Betancur v. City of New York
(Sup. Ct. N.Y. Cty. 5/5/03)
We represented: Plaintiffs
Martin Shulman, J.
DECISION and ORDER In this personal injury action, plaintiffs Claudia Betancur, Mary Ann Citarella, Richard Cotto, Peter Martucci and Stephen Spelman (collectively, "plaintiffs"), are Emergency Medical Technicians ( "EMTs") and had been employed by the N.Y.C. Emergency Medical Services ("EMS").1 They seek to recover for personal injuries sustained when they were allegedly attacked by N.Y.C. Department of Correction ("DOC") officers demonstrating at, and blocking access to, the Queens side of a certain bridge to Rikers Island ("Rikers"). At the time of the incidents, plaintiffs had responded to a radio call for assistance from fellow EMTs when plaintiffs were injured. Defendants, City of New York (the "CITY") and DOC Commissioner Allyn R. Sielaff (collectively, "defendants") move for summary judgment pursuant to CPLR § 3212 seeking dismissal of the complaint.2 Pursuant to CPLR §3212 (e), plaintiffs cross-move for partial summary judgment only as to liability. Both the motion and cross-motion are consolidated for disposition.
THE PARTIES' POSITIONS
The CITY raises the following points: 1) plaintiffs are unable to demonstrate that CITY police officers assumed a special duty to the EMTs when they directed plaintiffs' vehicles to a job action site at Rikers; 2) the CITY's response to the DOC officers' job action was an exercise of a governmental function and purported errors in managing that job action, if any, were errors in judgment and/or discretionary decisions which are not actionable; 3) even if the CITY's employees arguably failed to perform ministerial functions by not complying with DOC's emergency regulations and plan for responding to the job action, still, there can be no liability because the regulation and plan neither created a duty to plaintiffs nor were enacted for plaintiffs' benefit; 4) plaintiffs' notices of claim failed to broach the issue of the CITY's alleged mishandling of the job action; and 5) plaintiffs cannot rely on a N.Y.C. Department of Investigation ("DOI") report entitled Report to the Mayor, The Disturbance at the Rikers Island Otis Bantum Correctional Center August 14, 1990: Its Causes and The Department of Correction's Response (the "Report"; Exhibit 1 to Cross-Motion) to oppose the CITY's motion, because an order dated November 20, 1997 ( Exh. D to Davidow Affirmation), by the Hon. Phyllis Gangel-Jacob ruled the Report not to be discoverable material.
In opposition, plaintiffs argue that the defendants' motion papers are defective because they do not contain a copy of defendants' answer as required by CPLR §3212 (b);3 the defendants never pleaded governmental immunity and inadequate notices of claim as affirmative defenses in their answer so these defenses should be deemed waived; the special duty rule does not have to be implicated in this matter because plaintiffs were assaulted in the presence of law enforcement officers and the facts of this case otherwise established a special duty relationship between defendants and plaintiffs.
To implicate the special duty doctrine, plaintiffs jointly and severally aver that CITY police officers and DOC officers directed these EMTs to a parking lot near the entrance to Rikers where other numerous striking DOC officers physically attacked them. In sworn affidavits, each attested to the facts and circumstances preceding his/her being attacked:
"On August 13, 1990, I [Claudia Brunie, nee, Betancur,] approached the lot in my vehicle where the assault against plaintiffs occurred, and drove my vehicle into the lot. As I approached, the lot was on the right side of the footbridge. On the left side of the footbridge was a line of approximately twenty (20) police officers in riot gear. Upon my arrival at the lot, I was directed further into the lot by [DOC] officers who led me to a wounded corrections officer in need of assistance… I relied upon the presence of armed police officers as well as corrections officers who led me further into the lot to protect me from danger." (Betancur Affidavit annexed to Itkowitz Affirmation at 3 and 5).
