Cunningham v City of New York

[*1] Cunningham v City of New York 2015 NY Slip Op 51113(U) Decided on July 28, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 28, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
570581/13

Benjamin Cunningham, Mahima Cunningham, Reena Cunningham, Plaintiffs-Appellants,

against

City of New York, Richard Baboolal, Frank Lucia, Defendants-Respondents.

Plaintiffs appeal from an order of the Civil Court of the City of New York, Bronx County (Eddie J. McShan, J.), entered April 10, 2014, which denied their motion for summary judgment on the complaint and granted defendants' cross motion to dismiss the complaint for failure to state a cause of action.

Per Curiam:

Order (Eddie J. McShan, J.), entered April 10, 2014, affirmed, without costs.

Plaintiffs commenced this negligence action against the municipal defendants seeking damages resulting from the nonfeasance of certain police officers. Plaintiffs allege that after they were struck by a vehicle driven by an unidentified woman, the police officers that responded to the scene failed to prepare and file a report memorializing the accident, or provide plaintiffs with the identity of the driver. As a result, plaintiffs claim that they were precluded from obtaining no-fault benefits arising from the accident.

Although we previously held that plaintiffs sufficiently alleged that a "special relationship" may have been formed between them and the police officers so as to subject the municipality to liability (see Cunningham v City of New York, 28 Misc 3d 84 [2010]), the Appellate Division, First Department decision in Bouet v City of New York, 125 AD3d 539 (2015) is dispositive of plaintiffs' claims and requires their dismissal. In Bouet, the Court held that no special relationship arises where police "failed to record the identity of the owner and/or operator of the vehicle that struck" an individual - reasoning that the provisions of law requiring police to request the license and insurance identification card of drivers involved in an accident, and to prepare an accident report (see Vehicle and Traffic Law §§ 600, 603) neither "authorize a private right of action nor were they otherwise enacted for the benefit of a particular class of persons as opposed to the public at large."

In any event, even were we to assume that the municipal defendants breached a special duty owed to plaintiffs, defendants established, prima facie, that plaintiffs did not sustain any actual or ascertainable damages as a result of the breach (see generally Maldonado v Tuckahoe [*2]Union Free School Dist., 30 AD3d 567 [2006]). In this regard, plaintiffs' contention that the absence of a police report precluded them from obtaining no-fault benefits in connection with the underlying accident is flatly contradicted by the unrebutted documentary evidence, viz., a no-fault arbitration award, which conclusively establishes that plaintiffs' medical expenses were paid by the no-fault insurer.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concurI concur
Decision Date: July 28, 2015