MUNICIPALITY AS PROPRIETOR; SPECIAL DUTY RULE IN POLICE AND FIRE CASES; POLICE AND FIREFIGHTERS AS PLAINTIFFS

Bert Bauman, Esq.

Of Counsel, Bauman & Kunkis, P.C.

225 West 34th Street

New York, New York 10122

I. MUNICIPALITY AS PROPRIETOR

A. Maintaining Municipal Premises

The municipality as an owner is responsible much like any individual landlord since the obligations of ownership are proprietary and do not implicate the requirement that a special duty be found (Miller v. State, 62 N.Y.2d 506, 476 N.Y.S.2d 829 (1984)). Liability of the municipality for poor maintenance of the premises can result in liability.

In Cruz v. NYCHA, 291 A.D.2d 223, 737 N.Y.S.2d 81 (First Dept., 2002), plaintiff was injured in a NYCHA building which was undergoing construction. Plaintiff claimed to have slipped on a landing in an area where the roof was undergoing renovation because of an oily, yellowish substance. The renovation company was using a product that was oily and yellowish, and workers were using those stairs on a regular basis to gain access to and from the roof. The motion of NYCHA for dismissal was denied and affirmed despite the defense claim that they were cleaning the stairs at the end of each day since material issues of fact existed as to whether the construction company created the hazard.

In Jones v. NYCHA, 293 A.D.2d 371, 742 N.Y.S.2d 5 (First Dept., 2002), plaintiff fell on allegedly defective interior steps, and Supreme Court dismissed on motion. The First Department reversed, however, claiming that there were issues of fact with regard to the visibility of the defective step and the length of time that the hazard existed. The plaintiff's supplemental bill of particulars aptly specified the size and location of the defective area.

In Hardy v. State of New York, 294 A.D.2d 400, 742 N.Y.S.2d 346 (Second Dept., 2002), plaintiff was playing basketball at a gym owned by the State and was injured when a basketball rim and backboard collapsed striking him in the head. Plaintiff claimed res ipsa, and the State moved to dismiss after opening statements on the ground that the plaintiff failed to state a prima facie case. The Appellate Court affirmed the granting of the State's motion to dismiss despite the general rule that motions to dismiss at the completion of opening statements are disfavored.

In Dewick v. Village of Penn Yan, 275 A.D.2d 1011, 713 N.Y.S.2d 592 (Fourth Dept., 2000) lv. den. 724 N.Y.S.2d 143, one decedent went wading in a lake and stepped from a sand bar where the lake bottom dropped off precipitously, became caught in a current or undertow, and drowned. The other decedent tried to save her and also drowned. They had reached the lake from a beach owned by the defendant Village, although the beach had not yet opened for the season. Both plaintiffs alleged a failure to warn of the condition of the precipitous drop off. The Village was granted summary judgment. There were "no swimming" signs posted, and plaintiffs failed to show that additional signs would have made the difference.

B. Lack of Security

Claim of Lack of Security in Public Housing

In Flowers v. City of New York, 283 A.D.2d 198, 724 N.Y.S.2d 405 (First Dept., 2001), plaintiff was present in a City park after it had closed for the night and became the victim of an armed assault. The complaint against the City was dismissed by the lower court and affirmed. "While defendant in the exercise of its proprietary function may be obligated to furnish a degree of general supervision to deter activities within its parks dangerous to those using its parks," the duty does not run to those present illegally. Furthermore, no proximate cause was shown as a matter of law since there was no causal connection between any negligence of the City, as proprietor, and the assault which was attenuated as a matter of law.

In Mason v. U.E.S.S. Leasing Corp., 96 N.Y.2d 875, 730 N.Y.S.2d 770, plaintiff was raped in her own apartment by a "non-resident and known troublemaker" who had committed several prior crimes in the housing complex (including an attempted rape) and whose identity was known to the defendant who had kept an arrest photo of him. Plaintiff had been expecting her boyfriend and opened the apartment door without using her peephole. The motion to dismiss was denied and affirmed. The motion was made prior to completion of discovery, and a question of fact was raised as to the landlord's negligence in failing to exclude the known menace. Plaintiff's act of opening the door without using her peephole was not a legally superseding act.

In Briggs v. Berkman, 284 A.D.2d 423, 726 N.Y.S.2d 690 (Second Dept., 2001), plaintiff brought an action against NYCHA and the City for injuries sustained when he was shot in the elevator of his apartment building. NYCHA and City were granted summary judgment. Plaintiff then brought a legal malpractice action against his attorney. A crucial issue in the legal malpractice action was whether plaintiff would have prevailed in the underlying action. Defense moved for summary judgment because the attorney had diligently pursued the tort claim, and also the underlying action was non-compensable. The Court agreed with defense and dismissed since the evidence was too speculative to establish that the assailant was an intruder who gained entry into the building because of the NYCHA's negligence in maintaining the entrance. As to the City, the special duty rule applied and the Cuffy elements were not established.

In Quinones v. City, 283 A.D.2d 302, 724 N.Y.S.2d 418 (First Dept., 2001), NYCHA was the construction superintendent on a job site it did not own. A worker was fatally shot while demonstrating there. Another employee was tried for the murder but was acquitted. There had been previous criminal incidents at the site, including at least one in which a gun had been discharged. NYCHA was entitled to SJ where the plaintiff made no showing that an employee was responsible for the murder.

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