“… As I, [Mary Ann Citarella,] approached the lot…I saw at least five (5) police cruisers at the entrance to the lot. One police officer (several officers were standing nearby) was directing access into the lot and he specifically directed me into the lot with hand signals. Two (2) EMS vehicles were in the lot and they were the only other vehicles I saw directed into the lot…When the police officer signaled me into the lot, I relied upon the presence of the police to protect me from any danger." (Citarella Affidavit annexed to Itkowitz Affirmation at 2 and 4).
“…One police officer and one (DOC] officer were directing access into the lot, and they specifically directed me, [Richard Cotto,] into the lot with hand signals. At least two (2) EMS vehicles were already in the lot, and they were the only other vehicles I saw directed into the lot…When the police officer signaled my vehicle into the lot, I relied upon the presence of the police to protect me from any danger." (Cotto Affidavit annexed to Itkowitz Affirmation at 2 and 4).
As he, [Peter Martucci,] approached the lot, "…one police officer (several officers were standing nearby) was directing access into the lot, and he specifically directed my vehicle into the lot with hand signals …. When the police officer signaled my vehicle into the lot, I relied upon the presence of the police to protect me from any explicit danger." (Martucci Affidavit annexed to Itkowitz Affirmation at 2 and 6).
Without proffering a single affidavit to dispute the foregoing sworn statements of fact, defendants contend that no specific [verbal] representations were made or actions taken which created a special duty. The defendants blithely discount the significance of defendants' officers directing the traffic of plaintiffs-EMTs' emergency vehicles and waving the ambulances forward to the site of unrest and location of the attacks and assert that these non-verbal signals were not affirmative promises of protection.
In addition to the foregoing sworn allegations, plaintiffs also claim the CITY's failure to follow its own emergency regulations to prevent the DOC officers' job action was a ministerial error, not a failed exercise of reasoned judgment; the notices of claim were sufficient and to the extent there was any omission or mistake_ in these notices, the CITY was not prejudiced because it managed to carry on a detailed investigation culminating in the Report.
Plaintiffs further argue that the Report is admissible because Justice Gangel-Jacob's order only related to the underlying material on which the Report was based and could not have precluded plaintiffs' use of the Report because this documentation was public material and in plaintiffs' possession when the discovery motion was decided. Parenthetically, plaintiffs apprized the court that defendants failed to previously object to the use of the Report in support of plaintiffs' earlier motion to depose CITY officials, thus constituting a waiver of any alleged privilege attaching to the Report. In this context, plaintiffs noted this Court's October 8, 1999 Decision/Order disposing of the discovery motion (Exh. 4 to Itkowitz Affirmation) which quoted from the Report.
DISCUSSION
This Court, inter alia, must decide whether the circumstances under which defendants' officers gave non-verbal directions to plaintiffs-EMTs to proceed to the Rikers parking lot to provide emergency medical assistance created an assumption of a special duty to ensure the safety of these EMS workers.
To recover for a municipality's negligence, "…the duty breached must be more than a duty owing to the general public. There must exist a special relationship between the municipality and the plaintiff, resulting in the creation of a 'duty to use care for the benefit of particular persons or classes of persons' [citations omitted].” Florence v. Goldberg, 44 N.Y.2d 189,404 N.Y.S.2d 583 (1978).4 See also, Miller v. State of New York, 62 N.Y.2d 506, 610, 478 N.Y.Y.2d 829, 831 (1984); De Long v. County of Erie, 60 N.Y.2d 296, 345, 469 N.Y.S.2d 611, 616 (1983).
Another important caveat noted in Nelson v. City of New York, 100 Misc.2d 308, 312, 418 N.Y. S.2d 895, 898 (Sup. Ct., Kings Co., 1979, Monteleone, J.) is “…when a municipality does some affirmative act which causes the injury, or which sets in motion a chain of events leading to the injury, a special duty may arise and liability may follow even when the municipality is performing a governmental function…" citing to Schuster v. City of New York, 5 N.Y,2d 75,180 N.Y.S.2d 265 (1958).
