Argued November 16, 2006; decided December 21, 2006

Laratro v City of New York, 25 AD3d 184, reversed.

Smith, J.

Protecting health and safety is one of municipal government's most important duties. Since municipalities are run by human beings, they sometimes fail in that duty, with [*2]harmful, even catastrophic,{**8 NY3d at 82} consequences. When that happens, as a general rule, the municipality is not required to pay damages to the person injured. The rationale for this rule is that the cost to municipalities of allowing recovery would be excessive; the threat of liability might deter or paralyze useful activity; and thus the net result of allowing recovery would be to make municipal governments less, not more, effective in protecting their citizens.

We have recognized a narrow exception to the general rule of nonliability where the injured person had a "special relationship" with representatives of the municipality. We hold that this case, in which it is claimed that the City of New York was slow in responding to a 911 call placed by plaintiff's coworker, does not fit within the exception.

Plaintiff suffered a stroke at his office. Carol Edelson, his coworker and friend, found him sitting at his desk with his head in his hands, unable to respond to questions. Edelson told him she would call an ambulance, and dialed 911 from a telephone a few feet away.

A 911 operator employed by New York City told Edelson that an "ambulance will be there to help you as soon as possible." The ambulance did not come until 35 minutes later, however, allegedly because the operator, when he transmitted Edelson's request, negligently understated the seriousness of plaintiff's condition, describing him only as "sick." Edelson testified that, if she had known that the ambulance would take half an hour or more to arrive, she would have arranged to have plaintiff driven to the hospital in a private car.

Plaintiff suffered brain damage, made worse, according to expert testimony he submitted, by the delay in getting him to a hospital for treatment. He brought this action for damages against the City of New York and its agencies (collectively the City) and other defendants. Supreme Court granted the City's motion for summary judgment dismissing the complaint. The Appellate Division reversed, one Justice dissenting. We now reverse and reinstate Supreme Court's order.

In Cuffy v City of New York (69 NY2d 255 [1987]), we explained the "special relationship" exception to the well-established rule that a municipality is not liable to a person injured by the breach of a duty—like the duty to provide police {**8 NY3d at 83}protection, fire protection or ambulance service—that the municipality owes to the general public. We said in Cuffy:

"There exists . . . a narrow class of cases in which we have recognized an exception to this general rule and have upheld tort claims based upon a 'special relationship' between the municipality and the claimant. The elements of this 'special relationship' are: (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) [*3]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." (Id. at 260 [citations omitted].)

Plaintiff here does not satisfy either the third or the fourth requirement of the Cuffy test, because plaintiff did not have direct contact with, and did not rely on any undertaking by, the City's 911 operator. We decide the case on that ground, and do not reach the issue of whether the 911 operator's statement ("The ambulance will be there to help you as soon as possible") was specific enough to be an "affirmative undertaking" on which a party could justifiably rely.

Our decision is controlled by Kircher v City of Jamestown (74 NY2d 251 [1989]). In Kircher, the plaintiff was abducted in a car. The abduction was witnessed by two people; they got the car's license number and gave it to a police officer, who told them he would "call it in" (id. at 254). Relying on the officer's assurance, the witnesses stopped their efforts to help the plaintiff, but the officer did not report the incident, and the plaintiff was not rescued until after she had been brutally assaulted and raped. We held that the plaintiff could not recover against the city for the officer's negligence.

We decided that the plaintiff in Kircher could not show either direct contact or reliance, as Cuffy requires, because she "could not even communicate with the police, much less rely on any promise of protection the police might have offered" (74 NY2d at 258). We rejected the suggestion of a dissenting judge that the contact and reliance by the witnesses who reported the crime "be transferred to the plaintiff's benefit" (id. at 258, 265). A similar analysis applies here. Plaintiff, unable to communicate by reason of his stroke, could not either contact or{**8 NY3d at 84} rely upon the 911 operator, and Edelson's contact and reliance cannot be "transferred" to plaintiff's benefit.

Plaintiff argues that Kircher is distinguishable on two grounds: Edelson was a longtime friend and coworker of plaintiff here, while the witnesses in Kircher were strangers to the plaintiff in that case; and plaintiff here was physically near to Edelson when she called 911, while the plaintiff in Kircher was far away when the witnesses reported her abduction to the police. We find neither distinction persuasive. To adopt either would undermine an important reason for the direct contact and reliance requirements, which serve "as a basis for rationally limiting the class of citizens to whom the municipality's 'special duty' extends" (Cuffy, 69 NY2d [*4]at 261).

Our cases have accepted direct contact and reliance by someone other than the plaintiff as sufficient to create a special relationship only where the person making the contact was acting on behalf of his or her immediate family. Thus in Sorichetti v City of New York (65 NY2d 461 [1985]) we found a special relationship where a mother had sought the help of the police to protect her six-year-old daughter; and in Cuffy we found a special relationship where a man sought police protection for his wife and the children who lived with him—but we rejected a claim made on behalf of an adult child who was not a member of his household. To hold, as plaintiff here asks, that direct contact and reliance by a friend or a person standing nearby can create a special relationship would unacceptably dilute the general rule of municipal nonliability. The exception is reserved for a few, "special" cases of which this is not one.

Accordingly, the order of the Appellate Division should be reversed with costs, and the order of Supreme Court granting the City's motion for summary judgment should be reinstated. The question certified should be answered in the negative.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and Pigott concur.

Order reversed, etc.