Majority
Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered April 16, 2013, which granted defendants’ motion for summary judgment dismissing the complaint and any cross claims against them, unanimously affirmed, without costs.
Plaintiff alleges that on October 18, 2009, at approximately 1:30 a.m., she was struck by a privately owned motor vehicle, while attempting to cross Bowery Street at its intersection with Bond Street in Manhattan. Defendant Police Officer Timothy Harrington and two other unknown defendant officers were employed by defendant City of New York when they
Defendants are entitled to summary judgment, because the investigation of the accident at issue here is a governmental function, and therefore, the City of New York is not liable for failing to properly investigate the incident unless there existed a special duty to plaintiff, in contrast to a general duty owed to the public.
Contrary to plaintiffs contention, she may not establish a special relationship through defendants’ violation of a statutory duty, because none of the sections of the Vehicle and Traffic Law cited by plaintiff authorize a private right of action nor were they otherwise enacted for the benefit of a particular class of persons as opposed to the public at large (see Applewhite v Accuhealth, Inc., 21 NY3d 420 [2013]; McLean v City of New York, 12 NY3d 194 , 200 [2009]). Although section 600 of the Vehicle and Traffic Law imposes criminal liability for willful violations of its provisions upon the operator of a vehicle involved in an accident that fails to identify himself, there is no statutory provision for governmental tort liability (see Metz v State of New York, 20 NY3d 175 , 179-181 [2012]).
Since the complaint only alleges violations of sections 603, 603-b and 604 of the Vehicle and Traffic Law, which merely require the Police Department to report the accident to the Commissioner of Motor Vehicles, the plain language of these statutes indicates that the Legislature never intended to create a private benefit for a particular class of persons with a concomitant right of action against the Police Department for negligently failing to record or preserve information required by another public agency (see Ortega v City of New York, 9 NY3d 69 , 82-83 [2007]; Albino v New York City Nous. Auth., 78 AD3d 485 , 488-489 [1st Dept 2010]). Thus, absent some special relationship creating a duty to exercise care for the benefit of plaintiff, liability may not be imposed upon the City for its employees’ failure to record the identity of the vehicle that struck her or its operator as required by the Vehicle and Traffic Law (see Worth Distribs. v Latham, 59 NY2d 231 , 237 [1983]; Gandler v City of New York, 57 AD3d 324 , 324-325 [1st Dept 2008]).[1]
In addition, the complaint also fails to set forth a claim against the City of New York under 42 USC § 1983 , because it
* We find Cunningham v City of New York ( 28 Misc 3d 84 [App Term, 1st Dept 2010]) unpersuasive and decline to follow it.
Finally, since it is undisputed that the officers were acting within the scope of their employment when they failed to record the information regarding the vehicle that struck her and its operator, the claim of negligent hiring, training and supervision must fail (see Leftenant v City of New York, 70 AD3d 596 , 597 [1st Dept 2010]). Concur — Tom, J.P., Renwick, Andrias, Richter and Gische, JJ. [Prior Case History: 2013 NY Slip Op 30774 (U).]
Cases cited
- Applewhite v. Accuhealth, Inc. 21 NY3d 420 p. 540
- McLean v. City of New York 12 NY3d 194 at 200 p. 540
- Metz v. State 20 NY3d 175 at 179-181 p. 540
- Ortega v. City of New York 9 NY3d 69 at 82-83 p. 540
- Albino v. New York City Housing Authority 78 AD3d 485 at 488-489 p. 540
- Worth Distributors, Inc. v. Latham 59 NY2d 231 at 237 p. 540
- Gandler v. City of New York 57 AD3d 324 at 324-325 p. 540
- 315-321 Realty Co. v. City of New York 33 AD3d 509 at 509-510 p. 541
- In re Sternberg 80 NY2d 892 p. 541
- Leftenant v. City of New York 70 AD3d 596 at 597 p. 541