author: Pigott, J. Smith, J. (concurring).

text:
    [994 NE2d 820, 971 NYS2d 729]
    The People of the State of New York, Respondent, v Jay J. Barboni, Appellant.
    Argued April 25, 2013;
    decided June 11, 2013

      POINTS OF COUNSEL

      Davison Law Office PLLC, Canandaigua (Mary P Davison of counsel), for appellant.
    I. The conviction of murder in the second degree was not based on legally sufficient evidence that Jay J. Barboni acted with depraved indifference to human life. (People v Danielson, 9 NY3d 342; People v Poplis, 30 NY2d 85; People v Register, 60 NY2d 270; People v Gonzalez, 1 NY3d 464; People Payne, 3 NY3d 266; People v Suarez, 6 NY3d 202; People v Feingold, 7 NY3d 288; People v Matos, 19 NY3d 470; People v Lewie, 17 NY3d 348; People v Bussey, 19 NY3d 231.) II. The conviction of manslaughter in the first degree was not based on legally sufficient evidence that Mr. Barboni acted with intent to cause physical injury. (People v Hayes, 163 AD2d 165, 78 NY2d 876; People v Lilly, 71 AD2d 393; People v Maddox, 31 AD3d 970, 7 NY3d 868; People v McLain, 80 AD3d 992, 16 NY3d 897; People v Heslop, 48 AD3d 190; People v Varmette, 70 AD3d 1167, 14 NY3d 845; People v Manos, 73 AD3d 1333, 15 NY3d 807; People

      v Griffin, 48 AD3d 1233, 10 NY3d 840; People v Bowman, 48 AD3d 178, 10 NY3d 808; People v Jeffries, 56 AD3d 1166, 12 NY3d 759.) III. Mr. Barboni was denied his right to a fair trial under the Federal and State Constitutions, based on his attorney’s failure to request removal of a juror who stated that he was biased in favor of police witnesses. (.People v Rodriguez, 71 NY2d 214; People v Buford, 69 NY2d 290; Morgan v Rlinois, 504 US 719; People v Blyden, 55 NY2d 73; People v Biondo, 41 NY2d 483, 434 US 928; People v Butler, 221 AD2d 918; People v Johnson, 17 NY3d 752; United States v Cronic, 466 US 648; People v Claudio, 83 NY2d 76; People v Benevento, 91 NY2d 708.) IV The trial court erred in denying suppression of physical evidence seized in violation of Mr. Barboni’s right to counsel. (People v Yukl, 25 NY2d 585; People v Lopez, 16 NY3d 375; People v West, 81 NY2d 370; People v Carranza, 3 NY3d 729; People v Rogers, 48 NY2d 167; People v Claudio, 83 NY2d 76; People v Burdo, 91 NY2d 146; Montejo v Louisiana, 556 US 778; Hurrell-Harring v State of New York, 15 NY3d 8; United States v Gonzalez-Lopez, 548 US 140.)

      Gregory S. Oakes, District Attorney, Oswego, for respondent.
    I. This Court should affirm the conviction for murder in the second degree since the jury heard legally sufficient evidence to support every element of the offense, including that defendant acted with the culpable mental state of depraved indifference. (People v Danielson, 9 NY3d 342; People v Contes, 60 NY2d 620; People v Hafeez, 100 NY2d 253; People v Maddox, 31 AD3d 970, 7 NY3d 868; People v Gallagher, 69 NY2d 525; People v Payne, 3 NY3d 266; People v Suarez, 6 NY3d 202; People v Baker, 14 NY3d 266; People v Trappier, 87 NY2d 55; People v Griffin, 48 AD3d 1233, 10 NY3d 840.) II. This Court should affirm the conviction for manslaughter in the first degree since the jury heard legally sufficient evidence that defendant intended to cause injury to the victim. (People v Baker, 14 NY3d 266; People v Bueno, 18 NY3d 160; People v Steinberg, 79 NY2d 673; People v Hayes, 163 AD2d 165; People v Hines, 97 NY2d 56, 678; People v Williams, 84 NY2d 925; People v Stokes, 28 AD3d 1094, 7 NY3d 795, 7 NY3d 870; People v McLain, 80 AD3d 992.) III. Trial counsel’s strategic decision to keep prospective juror Randall did not constitute ineffective assistance of counsel or deny defendant his right to a fair trial. (People v Thomas, 244 AD2d 271, 91 NY2d 898; People v Baldi, 54 NY2d 137; People v Rivera, 71 NY2d 705; People v Martin, 79 AD3d 1793, 16 NY3d 861; People v Colon, 90 NY2d 824; People v Montana, 71 NY2d 705; People v Evans, 232 AD2d 170, 89 NY2d 863; People v Vilfort, 33

      AD3d 368, 7 NY3d 929; People v Rivera, 45 AD3d 1249, 10 NY3d 770; People v Ostas, 179 AD2d 893, 80 NY2d 932.) IV The trial court properly denied defendant’s motion to suppress physical evidence based upon the grounds presented by trial counsel. Further, this Court should deny defendant’s request to suppress physical evidence because (i) there is no constitutional right to effective representation during the pre-accusatory state of an investigation, (ii) defendant received meaningful representation, and (iii) suppression of physical evidence is not the appropriate remedy to address ineffective assistance of counsel. (People v Farrell, 42 AD3d 954; People v Beam, 57 NY2d 241; People v Claudio, 83 NY2d 76; People v Burdo, 91 NY2d 146; Mickens v Taylor, 535 US 162; United States v Gonzalez-Lopez, 548 US 140; Kansas v Ventris, 556 US 586; People v Rivera, 71 NY2d 705; People v Martin, 79 AD3d 1793; People v Guilford, 96 AD3d 1375.)
   OPINION OF THE COURT

Pigott, J.

