a discretionary action, which provides the State with absolute immunity from any claim for damages based upon the decision.
Furthermore, the State may not be held liable for alleged tortious acts committed by a District Attorney (Fisher v State of New York, 10 NY2d 60 [1961]), and therefore the Court of Claims does not have jurisdiction over claims against such officials (Whitmore v State of New York, 55 AD2d 745 [3d Dept 1976]). Therefore, the decision by the Monroe County and Wayne County District Attorney's Offices not to make an arrest cannot subject the State to liability for the consequences of that decision (Fuller v State of New York, 11 AD3d 365 [1st Dept 2004]).
Therefore, even though claimant has asserted several different causes of action in this claim, each cause of action is untimely based upon the failure of the New York State Police to proceed with the arrest of Eden Torres following the complaint made by claimant. Therefore, regardless of the characterization of the different causes of action, the State cannot be held liable since (1) claimant has failed to establish a "special relationship" and that a "special duty" was owed to her (Valdez v City of New York, 18 NY3d 69), and (2) the decision not to proceed with an arrest of Mr. Torres results from a discretionary governmental action, which can never be the basis for liability (McLean v City of New York, 12 NY3d 194).
Therefore, it is
ORDERED, that motion No. M-84031 is hereby GRANTED; and it is further
ORDERED, that claim No. 122988 is hereby DISMISSED.
December 19, 2013
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims