Opinion
23642/08.
Decided April 7, 2011.
Manuel Moses, Esq., New York, New York.
Michael A. Cardozo, Corporation Counsel of the City of New York, New York, New York, By: Monica Kelly, Esq., Defendant Attorney.
The following papers numbered 1 to 5 read on this motion
Notice of Motion 1-2 Notice of Cross-Motion 3 Affirmation in Opposition 4 Reply Affirmation 5Plaintiffs, Hamidu Bawa and Hamidu Jamal Maigah, move for summary judgment. Defendants, the City of New York and the New York City Police Department, cross-move for summary judgment dismissing plaintiffs' complaint.
On April 18, 2007, Sonia Taylor, Arnold Lawson, and Syndia Byre were shot and killed by Mrs. Taylor's twenty year old son, Jimmie Lee Dawkins, who subsequently killed himself, inside Mrs. Taylor's residence at 116-31 225th Street, in the County of Queens, City and State of New York.
The plaintiffs in this action are Hamidu Jamal Maigah, Mrs. Taylor's younger, seven year old son, who was in school when the shooting occurred, and his father, Hamidu Bawa, who took custody of Hamidu Jamal after the shooting, and is the administrator of Mrs. Taylor's estate. Plaintiffs seek to recover for the wrongful death of Mrs. Taylor, negligent infliction of emotional distress, and deprivation of constitutional rights. Plaintiffs claim that the police department was negligent in failing to arrest Jimmie on any of the previous occasions in which they had been called to Mrs. Taylor's home to investigate a domestic disturbance, in failing to investigate complaints made by Mrs. Taylor, and in failing to promptly respond to Mrs. Taylor's residence on the day of the shooting.
The police department first became involved with the domestic problems occurring inside Mrs. Taylor's residence on May 30, 2006 in response to a radio run. There is very little detail contained in the Domestic Incident Report (DIR), as it indicates that the victim refused to make a statement and refused a copy of the DIR. The DIR does indicate that the incident was not a "verbal dispute only," but no order of protection was in force or obtained.
A second DIR indicates that Police officer Vick Ramjaiwan responded to Mrs. Taylor's home on October 25, 2006. The DIR indicates that Jimmie Lee Dawkins is classified as an emotionally disturbed person ("EDP") and that the dispute was not a "verbal dispute only." Officer Ramjaiwan contacted EMS who removed Jimmie from the residence and brought him to a hospital, but Officer Vick Ramjaiwan did not escort him in. Later that day, Mrs. Taylor filed a complaint with the Internal Affairs Bureau ("IAB"), stating that the officer failed to escort her son to the hospital and she was worried that he would harm her and her other son if he was able to escape.
Less than two weeks later, on November 5, 2006, Mrs. Taylor again called 911 regarding a dispute with her son Jimmie. Police Officer Scott Reiser responded to the call and, according to the DIR, no arrest was made because no offense had been committed.
On April 16, 2007, two days prior to the incident, police officers visited Mrs. Taylor's home on two separate occasions in response to two separate 911 calls made by Mrs. Taylor that day. Police Officer Joseph Muller was the first to respond. According to the DIR, Jimmie committed a violation offense by making threats to injure or kill his mother and no arrest was made. Later that day, Police Officer Peterson Fresnel responded, but the Domestic Incident Report indicates that this visit was unnecessary. A complaint by Mrs. Taylor was made to the IAB that day alleging the inadequacy of the police department's response.
On April 18, 2007, Mrs. Taylor made a final 911 call. Although Vickie Daniels-Matthews, a Sprint Technician with the NYPD testified at her deposition that this call was responded to in less than 15 minutes, other evidence, suggests that Mrs. Taylor had been calling and waiting for much longer, even five hours, before police officers arrived.
"[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 (quoting Pelaez v. Seide , 2 NY3d 186 , 199-200)).
The parties submissions reveal that there are triable issues of fact regarding whether a special relationship was formed based upon the municipality's voluntary assumption of a duty of care. The elements of a special relationship are formed on this basis 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) that party's justifiable reliance on the municipality's affirmative undertaking" ( Cuffy v. City of New York, 69 NY2d 255, 260).
Here there is an issue of fact regarding whether the police's actions in taking Mrs. Taylor's complaints and in regularly coming to the house to investigate the domestic disturbance problems, including visiting the home twice in one day only two days before the accident, constituted an assumption by the municipality of an affirmative duty to act ( See, e.g., Zwart v. Town of Wallkill, 192 AD2d 831, 834 [3d Dept. 1993]; cf. Bain v. City of Rochester, 115 AD2d 957, 957-58 [4th Dept. 1985]). Moreover, the deposition testimony of Officers Ramjaiwan and Muller that they never made any promises to act on Mrs. Taylor's behalf in their conversations with her is inadmissible under the Dead Man's Statute ( See Beyer v. Melgar , 16 AD3d 532 , 533 [2d Dept. 2005]), and there is no evidence regarding whether the other officers, 911 operators, and IAB employees with whom she personally interacted made promises to her. These are issues of facts [2d Dept. 2007]; Pascucci v. Board of Educ., 305 AD2d 103, 105 [1st Dept. 2003]; cf. Swift v. City of Syracuse , 30 AD3d 1089 , 1090-91 [4th Dept. 2006]).
