Conde v. City of New York

[596] In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated April 14, 2003, which granted the defendants’ motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The plaintiffs are members of an extended family who resided together in an apartment in Brooklyn. In 1996 Danielle DiMedici, a member of the family living in the apartment, was kidnapped by James Parker, her former boyfriend. After several days, Parker released DiMedici and threatened to kill her and her family if she did not resume their relationship. After her release, the New York City Police Department (hereinafter the NYPD) began providing 24-hour protection to the family at its residence. Approximately eight days later, the NYPD informed the family that it was discontinuing the 24-hour protection but would provide “special attention” to the family residence by hourly or half-hourly police visits. Approximately 36 hours after the police implemented the “special attention” protection, Parker returned, held the family hostage for several hours, killed DiMedici and her grandmother, wounded several other family members, and eventually killed himself. Generally, a municipality may not be held liable for the failure to provide police protection because the duty to provide such protection is owed to the public at large, rather than to any particular individual (see Cuffy v City of New York, 69 NY2d 255, 260 [1987]). A narrow exception to the rule exists where a special relationship exists between the municipality and the injured parties (see Cuffy v City of New York, supra-, see also Mastroianni v County of Suffolk, 91 NY2d 198, 203 [1997]; Basher v City of New York, 268 AD2d 546, 547 [2000]). The elements of a special relationship 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) the injured party’s justifiable reliance on the municipality’s affirmative undertaking (see Mastroianni v County of Suffolk, supra; Tarnaras v County of Nassau, 264 AD2d 390 [1999]). [597] The defendants established their prima facie entitlement to summary judgment dismissing the complaint. In opposition, the plaintiffs failed to raise a triable issue of fact as to their justifiable reliance on the defendants’ affirmative undertaking to provide them with protection. The element of reliance “provides the essential causative link between the ‘special duty’ assumed by the municipality and the alleged injury. Indeed, at the heart of most of these ‘special duty’ cases is the unfairness that the courts have perceived in precluding recovery when a municipality’s voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced him [or her] either to relax his [or her] own vigilance or to forego other available avenues of protection” (Cuffy v City of New York, supra at 261). It is the plaintiffs’ burden to show that the defendants’ conduct actually lulled them into a false sense of security, induced them to either relax their own vigilance or forego other avenues of protection, and thereby placed themselves in a worse position than they would have been had the defendants never assumed the duty (see Finch v County of Saratoga, 305 AD2d 771, 773 [2003]; Clark v Town of Ticonderoga, 291 AD2d 597, 599 [2002]). The plaintiffs were expressly told that the defendants would provide “special attention.” This “special attention” consisted of a police officer who would “walk by” or “drive by” the plaintiffs’ apartment building “from time to time” to “check on the apartment.” The NYPD roll-call reports and memo books demonstrated that one or two uniformed officers surveilled the plaintiffs’ apartment building every half hour or hour. The parties do not dispute that the NYPD provided “special attention.” Simply stated, the NYPD did exactly what it promised the plaintiffs that it would do by periodically going by the apartment and providing “special attention” to them. Upon being informed that the NYPD was withdrawing the 24-hour protection of the plaintiffs’ home and replacing it with “special attention,” the plaintiffs’ could justifiably rely only upon the “special attention” protection which was promised and provided. Under the facts of this case, a special relationship existed, but only to the extent of the “special attention.” The dissent misapprehends the analytical construct of “reliance” by inexplicably considering it as a function of “outcome.” The reliance element is not to be viewed solely on the basis of whether or not the protection afforded the citizen was ultimately successful. Rather, reliance must be examined in the specific context of the nature of the affirmative duty undertaken. The tragic outcome cannot distract from the issues nor may it cloud the focus of our analy- [598] sis. The implications of our dissenting colleague’s rationale would impose a quasi-insurer’s liability upon the municipality in clear contravention of firmly-established precedent and sound public policy. Thus, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint. Adams, J.E, Smith and Rivera, JJ., concur.