Hernandez v City of N.Y.

Annotate this Case

Download PDF

Hernandez v City of N.Y. 2011 NY Slip Op 33445(U) December 19, 2011 Sup Ct, NY County Docket Number: 113171/10 Judge: Cynthia S. Kern Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] EDON I212712011 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: CYNTHIA s. KER?.r 4: . Jus tic e . > I"-----_-^.-.~ - Index Number: 113171/2010 HERNANDEZ, GABRIEL vs. CITY OF NEW YORK SEQUENCE NUMBER : 001 - MOTION DATE MOTlONSEP.NO. DISMISS - The following papers, numbered 1 to , were read on this motion tolfor Notice of MotionlOrder to Show Cause -Affidavits Answerlng Affldavlts c) IN O W IN o w IW s ) . - Exhlbits - Exhlblts Replying Affidavits Upon the foregolng papem, It is ordered that this motion I s FILED 1 d L . , ,J.S.C. CYNTHIA S . KERN ..................................................................... CASE DISPOSED I -I ~ ~ d - f i a ~ DISPOSITION 2. CHECK AS APPROPRIATE: ........................... MOTION IS: cf GRANTED 0DENIED c-1 GRANTED IN PART flOTHER 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 1SUBMIT ORDER 7 1- DO NOT POST LIFIDUCIARY APPOINTMENT 0REFERENCE I. CHECK ONE: [* 2] Index No. 11Y71/1O Plaintiff, FILED IJON. CYN I IJIA S. KERN, J.S.C. NEW YOHK lbxilation, as rcquired by C1II.R 22 19(a), of the papers considcred in t l i c E ~ ~ ~ l ~ h ~ ~ ~ i 8 f i F I C E for : Papcrs Numbered 1 Notice of Motior-1and Al lidavits Annexed .................................... Noticc of Cross Motion and Answering Aflidavits. ...................... A f h i a t i o n s in C)pposition to the Cross-Motion.......................... Re plying Aft i dav i t s ...................................................................... Exhibits...................................................................................... 2 > - ~-~ 3 4 ,~ Plaintiff ~ o ~ i i ~ ~ i c ithe e d i c inslant action to rccover damages for personal injuries lie allegedly susiained when hc helped policc oilicers fix t h i r overhcatcd pol ice car. [Meridant the C, ity of New Yorlc ( t l x City ) iiow IIIOVCS to dismiss p1aintifI s complaiiil pursuant lo (:I LR 321 1 (a)(7) 011 the grounds that plaintiff failed to comply with GML 550-e(2) and that plaintirfs complaint fails lo state a cause of action upon which rclicfcan be granted. For the rcasoiis sct forth below, the City s motion is grantcd. Ilic rclevant facts are ;is follows. On Octobcr 8, 2009, st approximatcly I I :00 a.m., while plaintiff was walking in front of 60 Nagle Avenuc, approxirnatcly 185 f c d h i i i thc corner oINagle A V ~ I ~ atidCEllwood Strcct, New York, Ncw York, he came across a Ncw York City LI - Police Dcpartriicnl police car. Three New York City policc officers ii-om the 34 hprecinct wcrc [* 3] shiding around the vchiclc. It appeared lbal the police ofliccrs were oxpci-ieiiciiig car tloublc. Plaintiff approached the police oi liccrs 10 offcr liis help as hc had previously worked as ;i mechanic. Tlic police oflyccrs ini- ornicd plainlif that Ihc ciigiiic liud overheated. I)l:iiiil-iff tlicii told the police o.fGcers lhat tlicy "have to open the radiator to sce if it needs water. PIfiiiililT alleges that llic police oflicers thcti dircctcd him to opeii the radiator cap. Using a handkerchici , plain~ilfrcmovcd radiator cap and stcaiii and anti-freeze erupled from the vehicle, injuring the plaintiff. I he police oI ficers then cscortcd plaintiff lo a nearby bathroom ST) lie could adniinistcr cold watcr lo his injuries. I laintiff suffered second degree burns to liis left band, forearni und wrist, requiring surgeiy, among other ill-juries. rile state of the case law o n inunicipal iininunity is somewhat ambiguous. I he Churt 01. Appeals h a s spccifically held that governments or iii~inicipalities irnmune from liability for arc the actions of their agencies i l ~liosc actions were discretionary. Stlc McLcarz v C ily O~ NL?MI I czrk, 12 N.Y 194, 203 (2009). The Mc1,can court explained that, Chvernin.ental action, i l .3d discrctionary, rimy nut he a basis for liability, while miiiislerial actions may be, but oiily ir tlicy violate a special duly owed to the Id In MuLeun, tlic Court of A.ppeals specifically held that thc special relationship exception can only apply if the governmental aclion at issue is ministerial. ,S m id. Subsequently, i n Ilinardo v City 0 f N w York, I 3 N.Y.3d 872 ( X O ! ) ) , Chief Judge Lippmnn stated i n his concLirreiicc Ihat although he bclicvcd that the iLlcCcl-indccision effcctivcly eliininatcs the special relationship exception, the cowl was ncverhcless constrained by its holding. See id.at 876. I Iawever, in VaZdez v City of New Ynrk, the First Deparlment subsequcnlly held tlial it is inconceivable that tlic Court [in McLean] intendcd to climiiiatc the 76 special duty exc,cption in police cases. 