Opinion
2012-12-13
Ursula MOORE–MOHAMMED, etc., Plaintiff–Appellant, v. CITY OF NEW YORK, et al., Defendants–Respondents.
The Taub Law Firm, P.C., New York (Matthew A. Taub of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Mordecai Newman of counsel), for respondents.
The Taub Law Firm, P.C., New York (Matthew A. Taub of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Mordecai Newman of counsel), for respondents.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 20, 2011, which, in this negligence action arising from a 911 call, to the extent appealed from as limited by the briefs, granted defendants' cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants made a prima facie showing of the lack of a special relationship between plaintiff's decedent and defendants by submitting evidence that they did not give the decedent any assurance or direction that would justify any reliance on decedent's part ( Dinardo v. City of New York, 13 N.Y.3d 872, 874–875, 893 N.Y.S.2d 818, 921 N.E.2d 585 [2009];Diliberti v. City of New York, 49 A.D.3d 424, 854 N.Y.S.2d 372 [1st Dept. 2008] ).
In opposition, plaintiff failed to raise a triable issue of fact. Indeed, plaintiff failed to submit any evidence of an assumption by defendants, through promises or actions, of an affirmative duty to act on behalf of the decedent ( compare Diliberti, 49 A.D.3d at 424, 854 N.Y.S.2d 372,with De Long v. Erie County, 60 N.Y.2d 296, 305, 469 N.Y.S.2d 611, 457 N.E.2d 717 [1983],and Applewhite v. Accuhealth, Inc., 90 A.D.3d 501, 504–505, 934 N.Y.S.2d 164 [1st Dept. 2011] ).