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Defendant moves for summary judgment

2010 NY Slip Op 52117
Delores Lance and GWENDOLYN BARNES, as co-Administrators of the Estate of DELORES McINTOSH, Deceased, Claimants,
v.
The State of New York, Defendant.
109594
Court of Claims of the state of New York
Decided on September 14, 2010
For Claimants:
Raymond Raskin, Esq.
For Defendant:
Andrew M. Cuomo, Attorney General
By: Ralph J. Bavaro, Esq., AAG and Robert Schwerdt, Esq., AAG
Alan C. Marin, J.

In this claim, it is alleged that after he was released from prison and on parole status, Anthony McIntosh threatened the life of his wife Delores McIntosh, and subsequently killed her in her Brooklyn home on July 14, 2002. It is further alleged that prior to her death, Ms. McIntosh had communicated the threat to the New York State Department of Parole. Claimants maintain that after receiving information of the threat, the State was negligent in failing to immediately attempt to apprehend Anthony McIntosh and take him into custody, and in failing to place Delores McIntosh under protection. Criminal Defendant moves for summary judgment dismissing the claim on the ground that the State owed no special duty to Delores McIntosh.1
Background

Defendant submits a copy of the chronological notes from Anthony McIntosh’s parole
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supervision. The July 10, 2002 entry by Parole Officer Gabriel Abanda of the Brooklyn II parole office states as follows:
8:15 AM
The writer responded to a telephone message from Ms. Delores Love McIntosh.

During the telephone conversation, she stated that she had changed the locks on the doors to keep the subject away from her. She said she had contact Sgt. Leader of the 079th pct. (Domestic Violence officer) and reported the subject hitting her. She said she was seeking an order of protection against him because he was abusive towards her. She said she had an appointment to meet with Sgt. Leader sometimes on 7/11/02. She was instructed to not only go to Sgt. Leader but to also pursue the matter through Family Court. She said she would.She said she had taken an order of protection against the subject before, but changed her mind and took him to live with her because she thought he had changed.She said the subject was no longer living with her. She added that prior to that, he had been staying out late, was fired from his job at the airport and may be working at the Old Navy in Manhattan.She also disclosed that he was using drugs but would purge his system prior to reporting so his urine tests would be negative.She said the subject was probably staying with the mother in Queens and she would never give him up.She said the subject’s mother could be reached at work [telephone number deleted]…She said the subject never wanted her to talk to the writer because he might have problems.She said she was afraid that the subject may come back, force himself inside the apartment and kill her and no one would ever know because of her health condition.She was told that if the subject reported as per schedule, he would be questioned about his residence and related matters. She was told that based upon responses from the subject, he may either be taken into custody, or be given a special condition ordering him to stay away from her place of residence.

She was told to call back on 7/16/02 when the writer will be back in the office or call and talk to SPO Ross.

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She was also instructed to have Sgt. Leader contact the writer as soon as she was able to meet with him.
She said that she did not think that the criminal subject would report.
7:00 P.M.2
SPO Ross was apprised of the subject’s failure to report and of the fact his wife had informed that he was no longer living with her and that she was in the process of seeking to take out a court order of protection against him.
On 7/9/02, she called the office and spoke with SPO Ross about same matter and concerns.
***

It is undisputed that the chronological notes are the only extant evidence as to the content of any communications between Delores McIntosh and the Department of Parole; at oral argument, counsel for criminal claimants stated that no evidence of any communications between Ms. McIntosh and the Department of Parole had been unearthed, “other than what’s contained in the chronological notes.”3 Claimants contend that the chronological notes are not properly before the court on this motion because they are unauthenticated and uncertified, although at oral argument, counsel for claimants offered that, “obviously, [claimants] rely on those records too…” In any event, there is precedent that business records such as these are properly before the criminal court on a motion for summary judgment when introduced by the moving party’s attorney’s affirmation, as was done in the instant case. See DeLeon v Port Authority of New York and New Jersey, 306 AD2d 146 (1st Dept 2003); Leandre v Sharperson, 96 AD2d 883 (2d Dept 1983).Discussion

In McLean v City of New York, 12 NY3d 194, 203 (2009), the Court of Appeals held that
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with regard to municipal liability, “[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general.”

