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MERCED v. CITY OF NEW YORK

November 12, 1997

DIANA MERCED, Plaintiff, against THE CITY OF NEW YORK and THE NEW YORK CITY HOUSING AUTHORITY, Defendants.


The opinion of the court was delivered by: CHIN

 Chin, D.J.

 On March 9, 1989, two unknown assailants shot plaintiff Diana Merced in the face outside her mother's third-floor apartment in a New York City Housing Authority project in the Bronx. Plaintiff alleges that Joseph Navedo, her ex-boyfriend and the father of her child, was behind the shooting. Navedo was a known drug dealer, and plaintiff had been cooperating with the authorities in their efforts to prosecute him. The shooting occurred on the very day that plaintiff had been scheduled to testify against Navedo. Although the trial was adjourned at the last moment, plaintiff was shot as she left her apartment to take out the trash.

 Plaintiff sued the New York City Housing Authority (the "Housing Authority") and the City of New York (the "City") for damages for her injuries sustained as a result of the March 9, 1989 shooting. She claims that the Housing Authority Police Department (the "HAPD") and the New York City Police Department (the "NYPD") negligently failed to protect her from Navedo.

 Defendants move for summary judgment, arguing that plaintiff cannot establish a genuine issue of material fact as to whether the HAPD and the NYPD owed her a special duty of police protection under New York law. Additionally, the Housing Authority contends that, even assuming the HAPD did owe her a special duty, plaintiff cannot establish that any negligent act or omission on the part of the HAPD was the proximate cause of her injuries, given that the March 9, 1989 shooting was perpetrated by unknown assailants.

 Genuine issues of fact are presented, however, as to both the existence of a special relationship and the issue of proximate cause. Plaintiff was cooperating with law enforcement authorities, who knew that Navedo had physically abused and threatened her. Indeed, they were aware that at one point Navedo had kidnapped plaintiff and her son and threatened to kill them. The authorities were aware of the orders of protection that plaintiff had obtained against Navedo. Finally, plaintiff had specifically asked both the HAPD and the NYPD for assistance, and they had repeatedly assured her that "everything would be taken care of." Yet, on the day that plaintiff had been scheduled to testify against Navedo, she was shot. A reasonable jury could find, on these facts, that defendants owed a special duty to plaintiff, that they failed to meet their obligations to plaintiff, and that, as a proximate result, she was shot. Accordingly, both motions for summary judgment are denied.

 BACKGROUND

 A. The Facts

 Plaintiff met Joseph Navedo in September of 1983 and began dating him about a year later. Their relationship was quite turbulent from the beginning. Early on, plaintiff attempted to leave Navedo several times, but each time she tried, he threatened to harm her and her family if she left him.

 1. The Ramada Inn Arrest

 Navedo was a drug dealer, and plaintiff routinely accompanied him on trips between New York City and Florida, the purpose of which was to transport drugs. Sometime in the spring of 1987, when plaintiff and Navedo had just returned from Florida and were staying at the Ramada Inn in Manhattan, Navedo demanded that plaintiff accompany him on a trip to Puerto Rico, also to transport drugs. Plaintiff, however, refused. Navedo became angry and threatened to kill her if she did not accompany him.

 Frightened, plaintiff called her mother from the hotel. Plaintiff's mother, Ramonita Merced, said she would contact the police on plaintiff's behalf, and she went to the 44th Precinct, where she spoke to Detective Jose Arroyo. She explained her daughter's situation to Detective Arroyo, and also informed him that Navedo was a drug trafficker who had just come back from Miami with drugs. Detective Arroyo assured plaintiff's mother that the police would get plaintiff out of the hotel safely and that they would apprehend Navedo. Later that evening, plaintiff spoke to Detective Arroyo herself and expressed her fear of Navedo for having informed on him. While plaintiff did not specifically ask for police protection at this time, Detective Arroyo reassured her that "everything was going to be taken care of, that they were going to pick him up," (Kool Aff., Exh. K, Deposition of Diana Merced dated May 15, 1992 at 158 [hereinafter Diana Merced Dep. Tr., Vol. II]), and that "it was over. [Navedo] was going to spend a lot of time in jail. [Plaintiff] didn't have to worry." (Doyle Aff., Exh. C, Deposition of Diana Merced dated May 29, 1992 at 29 [hereinafter Diana Merced Dep. Tr., Vol. III]).

