In her Verified Complaint against the City of New York, plaintiff Bashanie Dawes, for herself and her two minor children, alleges three causes of action. In the First Cause of Action, she alleges that "plaintiffs were caused to suffer serious personal, emotional and mental injuries" (see Verified Complaint, ¶ 36), as a result of the City's failure to provide police protection on August 26, 2002. In the Second Cause of Action, Ms. Dawes alleges that, on that date, the police shot and killed Marcellus Graham, her spouse and the father of her children. In the Third Cause of Action, Ms. Dawes alleges that the City was negligent in its management, supervision, control, and training of the police, and the "handling of domestic violence complaints" (see id., ¶ 57.)

The City has moved pursuant to CPLR 3211 and 3212 for dismissal of all three causes of action, relying exclusively for evidentiary support on the Notice of Claim, timely served as required by General Municipal Law § 50-e, and on an incomplete transcript of an Examination Before Trial of Ms. Dawes. Ms. Dawes has moved for leave to amend her Notice of Claim and for sanctions for the City's failure to comply with discovery orders. Ms. Dawes also, of course, opposes dismissal of the Verified Complaint, relying on her own affidavits, on the transcript of a hearing held pursuant to General Municipal Law § 50-h, and various documents. [*2]

Based upon Ms. Dawes's testimony at her deposition, the City bases its motion for dismissal on the following summary of the facts (with footnotes and citations to the deposition transcript omitted):

"Dawes met Graham in or around November of 1996. Between that time and the date of their marriage, they had two daughters, Marcelle, born on February 20, 1998 and Makayla, born on October 9, 1999. Graham's physical abuse of Dawes began with an incident in the Summer of 1999, when he slapped her in the face. As a result of that incident, she obtained an Order of Protection from Brooklyn Family Court. Dawes believed that the Order permitted Graham to return to their home, but restrained him from further assaults on her.

Over three years later, on August 24, 2002, Dawes filed a complaint report at the 67th Precinct in Brooklyn, after Graham allegedly slapped her and tried to stab her with a pen. At that time, she also reported that on August 14, 2002, Graham had tried to drown her in the bathtub. Dawes was accompanied to the Precinct by her friend, Arlene Thompson ("Thompson"), who picked Dawes up when she called and told Thompson about the latest abuse. As a result of her complaint report, officers from the 67th Precinct asked Dawes for permission to look for and apprehend Graham. Nothing else was said between Dawes and the police. Afterwards, the police found Graham and arrested him.

From the time Dawes filed the complaint report on August 24, 2002, until the time of the assault on August 26, 2002, Thompson had been staying with Dawes in her apartment, as a measure of protection, because Dawes was scared. Dawes further testified that she spoke to an unidentified detective regarding Graham's arraignment and bail amount. The detective called her on either the day she made the complaint report or the day after, to inform her that Graham was going to be released on five hundred dollars bail. She expressed concern that the bail amount was too little since she suspected Graham could come up with the money. The detective told her he would mail her an order of protection, and that if Graham showed up, she should call 911.

Graham was released from jail on five hundred dollars bail on August 26, 2002. At around 7 p.m. that evening, Dawes went with Thompson to the 67th Precinct to request an escort home. She testified as follows regarding her conversations with the police at the Precinct on that occasion:

Q:On August 26 when you went to the precinct you testified around 7 p.m. who did you speak to at the precinct?

A:I spoke to a clerk.

Q:Was it the same clerk as on August 24?

A:I don't recall. [*3]

Q:And what did you say to the clerk?

A:I told her I needed an escort home because Mr. Graham was released and I was scared to go home.

Q:And what did he or she tell you?

A:She said there were no cars available.

Q:What did you do then?

A:I saw two police officers outside and I spoke to them and they told me the same thing, there were no cars available. They said I could go home and if he shows up call 911.