[A special duty) may also arise where affirmative police action is so Integrally related to the sequence of events leading to the claimant's injury that it may be said that the action itself created the danger. (Lubelfeld v. City of New York, 4 NY2d 455; Adamo v. P. G. Motor Frgt., 4 AD2d 758; Nelson v. City of New York, 100 Misc 2d 309, affd 75 AD2d 1025; Jones v. County of Herkimer, 51 Misc 2d 130.)
Ast v. State, 123 Misc.2d 200, 203 (Ct. Claims, 1984), affd, 106 A.D.2d 909, 483 N.Y.S.2d 962 (4th Dept., 1984), aft, 66 N.Y.2d 998, 499 N.Y.S.2d 384 (1985).
Courts routinely cite to Cuffy v. City of New York, 69 N.Y.2d 255, 260 (1987), as controlling authority for any determination as to whether a special duty relationship exists. The Cuffy Court articulated the following four-pronged test:
•an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;
•knowledge on the part of the municipality's agents that inaction could lead to harm;
•some form of direct contact between the municipality's agents and the injured party; and
•that party's justifiable reliance on the municipality's affirmative undertaking.
Against this backdrop of case law, Joy v. City of Jamestown, 207 Misc. 873, 875, 141 N.Y.S.2d 325, 327 (Sup. Ct., Chautauqua Co., 1955, Vandermeulen, J.), affd., 286 A.D. 991, 144 N.Y.5.2d 742; 1955 (4th Dept., 1955) is particularly instructive in shaping this Court's view of the actions of defendants' agents and employees. The City of Jamestown assigned a police officer to control traffic at a particular intersection. The traffic officer directed a bus to make a right turn at that location which then struck the plaintiff pedestrian with a right of way causing injuries. The court determined that "…if the [C]ity [of Jamestown] had failed to maintain a traffic officer at the intersection, that would be merely an omission to perform its public duty for which it would not be liable but here, the [C]ity [of Jamestown] not only undertook to direct traffic but its agent, the police officer, went so far, it is alleged, as to order, divert and authorize the bus to proceed across the crosswalk where the plaintiff was walking. Such conduct impresses me as an affirmative act rather than a negative act." See also, Matlock v. New Hyde Park Fire Dist., 16 A.D.2d 831, 228 N.Y.S.2d 894 (2nd Dept., 1962) ("…[o]nce having responded, they [i.e., the fire department] were duty bound to act carefully…").
In the case at bar, defendants' officers purposefully directed plaintiffs to the parking lot at the entrance to Rikers and inevitably placed these EMTs into a situation where it should have been readily apparent to defendants that plaintiffs' safety would be at risk. With non-verbal hand signals waving plaintiffs-EMTs forward, defendant's agents and employees undertook affirmative acts which falsely assured plaintiffs that it was safe for them to proceed.
In Anderson v. Muniz, 125 A.D.2d 281, 508 N.Y.5.2d 567 (2nd Dept., 1986), the plaintiff was injured when his automobile collided with the rear of a police utility truck that had stopped several minutes earlier to offer aid to a stranded motorist. There was absolutely no verbal or non-verbal communication between the plaintiff Anderson and the police officer who responded to the scene of the disabled vehicle.
In reversing the lower court's order granting the defendants a directed verdict of dismissal and remitting the matter for a new trial, the Appellate Division, Second Department, found that a clear question of fact existed as to whether "…the [third-party defendant CITY] police officer's affirmative acts of responding to [defendant/third-party plaintiff] Muniz's disabled car created a duty on behalf of the officer and the municipality to the class of persons traveling the roadway in the area of the disabled vehicle. The issue of whether the steps taken by the police herein to warn passing motorists of the obstruction were reasonable or fell below the standard of ordinary care, is for the jury to decide." 125 A.D.2d at 283-284, 508 N.Y.S.2d at 570.
