Opinion
22517
February 7, 2002.
APPEAL from a judgment of the Civil Court of the City of New York, New York County (Faviola Soto, J.), entered July 14, 2000, upon a verdict, as limited plaintiff's recovery of damages to the principal sum of $75,000 on his 42 U.S.C. § 1983 cause of action. The appeal brings up for review a prior order of the same court and Judge which granted defendant's CPLR 4405 motion to vacate the jury's negligence verdict.
Salzman, Ingber Winer, New York City, and Alexander J. Wulwick, New York City, for appellant.
Michael D. Hess, Corporation Counsel of New York City (Leonard Koerner and Elizabeth S. Natrella of counsel), for respondents.
HON. STANLEY PARNESS, P.J., HON. WILLIAM P. McCOOE, HON. PHYLLIS GANGEL-JACOB, Justices.
Judgment entered July 14, 2000 (Faviola Soto, J.) affirmed, with $25 costs.
The operative facts are not seriously disputed. On April 30, 1995, at approximately 12:20 A.M., the defendant police officer, detecting "unreasonabl[y]" loud music emanating from a car driven by plaintiff, issued plaintiff a summons for violating local noise regulations (see, New York City Administrative Code § 24-220[a]). Although the officer prepared and intended to issue a Criminal Court summons directing plaintiff's court appearance on a specified date (see, CPL 130.10), the officer mistakenly served plaintiff with a copy of a parking violation summons, erroneously indicating that the summons could be contested by mail. A warrant was issued upon plaintiffs failure to appear (see, CPL 130.50) and, on January 18, 1997, plaintiff was arrested on the warrant, strip searched, and incarcerated for several days until the underlying Administrative Code charge was dismissed in Criminal Court.
Upon the trial of the ensuing damages action, the jury awarded plaintiff a recovery against the municipal defendants on two separate legal theories, common-law negligence and deprivation of civil rights under § 42 U.S.C. § 1983. The trial court, while denying defendants' CPLR 4404 motion to set aside the jury's statutory civil rights award (a determination unchallenged by defendants), granted defendant's motion to vacate the jury's negligence verdict, holding that the defendant police officer's "mistake" in serving plaintiff with the wrong form of summons was insufficient to impose negligence liability upon defendants. Plaintiff now appeals, and we affirm.
Plaintiff does not argue on appeal that the defendant police officer lacked probable cause to issue him a summons for the underlying Administrative Code violation or that issuance of a summons was otherwise improper. Further, plaintiff now concedes, as he must, that the arrest warrant issued upon his nonappearance was "facially valid" and that, in consequence, he cannot properly pursue a cause of action for false arrest or false imprisonment.
Where as here, a claim is made that a municipality has negligently exercised a governmental function, liability turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public (see, Lauer v. City of New York, 95 N.Y.2d 95, 100; Garrett v. Holiday Inns., 58 N.Y.2d 253, 261). We agree with the trial court that there is no reasonable view of the evidence supporting a conclusion that the defendant police officer, in connection with his brief street encounter with plaintiff, owed or voluntarily assumed a special duty to plaintiff beyond that generally associated with the officer's routine law enforcement function. A police officer's obligations to investigate criminal activity, to locate and apprehend criminal suspects, and to facilitate the filing of appropriate charges in connection with such criminal investigations create nothing more than a generalized duty owed to the public at large and, absent any affirmative promise or undertaking not shown on this record, are not intended to benefit or, more accurately here, to avoid injury to any particular persons or classes of persons. In the absence of a competent showing that plaintiff was owed a special duty, his negligence cause of action is not legally sustainable, and this even accepting plaintiffs contention that the service of a summons, as opposed to its issuance, is purely ministerial (cf., Ford Motor Credit Co. v. State of New York, 133 A.D.2d 980).
"Despite often sympathetic facts in a particular case before them, courts must be mindful of the precedential, and consequential, future effects of their rulings, and 'limit the legal consequences of wrongs to a controllable degree' (citations omitted)." (Lauer v. City of New York,supra, 95 N.Y.2d, at 100.) To the extent that Ostrowski v. State of New York ( 186 Misc.2d 890) can be read to support an extension of municipal liability to the facts ere presented, we decline to follow it.
CONCURRING MEMORANDUM
I agree with the result but on a different theory. The legal issue is whether a cause of action in negligence lie under this state of facts. InSecard v. Dept. of Soc. Serv., 204 A.D.2d 425, 427 (2nd Dept. 1994), the court held that a plaintiff cannot recover on a negligence theory for what traditionally is a false arrest cause of action. See also, Antonious v. Muhammad, 250 A.D.2d 559 (2nd Dept. 1998) lv. dismissed 92 N.Y.2d 913 (1998). In Higgins v. City of Oneonta, 208 A.D.2d 1067, 1069 (3rd Dept. 1994) lv. denied 85 N.Y.2d 803 (1995) and in Heath v. State of New York, 229 A.D.2d 912 (4th Dept. 1996), those courts reached the same conclusion. There is no First Department case in point.
The only appellate decision in point cited by the plaintiff is Glowinski v. Braun, 105 A.D.2d 1153 (4th Dept. 1984) appeal dismissed 65 N.Y.2d 637 (1985) which reached a different conclusion in allowing a negligence cause of action against a court clerk. Glowinski is not distinguishable from Heath, supra, which is a later Fourth Department case that never referred to Glowinski.
The court in Lauer v. City of New York, 95 N.Y.2d 95 (2000) in dismissing the plaintiffs claim stated that "Courts must be mindful of the precedential, and consequential, future effects of their rulings." The plaintiff is seeking to extend the traditional sphere of municipal duty by creating a new theory of recovery in a false arrest case where none previously existed.
The judgment should be affirmed.