This motion by defendants City of Mount Vernon and The City of Mount Vernon Police Department ("Mount Vernon") for summary judgment dismissing the plaintiffs' complaint against them, construed as a motion for dismissal of the complaint pursuant to Civil Practice Law [*2]and Rules ("CPLR") § 3211, is granted.

On an unspecified date, plaintiff Angela Riddick ("Riddick") reported an assault on her person by her boyfriend, Caine Cassidy ("Cassidy"), to the 42nd precinct of the New York City Police Department ("NYPD"). At some later date, Riddick ended her relationship with Cassidy. Then, on December 3, 2002, a firearm was discharged at Riddick's apartment door. Riddick called police and, with police officers present, telephoned Cassidy who allegedly admitted to her that he had fired the shot. Nine days later, on December 12, 2002, Riddick was a passenger in a friend's car in Mount Vernon when Cassidy appeared, pursued the car and began shooting at it. Riddick was able to call the Mount Vernon police from her cell phone and they apprehended Cassidy and arrested him. Mount Vernon police reportedly told Riddick that Cassidy would be "in jail for a long time" and called the 42nd precinct to inform New York City police that Cassidy was in their custody and had admitted shooting at Riddick's door. Cassidy was charged by the Mount Vernon prosecutor with attempted assault and released that same day on $1500 cash bail. The judge who released Cassidy also issued a temporary Order of Protection as to Riddick. Five days later, Cassidy approached Riddick on the street outside her apartment building and shot her in the right eye. Reportedly, Cassidy then left the scene and committed suicide.

Riddick brought this lawsuit against the Cities of New York and Mount Vernon and their police departments alleging, among other things, that Mount Vernon negligently failed to press more serious charges against Cassidy, failed to transfer him to the 42nd precinct in the Bronx, failed to advise the "appropriate authorities" of Cassidy's history of violence against Riddick and failed to advise Riddick of Cassidy's release on bail. Plaintiffs also alleged that Mount Vernon failed to establish a policy of handling information regarding how to process a suspect apprehended in Mount Vernon who has admitted to commission of a crime in a neighboring jurisdiction and failed to train officers in how to carry out such a policy. Finally, plaintiffs alleged negligent infliction of emotional distress as to both Riddick and her daughter, who was apparently present in the apartment at the time Cassidy shot at the door. The complaint has since been dismissed as to the City of New York and the New York City Police Department.

An action may be dismissed upon motion of any party with a showing that the pleading fails to state a cause of action (CPLR § 3211[7]). On a motion to dismiss a complaint, the court must take all allegations in the complaint as true and resolve all inferences which reasonably flow therefrom in favor of the pleader (Cron v. Hargro Fabrics, Inc., 91 NY2d 362 [1998]). However, if evidentiary material submitted on a motion to dismiss shows that a fact alleged by plaintiff as true is not a fact at all, the cause of action may be dismissed (Williams v. New York City Housing Authority, 238 AD2d 413 [2nd Dept 1997]).

As a general rule, a municipality may not be held liable for injuries resulting from a failure to provide police protection (Cuffy v. City of New York, 69 NY2d 255 [1987]). A municipality's provision of police protection to its citizenry has long been regarded as a resource-allocating function that is better left to the discretion of policy makers (id.). There is, however, a narrow exception to this general rule based upon a "special relationship" between the municipality and the claimant (id.). The elements of this "special relationship" are: an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; knowledge on the part of the municipality's agents that inaction could lead to harm; some form of direct contact between the municipality's agents and [*3]the injured party; and that party's justifiable reliance on the municipality's affirmative undertaking (id.).

A duly issued order of protection constitutes an assumption of an affirmative duty of protection coupled with an awareness that inaction could lead to harm and thereby satisfies the first two elements of a special relationship (Mastroianni v. County of Suffolk, 91 NY2d 198 [1997]).

