Ramos v Charles

[*1] Ramos v Charles 2009 NY Slip Op 51157(U) [23 Misc 3d 1136(A)] Decided on June 9, 2009 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 9, 2009
Supreme Court, Kings County

Eric Ramos AND NORMA TORRES, Plaintiff,

against

Melissa Charles, RAMON ANTHONY CANON and THE CITY OF NEW YORK, Defendants.



823/03



The plaintiffs are represented by the law firm of Kelner & Kelner, Esqs., by Gail Kelner, Esq., of counsel, the defendants Melissa Charles and Ramon Anthony Canon are represented by the Law Offices Bryan Rothenberg , by Leslie Eyma, Esq., of counsel, the defendant the City of New York is represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by Robert W. Gordon, Esq., of counsel.

Robert J. Miller, J.

On December 28, 2001, the plaintiff Eric Ramos (Ramos) was seriously injured while he was apedestrian walking on the sidewalk near One Metro Tech, Brooklyn, NY, when a car operated by defendant Ramos Anthony Canon (Canon) and owned by his mother defendant Melissa Charles (Charles) jumped the sidewalk and struck Ramos.

Plaintiff sues Canon and Charles and the defendant the City of New York (City).

The claim against the individual defendants sounds in negligence. The claim against the City alleges that an unidentified police officer directed Canon who was sitting in the passenger seat of the car to move as it was illegally doubled parked. Charles had left her 17 year old son Cannon who did not have a license in the car when she went into an office building. The complaint further alleges that Cannon advised the police officer that he did not have a license.

Canon testified at his deposition as follows:

Q. What did you do after he tapped on the passenger's window?

A. I sat up again.

Q. You moved your seat physically up?

A. Yes.

Q. Then what occurred?

A. He said that I need to move the car. And again I told him

" I don't have a license." He said, "Well, someone has to move

the car. You're going to get a ticket."

Q. Did he ask you whether you had any type of training to drive a car?

A. No.

Q. What transpired after he told you were going to get a ticket?

A. I just got up and sat in the driver's side.

Q. Did he tell you you had to move the car?

A. Yes.

Apparently rather than get a ticket, Canon, knowing he did not have a license, proceeded to move the car by starting it and putting it into gear. He further testified that he blacked out and did not learn that he had struck a pedestrian until after he was taken to the police precinct.

The City now moves for summary judgment dismissing the complaint claiming that it is not liable for the negligent performance of discretionary acts of its employees, unless a special relationship has been established between the plaintiff and the City, thereby creating a special duty. Plaintiff cross moves for partial summary judgment on liability. [*2]

The City relies on Kovit v Estate of Hallums, 4 NY3d 499 (2005) which involved the direction by a police officer to a "hysterical" person to move her car forward. Instead, the driver put her car in reverse crushing plaintiff's legs. The City was sued by plaintiff. The Court set forth the applicable law as follows:

As we explained in Pelaez v Seide (2 NY3d 186, 193 [2004]),

municipalities generally enjoy immunity from liability for

discretionary activities they undertake through their agents, except

when plaintiffs establish a "special relationship" with the municipality.

****************

The exception to the rule, as we noted in Pelaez (2 NY3d at 193),

is when the plaintiff establishes a special relationship with the municipality.

Here, plaintiff fails to do so. Establishing a special relationship

based on a municipality's assumption of a duty requires (1) an assumption

by a municipality, through promises or actions, of an affirmative duty

to act on behalf of the injured party; (2) knowledge on the part of a

municipality's agents that inaction could lead to harm; (3) some form of

direct contact between the municipality's agents and the injured party;

and (4) that party's justifiable reliance on the municipality's affirmative

undertaking (see Pelaez, 2 NY3d at 202; Cuffy v City of New

York, 69 NY2d 255, 260 [1987]).

The Kovit Court found that plaintiff failed to establish the special relationship with the municipality and dismissed the complaint.

Applying Kovit to this case, it is clear, even accepting all of the facts in a light most favorable to plaintiff (and there are some questions as to Canon's version of events), the plaintiff has failed to establish a special relationship with the City.

Here, "not only was there a lack of a special relationship between plaintiff and the police officer, there was no material communication or relationship at all." (Kovit v Estate of Hallums, 4 NY3d 499, 507.)

In any event, plaintiff is also unable to establish that the alleged direction that "...someone has to move the car. You're going to get a ticket" was the proximate cause of the accident. At most, the alleged actions of the police officer merely furnished the condition for the occurrence of the event, but was not a proximate cause of the accident. (Remy v City of New York, 36 AD3d 602 [2d Dept 2007]).

Accordingly, the City's motion for summary judgment is granted and plaintiff's cross motion is denied. The Clerk of the Court is directed to enter judgment dismissing the complaint as against the defendant City of New York only. The case is transferred to a non-City part.

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller [*3]

J.S.C.

June 9, 2009