596 N.Y.S.2d 557 | N.Y. App. Div. | 1993
Appeal (transferred to this Court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Green, J.), entered December 2, 1991 in Orange County, which denied a motion by defendants City of Middletown and Barry Bernstein for, inter alia, summary judgment dismissing the complaint against them.
Involved in this appeal is a wrongful death action against, among others, defendants City of Middletown (hereinafter the City) and Barry Bernstein (hereinafter collectively referred to as defendants) predicated upon the failure to provide police protection. The sole issue presented for review is whether plaintiff adduced sufficient evidence in opposition to defendants’ motion for summary judgment to raise triable issues of fact regarding the existence of a special relationship between the City and plaintiff’s decedent, Jacqueline Zwart (hereinafter Zwart), so as to create a duty to protect her from a fatal attack perpetrated upon her by her former boyfriend, William Kukys. Tragically, Kukys shot Zwart on August 13, 1988 and then turned the gun on himself. Supreme Court concluded that plaintiff’s evidence raised factual issues and denied defendants’ motion in its entirety. We concur in that conclusion and accordingly affirm.
It is well established that a municipality cannot be held liable for injuries resulting from a failure to provide adequate police protection absent a special relationship existing between the municipality and the injured party (see, e.g., Kircher v City of Jamestown, 74 NY2d 251; Cuffy v City of New York, 69 NY2d 255). Establishment of a special relationship requires demonstration of (1) the municipality’s assumption, through promise or actions, of an affirmative duty to act on behalf of the victim, (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 victim, and (4) justifiable reliance by the victim upon the municipality’s affirmative undertaking (Cuffy v City of New York, supra, at 260).
The gravamen of defendants’ arguments on appeal is that plaintiff’s proof fails to demonstrate the existence of a promise or actions by the City or Bernstein, a police officer, from which assumption of a duty reasonably could be inferred and, even if it does, there is absolutely no indication of reliance. We disagree. A review of the record establishes that Zwart’s
Unfortunately, Kukys failed to comply with the order of protection contained in the release and a warrant for his arrest was issued by a Town Justice on August 1, 1988. Evidently during this period Kukys heightened his pursuit of Zwart. While a friend who was present at the time indicated that Zwart reported certain of these incidents to Town police and the State Police, both of which evidently were aware of the outstanding arrest warrant and so informed Zwart and her friend, no action was taken and she was directed to take her complaint to the City, which she did. On each of the three days before her death she contacted Bernstein, whom she knew as a result of the prior investigation and had directed her complaints to in the past. Again, no action was taken. Further, it was established that Bernstein was socializing with Kukys on the evening before the fatal shooting and yet failed to arrest him or take any other action, claiming to have been unaware of the arrest warrant.
In our view, even assuming that defendants’ moving papers are sufficient to satisfy their initial burden of proof on a summary judgment motion, we note initially that because a significant portion of the evidentiary proof submitted in support thereof, notably the affidavits of the City Police Chief and
Weiss, P. J., Mikoll, Levine and Mercure, JJ., concur. Ordered that the order is affirmed, with costs.