Appeal from a judgment of the Civil Court of the City of New York, Kings County (Eric Irving Prus, J.), entered December 22, 2003. The judgment, insofar as appealed from, was based upon a jury verdict which found defendant The City of New York to be 60% liable for the accident and awarded plaintiffs the principal sum of $1,255,600.

Judgment, insofar as appealed from, unanimously reversed without costs and complaint dismissed as against The City of New York.

In the early morning of October 9, 1990, a vehicle driven by plaintiff Enoch Elie collided with a disabled vehicle which was in the roadway. Two fire marshals employed by defendant The City of New York (City), who were returning to their home base from an investigation, happened upon the accident and stopped their Fire Department vehicle to make an inquiry. According to his testimony, after Mr. Elie, who was standing on the sidewalk, showed the marshals his license and registration, he was asked by one of them to demonstrate why he was unable to move his vehicle out of the roadway. When he went into the street in front of his vehicle to show the marshal why his vehicle could not be moved, his vehicle was hit from behind by a vehicle owned and operated by the co-defendants, pinning him between his own vehicle and the disabled vehicle, and causing him injury. [*2]

Plaintiffs commenced this action against the City, as well as the owner and operator of the vehicle which collided with their vehicle. A jury found the City to have been 60% responsible for the accident, and the co-defendants to have been 40% responsible for the accident, and awarded plaintiffs damages in the principal sum of $1,255,600. The City's motion to set aside the verdict was denied, judgment was entered, and this appeal ensued.

In general, a municipality is protected by immunity from liability for actions or decisions involving the exercise of discretion. The act of directing a driver to move a car has been held to involve such an exercise of discretion (see Kovit v Estate of Hallums, 4 NY3d 499 [2005]). An exception to the general rule, however, exists where the injured party can demonstrate that there was a "special relationship" between the injured party and the municipality (see Kovit v Estate of Hallums, 4 NY3d 499, supra; Pelaez v Seide, 2 NY3d 186 [2004]; De La Paz v City of New York, 294 AD2d 327 [2002]). In order to demonstrate such a "special relationship," a plaintiff has the burden of showing: "(1) an assumption by a municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of a 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) that party's justifiable reliance on the municipality's affirmative undertaking" (Cuffy v City of New York, 69 NY2d 255, 260 [1987]). In our opinion, plaintiffs herein failed to meet their burden in establishing that a "special relationship" existed. While it is undisputed that there was contact between the fire marshal and Mr. Elie, none of the other elements were shown. The fact that the fire marshal may have asked Mr. Elie to point out to him why his vehicle could not be moved did not establish such a relationship, and therefore, [*3]
there was no proper predicate for tort liability against the City. Accordingly, the judgment as to the defendant City must be reversed and the complaint as against it dismissed.
Decision Date: September 30, 2005