Dawes then decided to go home, accompanied by Thompson, who had stayed with her on the two previous nights. When Dawes arrived home that night with Thompson, Graham was already there. He attacked her, punching and biting her, ultimately stabbing her in the abdomen with a kitchen knife. Dawes recalled that several minutes later, police arrived at her door and were shouting commands to open the door.' After kicking in the door, several police officers entered the apartment and started ordering Graham to drop the knife that he was holding to Dawes' throat. Graham refused to comply' and shortly thereafter, he was shot by the police and died. Dawes heard a sound,' and after feeling Graham's arms released from her neck, she got up and ran. Dawes' next memory is waking up in the hospital and seeing Thompson."

(See Affirmation in Support of Defendants' Motion for Summary Judgment, ¶ ¶ 4-8.)

The City's statement is a fair summary of Ms. Dawes's deposition testimony, as revealed by the selected pages of the transcript included with its papers, but omits some important testimony found in those pages. Ms. Dawes testified that, when she made her complaint on August 24, she told the police that she had an order of protection. (See Examination Before Trial of Bashanie Dawes, at 60.)

Ms. Dawes's testimony in this regard is supported by a document, described as "NYPD Complaint Report No. 2002-067-69580," that the City apparently intended to include with its papers as Exhibit E (see Affirmation in Support of Defendants' Motion for Summary Judgment, ¶ 5 n7), but that is missing from the Court's copy. A copy of the document is provided, however, with Ms. Dawes's papers. (See Exhibit A to Affidavit in Support and Opposition.) The Complaint Report will be discussed below as it relates to the order of protection. For now, it is sufficient to note Ms. Dawes's allegations:

"[My husband] tried to drown me in the bathtub. He wrapped a cord around my neck and tried to strangle me. He slapped me in the face on 8/24/02. He is also constantly threatening to kill me. He has also told other people that he is going to kill me." (Id.) [*4]

With respect to the First Cause of Action, alleging a failure to provide police protection, the City argues essentially that Ms. Dawes cannot establish the "special relationship" that is the predicate for any claim of negligence in the failure to provide police protection. (See Affirmation in Support of Defendants' Motion for Summary Judgment, ¶ ¶ 9-15.) The Court notes that, although the Verified Complaint speaks of "plaintiffs" in its allegations for this cause of action, neither the City nor Ms. Dawes specifically address the viability of a cause of action by the children for the alleged failure to provide police protection. For this reason, and given the Court's ruling, the Court will likewise ignore the issue on this motion.

"Generally, a municipality may not be held liable for the failure to provide police protection because the duty to provide such protection is owed to the public at large, rather than to any particular individual . . . A narrow exception to the rule exists where a special relationship exists between the municipality and the injured parties . . . The elements of a special relationship are (1) an assumption by the 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 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 injured party's justifiable reliance on the municipality's affirmative undertaking." (Conde v City of New York, 24 AD3d 595, 596 [2d Dept 2005]; see also Cuffy v City of New York, 69 NY2d 255, 260 [1987].)

Here, the City contends that Ms. Dawes cannot meet the requirements numbered (1) and (4) in the quoted formulation, in that she did not justifiably rely on any promises or actions of the City. Putting aside for the moment any effect of the alleged order of protection, the City would have made a prima facie showing of the absence of a "special relationship" and, therefore, of any duty of protection owed to Ms. Dawes.

Based upon the deposition testimony, the most that can be said of the police statements to Ms. Dawes on August 26 is that they implicitly promised a prompt response to a 911 call. The statement that she "could go home" and call 911 "if he shows up" cannot be understood as a promise or assurance of protection or safety, particularly in the context of a refusal to "escort" her home. The caselaw seems clear that, at least in the absence of an order of protection, when the police promise only limited protection, and provide it, there can be no claim based upon the failure to provide more. (See Taebi v Suffolk County Police Dept., 31 AD3d 531, 532 [2d Dept 2006]; Conde v City of New York, 24 AD3d at 597; Clark v Town of Ticonderoza, 291 AD2d 597, 599 [3d Dept 2002].) There is no allegation here that the police did not respond promptly to the 911 call that was made on Ms. Dawes's behalf on August 26.

