This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 8
Tara N.P. (Anonymous),
            Appellant,
        v.
Western Suffolk Board of
Cooperative Educational Services,
&c.,
            Defendant,
County of Suffolk, et al.,
            Respondents,
et al.,
            Defendants.


          Mary Ellen O'Brien, for appellant.
          Christopher A. Jeffreys, for respondents.




DiFIORE, Chief Judge:
          On this appeal, we are asked to determine whether
Suffolk County can be held liable for damages resulting from the
sexual assault of plaintiff by a worker at a County-owned
facility where plaintiff took adult education classes.   The

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worker, defendant Larry Smith, had been referred for a potential
position with the lessee of the facility through the County's
"welfare to work" program.   We hold that where, as here, the
County's referral of defendant Smith was within the County's
governmental capacity and the County did not assume a special
duty to plaintiff, summary judgment was properly granted to the
County.   We therefore affirm.
           Plaintiff Tara N.P. was sexually assaulted while
attending classes conducted by Western Suffolk Board of
Cooperative Educational Services (BOCES) at a facility operated
by North Amityville Community Economic Council (NACEC).    NACEC
leased the facility where classes were held from Suffolk County
for a nominal amount.   Additionally, NACEC agreed that the
facility would be a work site for the Suffolk Works Employment
Program (SWEP), a "welfare to work" program operated by Suffolk
County Department of Labor (DOL).    NACEC agreed to accept
referrals of individuals who did not have criminal records.     The
DOL referred defendant Smith to NACEC for a potential position as
a maintenance worker notwithstanding that it knew Smith was a
level three sex offender.    NACEC accepted the referral of Smith
and months later, while working at NACEC's facility, Smith
sexually assaulted plaintiff in an empty classroom.
           Plaintiff brought this action to recover damages for
personal injuries against Suffolk County, the Suffolk County
Department of Social Services, and the DOL (hereinafter,


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collectively the County), as well as Smith, NACEC, BOCES, and
others.    In addition to other relief, the County moved for
summary judgment dismissing the complaint insofar as asserted
against it on the grounds that it did not owe plaintiff a duty of
care and, in any event, was entitled to absolute governmental
immunity for discretionary acts.    Supreme Court, among other
things, denied the County's motion for summary judgment.    The
Appellate Division, as relevant here, reversed that portion of
Supreme Court's order and granted the County's motion for summary
judgment on the ground of governmental immunity, holding that the
County was acting in a governmental capacity and did not
voluntarily assume a special duty to plaintiff.    As to
plaintiff's argument that the County should be liable because it
acted in a proprietary capacity as a landlord, the Appellate
Division held that the "essential act complained of . . . that
the County negligently referred Smith to NACEC, was a
governmental act" and, therefore, plaintiff could not "avoid the
attachment of governmental immunity" (131 AD3d 517, 520 [2d Dept
2015]).    We granted plaintiff leave to appeal (26 NY3d 914
[2015]).
           Plaintiff argues that the County's negligence arose out
of its proprietary function as a landlord, and that the County's
failure to provide minimal security or a warning to protect those
on the premises against foreseeable harm raises issues of fact
that preclude summary judgment.    In the alternative, plaintiff


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argues that, assuming the County is found to have acted in a
governmental capacity, the County had a special duty to plaintiff
and the act of referring Smith to NACEC was not discretionary.
          Under our well-established case law, plaintiff's
arguments are without merit.   As we have previously explained,
"[w]hen a negligence claim is asserted against a municipality,
the first issue for a court to decide is whether the municipal
entity was engaged in a proprietary function or acted in a
governmental capacity at the time the claim arose" (Applewhite v
Accuhealth, Inc., 21 NY3d 420, 425 [2013]).   "A government entity
performs a purely proprietary role when its 'activities
essentially substitute for or supplement traditionally private
enterprises'" (id., quoting Sebastian v State of New York, 93
NY2d 790, 793 [1999]).   In that instance, the government entity
is subject to suit under the ordinary rules of negligence.     In
contrast, acts "'undertaken for the protection and safety of the
public pursuant to the general police powers'" are governmental
in nature (id., quoting Sebastian, 93 NY2d at 793).   "Because
this dichotomy is easier to state than to apply in some factual
scenarios, the determination categorizing the conduct of a
municipality may present a close question" (id.).   For that
reason, courts must "examine 'the specific act or omission out of
which the injury is claimed to have arisen and the capacity in
which that act or failure to act occurred'" (Matter of World
Trade Ctr. Bombing Litig., 17 NY3d 428, 447 [2011] [citations


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omitted] [emphasis added]).
          In this case, the specific act or omission that caused
plaintiff's injury was the County's referral of Smith to NACEC
through the County's SWEP program, a referral made in spite of
NACEC's caveat that it would not accept candidates with a
criminal record.   The administration of SWEP by the DOL was
quintessentially a governmental role.    The County's conduct in
referring Smith was undertaken solely in connection with its
administration of that program and was part of the County's
fundamental governmental activity.     Therefore, we hold that the
County was acting in its governmental capacity when it referred
Smith to NACEC.
          Plaintiff's claim that the County was acting in its
proprietary capacity as a landlord is unpersuasive.    Again, the
specific act or omission out of which the injury arose was the
County's referral of Smith to NACEC.    This case is
distinguishable from Miller v State of New York (62 NY2d 506
[1984]), where we held that the State could be liable for damages
in its proprietary capacity as a landlord for failing to keep
outer doors locked in a State-operated college dormitory where
"there was a reasonably foreseeable likelihood of criminal
intrusion into the building" (Miller, 62 NY2d at 508-509).     Here,
it is not the County's duty as a landlord to maintain basic
security that is implicated; rather, it is the County's failure
to properly adhere to the terms that NACEC requested when the