On this appeal, we are called upon to address the impact of this Court’s recent jurisprudence concerning depraved indifference to human life, where defendant is accused of repeatedly striking a victim less than 11 years old and failing to summon medical assistance before the child dies. In this case we hold that there was sufficient evidence to convict defendant of depraved indifference murder as well as first-degree manslaughter. We also conclude that County Court committed no reversible error and that defendant’s right to effective assistance of counsel was not violated.

I.

The facts pertinent to this appeal are as follows. Shortly after 8 p.m. on August 18, 2008, the mother of a 15-month-old boy received a telephone call from her boyfriend, defendant Barboni. Barboni, who had been alone with the child since around 4:45 p.m., told her, in what was described as a calm tone of voice, that she needed to come home because the child was not breathing. The mother rushed home to find her son in his crib, badly bruised, and unconscious. Defendant denied knowing what had happened. The child was pronounced dead at a nearby hospital shortly thereafter.

Defendant was interviewed that night at the police station. He had no explanation for the child’s death, and could not account for reddish stains that the police observed on his clothing. At approximately 1:20 a.m., an attorney called the police station, and questioning stopped. The attorney spoke with defendant, and then with the investigator, who asked for defendant’s clothes. Both the attorney and defendant consented, and the clothing was then subjected to forensic analysis.

Defendant was arrested and charged with murder in the second degree (Penal Law § 125.25 [4]) and manslaughter in the first and second degrees (Penal Law §§ 125.20 [4]; 125.15 [1]). As part of his omnibus motion, submitted by new defense counsel, defendant sought suppression of the clothing taken from him at the station house, arguing that the seizure violated his right to counsel. Following a hearing, County Court denied the motion, reasoning that the police legitimately concluded that defendant was acting on the advice of counsel when he consented to the seizure of his clothing. Defendant then proceeded to a jury trial in County Court.

II.

During voir dire, one prospective juror indicated that he was unsure whether he would apply a different, more favorable standard with respect to the credibility of testimony by police officers when it directly conflicted with civilian testimony. Neither the prosecution nor the defense challenged this prospective juror for cause. When County Court asked the attorneys to state their peremptory challenges, defense counsel displayed a moment’s uncertainty concerning whether this prospective juror had already been challenged. Informed that he was still unchallenged, counsel said, “Then we are fine ... we are going to keep him. I’m sorry, I got my people mixed up.” County Court reminded counsel that the prospective juror was the one who “was unsure.” “I know that,” counsel responded, “I wanted to keep him. I just confused myself.” The prospective juror was seated and served throughout the trial.

At trial, the jury heard evidence from three police officers regarding their questioning of defendant and his inability to explain the stains on his clothing. Forensic scientists testified that the stains on defendant’s clothing were positive for blood, and that the blood matched the child’s DNA.

The jury heard extensive testimony concerning the autopsy. A medical examiner testified that the child had approximately 25 “fresh” injuries, including two “clusters” of injuries to the face. The child had suffered four distinct skull fractures. The examiner opined that the child’s injuries had been caused by “blunt force trauma,” involving a minimum of “five strikes” or “impacts.”

An ocular pathologist, who had examined the child’s eyes during a postmortem examination, testified that his eye injuries were consistent with “vigorous shaking with or without impact.” Significantly, a neuropathologist, who had examined the child’s brain and spinal cord, opined that he had survived for approximately two hours following onset of the trauma.

The defense called a pediatrician, who was unable to give a precise time as to when the injuries had occurred, but testified that a neuropathologist would be in a better position to do so. The pediatrician opined that signs of the child’s extensive bruising would have been recognizable “[w]ithin a half hour” of the traumatic injury, and that he would have been in a substantial amount of pain and probably crying, screaming, or else “lethargic.”

Finally, an anatomic pathologist was called by the defense. He opined that the interval between the child’s injuries and death was at least two hours; like the pediatrician, he testified that a neuropathologist would be in a better position to give an estimate.

Defendant moved, unsuccessfully, for a trial order of dismissal on all counts. With respect to depraved indifference murder, defense counsel claimed that the People were obliged, but had failed, to prove “that the child was . . . likely to die or that the attack was prolonged.” He also argued that, if there was sufficient evidence of any type of murder, it could not be depraved indifference murder, because defendant’s conduct was “in essence, intentional, not reckless.”

Following deliberations, the jury found defendant guilty of one count each of murder in the second degree (Penal Law § 125.25 [4] [depraved indifference murder of a child]) and manslaughter in the first degree (Penal Law § 125.20 [4] [intent to cause child physical injury; recklessly causes child’s death]).

III.

Defendant appealed the judgment of conviction, alleging insufficiency of the evidence on both counts, ineffective assistance of counsel, and error as to the suppression motion. The Appellate Division affirmed, holding that the evidence was legally sufficient to establish the mens rea elements necessary for depraved indifference murder, noting that “the child’s suffering yielded an apathetic response from defendant,” who “did not seek medical assistance for him” (90 AD3d 1548, 1549 [4th Dept 2011]). It also ruled that there was legally sufficient evidence to support the first-degree manslaughter conviction. As to the claimed ineffective assistance of trial counsel, the Court held that defendant had failed to establish the absence of a legitimate explanation for defense counsel’s alleged error during jury selection. Finally, as to suppression of defendant’s clothing, the Court determined that there was no error, because defendant and his then attorney had consented to the seizure. Moreover, defendant had not been denied effective assistance of counsel during his questioning by the police.

A Judge of this Court granted defendant leave to appeal. We now affirm.

IV

A person is guilty of depraved indifference murder of a child, under Penal Law § 125.25 (4), when “[u]nder circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person.” Defendant argues that the evidence was legally insufficient to establish circumstances evincing a depraved indifference to human life or that he recklessly engaged in conduct that created a grave risk of death or serious physical injury to the child.

