Laratro v. City of New York

Marlow, J. (dissenting).

As a general rule, a municipality is not liable for injuries sustained as the result of a failure to perform a governmental function, an immunity which includes *193providing police and fire protection and emergency assistance (see Cuffy v City of New York, 69 NY2d 255 [1987]; De Long v County of Erie, 60 NY2d 296 [1983]). This rule stems from the principle that a municipality’s duty to provide protection or assistance is owed to the public at large, not to any one individual (see Cuffy, supra; accord Kircher v City of Jamestown, 74 NY2d 251 [1989]). A tort claim will be allowed as an exception to this general rule of law only if a “special relationship” exists between the municipality and the plaintiff (see Cuffy, supra). The Court of Appeals has explained that, in order to establish a special relationship, a plaintiff must satisfy four elements (id. at 260). This plaintiff has not satisfied the “direct contact” element as that phrase has been defined by current decisional law. Therefore, I respectfully dissent and would affirm the order granting the City defendants summary judgment.

In order to prove direct contact, the injured party must demonstrate that he or she relied on the municipality’s voluntary undertaking. In addition to reliance, a plaintiff must also establish “some direct contact between agents of the municipality and the injured party” (Sorichetti v City of New York, 65 NY2d 461, 469 [1985]). This presents an obstacle which this plaintiff cannot overcome. While this element has been expanded to include situations where a third party, and not the injured plaintiff, was in direct contact with and relied on the municipality’s representations and/or assurances, these exceptions are limited and are narrowly prescribed.

Generally, a third party who requests assistance from a municipality on behalf of another cannot satisfy the direct contact element of a special relationship.1 Rather, a plaintiff must show that the third party and the plaintiff were family members,2 that the plaintiff and the third party shared a family-*194like relationship,3 that a contractual relationship existed between the plaintiff and the third party,4 or that an order of protection had been issued for plaintiffs benefit.5

In expanding the parameters of liability “courts must be mindful of the precedential, and consequential, future effects of their rulings” (Lauer v City of New York, 95 NY2d 95, 100 [2000]) and “limit the legal consequences of wrongs to a controllable degree” (Tobin v Grossman, 24 NY2d 609, 619 [1969]). The narrow exceptions to direct contact have never been expanded by any New York State appellate court to encompass the type of relationship plaintiff urges.6 Therefore, I believe that a decision to permit a tort claim against a municipality for negligently provided emergency services based on direct contact by a plaintiffs coworker—rather than by the injured worker— should be made by the Court of Appeals or the Legislature, rather than by an intermediate appellate court, for the following reasons: (1) the lack of precedent; (2) the clear line the Court of Appeals drew in Cuffy; and (3) the significantly increased liability exposure to municipalities that will ensue from enlarging the class of persons who may claim a “special relationship” with a municipality.

Mazzarelli, J.P., Gonzalez and Sweeny, JJ., concur with Saxe, J.; Marlow, J., dissents in a separate opinion.

Order, Supreme Court, New York County, entered April 5, 2004, reversed, on the law, without costs, the municipal defendants’ motion for summary judgment dismissal denied, and the complaint reinstated as against them.

. Merced v City of New York, 75 NY2d 798 (1990); Kircher v City of Jamestown, 74 NY2d 251 (1989); Baez v City of New York, 309 AD2d 679 (2003); D'Ambra v Di Donna, 305 AD2d 958 (2003); Valdes v New York City Hous. Auth., 244 AD2d 175 (1997); Bogart v Town of New Paltz, 145 AD2d 110 (1989), lv denied 74 NY2d 608 (1989); Helman v County of Warren, 111 AD2d 560 (1985), affd 67 NY2d 799 (1986); but see Thomas v City of Auburn, 217 AD2d 934 (4th Dept 1995).

. (Cuffy v City of New York, 69 NY2d 255 [1987]; Kodryanu v City of New York, 274 AD2d 376 [2000]; Stata v Village of Waterford, 225 AD2d 163 [1996]; Berliner v Thompson, 174 AD2d 220 [1992]; Harris v City of New York, 147 AD2d 186 [1989].) Notably, the courts have declined to find direct contact even where the plaintiff and third party were related (see Cuffy, supra; Estate of Scheuer v City of New York, 10 AD3d 272 [2004]).

. Adderley v City of New York, 304 AD2d 485 (2003), lv denied 100 NY2d 511 (2003).

. S.C. Freidfertig Bldrs. v Spano Plumbing & Heating, 173 AD2d 454 (1991); but see Hancock v City of New York, 230 AD2d 603 (1996).

. Mastroianni v County of Suffolk, 91 NY2d 198 (1997); Sorichetti v City of New York, 65 NY2d 461 (1985); Tarnaras v County of Nassau, 264 AD2d 390 (1999); Berliner v Thompson, 174 AD2d 220 (1992).

. In Fonville v New York City Health & Hosps. Corp. (300 AD2d 623 [2002]), the plaintiffs decedent became ill at work and a colleague called EMS. The Second Department found that no special relationship existed that would give rise to a special duty. Similarly, in Greene v City of New York (205 AD2d 584 [1994], lv denied 84 NY2d 808 [1994]), the fact that decedent’s employer called police was insufficient to establish a special relationship absent evidence that employer had received assurances from police and that those assurances had been communicated to decedent and that decedent had relied on them.