MENDEZ v. Welsbach Electric corp., et al., Defendants. (2022)

Order, Supreme Court, New York County (J. Machelle Sweeting, J.), entered February 18, 2021, which granted defendants City of New York, New York Police Department, and Traffic Enforcement Agent Gomez's motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff's testimony that defendant Gomez directed him to proceed through an intersection, immediately after which he was struck by a taxicab, is an insufficient factual predicate for the theory that defendant City owed him a special duty of protection (see Valdez v. City of New York, 18 N.Y.3d 69, 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011];  Blackstock v. Board of Educ. of the City of N.Y., 84 A.D.3d 524, 921 N.Y.S.2d 858 [1st Dept. 2011]).  It establishes neither that the City assumed any duty, either through promises or actions, to act on his behalf nor that he relied on such a promise (see Cuffy v. New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 [1987];  Shands v. Escalona, 44 A.D.3d 524, 524, 843 N.Y.S.2d 504 [1st Dept. 2007]).  Indeed, plaintiff testified that he did not make eye contact with Gomez.

In any event, since Gomez was engaged in the discretionary governmental function of directing traffic when the accident occurred, the City cannot be held liable for his acts (see Valdez, 18 N.Y.3d at 75–76, 936 N.Y.S.2d 587, 960 N.E.2d 356;  Jagatpal v. Chamble, 172 A.D.3d 573, 98 N.Y.S.3d 741 [1st Dept. 2019]).