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A ?special relationship? tempers a municipality?s immunity from liability for discretionary actions taken by its agents

A ?special relationship? tempers a municipality?s immunity from liability for discretionary actions taken by its agents
Alvarado v City of New York, 60 AD3d 427

Lenora Alva alleged that while acting as an interpreter for the New York City Police Department during the course of an investigation into a complaint of domestic violence, she was assaulted by a knife-wielding individual who was involved in a dispute with his girlfriend.

Alva sued the City, contending that that the injuries she sustained during the attack were the result of the failure of the police to protect her from a man who was known to be violent and dangerous.

Supreme Court, Bronx County, granted the Police Department?s motion to dismiss Alva?s complaint. The Appellate Division unanimously reversed Justice Walker?s decision, commenting:

"[M]unicipalities generally enjoy immunity from liability for discretionary activities they undertake through their agents, except when plaintiffs establish a special relationship' with the municipality" (Kovit v Estate of Hallums, 4 NY3d 499.?

Concluding that Alva sufficiently set forth the elements of a "special relationship" the Appellate Division said that her complaint was improperly dismissed.

Alva, said the court, was not simply a member of the public at large, but was a translator whose services had been requested by the police department to aid officers in the investigation of a complaint of domestic violence.

?Under these circumstances, the police department assumed an affirmative duty to avoid placing plaintiff in a dangerous position and at the mercy of a person the officers suspected was capable of violence.?

Citing Mastroianni v County of Suffolk, 91 NY2d 198, the Appellate Division concluded that Alva ?had a right to expect that she would receive protection from the individual suspected of domestic violence, thereby satisfying the element of justifiable reliance on the municipality's affirmative undertaking.?

Full post as published by New York Public Personnel Law on February 19, 2010 (boomark / email).