Velez v. City of New York

Velez v City of New York (2021 NY Slip Op 00277)

Velez v City of New York

2021 NY Slip Op 00277

Decided on January 19, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 19, 2021
Before: Gische, J.P., Oing, Moulton, Mendez, JJ.

Index No. 24696/14 Appeal No. 12923N Case No. 2019-18

[*1]Ramon Velez, Plaintiff,

v

The City of New York, et al., Defendants-Appellants, Police Communication Technician/ Dispatcher John/Jane Doe, Defendant.

Georgia M. Pestana, Acting Corporation Counsel, New York (Tahirih M. Sadrieh of counsel), for appellants.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about June 15, 2018, which denied the City defendants' motion to dismiss the complaint and granted plaintiff's cross motion for leave to amend the complaint, unanimously reversed, on the law, without costs, defendants' motion granted and plaintiff's motion denied. The Clerk is directed to enter judgment dismissing the complaint.

Neither the notice of claim nor the complaint alleges facts that would demonstrate the special relationship between plaintiff and the City defendants required for holding the City defendants liable for plaintiff's injuries on the ground that they were negligent in handling his 911 call (see Rollins v New York City Bd. of Educ., 68 AD3d 540 [1st Dept 2009]; Rennix v Jackson, 152 AD3d 551, 554 [2d Dept 2017]). The proposed amended complaint does not remedy the deficiencies. Its factual allegations and plaintiff's affidavit that his mother-in-law told him she had called 911 and the fire department was on its way conflict with plaintiff's General Municipal Law § 50-h hearing testimony that he had no memory of the fire and did not know what had happened until he awoke in the hospital injured (see e.g. Risk Control Assoc. Ins. Group v Maloof, Lebowitz, Connahan & Oleske, P.C., 127 AD3d 500 [1st Dept 2015]; Citrin v Royal Ins. Co., 172 AD2d 795 [2d Dept 1991]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 19, 2021