Malerba v. Incorporated Village of Huntington Bay

In an action to recover damages for personal injuries, etc., the appeal is from an order of the Supreme Court, Suffolk County, dated October 29, 1979, which denied the appellants’ motion for summary judgment. Order reversed, on the law, without costs or disbursements, motion granted and complaint dismissed. Summary judgment in favor of the appellants should have been granted. Although a refusal by the police to render assistance to an individual can have serious effects, a municipality cannot be cast in damages for the police failure to perform unless the plaintiff can show that the police owed a “special duty” to him upon which he could rely (Gordon v Holt, 65 AD2d 344, 350-351; Dutton v City of Olean, 60 AD2d 335, affd 47 NY2d 756; Murrain v Wilson Line, 270 App Div 372, affd 296 NY 845; Evers v Westerberg, 38 AD2d 751). In this case, the plaintiffs were unable to make that showing. Damiani, J. P., Cohalan, Hargett and Weinstein, JJ., concur.