Recitation as Required by CPLR §2219(a): The following papers were read on this Motion for Summary Judgment/Dismiss: Papers Numbered Notice of Motion, Affirmation in Support with Exhibits, and Statement of Material Facts 1 Affirmation in Opposition with Exhibits, Statement of Material Facts 2 Affirmation in Reply 3 DECISION/ORDER Motion by the City of New York, for an order pursuant to CPLR §§3211(a)(7) and/or 3212 granting summary judgment and dismissing plaintiff’s complaint, is decided as follows: Plaintiff brings this action to recover for personal injuries allegedly sustained on June 5, 2011, when he was allegedly assaulted by his girlfriend’s son, Deshawn Victory inside 1409 Fulton Avenue, Apt. 5I, Bronx, NY. Prior to the incident occurring, plaintiff called 911 regarding Mr. Victory because he was kicking and hitting objects in the home where he was with his mother. Police and EMTs from Bronx Lebanon Hospital responded to the scene. Plaintiff alleges he was told “to stay in his car”. He waited in his vehicle while the police and the EMTs went to the apartment. Eventually, the EMTs, Mr. Victory, and the two police officers exited the building. Mr. Victory was placed into the back of the Bronx Lebanon Hospital ambulance and the doors were closed. Plaintiff alleges that he then spoke to the police officers. He asked if it was “alright to get out [of his car]” to which one officer replied, “ yeah.” Thereafter, he asked if he could “proceed upstairs to get my clothes…” to which the officers responded, “yes…you can go upstairs.” The police officers went to their patrol car and as plaintiff was going into the premises, the patrol car was backing up. The police then left the scene and plaintiff went up to the apartment. Thereafter, approximately 15 minutes later, Mr. Victory was released from the ambulance to obtain his keys. He entered the apartment and kicked plaintiff in the back. Plaintiff called 911 again and the same two officers responded. Plaintiff alleges that he told the officers, “I was in the apartment as you instructed me I could go upstairs and the EMT[s] let him out…”. Officers Tafuro and Soto were the responding officers to the call regarding Mr. Victory. According to their testimony, they did not recall speaking to any civilians upon responding to the scene. They both recalled the emotionally disturbed person (“EDP”) voluntarily entering the ambulance and the doors of the ambulance closing. Neither remember speaking to plaintiff before leaving the scene. They were called back to the scene where they spoke with plaintiff who indicated he was kicked in the back by Mr. Victory. They were told that Mr. Victory was allowed to exit the ambulance to obtain his keys and when he entered the apartment, he kicked plaintiff in the back. Plaintiff alleges that the City created a special relationship with him by voluntarily assuming a duty. Specifically, plaintiff alleges in his pleadings that he was told by the police that it was safe to re-enter the premises, he justifiably relied upon that representation to his detriment, he re-entered the premises as directed and advised, and was violently assaulted. To prove that a special relationship exists between the City and plaintiff through a voluntary assumption of a duty, a plaintiff must prove: 1) an assumption by the municipality, through promises or actions, 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 [1987]). The court finds that defendants have made prima facie showing that a special duty did not exist in this matter and that plaintiff fails to raise an issue of fact so as to warrant the denial of the motion. Plaintiff cannot satisfy the first, second, or fourth Cuffy factors. As an initial matter, there was no promise made to the plaintiff here. The alleged promise made by the governmental actor must be specific and create a reasonable basis for justifiable reliance, and the assumption of the duty alleged must take on a responsibility above and beyond the parameters of the ordinary work of the governmental actor. (Ewaldi v. City of New York, 117 A.D.3d 439 [1st Dept. 2014]). While the officers in the within matter used language less vague than in Ewaldi, where a firefighter’s statement “hold on” was too vague to manifest an assumption of a voluntary duty, the officers here did not use language that rose to the level of Coleson v. City of New York, 24 N.Y.3d 476 [2014]). Needless to say, the officers did not take on a responsibility here that reached a level of above and beyond the parameters of their ordinary work. Plaintiff submits this matter is analogous to Coleson. The police officers in Coleson told the plaintiff in that matter that her husband had been arrested and “he’s going to be in prison