special relationship exception in New York

2013Auth., 68 NY2d 165, 170 [1986]; Miller v City of New York, 277 AD2d 363 [2000]; Rios v New York City Tr.

2013Auth., 68 NY2d 165, 170 [1986]; Miller v City of New York, 277 AD2d 363 [2000]; Rios v New York City Tr.

2012A complaint is properly dismissed for failure to state a cause of action where the plaintiff has “not set forth facts that would create the necessary direct contact and justifiable reliance required under the special relationship test” (Rogers v State of New York, 288 AD2d 926, 926 [2001]; see Laratro v City of New York, 8 NY3d 79, 83 [2006]).

2012Given that there is no allegation that plaintiff had direct contact with the police or even that she was aware that the police had been notified, the direct contact requirement of the special relationship test is not satisfied (see Laratro, 8 NY3d at 83 ).

2024Under the elements of the special relationship exception, plaintiffs would not be able to show the element of reliance, as is required by Cuffy v City of New York ( 69 NY2d 255 [1987]).

2022The first two factors in the special relationship test—assumption of an affirmative duty to act and knowledge that inaction could lead to harm—are satisfied as a matter of law by the issuance of an order of protection (Mastroianni v County of Suffolk, 91 NY2d 198, 204 [1997] [“(A) duly issued order of protection constitutes an ‘assumption’ of an ‘affirmative duty’ of protection coupled with awareness that ‘inaction could lead to harm’”], quoting Cuffy, 69 NY2d at 260 ).

2024Eisenberg v Wachovia Bank, N.A. , 301 F3d 220, 224 [4th Cir 2002]; Attisha Enters. v Capital One, N.A. , 2021 WL 698200 , *2, 2021 US Dist LEXIS 33321 , *4-5 [SD Cal Feb. 22, 2021, No. 3:20-cv-01366-BEN-RBB]).

2024Eisenberg v Wachovia Bank, N.A. , 301 F3d 220, 224 [4th Cir 2002]; Attisha Enters. v Capital One, N.A. , 2021 WL 698200 , *2, 2021 US Dist LEXIS 33321 , *4-5 [SD Cal Feb. 22, 2021, No. 3:20-cv-01366-BEN-RBB]).

2025This Court declined this "invitation to relax the special relationship rule to accommodate an especially appealing class of cases," explaining that "[a] well settled rule of law denies recovery in cases like this, and that rule, by its nature, bars recovery even where a government blunder results in injury to people deserving of the government's protection" ( id. ).

2025This Court declined this "invitation to relax the special relationship rule to accommodate an especially appealing class of cases," explaining that "[a] well settled rule of law denies recovery in cases like this, and that rule, by its nature, bars recovery even where a government blunder results in injury to people deserving of the government's protection" ( id. ).

2012A complaint is properly dismissed for failure to state a cause of action where the plaintiff has “not set forth facts that would create the necessary direct contact and justifiable reliance required under the special relationship test” (Rogers v State of New York, 288 AD2d 926, 926 [2001]; see Laratro v City of New York, 8 NY3d 79, 83 [2006]).

2012A complaint is properly dismissed for failure to state a cause of action where the plaintiff has “not set forth facts that would create the necessary direct contact and justifiable reliance required under the special relationship test” (Rogers v State of New York, 288 AD2d 926, 926 [2001]; see Laratro v City of New York, 8 NY3d 79, 83 [2006]).

2010Here, even were we to conclude that the arrest of an individual who has violated a protective order is ministerial—an act that “envisions direct adherence to a governing rule or standard with a compulsory result” (Tango v Tulevech, 61 NY2d 34, 41 [1983])—and not discretionary—“the exercise of reasoned judgment which could typically produce different acceptable results” (id.)—the judgment must be reversed because the justifiable reliance element of the special relationship exception has not been established.

1996For these reasons, I would affirm the Court of Claims’ dismissal of the claim to the extent it is premised upon the special relationship rule, leaving claimant to prosecute this claim under the theory that his damages flowed from the State’s failure to perform a ministerial act, a separate aspect of the governmental immunity doctrine (see, Cooper v City of New York, 81 NY2d 584, 594 [Titone, J., dissenting]; see also, Mon v City of New York, 78 NY2d 309, 313 ; Haddock v City of New York, 75 NY2d 478, 485 ; Tango v Tulevech, 61 NY2d 34, 40 ).

