Upon the following papers numbered 1 -72 read on this motion to renew; Notice of Motion/ Order to Show Cause and supporting papers 1 - 34 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 35 - 53 ; Replying Affidavits and supporting papers 54 - 72 ; Other ; (and after hearing counsel in support and opposed to the motion) it is,

The defendants move for an order pursuant to CPLR 2221 granting leave to renew their prior motion to dismiss and upon renewal granting of that motion based upon collateral estoppel. The plaintiff opposes that application in all respects and argues that the prior action which was dismissed by Order dated March 31, 2016, (Hurley, J.), (Coleman v. County of Suffolk, 174 F. Supp. 3d 747 [EDNY 2016]), and affirmed by the United States Court of Appeals for the Second Circuit in Coleman v County of Suffolk, 685 F App'x 69 [2d Cir 2017], does not have collateral estoppel effect in this action.

An action was commenced, by the plaintiff in this action against the defendants in this action, in the United States District Court for the Eastern District of New York under index number 12-CV-3509. The defendants moved for summary judgment dismissing that complaint as well as other relief. The motion to dismiss was granted to the extent that the Court granted dismissal of the federal causes of action and declined "to exercise supplemental jurisdiction over plaintiff's state law claims" pursuant to 28 USC 1367, by Order dated March 31, 2016, (Hurley, J.). The plaintiff appealed the federal dismissal on May 5, 2016 and that appeal was denied by summary order of the United States Court of Appeals for the Second Circuit dated April 4, 2017, under case number 16-1476-cv. The plaintiff commenced this state action on October 4, 2016 while the appeal of the federal dismissal was pending. The prior motion to dismiss was dated March 8, 2017 and was originally returnable on April 10, 2017. The appeal of the dismissal of the federal action was denied by summary order dated April 4, 2017. In reply the defendants acknowledged "that the collateral estoppel effect of the Second Circuit's determination may not form the basis of a dismissal on a reply affirmation: it must be raised in its own motion to dismiss pursuant to CPLR 3211(a)(5)". By Order dated July 14, 2017, this Court held that "this motion to dismiss is denied with leave to renew based upon the Second Circuit's determination pursuant to CPLR 3211(a)(5)." Therefore the motion to renew is granted.

Upon renewal the Court adopts the facts as outlined in Coleman v. County of Suffolk, 174 F. Supp. 3d 747, 759-763, wherein the Court stated that the "following facts are taken from the parties' Local Rule 56.1 Statements and are undisputed unless otherwise noted." As the parties and attorneys representing the parties in both actions are identical the Court will dispense with restating those facts here.

In Pearce v LaBella, 971 F Supp 2d 255, 269-270 [NDNY 2013], the Court held that

Where, as here, municipal defendants assert both the special duty and governmental function defenses, "the rule that emerges is that government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general." Valdez v. City of New York, 18 NY3d 69, 76-77, 960 N.E.2d 356, 936 N.Y.S.2d 587 (2011) [*2](internal quotation marks and alteration omitted). Courts considering such a claim must first determine whether the municipal defendants owed a special duty to the claimant. Metz v. State of New York, 20 NY3d 175, 179, 982 N.E.2d 76, 958 N.Y.S.2d 314 (2012).

A special duty, often referred to as a special relationship, can arise when a municipality: (1) "violates a statutory duty enacted for the benefit of a particular class of persons"; (2) "voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty"; or (3) "assumes positive direction and control in the face of a known, blatant and dangerous safety violation." Pelaez v. Seide, 2 NY3d 186, 199-200, 810 N.E.2d 393, 778 N.Y.S.2d 111 (2004). Plaintiffs have the burden of establishing such a special duty. Id. at 199... In order for a municipality to assume a special duty under the second factor, the following must be present:

(1) an assumption by a municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; (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. Id. At 202.

Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party or those in privity (Buechel v Bain, 97 NY2d 295, 303, 766 NE2d 914, 740 NYS2d 252 [2001], citing Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). In Buechel v Bain, 97 NY2d 295, 766 NE2d 914, 740 NYS2d 252 (2001), cert denied 535 US 1096, 122 S Ct 2293, 152 L Ed 2d 1051 (2002), the Court of Appeals noted:

There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling (see Gilbert v Barbieri, 53 NY2d 285, 291, 423 NE2d 807, 441 NYS2d 49 [1981]). The litigant seeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the prior action against a party, or one in privity with a party (see id.). The party to be precluded from relitigating the issue bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination.

The equitable doctrine of collateral estoppel is grounded in the facts and realities of a particular litigation, rather than rigid rules. The policies underlying its application are avoiding relitigation of a decided issue and the possibility of an inconsistent result (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]).

Based upon the undisputed facts, as set out by Judge Hurley, the plaintiff has failed to set out a special duty owed by the defendants to the decedent, Santia N. Williams. The plaintiff has not shown how the defendants violated a statutory duty on behalf of a particular class of persons that the decedent belonged to, that the defendants voluntarily assumed a duty that the decedent justifiably relied upon or that they assumed positive direction and control in the face of a known safety violation. Twelve 911 calls were made between December 31, 2010 and July 6, 2011. Seven of those calls related to child custody issues, one related to Mr. Jenkins using the decedent's car without permission wherein the car was returned before the police arrived, one was for a verbal dispute when Mr. Jenkins came home late and had called another woman, one [*3]was a dispute over payment of rent and the final two related to Mr. Jenkins throwing items out in the street and then later threatening to burn the house down. On June 28, 2011 the decedent filed a Family Court Petition seeking an order of protection. A temporary order of protection was issued. That temporary order of protection was served by the Suffolk County Sheriff's Department on July 8, 2011. The decedent's murder and Mr. Jenkins suicide occurred on July 12, 2011. The plaintiff has failed to demonstrate the absence of a full and fair opportunity to contest the prior determination and that the issues decided and undisputed facts in the federal action show that a special duty existed on the part of the defendants.

Therefore, the motion to dismiss is granted as the plaintiff has failed to show that a special duty existed, and the action is dismissed.

The foregoing constitutes the decision and Order of this Court.