Burnett v. City of New York (2025)

Case details
Full caption
Burnett v. The City of New York
Country
United States
Jurisdiction
New York (NY)
Court
New York Court of Appeals
Decided
2025
Disposition
Motion Granted
Panel
Hon; Goetz (Justice)
Burnett v. The City of New York, 2025 WL 3780566 (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3780566 (N.Y.Sup.), 2025 N.Y. Slip Op. 35046(U) (Trial Order)Supreme Court of New York.New York County**1 Perry BURNETT, Plaintiff,v.THE CITY OF NEW YORK, The New York City Department of HomelessServices, The Department of Social Services, New York City Departmentof Parks & Recreation, Clark Thomas, Men's Shelter, Defendants.No. 160676/2023.December 31, 2025.*1 Part 47Motion Date 09/12/2025Motion Seq. No. 001Editor's Note: This decision contains discussion of citation references that are incorrect or do notactually exist. These invalid citations appeared in the original court opinion and have been preserved aswritten since they are part of the official record. Any links to these invalid citations have been removed.Decision + Order on MotionPresent: Hon. Paul A. Goetz, Justice.The following e-filed documents, listed by NYSCEF document number (Motion 001) 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36,37, 38, 39, 41, 42, 43, 44, 45 were read on this motion to/for JUDGMENT - SUMMARY.Upon the foregoing documents, it isIn this action, plaintiff Perry Burnett, a resident at the Clark Thomas Men's Shelter alleges that he was denied access to hisinsulin medication by staff at the shelter resulting in him losing consciousness and falling into a diabetic seizure which requiredhospitalization. Plaintiff asserts a cause of action for negligence as against all defendants. Defendants move, pursuant to CPLR§ 3212, for summary judgment dismissing the complaint.DISCUSSIONSummary Judgment StandardIt is well settled that ‘the proponent of a summary judgment motion must make a prima facie showing of entitlement tojudgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact’ ” (Pullmanv Silverman, 28 NY3d 1060, 1062 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). “Failure to make **2such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]). “Once such a prima facie showing has been made, the burden shifts to the party opposingthe motion to produce evidentiary proof in admissible form sufficient to raise material issues of fact which require a trial of theaction” (Cabrera v Rodriguez, 72 AD3d 553, 553-54 [1st Dept 2010]).
Burnett v. The City of New York, 2025 WL 3780566 (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2“The court's function on a motion for summary judgment is merely to determine if any triable issues exist, not to determine themerits of any such issues or to assess credibility” (Meridian Mgt. Corp. v Cristi Cleaning Serv. Corp., 70 AD3d 508, 510-11[1st Dept 2010] [internal citations omitted]). The evidence presented in a summary judgment motion must be examined “in thelight most favorable to the non-moving party” (Schmidt v One New York Plaza Co. LLC, 153 AD3d 427, 428 [2017], quotingOrtiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]) and bare allegations or conclusory assertions are insufficient to creategenuine issues of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). If there is any doubt as to the existence of atriable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]).Defendants Duty“The elements of negligence are (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximatelyresulting therefrom” (Abbott v Johnson, 152 AD3d 730, 732 [2d Dept 2017]). “The existence and scope of a duty of care is aquestion of law for the courts entailing the consideration of relevant policy factors” (id.). Defendants argue that they owed noduty to plaintiff because non-party, Help USA, an independent contractor, was responsible for all medical services provided bythe shelter. Further, they argue that as a municipality, providing governmental services they can only be held liable if a special**3 relationship existed between them and plaintiff, which did not exist here. Plaintiff argues that the defendants owed him anon-delegable duty to ensure that medical services were provided with reasonable care.*2 While plaintiff cites Brunero v City of New York Dept. of Parks and Recreation, to support its argument that a municipalityremains liable for the acts of a contractor who performed its duties negligently (121 AD3d 624 [1st Dept 2014]), that caseconcerned the non-delegable duty of a property owner to maintain its property in a reasonably safe condition (see Daly v 9 E.36th LLC, 153 AD3d 1145 [1st Dept 2017]). In contrast, here plaintiff does not allege that the property itself was not maintainedsafely, but rather that an employee of non-party, independent contractor Help USA, negligently withheld his medication. Plaintifffails to cite any support that the provision of medical services is a non-delegable duty which would hold defendants liable forthe negligence of their independent contractor. Furthermore, while plaintiff cites a case titled Backus v. City of Rochester, (148AD3d 1697 [4th Dept 2017]) to support his argument that a municipality can be held liable for a contractor who negligentlyperforms medical services, the court is unable to locate this case in any legal databases.Additionally, defendants argue that they cannot be held liable because “a municipality cannot be held liable for negligence inperforming a governmental function unless a special relationship exists between the municipality and the injured party” (Santorov City of New York, 17 AD3d 563, 564 [2d Dept 2005]). Here it is well settled that the operation of a homeless shelter implicatesa governmental function, and “liability for the performance of which is barred absent the breach of a special duty owed to theinjured party” (Clark v City of New York, 130 AD3d 964, 964 [2d Dept 2015]; see also **4 Maldonado v Young and BoobyRealty Corp., 223 AD3d 435 [1st Dept 2024] [“the provision of temporary housing for homeless families is a governmentalfunction mandated by the state constitution for the benefit of the general public”]).In order to establish the existence of this special duty, plaintiff must show:“(1) an assumption by the [governmental entity], through promises or actions, of an affirmative duty to act on behalf of theparty who was injured; (2) knowledge on the part of the [entity]'s agents that inaction could lead to harm; (3) some formof direct contact between the [entity]'s agents and the injured party; and (4) that party's justifiable reliance on the [entity]'saffirmative undertaking(Feeney v County of Delaware, 150 AD3d 1355, 1357 [3d Dept 2017]).Plaintiff argues that defendants assumed a special duty, by the non-party contractor allegedly failing to provide plaintiff withhis insulin medication prior to his medical incidents. However, as stated above, defendants did not assume this duty as medicalservices were provided solely by the non-party Help USA. Plaintiff has failed to provide any evidence of the assumption of a
Burnett v. The City of New York, 2025 WL 3780566 (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3duty by defendants, that the defendants were aware of his condition, nor that there was any contact between defendants' agentsand plaintiff. Therefore, defendants cannot be held liable for plaintiff's injuries and the complaint will be dismissed.Accordingly it is,ORDERED that the motion to dismiss is granted; and it is furtherORDERED that the Clerk is directed to enter judgment in favor of defendants and as against plaintiff, with costs anddisbursements to defendants; and it is furtherORDERED that the counsel for plaintiff is directed to show cause on January 22, 2026 at **5 2:15 p.m. why he should notbe sanctioned for citing a nonexistent case.12/31/2025DATE<<signature>>PAUL A. GOETZ, J.S.C.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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