As to the fourth element, justifiable reliance, it is plaintiff's burden to show that defendants' conduct actually lulled her into a false sense of security, induced her to either relax her own vigilance or forego other avenues of protection, and thereby placed her in a worse position than she would have been in had they never assumed the duty (Clark v. Town of Ticonderoga, 291 AD2d 597 [3rd Dept 2002]; Grieshaber v. City of Albany, 279 AD2d 232 [3rd Dept 2001], lv denied 96 NY2d 719; Helman v. County of Warren, 111 AD2d 560 [3rd Dept 1985], aff'd 67 NY2d 799).

If the injured plaintiff's justifiable reliance on police action can be shown, there must also be sufficient evidence to support a finding that the municipality breached its duty of care and that the breach was a proximate cause of the injuries suffered (Sorichetti v. City of New York, 65 NY2d 461 [1985]). "[W]hen the reliance element is either not present at all or, if present, is not causally related to the ultimate harm . . . the invocation of the special duty' exception is then no longer justified" (Cuffy, 69 NY2d 255).

Taking all the factual allegations of the complaint as true and resolving all inferences flowing therefrom in favor of the plaintiffs, plaintiffs have not stated a cause of action against Mount Vernon. The First and Second causes of action were already dismissed by a previous order of this court because they referred only to actions by the City of New York and the action has been dismissed as to that defendant. As for the Third and Fourth causes of action, plaintiffs have not alleged facts that, if proved, would tend to show that Mount Vernon established a special relationship with Riddick.

The first element of a special relationship, an assumption by Mount Vernon of an affirmative duty to act on behalf of Riddick, is alleged in the complaint to be shown by the statement made by Mount Vernon police to Riddick that Cassidy would be "in jail for a long time". That statement, even if proved, could never constitute more than a mere opinion by the person uttering it. Since the police are neither capable of carrying out such a prediction nor guaranteeing that it will result from any effort on their part, the statement could not possibly have represented an "assumption by the municipality, through promises or actions, of an affirmative duty to act" on Riddick's behalf (see Cuffy, 69 NY2d 255). Although an order of protection can also satisfy the first element of a special relationship, this is only true when all parties are aware of the order, which is not the case here. Riddick's complaint specifically alleges that the City of Mount Vernon was negligent in that it did not inform her that the arraignment judge had issued such an order.

Plaintiffs have alleged facts sufficient to plead the second element: knowledge on the part of Mount Vernon that inaction could lead to harm. According to the complaint, Mount Vernon was aware that Cassidy posed a danger to Riddick since he was arrested precisely because he shot at the car in which she was traveling in Mount Vernon's jurisdiction, because he resisted arrest when approached, struggled with police when caught and confessed having shot at Riddick's [*4]door in the Bronx. It is undisputed that Riddick had direct contact with Mount Vernon police, thus satisfying the third element of a special relationship. However, Riddick could not have "justifiably" relied on a police officer's opinion that Cassidy would be "in jail for a long time" when only court proceedings could have resulted in that ultimate outcome (see Cuffy, 69 NY2d 255).

Plaintiffs have not sufficiently alleged that Mount Vernon was negligent in breaching a duty owed to Riddick as the victim of a crime (see Sorichetti, 65 NY2d 461). Plaintiffs alleged that Mount Vernon's police should have informed Riddick that Cassidy had been released on bail. Executive Law § 641(3)(c) provides that one of the "objectives of fair treatment standards" for crime victims is to ensure notification of victims by telephone or mail, if victims provide current address and telephone number, of "the release of an accused pending judicial proceedings". Executive Law § 649, however, states that "nothing" in the foregoing "shall be construed to create a cause of action for damages" against a municipality. Thus, this alleged failure cannot have constituted either ordinary negligence or a breach of a special duty to Riddick.