This appeal is governed by the requirement that, in proving the existence of “circumstances evincing a depraved indifference to human life,” the People must show that, at the time the crime occurred, defendant had a mens rea of “utter disregard for the value of human life” (People v Feingold, 7 NY3d 288, 296 [2006], quoting People v Suarez, 6 NY3d 202, 214 [2005]). Put simply, the People must prove that defendant did not care whether his victim lived or died (see People v Matos, 19 NY3d 470, 476 [2012]; People v Lewie, 17 NY3d 348, 360 [2011]; Feingold, 7 NY3d at 296). Additionally, the People must prove a second mens rea, namely recklessness. Under Penal Law § 125.25 (4), this element is recklessness as to a grave risk of serious physical injury or death.

In two recent cases, which, like this one, involved a very young victim, this Court held that the evidence was insufficient to prove the mens rea of wanton indifference. The first of those cases was People v Lewie, where we vacated a conviction for reckless endangerment in the first degree (Penal Law § 120.25), which contains the same two mens rea elements as depraved indifference murder. Lewie persistently left her eight-month-old son alone with her boyfriend, whom she knew to be violent and cruel, and the man inflicted numerous injuries on the child, finally causing a brain injury that led to his death. We reasoned that the evidence was insufficient to support the conclusion that Lewie “did not care at all” about her child’s safety (Lewie, 17 NY3d at 359).

“On the contrary, the evidence shows that defendant feared the worst and . . . hoped for the best. A witness . . . testified that defendant seemed ‘worried,’ and no witness’s testimony points to a contrary finding. . . . [Defendant’s] statement that she ‘was scared’ and ‘never knew what she was going to go home to’ shows that she was fearful of harm to her baby, not that she was indifferent to the possibility” (id.).

Then, in People v Matos (19 NY3d 470 [2012]), this Court dismissed a depraved indifference murder count against a woman whose intimate partner severely beat her 23-month-old son, resulting in his death. The Court held that “the People failed to prove that [the mother] did not care whether her son lived or died” (19 NY3d at 476), given the evidence that she splinted her son’s leg, gave him anti-inflammatory medication, exhibited other measures to comfort him, and, when she found him bleeding and unresponsive, called 911 for help.

Defendant concedes that his case is factually distinct from Lewie and Matos in that his indictment required the jury to find that he was the actor who had inflicted the injuries that resulted in the child’s death. But this difference, he argues, should not alter the analysis; the evidence was insufficient to establish the mens rea of depraved indifference in his case, just as it was lacking in Lewie and Matos. We disagree.

Here, viewing the evidence in the light most favorable to the People, as we must, the jury heard testimony—including medical and forensic proof—that defendant inflicted injuries on a 15-month-old child by striking or shaking the child so brutally as to cause four distinct skull fractures. The nature of defendant’s assault on the child rendered his course of conduct more clearly depraved than had he only suspected that a third party had injured the child. Knowing the brutal origin of the injuries and the force with which they were inflicted makes it much less likely that defendant was holding out hope, as Lewie and Matos perhaps were, that the child’s symptoms were merely signs of a trivial injury or illness. Thus, contrary to defendant’s contention, it is significant that defendant was the actor who had inflicted the injuries in the first place.

Defendant also argues that the People did not prove that his state of mind at the time that the child was injured was one of depraved indifference to human life. He argues that it is, for example, consistent with the evidence presented that he experienced a fit of rage in which he repeatedly struck the child. In such a scenario, his state of mind might better be described as blind anger, rather than wanton indifference. However, the charge of depraved indifference murder here is comprised of more than the physical assault on the child; it also encompasses defendant’s inaction for the two hours that elapsed between the injuries and death. In light of the child’s vulnerability and utter dependence on a caregiver, defendant’s post-assault failure to treat the child or report his obvious injuries must be considered in assessing whether depraved indifference was shown. The People demonstrated that defendant, at the very least, left the child unattended for two hours, either disregarding, or not bothering to look for, obvious, perceptible signs that the child was seriously injured. Given defendant’s knowledge of how the injuries were inflicted and his failure to seek immediate medical attention, either directly or via consultation with his girlfriend, until it was too late, there was sufficient evidence for a jury to conclude that defendant evinced a wanton and uncaring state of mind. His dispassionate voice on the telephone, reporting that the child was not breathing, is further, albeit circumstantial, evidence of this callous indifference to the child’s life.

Defendant further contends that insufficient evidence was presented to support the prosecution’s theory that he “engaged in a brutal and prolonged and ultimately fatal course of conduct” against the child. He contrasts his own actions with those underlying People v Best (85 NY2d 826 [1995] [defendant repeatedly beat her nine-year-old son, inflicting large open wounds through which bacteria entered, eventually causing his death]) and People v Poplis (30 NY2d 85 [1972] [defendant caused the death of a SVs-year-old child by repeatedly beating her over a course of several days]). Defendant points out that the evidence presented in this case, in contrast to those, is consistent with an attack that was of short duration.

The language of the prosecution theory originates in this Court’s decision in Suarez (6 NY3d at 212). There, the Court set out the “few rare circumstances” in which a defendant may be convicted of depraved indifference murder based on conduct that endangers only one person. The Court outlined two recurring fact patterns—“abandoning] a helpless and vulnerable victim in circumstances where the victim is highly likely to die” and “engaging] in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim” (id. at 212). However, the Court, in noting the existence of “other extraordinary cases” (id. at 213), accepted that these fact patterns did not constitute an exhaustive list of situations in which a defendant may properly be convicted of depraved indifference murder based on a one-on-one killing. The standard is whether the People have shown that defendant’s state of mind was one of utter disregard for the value of human life. Here, the People met this standard because the horrific nature of defendant’s assault of the child was clearly intended to be encompassed within the depraved indifference murder of a child statute, and the jury could properly find defendant guilty of that crime even if the murderous acts did not occur over an extended duration.