Unlike Muniz, supra, the CITY police officers did communicate with plaintiffs-EMTs by directing them to the parking lot where they were attacked. In affirmatively waving the plaintiffs-EMTs’ ambulances forward, defendants' agents and employees exercised their authority over plaintiffs and assured the EMTs safe passage to the parking lot to provide needed medical assistance to their colleagues, an injured DOC officer and others. Plaintiffs unquestionably have proven the element of direct contact. And plaintiffs followed these directions with the tacit understanding that it was safe to advance because police protection against the rioting DOC officers was available.5A fortiori, defendants' officers' non-verbal directions to plaintiffs created a duty to a special, distinct group of EMTs who justifiably relied on these officers' affirmative acts and followed these directions to their eventual detriment.
The defendants assert that there is no evidence that any CITY police officer or IOC officer was aware of any perceived threat to the safety of plaintiffs-EMTs prior to the outbreak of violence and that the attacks on these EMS workers were sudden and spontaneous. In addition, because it was obvious that defendants' officers were vastly outnumbered, it was not possible for the plaintiffs to have justifiably relied on the police for protection. Plaintiffs, conclude the defendants, are therefore unable to prove two out of the four essential elements of special duty; viz., the CITY police officers and DOC officers knew that their inaction would lead to harm and that plaintiffs could justifiably rely on any promise of protection.
On the issue of reliance, Plaintiffs' affidavits in opposition incontrovertibly state that the EMTs relied on the non-verbal hand signals of defendants' agents and employees to proceed to the Rikers parking lot and interpreted these "go" signals to indicate they would receive police protection. A visible CITY police presence at the entry point of the Rikers parking lot reinforced their understanding. And even if only one individual police officer was directing traffic, the close proximity of additional CITY police and DOC officers (according to one affiant, some officers were in riot gear) would certainly bolster the plaintiffs' collective belief that it was safe to proceed and that plaintiffs could rely on defendants' police presence to ensure their safety.
In focusing on the disparity between the numbers of CITY police officers and striking DOC officers in the parking lot to argue against justifiable reliance, the defendants simply miss the point. Plaintiffs' reliance on potential protective services by CITY's agents and employees is premised on defendants' agents waving the plaintiffs-EMTs through to the parking lot, an area where CITY agents and employees completely controlled access. The reasonableness of plaintiffs' reliance must be judged not at the time they were attacked, but rather at the time they received direction from the defendants' agents and employees.
Defendants' arguments posit a two-fold approach to shield the CITY from liability and ostensibly rests on the notion of total surprise (unanticipated violence directed at the EMTs) and a poor police presence (EMTs' assumed realization that the outnumbered CITY police force would be unable to adequately protect plaintiffs-EMTs). But uncontested facts on the ground such as the presence of police officers in riot gear (Betancur Affidavit at 2), plaintiffs' emergency response to provide medical assistance after two other EMTs issued a distress call after previously being attacked in the Rikers parking lot and plaintiff-EMT Spelman's request for "police backup" upon receipt of that distress call (Spelman Deposition, Exh. N to Davidow Affirmation) belie these notions. These facts evince that defendants' officers directing traffic at the Rikers' entrance had to know about the volatility of the environment resulting from the DOC officers' job action.6 Although defendants characterize the striking DOC officers as merely "… a crowd of noisy, raucous demonstrators…" (Defendants' Memorandum of Law at p.5), it seems clear from the circumstances that the prospect of confrontation and violence was real.
The facts in this case sufficiently demonstrate that the CITY voluntarily assumed a special duty towards the plaintiffs. However, the Court of Appeals in De Long v. County of Erie, 60 N.Y.2d 296, 306,469 N.Y.S.2d 611, 616 (1983) has also made clear that the issue of:
…[w]hether a special duty has been breached is generally a question for the jury to decide (see, e.g. Florence v. Goldberg, supra, p. 197). But it should be emphasized that whether the municipality has acted reasonably depends on the circumstance of the particular case…
While this Court finds that plaintiffs have made a prima facie showing as to defendants' assumption of a special duty towards the plaintiffs-EMTs, nonetheless, the ultimate trier of fact in this matter will have to determine whether the defendants breached the special duty owed to plaintiffs and determine the reasonableness of defendants' actions.
