The following papers numbered 1 to 6 read herein:Papers Numbered



Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-4

Opposing Affidavits (Affirmations)5

Reply Affidavits (Affirmations)6

Affidavit (Affirmation)

Other Papers

Plaintiff, MELVON MOORE ("Melvon"), moves for an order granting him summary judgment on the issue of liability. Defendants, THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, NEW YORK CITY DEPARTMENT OF EDUCATION, and POLICE OFFICERS SHANNON, HOLLORAN, FERGUSON, and TITUS (collectively hereinafter referred to as the "City" or the "City Defendants"), cross-move for summary judgment dismissing Plaintiff's complaint as against them. For the reasons set forth below, Plaintiffs' motion is DENIED and the City's motion is GRANTED.

This is a case involving the shooting of Melvon on September 19, 2006. On this date, Melvon, then a 15-year-old high school sophomore, was "jumped" by a group of boys while walking home after school. The assailants beat Melvon for approximately two minutes and then dispersed upon the sound of police sirens. Arriving Police Officers Holloman and Shannon questioned Melvon about his condition but Melvon did not respond. Instead, after noticing one of his attackers walking and not running from the scene, Melvon ran after him, purportedly to hold him for the police officers. Melvon and the apparent attacker began to fight, and a crowd of juveniles soon thereafter appeared and began chasing Melvon. Melvon ran for several blocks, but stopped when two police cars pulled onto the sidewalk and "boxed in" Melvon and his pursuers. From inside of their vehicles, the police officers shouted at the crowd to disperse, albeit to limited effect, and then drove away. Immediately thereafter, Melvon was shot in the back (allegedly by Defendant Victor Cain), and, as a result, became paralyzed from the waist down.

Plaintiffs commenced this lawsuit against the municipality, the individual police officers involved, and the New York City Department of Education asserting that they are liable for Melvon's injuries. Plaintiffs claim that the City Defendants assumed a duty to Melvon in two ways - first, by providing heightened police presence at his school, the City assumed a course of conduct for the benefit of a small group, i.e, those students traveling to and from school at designated times, and was therefore required to perform such a duty non-negligently; and secondly, Police Officers Holloman and Shannon created a "special relationship" with Melvon by their conduct upon which Melvon justifiably relied to his detriment.

In moving for summary judgment, the City argues that no special duty was created, per Melvon's own testimony, because no promise of protection was made upon which Melvon could justifiably have relied. The City contends that Melvon's testimony that he never spoke directly with any police officer and never asked for assistance negate the essential elements of direct contact and a promise to protect. The City further argues that even if there had been direct contact between Melvon and the police officers, Melvon's subjective belief that the police officers were there to protect him was not objectively reasonable given the limited nature of their interactions.

In the event the Court finds that issues of fact exist as to the existence of a special relationship, the City contends that it is nevertheless immune from suit because the police officers' actions were discretionary, and therefore, protected by governmental immunity. Specifically, the City argues that the police officers' decision to disperse the crowed instead of taking any other course of action is an exercise of professional judgment that cannot be judged in hindsight.

Plaintiffs also move for summary judgment on the issue of liability, contending that the circumstances establish that the City assumed a "special duty" towards Melvon as a matter of law. Relying on Florence v Goldberg, 44 NY2d 189 [Ct App1978], Plaintiffs first argue that daily, heightened police presence during school dismissal time created a duty to those students traveling home. In this vein, Plaintiffs submit the following: that the subject area in Brooklyn is one with a considerable incidence of violent crime, and thus heightened police presence, including dedicated patrol cars and foot patrol, are mandated at the school, specifically during dismissal time, to enhance the safety of students and prevent violence before it erupts; that the City therefore assumed a voluntary duty to provide this sort of police protection on which Plaintiffs relied; and that but for the inadequate performance of the NYPD's assumed duty, Melvon would not have been assaulted and shot.

Secondly, Plaintiffs contend that the City assumed a special duty to Melvon through the conduct of Police Officers Holloman and Shannon, who made direct contact with Melvon by [*3]taking charge of the initial assault and dispersing the crowd, by questioning Melvon about his injuries and desire to go to the hospital or to make a complaint, by conducting a Glasgow-Coma test ^[FN1], and directing him to go home. Plaintiffs further contend that Police Officers Holloman and Shannon knew that Melvon was the victim of assault because of the significant amount of blood on his face and shirt. That as Police Officers Holloman and Shannon inquired into the assault, Melvon felt safe and protected, so much so that he was induced to approach one of his assailants to hold/identify him for the police. That the assailant thereafter started hitting Melvon again, at which point, a crowd of 15-20 people began coming up behind him. That Melvon was scared and thus ran away. That Melvon gained a lead of at least 20 yards ahead of his pursuers, however, instead of continuing to flee, upon observing two police vehicles coming from both the northbound and southbound directions, Melvon stopped running, believing that the police would protect him. However, that the police merely opened their windows, yelled "break it up," and immediately left despite the foreseeability of harm to Melvon.

Plaintiffs also argue that the City Defendants were negligent as a matter of law and that their negligence was a proximate cause of Melvon's injuries. In support, Plaintiffs present the affidavit of Edward Mamet, a 40-year police veteran who retired with the rank of captain. Mr. Mamet opines that the police officers were negligent for failing to remove Melvon from an area of foreseeable risk and for failing to obtain medical attention for Melvon since a visibly injured minor cannot refuse medical assistance. Mr. Mamet further opines that, had Melvon been held long enough for back-up to arrive and/or removed from the scene for medical attention, he would not have been shot.