A brutal course of conduct against a vulnerable victim occurring over a prolonged or extended period of time is more likely to be associated with the mental state of depraved indifference to human life than brutality that is short in duration and is not repeated. This is because the actor had the opportunity to regret his actions and display caring, but failed to take the opportunity. In the present case, defendant argues that his course of conduct against the child was not prolonged. But defendant’s argument focuses exclusively on the duration of his physical assault on the child, which may have been brief. However, this argument ignores the evidence that, by his later inaction—his failure, over some two hours, to seek medical attention for the child—defendant turned a brutal assault into a brutal and prolonged course of conduct against a vulnerable victim. There is no requirement in our case law that a violent course of conduct must occur over days or months, in order to be “prolonged.”

We conclude that, viewing the facts in a light most favorable to the People, a rational jury could have found beyond a reasonable doubt that defendant’s state of mind was one of utter indifference to the value of human life.

V.

Defendant’s final challenge specific to his murder conviction is that the evidence was insufficient to prove the second mens rea element of depraved indifference murder of a child: recklessness as to a grave risk of serious physical injury or death. Defendant argues that the evidence, such as the multiple skull fractures inflicted on the child, is consistent only with the conclusion that the person who inflicted the child’s injuries “acted intentionally,” and therefore a conviction of depraved indifference murder cannot stand. We disagree.

It may be true that the evidence presented to the jury leads inexorably to the conclusion that the perpetrator acted voluntarily in his course of conduct against the child. However, it does not show that he intended to cause death or serious physical injury, in the sense of having that as a conscious objective or purpose. Defendant did not use a weapon, nor was there any evidence that defendant tried to smother the child—acts that of themselves tend to imply intent to cause death or serious physical injury. The extensive injuries suffered by the child are explicable in light of his tender age and do not in themselves require the conclusion that the perpetrator intended to cause serious physical injury or death. The present case is therefore clearly distinguishable from those in which the Court has had occasion to note that “a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder” (Suarez, 6 NY3d at 211-212, quoting People v Payne, 3 NY3d 266, 272 [2004]).

In short, there was no evidence that would have compelled the jury to infer that defendant’s state of mind was one of intent rather than recklessness with respect to the risk of the child’s death or serious physical injury. By contrast, the jury could have rationally found beyond a reasonable doubt that defendant consciously disregarded the substantial and unjustifiable risk that death or serious physical injury would result, in a manner that constituted a gross deviation from the standard of conduct that a reasonable person would have observed (see Penal Law § 15.05 [3] [definition of “recklessly”]).

VI.

Defendant next argues that the evidence was legally insufficient to prove beyond a reasonable doubt that he had the requisite mens rea of “intent to cause physical injury to a person less than eleven years old,” required for conviction of manslaughter in the first degree (Penal Law § 125.20 [4]).

“A jury is entitled to infer that a defendant intended the natural and probable consequences of his acts. The element of intent is rarely proved by an explicit expression of culpability by the perpetrator; and competing inferences to be drawn regarding the defendant’s intent, if not unreasonable, are within the exclusive domain of the finders of fact, not to be disturbed” by the Court of Appeals (People v Bueno, 18 NY3d 160, 169 [2011] [internal quotation marks, citations, and brackets omitted]). Here, the jury could have rationally inferred that defendant intended to injure the child, because physical injury is the probable consequence of inflicting “blunt force trauma” on a young child. Consequently, the evidence of first-degree manslaughter was sufficient.

VII.

Procedurally, defendant contends that the failure of his trial attorneys to challenge the prospective juror who was unsure whether he would give more weight to a police officer’s testimony amounted to ineffective assistance of counsel. He relies on People v Turner (5 NY3d 476 [2005]), and claims that trial counsel, though otherwise competent, committed “a single failing” that was “so egregious and prejudicial as to deprive [him] of his constitutional right” to the effective assistance of counsel (Turner, 5 NY3d at 480 [internal quotation marks omitted]; see also e.g. People v Brown, 17 NY3d 742, 743-744 [2011]).

It is well settled that “[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel’s failure .... Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment” (People v Rivera, 71 NY2d 705, 709 [1988]). The burden is on the defendant to show that there was no legitimate explanation for defense counsel’s alleged error. We must decide whether, “[v]iewed objectively, the transcript and the submissions reveal the existence of a trial strategy that might well have been pursued by a reasonably competent attorney” (People v Satterfield, 66 NY2d 796, 799 [1985]).

Defendant points to the fact that defense counsel said on the record that she was “mixed up” and “confused” about whether a prospective juror had been challenged, and he suggests that her failure to challenge therefore cannot have been a matter of strategy. However, the record shows that counsel was only fleetingly confused, in that she thought for a moment that the prospective juror had already been removed, and then quickly regained herself. Counsel then recalled that the prospective juror was one she wished to keep, even though she knew that he had said he was unsure whether he would apply a different standard for judging the credibility of a police officer’s testimony, if it conflicted with civilian testimony.

