Ewadi v. City of New York

Appellate Division of the Supreme Court of New York

Ewadi v. City of New York

117 A.D.3d 439, 985 N.Y.S.2d 233

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

DecidedMay 6, 2014

StatusPublished

Cited by1 cases

This text of 117 A.D.3d 439 (Ewadi 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

Ewadi v. City of New York, 117 A.D.3d 439, 985 N.Y.S.2d 233 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 19, 2013, which, to the extent appealed from [440]*440as limited by the briefs, granted the municipal defendants’ motion for summary judgment dismissing the complaint as against the City of New York and the Fire Department of the City of New York, unanimously affirmed, without costs.

Plaintiff testified at his deposition that the only words spoken to her by firefighters arriving to extinguish the fire at the building in which she was trapped were, “Hold on.” These words are too vague to manifest an assumption by firefighters of a voluntary duty to plaintiff beyond that owed to the general public (see Coleson v City of New York, 106 AD3d 474, 474-475 [1st Dept 2013]). The balance of plaintiffs assertions are insufficient to raise an issue that the fire department assumed direction and control in the face of a “known, blatant” danger, and affirmatively placed plaintiff in harm’s way (see Abraham v City of New York, 39 AD3d 21, 28 [2d Dept 2007], lv denied 10 NY3d 707 [2008]; see also e.g. Garrett v Holiday Inns, 58 NY2d 253, 262 [1983]).

Plaintiff’s argument that misfeasance does not require a special relationship to create a duty is unavailing (Applewhite v Accuhealth, Inc., 21 NY3d 420, 426 n 1 [2013]).

Concur— Gonzalez, PJ., Mazzarelli, Sweeny, Manzanet-Daniels and Clark, JJ.

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Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 19, 2013, which, to the extent appealed from [440]*440as limited by the briefs, granted the municipal defendants’ motion for summary judgment dismissing the complaint as against the City of New York and the Fire Department of the City of New York, unanimously affirmed, without costs.

Plaintiff testified at his deposition that the only words spoken to her by firefighters arriving to extinguish the fire at the building in which she was trapped were, “Hold on.” These words are too vague to manifest an assumption by firefighters of a voluntary duty to plaintiff beyond that owed to the general public (see Coleson v City of New York, 106 AD3d 474, 474-475 [1st Dept 2013]). The balance of plaintiffs assertions are insufficient to raise an issue that the fire department assumed direction and control in the face of a “known, blatant” danger, and affirmatively placed plaintiff in harm’s way (see Abraham v City of New York, 39 AD3d 21, 28 [2d Dept 2007], lv denied 10 NY3d 707 [2008]; see also e.g. Garrett v Holiday Inns, 58 NY2d 253, 262 [1983]).

Plaintiff’s argument that misfeasance does not require a special relationship to create a duty is unavailing (Applewhite v Accuhealth, Inc., 21 NY3d 420, 426 n 1 [2013]).

Concur— Gonzalez, PJ., Mazzarelli, Sweeny, Manzanet-Daniels and Clark, JJ.

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Bluebook (online)

117 A.D.3d 439, 985 N.Y.S.2d 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ewadi-v-city-of-new-york-nyappdiv-2014.

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