LEVY v. NEW YORK CITY TRANSIT AUTHORITY

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Supreme Court, Appellate Division, First Department, New York.

David LEVY, et al., Plaintiffs-Appellants, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent.

Decided: October 23, 2001

SULLIVAN, P.J., ANDRIAS, WALLACH, SAXE and MARLOW, JJ. Paul F. McAloon, for Plaintiffs-Appellants. Jane L. Gordon, for Defendant-Respondent.

Judgment, Supreme Court, New York County (Ira Gammerman, J., and a jury), entered June 1, 2001, dismissing the complaint in an action against the Transit Authority for failure to provide police protection, unanimously affirmed, without costs.

The jury's findings that plaintiff advised the police officers that he was being followed and that the officers then assured him of his safety do not compel a finding, concededly necessary to plaintiff's cause of action, that the officers knew that inaction on their part could result in harm to plaintiff.   The finding of no such knowledge is not against the weight of the evidence (see, Ohdan v. City of New York, 268 A.D.2d 86, 88, 706 N.Y.S.2d 419, lv. denied 95 N.Y.2d 769, 722 N.Y.S.2d 473, 745 N.E.2d 393).   There is no evidence that the officers actually saw anyone following plaintiff, and while plaintiff testified that he told the officers that he was afraid, the record does not support a finding that the officers had reason to believe that an assault was likely.   Indeed, factual conflicts in the testimony made it entirely plausible to find that plaintiff was not attacked at the time and place claimed.