Brandes v City of New York

[*1] Brandes v City of New York 2010 NY Slip Op 52173(U) [29 Misc 3d 1236(A)] Decided on November 30, 2010 Supreme Court, Kings County Sherman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2010
Supreme Court, Kings County

Barry Brandes "Butch", Father and Natural Guardian of Jack Brandes, Barry "Butch" Brandes, Individually, and Yvonne Brandes, Individually, Plaintiffs,

against

The City of New York and The New York City Police Department and "John Does" Police Officers Whose Names Are Not Yet Known or Identified, Defendants.



7815/10



Roger Victor Archibald, PLLC

Roger Archibald, Esq.

Attorney for Plaintiffs

26 Court Street, Suite 711

Brooklyn, New York 11242

Michael A. Cardozo

Corporation Counsel

by Yolanda Guadagnoli, Esq.

Attorney for Defendants

350 Jay Street, 8th Floor

Brooklyn, New York 11201

Kenneth P. Sherman, J.

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: [*2]

PapersNumbered

Notice of Motion and Affidavits Annexed.........................1

Opposing Affidavits/Affirmations...................................2

Reply Affidavits/Affirmations..........................................3

Upon the foregoing papers, defendants the City of New York, the New York City Police Department and "John Does" police officers whose names are not yet known or identified (collectively the City) move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint of plaintiffs Barry "Butch" Brandes, father and natural guardian of Jack Brandes (the infant plaintiff), Barry "Butch" Brandes, individually (Brandes), and Yvonne Brandes, individually,[FN1] on the ground that there are no triable issues of fact with respect to the City's alleged negligence in responding to 911 calls made by Brandes at the time of the underlying incident. Plaintiffs oppose the instant motion for summary judgment on the ground that triable issues of fact exist with respect to the City's allegedly delayed response to the subject calls. Alternatively, they contend that said motion is premature due to the need for additional discovery.

The gravamen of the complaint in the instant action is that the City failed to respond in a timely fashion to two emergency 911 calls placed by Brandes on May 17, 2009, thereby causing injury to Brandes and his young son, the infant plaintiff. Plaintiffs aver that both calls were placed while Brandes was being assaulted by an emotionally disturbed man in the vicinity of the Kings Plaza Mall in Brooklyn, New York. The complaint alleges that the assault commenced after said individual forcibly attempted to take the infant plaintiff away from Brandes in the parking lot of the Kings Plaza Mall. As he and his son were confronted by the disturbed man, Brandes ordered his son into the family motor vehicle that was parked nearby. The infant plaintiff entered the car and locked the doors. He remained in the car throughout the incident. As the assailant began to attack him, Brandes, a decorated New York City firefighter, called 911, identified himself, gave his location, informed the 911 operator who answered the call of the nature of the incident taking place and also described the assailant. The 911 operator stated that she needed to ask some more questions. Brandes responded that he needed police assistance and could not answer any further questions because the assailant was attacking him. While still fighting the assailant, Brandes placed a second call shortly after the first call and again requested police assistance. Allegedly, the police did not arrive at the scene of the assault until [*3]approximately 35 minutes after the two initial calls were made to 911. Plaintiffs aver that due to the alleged delay in police response, Brandes suffered physical and psychological injuries and the infant plaintiff suffered psychological injuries.

At his deposition, Brandes testified that he placed the first call to 911 as the assailant attempted to enter the locked car where Brandes had placed his son. He recounted the content of his call as follows:

I said [to the 911 operator that] I was a fireman, I was on Hendrickson and V [Avenue] near Kings Plaza and that somebody was trying to take my son. Then I gave them a full description of him in case he took me out, I wanted everybody to know what he looked like so if they saw this person in the street, they would know that the boy with him was not his son.

* * *

I was giving her the description of everything and then she said to me I need to ask you more questions. I'm like there are no questions, I need help and we're coming to blows as we speak.

He stated that at this point the assailant struck him and he dropped the call. Brandes did not recall if the 911 operator said anything to him other than that she needed to ask him some more questions. He testified that he did not know if the 911 operator had made any promises or assurances to him during the call. Rather, he "just assumed when you call 911 and tell them someone is trying to steal your child, that it's a priority response and somebody would be there forthwith. That's the way we were brought up. This is the first time I've had to call 911 and it's not as they make you believe."

