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Elizabeth DEVLIN as the Executor of the Estate of Elizabeth Ann Devlin, and John Devlin, Individually, Plaintiffs, v. The CITY OF NEW YORK, and The New York City Police Department, P.O. John Doe, P.O. Jack Doe, and P.O. Jane Doe of the New York City Police Department, Who Failed to Remove Matthew Devlin From the Home of Elizabeth Ann Devlin, Defendants.
This is an action to recover damages for claims sounding in wrongful death, negligence, pain and suffering, loss of enjoyment of life and medical expenses. Plaintiffs Elizabeth Devlin as the Executor of the Estate of Elizabeth Ann Devlin, and John Devlin, individually (collectively referred to as plaintiffs), have alleged that on February 11, 2011, officers of defendant The New York City Police Department responded to a 9-1-1 phone call placed by Elizabeth Ann Devlin (the decedent), at premises located at 38-10 215 Street, in the County of Queens. Plaintiffs have alleged that the officers failed to provide adequate protection to the decedent and plaintiff John Devlin, the decedent's son, by failing to remove non-party Matthew Devlin, who was also the decedent's son and brother of John Devlin, from the home after he allegedly threatened and assaulted plaintiffs.
Plaintiffs have further alleged that on February 12, 2011, Matthew Devlin beat and injured the decedent and John Devlin, and that due to the negligence of moving defendants and defendants P.O. John Doe, P.O. Jack Doe, and P.O. John Doe of the New York City Police Department Who Failed to Remove Matthew Devlin From the Home of Elizabeth Ann Devlin, the decedent died on February 17, 2011, as a result of her injuries sustained in the attack that took place on February 12, 2011. Plaintiffs have alleged that John Devlin sustained personal injuries as a result of defendants' negligence.
Moving defendants have now moved to dismiss the complaint pursuant to CPLR 3211, as well as for summary judgment dismissing the complaint pursuant to CPLR 3212. The court will first address the branch of the motion relating to CPLR 3211 (a)(7), for failure to state a cause of action. Moving defendants have argued that plaintiffs' Monell claim (Monell v. New York City Dept. of Social Servs., 436 US 658  ), must be dismissed because plaintiffs have failed to state a cause of action. CPLR 3211 (a)(7) provides that a party may move to dismiss an action on the ground that “the pleading fails to state a cause of action.” “On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory” (Gorbatov v. Tsirelman, 155 AD3d 836 [2d Dept 2017]; CPLR 3026; see Feldman v. Finkelstein & Partners, LLP, 76 AD3d 703, 704 [2d Dept 2010] ).
“42 USC § 1983 provides that [e]very person who, under color of any statute, ordinance, regulation, custom, or usage ․ subjects, or causes to be subjected, any citizen of the United States ․ to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured” (Eckardt v. City of White Plains, 87 AD3d 1049, 1051-52 [2d Dept 2011][internal quotations omitted]; see Hudson Val. Mar., Inc. v. Town of Cortlandt, 79 AD3d 700, 703 [2d Dept 2010] ). “A municipality may not be held liable pursuant to 42 USC § 1983 solely on a theory of respondent superior” (Blake v. City of New York, 148 AD3d 1101, 1104 [2d Dept 2017]; see Monell v. New York City Dept. of Social Servs., 436 US at 691). “ ‘To hold a municipality liable under section 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy” (Blake v. City of New York, 148 AD3d at 1104, quoting Vargas v. City of New York, 105 AD3d 834, 837 [2d Dept 2013]; see Monell v. New York City Dept. of Social Servs., 436 US at 694; Elie v. City of New York, 92 AD3d 716, 717 [2d Dept 2012] ).
After a careful reading of the allegations contained in the complaint, the court finds that plaintiffs have failed to sufficiently state a cause of action for a Monell claim pursuant to 42 USC § 1983. Therefore, moving defendants are entitled to the relief sought on this branch of their motion.
Next, the court will turn to the branch of moving defendants' motion for summary judgment dismissing the complaint pursuant to CPLR 3212. On such a motion, a movant has the initial burden of demonstrating the absence of any material issues of fact (see Smalls v. AJI Indus., Inc., 10 NY3d 733, 735 ; Alvarez v. Prospect Hosp., 68 NY2d 320, 324  ). Moving defendants have argued that the action should be dismissed against The New York City Police Department since it is a non-suable agency.