It is questionable whether Plaintiffs' submission in opposition, again in the absence of an order protection, would create a triable issue on the existence of a "special relationship." In her testimony at the 50-h hearing, Ms. Dawes testified to another exchange with the police on August 26, which took place prior to the exchange quoted in the City's papers. On that exchange, she was told that "all the cars were out and the best thing for me to do was to go home and if he showed up or called or anything to call 911 because they would get to me faster." (See Examination Pursuant to Section 50(h) of the General Municipal Law, at 28.) [*5]

Ms. Dawes also submitted an affidavit in which she describes her "belief that the police knows (sic) best how to handle these types of situations," that she "relied on the police for protection and instruction on how to secure the safety of [her] children," and that "had the police not convinced [her] that returning home and calling 911 if Marcellus showed up was [her] best solution, [she] would have found an alternative place to spend the night." (See Affidavit in Support and in Opposition, ¶ ¶ 55, 57.)

Admittedly, these additional submissions fall short of supplying any promise or assurance of protection or safety. It is not clear, however, that a promise or assurance is required, even in the absence of an order of protection. The basis for municipal liability in this area is that when "conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward." (See Schuster v City of New York, 5 NY2d 75, 82 [1958] [quoting Moch Co, v Rensselaer Water Co., 247 NY 160, 167 (1927) (citation omitted)]; see also Kircher v City of Jamestown, 74 NY2d 251, 256 [1989].) And "[a]bsent evidence of reasonable detrimental reliance by the victim, the consequences of the municipality's failure to act become far too speculative to allow as the basis of liability." (Id., at 259.)

The nature of the reliance requirement will be explored further below. For now it is sufficient to note that this Court is not aware of any holding that precludes municipal liability based upon compliance with police advice and direction, when police conduct falls short of a promise or assurance; that on this motion the Court must construe the record in Plaintiffs' favor (see Mastroianni v County of Suffolk, 91 NY2d 198, 205-06 [1997]); and that by establishing a "special relationship" a plaintiff does not establish liability, but "the actions of the police are judged by analyzing whether they acted reasonably under the circumstances" (see Starr v County of Cortland, 6 AD3d 775, 777 [3d Dept 2004]; see also Mastroianni v County of Suffolk, 91 NY2d at 205-06; Sorichetti v City of New York, 65 NY2d 461, 470 [1985].)

In any event, an order of protection significantly alters the relational terrain between a municipality and the class of potential victims covered by its terms. The order "evinces a preincident legislative and judicial determination that its holder should be accorded a reasonable degree of protection from a particular individual." (See id., at 469.) "It is presumptive evidence that the individual whose conduct is proscribed has already been found by a court to be a dangerous or violent person and that violations of the order's terms should be treated seriously." (Id., at 469-70.) "When presented with an order of protection, a police officer is not mandated to make an arrest. Nonetheless, such presentation along with an allegation that the order has been violated, obligates the officer to investigate and take appropriate action." (Id., at 469.)

In terms of the four elements of a "special relationship," an order of protection satisfies two of the elements, a duty to act and knowledge that inaction could lead to harm. (See Mastroianni v County of Suffolk, 91 NY2d at 204; see also Tarnaras v County of Nassau, 264 AD2d 390, 390 [2d Dept 1999].) A third element, direct contact, is not an issue on this motion. The fourth element, justifiable reliance, must still be satisfied, but issues of fact may preclude [*6]summary judgement. (See id., at 391.)

In the first instance there is a question of fact here as to the existence and scope of any order of protection. The August 24 NYPD Complaint Report, provided by the City, notes the charge as "Violation of Order Protection / Assault," and indicates that the order was issued by Family Court. The Report also indicates an expiration date of "8/23/02," but that is, at the least, suspect, since neither Ms. Dawes nor the City has been able to locate a copy of the order. Ms. Dawes testified at the 50-h hearing that she obtained the order of protection when she went to Family Court for the first time, which she thought was in August 1999, and that it was effective for three years, but there is no basis in the record for specific effective or expiration dates.