2003However, this deviation was subsequently explained “by the close relationship between the interests of the mother and those of the child, as well as by the fact that the mother’s contact with the police had been initiated solely for the purpose of obtaining protection for the child, who was herself helpless” (Cuffy v City of New York, supra at 261-262). 2 The present case is easily distinguishable inasmuch as Brown and her family were strangers to plaintiffs (see Kircher v City of Jamestown, supra at 257-258) and uninvolved in the incident which resulted in plaintiffs’ injuries in a separate m

1996The fourth element of the special relationship test requires a party’s justifiable reliance on the municipality’s undertaking. " '[T]he injured party’s reliance is as critical in establishing the existence of a "special relationship” as is the municipality’s voluntary affirmative undertaking of a duty to act’ because it is that element that 'provides the essential causative link between the "special duty” assumed by the municipality and the alleged injury’ ” (Kircher v City of Jamestown, 74 NY2d 251, 258 , supra, quoting Cuffy v City of New York, supra, at 261; see, Bogart v Town of New Paltz,

2024We have previously held that "the provision of temporary housing for homeless families is a governmental function mandated by the state constitution for the benefit of the general public" ( Rodriguez v City of New York , 20 AD3d 327, 327 [1st Dept 2005]).

2024We have previously held that "the provision of temporary housing for homeless families is a governmental function mandated by the state constitution for the benefit of the general public" ( Rodriguez v City of New York , 20 AD3d 327, 327 [1st Dept 2005]).

2012The timing of the transport of the decedent from his residence to the hospital involved “the quintessential purpose of the municipal ambulance system — transporting the patient to the hospital as quickly as possible” (Applewhite v Accuhealth, Inc., 90 AD3d 501, 504 [2011]).

2012The timing of the transport of the decedent from his residence to the hospital involved “the quintessential purpose of the municipal ambulance system — transporting the patient to the hospital as quickly as possible” (Applewhite v Accuhealth, Inc., 90 AD3d 501, 504 [2011]).

2022The first two factors in the special relationship test—assumption of an affirmative duty to act and knowledge that inaction could lead to harm—are satisfied as a matter of law by the issuance of an order of protection (Mastroianni v County of Suffolk, 91 NY2d 198, 204 [1997] [“(A) duly issued order of protection constitutes an ‘assumption’ of an ‘affirmative duty’ of protection coupled with awareness that ‘inaction could lead to harm’”], quoting Cuffy, 69 NY2d at 260 ).

2010(See Mastroianni v County of Suffolk, 91 NY2d 198 [1997] [police patrol car was initially dispatched and stationed outside plaintiffs house]; Zibbon v Town of Cheektowaga, 51 AD2d 448, 452 [4th Dept 1976], appeal dismissed 39 NY2d 1056 [1976] [victim told relatives prior to shooting: “there are police cars all over the place”].) Conversely, where the undertaking is based on a verbal assurance of protection but there is no visible police action thereafter, courts have followed Cuffy , and found that no special relationship exists.

2011That case was decided before this Court had articulated the four-part special relationship test and it is not clear that the Court applied the “justifiable reliance” element as it is currently constituted (see also De Long, 60 NY2d 296 [in case where jury was never charged on reliance element and defendant failed to object, Court suggested in dicta that there was sufficient evidence of reliance]).

2001Providing the essential causative link between the “special duty” assumed by the municipality and the alleged injury, the “justifiable reliance” requirement goes to the very heart of the special relationship exception, which is predicated in large measure on “the unfairness that the courts have perceived in precluding recovery when a municipality’s voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced [her] either to relax [her] own vigilance or to forego other available avenues of protection” (Cuffy v City of New York, supra, at 261; see, De

2006The special relationship requirement applies where, as here, the acts or omissions complained of are in the nature of nonfeasance, not malfeasance (Haggerty v Diamond, 251 AD2d 455 [1998], lv denied 92 NY2d 814 [1998]; cf. Rodriguez v City of New York, 189 AD2d 166, 172-173 [1993]).