 Thereafter, Detective Arroyo contacted the United States Drug Enforcement Administration (the "DEA"). He spoke to NYPD Detective Bruce Rivera, who was assigned to the Drug Enforcement Task Force (the "DETF"), a joint task force comprised of DEA agents and city and state police officers, and relayed the information told to him by plaintiff and plaintiff's mother. Detective Rivera went to plaintiff's mother's house to discuss with her Navedo's whereabouts. Plaintiff's mother described her daughter's situation and expressed her fear for her daughter's safety. Detective Rivera explained to plaintiff's mother the available options for ensuring plaintiff's safety, which included relocating her or placing her in the witness protection program. Detective Rivera also spoke with plaintiff that evening. Plaintiff reluctantly told him the details of Navedo's plans, to assist the DETF in Navedo's arrest. She also expressed her fear that Navedo would find out about her cooperation with the authorities. Detective Rivera assured her that Navedo would not find out and "explained to her . . . the options she had as far as protection." (Kool Aff., Exh. K, Deposition of Bruce Rivera dated September 22, 1992 at 18 [hereinafter Rivera Tr.]).

 The next day, members of the DETF arrived at the Ramada Inn and arrested Navedo pursuant to an outstanding federal warrant. Based on additional information provided by plaintiff, authorities recovered drug evidence hidden in a trap door located in Navedo's vehicle.

 After his arrest, Navedo was incarcerated, and plaintiff thought she was safe because she believed that Navedo was going to remain in jail for a long time. At some point during his incarceration, however, Navedo offered to cooperate with the DEA and the U.S. Attorney's Office by acting as a registered confidential informant on the street. Consequently, Navedo remained in prison for only three months, and was released in July of 1987. Upon learning of Navedo's release, plaintiff contacted Detective Rivera and expressed her renewed fear that Navedo would discover that plaintiff had cooperated with the police. Again, Rivera "assured her there was no way [Navedo] would know and, to the best of [his] knowledge, he didn't know," and that "unless she said anything, he doesn't know and there is no reason for him to know." (Doyle Aff., Exh. J, Rivera Tr. at 25-26, 31). Detective Rivera also told her, "whenever he is doing anything else funny, call us, and we will get him." (Kool Aff., Exh. K, Diana Merced Dep. Tr., Vol. II at 172). Based on this conversation, plaintiff believed that the NYPD was going to take some action to protect her from Navedo; no action was taken at all, however, and Navedo remained on the streets.

 2. Further Assaults and Incidents of Harassment by Navedo

 From the time of his release in July of 1987, Navedo continually came to plaintiff's mother's apartment in the housing project at 3204 Park Avenue in the Bronx, where plaintiff was residing. According to plaintiff, on several occasions, Navedo would bang on the door, curse, threaten, and harass plaintiff and her family. She would call the HAPD, but by the time an officer arrived, Navedo would have already left. The officer who arrived at the scene would tell plaintiff to call again if Navedo came back, and reassured her that they would respond.

 After two such incidents, on August 28, 1988 and September 19, 1988, plaintiff filed formal, written complaints against Navedo with the HAPD. These reports indicate that after each incident, plaintiff was referred to court for an order of protection. (See Kool Aff., Exh. C). Plaintiff had previously obtained an order of protection against Navedo from the Bronx Criminal Court on February 22, 1988, and after the above incidents, she secured a second order of protection from the Bronx Family Court on September 22, 1988. Despite these orders of protection, Navedo continued to harass and threaten plaintiff.

 Sometime between September 22, 1988 and October 31, 1988, Navedo assaulted plaintiff again by punching her in the face with a pair of brass knuckles. The police were summoned, and, according to plaintiff's testimony, both the HAPD and the NYPD responded to the call. The HAPD officer told her that they could not do anything about it because Navedo had already fled the scene; however, he also told her that "the next time [Navedo] came around to call them, they would come by." (Kool Aff., Exh. K, Diana Merced Dep. Tr., Vol. II at 194). Following treatment at Lincoln Hospital, plaintiff went to the local NYPD precinct to make a report. At that time, plaintiff contends she presented her September 22, 1988 order of protection and told an officer at the precinct that she was scared that Navedo would try to harm her again. Again, plaintiff was told that there was nothing the police could do, and that eventually Navedo would leave her alone.

 3. Kidnapping and Assault Incident of October 6, 1988

 Plaintiff immediately reported the kidnapping and assault to Detective Wagner at the HAPD. Detective Wagner, along with Detective Cebollero and Lieutenant Durando of the DETF, negotiated with Navedo for the return of the child. During the negotiations with Navedo, he demanded to speak to plaintiff on the phone. The officers listening in heard Navedo make death threats to plaintiff, yet they told plaintiff that he was merely trying to scare her. The collective effort of the HAPD and the DETF resulted in the return of the child, although, in exchange for release of the child, the ...


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