ROBERT WOOD II PLAINTIFF RESPONDENT v. RICHARD NIGRO JR DEFENDANT CITY OF BUFFALO POLICE DEPARTMENT CITY OF BUFFALO COUNTY OF ERIE AND ERIE COUNTY CENTRAL POLICE SERVICES DEFENDANTS APPELLANTS

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

ROBERT W. WOOD, II, PLAINTIFF-RESPONDENT, v. RICHARD J. NIGRO, JR., DEFENDANT, CITY OF BUFFALO POLICE DEPARTMENT, CITY OF BUFFALO, COUNTY OF ERIE AND ERIE COUNTY CENTRAL POLICE SERVICES, DEFENDANTS-APPELLANTS.

CA 10-01739

Decided: February 18, 2011

PRESENT:  SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. DAVID RODRIGUEZ, ACTING CORPORATION COUNSEL, BUFFALO (CARMEN J. GENTILE OF COUNSEL), FOR DEFENDANTS-APPELLANTS CITY OF BUFFALO POLICE DEPARTMENT AND CITY OF BUFFALO. MARTIN A. POLOWY, ACTING COUNTY ATTORNEY, BUFFALO (BRIAN R. LIEBENOW OF COUNSEL), FOR DEFENDANTS-APPELLANTS COUNTY OF ERIE AND ERIE COUNTY CENTRAL POLICE SERVICES. SIEGEL, KELLEHER & KAHN, LLP, BUFFALO (ROBERT D. STEINHAUS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motions are granted and the complaint against defendants-appellants is dismissed.

Memorandum:  Plaintiff commenced this action alleging, inter alia, that the City of Buffalo Police Department, the City of Buffalo, the County of Erie and the Erie County Central Police Services (collectively, defendants-appellants), were negligent in failing to protect plaintiff from being assaulted by defendant Richard J. Nigro, Jr. after plaintiff's friend had called 911 and requested assistance.   We agree with defendants-appellants that Supreme Court erred in denying their respective motions to dismiss the complaint against them for failing to state a cause of action (see CPLR 3211[a][7] ).   It is well settled that a municipality may not be held liable for its alleged negligence in failing to provide police protection in the absence of a special relationship between the municipality and the injured party, and that one of the essential elements of that special relationship is “some form of direct contact between the municipality's agents and the injured party” (Cuffy v. City of New York, 69 N.Y.2d 255, 260).   Here, plaintiff admitted that he did not call 911, and thus “there [is] no evidence that [plaintiff] contacted the municipalit[ies'] agents” to satisfy the direct contact element of the special relationship exception to the general rule with respect to the nonliability of a municipality (Merced v. City of New York, 75 N.Y.2d 798, 800;  see Laratro v. City of New York, 8 NY3d 79, 83-84;  Cuffy, 69 N.Y.2d at 260).  “To hold, as plaintiff here asks, that direct contact and reliance by a friend ․ can create a special relationship would unacceptably dilute the general rule of municipal nonliability” (Laratro, 8 NY3d at 84).

In light of our determination, we do not address the remaining contentions of defendants-appellants.

Patricia L. Morgan

Clerk of the Court