After careful consideration, the court has determined that moving defendants have adequately demonstrated their entitlement to have the instant action dismissed against The New York City Police Department. Chapter 17, section 396 of the New York City Charter provides the following: “All actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.” Inasmuch as The New York City Police Department is an agency of The City of New York, it is a non-suable entity (New York City Charter § 396; see Troy v. City of New York, 160 AD3d 410, 411 [1st Dept 2018] ). In light of this showing and the fact that plaintiff has failed to oppose this branch of the motion and to raise a triable issue of fact, the action is, hereby, dismissed against The New York City Police Department.
Moving defendants have also argued that plaintiffs' causes of action sounding in negligent training, hiring, supervision and retention should be dismissed because the police officers were acting within the scope of their employment. “ ‘Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training” (Quiroz v. Zottola, 96 AD3d 1035, 1037 [2d Dept 2012], quoting Talavera v. Arbit, 18 AD3d 738 [2d Dept 2005]; see Segal v. St. John's Univ., 69 AD3d 702, 703 [2d Dept 2010] ). However, an exception to this general rule exists which permits such a claim “when punitive damages are sought based upon facts evincing gross negligence in the hiring or retention of an employee” (Coville v. Ryder Truck Rental, Inc., 30 AD3d 744, 745 [3d Dept 2006]; see Quiroz v. Zottola, 96 AD3d at 1037; Talavera v. Arbit, 18 AD3d at 738-39).
Plaintiffs have sought punitive damages from moving defendants and within the context of that cause of action, plaintiffs appear to have alleged a claim sounding in negligent training, hiring, supervision and/or retention. However, inasmuch as “case law from the Court of Appeals makes plain that the City of New York, as a political subdivision of the State of New York, must be presumed immune from punitive damages, absent a clear statement of a contrary legislative intent,” plaintiff's cause of action for punitive damages against moving defendants must be dismissed (Johnson v. Kings County Dist. Attorney's Off., 308 AD2d 278, 296 [2d Dept 2003]; see Sharapata v. Town of Islip, 82 AD2d 350, 367 [2d Dept 1981], affd, 56 NY2d 332  ).
Consequently, moving defendants have sufficiently demonstrated that to the extent that plaintiffs have alleged a cause of action against moving defendants sounding in negligent training, hiring, supervision and/or retention, that claim is also dismissed since the exception to the general rule is not applicable in this matter (see Coville v. Ryder Truck Rental, Inc., 30 AD3d at 745). In opposition, plaintiffs have failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d at 324). Therefore, moving defendants are entitled to the dismissal of these causes of action.
Moving defendants have argued that the complaint should be dismissed because they are immune from liability for the discretionary functions of their employees, that there was no special duty, and that the police officers who responded to the 9-1-1 call on February 11, 2011, did not assume an affirmative duty to act on plaintiffs' behalf. In general, a “municipality cannot be liable in tort for discretionary acts of its employees” (Merin v. City of New York, 154 AD3d 928 [2d Dept 2017], lv to appeal denied, 31 NY3d 913  ). However, an exception from this general rule is invoked when a special duty exists (see id.).
“Liability for a claim that a municipality negligently exercised a governmental function turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public” (Moore v. City of New York, 132 AD3d 644, 645-46 [2d Dept 2015][internal quotation omitted]; see Coleson v. City of New York, 24 NY3d 476, 481 ; Garrett v. Holiday Inns, 58 NY2d 253, 261  ). “The provision of police protection is a ‘classic’ governmental function, and a municipality's general duty to furnish police protection ‘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’ ” (Moore v. City of New York, 132 AD3d at 646, quoting Valdez v. City of New York, 18 NY3d 69, 75  ).
A special duty “—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 quotations omitted]; see Coleson v. City of New York, 24 NY3d at 481; Moore v. City of New York, 132 AD3d at 646). “[A] special relationship can be formed when the following elements are present: ‘(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’ ” (Moore v. City of New York, 132 AD3d at 646, quoting Cuffy v. City of New York, 69 NY2d 255, 260 ; see McLean v. City of New York, 12 NY3d at 199).
