Supreme Court, Kings County, September 11, 2023

Sylvia O. Hinds-Radix, Corporation Counsel, New York City (Amy G. London of counsel), for City of New York, defendant.

Rubenstein & Rynecki, Brooklyn (Harper Smith of counsel), for plaintiff.

Plaintiff Kathleen Gewirtz (Kathleen or plaintiff) claims that the NYC Police Department acted in a grossly negligent manner with a conscious disregard for her son Brian's safety, and that the City of New York (the City or defendant) owed an "affirmative special duty" to protect him after being informed of his disappearance. Plaintiff further claims that the City was negligent in failing to follow proper police protocol relating to{**80 Misc 3d at 1045} missing persons with disabilities, and that its negligence caused Brian's wrongful death. Defendant moved for an order granting summary judgment dismissing the complaint against the City,^[FN1] pursuant to CPLR 3212, on the grounds that the City was engaged in a governmental function and cannot be held liable absent a special duty, and plaintiff failed to prove that there was a special duty. Defendant also contends that New York does not recognize a cause of action for a negligent police investigation, and that no jury could conclude that the City's alleged negligence was a proximate cause of this incident without resorting to impermissible speculation. Defendant also asserts the governmental function immunity defense.

On the morning of February 17, 2015, at approximately 9:30 a.m., decedent Brian Gewirtz (decedent or Brian), who was then 20 years old, left his home unseen without his phone, wallet, credit card or MetroCard. Approximately 10 hours later, his father Steven Gewirtz (Steven) called the police and reported him missing. The Gewirtz family independently mobilized a group of people in search of Brian and coordinated with various organizations and politicians to assist. Brian's body was ultimately found on April 2, 2015, in a salt marsh with tall grass, near the Marine Park Golf Course, an area that was not accessible to the public. The cause and timing of Brian's death was never known because Brian's mother Kathleen Gewirtz declined to have an autopsy performed "because of being Jewish law."

In an interview with Detective Marlon Guthrie (Det. Guthrie) on the night of February 17, 2015, plaintiff stated that Brian had been diagnosed with schizophrenia but refused to take medication or go to a doctor's appointment on February 16, 2015. She stated that Brian had disappeared on February 16, 2015, for six hours but refused to discuss his whereabouts when he returned home. Plaintiff also reported that she cancelled service to one of her son's cell phones after he broke it, and that he had a backup cell phone but did not have it in his possession. Plaintiff mentioned that "Brian is usually at home and does not know of any place he would frequent," and "does not have many friends and usually spends time with Daniel Eik at the house." In an interview on February 18, 2015, Eik reported to Det. Guthrie that they usually spent time at Brian's house or at the Marine Park Nature Center, and that Brian did not mention any plan to run away.{**80 Misc 3d at 1046}

Kathleen testified at her EBT (examination before trial) that on the night of Brian's disappearance, Steven called On Track Program at Columbia Presbyterian, the mental health program that diagnosed and treated Brian, to tell the doctors not to discuss Brian with the police officers because she and her husband were concerned that the police would shoot him upon finding him due to his mental illness. She also testified that Brian told her that he was going to live "off the grid." Kathleen claimed that "we had Missing and Exploited Children ready to go in and help on day four" but "Detective Guthrie specifically refused to cooperate with Missing and Exploited Children" and "to cooperate when we were trying to get search dogs on the case" to search for Brian. Det. Guthrie denied at his EBT that he ever discussed the potential involvement of the National Center for Missing and Exploited Children with Kathleen and Steven. He further testified that since so much time had passed following Brian's disappearance and there was snow on the ground, search dogs would not be an effective tool in locating Brian.

Brian's father Steven Gewirtz, in an interview with Det. Guthrie on February 18, 2015, stated that Brian had recently Google searched a number of places ranging from Monroe, New York, to Marine Park Golf Course. On February 19, 2015, Sergeant McGill reported that "Officer Joseph would conduct a canvas of Marine Park and the vicinity and report back with any positive results." Det. Guthrie testified that he went to the Marine Park Nature Center a few times to search for Brian. The police reports do not indicate that there were any positive results from the search of Marine Park and its vicinity. Det. Guthrie testified that he was not on duty on February 19, 2015, and that upon his return to the office on February 20, 2015, he did not follow up on whether Officer Joseph canvassed Marine Park and the vicinity. Det. Guthrie further testified at his EBT that Brian's parents never asked him to perform a search of Marine Park, the Marine Park Golf Course, or the salt marsh, which is consistent with the DD-5s, which do not indicate that Kathleen requested these searches.

The DD-5s indicate that the police widely distributed missing person posters to the public and other precincts, and that they searched Prospect Park, the locations where Brian Googled, the area surrounding the school he attended, and the locations they were alerted to from tips. They also canvassed the areas for surveillance footage that might show the direction{**80 Misc 3d at 1047} Brian had taken when he left home. Det. Guthrie also alerted and conferred with hospitals, the Parks Department, and the Transit Bureau.