Defendant also argues that there cannot be a legitimate explanation for failing to challenge a prospective juror who is not sure whether he would apply a different standard for the credibility of police officers. We disagree. A defense counsel may legitimately decide not to challenge a prospective juror in such circumstances because the prospective juror is attractive to the defense in other respects, which outweigh his or her willingness to attach more credibility to police officers’ testimony when it directly contradicts civilian testimony. This is particularly likely in a case, such as this one, where there was no expectation of a conflict between the police officers’ and civilians’ testimony, such that defense counsel would seek to undermine police testimony. “The record does not reveal on what basis counsel might have concluded that” the prospective juror was a “desirable juror[ ] for the defense, and that further inquiry was unnecessary. In particular, counsel may have been influenced by the[ ] juror[’s] demeanor, which is not reflected in the record” (People v Vilfort, 33 AD3d 368, 369 [1st Dept 2006]). Demeanor may include such entirely nonverbal cues as eye contact and posture. In addition, trial counsel may have considered the prospective juror to be beneficial to the defense on the basis of his jury questionnaire. Importantly, the record does not show a substantial risk that the prospective juror would not properly discharge his responsibilities, nor does it cast doubt on his ability to be fair. In sum, defendant’s ineffective assistance argument fails because he does not meet his burden of showing the absence of a legitimate explanation for the perceived error.

VIII.

Finally, defendant argues that County Court erred in denying his motion to suppress the clothing that was seized from him. He frames the argument in terms of ineffective assistance of counsel; County Court, he says, should have granted the motion on the basis that the attorney who consented to the seizure of defendant’s clothing was ineffective. Defendant acknowledges our holding in People v Claudio (83 NY2d 76 [1993]) that, “except in most unusual circumstances . . . the State is not charged with the responsibility of guaranteeing effective legal representation upon the entry of counsel at the preaccusatory, investigatory stage of a criminal matter, i.e., before the commencement of formal adversarial judicial criminal proceedings” (id. at 78), but urges us to overrule Claudio.

The present case does not require us to decide whether Claudio is still good law, because we agree with the Appellate Division that “[e]ven assuming arguendo, that the right to effective assistance of counsel attached prior to the seizure of the physical evidence in question and that suppression is the appropriate remedy where a seizure arises from ineffective assistance of counsel,” defendant “failed to demonstrate the absence of a strategic explanation for that attorney’s alleged shortcomings” (90 AD3d at 1550, quoting People v Carncross, 14 NY3d 319, 331 [2010] [ellipsis and brackets omitted]).

IX.

Accordingly, the order of the Appellate Division should be affirmed.

Smith, J. (concurring).

I concur in the result the majority reaches, but not in its reasoning. I do not think this case fits with our depraved indifference jurisprudence as it has developed over the last decade. Rather, I think that a case like this—a severe beating that killed an infant—is a justified, narrow exception to the rule established by our recent cases that a depraved indifference murder conviction cannot be sustained unless a jury could find, beyond a reasonable doubt, that the defendant was literally indifferent to whether the victim lived or died.

This is the first case since People v Sanchez (98 NY2d 373 [2002]) in which we have found the evidence sufficient to support a jury finding of depraved indifference to human life. In the interim, we have found insufficient evidence of depraved indifference in 17 cases, and have overruled Sanchez and People v Register (60 NY2d 270 [1983]) (see People v Feingold, 7 NY3d 288, 295-296 [2006]). We have decided in three recent cases that neither a brutal, fatal assault (People v Bussey, 19 NY3d 231 [2012]) nor a reckless failure to protect or get help for an abused child (People v Lewie, 17 NY3d 348 [2011]; People v Matos, 19 NY3d 470 [2012]) is proof of depraved indifference.

This case is different from those three because in Bussey the victim was an adult, and in Lewie and Matos the defendants were not the people who physically abused the children. I agree with the majority that these differences justify a difference in result. While Bussey, Lewie and Matos were guilty of “shocking behavior [which] in ordinary speech people might call . . . ‘depraved’ ” (Lewie, 17 NY3d at 359), the depravity in a crime like this is of a different order. An assault against a young child is immeasurably worse than an assault against an adult, both because the child is so much more vulnerable and because the child could have done nothing to provoke the offense. And the offender who actually beats the child commits a much worse offense than one who only fails to prevent the beating or to forestall its consequences. If ever there was conduct

“so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another”

(People v Suarez, 6 NY3d 202, 211 [2005], quoting earlier cases), the conduct of this defendant is it.

Still, there is a problem. Under our recent cases, the depraved indifference statutes are not an invitation for juries and judges to make moral judgments about how bad the conduct was in each particular case. We have insisted on a narrow, literal reading of “depraved indifference”:

“Our cases make clear that the word ‘indifference’ is to be taken literally: ‘depraved indifference is best understood as an utter disregard for the value of human life—a willingness to act . . . because one simply doesn’t care whether grievous harm results or not’ ” (Lewie, 17 NY3d at 359, quoting earlier cases).

I find it hard to see how this defendant was any more indifferent to whether the victim lived or died than the defendant in Bussey was. Bussey establishes that we would not uphold a depraved indifference murder conviction on facts like the ones before us if the victim were an adult; yet the age of the victim hardly seems relevant to the question of whether the defendant was indifferent to the victim’s fate. As the majority opinion shows, the strongest evidence of indifference in this case is in defendant’s callous behavior in the hours between the assault and the child’s death. But Matos establishes that we would not uphold the depraved indifference murder conviction of a defendant who reacted with equal callousness to child abuse that someone else had committed. I disagree with the heavy emphasis that the majority puts on defendant’s post-assault behavior (cf. Suarez, 6 NY3d at 210 [depraved indifference should be decided “irrespective of what the actor does or does not do after inflicting the fatal injury”]). I think the evidence on that subject was relevant here, but I also think there was sufficient evidence without it to sustain the conviction. I would say that anyone who beats a baby to death in the way that this defendant did could be found to be a murderer, even if the assault was immediately followed by tears of remorse.

