Meyer v. Heinemeier

203 A.D.2d 264, 609 N.Y.S.2d 353

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 1994
• Status: Published

Opinion

—In a negligence action to recover damages for personal injuries, the plaintiffs and the defendants Rolf A. Heinemeier and Edith M. Heinemeier separately appeal from so much of an order and judgment (one paper) of the Supreme Court, Orange County (Hillery, J.), entered April 20, 1992, as granted the motion of the defendants Village of Warwick and Village of Warwick Police Department for summary judgment dismissing the complaint insofar as it is asserted against them and any cross claims against them.

Ordered that the order and judgment is affirmed insofar as appealed from, with one bill of costs.

The plaintiffs Joseph Meyer and Catherine Meyer instituted this action to recover for injuries sustained when their automobile swerved to avoid a runaway horse and collided with the automobile of the defendants Rolf A. Heinemeier and Edith M. Heinemeier. The Meyers and Heinemeiers brought causes of action against the Village of Warwick and the Village of Warwick Police Department, alleging that the Police Department negligently failed to capture and contain the horse. The Supreme Court granted the municipal defendants’ motion for summary judgment dismissing the complaint insofar as it is asserted against them and any cross claims against them.

The Supreme Court properly granted summary judgment, as the appellants failed to establish a "special duty” owed to them by the municipal defendants (see, Kircher v City of Jamestown, 74 NY2d 251). Nor was such a special duty created by the officers’ earlier attempts to capture the horse, as there is no basis for finding that the appellants relied on these efforts to their detriment (see, Shinder v State of New York, 62 NY2d 945; Napolitano v County of Suffolk, 61 NY2d 863). Balletta, J. P., Ritter, Copertino and Goldstein, JJ., concur.