AKINWANDE v. CITY OF NEW YORK

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

Adewale AKINWANDE, et al., appellants, v. CITY OF NEW YORK, respondent.

Decided: April 26, 1999

GUY JAMES MANGANO, P.J., HOWARD MILLER, SANDRA J. FEUERSTEIN, ROBERT W. SCHMIDT and NANCY E. SMITH, JJ. Gregory V. Bitterman, Brooklyn, N.Y. (Teresa R. Guastaferri of counsel), for appellants. Michael D. Hess, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Grace Goodman of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Bruno, J.), dated March 5, 1998, which (1) denied their motion to strike the defendant's answer upon its failure to provide discovery and appear for an examination before trial pursuant to a preliminary conference order, (2) granted the defendant's cross motion for summary judgment dismissing the complaint, and (3) denied their separate motion for leave to amend the complaint to assert additional causes of action.

ORDERED that the order is affirmed, with costs.

 Contrary to the plaintiffs' contention, the Supreme Court properly granted the defendant's cross motion for summary judgment dismissing the complaint.   The plaintiffs' theory of recovery was premised upon the defendant's failure to provide an adequate and proper security force to prevent attacks by third parties at the homeless shelter where the incident occurred.   It is well settled that such a claim implicates a governmental function, liability for the performance of which is barred absent the breach of a special duty owed to the injured party (see, Clinger v. New York City Tr. Auth., 85 N.Y.2d 957, 626 N.Y.S.2d 1008, 650 N.E.2d 855;  Bonner v. City of New York, 73 N.Y.2d 930, 539 N.Y.S.2d 728, 536 N.E.2d 1147;  Marilyn S. v. City of New York, 134 A.D.2d 583, 521 N.Y.S.2d 485, affd. 73 N.Y.2d 910, 539 N.Y.S.2d 293, 536 N.E.2d 622;  Thomas v. City of New York, 214 A.D.2d 724, 625 N.Y.S.2d 630;  Lasker v. City of New York, 194 A.D.2d 646, 599 N.Y.S.2d 89).   Since there was no special relationship in this case, the plaintiffs are precluded from recovering under this theory (see, Manning v. Ardsley Union Free School Dist., 246 A.D.2d 632, 667 N.Y.S.2d 317;  Jacobellis v. City of New York, 197 A.D.2d 671, 602 N.Y.S.2d 877;  Wolff v. City of New York, 190 A.D.2d 732, 593 N.Y.S.2d 83).

 The Supreme Court did not improvidently exercise its discretion in denying the plaintiffs' motion for leave to amend the complaint to assert additional causes of action premised upon an alleged failure to provide a safe workplace.   Since that duty does not extend to risks inherent in the very work to be performed by the injured party (see, Gasper v. Ford Motor Co., 13 N.Y.2d 104, 110, 242 N.Y.S.2d 205, 192 N.E.2d 163;  Cannon v. State of New York, 232 A.D.2d 444, 648 N.Y.S.2d 349;  Meyers v. City of New York, 230 A.D.2d 691, 646 N.Y.S.2d 685), the proposed amendment was without merit (see, Dos v. Scelsa & Villacara, 200 A.D.2d 705, 607 N.Y.S.2d 68;  Sanford v. Sanford, 176 A.D.2d 932, 575 N.Y.S.2d 544).

Therefore, the Supreme Court properly denied the plaintiffs' motion to strike the defendant's answer for failure to comply with discovery, since the disclosure sought by the plaintiffs could not have cured the defects in their claims.

MEMORANDUM BY THE COURT.

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