As for the Fourth and Fifth causes of action, even if it were assumed that Mount Vernon had a duty to establish methods of communication between itself and neighboring jurisdictions relative to the fact situation occurring here and train officers in those methods, there are no factual allegations to support plaintiff's claim that Mount Vernon breached such a duty. On the contrary, according to the complaint, Mount Vernon did communicate with the 42nd precinct in the Bronx and did notify officers there that they had Cassidy in custody. Mount Vernon had no duty to deliver Cassidy to a neighboring jurisdiction. Even assuming that they had done so, or assuming that Bronx detectives had come to Mount Vernon and arrested Cassidy immediately after his release and charged him with a crime, Cassidy would have been arraigned again in the Bronx just as he was in Mount Vernon and there is no reason to believe that he would have been denied bail in the Bronx any more than he was denied bail in Mount Vernon. Plaintiff's claim that better communication would have resulted in more serious charges against Cassidy, which in turn would have resulted in higher bail, which presumably would have kept Cassidy in jail, either in Mount Vernon or in the Bronx, is completely speculative. More importantly, there can be no cause of action for Mount Vernon's alleged negligence in failing to protect Riddick against a third party when no special relationship was adequately pleaded in the complaint.

In addition, it is ultimately up to the prosecutor to decide which charges to press against a particular criminal suspect, not the police officer. When prosecuting a criminal matter, a district attorney in New York State acts in a quasi-judicial capacity and represents the State, not the City of Mount Vernon (see McGinley v. Hynes, 51 NY2d 116 [1980], cert. denied, 450 US 918 [1981]). Plaintiffs have not chosen to bring this action against the State or its agents. Even if they had, a district attorney enjoys absolute immunity from suit when engaged in activities that are "intimately associated with the judicial phase of the criminal process" (Gan v. City of New York, 996 F2d 522 [2d Cir 1993]; Rosen & Bardunias v. County of Westchester, 158 AD2d 679 [2nd Dept 1990]). While a prosecutor can make a recommendation as to bail, the amount of bail is set by the court. There is no theory of liability under which the municipality of Mount Vernon or its police department could be held responsible either for the charges decided upon by the prosecutor or for the bail set by the court. [*5]

Plaintiffs' Sixth and Seventh causes of action for negligent infliction of emotional distress upon Riddick and upon her infant daughter are dismissed. "A cause of action for either intentional or negligent infliction of emotional distress must be supported by allegations of conduct by a defendant so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'(emphasis added)" (Dillon v. City of New York, 261 AD2d 34 [1st Dept 1999]). Plaintiff's allegations against the City of Mount Vernon regarding failure "to press the appropriate and/or more serious charges" against Cassidy, failure "to transfer him to the 42nd precinct in the Bronx" or otherwise "advise the appropriate authorities" of Cassidy's prior history against Riddick, failure to establish a policy regarding the handling of information received from neighboring jurisdictions, failure to train in that policy and failure to notify Riddick of Cassidy's release do not constitute "extreme", "atrocious", "outrageous" or "utterly intolerable" behavior sufficient to support a claim for negligent infliction of emotional distress (see id.). Furthermore, the first shooting incident in the Bronx happened before Riddick had any contact with Mount Vernon. Therefore, the plaintiffs' claim that Riddick's daughter was in a "zone of danger", being present in the Bronx apartment when the shot was fired at the door, could not be applied to the defendant Mount Vernon. There was no claim that Riddick's daughter was present in the car traveling in Mount Vernon.

Since all other causes of action have been dismissed, the Eighth cause of action, the derivative claim of Riddick's daughter for loss of services, must also be dismissed as it is entirely dependent on the viability of the direct claims. Plaintiffs' argument that her claim for "negligent investigation" is sufficient as a matter of law is incorrect. New York does not recognize a cause of action for negligent investigation (Coyne v. State of New York, 120 AD2d 769 [3rd Dept 1986]). Nor does New York recognize a claim for "negligent prosecution" (Jestic v. Long Island Savings Bank, 81 AD2d 255 [2nd Dept 1981]).

Movant shall serve a copy of this order on the Clerk of Court who shall enter judgment dismissing the action.

This constitutes the decision and order of the court.

Dated: March 25, 2004

Bronx, New York

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BETTY OWEN STINSON, J.S.C..