Levine & Gilbert, attorneys for defendants, Town of Ramapo, Inc. and Town of Ramapo Police Department.
Levine & Gilbert, attorneys for defendants, Town of Ramapo, Inc. and Town of Ramapo Police Department.
The following papers numbered 1–14 were considered in connection with defendantsTown of Ramapo, Inc. and Town or Ramapo Police Department's, motion for an Order pursuant to CPLR § 3211(a)(7) dismissing plaintiff's complaint against defendants:
Notice of Motion/Affirmation of Steven C. Stern, Esq./Exhibits
A–B/Memorandum of Law
|Affirmation of Harvey A. Levine, Esq. in Opposition/Exhibits A–F|| |
Reply Memorandum of Law
Sur–Reply Affirmation of Richard A. Gilbert, Esq.
On April 28, 2016 plaintiff, as administrator of the estate of her mother, filed a Summons and Verified Complaint through the NYSCEF system alleging a cause of action in negligence against the Town of Ramapo, Inc. and the Town of Ramapo Police Department in connection with the murder of her mother by her mother's husband, a retired police officer, who then committed suicide. Plaintiff alleges that the defendants are liable for the murder of her mother in that they returned a handgun to her mother's husband (Groesbeck) that they had confiscated in connection with a domestic violence incident, notwithstanding that Groesbeck did not possess a license to carry the gun in New York, and notwithstanding that he had physically assaulted plaintiff's mother and that she had conveyed to the police that she was mortally in fear of her life. Plaintiff also alleges that the police violated their duty to arrest her mother's husband for commission of a felony, given her mother's allegation of being physically assaulted by him.
The relevant paragraphs of the Verified Complaint state:
Seventh: That upon information and belief and at all the times hereinafter mentioned, plaintiff's decedent as well as plaintiff relied on the fact that any and all Police personnel interacting with plaintiff's decedent would comply with and follow extant law as it existed on and prior to the dates in question.
Tenth: That upon information and belief and at all the times hereinafter mentioned, the said William T. Groesbeck was a former Police Officer having worked with the Ramsey New Jersey Police Department sometime prior to October 21, 2015.
Eleventh: That upon information and belief, the said William T. Groesbeck possessed a carry weapon while residing at 3 Adam Court, Sloatsburg, New York.
Twelfth: That upon information and belief and at all the times hereinafter mentioned, the said William T. Groesbeck did not possess a license to carry or possess the aforesaid carry weapon in the State of New York.
Thirteenth: That upon information and belief and sometime prior to October 21, 2015 at 11:14 a.m. or thereabouts, plaintiff's decedent Patricia A. Nigro was physically assaulted by her husband W .T. Groesbeck.
Fourteenth: That as a result of said physical assault as well as her fear that her life may be endangered by her husband's conduct and penchant for abuse, she filed a complaint with the defendant Town of Ramapo Police Department.
Fifteenth: That upon information and belief and at all times hereinafter mentioned, police officers from the Town of Ramapo Police Department responded to and arrived at plaintiff's decedent's residence.
Sixteenth: That upon arriving at said residence, plaintiff's decedent notified the responding officers that her husband W.T. Groesbeck was in possession of a hand gun and that she was mortally in fear of her life.
Seventeenth: That upon information and belief and at all times hereinafter mentioned, the responding police officers initially confiscated plaintiff's decedent's husband's hand gun.
Eighteenth: That after learning that plaintiff's decedent's husband had been a police officer with the Ramsey New Jersey police, they illegally and irresponsibly returned the said weapon to plaintiff's decedent's husband even though he could not produce and in fact did not have a license for possession of same in the State of New York.
Nineteenth: That sometime thereafter, and in particular October 21, 2015 at 11:14 A.M., plaintiff's decedent's husband utlized the same weapon hereinbefore referred to to fatally wound plaintiff's decedent with gunshot wounds to her chest and head after viciously beating her, causing skull fractures as well as organ and blood vessel lacerations and hemorrhaging, all contributing to and causing pain and suffering and ultimately her death on the aforementioned date at the time above set forth.
