Ann Davis, Parent and Guardian of Minor Child Clarence Davis, Plaintiff,
New York City Transit Authority, et. ano., Defendants.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
Sylvia O. Hinds-Radix, J.
Upon the foregoing papers, the motion by defendants City of New York, "John Doe" and "Richard Roe" (collectively, the City), for an order dismissing the complaint herein pursuant to CPLR 3211(a) (7) or, alternatively, pursuant to CPLR 3212, is denied with leave to renew; the cross motion by defendant New York City Transit Authority (the Transit Authority) for an order granting summary judgment dismissing the complaint insofar as asserted against it is granted; and the cross motion by plaintiff Ann Davis, parent and natural guardian of minor child Clarence Davis, for leave to serve an amended complaint pursuant to CPLR 3025 (b) is granted
On January 9, 2007, Clarence Davis was stabbed while a passenger on a subway car in Brooklyn. Thereafter, Ann Davis, his mother, commenced this negligence action on his behalf. In her complaint, plaintiff alleges, among other things, that after observing a rowdy group of individuals in the last subway car of a train, Police Officers "Richard Roe" and "John Doe" failed to take "corrective action" and, instead advised her son to avoid the last subway car, and then exited the train when it stopped. After the police officers left the train, the rowdy group entered the subway car in which Clarence Davis and his friends were riding, and one of its members stabbed him.
At his 50-h hearing, the minor testified that a disturbance had started outside of the school. He testified that the individual who later stabbed him, did not attend the school but was present at the disturbance. The minor stated that the police officers told them to scatter and that the police officers followed the crowd of youth into the subway. He further stated that the two police officers who were riding the train with him were the same police officers who were at the disturbance at the school, and also told him not to ride in the rear car. Plaintiff Ann Davis, argues that the police officers failed to protect her son.
In its motion, the City argues that, absent a special relationship, it may not be held liable for a failure to furnish adequate police protection to a particular individual. In this case, according to the City, the police officer's warning for Clarence Davis to avoid the last subway car, where the alleged perpetrators were, is not a basis upon which to impose liability. The City adds that there is no evidence of a promise by the police officers to protect him. In its cross motion, the Transit Authority adopts the arguments advanced by the City in its moving papers and notes, additionally, that it did not employ the police officers assigned to patrol the subway.
In her cross motion, plaintiff asserts that the police officers who were present with her son on the train should have taken affirmative action to protect him and his friends once they realized the danger posed by the individuals in the other subway car. Plaintiff further asserts that the City assumed an affirmative duty to act on her son's behalf because police officers were assigned to the train on which he was riding and advised him to avoid the alleged perpetrators. She also suggests that the City's motion is premature since it has not complied with plaintiffs' discovery demands; nevertheless, she seeks leave to amend her complaint "to add additional elements of a special relationship in an additional cause of action."
In opposition to the Transit Authority's cross motion, plaintiff faults the Transit Authority for its contention that the police officers who patrolled the train were employed by the City and not the Transit Authority since "[t]his issue awaits further discovery for resolution."
In its reply papers, the Transit Authority submits a Memorandum of Understanding between it and the City, dated May 2, 1995. Pursuant to that Memorandum, the New York City Transit Police Department was merged into the New York City Police Department and, therefore, the police officers who encountered Clarence Davis were employed by the City.
In opposition to plaintiffs' cross motion and in further support of its motion, the City contends that the assignment of police officers to the "J" train line did not constitute an affirmative undertaking to act on Clarence Davis' behalf and that no promises of protection were made to the infant, only the officer's statement "not to go over there [to the last subway car]."
As a general rule, a municipality may not be held liable for injuries resulting from a simple failure to provide police protection ( see, e.g., Weiner v Metropolitan Trans. Auth., 55 N.Y.2d 175 ). There exists, however, a narrow class of cases in which an exception to this general rule has been recognized and tort claims have been upheld based upon a "special relationship" between the municipality and the claimant (see Sorichetti v City of New York, 65 N.Y.2d 461 ; DeLong v County of Erie, 60 N.Y.2d 296 ). The elements of this "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) that party's justifiable reliance on the municipality's affirmative undertaking ( see Cuffy v City of New York, 69 N.Y.2d 255, 260 ). Based upon the testimony of the minor, the police officers on the train were not merely assigned to that J line but were at the school and were involved at the point of the original disturbance. They instructed the infant not to go into the rear car of the train and consequently had direct contact with him. The court finds that plaintiff has raised a triable issue of fact as to whether there was an assumption by defendants of an affirmative duty to act on her son's behalf and whether her son justifiably relied upon the officers' undertaking by instructing him to remain in his subway car. Justifiable reliance in this context is not an "abstract element" ( Finch v County of Saratoga, 305 A.D.2d 771, 773 ); rather, plaintiff must show that defendants' "voluntary undertaking . . . lulled [her son] into a false sense of security and . . . thereby induced him either to relax his own vigilance or to forego either to relax other available avenues of protection" ( Cuffy v City of New York, supra at 261 ).
With respect to plaintiff's cross-motion for leave to serve an amended complaint, it is well settled that leave to amend pleadings should be freely given (CPLR 3025 [b]; see generally Edenwald Contracting Co. v City of New York,60 N.Y.2d 957, 959 ). Accordingly, such leave shall be granted, provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit ( AYW Networks v Teleport Communications Group,309 A.D.2d 724 , appeal dismissed 1 N.Y.3d 566 ; Leszczynski v Kelly McGlynn,281 A.D.2d 519 ). In the instant case, plaintiff has made an evidentiary showing that her proposed amendment has merit (See USA Nutritionals v Pharmalife, Inc.,293 A.D.2d 526 ). Further, there is no indication of any surprise or prejudice which would result to defendants by the granting of the proposed ...