Plaintiff, Leonard Ramen, commenced this action to recover damages for the wrongful death of his wife, Natasha Ramen (hereinafter "decedent"), who was murdered by non-party Hemant Megnath (hereinafter "Megnath") on March 15, 2007 in front of her home located at 90-29 186th Street, in the County of Queens, City and State of New York.

In February 2006, Megnath was arrested and charged with the rape of the decedent. He was released on $5,000.00 bail and an Order of Protection was issued against him.^[FN1] The rape prosecution was handled by the Kings County DA's Office (hereinafter "KCDA").

In September 2006, plaintiff's parents began receiving harassing and threatening phone calls from Megnath, in which Megnath threatened to murder the family if the rape charges were not dropped.^[FN2] On October 3, 2006, the decedent, plaintiff, and plaintiff's parents met with Detective Carl Shepherd and filed a written report with the 105th Police Precinct in the County of Queens, City and State of New York.^[FN3]

Plaintiff and his parents testified that Det. Shepherd assured them that the police would pick up Megnath and get him off the streets and that everything would be fine and there was no need to worry.^[FN4]

Megnath was arrested for criminal contempt and aggravated harassment on October 20, 2006. This harassment prosecution was handled by the Queens County DA's Office (hereinafter "QCDA"). Neither plaintiff, the decedent nor plaintiff's parents were informed of this arrest by the police or the QCDA.

The decedent informed the KCDA about the threatening phone calls sometime between November 15, 2006 and December 15, 2006.^[FN5]

On December 18, 2006 a pre-trial conference was held on the Megnath rape case.

The prosecutor appearing at the conference failed to inform the judge about the threatening phone calls and Megnath remained free on bail. Plaintiff's attorney also claims that decedent remained in "constant contact" with the prosecutor handling the Megnath rape case and last spoke with the prosecutor just three days prior to her murder.^[FN6]

On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case . . ." (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

"[T]he starting point of any analysis as to government liability is whether a special relationship existed" (Valdez v. City of New York, 74 AD3d 76, 78 [2d Dept. 2010]).

"A special relationship can be formed in one of three ways: (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 [2009] (quoting Pelaez v. Seide, 2 NY3d 186, 199-200 [2004])).

Plaintiff herein alleges the existence of a special relationship based upon defendants' voluntary assumption of a duty of care. The elements of a special relationship formed in this manner are "(1) an assumption by the municipality, through promises or actions, of an [*2]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" (Cuffy v. City of New York, 69 NY2d 255, 260 [1987]).

There is no dispute that there was some form of direct contact between the municipality's agents and the injured party ^[FN7] and that the municipality's agents had knowledge that inaction could lead to harm.

Defendant's contention that the statements of Det. Shepherd were not a promise of an affirmative duty to act on behalf of the party who was injured is wholly without merit.^[FN8] Indeed, defendants even admit that Det. Shepherd's statements could be construed "as a promise to look for Meganth and arrest him if located."

Nevertheless, defendants have established that plaintiff cannot demonstrate the existence of justifiable reliance as a matter of law because neither the decedent nor the plaintiff had any reason to believe that Megnath was actually arrested after their conversation with Det. Shepherd and that they could therefore reasonably relax their vigilance (See Valdez v. City of New York, 18 NY3d 69, 81 [2011]).

On April 7, 2011, prior to the Court of Appeals decision in Valdez, rendered October 18, 2011, this Court denied summary judgment on a case involving a similar fact pattern upon finding that triable issues of fact existed regarding whether the affirmative duty and justifiable reliance elements of a special relationship had been satisfied (See Bawa v. City of New York, 31 Misc 3d 1210(A)[Sup. Ct. Queens County 2011]). Bawa was reversed by the Second Department on April 17, 2012 as a result of the Court of Appeals holding in Valdez that the question of jusifiable reliance is a question of law for the Court to decide(See Bawa v. City of New York, 94 AD3d 926 [2d Dept. 2012]).

The facts presented in Valdez are directly on point to the facts presented herein and, as such, this Court is wholly constrained by that holding. Plaintiff's attempts to distinguish this case from Valdez fail.

As in Valdez, there is no evidence in this case to suggest that the police would be able to locate Megnath, and, as such, the plaintiff and decedent were not justified in relying on Det. Shepherd's statements. The mere fact that Megnath's address was known to the police is [*3]insufficient as there is no evidence to suggest that plaintiff or decedent knew or had reason to believe that Megnath would actually be found at this address. Indeed, there is no indication that the police in Valdez did not have access to the assailant's address when they promised to arrest him.