1998The plaintiff correctly notes that the special relationship rule is “limited to cases involving nonfeasance, where the municipality is alleged to have failed to take action in breach of some general duty imposed by law or voluntarily assumed for the benefit of the public as a whole” (Rodriguez v City of New York, 189 AD2d 166, 172 ; see also, Levy v State of New York, NYLJ, Feb. 20, 1998, at 27, col 3; LaLonde v Hurteau, 239 AD2d 858 ).

2014Rather, the plaintiff alleged only that the City failed to act, conduct which is insufficient to create a special relationship under this analysis (see Pinkney v City of New York, 50 AD2d at 930; Abraham v City of New York, 39 AD3d at 28 ).

2007The municipality’s failure to act in the face of a hazard—even a blatantly dangerous one, such as a disabled car stalled in the middle of a highway on a moonless, foggy night—is insufficient, in and of itself, to establish a special relationship under this test (see Pinkney v City of New York, 50 AD2d 928 [1975], affd 40 NY2d 1004 [1976]; see also De La Paz v City of New York, 294 AD2d 327 [2002]).

2011“A special relationship can be formed in three ways: (1) when the [governmental entity] violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the [governmental entity] assumes positive direction and control in the face of a known, blatant and dangerous safety violation.” (McLean v City of New York, 12 NY3d at 199 , quoting Pelaez v Seide, 2 NY3d at 199-200 [citation omitted].) In order to satisfy the “statutory duty” prong of the special

2009Even if Tango and Lauer can arguably be read to imply that the special relationship exception does not apply to discretionary acts, that interpretation was flatly rejected in Pelaez v Seide ( 2 NY3d 186 [2004]), decided after Tango and Lauer , but prior to McLean .

2024Those cases in which a government entity assumed a special duty are particularly unavailing because the policy considerations behind the special relationship exception, while different, would likely compel denial of recovery here ( see Koyko v City of New York , 189 AD3d 811, 813 [2d Dept 2020]).

2011Here, plaintiff admitted that he did not call 911, and thus “there [is] no evidence that [plaintiff] contacted the municipalities’] 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 NY2d 798, 800 [1990]; see Laratro v City of New York, 8 NY3d 79, 83-84 [2006]; Cuffy, 69 NY2d at 260 ).

2010(See Mastroianni v County of Suffolk, 91 NY2d 198 [1997] [police patrol car was initially dispatched and stationed outside plaintiffs house]; Zibbon v Town of Cheektowaga, 51 AD2d 448, 452 [4th Dept 1976], appeal dismissed 39 NY2d 1056 [1976] [victim told relatives prior to shooting: “there are police cars all over the place”].) Conversely, where the undertaking is based on a verbal assurance of protection but there is no visible police action thereafter, courts have followed Cuffy , and found that no special relationship exists.

2010“Evidence is legally insufficient to support a verdict if there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Lang v Newman, 12 NY3d 868, 870 [2009] [internal quotation marks and citation omitted]).

2009In reaching this conclusion, the Court relied on Tango v Tulevech ( 61 NY2d 34, 40 [1983]) and Lauer v City of New York ( 95 NY2d 95, 99-100 [2000]).

2009In reaching this conclusion, the Court relied on Tango v Tulevech ( 61 NY2d 34, 40 [1983]) and Lauer v City of New York ( 95 NY2d 95, 99-100 [2000]).

2007The municipality’s failure to act in the face of a hazard—even a blatantly dangerous one, such as a disabled car stalled in the middle of a highway on a moonless, foggy night—is insufficient, in and of itself, to establish a special relationship under this test (see Pinkney v City of New York, 50 AD2d 928 [1975], affd 40 NY2d 1004 [1976]; see also De La Paz v City of New York, 294 AD2d 327 [2002]).

2005Under that doctrine a municipality cannot be held liable for negligence in performing a governmental function unless a special relationship exists between the municipality and the injured party (see Balsam v Delma Eng’g Corp., supra at 967; Cuffy v City of New York, 69 NY2d 255, 260 [1987]; Eckert v State of New York, supra at 470).