SALONE v. TOWN OF HEMPSTEAD

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William SALONE, etc., et al., respondents, v. TOWN OF HEMPSTEAD, appellant.

Decided: January 17, 2012

PETER B. SKELOS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ. Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and Merril S. Biscone of counsel), for appellant. Philip J. Rizzuto, P.C., Carle Place, N.Y. (Kristen N. Reed of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Marber, J.), entered December 6, 2010, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The plaintiffs alleged that the infant plaintiff was injured by three unidentified youths who attacked him during the course of a pick-up game of basketball in a park owned and maintained by the defendant, Town of Hempstead. The infant plaintiff, by his mother, and his mother, suing derivatively, commenced this action alleging that the Town was negligent in failing to provide adequate security at the park.

The Town moved for summary judgment dismissing the complaint. It contended, among other things, that it was immune from liability because providing security in the park constituted a governmental function. The Supreme Court denied the motion.

Generally, when a municipal defendant “acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord” (Miller v. State of New York, 62 N.Y.2d 506, 511, 478 N.Y.S.2d 829, 467 N.E.2d 493; see Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 446, 933 N.Y.S.2d 164, 957 N.E.2d 733; see also Vestal v. County of Suffolk, 7 A.D.3d 613, 614, 776 N.Y.S.2d 491). However, “[p]ublic entities remain immune from negligence claims arising out of the performance of their governmental functions, including police protection, unless the injured person establishes a special relationship with the entity, which would create a specific duty to protect that individual, and the individual relied on the performance of that duty” (Miller v. State of New York, 62 N.Y.2d at 510, 478 N.Y.S.2d 829, 467 N.E.2d 493; see Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d at 446, 933 N.Y.S.2d 164, 957 N.E.2d 733; Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937; see also Pope v. State of New York, 19 A.D.3d 573, 573–574, 796 N.Y.S.2d 548).

Since “the varied functions of a governmental entity can be interspersed with both governmental and proprietary elements, the determination of the primary capacity under which a governmental agency was acting turns solely on the acts or omissions claimed to have caused the injury” (Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d at 447, 933 N.Y.S.2d 164, 957 N.E.2d 733; see Miller v. State of New York, 62 N.Y.2d at 513, 478 N.Y.S.2d 829, 467 N.E.2d 493). In other words, “[i]t is 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 which governs liability, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred” (Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 182, 448 N.Y.S.2d 141, 433 N.E.2d 124).

Here, the alleged deficiencies in the security measures taken by the defendant at the park, including the allotment of personnel to patrol the park, arose from the allocation of the defendant's security resources. Such deficiencies involving policymaking as to the nature of the risks presented at the park implicated the defendant's governmental function, not its proprietary role as owner of the premises (see Bonner v. City of New York, 73 N.Y.2d 930, 539 N.Y.S.2d 728, 536 N.E.2d 1147; Cuffy v. City of New York, 69 N.Y.2d at 260, 513 N.Y.S.2d 372, 505 N.E.2d 937; Miller v. State of New York, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467 N.E.2d 493; Rashed v. State of New York, 232 A.D.2d 394, 394–395, 648 N.Y.S.2d 131; 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). Under the circumstances of this case, by submitting evidence showing that there was no direct contact between the infant plaintiff and any Town employee prior to the alleged attack, the Town demonstrated that it owed no special duty to him, and thereby established its entitlement to judgment as a matter of law (see Pelaez v. Seide, 2 N.Y.3d 186, 202, 778 N.Y.S.2d 111, 810 N.E.2d 393; Cuffy v. City of New York, 69 N.Y.2d at 260–262, 513 N.Y.S.2d 372, 505 N.E.2d 937; Dickerson v. City of New York, 258 A.D.2d 433, 684 N.Y.S.2d 584). In opposition to the Town's motion for summary judgment dismissing the complaint, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Town's motion should have been granted.

In view of the foregoing, it is unnecessary to reach the plaintiffs' contention that the alleged attack was foreseeable (see e.g. Pope v. State of New York, 19 A.D.3d at 574, 796 N.Y.S.2d 548).

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