The existence of the Report requires this Court to address plaintiffs' claim that the CITY had prior notice of the illegal job action and failed to follow its own emergency plan.7 These departures include a failure to follow Emergency Control Board directives to notify the N.Y.P.D.'s Operations Division and Office of Emergency Management ("OEM") of the potential job action. Had this emergency plan been followed, plaintiffs argue, a sufficient number of properly equipped police officers would have been in position at Rikers to prevent the blockade of the bridge and the ensuing injurious assaults on plaintiffs. Said differently:
… [E]ven if the job action by correction officers had occurred despite the deployment of OEM officers, special police officers would have either escorted the first EMS officers injured … through the job demonstration and/or transported them to Rikers Island by boat as required by the CITY's own emergency regulations, thereby avoiding the threat of harm and the resulting call for help to the EMS plaintiffs who were dispatched to the scene where they were then assaulted.
Finally had sufficient OEM officers been deployed as required by the CITY's own emergency procedures, the EMS plaintiffs, even if deployed to the scene, would have been protected by the OEM officers who would have intervened and defended the EMS workers from harm and injury.
(Plaintiffs' Memorandum of Law at pp.27-28).
This Court has considered the Report in searching the record in this round of summary judgment motion practice. Still, the Report does not conclusively prove the plaintiffs are entitled to partial summary judgment on the question of defendants' liability.
The Report does state the obvious, viz. ". . . there was not an adequate police presence on the bridge on the morning of the job action to prevent its closing…" (Report at 259), but does not conclude that the implementation of the emergency plan would have decidedly prevented the closing of the bridge or the assaults resulting in plaintiffs' injuries. Specifically, the Report's conclusion speculates that "[t]he New York City Police Department might have prevented the closing of the Rikers Island Bridge if it had received proper notice from DOC managers [emphasis added]. . . "(Report at 258).8 Moreover, it is speculative to assume that additional officers would have necessarily prevented the assaults on plaintiffs.
The Report did criticize the CITY's failure to utilize boats to bring essential personnel and supplies to Rikers. It did not, however, address their use as to EMS personnel and/or their vehicles, so any failure to transport any of the plaintiffs by boat cannot serve as a basis to impose liability against the CITY. Moreover, the first EMS workers on the scene, plaintiffs Warren and Chiofalo, did manage to successfully traverse the bridge after the blockade and reach Rikers even though they subsequently issued a distress call for assistance (Code 10-13) after being attacked on the Queens side of the bridge. (Betancur Deposition Tr. at p. 25, annexed as Exh. H to Davidow Affirmation).
Based on the forgoing, this Court simply cannot agree that the Report justifies plaintiffs' entitlement to partial summary judgment as to liability.9
It may have been possible for defendants to be held liable for any breach of the emergency plan if plaintiffs were able to show that the plan was intended to directly benefit the plaintiffs-EMTs. A fair reading of the entire Report more accurately reveals that the emergency regulations and plan were designed to ensure that Rikers would continue to operate in the event of labor unrest and that food, supplies, and DOC personnel would reach Rikers ( i.e., personnel needed to transport inmates for court appearances). In the absence of an assumed duty to plaintiffs, the defendants' alleged failure to follow these emergency regulations and plan, even if such failure to act was a ministerial breach, will not give rise to municipal liability. See, Lauer v. City of New York, 95 N.Y.2d 95, 711 N.Y.S.2d 112 (2000).
Plaintiffs alternatively argue they do not have to prove the existence of a special relationship to derive a special duty since they were attacked in the presence of CITY police officers. They rely on Turner v. City of New York, Index No. 15594/95, n.o.r., 2001 NY Slip Op 40042U; 2001 N.Y. Misc. LEXIS 457 (Sup. Ct., Bx. Co., 2001, Victor, J.) for support.