Ms. Dawes has also testified that she was told by telephone on August 25, by either a detective or a representative from the District Attorney's office, that an order of protection would be sent to her. There is no evidence as to whether an order of protection ever issued.

The City is correct that the order of protection did not mandate an arrest of Mr. Graham, but that the police did arrest him. "[T]he ultimate decision to release a criminal defendant on bail or recognizance is a judicial one, beyond the control of police agencies or officers." (Clark v Town of Ticonderoga, 291 AD2d at 600.) The City may also be correct that, once Mr. Graham was arrested, its "duty was obviated until the police become aware of a fresh violation of the order." (Reply Affirmation, ¶ 5.)

But the City makes no showing that there was no "fresh violation of the order," despite Ms. Dawes's assertion that, after Mr. Graham was released, he stated to a mutual friend that he was going to kill Ms. Dawes, and that Ms.Dawes told the police about the threat on August 26. (See Affidavit in Support and in Opposition, ¶ ¶ 16-17.) On the other hand, although Plaintiffs assert that the City was "presented with an additional violation" of the order of protection because of the threat (see Second Affidavit in Support and in Opposition, ¶ 10), no showing is made of that.

The City's ultimate position, however, is that it all makes no difference, because Ms. Dawes cannot satisfy the justifiable reliance element of a "special relationship." "It is [Ms. Dawes's] burden to show that [the City's] 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 place [herself] in a worse position than [she] would have been had the [City] never assumed the duty." (See Conde v City of New York, 24 AD3d at 597.)

"[R]eliance must be examined in the specific context of the nature of the affirmative duty undertaken" (id.), and that context is significantly defined by an order of protection. Indeed, the Second Department was one of the earliest courts to recognize the consequence of an order of protection, in a case in which the plaintiff's reliance appears to have been limited to following a police officer's direction into danger. (See Baker v City of New York, 25 AD2d 770, 771-72 [2d Dept 1966].) At least one court has noted the plaintiff's compliance in following a detective's advice to "stay in her apartment" in concluding that an issue of fact existed on the justifiable [*7]reliance element. (See Merced v City of New York, 986 F Supp 774, 783 [SDNY 1997].)

A contrary conclusion is not required by Ms. Dawes's testimony that she went home because her girls had school the next day and she had to go to work. (See Reply Affirmation, ¶ 16.) Courts have found that the plaintiff's failure to change her routine is a "true indicator of her reliance" (see Raucci v Town of Rotterdam, 902 F2d 1050, 1058 [2d Cir 1990]), or "supportive of a reasonable inference that she relied" (see Zwart v Town of Wallkill, 192 AD2d 831, 834 [3d Dept 1993].)

This Court is aware of only one appellate decision that concluded that, despite an order of protection, a triable issue was not raised as to the plaintiff's justifiable reliance. Up to a point, the facts in Clark v Ticonderoga (291 AD2d 597) are similar to the facts here. As a result of a complaint by the plaintiff, her harasser was arrested for violation of an order protection, but then released on his own recognizance. (See id., at 598.) When she saw her harasser's truck parked near her apartment, she locked all her windows and doors, but did not call the police, because, based upon previous contacts, she believed that no action would have been taken. (Id.) Her harasser knocked down her door, and repeatedly stabbed her in front of her children.

The crucial difference here, if Ms. Dawes's testimony is believed, is that Ms. Dawes did return to the police with information of a "fresh" threat to her life. In light of this, the questions about the order of protection, and Ms. Dawes's assertion of reliance in fact on the direction of the police, the Court finds triable issues that preclude summary judgment. The Court is not prepared to say that, in the context of an order of protection, reliance on the direction of the police cannot, as a matter of law, be justified and establish that element of a "special relationship."

The City also moves for dismissal of the Second and Third Causes of Action on various grounds, including their absence from the Notice of Claim, and Plaintiffs move for leave to amend the Notice of Claim to include the allegations. As noted, the Second Cause of Action seeks damages for the wrongful death of Marcellus Graham on behalf of Ms. Dawes, his surviving spouse, and the two infant plaintiffs, his children. The Third Cause of Action alleges negligent management, supervision, control and training of the police.

