"such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Once the moving party meets its initial burden of production, the burden shifts to the nonmoving party to demonstrate that there exist genuine issues of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). To defeat a motion for summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. There is no issue for trial unless there exists sufficient evidence in the record favoring the party opposing summary judgment to support a jury verdict in that party's favor. Anderson, 477 U.S. at 249. As the Supreme Court stated in Anderson, "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). With these standards in mind, the Court turns to the defendants' respective motions for summary judgment.
The only claims that remain in this case are plaintiff's negligence claims against the Housing Authority and the City for failure to provide police protection under New York State law. To prevail, plaintiff must prove that (1) a special relationship existed between her and defendants' agents, creating an actionable legal duty on the part of the HAPD and the NYPD to provide her with police protection, and (2) defendants' agents were negligent in failing to provide her with police protection.
B. Existence of a "Special Relationship"
As a general rule, a municipality may not be held liable for injuries resulting from a failure to provide police protection because "a municipality's duty to provide police protection is ordinarily one owed to the public at large and not to any particular individual or class of individuals." Cuffy v. City of New York, 69 N.Y.2d 255, 513 N.Y.S.2d 372, 374, 505 N.E.2d 937 (Ct. App. 1987). In a narrow class of cases, however, a court will hold a municipality liable in tort for injuries resulting from a failure to provide adequate police protection if the plaintiff can show the existence of a "special relationship" between her and the municipality. Sorichetti v. City of New York, 65 N.Y.2d 461, 492 N.Y.S.2d 591, 595, 482 N.E.2d 70 (Ct. App. 1985).
To prove the existence of a "special relationship," a plaintiff must establish the following four elements: "(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." Cuffy, 513 N.Y.S.2d at 375. The guiding principle in those cases in which courts have held a municipality liable is as follows: "If conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward." H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167, 159 N.E. 896 (1928) (Cardozo, J.).
1. The Housing Authority
The Housing Authority argues that summary judgment in its favor is appropriate because plaintiff cannot establish that a "special relationship" between her and the HAPD existed, obligating it to protect her from Navedo. I disagree. For purposes of this motion, the Court must accept as true plaintiff's pretrial testimony concerning the sequence of events leading up to the March 9, 1989 shooting. Viewing the evidence in this case in the light most favorable to plaintiff, I conclude that a reasonable jury could find that there existed a special relationship between her and the HAPD.
a. Assumption of Affirmative Duty
With regard to the first Cuffy element, the Housing Authority contends that the record is entirely lacking in evidence suggesting that the HAPD promised to provide police protection to plaintiff prior to the March 9 shooting. Specifically, the Housing Authority contends that no HAPD officer ever made an explicit promise of protection, and that, even though plaintiff had obtained several orders of protection against Navedo between August 1988 and March 1989, she never presented any of them at an HAPD precinct, reported a violation of any of the orders, or asked the HAPD for enforcement of the orders. Plaintiff, on the other hand, contends that she repeatedly reached out for protection and assistance from the HAPD in reaction to Navedo's continued threats and harassment, that Detective Wagner in particular reassured her that he would be there for her, and that everything would be all right, and that the HAPD was indeed aware of her orders of protection against Navedo.
While the evidence does not establish an explicit promise of police protection on the part of the HAPD, viewed in the light most favorable to plaintiff, plaintiff's proffered evidence could lead a reasonable jury to conclude that the HAPD nevertheless implicitly promised her protection or otherwise assumed an affirmative duty to act on her behalf. First, plaintiff's testimony demonstrates that she repeatedly asked for protection from the HAPD in response to the continued threats, harassment, and assaults leveled against her by Navedo. Plaintiff concedes that no HAPD officer made an explicit offer of police protection; however, when plaintiff called the HAPD in response to Navedo's threats and harassment, the HAPD officers repeatedly assured her that "if he comes back again, call us again, and we will be back." (Kool Aff., Exh. K, Diana Merced Dep. Tr., Vol. II at 179). Additionally, after the incident where Navedo punched plaintiff in the eye with brass knuckles, the HAPD officers who arrived at the scene told plaintiff that "the next time he came around to call them, they would come by." (Kool Aff., Exh. K, Diana Merced Dep. Tr., Vol. II at 194). Similarly, when plaintiff reported the death threats and harassment by Navedo that occurred in January and February of 1989, Detective Wagner assured her that he was "around." (Kool Aff., Exh. K, Diana Merced Hearing Tr., Vol. II at 161).
