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AFTER STOPPING THE CAR OCCUPIED BY TEENAGERS AND ARRESTING THE DRIVER AND A PASSENGER, THE POLICE RELEASED THE CAR TO DEFENDANT WHO WAS NOT AUTHORIZED TO DRIVE A CAR WITH MORE THAN ONE PASSENGER UNDER 21; THE DEFENDANT DRIVER THEN HAD AN ACCIDENT: THERE IS A QUESTION OF FACT WHETHER THE POLICE BREACHED A SPECIAL DUTY OWED THE INJURED PLAINTIFF (SECOND DEPT). ​

The Second Department determined: (1) the action against the town police department should have been dismissed because the police department cannot be sued as an entity separate from the town; and (2) the action against the town properly survived summary judgment. The police had stopped a car occupied by teenagers and arrested the driver and one passenger for possession of marijuana. The police then released to car to defendant Tatavitto who was not authorized to drive a car with more than one passenger under 21. Tatavitto then had an accident. There was a question of fact whether the town breached a special duty owed to plaintiff by allowing Tatavitto to drive the car:

… [A] special duty has four elements: “‘(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 conduct'” … . Here, there was direct contact between the officers and the occupants of the vehicle. The Town defendants failed to eliminate triable issues of fact as to whether the officers, through their affirmative acts, assumed an affirmative duty to the plaintiff, whether the officers had reason to believe that releasing the vehicle to Tatavitto would permit him to drive the vehicle in violation of law, which increased the risk of an accident, and whether their conduct “lulled” the plaintiff into a false sense of security and induced him either to relax his own vigilance or forgo other avenues of protection—which was not offered by the officers—and thereby placed him in a worse position than he would have been had the officers never assumed any duty to him … . Stevens v Town of E. Fishkill Police Dept., 2021 NY Slip Op 05602, Second Dept 10-13-21

 

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