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

159
CA 13-01309
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


CHRISTOPHER M. BOWER,
PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CITY OF LOCKPORT, DENNIS ZABROWSKI AND GREGORY
CHAMBERS, DEFENDANTS-APPELLANTS-RESPONDENTS.


WEBSTER SZANYI LLP, BUFFALO (CHARLES E. GRANEY OF COUNSEL), FOR
DEFENDANTS-APPELLANTS-RESPONDENTS.

HOGAN WILLIG, PLLC, AMHERST (STEVEN M. COHEN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Niagara County (Catherine Nugent Panepinto, J.), entered October 15,
2012. The order denied defendants’ motion for summary judgment and
plaintiff’s cross motion for partial summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting defendants’ motion and
dismissing the third amended complaint, and as modified the order is
affirmed without costs.

     Memorandum: Plaintiff commenced this action to recover damages
for injuries he sustained when he fell down a set of stairs in his
uncle’s home, where he had been staying, while police officers, the
individual defendants herein, investigated a possible burglary there.
Defendants moved for summary judgment dismissing the third amended
complaint, and plaintiff cross-moved for partial summary judgment
against all defendants “on the issue of negligence.” Supreme Court
denied both the motion and the cross motion. We agree with defendants
that the court erred in denying their motion, and we therefore modify
the order accordingly.

     With respect to the negligence cause of action, it is well
settled that, in an action against a municipality, it is “the
fundamental obligation of a plaintiff pursuing a negligence cause of
action to prove that the putative defendant owed a duty of care.
Under the public duty rule, although a municipality owes a general
duty to the public at large to [perform certain governmental
functions], this does not create a duty of care running to a specific
individual sufficient to support a negligence claim, unless the facts
demonstrate that a special duty was created. This is an offshoot of
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the general proposition that[,] ‘[t]o sustain liability against a
municipality, the duty breached must be more than that owed the public
generally’ . . . The second principle relevant here relates not to an
element of plaintiff[’s] negligence claim but to a defense that [is]
potentially available to [defendant]—the governmental function
immunity defense . . . [T]he common-law doctrine of governmental
immunity continues to shield public entities from liability for
discretionary actions taken during the performance of governmental
functions . . . [pursuant to which] ‘[a] public employee’s
discretionary acts—meaning conduct involving the exercise of reasoned
judgment—may not result in the municipality’s liability even when the
conduct is negligent’ ” (Valdez v City of New York, 18 NY3d 69, 75-76;
see Middleton v Town of Salina, 108 AD3d 1052, 1053).

     With respect to the issue whether a special duty exists, it is
well settled “that an agency of government is not liable for the
negligent performance of a governmental function unless there existed
a special duty to the injured person, in contrast to a general duty
owed to the public . . . Such a duty, . . . [i.e.,] a duty to exercise
reasonable care toward the plaintiff[,] is born of a special
relationship between the plaintiff and the governmental entity”
(McLean v City of New York, 12 NY3d 194, 199 [internal quotation marks
omitted]). “A special relationship can be formed in three ways: (1)
when the municipality violates a statutory duty enacted for the
benefit of a particular class of persons; (2) when it voluntarily
assumes a duty that generates justifiable reliance by the person who
benefits from the duty; or (3) when the municipality assumes positive
direction and control in the face of a known, blatant and dangerous
safety violation” (Pelaez v Seide, 2 NY3d 186, 199-200; see Applewhite
v Accuhealth, Inc., 21 NY3d 420, 426; McLean, 12 NY3d at 199).
According to plaintiff, a special relationship was formed in this case
by the second method, i.e., the voluntary assumption of a duty of care
by the municipal agency. That method requires plaintiff to establish
“(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”
(Valdez, 18 NY3d at 80 [internal quotation marks omitted]; see Cuffy v
City of New York, 69 NY2d 255, 260). We conclude that defendants met
their burden on the motion by establishing as a matter of law that
there was no voluntary assumption of a duty of care, and plaintiff
failed to raise a triable issue of fact whether the police officers
who came to the house assumed, through promise or action, any duty to
act on his behalf. Even assuming, arguendo, that plaintiff raised a
triable issue of fact with respect to that requirement, we conclude
that he also failed to raise a triable issue of fact with respect to
the fourth requirement, i.e., whether he justifiably relied on any
such assumption of duty by the police officers (see Brown v City of
New York, 73 AD3d 1113, 1114-1115; see also Middleton, 108 AD3d at
1054). Consequently, we conclude that the court erred in denying the
motion with respect to the negligence cause of action.
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                                                         CA 13-01309

