THE COUNTY DEMONSTRATED THERE WAS NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, THE DEFENDANTS’ ACTIONS WERE DISCRETIONARY AND THEREFORE PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, AND THERE IS NO CAUSE OF ACTION IN NEW YORK FOR NEGLIGENT INVESTIGATION; PLAINTIFF’S WRONGFUL DEATH ACTION BASED UPON THE DEFENDANTS’ ALLEGED FAILURE TO PROTECT PLAINTIFF’S DECEDENT FROM ABUSE BY FAMILY MEMBERS DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the county’s and the sheriff’s motions for summary judgment in this wrongful death case should have been granted. Plaintiff alleged the defendants were aware that plaintiff’s decedent was being abused by her half brother and mother and did not act to protect her. The Fourth Department held: (1) there was no special relationship between the county and plaintiff; (2) governmental immunity protected the defendants because their actions involved the exercise of discretion; (3) there is no cause of action in New York for negligent investigation or prosecution:

“[A]t the heart of most of these ‘special duty’ cases is the unfairness that the courts have perceived in precluding recovery when a municipality’s voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced him [or her] either to relax his [or her] own vigilance or to forego other available avenues of protection” … . Here, [plaintiff’s decedent’s brother] did not in fact relax his own vigilance inasmuch as he made two follow-up calls to the … caseworker asking her to reopen the investigation, and he was not induced to forego other avenues of relief … . * * *

Defendants established that the actions of the … caseworkers “resulted from discretionary decision-making” … . While the caseworkers may have been negligent, they were exercising their discretion throughout the investigations … . * * *

… ‘[A] claim for negligent training in investigative procedures [against the Sheriff] is akin to a claim for negligent investigation or prosecution, which is not actionable in New York’ ” … . Further, inasmuch as the allegations of negligent hiring, training, and supervision against the Sheriff all involved conduct requiring the exercise of the Sheriff’s discretion and judgment, the Sheriff established his entitlement to the governmental function immunity defense … . Maldovan v County of Erie, 2020 NY Slip Op 06595, Fourth Dept 11-13-20