Defendants appeal from a judgment of the Supreme Court, Bronx County (Lucy Billings, J., and a jury), entered September 18, 2008, insofar as appealed from, awarding plaintiff damages for past and future pain and suffering, and awarding plaintiff's two infant children damages for past pain and suffering, and bringing up for review an order, same court and Justice, entered March 14, 2008, which denied defendants' motion to set aside the verdict.
The opinion of the court was delivered by: Catterson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Angela M. Mazzarelli, J.P., David B. Saxe, James M. Catterson, Leland G. DeGrasse and Sheila Abdus-Salaam, JJ.
In this action, plaintiff Carmen Valdez is seeking damages for injuries she sustained after her former boyfriend shot and seriously wounded her outside her apartment. The shooting followed a telephone call in which the boyfriend, Felix Perez, threatened to kill the plaintiff. It is undisputed that the assault occurred approximately 24 hours after a police officer, who knew that the plaintiff had an order of protection against Perez, told her that the police would arrest him immediately.
The plaintiff asserts a "special relationship" exception to the general rule that a municipality cannot be held liable for injuries resulting from the failure to provide adequate police protection. See Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 374, 505 N.E.2d 937, 939 (1987). We examine her claim in the light of the most recent Court of Appeals rulings, specifically focusing on the element of justifiable reliance, an element we find lacking in this case.
As a threshold matter, we reject the notion that McLean v. City of New York (12 NY3d 194, 878 N.Y.S.2d 238, 905 N.E.2d 1167 (2009)), and the Court's follow-up decision in Dinardo v.City of New York (13 NY3d 872, 893 N.Y.S.2d 818, 921 N.E.2d 585 (2009)), constrain our decision in this case. We recognize that in McLean, the Court held that a special duty exception to governmental immunity applies only to ministerial actions, and not discretionary ones; and further, in Dinardo, Chief Judge Lippman, in concurrence, observed that since provision of police protection is necessarily discretionary in nature, then under the rule announced in McLean, the special duty exception is essentially eliminated, and a plaintiff will never be able to recover for a failure to provide adequate police protection. Dinardo, 13 NY3d at 876, 893 N.Y.S.2d at 821.
However, we findthe resolution lies in accepting that the Court did not intend to eliminate the special duty exception, but rather specifically recognized that its precedent established a subset of police action or non-action that can provide a basis for liability. Indeed, the focus by the McLean Court on the decision in Cuffy (69 N.Y.2d 255, 513 N.Y.S.2d 372) appears to reinforce the well-established rule that a governmental agency's liability for negligent performance depends in the first instance on whether a special relationship existed with the injured person. The Court specifically lists the special duty exception established in Cuffy as one of the three ways a special relationship can form and thus sustain liability against a municipality. The Court highlights the four elements that establish such a special duty exception, and then finds that such elements were not present in the McLean case. McLean, 12 NY3d at 201, 878 N.Y.S.2d at 243.
It is inconceivable then, that the Court intended to eliminate the special duty exception upon which liability in police cases can be found without explicitly reversing the position it appears to solidly reiterate by citing Cuffy at length in the decision. On the contrary, both McLean and Dinardo support the position that the starting point of any analysis as to governmental liability is whether a special relationship existed; and not whether the governmental action is ministerial or discretionary. See McLean 12 NY3d at 203, 878 N.Y.S.2d at 245 ("[i]n [Pelaez and Kovit] we found no special relationship or special duty. Thus there could be no liability, whether the actions at issue were characterized as ministerial or discretionary."); see also Dinardo, 13 NY3d at 874, 893 N.Y.S.2d at 819 (the Court had no occasion to decide that question of whether action is discretionary or ministerial since there is no rational process by which a jury could have reached a finding that plaintiff justifiably relied on assurances).
In this case, therefore, we do not need to reach the issue of whether the action was discretionary or ministerial since the plaintiff ultimately fails to establish the element of justifiable reliance for a special duty exception. In assertinga special relationship exception to the general rule that a municipality cannot be held liable for injuries resulting from the failure to provide adequate police protection, the plaintiff has the burden of establishing such a relationship by showing that (1) the municipality assumed an affirmative duty, through promises or actions, to act on behalf of the injured party; (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 party's justifiable reliance on the municipality's undertaking. Cuffy, 69 N.Y.2d at 260, 513 N.Y.S.2d at 375.
In this case, the first three elements are not at issue. However, the defendants assert that the trial court erred in its finding that the plaintiff established justifiable reliance on the City's undertaking. For the reasons set forth below, we agree with the defendants, and reverse the trial court.
Specifically, Cuffy and its progeny stand for the proposition that the justifiable reliance element cannot be satisfied by evidence of a plaintiff's belief in, or expectation of adequate police protection. See also Badillo v. City of New York, 35 AD3d 307, 308, 827 N.Y.S.2d 133, 134 (1st Dept. 2006) (decedents' alleged reasonable expectation that help was on the way after 911 cell phone call not enough to establish justifiable reliance), citing Grieshaber v. City of Albany, 279 A.D.2d 232, 235-236, 720 N.Y.S.2d 214, 216 (3rd Dept. 2001), lv. denied, 96 N.Y.2d 719, 733 N.Y.S.2d 371, 759 N.E.2d 370 (2001); Clark v. Town of Ticonderoga, 291 A.D.2d 597, 737 N.Y.S.2d 412 (3rd Dept. 2002), lv. denied, 98 N.Y.2d 604, 746 N.Y.S.2d 278, 773 N.E.2d 1016 (2002),(reliance element cannot be satisfied by evidence of plaintiff's hope or even belief); see also Finch v. County of Saratoga, 305 A.D.2d 771, 773, 758 N.Y.S.2d 220, 223 (3rd Dept. 2003).
Unfortunately for her case, the plaintiff does not argue more. In her appellate brief, the plaintiff reiterates her testimony to assert that "when she opened her apartment door she believed [the police] had acted on [their] promise [...]to arrest Perez immediately" (emphasis added). Nor does her actual ...