Ewadi v City of New York

Ewadi v City of New York 2014 NY Slip Op 03199 Decided on May 6, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 6, 2014
Gonzalez, P.J., Mazzarelli, Sweeny, Manzanet-Daniels, Clark, JJ.
12392 8337/05

[*1]Nzingha Ewadi, Plaintiff-Appellant, The

v

City of New York, et al., Defendants-Respondents, Camila Lopez, Defendant.




Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for
appellant.
Jeffrey D. Friedlander, Acting Corporation Counsel, New York
(Susan P. Greenberg of counsel), for respondents.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 19, 2013, which, to the extent appealed from as limited by the briefs, granted the municipal defendants' motion for summary judgment dismissing the complaint as against the City of New York and Fire Department of the City of New York, unanimously affirmed, without costs.

Plaintiff testified at his deposition that the only words spoken to her by firefighters arriving to extinguish the fire at the building in which she was trapped were, "Hold on." These words are too vague to manifest an assumption by firefighters of a voluntary duty to plaintiff beyond that owed to the general public (see Coleson v City of New York, 106 AD3d 474, 474-475 [1st Dept 2013]). The balance of plaintiff's assertions are insufficient to raise an issue that the fire department assumed direction and control in the face of a "known[] blatant" danger, and affirmatively placed plaintiff in harm's way (see Abraham v City of New York, 39 AD3d 21, 28 [2d Dept 2007], lv denied 10
NY3d 707 [2008]; see also e.g. Garrett v Holiday Inns, 58 NY2d 253, 262 [1983]).

Plaintiff's argument that misfeasance does not require a special relationship to create a duty is unavailing (Applewhite v Accuhealth, Inc., 21 NY3d 420, 426 n 1 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 6, 2014 [*2]

CLERK