4005, 20245/06.

2017 NY Slip Op 03890

LEONORA ALVARADO, Plaintiff-Respondent, v. THE CITY OF NEW YORK, ET AL., Defendants-Appellants.

Appellate Division of the Supreme Court of New York, First Department.

Attorney(s) appearing for the Case

Zachary W. Carter , Corporation Counsel, New York ( Jonathan A. Popolow of counsel), for appellants.

Devon M. Wilt , New York, for respondent.

Before: Sweeny, J.P., Renwick, Andrias, Feinman, Gesmer, JJ.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered July 9, 2013, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

In this negligence action, plaintiff seeks damages for personal injuries resulting from an assault by a neighbor's boyfriend. Plaintiff claims that defendants failed to protect her after requesting her assistance as a translator in resolving a domestic dispute between the neighbor and her boyfriend, and that the boyfriend targeted her due to her involvement in this incident.

As plaintiff now concedes, this Court's decision on a prior appeal, denying defendants' motion to dismiss (see Alvarado v City of New York, 60 A.D.3d 427 [1st Dept 2009]), is not dispositive of the instant motion, as "[t]he law of the case doctrine is inapplicable where, as here, a summary judgment motion follows a motion to dismiss'" (191 Chrystie LLC v Ledoux, 82 A.D.3d 681, 682 [1st Dept 2011]).

Defendants are entitled to summary judgment dismissing the complaint. Whether a special relationship exists is generally a question for the jury" (Coleson v City of New York, 24 N.Y.3d 476, 483 [2014]). To establish that, plaintiff must prove that she justifiably relied on the municipality's affirmative undertaking to act on her behalf (Cuffy v City of New York, 69 N.Y.2d 255, 260 [1987]). Even if a jury could have found that defendants told the boyfriend to leave the area and that they told plaintiff that they would be on patrol in the area, defendants established, as a matter of law, that plaintiff could not have justifiably relied on defendants' assurances after the boyfriend returned and asked to borrow her cell phone, and then crossed the street and sat on a bench before returning to attack her (see Valdez v City of New York, 18 N.Y.3d 69, 75 [2011] at 82; Brown v City of New York, 73 A.D.3d 1113, 1115 [2d Dept 2010]). At that point, it was clear that defendants had not prevented the boyfriend from returning.

Given the foregoing determination, we need not address whether defendants' conduct was protected by governmental function immunity.



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