Moore-Mohammed v City of New York, 2012 NY Slip Op 08664 [101 AD3d 519]

December 13, 2012

Appellate Division, First Department

— [*1]

The Taub Law Firm, P.C., New York (Matthew A. Taub of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Mordecai Newman of counsel), for respondents.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 20, 2011, which, in this negligence action arising from a 911 call, to the extent appealed from as limited by the briefs, granted defendants’ cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants made a prima facie showing of the lack of a special relationship between plaintiff’s decedent and defendants by submitting evidence that they did not give the decedent any assurance or direction that would justify any reliance on decedent’s part ( Dinardo v City of New York , 13 NY3d 872 , 874-875 [2009]; Diliberti v City of New York , 49 AD3d 424 [1st Dept 2008]).

In opposition, plaintiff failed to raise a triable issue of fact. Indeed, plaintiff failed to submit any evidence of an assumption by defendants, through promises or actions, of an affirmative duty to act on behalf of the decedent ( compare Diliberti , 49 AD3d at 424, with De Long v County of Erie , 60 NY2d 296, 305 [1983], and Applewhite v Accuhealth, Inc. , 90 AD3d 501 , 504-505 [1st Dept 2011]). Concur—Tom, J.P., Sweeny, Moskowitz, Renwick and Clark, JJ..