The allegations of the Second and Third Causes of Action cannot be fairly implied from the Notice of Claim, and must, therefore, be dismissed, unless they can now be added by Plaintiffs' motion. Because the allegations would add new claimants and new causes of action / theories of liability, they cannot be added to the Notice of Claim as "mistake, omission, irregularity or defect" within the scope of General Municipal Law § 50-e (6); and treating the motion as one for leave to file a late notice of claim pursuant to General Municipal Law § 50-e (5), the motion comes too late. (See Speranza v City of New York, 7 AD2d 936, 936 [2d Dept 1959], aff'd 11 NY2d 917 [1962]; Harrington v City of New York, 6 AD3d 662, 662-63 [2d Dept 2004]; Dixon v Village of Spring Valley, 6 AD3d 489, 490 [2d Dept 2004]; Hendler v City of New York, 2 AD3d 685, 685-86 [2d Dept 2003]; Johnson v County of Suffolk, 238 AD2d 480, 480 [2d Dept 1997]; Bryant v City of New York, 188 AD2d 445, 445-46 [2d Dept 1992]; Demorcy v City of New York, 137 AD2d 650, 650-51 [2d Dept 1988]; Murphy v County of [*8]Nassau, 84 AD2d 577, 577 [2d Dept 1981].) The Court is aware that the limitations period for a wrongful death action is "two years after the happening of the death," whereas otherwise it is "one year and ninety days after the happening of the event upon which the claim is based." (See Gen Mun L § 50-i [1].)

The Second Cause of Action would be dismissed in any event. A wrongful death action may be asserted "against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued." (See EPTL § 5-4.1 [1].) The Second Cause of Action alleges no basis for liability for the death of Mr. Graham other than the allegations of the First Cause of Action that it incorporates. But those allegations at most establish a duty by the City to Ms. Dawes and her children, and provide no basis for liability "to the decedent." It would seem rather perverse if the City's failure to provide adequate protection to Ms. Dawes and her children could lead to liability to Mr. Graham for the protection against him that it did provide.

Finally, as to the alleged outstanding discovery, there is dispute as to which party is responsible for the absence to date of a deposition of a City witness, but the City acknowledges that it has not complied with three judicial orders. (See Reply Affirmation, ¶ 4.) It is clearly and simply no justification for ignoring judicial orders that, in the City's view, the subject of the orders relates to claims that it subsequently moved to dismiss.

The City failed to fully comply with a Preliminary Conference Order dated May 3, 2005 and a Compliance Conference Order dated November 1, 2005, and complied late and only in part to a second Compliance Conference Order dated March 7, 2006. The motion to dismiss, served March 14, 2006 and not mentioned in the March 7 order, provides no immunity to sanctions for prior violation of judicial orders. (See Hudson View II Associates v Phillip D. Miller, 282 AD2d 345, 346 [1st Dept 2001]; Oberlander v Levi, 207 AD2d 437, 438 [2d Dept 1994].)

In the absence of an order staying some or all disclosure pending the service and determination of a motion to dismiss, the City's decision to ignore the judicial orders cannot be ignored. In light of the Court's decision on the City's motion, no purpose would be served by compelling disclosure related to the dismissed causes of action. The Court would, however, be favorably disposed to a motion by Plaintiffs for their counsel fees in connection with their motion to compel.

A compliance conference has been scheduled for March 6, at which time any remaining disclosure will be addressed in light of this Decision and Order

The City's motion to dismiss is granted to the extent that the Second and Third Causes of Action in Plaintiffs' Verified Complaint are dismissed, but the motion is otherwise denied.

Plaintiffs' motion for discovery sanctions is denied without prejudice to a motion for counsel fees, and their motion for leave to amend the Notice of Claim is denied.

February 26, 2007___________________

Jack M. Battaglia

Justice, Supreme Court