By order dated October 13, 2021, this court found that neither NY Executive Law § 837-f ("Missing and exploited children clearinghouse") nor the police protocol for missing persons with disabilities as specified by NYPD Patrol Guide § 207-23 give rise to a private right of action so as to create a special duty. The court reserved decision and requested further briefing on whether: (1) New York recognizes a cause of action for negligent police investigation, (2) the police made assurances upon which plaintiff detrimentally relied, and (3) a jury could conclude that the City's alleged negligence was the proximate cause of death without resorting to impermissible speculation.

To prevail on a negligence claim, a plaintiff must demonstrate that the defendant owed plaintiff a duty and breached it, and that his injury proximately resulted from that breach. (Ferreira v City of Binghamton, 38 NY3d 298, 308 [2022]; Solomon v City of New York, 66 NY2d 1026, 1027 [1985].) In a negligence action against a municipality, the threshold issue in determining the extent of its duty is "whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose." (Ferreira, 38 NY3d at 308 [2022]; Turturro v City of New York, 28 NY3d 469, 477 [2016]; Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013].) When a governmental entity acts in a proprietary capacity, it is subject to liability pursuant to ordinary rules of negligence applicable to nongovernmental parties. (Wittorf v City of New York, 23 NY3d 473, 479 [2014]; Applewhite, 21 NY3d at 425.) Where the alleged negligent acts or omissions involve a governmental function, a plaintiff must prove that the governmental entity owed them a special duty of care, and where the plaintiff fails to meet this burden, liability may not be imputed to the municipality. (Ferreira, 38 NY3d at 310.)

Policing is a "long-recognized, quintessential governmental function." (Ferreira, 38 NY3d at 309; Santaiti v Town of Ramapo, 162 AD3d 921, 923 [2d Dept 2018].) Therefore, in general, no cognizable cause of action exists for negligent police investigation. (Mon v City of New York, 78 NY2d 309 [1991]; Prezioso v County of Niagara, 213 AD3d 1302, 1306 [4th Dept 2023]; Hines v City of New York, 142 AD3d 586, 586-587 [2d Dept 2016].) Plaintiff is therefore required to prove that the City owed her a special duty of care as "an essential element" {**80 Misc 3d at 1048}of her negligence claims. (Howell v City of New York, 39 NY3d 1006, 1008 [2022].)

A special duty may arise in three situations: "(1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition." (Maldovan v County of Erie, 39 NY3d 166, 171 [2022].) In the order dated October 13, 2021, this court already found that neither NY Executive Law § 837-f ("Missing and exploited children clearinghouse") nor the NYPD Patrol Guide § 207-23 give rise to a private right of action so as to create a special duty. And there was no "known and dangerous safety condition" at issue. (Maldovan, 39 NY3d at 171.) Thus, the only applicable analysis is whether the City voluntarily assumed a duty to plaintiff beyond what was owed to the public.

To establish that the City voluntarily assumed a duty to plaintiff beyond what it generally owes to the public, plaintiff must establish:

" '(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.' " (Maldovan, 39 NY3d at 172, quoting Cuffy v City of New York, 69 NY2d 255, 260 [1987].)

All four criteria must be satisfied for a special duty to arise. (Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 28 NY3d 709, 715 [2017].)

The fourth factor is "particularly critical" because it "provides the essential causative link between the special duty assumed by the municipality and the alleged injury." (Canberg v County of Nassau, 214 AD3d 943, 946 [2d Dept 2023] [internal quotation marks omitted and emphasis added], citing Halberstam v Port Auth. of N.Y. & N.J., 175 AD3d 1264, 1266-1267 [2d Dept 2019]; Koyko v City of New York, 189 AD3d 811, 812 [2d Dept 2020].) The essence of the justifiable reliance requirement is to address the "unfairness" that "the courts have perceived in precluding recovery when a municipality's voluntary undertaking{**80 Misc 3d at 1049} has lulled the injured party into a false sense of security and has thereby induced [the injured party] either to relax [their] own vigilance or to forego other available avenues of protection." (Maldovan, 39 NY3d at 172.) To satisfy this criterion, plaintiff must show that she relied to her detriment on the City's affirmative undertaking, was induced by the police officers to forgo alternative avenues to find the decedent, or that her reliance on the police placed the decedent in a worse position than he would have been in if they never assumed the duty to help. (See Koyko, 189 AD3d at 813; Halberstam, 175 AD3d at 1267.)

