K. H. v City of New York

[*1] K. H. v City of New York 2005 NY Slip Op 52177(U) [10 Misc 3d 1066(A)] Decided on December 14, 2005 Supreme Court, Kings County Partnow, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 14, 2005
Supreme Court, Kings County

K. H. and J. M., an infant by his mother and natural guardian, et al., Plaintiffs,

against

The City of New York, Defendant.



30477/03

Mark I. Partnow, J.

Upon the foregoing papers, the motion by plaintiffs K. H., J. M., an infant by his mother and natural guardian, E.H., and E. H., individually, for an order, pursuant to CPLR 3124, compelling discovery is denied and the cross motion by defendant City of New York (the City) for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint herein is granted.

In this action, it is alleged, among other things, that on November 29, 2000, at approximately 10:00 p.m., K. H. and J. M. were accosted by five unidentified individuals in Lincoln Terrace Park. They were then compelled to enter an unlocked bathroom where they were assaulted. [*2]

In their motion, plaintiffs assert that the City "has failed to respond to plaintiffs' Discovery Demands and has failed to comply with the discovery schedule set forth by this Court during the Preliminary Conference."[FN1]

In its cross motion, the City argues that summary judgment is warranted because allegations concerning its failure to provide police protection at the time of the alleged assault concern the City's exercise of its governmental function and, absent a special relationship between the City and plaintiffs (which has not been pleaded here), the City cannot be held liable. The issue of a special relationship aside, the City contends that if there was negligence on its part, the City's acts or omissions were not a proximate cause of plaintiff's injuries; rather, the criminal acts of third persons constituted a superseding, intervening cause of the injuries. With respect to plaintiff's motion, the City asserts that the records sought by plaintiffs are either irrelevant because they were prepared after the date of the incident herein or because they concern the unlocked door to the bathroom, a matter upon which liability may not be predicated. The City has, however, submitted a copy of the police file regarding the incident in response to plaintiffs' discovery demands.

In opposition to the cross motion, plaintiffs point out that they are not claiming that there was inadequate police protection in the park or that park officials had a duty to protect them as they walked there and, consequently, the City's arguments regarding "governmental functions" and a "special relationship" are inapposite. Plaintiffs maintain that their claim is that the City breached its duty of care as a property owner by leaving the bathroom door unlocked at night and contrary to its own procedures, thus allowing the assaults to occur in an isolated space free from detection. Plaintiffs assert that the City has erroneously characterized the nature of their claim and they refer to their notice of claim which indicates that their injuries arose from the negligence of the City "in its ownership, operation, management, care and control of the aforementioned public park and the aforesaid bathroom." Plaintiffs add that "there is a history of violent crimes in the park" and that the City "had established the policy of locking the bathrooms in the park at 4:00 p.m." [FN2]

In reply, the City disputes plaintiffs' contention that this case involves its exercise of a proprietary function, especially since "the park's bathroom is not a dwelling and the plaintiffs were not tenants therein." Moreover, according to the City, "the plaintiffs failed to raise a triable issue of fact on [the] question of causation." The City notes that plaintiffs [*3]had been in the park before and had never been threatened and the only prior sexual assault which had taken place in the park occurred away from the bathroom.

In Weiner v New York City Transp. Auth. (55 NY2d 175, 182 [1982]), the Court of Appeals noted that a municipal agency could be engaged in both governmental and proprietary functions and pointed out that: "It is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred."

Here, plaintiffs claim that the City was negligent in not locking the bathroom where the assaults took place. Such an omission, insofar as plaintiffs assert that it permitted the attack by five unknown individuals, involved a governmental rather than a proprietary function for which the City is not liable absent a special duty owed (see Genovese v New York City Tr. Auth., 204 AD2d 116 [1994]; Crichlow v New York City Tr. Auth., 184 AD2d 395 [1992]; Calero v New York City Tr. Auth., 168 AD2d 659 [1990]; Farber v New York City Tr. Auth., 143 AD2d 112 [1988]). Plaintiffs herein do not allege that they were owed a special duty by the City. This case is distinguishable from Miller v State of New York (62 NY2d 506 [1984]), upon which plaintiffs rely, since the act complained of took place in a building with tenants, the ownership and care of which implicated a proprietary function. Moreover, even if the City were obligated, in the exercise of a proprietary function, to furnish a degree of general supervision to deter dangerous activities in the park, such duty does not run to those using the park illegally; that is, those who remain at the park long after it closed for the night (see Flowers v City of New York, 283 AD2d 198 [2001]) Accordingly, the cross motion by the City is granted and the complaint herein is dismissed.

In light of such relief, the motion by plaintiffs to compel discovery is denied as moot.

The foregoing constitutes the decision, order and judgment of this court.

E N T E R,

J. S. C.

Footnotes

Footnote 1: Although plaintiffs do not cite any particular discovery items which are outstanding, they are apparently referring to "Combined Demands" dated February 24, 2005, a copy which is submitted as part of Exhibit "C" of the moving papers.

Footnote 2: Paul Clinton, the Park Supervisor at the Lincoln Terrace Park, testified at his examination before trial that he locked the bathroom on the day of the incident prior to leaving work. H. and M. testified that their assailants were able to enter the bathroom without a key or forcing their way in.