The record contains, among other things, the deposition testimony of John Devlin, the testimony of police officer Kyle Ferguson (Ferguson), the testimony of police officer Kevin Golden (Golden), a transcript of the 9-1-1 call placed by the decedent on February 11, 2011, and a copy of a police report dated February 11, 2011. The transcript of the 9-1-1 call reflects that the decedent stated that she had to hang up the telephone and that she told the operator that “He is killing me. Please come,” in response to the operator's question regarding what was happening.
John Devlin testified that he resided at the subject premises with the decedent and Matthew Devlin, that on February 11, 2011, Matthew Devlin physically abused him and the decedent, who was 79 years old at the time, and pushed the decedent, that he and the decedent were afraid of Matthew Devlin because he did not know it Matthew Devlin would attack him and the decedent further, and that the police arrived at the premises. He further testified that he witnessed Matthew Devlin threaten to kill the decedent, that he heard the decedent request that the police officers who arrived at the scene remove Matthew Devlin from the home, and that they did not remove him. John Devlin testified that while the police were present, Matthew Devlin fell to his knees and the police told him that Matthew Devlin was going to go to his room and go to sleep, that after the police officers left, Matthew Devlin was intoxicated and falling down, and that Matthew Devlin and started wrestling with him, but then went to his room.
John Devlin further testified that on the morning of February 12, 2011, Matthew Devlin knocked his glasses off, retrieved an aluminum baseball bat that he kept in his room and started attacking him with the bat, that Matthew Devlin then went upstairs with the baseball bat to find the decedent, and that he ran from the home in order to get the police. He further testified that he was later told that Matthew Devlin hit the decedent on her face and forehead with the baseball bat, that Matthew Devlin was arrested on February 12, and that the decedent was placed in the hospital due to her injuries and that she died on February 17, 2011.
The copy of the police report dated February 11, 2011, indicated that there were no weapons in the home, that the police responded to a violation due to harassment, that no arrest was made and contains a written statement by the decedent indicating Matthew Devlin scared her, grabbed her and pushed her. Officer Ferguson testified that he responded to a call about an assault at the subject premises on February 11, 2011, that officer Golden was with him, that the decedent did not want Matthew Devlin arrested. He testified that he knew the decedent felt threatened by Matthew Devlin, but that no crime was committed. Officer Ferguson further testified that the decedent never asked him or officer Golden to remove Matthew Devlin from the home.
Officer Golden testified that the decedent told him that she called 9-1-1 because Matthew Devlin grabbed her, scared her and pushed her, that John Devlin never spoke to the police, and that Matthew Devlin was not arrested because he only committed the violation of harassment because the decedent's complaints on the night of February 11 did not rise to the level of menacing. Based upon this court's review of the evidence contained in the record, moving defendants have failed to satisfy their prima facie burden on their motion for summary judgment. In light of the conflicting evidence in the record between the testimony of John Devlin and officers Ferguson and Golden, issues of fact exist, at the very least, regarding whether a special duty to plaintiffs was formed based upon the evidence presented.
Furthermore, based upon the conflicting evidence in the record regarding what occurred on February 11, 2011, and taking into consideration the applicable statutes regarding whether an arrest was or was not required under the particular circumstances of this matter, including Family Court Act § 812 (2)(f), Criminal Procedure Law § 140.10 (1) and (4), and Criminal Procedure Law § 530.11, issues of fact also exist as to whether moving defendants may have violated a statutory duty. Moving defendants' remaining contentions have been considered and found to be without merit.
Accordingly, the branches of moving defendants' motion to dismiss the action against defendant The New York City Police Department, to dismiss plaintiffs' causes of action sounding in a Monell claim brought pursuant to 42 USC § 1983, sounding in punitive damages, and sounding in negligent training, hiring, supervision and/or retention are granted. The motion is otherwise denied in its entirety.
Ernest F. Hart, J.
Response sent, thank you
Docket No: 30212012
Decided: October 30, 2018
Court: Supreme Court, Queens County, New York.
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