This court finds that the first three factors are satisfied. The police conducted an extensive search for Brian Gewirtz and knew that their inaction could lead to harm. Courts have accepted direct contact by someone other than the plaintiff as sufficient to satisfy the third criterion when individuals making the contact were acting on behalf of their immediate family. (Tara N.P., 28 NY3d at 715; Laratro v City of New York, 8 NY3d 79, 84 [2006].) Although Brian's father only called the police 10 hours after Brian's disappearance, this court deems his phone call to the police sufficient to satisfy the direct contact criterion.

[1] However, plaintiff fails to raise a triable issue of fact as to the most critical element, i.e., justifiable reliance. Plaintiff's testimony reveals that she did not rely on the police to search for her son, and that their actions did not lull her into a false sense of security. The essence of her testimony at her 50-h hearing and at her EBT was that the police did nothing. At her 50-h hearing, plaintiff testified that the police only said that they would look for Brian, and did not inform her of the specific steps they were going to take to find him, or promise her that they would send out dogs or helicopters to look for him. She also testified that the police refused to put Brian's disappearance on high alert because he was over 18. She further testified that the day after Brian went missing, she started her own search with family, friends, and supporters. Plaintiff also sought help from local political leaders, and from the public through various news outlets. In view of this testimony, there is no merit to her claim that she was induced by the police to forgo alternative avenues to search for her son or that her reliance on the police placed the decedent in a worse position than he would have been in if the police never assumed the duty to help. (See Koyko, 189 AD3d at 813 [Where the plaintiff stated{**80 Misc 3d at 1050} that he could have taken the decedent by car to a nearby hospital or called a private ambulance service instead of waiting for medical assistance from the defendants, Court found no special duty since plaintiff was not induced by the defendants' agents to "forgo these alternative avenues to transport the decedent to the hospital or that reliance on the defendants placed the decedent in a worse position than she would have been in if they never assumed the duty to help"]; Halberstam v Port Auth. of N.Y. & N.J., 175 AD3d 1264, 1267 [2d Dept 2019] [where ambulance malfunction caused delay in getting patient to hospital, there was no evidence that the plaintiff was lulled into false sense of security or induced to forgo other avenues of transportation to hospital; therefore, no special duty found].)

In addition, plaintiff did not relax her vigilance based on any promises of the police, which led to her son's disappearance and death. (See Howell v City of New York, 39 NY3d 1006, 1009 [2022] [City was not liable for lack of police protection after victim was attacked by ex-boyfriend and victim had no contact with police on day of attack and was never told that ex-boyfriend would be arrested for violating order of protection]; Maldovan, 39 NY3d at 172 [government employees took no action that could have induced justifiable reliance and therefore no special duty found].)

Furthermore, the "causative link," which is an essential element of special duty, is missing. Since plaintiff declined an autopsy and did not submit an affidavit in opposition to the City's motion from a medical expert regarding the scientific cause of death,^[FN2] any conclusion regarding the cause and timing of Brian's death is mere speculation and conjecture. Thus, this court finds that plaintiff did not demonstrate a causative link, and no special duty was owed to plaintiff. Under the same theory, a jury could not find that the City's alleged negligence was the proximate cause of death without impermissible speculation.

[2] Even if a plaintiff had established a special duty, a governmental entity may rely on the governmental function immunity defense, which operates independently and provides immunity for the performance of a governmental function, when the challenged actions were discretionary in nature and{**80 Misc 3d at 1051} discretion was, in fact, exercised. (Connolly v Long Is. Power Auth., 30 NY3d 719, 728 [2018]; Turturro v City of New York, 28 NY3d 469, 478-479 [2016].) This defense "precludes liability even when all elements of a negligence claim—including duty—have been proved." (Valdez v City of New York, 18 NY3d 69, 77 [2011]; Ortiz v City of New York, 171 AD3d 1198, 1200 [2d Dept 2019].) This doctrine "reflects separation of powers principles and is intended to ensure that public servants are free to exercise their decision-making authority without interference from the courts." (Ferreira, 38 NY3d at 311.) The police's actions in the course of their investigation were undisputably discretionary in nature. (See Estate of M.D. v State of New York, 199 AD3d 754, 758 [2d Dept 2021]; Gabriel v City of New York, 89 AD3d 982, 983 [2d Dept 2011].) Defendant demonstrated that the subject investigation consisted of a series of discretionary acts: the police conducted an extensive investigation and prepared police reports, canvassed a number of areas, interviewed individuals who could be informative, followed up on multiple leads, conferred with hospitals, the NYC Parks Department and the NYC Transit Bureau, and widely distributed missing person posters with Brian's picture. Even assuming that the police could have used dogs, helicopters or conferred with the National Center for Missing and Exploited Children in searching for Brian, they made the discretionary choice not to. And even if this court were to afford plaintiff the favorable inference that this choice was negligent, the governmental function immunity defense still precludes liability.

In light of the above, defendant's motion for summary judgment dismissing the complaint is granted pursuant to CPLR 3212.