Opinion
No. 167 SSM 26.
Decided September 14, 2006.
Appeal from the APPEAL, by permission of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of that Court, entered December 22, 2005. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, Erie County (John M. Curran, J.), which, insofar as appealed from, had granted in part defendant's motion to dismiss the complaint. The following question was certified by the Appellate Division: "Was the order of this Court, entered December 22, 2005, properly made?"
Plaintiff commenced this action against defendant Town to recover for injuries sustained when her husband shot her just before he committed suicide with the same weapon. She alleged that town police officers responding to a domestic dispute at the marital residence had created a special relationship with her, or, in the alternative, had voluntarily assumed a duty toward her.
Halpin v. Town of Lancaster, 24 AD3d 1176, affirmed.
Magavern, Magavern Grimm, L.L.P, Buffalo ( Aven Rennieof counsel), for appellant.
Cohen Lombardo, PC, Buffalo ( Christopher M. Duggan of counsel), for respondent.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSEN-BLATT, GRAFFEO, READ and R.S. SMITH concur in memorandum.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. The courts below properly concluded that plaintiff failed to state causes of action for breach of a special duty and breach of a duty voluntarily assumed. Absent proof of a special relation-ship, police, in dealing with domestic quarrels, "cannot be expected to predict and prevent irrational behavior" ( Yearwood v. Town of Brighton, 101 AD2d 498, 502 [4th Dept 1984] [op by Hancock, Jr., J.], affd for reasons stated below 64 NY2d 667).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, etc.