in a memorandum as follows: In order for a municipality to be liable to a claimant under the "special relationship” or "special duty” exception, four elements need be established: (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 (Cuffy v City of New York, 69 NY2d 255, 260).
Plaintiff failed to establish that a special duty was owed him by defendants, notwithstanding the majority’s effort to jerrybuild one for them. Specifically, the second of the four elements set out in Cuffy was not established. Where the defendant shows that an element of a special duty is missing as a matter of law, the defendant is entitled to summary judgment (see, Kircher v City of Jamestown, 74 NY2d 251, 255).
Even on this motion for summary judgment where credibility is not a proper consideration, plaintiff failed to establish that *163knowledge existed on the part of the police officers that their inaction could lead to his being harmed or that a question of fact existed as to that issue. The information plaintiff claimed he provided to the police officers—that plaintiff was afraid because two men, who assisted plaintiff with correct information regarding the subway entrance, subsequently followed him to the train platform, and waited for the train, albeit at a distance from plaintiff, but never threatened him—cannot reasonably be said to establish knowledge on their part that their inaction could lead to plaintiff’s injury. To satisfy that element, under the circumstances, would have required additional information tending to establish a greater sense of imminent danger.
The majority resorts to sophistry in attempting to establish the second Cuffy element on the basis of plaintiff’s subjective assertion that he was afraid of the individuals in question and by pointing out in retrospect that the crime in fact occurred. However, this argument does not explain why the police officers should have known at the time that their inaction could lead to plaintiff’s harm; and in any case, no authority exists wherein a special duty was found purely on the basis of such sparse, subjective evidence. In the cases cited by plaintiff, the information possessed by the municipal agent regarding the likelihood of harm to the claimant was much more concrete (see, e.g., Julmis v City of New York, 194 AD2d 522; Zwart v Town of Wallkill, 192 AD2d 831; Greene v City of New York, 170 AD2d 321; Berliner v Thompson, 166 AD2d 78; Harris v City of New York, 147 AD2d 186). Moreover, municipal liability has been denied even where the elements of a special duty were supported by much stronger evidence than that before us here (see, Riss v City of New York, 22 NY2d 579, affg 27 AD2d 217, 218-219).
Although the special duty exception has been criticized for being too rigidly applied so as to defeat meritorious claims against municipalities, the majority’s decision goes too far in the other direction and grants viability to an invalid claim. Since crime prevention is not a special duty but a nonactionable responsibility owed to all persons within the jurisdiction, I would affirm.