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THE POLICE REMOVED PLAINTIFF’S BOYFRIEND FROM PLAINTIFF’S PREMISES THREE TIMES TELLING PLAINTIFF HE WOULD NOT COME BACK AND SHE WILL BE OKAY; THEN HER BOYFRIEND THREW HER OUT A THIRD FLOOR WINDOW; THERE WAS NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND THE CITY; THE CITY WAS NOT LIABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined no special relationship had been created between the plaintiff and the city stemming from police officers’ telling plaintiff that her former boyfriend (Gaskin) would be removed from the premises and would not be back. The police responded to plaintiff’s calls when Gaskin showed up three times. On the next occasion, Gaskin threw plaintiff out of a third floor window:

“When a cause of action alleging negligence is asserted against a municipality, and the municipality is exercising a governmental function, the plaintiff must first demonstrate that the municipality owed a special duty to the injured person” … . Such a special duty can arise, as relevant here, where the plaintiff belongs to a class for whose benefit a statute was enacted, or where the municipality voluntarily assumes a duty to the plaintiff beyond what is owed to the public generally … . A municipality will be held to have voluntarily assumed a duty or special relationship with a party where there is: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them by establishing that no special relationship existed between them and the plaintiff … . Specifically, the defendants established, prima facie, that the officers made no promise to arrest Gaskin, and the plaintiff could not justifiably rely on vague assurances by the officers that she would “be okay” and that Gaskin would not be returning to the building where both he and the plaintiff lived … . Howell v City of New York, 2021 NY Slip Op 00840, Second Dept 2-10-21

 

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