- January 30, 2018
Sokoloff Stern LLP, Carle Place, NY (Steven C. Stern and
David A. Gold of counsel), for appellant.
& Gilbert, New York, NY (Harvey A. Levine of counsel),
REINALDO E. RIVERA, J.P. ROBERT J. MILLER SYLVIA O.
HINDS-RADIX JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action to recover damages for personal injuries and wrongful
death, the defendant Town of Ramapo appeals from (1) an order
of the Supreme Court, Westchester County (Linda Christopher,
J.), dated February 24, 2017, and (2) an amended order of the
Supreme Court, Rockland County (Linda Christopher, J.), dated
May 4, 2017. The amended order, insofar as appealed from,
denied that branch of the motion of the defendant Town of
Ramapo, made jointly with the defendant Town of Ramapo Police
Department, which was pursuant to CPLR 3211(a) to dismiss the
complaint insofar as asserted against it.
that the appeal from the order dated February 24, 2017, is
dismissed, as that order was superseded by the amended order
dated May 4, 2017; and it is further, ORDERED that the
amended order dated May 4, 2017, is affirmed insofar as
appealed from; and it is further, ORDERED that one bill of
costs is awarded to the plaintiff.
action was commenced by the plaintiff in her capacity as the
administrator of the estate of her mother, Patricia A. Nigro,
who was shot and killed by her husband, William T. Groesbeck.
complaint alleged that Nigro and Groesbeck lived together at
a residence in Sloatsburg, New York, which was within the
jurisdiction of the defendant Town of Ramapo Police
Department (hereinafter the Town police department). The
complaint also alleged that Groesbeck was a former police
officer who had worked for the Ramsey, New Jersey Police
Department. The complaint alleged that although Groesbeck
possessed a "carry weapon'' while residing at
the Sloatsburg residence, he did not possess a license to
carry or possess the weapon in the State of New York.
complaint alleged that, on an unspecified date in 2015, Nigro
contacted the Town police department after Groesbeck
physically assaulted her. The complaint alleged that members
of the Town police department responded to the couple's
Sloatsburg residence, where Nigro told them that Groesbeck
had assaulted her and that she feared for her life. Nigro
allegedly notified the responding police officers that
Groesbeck possessed a handgun. The complaint alleged that the
officers confiscated Groesbeck's handgun but did not
complaint alleged that the Town police department later
learned that Groesbeck had been a police officer in New
Jersey and that it "illegally and irresponsibly
returned" the handgun to Groesbeck "even though he
could not produce and in fact did not have a license' to
possess the handgun in the State of New York.
complaint alleged that on October 21, 2015, Groesbeck
viciously beat Nigro, causing skull fractures and other
internal injuries. Groesbeck then shot and killed Nigro with
the same handgun that had been returned to him by the Town
police department. After murdering Nigro, Groesbeck took his
plaintiff sought to recover damages against, among others,
the Town of Ramapo for personal injuries and wrongful death.
The complaint alleged that the Town, by virtue of the actions
of the Town police department, was negligent in returning the
handgun to Groesbeck. The complaint alleged that the Town
police department did not have the legal authority to return
the handgun to Groesbeck since he was not licensed to possess
it in the State of New York. The complaint further alleged
that Nigro had relied upon the fact that the Town police
department would comply with existing law.
Town moved, inter alia, pursuant to CPLR 3211(a) to dismiss
the complaint insofar as asserted against it, submitting
evidence in support of its motion. The Town argued that it
did not owe Nigro a duty of care since there was no special
relationship between her and the Town police department. The
Town further contended that Groesbeck's criminal acts
were a superseding cause of Nigro's death. Finally, the
Town argued that the doctrine of governmental immunity
shielded it from liability for the discretionary actions