Moreover, there are also issues of fact regarding whether Mrs. Taylor justifiably relied on any affirmative undertaking by the municipality. The deposition testimony of Officers Muller that Mrs. Taylor said she knew there was nothing he could do for her and the testimony of Officer Fresnel that Mrs. Taylor told him he was not needed is insufficient as it too is inadmissible hearsay ( see Kramer v. Oil Services, Inc. , 56 AD3d 730 [2d Dept. 2009]) and inadmissible under the Dead Man's Statute ( See Beyer, 16 AD3d at 533). Moreover, although the second police officer to visit Mrs. Taylor's home on April 16, 2007 reported that Mrs. Taylor told him his assistance was unnecessary, there is evidence that Mrs. Taylor complained to the IAB that day because she did not believe the police had done enough to help her. These inconsistencies raise a triable issue of fact that is best left to be resolved by the jury ( See Barrett v. New York City Transit Auth. , 80 AD3d 550 , 551 [2d Dept. 2011]).
Further, under the Family Protection and Domestic Violence Intervention Act, officers must make an arrest if (1) the officer has reasonable cause to believe a felony has been committed or (2) the officer has reasonable cause to believe a misdemeanor constituting a family offense has been committed and the victim did not request that an arrest not be made (NY C.P.L. § 140.10).
The April 16, 2007 DIR indicates that Jimmie threatened Mrs. Taylor. The DIR is notably silent as to the presence of weapons, and in light of the documented history of domestic disputes in this case, the police had reasonable cause to believe that a misdemeanor constituting a family offense had been committed ( See Cukerstein v. Wright , 68 AD3d 1367 , 1368-69 [3d Dept. 2009]). Neither party has submitted any evidence regarding whether Mrs. Taylor requested an arrest not be made, and the DIR report of the officer who visited Mrs. Taylor later that same day, which indicates that his help was unnecessary, suggests that triable issues of fact remain regarding this issue. As such, on this state of the record, the Court cannot determine whether the mandatory arrest provisions of the statute were violated as a matter of law.
The Court need not determine at this time whether the statute authorizes a private right of action so that a special relationship would be formed based on its violation.
With respect to the City's contention that the officer's actions were discretionary and cannot be the basis of liability under McLean v. City of New York , 12 NY3d 194 , Chief Judge Lippman's concurrence in Dinardo v. City of New York , 13 NY3d 872 , notes that McLean "too broadly insulates government agencies from being held accountable to injured parties" and that "the broad immunity recognized for discretionary acts should not extend to situations where a special relationship is present" ( Dinardo, 13 NY3d at 876-77). Judge Lippman notes that this is particularly true in cases involving a failure to provide police protection ( See id. at 877).
Moreover, McLean involved negligence on the part of the City in allowing an independent family daycare facility, which had substantiated complaints filed against it, to register and remain on a list of day care facilities maintained by the New York City Department of Health ( See McLean, 12 NY3d at 197-98). This is a starkly different situation than the one presented here. The City has failed to present any compelling rationale to extend the holding of McLean so far beyond the specific factual situation addressed in that case.
Additionally, plaintiffs have raised triable issues of fact regarding whether ministerial duties were violated. The submission of the affidavit by Walter Singorelli, a retired member of the New York City Police Department, raises triable issues of fact regarding whether the officers violated mandatory NYPD Patrol requirements ( See, e.g., Boland v. State, 218 AD2d 235, 243 [3d Dept. 1996]). As noted above, there are also issues of fact regarding whether the officers violated the mandatory arrest provisions of the Family Protection and Domestic Violence Act ( Cf. Abraham v. City of New York , 39 AD3d 21 , 24-25 [2d Dept. 2007]). Finally, failure to process and respond to a 911 call can be a basis for liability ( DeLong v. County of Erie, 89 AD2d 376, 384 [4th Dept. 1982], aff'd, 60 NY2d 296).
With respect to the city's contention that any negligence on the part of the City was not the proximate cause of plaintiff's accident, it is well settled that "[p]roximate cause is a jury question" ( Moore v. Gottlieb , 46 AD3d 775 [2d Dept. 2007] (quoting Nowlin v. City of New York, 81 NY2d 81, 89)). This is particularly true here where plaintiffs have alleged multiple acts of negligence and there are issues regarding contributory negligence as well ( See, e.g., Todd v. Godek , 71 AD3d 872 , 872-73 [2d Dept. 2010]; Vavoulis v. Adler , 43 AD3d 1154, 1156 [2d Dept. 2007]).
The City also contends that it is entitled to dismissal of the infant-plaintiff's cause of action alleging negligent infliction of emotion distress. In support of this contention, the City submits the deposition testimony of Hamidu Bawa, the father of infant-plaintiff Hamidu Jamal Bawa, that his son was in school when the shooting occurred. As the infant-plaintiff did not witness the shooting and was not within the zone of danger, the City has established its prima facie entitlement to judgment on this cause of action ( See Xing Ling Mei v. Metropolitan Transit Auth. , 18 AD3d 465 , 466 [2d Dept. 2005]; cf. Wallace v. Parks Corp., 212 AD2d 132, 142 [4th Dept. 1995]). Plaintiffs have failed to raise a triable issue of fact in opposition.
Finally, the City has also established its entitlement to judgment on plaintiffs' constitutional claims as plaintiffs have failed to even plead, let alone establish, the existence of an official policy or custom of the City that caused the deprivation of plaintiff's constitutional rights ( See Holmberg v. Sheriff's Office, 279 AD2d 551 [2d Dept. 2000]; Mann v. Alvarez, 242 AD2d 318, 319-20; see generally Monell v. Dep't of Soc. Servs., 436 U.S. 658).
Accordingly, plaintiffs' motion for summary judgment is denied in its entirety. The City's motion for summary judgment is granted to the extent that plaintiffs' causes of action for the negligent infliction of emotional distress with respect to infant-plaintiff Hamidu Jamal Bawa and for constitutional violations are hereby dismissed. The remainder of the City's motion is denied, except that the City's motion to dismiss plaintiffs' punitive damages claim, only, is granted, without opposition.