After the first call, Brandes placed the cell phone in his pocket. He did not know if it was still on or off. He continued to fight with the assailant and was shouting for help during the altercation. He did not receive assistance from anyone. He called 911 a second time, identified himself and informed the 911 operator that he was calling for a second time. He stated that the assailant was still trying to take his son and that there was no police presence at the scene. He believed that he gave the location again. The only verbal response he recalled receiving from the 911 operator was her initial greeting of "this is 911, can I help you?" He testified that approximately 4 minutes elapsed between his first and second calls to 911.

The fight between Brandes and his assailant eventually moved to nearby Flatbush Avenue. The altercation ended when Brandes rendered the assailant unconscious with a punch to the face. Brandes subdued the assailant after determining that police assistance was not forthcoming. He described his thought process as follows:

I don't know how long [we were fighting on Flatbush Avenue], but at that point in time I realized the police were obviously not coming and nobody was coming to help me. So I realized the next time we go at it, I have to end this.

* * *

I knocked him unconscious. Had I known nobody was going to come and the police weren't going to come, I would have tried to do that initially, but I assumed that they would be there to [*4]help me. Unfortunately, they let me down.

After the assailant was unconscious, Brandes called the fire department dispatcher directly and identified himself. Approximately 3 or 4 minutes later, an ambulance and fire engine vehicle arrived at the scene. The assailant was taken into the ambulance by the responding paramedics. Brandes further testified that the police eventually arrived at the scene of the incident approximately twenty-five minutes after his first call to 911. He stated that one of the first officers at the scene must have been new to the job "because he was asking me what to do." Brandes testified that he told the officer to ascertain the assailant's name and to make sure that he did not leave the scene. He did not recall speaking to any other officers at that time. He noted that a police sergeant subsequently arrived at the scene approximately forty-one minutes after the initial call. He did not converse with her. He did speak to two plainclothes police officers who arrived after the sergeant. Brandes described the incident to the plainclothes officers, but did not discuss the delayed response issue.

Brandes asserts that, as a result of the incident, he suffered cuts to his mouth, head, arms and dislocated both of his thumbs. He also claims that he and his son sustained psychological trauma related to the incident and, in addition, the emotional well-being and general home life of his family has been disrupted as a result of the subject assault and the alleged failure of the police to respond timely to same.

In an affidavit submitted in opposition to the instant motion, Brandes reiterates the content of his deposition testimony and adds the following explanation concerning his beliefs concerning 911 calls and police response time:

I cannot be sure whether the operator made any statement concerning help being on the way - but as a fireman and first responder for over 30 years, I believed that our New York City law enforcement brothers would respond, right away, to this report of the attempted abduction of my son and attack on me.

Summary judgment should only be granted where there are no triable issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). In order to prevail on a summary judgment motion, the movant must present a prima facie case demonstrating entitlement to judgment as a matter of law (Prince v Di Benedetto, 189 AD2d 757, 759 [1993]; Zarr v Piccio, 180 AD2d 734, 735 [1992]). Once the movant has established his or her prima facie case, the party opposing the motion bears the burden of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Romano v St. Vincent's Medical Center of Richmond, 178 AD2d 467, 470 [1991]; Tessier v New York City Health & Hospitals Corp., 177 AD2d 626 [1991]). Stated differently, "the plaintiff must establish the existence of material facts of sufficient import to create a triable issue" (Shaw v Time-Life Records, 38 NY2d 201, 207 [1975]).

The evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion (Goldstein v Monroe County, 77 AD2d 232, 236 [1980]). Moreover, since summary judgment deprives a party of his or her day in court [*5](Henderson v City of New York, 178 AD2d 129 [1991]), it is a drastic remedy that will only be awarded when there is no triable issue of fact and the court can render a decision as a matter of law (Barclay v Denckla, 182 AD2d 658 [1992]). In addition, "[i]t is well established that negligence cases do not generally lend themselves to resolution by summary judgment, since that remedy is appropriate only where the negligence or lack of negligence of defendant is established as a matter of law" (Chahales v Garber, 195 AD2d 585, 586). Summary judgment is appropriate, however, even in negligence cases, where the movant satisfies his or her initial burden of proof and the nonmovant's opposition to the motion for summary judgment is "entirely conjectural and there is no genuine issue [of fact] to be resolved" (Cassidy v Valenti, 211 AD2d 876, 877; see also Shaw, 28 NY2d at 207 [noting that where a party has established his or her prima facie case, a motion for summary judgment based thereupon "may not be defeated merely by surmise, conjecture or suspicion"]).