McLean has been questioned as to its impact on the law with respect to liability for the failure to provide adequate police protection per Cuffy v City of New York, 69 NY2d 255 (1987).4 In a subsequent case, Chief Judge Lippman concluded in a concurrence that McLean has extinguishedsuch cause of action, whereas the First Department ruled that the McLean court could not have intended to do so. Dinardo v City of New York, 13 NY3d 872 (2009); Valdez v City of New York, 74 AD3d 76 (1st Dept 2010).5

Construing the law in the light most favorable to claimants here, i.e. either accepting Valdez’s proposition that the McLean Court did not intend to eliminate the special duty exception in the context of discretionary police action or nonaction, or even accepting claimants’ contention that this is a ministerial case, claimants must prove that Delores McIntosh was owed a special duty.

To do so, she must show: “(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, supra at 260.
It is undisputed that the third element has been met here, and it will be assumed for the sake of argument that the second element has been met. But claimants have not demonstrated
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that the first or fourth elements have been satisfied. As set forth above, Ms. McIntosh was told that if Anthony McIntosh appeared as scheduled, he would be questioned and based upon his responses, he may either be taken into custody, or given a parole condition ordering him to stay away from her residence. In view of the highly contingent nature of the statement made to Ms. McIntosh, I cannot find that claimants have demonstrated the assumption of an affirmative duty to act. Moreover, Ms. McIntosh told Parole Officer Abanda that she did not think Anthony McIntosh would report as scheduled. Accordingly, I cannot find that she could have justifiably relied on any expectation of him being arrested.

In view of the foregoing, having reviewed the submissions 6, IT IS ORDERED that motion no. M-76682 be granted and claim no. 109594 be dismissed.
New York, New York
September 14, 2010
ALAN C. MARIN
Judge of the Court of Claims

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Notes:
1. Although defendant’s notice of motion refers to CPLR 3211, both parties treat this as a motion for summary judgment pursuant to CPLR 3212.
2.While “7” and “p.m.” can be discerned in this handwritten time notation, the minute portion is unclear.
3.Neither party submitted the deposition transcript of Parole Officer Abanda, although claimants do not dispute defendant’s assertion that his deposition testimony is “in accord” with the chronological notes (see the fourth unnumbered page of defendant’s affirmation in support of its motion). Nor did either party submit the deposition transcript of Abanda’s supervisor S.P.O. Ross.
4.In Cuffy, the Court of Appeals stated that “a municipality’s provision of police protection to its citizenry has long been regarded as a resource-allocating function that is better left to the discretion of the policy makers…” 69 NY2d at 260.
5.In Valdez, where plaintiff was shot by her former boyfriend 24 hours after a police officer had told her he would be arrested, the First Department stated that:
“[w]e reject the notion that [McLean] and… [Dinardo] constrain our decision in this case. We recognize that in McLean, the Court held that a special duty exception to governmental immunity applies only to ministerial actions, and not discretionary ones… However, we find the resolution lies in accepting that the Court did not intend to eliminate the special duty exception, but rather specifically recognized that its precedent established a subset of police action or nonaction that can provide a basis for liability. Indeed, the focus by the McLean Court on the decision in Cuffy (69 NY2d 255 [1987]) appears to reinforce the well established rule that a governmental agency’s liability for negligent performance depends in the first instance on whether a special relationship existed with the injured person.”
74 AD3d at 77-78.
6.The following were reviewed: defendant’s notice of motion with affirmation in support and exhibits A through I; claimants’ affirmation in opposition; and “Defendant’s Reply” with exhibit H-1. In addition, oral argument on the motion was heard.

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