Connolly v Simon

[*1] Connolly v Simon 2009 NY Slip Op 51297(U) [24 Misc 3d 1207(A)] Decided on June 23, 2009 Supreme Court, Queens County Flug, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2009
Supreme Court, Queens County

Matthew Connolly, et al.

against

Phillip J. Simon, et al.



14343 2006



Plaintiff's attorney:

Sacks & Sacks, LLP

150 Broadway, 4th Floor

New York, New York 10038

Lyaman F. Khashmati, Esq.

Defendant's (Simon) attorney:

Congdon, Flaherty, O'Callaghan, Reid

Donlon, Travis & Fishlinger, Esqs.

333 Earle Ovington Boulevard, Suite 502

Uniondale, New York 11553

Jane M. O'Callaghan

Defendant (NYC) attorney:

Corporation Counsel

89-17 Sutphin Boulevard

Jamaica, New York 11435

Susanna A. Roif, Esq., Assistant Corporation Counsel

Phyllis Orlikoff Flug, J.

Plaintiff Matthew Connolly allegedly sustained personal injuries when he was attacked by a dog owned by defendant Phillip J. Simon while walking on a public sidewalk outside of Maurice Park, a City-owned park in the borough of Queens. It is alleged that the dog was unleashed in Maurice Park at a time beyond the permissible hours fixed by City regulations for dogs to be unleashed in the park and ran out of the park onto the sidewalk where the attack occurred. The City's motion is premised solely on its contention that it cannot be held liable in this matter involving a governmental function because it did not owe a special duty to Matthew Connolly upon which the injured plaintiff relied to his detriment. Plaintiffs and defendant Simon do not dispute the City's showing that no special relationship existed between Matthew Connolly and the City but attempt to defeat the motion on other grounds. In their opposition, plaintiffs assert that the operation of a park by a municipality is not a governmental function and that, therefore, they need not plead or prove a special relationship between the injured plaintiff and the City in order to recover. Plaintiffs contend that the City was negligent in the operation of the park and is liable to them for failing to enforce its own rules and regulations regarding unleashed dogs. Defendant Simon argues that the special relationship requirement would be inapplicable here if an affirmative act of a City employee who was playing with Simon's dog in the park before the attack caused the incident.

It is well settled that a municipality cannot be held liable for the negligent performance of a governmental function, such as the provision of police protection to members of the general public, unless the injured party had a special relationship with the municipality by which the municipality assumed a specific duty to act on behalf of that individual. (See, Laratro v City of New York, 8 NY3d 79, 82-83 [2006]; Cuffy v City of New York, 69 NY2d 255, 260 [1987]; Miller v State of New York, 62 NY2d 506 [1984].) While acting in a proprietary capacity as a property owner or landlord, however, a municipality owes the same duty to maintain its property as a private landowner. (See, Miller, 62 NY2d at 511, 513.) In its proprietary capacity, a municipality has a duty to maintain its park in a reasonably safe condition, including not only physical maintenance but also the prevention of ultrahazardous and criminal activity of which it has knowledge. (See, Solomon v City of New York, 66 NY2d 1026 [1985]; Benjamin v City of New York, 64 NY2d 44, 46 [1984]; Rhabb v New York City Hous. Auth., 41 NY2d 200, 202 [1976]; Nicholson v Board of Educ. of City of NY, 36 NY2d 798, 799 [1975].) In this instance, the City acted both in a proprietary capacity as the owner of the park and in a governmental capacity by undertaking to provide for the protection and safety of the general public. (See, Sebastian v State of New York, 93 NY2d 790, 793-794 [1999]; Miller, 62 NY2d at 511-512; see, e.g., Solomon, 66 NY2d at 1027-1028.) Whether the City can be held liable to plaintiffs herein is dependent upon the specific act or omission by the City out of which plaintiff Matthew Connolly's injury is alleged to have arisen and the capacity in which the City's conduct occurred. (See, Sebastian, 93 NY2d at 794; Miller, 62 NY2d at 513; Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182 [1982].)

The City's promulgation and enforcement of the regulations prohibiting unleashed dogs in [*2]City parks except in designated parks or designated areas of a park between the hours of 9:00 P.M. and 9:00 A.M. (Rules of City of NY Dept of Parks and Recreation [56 RCNY] § 1-04[i][1],[2]) falls within the category of a governmental function. (See, Solomon, 66 NY2d at 1028; Marino v State of New York, 16 AD3d 386 [2005].) By promulgating and enforcing these regulations intended for the protection of the general public, the City did not assume a special relationship with the injured plaintiff that carried with it a special duty to protect him from the prohibited activity. (Id.) As indicated above, plaintiffs do not claim the existence of a special relationship. Therefore, the City cannot be held liable for the alleged failure to enforce the regulations. The opposition by defendant Simon, who denies that his dog was unleashed after the permissible time set forth in the City's rules and regulations, is not directed to the alleged failure of enforcement. In any event, there is no merit to defendant Simon's argument that the evidence that a City park employee was playing with Simon's unleashed dog prior to the attack raises an issue of fact as to whether an affirmative act on the part of the employee caused the injuries to plaintiff Matthew Connolly. It would be mere speculation to conclude that the employee's conduct was a proximate cause of the incident. (See, Clinger v New York City Tr. Auth., 85 NY2d 957, 959 [1995]; Cangro v Noah Bldrs., 52 AD3d 758 [2008]; Lisi v Coco, 31 AD3d 615 [2006].)

The court notes that plaintiffs' complaint does not contain a separate cause of action against the City for failing to enforce its rules and regulations. Partial summary judgment may be granted, however, as to a part of a cause of action. (CPLR 3212[e].) Accordingly, the motion is granted to the extent that the City is awarded partial summary judgment dismissing the part of the negligence cause of action that is based on the City's alleged failure to enforce its rules and regulations.

In all other respects, the motion is denied. The City did not address its potential liability for negligence in the performance of a proprietary function as the owner of the park and has not made a prima facie showing that it did not breach its duty to maintain the park in a reasonably safe condition by failing to prevent an allegedly ultrahazardous activity of which it had knowledge. (See generally, Rhabb, 41 NY2d at 202-203.) Thus, the City has failed to meet its burden of demonstrating its entitlement to judgment as a matter of law on the part of the negligence cause of action alleging a breach of a park owner's duty and summary judgment thereon is precluded without regard to the sufficiency of the opposition papers. (See, Ayotte v Gervasio, 81 NY2d 1062 [1993]; David v Bryon, 56 AD3d 413 [2008].)

Dated: June 23, 2009

J.S.C.