Valdez v. City of New York

Abdus-Salaam, J. (concurring).

I concur with the conclusion that plaintiff has failed to establish the element of justifiable reliance necessary for the special duty exception.

Notably, in McLean v City of New York (12 NY3d 194 [2009]), the Court of Appeals pronounced, notwithstanding indications to the contrary in earlier decisions (see Kovit v Estate of Hallums, 4 NY3d 499 [2005]; Pelaez v Seide, 2 NY3d 186 [2004]; Cuffy v City of New York, 69 NY2d 255 [1987]), that “[government 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” (12 NY3d at 203). In Dinardo v City of New York (13 NY3d 872 [2009]), Chief Judge Lippman noted his disagreement with the McLean analysis, which limits liability in special duty cases to ministerial acts, and observed that because the provision of police protection is a discretionary act,

“under the rule announced in McLean, a plaintiff will never be able to recover for the failure to provide adequate police protection, even when the police voluntarily and affirmatively promised to act on that specific plaintiff’s behalf and he or she justifiably relied on that promise to his or her detriment” (id. at 877 [Lippman, Ch. J, concurring].)

Under McLean, had plaintiff proven justifiable reliance, there could still be no liability in this case unless the failure of the police to take any action to arrest Perez was the failure to perform a ministerial act. Here, even were we to conclude that the arrest of an individual who has violated a protective order is ministerial—an act that “envisions direct adherence to a governing rule or standard with a compulsory result” (Tango v Tulevech, 61 NY2d 34, 41 [1983])—and not discretionary—“the exercise of reasoned judgment which could typically produce different acceptable results” (id.)—the judgment must be reversed because the justifiable reliance element of the special relationship exception has not been established.