In the instant case, the City has demonstrated, prima facie, that it is immune, as a matter of law, from any liability claims based upon its alleged negligent response to the 911 calls placed by Brandes. It is well settled that "[a]s a general rule, a municipality may not be held liable for injuries resulting from a simple failure to provide police protection" (Cuffy v City of New York, 69 NY2d 255, 260 [1987]; accord Etienne v New York City Police Dept., 37 AD3d 647, 648 [2007]["[A] municipality may not be held liable to a person injured by the breach of a duty to the general public, such as a duty to provide police protection, fire protection or ambulance services"]; see also Kircher v City of Jamestown, 74 NY2d 251, 256 [1989]; Euell v Inc. Village of Hempstead, 57 AD3d 837, 838 [2008]; Conde v City of New York, 24 AD3d 595, 596 [2005]). "A narrow exception to the rule exists where a special relationship exists between the municipality and the injured parties" (Conde, 24 AD3d at 596). A special relationship sufficient to impose liability upon a municipality for its negligent performance of police powers exists in cases where the following elements are satisfied:

"(1) an 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 agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) the injured party's justifiable reliance upon the municipality's affirmative undertaking."

(Cuffy, 69 NY2d at 260; see also Etienne, 37 AD3d at 648). In recognizing such an exception, courts have attempted to ameliorate the potential unfairness of precluding recovery where a municipality's voluntary undertaking has lulled the injured party into a false sense of security and induced him or her to relax his or her own vigilance or otherwise forego other available avenues of protection (see Conde, 24 AD3d at 597).

Given the limited nature of the "special relationship" exception, recovery under such a theory is reserved for cases where a plaintiff can demonstrate his or her reasonable reliance on the municipality's affirmative undertaking, and thereby establish the essential causative link between the special duty assumed and the injury ultimately sustained (see id.). Accordingly, "the justifiable reliance element cannot be satisfied by evidence of a plaintiff's belief in, or expectation of adequate police protection" (Valdez v City of New York, 74 AD3d 76, 79 [2010]), even where such expectation is reasonable (see Badillo v City of New York, 35 AD3d 307, 307 [*6][2006]). Indeed, mere assurances from the agent of a municipality that police assistance is forthcoming are generally insufficient to demonstrate reasonable reliance absent some evidence that the injured party affirmatively relied upon such communications to his or her detriment (see Greishaber v City of Albany, 279 AD2d 232, 235 [2001], lv denied 96 NY2d 719 [2001]). Accordingly, in order to defeat a motion for summary judgment by the subject municipality in an action based upon said municipality's alleged negligence in exercising its police powers, the plaintiff must demonstrate that factual issues exist as to whether "the defendants' conduct actually lulled [plaintiffs] into a false sense of security, induced them to either relax their own vigilance or forego other avenues of protection, and thereby placed themselves in a worse position than they would have been had the defendants never assumed the duty" (Conde, 24 AD3d at 597).

The City has demonstrated, through its submission of Brandes' own deposition testimony, that Brandes did not rely upon any assurances or directives from the City or its agents at the time of the underlying incident. Rather, Brandes stated that he "assumed" that his description of the event would engender a priority response and also was "brought up" to expect prompt police action after an emergency call is placed. He further stated that the delayed police response he experienced did not comport with his general belief that a call to 911 would elicit expeditious action from emergency responders. In his supporting affidavit, Brandes further elaborates that his expectations concerning emergency calls and response time also are based upon as own experience as a career firefighter.

