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Omark RUIZ, an infant by his mother and natural guardian, Betty Serrano, Plaintiff, v. CITY OF NEW YORK, Defendant.

No. 102378/09.

Decided: February 22, 2010

Anthony Iadevaia, Esq., New York, for plaintiff. Michael A. Cardozo, Corporation Counsel of the City of New York, Anthony Bila, Assistant Corporation Counsel, New York, for defendant.

Plaintiff commenced the instant action to recover damages for personal injuries he allegedly sustained when he was assaulted at the Cherry Hill Playground located at or near the corner of 99th Street and Third Avenue in Manhattan. Defendant the City of New York (the “City”) now moves to dismiss plaintiff's complaint pursuant to CPLR 3211 or, in the alternative, seeks summary judgment dismissing plaintiff complaint on the grounds that the City was exercising its police powers in maintaining the park and cannot be liable absent a special relationship with plaintiff, which it alleges does not exist here. Plaintiff cross-moves to amend his complaint to clarify his claims against the City. For the reasons set forth below, plaintiff's cross-motion is granted and defendant's motion is also granted.

The relevant facts are as follows. On or about August 25, 2008, the infant plaintiff was physically assaulted by other children at the Cherry Hill Playground who were wearing boxing gloves and had been fighting with each other at the playground. Plaintiff alleges that the City is liable for plaintiff's alleged injuries because it failed to properly manage, maintain and supervise the playground.

As an initial matter, plaintiff is entitled to amend his complaint to clarify his allegations against the City and, in particular, to assert that the City breached its proprietary duty to maintain and supervise the playground. Pursuant to CPLR § 3025, leave to amend a pleading should be freely given unless the pleading is devoid of merit or will result in undue prejudice or surprise to the other party. See McCaskey, Davis and Associates, Inc. v. New York City Health and Hospitals Corp., 59 N.Y.2d 755 (1983). Because plaintiff's amended complaint is not devoid of merit and will not result in prejudice to the City, plaintiff's motion to amend his complaint is granted.

Whether the City is entitled to summary judgment depends on whether its actions in supervising or failing to supervise the playground can fairly be classified as a “governmental” function or a “proprietary” function. See Balsam v. Delma Engineering Corp., 90 N.Y.2d 966 (1997). If the City was acting in its governmental capacity, it is immune from tort liability unless there is a special relationship, but if it was acting in its proprietary capacity, it is subject to ordinary tort liability. See id. There is no clear demarcation between these two types of functions; rather, they are on a “continuum” or “spectrum.” Id.; see also Doe v. City of New York, 67 AD3d 854 (2nd Dept 2009). A quintessential “governmental” function is one “undertaken for the protection and safety of the public pursuant to the general police powers” (Doe, 67 AD3d 854) such as fire and police protection. See id. The courts have explained that “a municipality's provision of police protection to its citizenry has long been regarded as a resource-allocating function that is better left to the discretion of the policy makers.” Cuffy v. City of New York, 69 N.Y.2d 255 (1987). In contrast, quintessential proprietary functions are those in which “government activities essentially substitute for, or supplement traditionally private enterprise” ‘ and include the maintenance and repair functions typically performed by landlords. Id. “To determine where in the continuum of activity between proprietary and governmental responsibilities the challenged public action falls, we must examine the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred.” ’ Id. (citations omitted). In Bonner v. City of New York, the Court of Appeals held that the City was acting in its governmental and not proprietary capacity when it failed to fix a broken gate at a schoolyard where a teacher was assaulted by a third party. See 73 N.Y.2d 930 (1989). In fact, the court held that “it is settled ․ that the provision of security against physical attacks by third parties in circumstances as are presented here, is a governmental function involving policymaking regarding the nature of the risks presented, and that no liability arises from the performance of such a function absent a special duty of protection.” Id. (emphasis added) (citations omitted); see also Marilyn S. v. City of New York, 73 N.Y.2d 910 (1989); Glick v.. City of New York, 42 N.Y.2d 831 (1977). Similarly, in K.H. v. City of New York, the court held that a municipality was exercising a governmental and not a proprietary function when it failed to lock a bathroom at a public park in which plaintiff was assaulted. See 10 Misc.3d 1066(A) (Sup Ct, Kings Cty, 2005). The Court of Appeals has explained that, in cases such as these, to hold otherwise “would be to subject municipalities to open-ended liability” and might, “in addition to posing a crushing financial burden ․ discourage municipalities from undertaking activities to promote the general welfare ․ by making the prime concern the avoidance of tort liability rather than the promotion of the public welfare.” O'Connor v. City of New York, 58 N.Y.2d 184, 191 (1983) (citations omitted); see also Weiner v. Metropolitan Transportation Authority, 55 N.Y.2d 175, 182 (1982) (citations omitted).