I conclude that the extraordinary evil of this kind of crime— severe, fatal abuse of a young child—warrants an exception to the rule of Lewie that “the word ‘indifference’ is to be taken literally.” I am fortified in this conclusion by the legislature’s recognition in the text of the murder statute that child abuse is in a class by itself. The broader depraved indifference murder statute, Penal Law § 125.25 (2), applies to a person who “[u]nder circumstances evincing a depraved indifference to human life . . . recklessly engages in conduct which creates a grave risk of death to another person.” But this defendant was prosecuted under Penal Law § 125.25 (4), applicable to one who “[u]nder circumstances evincing a depraved indifference to human life, and being eighteen years old or more . . . recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old” (emphasis added). Thus the legislature clearly intended to make child abusers punishable for murder when their victims died, even where the risk that they recklessly created was a risk of something less than death; the idea that “depraved indifference” can only exist when a defendant does not care whether the victim lives or dies seems incompatible with that intention.

I also find support for the application of the statute to this case in our decision in Suarez. There, we said that “[t]wo fact patterns have recurred” under the depraved indifference murder statute (6 NY3d at 212). One of those consists of defendants who engage “in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim” (id.). Defendant argues here that his case does not fit this category because his brutality was not “prolonged,” but the argument misses the point; the Suarez categories are not the only possible kinds of depraved indifference murder. More relevant is Suarez’s recognition that maltreatment of a “particularly vulnerable victim” is an important factor in deciding whether the statute applies. Logically, the vulnerability of the victim may not justify an inference that the perpetrator was literally indifferent between life and death; but the moral enormity of a crime against such a victim does justify a less literal reading of the statute in this narrow class of cases.

Chief Judge Lippman and Judges Graffeo, Read and Rivera concur with Judge Pigott; Judge Smith concurs in result in an opinion; Judge Abdus-Salaam taking no part.

Order affirmed.

      . The Court’s pronouncements concerning rare fact patterns occurred in the context of the evolution towards Feingold; they were well suited to warning prosecutors—accustomed to thinking that “circumstances evincing a depraved indifference to human life” referred to “the factual setting” or “objective circumstances” in which the risk-creating conduct occurred (People v Register, 60 NY2d 270, 276, 278 [1983])—that the factual patterns underlying depraved indifference murder were unique and very rare. Now that the Court has made it clear that the depraved indifference element of depraved indifference murder is a mens rea (see Feingold), the emphasis on the two fact patterns is perhaps redundant.

      . We agree with the concurring opinion that under Suarez “maltreatment of a ‘particularly vulnerable victim’ is an important factor in deciding whether the statute applies” (concurring op at 410). But we do not agree that an exception to the mens rea requirement of Feingold and Lewie should be created for “severe, fatal abuse of a young child” (id. at 409).

        People v Hafeez, 100 NY2d 253 (2003); People v Gonzalez, 1 NY3d 464 (2004) ; People v Payne, 3 NY3d 266 (2004); People v Suarez, 6 NY3d 202 (2005) ; People v McPherson, 6 NY3d 202 (2005); People v Feingold, 7 NY3d 288 (2006); People v Atkinson, 7 NY3d 765 (2006); People v Mancini, 7 NY3d 767 (2006); People v Swinton, 7 NY3d 776 (2006); People v George, 11 NY3d 848 (2008); People v Taylor, 15 NY3d 518 (2010); People v Prindle, 16 NY3d 768 (2011); People v Lewie, 17 NY3d 348 (2011); People v Martinez, 20 NY3d 971 (2012); People v Bussey, 19 NY3d 231 (2012); People v Matos, 19 NY3d 470 (2012); People v Bell, 21 NY3d 915 (May 2, 2013).


source: Caselaw Access Project

author: Rivera, J.

license: Public Domain

text:
    [995 NE2d 123, 972 NYS2d 161]
    In the Matter of Norman E. Roth et al., Appellants, v City of Syracuse et al., Respondents. (And Other Proceedings.)
    Argued May 1, 2013;
    decided June 11, 2013

      POINTS OF COUNSEL

      Hancock Estabrook, LLP, Syracuse (Alan J. Pierce of counsel), for appellants.
    I. Petitioners established the requested reduction in value in the subject properties by the cost to cure the lead contamination at each parcel, and Supreme Court’s conclusion to the contrary is erroneous as a matter of law. (Matter of Commerce Holding Corp. v Board of Assessors of Town of Babylon, 88 NY2d 724; Criscuola v Power Auth. of State of N.Y., 81 NY2d 649; Matter of Bass v Tax Commn. of City of N.Y., 179 AD2d 387; Matter of Northville Indus. Corp. v State of New York, 14 AD3d 817; Welch Foods v Town of Westfield, 222 AD2d 1053; Matter of Alexander’s Dept. Store of Val. Stream v Board of Assessors, 227 AD2d 549; Matter of Northville Indus. Corp. v Board of Assessors of Town of Riverhead, 143 AD2d 135; Adams v Rizzo, 13 Misc 3d 1235[A], 2006 NY Slip Op 52135[U]; Juarez v Wavecrest Mgt. Team, 88 NY2d 628; Matter of New York City Coalition to End Lead, Poisoning v Vallone, 100 NY2d 337.) II. Even disregarding the lead paint contamination, petitioners established that each of the subject properties was over-assessed.