for a while, [and that she should not] worry, [she] was going to be given protection.” The officer then later, in a two hour conversation with the plaintiff, assured her that her husband “was in front of the judge” and he was going to be sentenced. The Court found that a reasonable jury could find that the police made a promise of protection to plaintiff, that they knew that if plaintiff’s husband was not apprehended, that he would harm her, as evidenced by his arrest and the issuance of an order of protection, and that a jury could find that she justifiably relied upon their statements based on the information from the officer that her husband was in jail and would be for a while, and that the police would contact her if that turned out not to be the case. Two days later, her husband approached her and stabbed her. (Id.) The within case is dissimilar to Coleson. After Mr. Victory voluntarily agreed to go to the hospital and after Mr. Victory was located in a closed ambulance, plaintiff asked the officers if it was safe to go upstairs and the officers said yes. At the time, all parties could see that Mr. Victory was in the ambulance behind closed doors. The Bronx Lebanon EMT’s indicated that they were taking Mr. Victory to the hospital. Plaintiff never indicated he was afraid of Mr. Victory or that he required protection from him. Plaintiff testified that at the time he was going upstairs, he was not scared. He did not ask the police to go with him. The police did not offer to go with him. He did not ask them to stay on the scene. While plaintiff testified that the police told him after Mr. Victory was closed in the ambulance that Mr. Victory indicated he wanted to kill plaintiff, he did not make a complaint against Mr. Victory. As plaintiff walked into the building, the police were in their vehicle and backing up. No promise to protect was made to plaintiff and based on the fact that he saw the officers in their moving vehicle as he was walking into the building, there was no justifiable reliance here. Plaintiff’s self-serving affidavit served in opposition to this motion, which now seeks to establish that plaintiff had moved out of the home due to the threats of violence by Mr. Victory towards plaintiff, that Mr. Victory was previously violent towards plaintiff and that he indicated he was afraid of Mr. Victory to the police, is unavailing in light of plaintiff’s contradictory testimony regarding the same. (See Ex. G to the City’s motion, pages 18, 25, 27, 45). Plaintiff testified that he did not live in the apartment for periods of time because his girlfriend’s son did not like him and that it was best that he not be there when her son needed help from his mom with housing. (Ex. G, pg. 13) Plaintiff indicated that he previously had been afraid of Mr. Victory, but it was in relation to violent acts at school with a teacher and other students. (Ex. G., pg. 26). Plaintiff testified on more than one occasion that he never had any physical altercations with Mr. Victory, and he never witnessed any physical altercations between Mr. Victory and any family. (Ex. G, pg. 25, 26). He had never seen Mr. Victory behave in a violent manner, although his wife had indicated he had previously had violent episodes. (Ex. G, pg. 36). Lastly, when plaintiff spoke with the police prior to them entering the apartment, he told them that his girlfriend said her son was acting violently and “she was afraid.” (Ex. G, pg. 45). “Issues of fact and credibility are not ordinarily determined on a motion for summary judgment.” However, self-serving statements submitted by plaintiff in opposition that “clearly contradict plaintiff’s own deposition testimony and can only be considered to have been tailored to avoid the consequences of his earlier testimony, they are insufficient to raise a triable issue of fact to defeat defendant’s motion for summary judgment.” (Fernandez v. VLA Realty, LLC, 45 A.D. 391 [1st Dept. 2007]). Here plaintiff’s affidavit uses language like “the police assured me”, “totally and completely relied on the statement by police”, “I was justified in relying on the statements”, “it was understandable, proper and reasonable for me to have relied upon the statements”. As such, the Court declines to consider plaintiff’s affidavit as it was tailored in opposition to the defendant’s motion. Based on the foregoing, the City’s motion is granted, and plaintiff’s complaint is dismissed in its entirety. The Court need not address the alternative grounds for summary judgment that the City sets forth. Defendants shall serve a copy of this order with notice of entry upon plaintiff within 30 days the entry date. This constitutes the decision and judgment of the Court. Dated: June 15, 2022