In Turner, the plaintiff, an off-duty police officer, was involved in an altercation outside a club. When some patrons and club employees began to assault him, he broke free, drew his weapon and called out to nearby undercover officers for assistance. Those officers apparently chose not to get involved. While the plaintiff unsuccessfully called 911 for help, his attackers further assaulted and severely injured him. In analyzing the issue of liability, the court held that since police officers are generally required to act if they witness the commission of a crime pursuant to New York City Charter § 435(a), the first element of special relationship (the affirmative assumption of a duty) was met as it had been statutorily imposed .10 In analyzing the case law, it is apparent that the Court of Appeals seemingly eschews expansive applications of City Charter provisions which benefit the public generally to give rise to a special duty to a particular plaintiff.
Illustratively, in Lauer v. City of New York, 95 N.Y.2d 95, 711 N.Y.S.2d 112 (2000), the Court of Appeals rejected plaintiff’s claim that the Office of the Chief Medical Examiner ("OCME") owed a duty to plaintiff to provide accurate information regarding the cause of his son's death because New York City Charter §557 generally requires the OCME to keep full and complete records of any deaths arising out of criminal or suspicious circumstances. The Court of Appeals, citing to Steitz v. City of Beacon, 295 N.Y. 51, 55-56, 64 N.E.2d 704 (1945), remarked that:
…[s]uch [City Charter] enactments do not import intention to protect the interest of any individuals except as they secure to all members of the community the enjoyment of rights and privileges they are entitled only as members of the public. Neglect in the performance of such requirements creates no civil liability to individuals.
Lauer, supra, 95 N.Y.2d at 101-102, 711 N.Y.S.2d at 116 117.11
Accordingly, It is hereby
ORDERED that the branch of defendants' motion for partial summary judgment seeking dismissal of those claims predicated on DOC's purported failure to follow the emergency plan is granted; and it is further
ORDERED that the branch of defendants' motion for summary judgment seeking dismissal of the complaint is denied as it has been demonstrated that the defendants assumed a special duty towards plaintiffs; and it is further
ORDERED that plaintiffs' cross-motion for partial summary judgment only as to liability is denied. This matter shall appear on the Mediation I calendar on May 19, 2003 at 9:30 a.m. The foregoing constitutes the Decision and Order of this Court. Courtesy copies have been sent to counsel for all parties. Dated: New York, New York May 5, 2003
FOOTNOTES
1The action against Lee Brown, former Police Commissioner of The City of New York has been discontinued. By order of this Court dated October 8, 1999 (Exhibit 4 to Cross-Motion), the caption of this action was amended to delete defendants "Lee P. Brown and John and Jane Does #1-1000, being correction officers employed by the City of New York whose identities are presently unknown." Plaintiffs Chiofalo, Warren, Ramirez and Pollack have settled their cases, inter alia, mooting the fifth cause of action. Plaintiffs Mildred Cotto and Barbra Ann Spelman maintain derivative causes of action for loss of services arising from their husbands' injuries.
2Plaintiffs concede they cannot sustain causes of action against the CITY grounded on the intentional infliction of emotional distress, the doctrine of respondeat superior for the actions of the striking DOC officers and/or a constitutional claim under 42 US §1983 and have withdrawn the relevant causes of action. Itkowitz Affirmation in support of plaintiff's crossmotion at 10.
3Since plaintiffs have submitted a copy of defendants' answer, all pleadings are presently before this Court. In the interest of deciding these motions on the merits and the Court’s preference for eschewing form over substance, defendants' failure to attach a copy of their answer to the motion papers is not fatal to their motion.
4In Goldberg, supra, the infant plaintiff on his way home from school was severely injured when a car struck while he was crossing the street at the intersection of Ralph and Park Avenues in Brooklyn, New York. Regularly, there was a crossing guard stationed at that intersection but, tragically, on that day no guard or police officer was there. In rejecting the argument that the City of New York owed no special duty to the child, the Court of Appeals ruled that where the New York Police Department voluntarily assumed a duty to protect the narrow class of children walking to and from school, the parents of these children had good reason to justifiably rely on the City of New York's promise of protection. And based upon established protocols, the New York Police Department knew or should have known that its inaction (viz., no assignment of a police officer to cover the crossing when notified of the crossing guard's absence or lack of notification to the child's school principal to otherwise arrange to safeguard the location) could forseeably lead to harm.