Twentieth: That upon information and belief, after murdering his wife as hereinbefore set forth, decedent's husband William T. Groesbeck III took his own life.
Twenty–First: that this Court will be asked to take judicial notice that it was not within the ambit of the aforementioned Town of Ramapo Police Department's officers' discretion to return the weapon to plaintiff's decedent's husband since he was in violation of State law, ie., a felony, for possessing a weapon without a license.
Twenty–Second: That it was not within the discretion of the aforementioned Town of Ramapo Police Department to abstain from arresting plaintiff's decedent's husband for commission of a felony, given plaintiff's decedent's allegation of being physically assaulted by him, since the officers' obligation was to undertake a ministerial duty mandated by existing law.
Twenty–Third: That the aforesaid officers, in violation of their ministerial obligations, for reasons only known to them failed and/or refused to arrest the decedent's husband.
Twenty–Fourth: That the defendants and/or their employees were negligent, careless and reckless in not performing their duties mandated by law and this negligence, carelessness and recklessness was a substantial cause in the conscious pain and suffering and death of the decedent.
Exhibit A, Verified Complaint, annexed to defendants' Notice of Motion.
The instant motion filed by defendants seeks an Order dismissing the Complaint, pursuant to CPLR § 3211(a)(7) on the ground that the pleading fails to state a cause of action. "On a motion to dismiss pursuant to CPLR § 3211(a)(7) for failure to state a cause of action, the court must afford the complaint a liberal construction, accept all facts as alleged in the complaint to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (citation omitted)." Jannetti, v. Whelan, 97 A.D.3d 797, 949 N.Y.S.2d 129 (2nd Dept.2012).
"The elements of a cause of action alleging common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and showing that the breach of that duty constituted a proximate cause of the injury (citations omitted)." Roberson v. Wyckoff Heights Medical Center, 123 A.D.3d 791, 792, 999 N.Y.S.2d 428 (2nd Dept.2014). "Under the public duty rule, although a municipality owes a general duty to the public at large to furnish police protection, this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that some special duty was created." Valdez v. City of New York, 18 N.Y.3d 69, 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 (2011). The duty of the police to exercise reasonable care toward a plaintiff is born of a special relationship between the plaintiff and the police. McClean v. City of New York, 12 N.Y.3d 194, 199, 878 N.Y.S.2d 238, 905 N.E.2d 1167 (2009) ; Valdez, 18 N.Y.3d 69, 936 N.Y.S.2d 587, 960 N.E.2d 356.
To establish a special relationship, [plaintiff is] required to show that there was: ‘(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’ (citations omitted).
However, even if a plaintiff can establish the elements of a negligence claim, "the common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions (citations omitted)." Id. at 75–76, 936 N.Y.S.2d 587, 960 N.E.2d 356. "[A] ... municipal defendant engaging in a governmental function can avoid liability if it timely raises the [governmental immunity] defense and proves that the alleged act or omission involved the exercise of discretionary authority." Id. at 76, 936 N.Y.S.2d 587, 960 N.E.2d 356. Discretionary acts are those acts involving the exercise of reasoned judgment. Id. Accordingly, in a negligence case where the doctrine of governmental immunity is asserted, " ‘[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violated a special duty owed to the plaintiff, apart from any duty to the public in general’ (citation omitted)." Id. at 76–77, 936 N.Y.S.2d 587, 960 N.E.2d 356. The immunity available for discretionary acts "presupposes that judgment and discretion are exercised in compliance with the municipality's procedures, because ‘the very basis for the value judgment supporting immunity and denying individual recovery [for negligence claims] becomes irrelevant where the municipality violates its own internal rules and polices and exercises no judgment or discretion’ (citation omitted)." Johnson v. City of New York, 15 N.Y.3d 676, 681, 917 N.Y.S.2d 10, 942 N.E.2d 219 (2010).
