DILIBERTI v. CITY OF NEW YORK (2008)

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered June 1, 2006, which denied defendant's motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed.   The Clerk is directed to enter judgment accordingly.

Defendant established its prima facie entitlement to summary judgment by producing the 911 recording and Sprint Report, revealing a 30-second call that did not include any assurance by the operator that help was on its way, or any direction to the infant caller that she should not do anything, before the call was broken off (see Doe v. Town of Hempstead Bd. of Educ., 18 A.D.3d 600, 795 N.Y.S.2d 322 [2005] ).   This shifted the burden to plaintiffs who, even after granting them all favorable inferences, failed to establish an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the infant plaintiff (see Laratro v. City of New York, 8 N.Y.3d 79, 828 N.Y.S.2d 280, 861 N.E.2d 95 [2006];  Cuffy v. City of New York, 69 N.Y.2d 255, 513 N.Y.S.2d 372, 505 N.E.2d 937 [1987] ).   In this regard, we find the opinion of plaintiffs' expert speculative and conclusory, and thus insufficient to withstand summary judgment (see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002] ).