Moreover, Detective Estrada of the HAPD testified that it was standard HAPD procedure to afford a housing project tenant acting as a witness in a criminal case extra protection when that witness was being harassed or threatened:
If a person is a witness in a matter in court where the defendant has been arrested and the matter is going to trial or hearing . . ., if this person now is threatened or harassed by the individual or somebody else . . . that is what we call tampering with a witness. Added police protection will be implemented in that case . . . .
(Kool Aff., Exh. K, Deposition of Jose Estrada dated May 27, 1992 at 17-18). Finally, when plaintiff reported the incidents of threats and harassment by Navedo in the months preceding the March 9, 1989 shooting, her complaints were documented in reports, which indicate that plaintiff was referred to court to seek orders of protection. Plaintiff, in fact, obtained numerous orders of protection against Navedo prior to the shooting, at least two of which were the result of referrals by the HAPD. The HAPD cannot seriously contend that it was unaware of these orders of protection or that it was unaware that Navedo's repeated assaults, threats, and harassment directed toward plaintiff, which she dutifully reported to the HAPD, constituted a violation of those orders of protection. "When the police are made aware of a possible violation [of an order of protection], they are obligated to respond and investigate, and their actions will be subject to a 'reasonableness' review in a negligence action," Sorichetti, 492 N.Y.S.2d at 597, and "reasonableness" is generally a matter for the jury to decide.
Plaintiff offers testimony that Detective Wagner reassured her that the HAPD would be there for her. Detective Estrada testified that it is standard procedure to give intimidated witnesses extra protection. Plaintiff attests that HAPD officers were aware that orders of protection against Navedo were in place and that Navedo was in violation of these orders of protection. Accepting plaintiff's testimony as true and drawing all inferences in plaintiff's favor, a rational jury could conclude from the above evidence that the HAPD, through the words and conduct of its individual officers, assumed an affirmative duty to act on plaintiff's behalf. Cf. Zwart v. Town of Wallkill, 192 A.D.2d 831, 596 N.Y.S.2d 557, 559-60 (3d Dep't 1993) (holding that officers' awareness of abuse of plaintiff by her husband, based on personal knowledge and complaints lodged by plaintiff, and plaintiff's testimony that officers knew of her order of protection against husband and husband's violation thereof, raised genuine issues of material fact as to whether officers assumed a duty to protect plaintiff from her abusive husband); Berliner v. Thompson, 166 A.D.2d 78, 569 N.Y.S.2d 777, 779 (3d Dep't 1991) (holding that where police department took some steps to aid plaintiff's decedent, but where there was no evidence that the police department assured her of immediate action against her estranged husband, "contrary inferences [could] reasonably be drawn concerning the assumption of duty to act which presented triable issues of fact not determinable on a motion for summary judgment"); Baker v. City of New York, 25 A.D.2d 770, 269 N.Y.S.2d 515, 518 (2d Dep't 1966) ("Plaintiff, we think, was a person recognized by the order of protection as one to whom a special duty was owed. . . . Plaintiff was . . . singled out by judicial process as a person in need of special protection and peace officers had a duty to supply protection to her.").
b. Knowledge that Inaction Could Lead to Harm
The Housing Authority did not address the second Cuffy element in its moving papers. There is, however, sufficient evidence in the record from which a rational jury could conclude that the Housing Authority was aware that Navedo was a violent person and therefore that its inaction could lead to plaintiff's harm.
The Housing Authority had knowledge of Navedo's violent propensity based on his repeated death threats aimed at plaintiff, his harassment of her, and, most importantly, the multiple orders of protection plaintiff obtained against Navedo. An order of protection:
evinces a preincident legislative and judicial determination that its holder should be accorded a reasonable degree of protection from a particular individual. It is presumptive evidence that the individual whose conduct is proscribed has already been found by a court to be a dangerous or violent person and that violations of the order's terms should be treated seriously.