Defendants argue that the police officers' decision not to arrest plaintiff's decedent's husband, Groesbeck, when they responded to the domestic incident involving him and the plaintiff's decedent, and their subsequent return of the firearm to him (that was used by him the next day to murder plaintiff's decedent), were discretionary acts and therefore, are immune from any liability. Defendants also argue that while Groesbeck did not have a New York State license for his firearm, he was a retired police officer, and Federal law entitles qualified retired law enforcement officers to carry concealed firearms.
In opposition plaintiff asserts that defendants have failed to prove that the return of the unlicensed firearm to Groesbeck was in fact a discretionary act, and that the police complied with their own internal procedures. Moreover, while defendants claim that Federal law entitles a qualified retired law enforcement officer to carry concealed firearms, plaintiff points out that said law sets forth specific qualifications and pre-conditions for this privilege.
Additionally, defendants assert that plaintiff has failed to allege that the Town of Ramapo police had a special relationship, and owed a special duty to plaintiff's decedent. Defendants claim that there are no allegations that the police made any promises, statements or assurances to protect plaintiff's decedent, nor that she justifiably relied on any police actions.
In opposition, plaintiff argues that by confiscating the gun, the police undertook an affirmative act on behalf of plaintiff's decedent, and that plaintiff's decedent had a right to rely upon the municipality to maintain possession of the illegal weapon and not disseminate it to a non-licensed person. Plaintiff argues her decedent was afforded a false sense of security, causing her to relax her vigilance and forego other avenues of protection as if defendants had never assumed the duty.
Defendants further claim that Groesbeck's criminal conduct was an unforeseeable, intervening act and severed the chain of causation. Ingrassia v. Lividikos, 54 A.D.3d 721, 864 N.Y.S.2d 449 (2nd Dept.2008).
However, plaintiff asserts that the murder of her decedent was foreseeable when defendants' breach of duty in returning the gun to Groesbeck, who was not licensed to carry said gun, and whose gun was confiscated in the context of a domestic violence incident, occurred one day prior to him murdering plaintiff's decedent.
The Court finds that the allegations set forth in the complaint, viewed together in the light most favorable to plaintiff, set forth the required elements of a cause of action for negligence. With regard to the issue of whether plaintiff has pled the elements to establish a special relationship, plaintiff has alleged the following: 1) that in the context of a domestic incident, her mother told the police that Groesbeck possessed a handgun and that she was mortally in fear of him; 2) coupled with the fact that the police confiscated Groesbeck's handgun which he was not licensed to carry in New York; and 3) along with the allegation that plaintiff and her mother relied on the police to follow the extant law. This may establish that the police had a special relationship and owed a special duty to plaintiff's mother. While defendants claim that no negligence can lie, as discretionary actions taken by the police are entitled to governmental immunity, plaintiff has alleged that the police actions were ministerial, and not discretionary. Although it may be proven at a later stage of the action that the police action was discretionary and therefore entitled to immunity, at this early stage of the litigation, when deciding a motion to dismiss for failure to state a cause of action, the Court must view the allegations in the light most favorable to plaintiff. Similarly, taking plaintiff's allegations as true, the murder of plaintiff's decedent may have been a foreseeable consequence of defendants' actions.
Based on the foregoing the Court finds that the complaint is sufficient to withstand a motion to dismiss.
Defendants request for an order dismissing the Complaint against the Town of Ramapo Police Department is not opposed by plaintiff, as the Town of Ramapo Police Department is an agency of a municipality and is not subject to suit. Plaintiff asserts that any cause of action asserted against the Police Department is withdrawn.
Accordingly, it is
ORDERED that defendants' motion to dismiss the Complaint is denied, except to the extent that any cause of action asserted against the Police Department is withdrawn.
To the extent any relief requested in Motion Number 1was not addressed by the Court it is hereby denied.
This decision shall constitute the order of the Court.