      D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando, Bradley E. Keem and Elizabeth deV. Moeller of counsel), and Mary Anne Doherty, Corporation Counsel (Shannon M. Jones of counsel) for respondents.
    I. Matter of Commerce Holding Corp. v Board of Assessors of Town of Babylon (88 NY2d 724 [1996]) does not require a reduction of the tax assessments based on “cost to cure.” (Matter of Consolidated Edison Co. of N.Y., Inc. v City of New York, 8 NY3d 591; Matter of B. Altman & Co. v City of White Plains, 57 NY2d 904; Matter of City of Syracuse Indus. Dev. Agency [Alterm, Inc.], 20 AD3d 168; Matter of Northville Indus. Corp. v State of New York, 14 AD3d 817; Matter of Bass v Tax Commn. of City of N.Y., 179 AD2d 387; Matter of Northville Indus. Corp. v Board of Assessors of Town of Riverhead, 143 AD2d 135; Matter of Atkin v Board, of Assessors of Town of Greece, 19 Misc 3d 1125[A], 2007 NY Slip Op 52552[U]; Matter of Allied Corp. v Town of Camillus, 80 NY2d 351; Adams v Rizzo, 13 Misc 3d 1235[A], 2006 NY Slip Op 52135[U].) II. The tax assessments, on the record, are not overvalued or incorrect. (Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179; Farash v Smith, 59 NY2d 952; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Commerce Holding Corp. v Board of Assessors of Town of Babylon, 88 NY2d 724; People ex rel. Claflin Co. v Feitner, 58 App Div 468; Matter of Villa Roma Country Club v Fulton, 301 AD2d 911; Rushford v Facteau, 280 AD2d 787; Thoreson v Penthouse Intl., 80 NY2d 490.)

      New York State Conference of Mayors and Municipal Officials, Albany (Jane E. Tsamardinos of counsel), and Association of Towns of the State of New York (Michael E. Kenneally, Jr., of counsel) for New York State Conference of Mayors and Municipal Officials and another, amici curiae.
    I. This Court’s decision in Matter of Commerce Holding Corp. v Board of Assessors of Town of Babylon (88 NY2d 724 [1996]) does not mandate an annual per se reduction in assessed valuation where lead paint is present. (Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179; People ex rel. Wallington Apts. v Miller, 288 NY 31; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176.) II. Matter of Commerce Holding Corp. v Board of Assessors of Town of Babylon (88 NY2d 724 [1996]) does not require the immediate recognition of the full cost to remediate a property in each year that a land owner fails to remediate the environmental contamination. (Chapman v Silber, 97 NY2d 9.)
   OPINION OF THE COURT

Rivera, J.

In this Real Property Tax Law article 7 proceeding challenging the tax assessments of certain residential properties located in Syracuse, New York, petitioner contends that the trial court erred by failing to consider the impact of contamination— specifically, lead paint—upon the market value of the properties. We hold that petitioner failed to rebut the presumption of validity that attaches to the tax assessments of the properties by the City of Syracuse. That is, petitioner failed to proffer substantial evidence demonstrating a diminution in market value to his properties caused by the mere presence of lead paint.

In this action, petitioner challenges the valuation by the City’s Board of Assessment Review of five single-family, five-bedroom houses near Syracuse University used as rental housing for local college students. Petitioner commenced an RPTL article 7 proceeding to challenge the tax assessments of each property for the years 2001-2004, alleging that the City had overvalued the homes by a total of $825,000 over the four-year period. Specifically, petitioner alleges that the property valuations did not account for the adverse effect that the presence of lead paint would have upon market value.

At the nonjury trial, on these consolidated proceedings, petitioner presented the expert testimony of G. Richard Kelley, a licensed real estate appraiser who concluded that the fair market value of the properties had been negatively impacted by the presence of lead-based contaminants. Based upon an inspection of the properties, and pertinent income and expense data, Mr. Kelley adopted an income capitalization method that determines market value based upon a property’s ability to generate income. Under this approach, Mr. Kelley first determined the hypothetical non-contaminated market values of the five properties. Mr. Kelley then relied upon the testimony of other witnesses, certified environmental testing companies and contractors hired by petitioner, who had examined the interiors, exteriors and soil of the five properties in 2008, and had positively confirmed the presence of lead-based contaminants. Those witnesses had proposed the approximate remediation and construction costs that would be incurred to remove the lead paint conditions from each property. Reducing the non-contaminated market values of the properties by their respective “cost to cure” figures, Mr. Kelley concluded that each of the five properties had a market value of $1 for each year from 2001-2004. Petitioner, however, continues to profit from the rental income generated by the five properties. Further, the lead paint conditions have not been abated, and therefore, no remediation costs have been incurred.

The City’s expert, William J. Kimball, a licensed real estate appraiser, determined the market value of the five properties using both a sales comparison approach and an income capitalization method. Under both methods, however, Mr. Kimball concluded that the mere presence of lead paint, without more, did not diminish the market value of the five properties. Local property owners and brokers indicated that lead-based paint would have no adverse effect upon either the sales of the properties or their continued profitable use as student rental housing. Furthermore, City witnesses testified that absent evidence of flaking, chipping or peeling paint, lead paint did not present a hazardous condition.

Supreme Court denied the petition. As an initial matter, the court struck Mr. Kimball’s appraisal reports, and trial testimony pertaining to those reports, because he failed to include supporting documentation required under 22 NYCRR 202.59 (g) (2), namely, the income and expense statements for the properties for the years in question. Nevertheless, the trial court concluded that Mr. Kimball’s testimony challenging petitioner’s appraisal reports would stand. On the merits, Supreme Court held that “[petitioner ha[d] failed to meet its burden of proof that for any of the years in question the subject properties are overvalued or that the assessments are incorrect.” The court rejected Mr. Kelley’s appraisals, finding that the reports’ use of income and expense figures was unreliable, as evidenced by “large variance[s] in year to year expenses” that “raises red flags.” Thus, finding that petitioner’s expert “lack[s] credibility for a number of reasons,” Supreme Court determined that petitioner had failed to satisfy his burden to demonstrate that the City overvalued the properties for tax assessment purposes.