"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" (Brown v City of New York, 73 AD3d 1113, 1114 [2d Dept 2012]). Thus, to support a negligence claim, the facts must demonstrate that a special duty was created between the municipality and the injured party (see Valdez v City of New York, 18 NY3d 69, 75 [2011]). In addition, even where special duty is established, a municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense of immunity and proves that the alleged negligent act or omission involved the exercise of discretionary authority (see id. at 76). However, a plaintiff must first establish the existence of a public entity defendant's special duty before a court need address arguments concerning governmental immunity (Metz v State of New York, 20 NY3d 175, 179 [Ct App 2012]; Valdez, 18 NY3d at 80).

There are three ways that a public entity or municipality may trigger a special duty: "(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation" (McLean v City of New York, 12 NY3d 194, 199 [Ct App 2009][quoting Pelaez v Seide, 2 NY3d 186, 199-200 [Ct App 2004]). The second manner of triggering a special duty is the only one at issue here. [*4]

In Cuffy v City of New York, 69 NY2d 255 [1987], the Court of Appeals clearly identified the elements for finding a voluntary assumption of duty:

"(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) that party's justifiable reliance on the municipality's affirmative undertaking" (id. at 260).

The Court of Appeals has stressed the importance of considering the fourth Cuffy element, justifiable reliance, as it serves to rationally define and limit the class of persons to whom the municipality's "special duty" extends (see Lauer v City of New York, 95 NY2d 95, 102 [Ct App 2000]; see also Valdez, 18 NY3d at 80-81). To constitute justifiable reliance, a plaintiff must show that a defendant'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 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, 599 [3d Dept 2002]).

Applying the foregoing and assuming all of the facts as alleged by the Plaintiffs to be true, the Court finds that the facts herein are insufficient to establish an assumption of a duty to act and justifiable reliance.

Although a municipality may voluntarily assume a duty through either representations or actions (see Heard v City of New York, 82 NY2d 66, 72 [Ct App 1993]), here, the actions of arriving Police Officers Holloman and Shannon in dispersing the crowd and questioning Melvon about his condition, even if done extensively, are insufficient to constitute an assumption of a duty to act on behalf of Melvon. Melvon testified that he never asked Police Officers Holloman and Shannon for assistance. Police Officers Holloman and Shannon also made no explicit assurances that they would perform any specific act on behalf of Melvon. In fact, it is undisputed that there were no back-and-forth communications between Melvon and Police Officers Holloman and Shannon. Thus, Plaintiffs are essentially asking the Court to find an assumption of a duty based on a routine police procedure of ascertaining the status of an injured person and stabilizing a tense situation. However, to do so would enlarge the ambit of "special duty" to the extent of gutting the exception, which the Court is constrained not to do (see Lauer, 95 NY2d at 103-104).

Secondly, Plaintiffs cannot show that Melvon's alleged reliance on the police officers' assumption of duty was justified. First, the Court is hard-pressed to find Melvon's response to this perceived assumption of duty (i.e., ignoring the police officers' instructions to go home and instead pursuing one of the persons believed to have attacked him) to constitute actual reliance (see Heard, 82 NY2d at 72-73), but even assuming actual reliance, the nature of the duty Melvon believed the police officers had assumed is so unclear and the police officers' conduct too indefinite for any reliance to have been justified (see Valdez, 18 NY3d at 81-82; see also Dinardo v City of New York, 13 NY3d 872, 874-75 [Ct App 2009]).

Similarly, the police actions in the second encounter, where two patrol vehicles pulled onto the sidewalk as Melvon was being chased, fail to imply an assumption of duty as the contact between those police officers and Melvon are even more tenuous.

Finally, while Plaintiffs rely heavily on Florence v Goldberg, 44 NY2d 189 [Ct App1978], to attempt to distinguish a separate type of voluntary assumption where a public entity assumes a duty towards a specific class of persons, few cases support this hybrid category. In Florence, the Court of Appeals held that "a municipality whose police department voluntarily assumes a duty to [*5]supervise school crossings — the assumption of that duty having been relied upon by parents of school children — may be held liable for its negligent omission to provide a guard at a designated crossing..." (Id. at 194). However, the Court of Appeals issued the Florence opinion before its decision in Cuffy which first enumerated the three categories of special duty creation. The oft-cited Cuffy elements for voluntary assumption of duty refer only to assuming a duty to act on behalf of the injured party, not a particular class even if narrowly defined, and further require direct contact between a public entity's agents and the injured party. In addition, the three categories of special duty provide no mechanism for a voluntary, non-statutory assumption of duty to a class. While no subsequent decision has directly overruled or abrogated Florence, to the extent Florence represents valid precedent, it must be restricted to its facts.

Accordingly, it is hereby ORDERED that the Plaintiffs' motion for partial summary judgment on the issue of liability is DENIED. It is further ORDERED that the City's motion for summary judgment is GRANTED and the complaint as against them is dismissed.

This constitutes the Decision and Order of the Court

E N T E R,

_________________________

Sylvia G. Ash, J.S.C.