Diliberti v. City of New York

Appellate Division of the Supreme Court of New York

Diliberti v. City of New York

49 A.D.3d 424, 854 N.Y.2d 372

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 20, 2008

StatusPublished

Cited by4 cases

This text of 49 A.D.3d 424 (Diliberti v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Diliberti v. City of New York, 49 A.D.3d 424, 854 N.Y.2d 372 (N.Y. Ct. App. 2008).

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Opinion

Defendant established its prima facie entitlement to summary judgment by producing the 911 recording and Sprint report, revealing a 30-second call that did not include any assurance by the operator that help was on its way, or any direction to the infant caller that she should not do anything, before the call was broken off (see Doe v Town of Hempstead Bd. of Educ., 18 AD3d 600 [2005]). This shifted the burden to plaintiffs who, even after granting them all favorable inferences, failed to establish an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the infant plaintiff (see Laratro v City of New York, 8 NY3d 79 [2006]; Cuffy v City of New York, 69 NY2d 255 [1987]). In this regard, we find the opinion of plaintiffs’ expert speculative and conclusory, and thus insufficient to withstand summary judgment (see Diaz v New York Downtown Hosp., 99 NY2d 542 [2002]). Concur—Tom, J.P., Saxe, Friedman, Gonzalez and Catterson, JJ.

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Defendant established its prima facie entitlement to summary judgment by producing the 911 recording and Sprint report, revealing a 30-second call that did not include any assurance by the operator that help was on its way, or any direction to the infant caller that she should not do anything, before the call was broken off (see Doe v Town of Hempstead Bd. of Educ., 18 AD3d 600 [2005]). This shifted the burden to plaintiffs who, even after granting them all favorable inferences, failed to establish an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the infant plaintiff (see Laratro v City of New York, 8 NY3d 79 [2006]; Cuffy v City of New York, 69 NY2d 255 [1987]). In this regard, we find the opinion of plaintiffs’ expert speculative and conclusory, and thus insufficient to withstand summary judgment (see Diaz v New York Downtown Hosp., 99 NY2d 542 [2002]). Concur—Tom, J.P., Saxe, Friedman, Gonzalez and Catterson, JJ.

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Bluebook (online)

49 A.D.3d 424, 854 N.Y.2d 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diliberti-v-city-of-new-york-nyappdiv-2008.

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