Valdez v. City of New York

74 A.D.3d 76, 901 N.Y.S.2d 166

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 2010
• Status: Published

Opinions

OPINION OF THE COURT

Catterson, J.

In this action, plaintiff Carmen Valdez is seeking damages for injuries she sustained after her former boyfriend shot and seriously wounded her outside her apartment. The shooting followed a telephone call in which the boyfriend, Felix Perez, threatened to kill the plaintiff. It is undisputed that the assault occurred approximately 24 hours after a police officer, who knew that the plaintiff had an order of protection against Perez, told her that the police would arrest him immediately.

The plaintiff asserts a “special relationship” exception to the general rule that a municipality cannot be held liable for injuries resulting from the failure to provide adequate police protection. (See Cuffy v City of New York, 69 NY2d 255, 260 [1987].) We examine her claim in the light of the most recent Court of Appeals rulings, specifically focusing on the element of justifiable reliance, an element we find lacking in this case.

As a threshold matter, we reject the notion that McLean v City of New York (12 NY3d 194 [2009]) and the Court’s follow-up decision in Dinardo v City of New York (13 NY3d 872 [2009]) constrain our decision in this case. We recognize that in McLean, the Court held that a special duty exception to governmental immunity applies only to ministerial actions, and not discretionary ones; and further, in Dinardo, Chief Judge Lippman, in concurrence, observed that since provision of police protection is necessarily discretionary in nature, then under the rule announced in McLean, the special duty exception is essentially eliminated, and a plaintiff will never be able to recover for a failure to provide adequate police protection. (Dinardo, 13 NY3d at 876.)

However, we find the resolution lies in accepting that the Court did not intend to eliminate the special duty exception, but rather specifically recognized that its precedent established a subset of police action or nonaction that can provide a basis for liability. Indeed, the focus by the McLean Court on the decision in Cuffy (69 NY2d 255 [1987]) appears to reinforce the well established rule that a governmental agency’s liability for negligent performance depends in the first instance on whether a special relationship existed with the injured person. The Court specifically lists the special duty exception established in Cuffy as one of the three ways a special relationship can form and thus sustain liability against a municipality. The Court highlights the four elements that establish such a special duty exception, and then finds that such elements were not present in the McLean case. (McLean, 12 NY3d at 201.)

It is inconceivable then, that the Court intended to eliminate the special duty exception upon which liability in police cases can be found without explicitly reversing the position it appears to solidly reiterate by citing Cuffy at length in the decision. On the contrary, both McLean and Dinardo support the position that the starting point of any analysis as to governmental liability is whether a special relationship existed, and not whether the governmental action is ministerial or discretionary. (See McLean, 12 NY3d at 203 [“In (Pelaez v Seide [2 NY3d 186 (2004)] and Kovit v Estate of Hallums [4 NY3d 499 (2005)]) we found no special relationship or special duty. Thus there could be no liability, whether the actions at issue were characterized as ministerial or discretionary”]; see also Dinardo, 13 NY3d at 874 [the Court had no occasion to decide that question of whether action is discretionary or ministerial since there was no rational process by which a jury could have reached a finding that plaintiff justifiably relied on assurances].)

In this case, therefore, we do not need to reach the issue of whether the action was discretionary or ministerial since the plaintiff ultimately fails to establish the element of justifiable reliance for a special duty exception. In asserting a special relationship exception to the general rule that a municipality cannot be held liable for injuries resulting from the failure to provide adequate police protection, the plaintiff has the burden of establishing such a relationship by showing (1) that the municipality assumed an affirmative duty, through promises or actions, to act on behalf of the injured party; (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) the party’s justifiable reliance on the municipality’s undertaking. (Cuffy, 69 NY2d at 260.)

In this case, the first three elements are not at issue. However, the defendants assert that the trial court erred in its finding that the plaintiff established justifiable reliance on the City’s undertaking. For the reasons set forth below, we agree with the defendants, and reverse the trial court.

Specifically, Cuffy and its progeny stand for the proposition that the justifiable reliance element cannot be satisfied by evidence of a plaintiffs belief in, or expectation of adequate police protection. (See also Badillo v City of New York, 35 AD3d 307, 308 [1st Dept 2006] [decedents’ alleged reasonable expectation that help was on the way after 911 cell phone call not enough to establish justifiable reliance], citing Grieshaber v City of Albany, 279 AD2d 232, 235-236 [3d Dept 2001], lv denied 96 NY2d 719 [2001]; Clark v Town of Ticonderoga, 291 AD2d 597 [3d Dept 2002] , lv denied 98 NY2d 604 [2002] [reliance element cannot be satisfied by evidence of plaintiffs hope or even belief]; see also Finch v County of Saratoga, 305 AD2d 771, 773 [3d Dept 2003] .)