Although the plaintiff in Valdez testified that she expected to be contacted by the police when her assailant was arrested and the plaintiff herein testified that he only expected to be contacted if the police were unable to arrest Megnath, this distinction is immaterial. Plaintiff fails to submit any evidence to justify this expectation.

Indeed, the fact that Megnath was released on bail following his arrest for the rape of the decedent should have alerted both plaintiff and decedent to the possibility that Megnath would not remain incarcerated even if he was arrested for the threatening phone calls.

Moreover, it is undisputed that neither the decedent, plaintiff nor his parents took any steps to follow up with the police after the October 2006 meeting to determine if Megnath had, in fact, been arrested (See Valdez, supra, at 82). There is likewise no evidence that the KCDA, QCDA or the police had any reason to believe that the decedent and plaintiff believed that Megnath was arrested and remained in custody following the meeting at the precinct.

Plaintiff's attempt to liken this case to Mastroianni v. County of Suffolk, 91 NY2d 198 [1997] is wholly without merit.

In Mastroianni, the police who promised that the would help the victim in case of any problems remained on the scene. Under these circumstances, where the police were aware that the victim expected them to assist her if needed, the Court of Appeals determined that the victim's reliance was justified (See Mastroianni, supra, at 205).

Here, even assuming plaintiff's unproven allegation that the decedent was in constant contact with the KCDA, there is no evidence that the KCDA had any reason to believe that decedent expected them to proactively inform her if Megnath was not in custody.

Plaintiff's claims against the KCDA, the QCDA, DA Charles Hynes and DA Richard Brown must be dismissed as those parties are protected by absolute prosecutorial immunity.

Absolute immunity only protects those activities of a prosecution that are "intimately associated with the judicial phase of the criminal process" (Johnson v. Kings County DA's Office, 308 AD2d 278, 285 [2d Dept. 2003]; see also Spinner v. County of Nassau, 103 AD3d 875, 877 [2d Dept. 2013]; Rodrigues v. City of New York, 193 AD2d 79, 85 [1st Dept. 1993]]). Those that are not, including administrative and investigative activities, receive only qualified immunity (See Rodriguez, supra, at 85; see also Johnson, supra, at 85).

Plaintiff's sole claim against the QCDA and DA Richard Brown appears to be that they [*4]failed to ensure that Megnath was not released on bail following his arrest on the aggravated harassment and criminal contempt charges. However, any actions taken by a prosecutor in connection with a bail application are protected by absolute immunity (See Pinaud v. County of Suffolk, 52 F.3d 1139, 1149 [2d Cir. 1995]; see also Hicks v. Buitron, No. 6:12-cv-1841, 2014 U.S. Dist. LEXIS 70837, at *3-4 [N.D.NY May 22, 2014).

Moreover, plaintiff's claim that the KCDA and DA Charles Hynes failed to inform the Judge at the December 18, 2006 pre-trial conference on the Megnath rape prosecution that Megnath had harassing phone calls to the decedent's in-laws, likewise seeks to impose liability for prosecutorial action taken in connection with the judicial phase of a criminal proceeding and must be dismissed (See Spinner, supra at 877; see also Smith v. Garretto, 147 F.3d 91, 94 [2d Cir. 1998]; Brenner v. County of Rockland, 67 AD2d 901 [2d Dept. 1979]).

Finally, plaintiff's claim that the KCDA failed to inform the decedent, plaintiff and his parents that Megnath had been released is wholly without merit. Plaintiff, decedent and his parents were all fully aware that Megnath had been released on bail with respect to the rape charge and they were never informed that Megnath was brought back into custody at any time after that release.

There is also no evidence to suggest that the KCDA was ever made aware that Megnath had been arrested and held on other charges that were being handled by the QCDA. Notably, plaintiff does not allege that the QCDA and/or DA Richard Brown failed to inform him or the decedent of Megnath's release on the aggravated harassment and criminal contempt charges.

In any event, the failure to notify a victim of the released of an accused pending a judicial proceeding pursuant to New York Executive Law § 641[3][c] does not create a cause of action (See Executive Law § 649).

Accordingly, defendants' motion is granted, in its entirety, and plaintiff's complaint is dismissed.