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ANGEL MARIN, Appellant, v. CITY OF NEW YORK et al., Respondents.

# 01-267

SUPREME COURT OF NEW YORK, APPELLATE TERM, FIRST DEPARTMENT

190 Misc. 2d 809; 739 N.Y.S.2d 523; 2002 N.Y. Misc. Lexis 60

February 7, 2002, Decided

 

NOTICE:


THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING THE RELEASE OF THE FINAL PUBLISHED VERSION.

 

Per Curiam.

 

Judgment entered July 14, 2000 (Faviola Soto, J.) affirmed, with $25 costs.

 

The operative facts are not seriously disputed. On April 30, 1995, at approximately 12:20 A.M., the defendant police officer, detecting "unreasonably" loud music emanating from a car driven by plaintiff, issued plaintiff a summons for violating local noise regulations (see, New York City Administrative Code 24-220[a]). Although the officer prepared and intended to issue a Criminal Court summons directing plaintiff's court appearance on a specified date (see, CPL 130.10), the officer mistakenly served plaintiff with a copy of a parking violation summons, erroneously indicating that the summons could be contested by mail. A warrant was issued upon plaintiff's failure to appear (see, CPL 130.50) and, on January 18, 1997, plaintiff was arrested on the warrant, strip searched, and incarcerated for several days until the underlying Administrative Code charge was dismissed in Criminal Court.

Upon the trial of the ensuing damages action, the jury awarded plaintiff a recovery against the municipal defendants on two separate legal theories, common-law negligence and deprivation of civil rights under 42 USC 1983. The trial court, while denying defendants' CPLR 4404 motion to set aside the jury's statutory civil rights award (a determination unchallenged by defendants), granted defendant's motion to vacate the jury's negligence verdict, holding that the defendant police officer's "mistake" in serving plaintiff with the wrong form of summons was insufficient to impose negligence liability upon defendants. Plaintiff now appeals n1, and we affirm.

[**525]

 

Where as here, a claim is made that a municipality has negligently exercised a governmental function, liability turns [*811] upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public (see, Lauer v City of New York, 95 N.Y.2d 95, 100, 711 N.Y.S.2d 112, 733 N.E.2d 184; Garrett v Holiday Inns., 58 N.Y.2d 253, 261, 460 N.Y.S.2d 774, 447 N.E.2d 717). We agree with the trial court that there is no reasonable view of the evidence supporting a conclusion that the defendant police officer, in connection with his brief street encounter with plaintiff, owed or voluntarily assumed a special duty to plaintiff beyond that generally associated with the officer's routine law enforcement function. A police officer's obligations to investigate criminal activity, to locate and apprehend criminal suspects, and to facilitate the filing of appropriate charges in connection with such criminal investigations create nothing more than a generalized duty owed to the public at large and, absent any affirmative promise or undertaking not shown on this record, are not intended to benefit or, more accurately here, to avoid injury to any particular persons or classes of persons. In the absence of a competent showing that plaintiff was owed a special duty, his negligence cause of action is not legally sustainable, and this even accepting plaintiff's contention that the service of a summons, as opposed to its issuance, is purely ministerial (cf., Ford Motor Credit Co. v State of New York, 133 A.D.2d 980, 521 N.Y.S.2d 131).

 

"Despite often sympathetic facts in a particular case before them, courts must be mindful of the precedential, and consequential, future effects of their rulings, and 'limit the legal consequences of wrongs to a controllable degree' (citations omitted)." ( Lauer v City of New York, supra, 95 NY2d, at 100.) To the extent that Ostrowski v State of New York (186 Misc 2d 890, 720 N.Y.S.2d 900) can be read to support an extension of municipal liability to the facts here presented, we decline to follow it.

 

CONCURBY: William P. McCooe

 

CONCUR: CONCURRING MEMORANDUM

William P. McCooe, J.

 

I agree with the result but on a different theory. The legal issue is whether a cause of action in negligence lie under this state of facts. In Secard v Dept. of Soc. Serv., 204 A.D.2d 425, 427, 612 N.Y.S.2d 167 (2nd Dept. 1994), the court held that a plaintiff cannot recover on a negligence theory for what traditionally is a false arrest cause of action. See also, Antonious v. Muhammad, 250 A.D.2d 559, 673 N.Y.S.2d 158 (2nd Dept. 1998) lv. dismissed 92 N.Y.2d 913 (1998). In Higgins v. City of Oneonta, 208 A.D.2d 1067, 1069, 617 N.Y.S.2d 566 (3rd Dept. 1994) lv. denied 85 N.Y.2d 803 (1995) and in Heath v. State of New York, 229 A.D.2d 912, 645 N.Y.S.2d 366 (4th Dept. 1996), those courts reached the same conclusion. There is no First Department case in point.

 

The only appellate decision in point cited by the plaintiff is [*812] Glowinski v. Braun, 105 A.D.2d 1153, 482 N.Y.S.2d 395 (4th Dept. 1984) appeal dismissed 65 N.Y.2d 637 (1985) which reached a different conclusion in allowing a negligence cause of action against a court clerk. Glowinski is not distinguishable from Heath, supra, which is a later Fourth Department case that never referred to Glowinski.

 

The court in Lauer v. City of New York, 95 N.Y.2d 95, 711 N.Y.S.2d 112, 733 N.E.2d 184 (2000) in dismissing the plaintiff's claim stated that "Courts must be mindful of the precedential, and consequential, future effects of their rulings." The plaintiff is seeking to extend the traditional sphere of municipal duty by creating [**526] a new theory of recovery in a false arrest case where none previously existed.

 

The judgment should be affirmed.

 

FOOTNOTES:

 

 

n1. Plaintiff does not argue on appeal that the defendant police officer lacked probable cause to issue him a summons for the underlying Administrative Code violation or that issuance of a summons was otherwise improper. Further, plaintiff now concedes, as he must, that the arrest warrant issued upon his nonappearance was "facially valid" and that, in consequence, he cannot properly pursue a cause of action for false arrest or false imprisonment.

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