Unfortunately for her case, the plaintiff does not argue more. In her appellate brief, the plaintiff reiterates her testimony to assert that “when she opened her apartment door she believed [the police] had acted on [their] promise ... to arrest Perez immediately” (emphasis added). Nor does her actual testimony indicate that her reliance was based on anything more than mere belief.

The plaintiff, who renewed an order of protection against Perez, testified that on July 19, 1996, Perez called her and threatened to kill her. She decided to leave her apartment but, on her way to her grandmother’s house, she called the police precinct. Officer Torres told her: “[D]on’t worry, don’t worry, we’re going to arrest him. Go to your home and don’t worry anymore.”

The plaintiff then returned to her apartment with her children. The plaintiff explained that she thought the arrest was going to be “immediately” because Torres “told me to go back immediately to my house.”

The plaintiff further testified that she was expecting Torres to call her to tell her about Perez’s arrest because the police had called her on a prior occasion to confirm they had served the order of protection on him. She testified that she remained in her apartment with her sons until about 24 hours after the telephone conversation with Officer Torres. She then left her apartment to take out the garbage. At that time, Perez accosted her in the hallway and repeatedly shot her.

The plaintiff conceded that at the time she stepped out of her apartment on July 20, 1996, she had not received a call from Torres, or any other police officer. Nor did she call the police precinct at any time to ascertain that Perez had been arrested.

The defendants correctly assert that the instant case is factually indistinguishable from Cuffy. In that case, the Court of Appeals determined that a verbal assurance, without more, did not constitute a sufficient basis for the plaintiff’s justifiable reliance. (Cuffy, 69 NY2d at 263.) There, the plaintiff sought police protection for himself and his family because of a tenant’s abusive conduct. He told the police that, unless he was given police protection, he was going to leave his apartment. The police told the plaintiff that he should not worry and that the police would do something about the situation “first thing in the morning.” (Id. at 259.) The police did not act on the promise and the plaintiffs wife and son suffered injuries in an altercation with the tenant on the following evening.

The Court determined that the plaintiffs reliance on the police officer’s promise was not justified because by midday the family had not seen any police activity outside their home, and the plaintiff was aware that the police had done nothing to restrain the tenant. In other words, whatever reliance Cuffy may have legitimately placed on the police officer’s promise was not valid once it was no longer “first thing in the morning.” Similarly, in this case, even if some justifiable reliance could be found on the plaintiffs behalf, it was certainly no longer valid by the end of the first day when the plaintiff had not received the expected phone call about Perez’s “immediate” arrest.

In the few cases where courts have found justifiable reliance, and thus a special relationship exception, a verbal assurance invariably has been followed by visible police protection of the plaintiff. (See Mastroianni v County of Suffolk, 91 NY2d 198 [1997] [police patrol car was initially dispatched and stationed outside plaintiffs house]; Zibbon v Town of Cheektowaga, 51 AD2d 448, 452 [4th Dept 1976], appeal dismissed 39 NY2d 1056 [1976] [victim told relatives prior to shooting: “there are police cars all over the place”].) Conversely, where the undertaking is based on a verbal assurance of protection but there is no visible police action thereafter, courts have followed Cuffy, and found that no special relationship exists. (See Finch v County of Sara-toga, 305 AD2d at 772 [plaintiff told by police: “deputy would be there within the hour”]; Clark v Town of Ticonderoga, 291 AD2d at 598 [plaintiff told by police: “we will keep an eye on you”]; Litchauer v Town of Yorktown, 134 AD2d 575 [2d Dept 1987] [no evidence of any police conduct].)

In this case, there was no visible police conduct or action of any type after Torres assured the plaintiff that he was going to arrest Perez. There was no police patrol or police officer dispatched (or even promised) to the plaintiff for her protection pending the arrest. The plaintiff did not witness the police taking Perez into custody; nor was she informed by the police— either by telephone or in person—that Perez had been arrested. By process of elimination, therefore, the plaintiffs reliance was not based on anything other than belief or expectation.

It is also significant that, even though the plaintiff testified that she understood “immediately” to mean “right away,” nevertheless her testimony does not support the inference that the use of the adverb was anything more than hyperbole. The plaintiff acknowledged in her testimony that she did not call the police on the evening of July 19th to check on Perez’s arrest “because I thought [Torres] would be out there in the street looking for Felix.”

