        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1032
CA 12-00539
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


LINETTE RUIZ, BY THE GUARDIAN OF HER PERSON
AND PROPERTY MARIA RODRIGUEZ,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, DEFENDANT-RESPONDENT.


HANDELMAN, WITKOWICZ & LEVITSKY, LLP, ROCHESTER (STEVEN M. WITKOWICZ
OF COUNSEL), FOR PLAINTIFF-APPELLANT.

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (DAVID M. LEE OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered May 31, 2011 in a personal injury action. The
order granted the motion of defendant to dismiss the complaint and
dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff, by the guardian of her person and
property, commenced this action alleging that she suffered injuries as
a result of the failure of defendant’s Police Department to follow its
own ministerial protocol when responding to a 911 telephone call from
her roommate providing the information that plaintiff was attempting
suicide. Plaintiff’s roommate called 911 after receiving a text
message from plaintiff stating that she was at that moment committing
suicide. The police went to plaintiff’s residence but awaited the
arrival of her roommate before entering the premises. Plaintiff
alleges that the delay in entering the premises was a violation of
police procedures and that such violation caused or contributed to her
injuries. Supreme Court properly granted defendant’s motion seeking
dismissal of the complaint for failure to state a cause of action
based on the absence of a special relationship between plaintiff and
the police giving rise to a special duty (see McLean v City of New
York, 12 NY3d 194, 199). We reject plaintiff’s contention that the
alleged failure of defendant’s Police Department to comply with its
ministerial duties provides a basis for liability despite the absence
of a special relationship. “Under the public duty rule, although a
municipality owes a general duty to the public at large to furnish
police protection, this does not create a duty of care running to a
specific individual sufficient to support a negligence claim, unless
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                                                        CA 12-00539

the facts demonstrate that a special duty was created” (Valdez v City
of New York, 18 NY3d 69, 75). Even where there is a ministerial
failure directly related to a specific incident, “ministerial acts may
support liability only where a special duty is found” (McLean, 12 NY3d
at 202; see Carson v Town of Oswego, 77 AD3d 1321, 1322). A complaint
is properly dismissed for failure to state a cause of action where the
plaintiff has “not set forth facts that would create the necessary
direct contact and justifiable reliance required under the special
relationship test” (Rogers v State of New York, 288 AD2d 926, 926; see
Laratro v City of New York, 8 NY3d 79, 83). Given that there is no
allegation that plaintiff had direct contact with the police or even
that she was aware that the police had been notified, the direct
contact requirement of the special relationship test is not satisfied
(see Laratro, 8 NY3d at 83).




Entered:   November 9, 2012                    Frances E. Cafarell
                                               Clerk of the Court