In the instant case, the City was acting in its governmental capacity and not its proprietary capacity in managing, supervising and deciding whether and when to provide security at the playground. Here, the duty at issue was the “provision of security against physical attacks by third parties ․” Bonner, 73 N.Y.2d 930; see also K.H., 10 Misc.3d 1006(A). The determination whether to provide any type of park supervisors or police protection is exactly the discretionary type of resource-allocating function that is a governmental function and for which the municipality should thereby be protected from liability absent a special relationship with the plaintiff. See Cuffy, 69 N.Y.2d 255. Absent such a rule, a municipality's exposure to liability would be unreasonably vast. See O'Connor, 58 N.Y.2d at 191; Weiner v. Metropolitan Transportation Authority, 55 N.Y.2d at182.

The cases cited by plaintiff to the contrary, in which a municipality was held liable for injury at a public park based on a finding that it was exercising its proprietary and not governmental function, are all more than fifty years old and have been effectively, if not explicitly, overruled by Bonner and its progeny. See Caldwell v. Village of Island Park, 304 N.Y. 268, 273-74 (1952); Augustine v. Town of Brant, 249 N.Y.198, 201-06 (1928); Lopez v. City of New York, 4 A.D.2d 48 (1957). Moreover, they are distinguishable on other grounds. In Augustine, plaintiff drowned at a public beach. His death was not the result of the physical assault of a third party. 249 N.Y.198. In Caldwell, plaintiff was injured when other parkgoers set off fireworks on July 4th. The court there held that the municipality should be liable when “it is or should be apparent or otherwise comes to the attention of a municipality that its park is being used by visitors as a site for criminal and patently dangerous activities .” 304 N.Y. at 275. In that case, the park had been used for illegal fireworks displays for “a considerable period of time preceding the accident” and therefore “there was reason for the village to believe that the illegal activities would continue and perhaps be increased on the day of plaintiff's injuries.” Id. In contrast, in the instant case, there is no evidence that the playground that was the site of the incident had repeatedly been the site of the type of assault plaintiff had suffered. Finally, in Lopez, the City was found negligent when plaintiff was hit in the head by a child on a swing. See 4 A.D.2d 48. In that case, a playground supervisor was assigned to the playground but had abandoned her post when the accident took place. See 4 A.D.2d 48. Therefore, in Lopez, the City had decided to supervise the playground in a particular way and then was negligent in doing so rather than, as in the instant case, determining not to assign any such park supervisor at all.Once it is determined that the municipality was exercising a governmental function, it can only be found liable if there is a “special relationship” between the municipality and the claimant. The elements of this “special relationship” are: “(1) an assumption by the municipality, through promises or action, 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.” Cuffy v. City of New York, 69 N.Y.2d 255, 260-61 (1987) (citations omitted ).

In the instant case, plaintiff fails to establish any element of the special relationship. Plaintiff cannot show the assumption by the City of an affirmative duty to protect him from such an assault, any knowledge by the municipality's agents of the possibility of such an assault or any direct contact between plaintiff and any municipal agents. Without any of the first three elements present, it is also impossible to prove the fourth element, justifiable reliance on any affirmative undertaking made by the municipality.

Accordingly, plaintiff's motion to amend his complaint is granted but defendant's motion for summary judgment dismissing plaintiff's complaint is also granted. This constitutes the decision and order of the court.


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