Hence, by the plaintiffs own admission, any reliance at that point would not have been justified since she understood the police needed time to locate Perez in order to arrest him. The plaintiff, nevertheless, urges this Court to accept the proposition that the simple passage of time deemed her reliance justified. In other words, her reliance was justified 24 hours later because, solely in her estimation, by the time she stepped out of her apartment the police had sufficient time to locate and arrest Perez. Such assertion places plaintiffs proposition directly in conflict with the holding of Cuffy where passage of time without any evidence of the promised police action rendered the plaintiffs reliance unjustified.

In any event, not only did the plaintiff fail to establish that she justifiably relied on Torres’ assurance, she failed to demonstrate that she relied on it at all. The plaintiff failed to meet her burden of showing that the assurance “lulled [her] into a false sense of security, and . . . thereby induced [her] either to relax [her] own vigilance or to forego other available avenues of protection.” (Cuffy, 69 NY2d at 261.) On the contrary, her testimony indicated that she spent the entire 24-hour period (during a weekend) with her sons inside her apartment leaving only to take out the garbage—something she was obliged to do on a daily basis because of a problem with rats. Moreover, she did not offer any testimony or evidence that her grandmother’s house would have provided any better protection against Perez once she decided to step outside it and into a public area.

We are not persuaded by our dissenting colleague’s reliance on Sorichetti v City of New York (65 NY2d 461 [1985]), a case he describes as involving “less compelling” circumstances than the instant case. In Sorichetti, the salient facts involved a “distraught and helpless” mother, a violent abusive husband against whom she had an order of protection, and a child who had visitation with the husband on the day that the mother pleaded with police to arrest her husband after he made threats against her. The police, knowing about the order of protection as well as the history of violence between the couple, refused to respond immediately but told the plaintiff that they would “send a radio car out” if the father “didn’t drop [the child] off in a reasonable time” (65 NY2d at 466). The mother eventually left the police precinct. The police did not send a car at all, but the father’s sister entered his apartment later that evening and found the child with injuries severe enough to leave her permanently disabled. (65 NY2d at 467.)

Sorichetti should not be used as precedent for any analysis of an injured party’s justifiable reliance. First, Sorichetti was decided in 1985, two years before the Court fully formulated or enunciated precisely what it meant by justifiable reliance in Cuffy. Moreover, even though in Cuffy, the Court cited to Sorichetti for the element of justifiable reliance, the phrase was never used in that case. (See Sorichetti, 65 NY2d at 469.) More puzzling still is the Court’s finding of special duty in the absence of any factors that would establish reliance in Sorichetti, much less justifiable reliance.

As the Court explained in Cuffy, the rationale for including reliance as an element of special duty is that “the injured party’s reliance is as critical in establishing the existence of a ‘special relationship’ as is the municipality’s voluntary affirmative undertaking of a duty to act.” (Cuffy, 69 NY2d at 261.) This is because of “the unfairness that the courts have perceived in precluding recovery when a municipality’s voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced him either to relax his own vigilance or to forego other available avenues of protection.” (Id.) The Court found such reliance in De Long v County of Erie (60 NY2d 296 [1983]), where the victim called 911 and police officers went to the wrong address. In that case, because the victim was not yet at the mercy of the intruder, the Court found that it could not be said “that th[e] assurance [that the police were on their way] played no part in her decision to remain in her home.” (Id. at 305.) Hence, the Court found that there was a special duty.

In Sorichetti, the Court did not attempt any such similar analysis. The Court did not look at other avenues of protection the mother could have taken. On the contrary, the Court simply observed that “in her helpless and distraught state [the mother] had no alternative but to seek the assistance of the police.” (65 NY2d at 471 [emphasis added].) Hence, it would appear that the Court found a special duty in spite of One fact that the police assurance had nothing to do with lulling her into a false sense of security or influencing her choice of other avenues of protection.

Accordingly, the judgment of the Supreme Court, Bronx County (Lucy Billings, J., and a jury), entered September 18, 2008, insofar as appealed from, awarding plaintiff dámages for past and future pain and suffering, and awarding plaintiffs two infant children damages for past pain and suffering, and bringing up for review an order, same court and Justice, entered March 14, 2008, which denied defendants’ motion to set aside the verdict, reversed, on the law, the verdict vacated and the complaint dismissed. Appeal from the aforesaid order should be dismissed as subsumed in the appeal from the judgment.