Malerba v. INC. VILL. OF HUNTINGTON BAY

54 N.Y.2d 863 (1981)

Robert F. Malerba et al., Appellants, v. Incorporated Village of Huntington Bay et al., Respondents, et al., Defendant.

Court of Appeals of the State of New York.

Argued September 3, 1981.

Decided October 13, 1981.

Edward F. Hayes, III, and Raymond J. Clancy for appellants.

Vincent D. McNamara for respondents.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

*864MEMORANDUM.

The order of the Appellate Division should be affirmed, *865 with costs, on the memorandum of the Appellate Division. We add only that, assuming that awareness by the police of an impending attack would be sufficient to create a special duty, the affidavit in opposition contains nothing from which such awareness can be inferred and, in any event, because it is by a person other than the one who spoke to the police, would be insufficient on that question (Zuckerman v City of New York, 49 N.Y.2d 557, 563).

Order affirmed, with costs, in a memorandum.