Halpin v. Town of Lancaster

Pigott, Jr., EJ., and Hayes, J. (dissenting in part).

In reviewing a motion pursuant to CPLR 3211 (a) (7), such as the motion before us on this appeal, our role is to determine whether the pleading states a cause of action. Indeed, “[accepting the allegations as true, our ‘sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of - action cognizable at law a motion for dismissal will fail’ ” (Polonetsky v Better Homes Depot, 97 NY2d 46, 54 [2001]; see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]).

Applying those principles, we conclude that a cognizable claim exists concerning whether, under the attendant circumstances, the police officers who responded to plaintiff’s telephone call complaining of a domestic dispute voluntarily assumed a duty and were negligent in their directive to plaintiff and her husband (see Parvi v City of Kingston, 41 NY2d 553, 559-560 [1977]; Walsh v Town of Cheektowaga, 237 AD2d 947 [1997], lv dismissed 90 NY2d 889 [1997]). “The case law is clear that, even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care” (Parvi, 41 NY2d at 559). According to plaintiff, when the officers responded to her telephone call, she informed the officers that she was afraid and asked that they remove the weapons from the residence for her safety. The officers directed plaintiff and her husband to retrieve the weapons and deliver them to the homes of relatives. It was while carrying out that directive that plaintiff’s husband retrieved the weapon and shot plaintiff before he committed suicide with the same weapon.

Therefore, we would modify the order by denying those parts of defendant’s motion with respect to the second and third causes of action insofar as they allege the negligence of the police based on the breach of a duty voluntarily undertaken by de*1179fendant, and by reinstating those causes of action in their entirety. Present—Pigott, Jr., P.J., Hurlbutt, Martoche, Pine and Hayes, JJ.