Opinion
418 CA 22-00364
08-11-2023
Matthew ROSENTHAL, Plaintiff-Appellant, v. SYRACUSE UNIVERSITY, Syracuse University Department of Public Safety, Detective "John" Hill, Defendants-Respondents, et al., Defendants.
SEGAL LAW FIRM, P.C., NEW YORK CITY (JASON A. RICHMAN OF COUNSEL), FOR PLAINTIFF-APPELLANT. BARCLAY DAMON LLP, SYRACUSE (MATTHEW J. LARKIN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
SEGAL LAW FIRM, P.C., NEW YORK CITY (JASON A. RICHMAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
BARCLAY DAMON LLP, SYRACUSE (MATTHEW J. LARKIN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained from an alleged assault that occurred on Marshall Street in the City of Syracuse. Supreme Court granted the motion of Syracuse University (SU), Syracuse University Department of Public Safety (DPS), and James Hill, incorrectly sued as Detective "John" Hill (collectively, defendants) for summary judgment dismissing the complaint. Plaintiff appeals.
Contrary to plaintiff's contention, defendants established that they did not voluntarily assume a duty to plaintiff by patrolling that section of Marshall Street where the assault occurred (see generally Fitzsimons v. Brennan , 169 A.D.3d 873, 875, 95 N.Y.S.3d 112 [2d Dept. 2019] ). "In order for a party to be negligent in the performance of an assumed duty, ... the plaintiff must have known of and detrimentally relied upon the defendant's performance, or the defendant's actions must have increased the risk of harm to the plaintiff" ( Arroyo v. We Transp., Inc. , 118 A.D.3d 648, 649, 987 N.Y.S.2d 426 [2d Dept. 2014] ; see Gauthier v. Super Hair , 306 A.D.2d 850, 851, 762 N.Y.S.2d 736 [4th Dept. 2003] ). Here, defendants submitted evidence that the incident occurred one week before SU classes officially started and that, at that time, DPS had not begun working special weekend details on Marshall Street. Defendants therefore established that they did not voluntarily assume a duty to plaintiff (see Fitzsimons , 169 A.D.3d at 875, 95 N.Y.S.3d 112 ). In opposition to the motion, plaintiff failed to raise an issue of fact that he relied on DPS patrols of Marshall Street to his detriment, or that the actions of defendants increased the risk of harm to plaintiff (see generally Dalmau v. Vertis, Inc. , 148 A.D.3d 1799, 1800, 50 N.Y.S.3d 781 [4th Dept. 2017] ).