     We further conclude, in any event, that the defense of
governmental function immunity constitutes a separate and independent
ground for dismissal of the negligence cause of action. That defense
“shield[s] public entities from liability for discretionary actions
taken during the performance of governmental functions” (Valdez, 18
NY3d at 76). Here, defendants established that they were providing
police protection and engaging in the investigation of possible
criminal behavior. It is well settled that “[p]olice and fire
protection are examples of long-recognized, quintessential
governmental functions” (Applewhite, 21 NY3d at 425). Furthermore,
“defendants established that the conduct of the police officers
throughout the course of their interaction with [plaintiff] was
undertaken in the exercise of reasoned professional judgment of the
officers, and was not inconsistent with accepted police practice.
Accordingly, such conduct cannot serve as a basis for municipal
liability” (Bawa v City of New York, 94 AD3d 926, 928, lv denied 19
NY3d 809; see Lauer v City of New York, 95 NY2d 95, 99).

     We conclude with respect to the cause of action for gross
negligence that defendants met their burden of establishing that the
police officers’ conduct did not “ ‘evince[] a reckless disregard for
the rights of others or smack[] of intentional wrongdoing’ ” (Tiede v
Frontier Skydivers, Inc., 105 AD3d 1357, 1359, quoting Colnaghi,
U.S.A. v Jewelers Protection Servs., 81 NY2d 821, 823-824), and
plaintiff failed to raise a triable issue of fact (see generally
Alvarez v Prospect Hosp., 68 NY2d 320, 324). Finally, we conclude
that the court erred in denying the motion with respect to the causes
of action for battery and the violation of 43 USC § 1983. “The
elements of battery are bodily contact, made with intent, and
offensive in nature” (Cerilli v Kezis, 16 AD3d 363, 364; see Hassan v
Marriott Corp., 243 AD2d 406, 407; Zgraggen v Wilsey, 200 AD2d 818,
819). Similarly, the cause of action for the violation of 43 USC §
1983 alleges that defendants used excessive force in detaining
plaintiff. Both of those causes of action are predicated on
plaintiff’s allegation that one of the police officers pushed him down
the stairs. All of the police officers on the scene testified at
depositions, however, that plaintiff stumbled and fell down the stairs
because of his highly intoxicated condition, and thus defendants met
their burden on the motion of establishing that plaintiff was not
pushed down the stairs (see generally Alvarez, 68 NY2d at 324).
Plaintiff testified at his deposition that he did not recall most of
the events of the evening, including what caused him to fall, and he
submitted no evidence establishing that he was pushed. Consequently,
the first and fourth causes of action must be dismissed because any
determination by a finder of fact that plaintiff was pushed down the
stairs “would be based upon sheer speculation” (Darrisaw v Strong Mem.
Hosp., 74 AD3d 1769, 1769, affd 16 NY3d 729 [internal quotation marks
omitted]; see McGill v United Parcel Serv., Inc., 53 AD3d 1077, 1077).

     We have considered the parties’ remaining contentions on the
appeal and the cross appeal, and we conclude that they do not require
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                                                CA 13-01309

further modification of the order.




Entered:   March 21, 2014              Frances E. Cafarell
                                       Clerk of the Court