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County referred Smith for a potential position at NACEC's work
site.
          Given that the County was exercising a governmental
function in referring Smith to NACEC, "the next inquiry focuses
on [whether] the municipality owed a 'special duty' to the
injured party" (Applewhite, 21 NY3d at 426; see also Coleson v
City of New York, 24 NY3d 476, 481 [2014]).   As we have
explained, "[t]he core principle is that to 'sustain liability
against a municipality, the duty breached must be more than that
owed the public generally'" (Applewhite, 21 NY3d at 426
[citations omitted]).   "[A] special duty can arise in three
situations: (1) the plaintiff belonged to a class for whose
benefit a statute was enacted; (2) the government entity
voluntarily assumed a duty to the plaintiff beyond what was owed
to the public generally; or (3) the municipality took positive
control of a known and dangerous safety condition" (id.).    The
burden of demonstrating such a special duty lies with the
plaintiff.   If the "plaintiff fails to meet this burden, the
analysis ends and liability may not be imputed to the
municipality that acted in a governmental capacity" (id.).
          Of the three ways a plaintiff may show the existence of
a special duty, situations one and three have no relevance to
this case and only the second is at issue here -- namely, whether
the County "voluntarily assumed a duty to the plaintiff beyond
what was owed to the public generally" (id.).


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          In Cuffy v City of New York (69 NY2d 255 [1987]), we
articulated four elements of this special relationship:
          "(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) that
          party's justifiable reliance on the
          municipality's affirmative undertaking" (id.
          at 260 [emphasis added]).
          Notably, all four elements must be present for a
special duty to attach (Applewhite, 21 NY3d at 431).   Here, the
absence of the last two elements -- direct contact and
justifiable reliance -- is fatal to plaintiff's claim.    There is
no view of the evidence that could allow one to conclude that the
County voluntarily assumed a special duty to plaintiff.   Even if
the County promised that it would not refer anyone with a
criminal background, that promise would have been made only to
NACEC and there is no evidence that plaintiff ever had any
knowledge of NACEC's request.   In addition, while "the direct
contact requirement has not been applied in an overly rigid
manner" (Cuffy, 69 NY2d at 261), it is undisputed that there was
no direct contact between plaintiff and the County.    The County
referred Smith to NACEC and plaintiff herself never communicated
directly with the County or the DOL.    Indeed, "[o]ur cases have
accepted direct contact . . . by someone other than the plaintiff
as sufficient to create a special relationship only where the


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person making the contact was acting on behalf of his or her
immediate family" (Laratro v City of New York, 8 NY3d 79, 84
[2006]), which was not the case here.
          Likewise, in the absence of direct contact between
plaintiff and the County, the "critical" element of justifiable
reliance (Cuffy, 69 NY2d at 261), cannot be met.   "[A]t the heart
of most of these 'special duty' cases is the unfairness that the
courts have perceived in precluding recovery when a
municipality's voluntary undertaking has lulled the injured party
into a false sense of security and has thereby induced him either
to relax his own vigilance or to forego other available avenues
of protection" (id.).   Here, however, plaintiff has not
demonstrated -- and cannot demonstrate -- such reliance (see
Laratro, 8 NY3d at 84).   To find that NACEC's contacts with the
County could be imputed to plaintiff to satisfy the direct
contact and reliance elements would eviscerate these elements
entirely and "would unacceptably dilute the general rule of
municipal nonliability" (id.).    Accordingly, plaintiff raises no
triable issue of fact as to a special duty running to her from
the County.
          Because we have determined that there is no triable
issue of fact as to the existence of a special duty, we need not
address whether the County's referral of Smith was ministerial or
discretionary under the "governmental function immunity defense"
(see Valdez v City of New York, 18 NY3d 69, 75 [2011]; see also


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Haddock v City of New York, 75 NY2d 478 [1990]*).   Indeed,
ministerial actions may be a basis for liability, "but only if
they violate a special duty owed to the plaintiff, apart from any
duty to the public in general" (McLean v City of New York, 12
NY3d 194, 203 [2009]).   Even if we were to assume in plaintiff's
favor that the referral of Smith was ministerial, she cannot
recover against the County in the absence of a special duty.
          As we have observed in some prior cases, this
unfortunately is "a case in which a failure by government to do
its job has caused harm" (id. at 197).   Nonetheless, our well-
settled rule of law mandates our holding that the County is
immune from liability to this plaintiff.   Indeed, the public
policy considerations that require our application of the special
duty requirement are underscored when the governmental act at
issue involves beneficial services, such as the "welfare to work"
program involved here.
          Accordingly, the order of the Appellate Division,
insofar as appealed from, should be affirmed, with costs.




     *
      Notably, we did not address the question of special duty in
Haddock and instead focused exclusively on whether the City's
retention of a participant in the Work Relief Employment Program
as a Parks Department utility worker was ministerial or
discretionary.

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*   *   *   *   *   *   *   *     *      *   *   *   *   *   *   *   *
Order, insofar as appealed from, affirmed, with costs. Opinion
by Chief Judge DiFiore. Judges Rivera, Abdus-Salaam, Stein,
Fahey and Garcia concur. Judge Wilson took no part.

Decided February 16, 2017




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