Cohen v. City of New York

183 A.D.2d 436

Opinion

— Order, Supreme Court, Bronx County (Herbert Shapiro, J.), entered May 24, 1991, which granted defendant City of New York’s motion to dismiss the complaint for failure to state a cause of action, and order of the same court, entered December 5, 1991, which granted defendant Banco Popular’s motion for summary judgment, unanimously affirmed, without costs.

Plaintiff pleads causes of action based on the fatal shooting of her decedent on the sidewalk outside a branch of defendant bank, but admits that her pleading does not allege facts sufficient to show the elements of special relationship between the decedent and defendant City (see, Kircher v City of Jamestown, 74 NY2d 251, 264). Plaintiff’s failure to offer any evidence or even any allegation of these elements is fatal to the complaint (see, Pollock v City of New York, 145 AD2d 550, 552, lv denied 74 NY2d 601).

Opposition to defendant bank’s motion for summary judgment was improperly made solely on an affirmation of counsel (see, Hauff v CLXXXII Via Magna Corp., 118 AD2d 485), and nothing in the record suggests even a possible question of fact on such issues as whether there had been a similar incident in front of the bank on prior occasions, whether the incident took place at a particularly vulnerable location, and whether the bank had any reason to know that there was an unusual likelihood of the crime occurring when it did (see, Urgo v Jamaica Sav. Bank, 145 Misc 2d 263, 266, affd 150 Misc 2d 983). In any event, it is not pleaded that the crime took place "within the bank” (Clarke v J.R.D. Mgt. Corp., 118 Misc 2d 547, 548).

Finally, plaintiff’s candid admission that she lacks the facts even to draft adequate pleadings makes clear that her request for discovery is nothing more than a proposal for a "fishing expedition” (see, Oates v Marino, 106 AD2d 289, 291-292). Concur — Sullivan, J. P., Rosenberger, Wallach, Ross and Kassal, JJ.