Badillo v City of New York

[*1] Badillo v City of New York 2005 NY Slip Op 52363(U) [19 Misc 3d 1106(A)] Decided on July 8, 2005 Supreme Court, Bronx County Thompson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2005
Supreme Court, Bronx County

Virginia Ruiz Badillo and Henry Badillo, Sr., Individually and as Administrators of the Estate of Henry Anthony Badillo, Plaintiffs,

against

The City of New York, Defendant.



13186/04



The Appearances of counsel on the Badillo motion are:

Movant

Defendant, The City of New York

By: Elizabeth Gallay, Esq.

Corporation Counsel of the City of New York

100 Church Street, Room No. 4-204

New York, New York 10007

Opposition

Plaintiffs, Virginia Ruiz Badillo and Henry Badillo, Sr., individually and as Administrators of the Estate of Henry Anthony Badillo

By: Joseph W. Belluck, Esq.

Belluck & Fox, LLP

295 Madison Avenue, 37th Floor

New York, New York 10017

Kenneth Thompson, J.

The City's four motions pursuant to CPLR § 3211(a)(7) for an order dismissing the four actions, on the ground that the complaints fail to state a cause of action, are consolidated herein for decision

This tragic case arises out of the deaths of four teenagers (Henry Badillo, Max Guarino, Carlo Wertenbaker and Andrew Melnikov) who boarded a small rowboat on the night of January 24, 2003 and drowned when the boat sank in the frigid water of the Long Island Sound, off the coast of City Island. At 7:45 pm that evening, all four boys arrived at Carlo's home. Carlo told his mother that he and the boys were going to walk on the beach near High Island. The boys left the house around 8:15 pm. The following is a transcript of the 911 call: Caller: taking on waterOperator: Police operator number 10-[*2]Caller: Oh my God - Hello?Operator: Hello?Caller: Hello - ah - we're - Listen - We're on the Long Island Sound, in a boat, off the coast of City I- We're gonna die

This court listened to the horrific 911 call, which lasted approximately 12 seconds on the caller's end. From the tone of the caller's voice, it sounds as if he was gasping for air prior to the call ending abruptly. The next morning, the parents discovered that the boys were missing. On January 26th, the parents learned that Henry Badillo made the 911 call on January 24th at 9:58 pm. Eventually, the bodies were recovered.

The parents of each boy commenced actions against the City of New York. The complaints assert that the City was responsible for the functioning of the 911 system and was further responsible for transferring calls for assistance directly to the appropriate emergency service. They allege that the teenagers relied on the City's ability to respond to 911 calls, based upon the 911 cellular phone surcharge and the City's assumption of the 911 services for City Island and the adjacent waterways. They further allege that the boys died as a result of the City's negligence.

The City argues that the complaints fail to state a cause of action because the plaintiffs did not plead a special relationship between the City and the teenagers.

A municipality is immune from tort suits arising out of its performance of a governmental function absent the existence of a special relationship between it and the injured person. See Palaez v. Seide, 2 NY3d 186. The Court of Appeals held: A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation (citation omitted).

Palaez, Id at 199-200. Accordingly, this court will address whether a special relationship was properly plead.

1) Violation of a Statutory Duty

The Federal Communications Commission has reaffirmed its commitment to the rapid implementation of technologies needed to bring emergency help to wireless callers throughout the United States. "We recognize that ensuring direct access to 911 services is a public good benefitting all Americans, not simply those placing the call." Gloria Tristani, FCC Commissioner. The legislation for the enhanced 911 system does not recognize a private right of action. Although the plaintiffs do not allege a special relationship based upon a violation of a statutory duty, one cannot be maintained. Id. at 200.

2) Voluntary Assumption of a Duty

Plaintiffs allege that the City assumed a duty to the teenagers by accepting surcharges for the establishment of an enhanced 911 system. In order to determine whether the City voluntarily assumed a duty, we must examine the 4 prong test [*3]established in Cuffy v. City of New York, 69 NY2d 255. Before a special relationship can be based upon the voluntary assumption of a duty, the following must be established: (1) [A]n 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 agent that inaction could lead to harm; (3) some form of direct contact between the municipality's agent and the injured party; and (4) the party's justifiable reliance on the municipality's affirmative undertaking (citations omitted).

Id at 260. The emergency 911 system was designed to benefit the general public, not an individual or class of persons. See Helman v. Warren County, 111 AD2d 560. As the enhanced 911 system was not developed specifically for the caller in this case, plaintiffs must show that there was a reasonable reliance on this limited duty in order to form a basis for municipal liability. Id at 561. Whether the boys reasonably relied on the City will be addressed shortly.

Next, the complaints allege that the City had knowledge that its inaction in answering 911 calls could lead to harm. This general claim without factual support is insufficient. HT Captial Advisors, L.L.C. v. Optical Resources Group, Inc., 276 AD2d 420.

As to the issue of "direct contact" between the teenagers and the 911 dispatcher, only Henry Badillo would satisfy this requirement, as it is undisputed that he was the caller. Unfortunately, as the other boys did not have "direct contact" with the operator, the representatives on behalf of their estates cannot adequately plead "direct contact." See Merced v. City of New York, 75 NY2d 798.

Plaintiffs cannot plead justifiable reliance on the municipality's affirmative undertaking. Cf DeLong v. Erie County, 60 NY2d 296. Based upon the 911 recording, the call was terminated before any affirmative representations were made to "...lull[] the [caller] into a false sense of security and...induce[] him either to relax his own vigilance or to forego other available avenues of protection (citations omitted)." Cuffy at 261. It has not been plead that the boys forewent other available avenues of rescue in reliance on the City. Even if the caller justifiably relied on the City, the ultimate harm must be causally related to the operator's conduct, or lack thereof. Accordingly, the plaintiffs cannot plead with specificity that the City voluntarily assumed a duty.

Positive Direction and Control

Finally, plaintiffs have not plead, nor do the facts support, that a special relationship existed because the City assumed positive direction or control in the face of a known, blatant and safety violation.

According every favorable inference to the plaintiffs, this court must regrettably grant the City's motions and dismiss the actions as the allegations contained in the complaints are based on bare legal conclusions that a special relationship existed. The mere hope of discovery to substantiate the claims "provide an insufficient basis for failing to dismiss a patently defective cause of action. HT Captial Advisors, L.L.C., supra.

Upon receipt of this with notice of entry, the Clerk shall dismiss the actions [*4]accordingly.

The foregoing shall constitute the decision and order of this Court.

Dated: _July 8, 2005

J.S.C.