74 A.11.3~1 (1 Ikpt 2010). The Vulckz court went 011to hold that the analysis shoulcl begin, not end, with whether thc municipality had a spccial - 2 [* 4] rclatiorisliip with the plaiiitifY, SPCid a1 78 In Vol~/m. Firs1 rklvirtiiient ctplicilly stnted that the wlieii policc action is involved, a govcl-umcntal agency s liability Lor iicgligciit perli11.111iI11cc depends in thc Jii:rt in.r/artcc c m whether a special relationship existed. Id. a1 7X (cmphasis added). This court will therefore hllow VuZd~z detcrniine first i l such a spcciid rclat~onsliip and d existcd. Il iiot, t h u inquiry ends 11ierc. Sw i I liere arc Ihrec ways a special relationship can be formed: ( 1 ) whcii thc inuiiicipality violates a statutory duty enactcd for the hcnciii of a particular class ofpcrsoiis; (2) when [llic m~unicipality vol~u~tnrily I assuiiies a duty that generates justiliablc reliance by Ihc pcrson who bcnelits from ilic duty; or (3) whcii the municipality assumes positivc direction and control in llie face of a known, hlatant arid dangerous safety ~ i o l a l i o n . ~ PrIacz I) Ski&, 2 N.Y.3d 1x6, 199- 200 (2004). T is uiidisputdd that t h e exists no such stdutory duly and that thc Cily did not t voluntarily assiinic any duty with rcgard to plaintiff in [he instant casc. PlaintiLl asserts that a special relationship exists under tlic third exception - that the City assuiiied positive direction and control in thc I acc of a known, blatant and dangerous salely violation. Thercfore, this court will nddrcss tlic tliircl way i n which a special rclationsliip can he formcd. I n the instar11 case, plain~ii1~ ailsraisc an issue of (act as lo whether tlicr-c was to 3 special rclatioizship bctween plaintiff and the municipality by virtue of the City assuming positive dircction and control of the situation i n the h c c of a known safcty violation. Oclacz, 2 N.Y .3d at 203 (ciliiig ,Sr~~ulIc/iC ily of Nciu York, 28 N . Y .2d66 (1 97 1). Plaintiii has not v deinonslrated that tlic City assunicd any dircction or control of plaintiflaiid he points 10 known or blatant safcty violation oii the part of the City. Siniply asserting thal 170 311ovcrlicating arid disabled vehicle is an inherently dangerous instrumcntality is insufficient lo mccl tlic special relationship standard under the third exception as it is not a known and blatant s a h y violation. - 3 [* 5] In ,S/711///~/1, tlic coiii-i foiind that a spccial relationship exiqtcd wherc tlic city iiispcctor into ii trench, staled tliat the ti ciicli assigned to a construction site observed plaiiitiil dcsccndin~ was prctty solid a11d that Iic did not think it needed to be shored, where in fact there was a blatant violation of s a k t y rulcs rclatiiig to such trenches. The plaintill was killed whcn thc trciich subscquctitly collapsed. The StFizrlfcrz court cxplamed that in that case, the iiiiinicipnltty went beyond the basic Lilurc to pcrceive a violation. Here a blatant violation cxiskd; the catcgorical regulations did not permil the inspector to form ajudgiiieiit but JIC nevcrtheless procccded to do s o and urr-ongly acl.jiidgcd the trench to be safe and stood by whilc dececlcnt, knowing of his presence and approval, entered into lhe perilous situation, thcreby establishing a special relationship. 28 N.Y.2d at 7 1. Similarly, in Garre11 v. H o l j h y Inns, lvlc , thc court held that a inunicipalily inay bc liable to the owners of a motel lor damages inc urred i i i a lire whcu [ill: as iq allegccl in the complaint[], known, blalant and dangerous violations existcd on thcsc premises but the town affiriiiatively ccr-tihl the prcmises as safe, upon which representation appcllants jusliiiably relied in thcir dealings with the premises ... SS N.Y.2d 253, 262 (1981). In the instant case, plaintiff has not cited any safety r~rlc regulation which was blatantly or. violated, a ticccssary prcdicatc to finding a spccial relationship hascd on llic municipnlity s assumption ol positive dircction and control of the situation. In both ,%ii//lcn and Gnrrell, knowledge of blalant and daiigcrous sakty violations were ncccssary to thc c011rts holdings thal liabiliiy might bc imposed. , ~ m i / / u I28 , N . Y . 2 1 at 71; G c r r x t t , 58 N.Y.2d at 262. Without that predicate, plaintif1 cannot raise an issue of fact as to whether lie liad a spccial rclationship wilh the municipality and thcrehre thc City is inmutic Lrom liability. Finally, tlic court will not adclrcss the C ity s arguriicnt that plaintii f s Nolicc 01 Claim is [* 6] deiicicnr as plainliH s claim is dismissed for failure to state a causc of actim. A C C C I I - i~n g I y , thc (1 it y s 111oi i on to dismiss p I ai 111i K s conip 1ai tit i s grai 1t c (1. 1 1 ai n t i II s coiiiplainl is licrchy disiuissed jti its ontirely. I his conslilutcs tlic dccision and ordcr 01. h c CN O. I Et1tcr : J.S.C. CYNTHIA S. J.S.C FILED NEW YCjflK GOUhTY CLERK S OFFICE 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.