With respect to the impact of the subject 911 calls on his own conduct during the incident, Brandes testified that when he realized the police "were obviously not coming and nobody was going to help me" he decided to end the incident by knocking the assailant unconscious. His determination that police assistance was not forthcoming, however, was not based on any communications from, or actions already taken by, the responding authorities. Rather, Brandes forestalled incapacitating the assailant initially because he "assumed that [the police] would be there to help me. Unfortunately, they let me down." In any event, the assault was already in progress during the first emergency call placed by Brandes and, therefore, even if he had affirmatively identified any assurances from the 911 operator concerning police response time - which he has not - the court most likely would be constrained to find that such representations from the operator did not induce him to either relax his own vigilance or to forego other available avenues of protection (see Greishaber, 279 AD2d at 236 [no issue of fact raised as to whether 911 operator's alleged assertion that "help was on the way" caused plaintiff's decedent to relax her vigilance or otherwise fail to defend against her attacker where the evidence adduced demonstrated without question that decedent had engaged in a struggle with her assailant before, during and after 911 call and, accordingly, any representations made to her during that call by a municipal would not have adversely impacted her actions during the subject assault]).

Here, it is undisputed that no assurances of response time were relayed to Brandes by the subject 911 dispatcher and, accordingly, he did not rely on any representations by the police concerning their impending arrival upon the scene. He was not given any suggestions, advice or directives by the dispatcher. Instead, he called 911 twice as he was assaulted, continued to fight his assailant during and after such calls and ultimately subdued him. Accordingly, the duty of the [*7]police to provide aid to Brandes and the infant plaintiff cannot be said to have surpassed, at any time during the subject incident, the general duty of protection and assistance that affords municipal actors qualified immunity for negligence in the performance of their police powers. It is not enough that the outcome of a delay in police response may have resulted in harm to the plaintiffs (see Conde, 24 AD3d at 597-5980), and the court must assiduously limit its findings to whether or not a special relationship existed, even in cases where it is troubled by the circumstances of said delay (see Grieshaber, 279 AD2d at 237). As the plaintiffs in the instant matter have failed to identify any issues of fact with respect to the existence of a special duty on the part of the police toward Brandes and the infant plaintiff, they may not avail themselves of the benefits of this narrow exception. Instead, the City is entitled to summary judgment dismissing the plaintiffs' complaint.

In addition, contrary to the plaintiffs' contentions, the instant motion for summary judgment is not premature. In order to establish that a motion for summary judgment is premature for want of adequate discovery, the party opposing the motion must proffer an evidentiary basis to suggest that discovery may lead to relevant evidence or that facts essential to opposing the motion are exclusively within the knowledge and control of the movant (see Kimyagarov v Nixon Taxi Corp., 45 AD3d 736, 736 [2007]). Accordingly, the mere hope that evidence to defeat the summary judgment motion may be revealed upon further discovery is not enough to forestall summary judgment; rather, the information sought from additional discovery must be clearly specified and relevant to the issues raised in the motion (see Campbell v City of New York, 220 AD2d 476, 477 [1995]; see also Smith v Fishkill Health-Related Center, Inc., 169 AD2d 309, 316 [1991], appeal denied 78 NY2d 864 [mere speculation or surmise that information exists which will defeat summary judgment is not sufficient to warrant further discovery]). The factual underpinning for the crucial "reliance" element of plaintiffs' instant negligence claim is solely within the knowledge of Brandes since it largely hinges upon the content of his two calls to the 911 operator, an area fully explored during his deposition. The plaintiffs do request records of the 911 calls at issue, any municipal investigation pertaining to same and reports concerning citywide 911 response times. It has been held, however, that negligence allegations based upon, for instance, a failure of 911 personnel or other municipal actors to comply with departmental protocols concerning emergency response time or manner of response, may not serve as an independent basis for liability apart from the existence of a special relationship (see Badillo, 35 AD3d at 307). As a result, plaintiff has failed to identify any additional facts in the sole possession of the municipal defendants that are potentially capable of raising a triable issue concerning the existence of a special relationship between plaintiffs and the City in the context of the subject 911 calls and subsequent alleged delayed police response. Accordingly, summary judgment is not premature in this action and may be granted by the court in favor of the City.

As a result, the motion for summary judgment by the City is granted in its entirety and the complaint is dismissed.

The foregoing constitutes the decision, order and judgment of the court.

[*8]November 30, 2010Kenneth P. Sherman

Justice Supreme Court Footnotes

Footnote 1: Plaintiff Yvonne Brandes is suing derivatively for the loss of society and companionship of her husband, Barry "Butch" Brandes.