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Suit Against Municipality Based Upon Exercise of a Governmental Function Properly Dismissed—No Special Duty to Plaintiff

The Second Department, in affirming the dismissal of a lawsuit against a municipality based upon the exercise of a governmental function, explained the relevant law:

A municipal entity “is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public'” … . The plaintiff must first establish the existence of a special duty owed to it by the entity before it becomes necessary to address whether the entity can rely upon the defense of governmental immunity … . A special duty arises when there is a duty to exercise reasonable care toward the plaintiff as a result of a special relationship between the plaintiff and the governmental entity … . When a municipality assumes an affirmative duty to act on behalf of a specific party, and that party justifiably relies to its detriment on the direct assurances of the municipality’s agents, a special duty arises … .

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not owe a special duty to the plaintiff. In opposition, the plaintiff failed to raise a triable issue of fact … . Richline Group Inc v City of Mount Vernon, 2014 NY Slip Op 04184, 2nd Dept 6-11-14

 

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WHERE A TRIAL JUDGE DEMANDS A WAIVER OF APPEAL, THE JUDGE SHOULD PLACE HIS OR HER REASONS ON THE RECORD SO THE DEMAND IS NOT SEEN AS A TOOL FOR AVOIDING APPELLATE REVIEW; THE JUDGE-DEMANDED WAIVER WAS NOT ENFORCED IN THIS CASE (SECOND DEPT).
ALTHOUGH THE DOCTORS WHO TREATED PLAINTIFF IN THE EMERGENCY ROOM WERE NOT EMPLOYED BY THE HOSPITAL, THERE WAS A QUESTION OF FACT WHETHER THEY HAD APPARENT OR OSTENSIBLE AGENCY RENDERING THE HOSPITAL VICARIOUSLY LIABLE FOR ANY MALPRACTICE COMMITTED BY THEM (SECOND DEPT).
THE CALCULATIONS IN THE REFEREE’S REPORT WERE NOT SUPPORTED BY THE RELEVANT BUSINESS RECORDS; THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT). ​
Failure to Plead Res Ipsa Loquitur Does Not Preclude Application of Theory.
BECAUSE SOME OF THE ACTS CRIMINALIZED IN THE FLORIDA STATUTE CONSTITUTE NEW YORK VIOLENT FELONIES AND SOME DO NOT, THE FLORIDA ACCUSATORY INSTRUMENT MUST BE CONSULTED TO DETERMINE THE PRECISE ACTS INVOLVED; THE SECOND VIOLENT FELONY OFFENDER ADJUDICATION WAS VACATED AND THE MATTER WAS SENT BACK FOR A HEARING (SECOND DEPT).
NEITHER A CERTIFICATION ORDER NOR A STIPULATION EXTENDING THE DATE FOR FILING A NOTE OF ISSUE MET THE REQUIREMENTS OF A 90-DAY NOTICE; THE DISMISSAL OF THE ACTION WAS INVALID; THE MOTION TO RESTORE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
THE PLAINTIFF DID NOT KNOW THE CAUSE OF HER STAIRCASE FALL AND DID NOT TIE THE FALL TO THE ABSENCE OF A SECOND HANDRAIL; THERE WAS NO STATUTE OR CODE PROVISION, AND NO COMMON LAW DUTY, REQUIRING TWO HANDRAILS; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

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