5In Konstantaos v. County of Suffolk, 208 A.D.2d 889, 618 N.Y.S.2d 90 (2nd Dept., 1994), the plaintiff’s decedent was killed in an intersection accident when traffic signals failed because of a power failure. Suffolk County assigned police officers to direct traffic at various intersections, but not at the intersection where the accident occurred. In reversing the lower court's denial of the defendant-Suffolk County's motion for summary judgment of dismissal, the Appellate Division, Second Department, found that liability did not attach to Suffolk County because the defendant neither owned the intersecting roadways nor maintained its traffic signals. The Appellate Court also concluded that one cannot demonstrate the existence of a special duty merely because certain Suffolk County police officers had been deployed at some of the intersections to regulate traffic and not others. Highly relevant to this discussion, in ruling that this limited deployment of police personnel at certain intersections, other than the intersection where the plaintiffs decedent was killed, did not cause the defendant to assume a duty to the plaintiff decedent, the Appellate Division specifically observed a significant factor not present in Konstantaos, supra; namely, "… no police personnel were ever directing traffic at the intersection where the accident occurred ,., (nor did] the plaintiff… demonstrate that the decedent in any way relied upon any action [Suffolk] County may have undertaken that night." 208 A.D.2d at 891, 618 N.Y.S.2d at 92.
6The Report also notes that a police communications vehicle was at the scene since approximately 11:00 am that morning (Report at 51), and that "…hundreds of NYPD personnel were massed near the bridge, in order to retake it by force if necessary…." (Report at 53, n. 60). However, even if one were to discount these facts because of defendants' contention that the Report is inadmissible, there is still sufficient evidence showing that defendants' agents and employees knew or should have known their inaction would lead to harm. As stated, supra, defendants have failed to offer a single affidavit from someone with personal knowledge about a purported lack of knowledge that inaction would lead to harm or about any other aspect of the special relationship.
7Notwithstanding Justice Gangel-Jacob's November 20, 1997 memorandum decision barring the disclosure of the Report, nonetheless, the record before this Court discloses that the Report has not only be made public (see, Exhibit 2 to Cross-Motion), but also that defendants have effectively waived any privilege attaching to the Report when they failed to challenge plaintiffs' use of same during prior motion practice.
8Other sections of the Report plaintiffs cited, while varying in degrees of certainty, do not unequivocally settle the question of whether the bridge blockade, and more significantly, the attacks on plaintiffs-EMTs could have been averted. To illustrate, had proper notification been given, ". . . police officers equipped and trained in crowd control would, in all likelihood, have been prepared to respond. An appropriate NYPD response would have prevented the blockade of the bridge. . .[emphasis added]." Report at 50.
9In the entire 271 page Report and its 100 page Appendix, there is no mention of the attacks on plaintiffs. As the title of the Report suggests, the focus of the inquiry was on the disturbance at the Rikers Island Correctional Center, the causes of that disturbance and the DOC's response. An analysis of the job action at the bridge was done solely in relation to the role the job action played in fermenting further unrest at the correctional facility and how such unrest might have been avoided if the job action had been prevented.
10In Turner, the court did not dispense with a complete special duty analysis but merely found that the violation of this City Charter provision satisfied the first of four Cuffy elements, i.e., the City's assumption of an affirmative duty to act on behalf of the injured party.
11Plaintiffs may also not rely on Crosland v. New York City Transit Authority, 68 N.Y.2d 165, 506 N.Y.S.2d 670 (1986) to support their claim that crimes committed in the presence of the defendant's agents and employees do not require the existence of a special duty to prove liability. As the Court of Appeals also ruled in Lager, supra, 95 N.Y.2d at 105, 711 N.Y.S.2d at 118, its holding in Crosland specifically addressed the standard of care owed by a publicly owned common carrier to its passengers and liability was based on a violation of that statutory duty. No such duty is present here.