The Appellate Division unanimously affirmed for the reasons stated in Supreme Court’s decision (78 AD3d 1590 [4th Dept 2010]). This Court granted petitioner leave to appeal, pursuant to CPLR 5602 (a) (1) (ii), from a judgment (denominated order) of Supreme Court that granted petitioner’s motion to voluntarily discontinue its remaining claims with respect to other properties in these RPTL article 7 proceedings, bringing up for our review the prior nonfinal Appellate Division order (19 NY3d 806 [2012]). We now affirm.

It is well settled that property “[assessments shall in no case exceed full value” (NY Const, art XVI, § 2). The ultimate goal of property valuation in any tax proceeding “is to arrive at a fair and realistic value of the property involved” (Matter of Great Atl. & Pac. Tea Co. v Kiernan, 42 NY2d 236, 242 [1977]) so that “all property owners contribute equitably to the public fisc” (Matter of Allied Corp. v Town of Camillus, 80 NY2d 351, 356 [1992]).

In an RPTL article 7 proceeding, a rebuttable presumption of validity attaches to the valuation of property made by the taxing authority (see Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179, 188 [1998]). Thus, a petitioner challenging the accuracy of a tax valuation has the initial burden to rebut the presumption by introducing substantial evidence that the property was overvalued (see Matter of Bass v Tax Commn. of City of N.Y., 179 AD2d 387, 387 [1st Dept 1992] [“The presumption of validity of an assessment by the taxing authority is rebutted where, as here, credible evidence to the contrary is received”]; Matter of FMC Corp., 92 NY2d at 188 [a “petitioner (must) demonstrate the existence of a valid and credible dispute regarding valuation”]; see also Matter of Alexander’s Dept. Store of Val. Stream v Board of Assessors, 227 AD2d 549, 550 [2d Dept 1996] [“The burden of proof is upon the taxpayer to establish, by substantial evidence, that the property was overvalued for taxation purposes”]). Only where the petitioner meets this burden and rebuts the presumption must the court “weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued” (Matter of FMC Corp., 92 NY2d at 188).

Here, petitioner failed to proffer substantial evidence demonstrating that the presence of lead paint resulted in a diminution or devaluation in the market value of the five properties for the tax years 2001-2004. Relying primarily upon Matter of Commerce Holding Corp. v Board of Assessors of Town of Babylon (88 NY2d 724 [1996]), petitioner argues that the presence of lead paint and the attendant costs to cure lead-based contaminants should be factored because “the assessment of property value for tax purposes must take into account any factor affecting a property’s marketability” (id. at 729). In Commerce Holding, the taxpayer, Commerce Holding Corp., owned a parcel of land marred by severe subsurface environmental contamination caused by toxic leakage from industrial metal plating operations that occurred on the premises. As a result of the contamination, the property was designated a Superfund site pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), making Commerce Holding strictly liable for cleanup costs (see id. at 727-728). Consequently, Commerce Holding contended that the tax assessors “should have reduced the assessed property value to account for environmental contamination” (id. at 728). We agreed, remarking that to the extent it impairs market value, “contamination must be considered in property tax assessment” (id. at 729). However, we also made clear that the effect of environmental contamination or hazards should be considered only if the “environmental contamination is shown to depress a property’s value” (id. at 729; see also Criscuola v Power Auth. of State of N.Y., 81 NY2d 649, 652 [1993]). Here, notwithstanding the alleged presence of lead paint during the tax years 2001-2004, the five properties continued to generate rental income for petitioner, and he did not otherwise demonstrate that the presence of lead-based contaminants depressed the market value of the five properties. This is unsurprising, as petitioner did not discover the lead contamination until 2008, so neither he nor his renters were aware of any lead-based contaminants on the properties during the relevant period.

The fact that Supreme Court struck the City’s appraisal reports because of a procedural deficiency does not, contrary to petitioner’s argument, require a finding in his favor. Petitioner bears the ultimate burden to rebut the presumption of validity accorded to the tax assessments issued by the City. To carry his burden, petitioner must show that the market value of the properties was diminished by the presence of lead paint, not its mere existence. To hold otherwise would permit a taxpayer to avoid his or her fair share of the tax burden, while, as in petitioner’s case, reaping the benefits of a rental market that is unaffected by the presence of the contaminant without having incurred any costs to remediate or abate the lead-based conditions.

Where the trial court declined to credit petitioner’s appraisal reports, and the record does not demonstrate a diminution in market value caused by environmental contamination or hazards, petitioner failed to meet his burden and there is no basis to disturb the presumption of validity in the City’s favor.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.

Chief Judge Lippman and Judges Graffeo, Read, Smith and Pigott concur; Judge Abdus-Salaam taking no part.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.

      . Petitioner alleged in his complaints of asbestos contamination, but on this appeal, focuses on the negative impact of lead paint on the market values of the five properties.

      . Mr. Kelley’s calculations actually resulted in negative market values for each of the five properties because the “cost to cure” exceeded the market value of the properties in a non-contaminated state. Relying on the concept of residual value, Mr. Kelley consequently assigned each property a market value of $1 under the theory that a theoretical buyer would purchase property for $1.

      . The parties contest whether lead-based contaminants were present in the five properties for tax years 2001-2004. Given that the presence of lead was common until 1970 when the use of lead paint was declared unlawful (see Public Health Law § 1372), petitioner contends that the positive confirmation of lead in 2008 permits the reasonable inference that the lead paint conditions existed from 2001-2004. Supreme Court drew a positive inference of the existence of lead paint, but concluded that absent evidence of flaking, chipping or peeling paint, “no such inference may be drawn as to the condition of the paint three to seven years earlier based upon the tests performed.” For the purposes of this appeal, we assume that lead paint was present in the five properties for the subject four-year period.

      .  The nature of the contamination and market factors in this case further distinguish petitioner from the property owner in Commerce Holding. The property in Commerce Holding was a designated Superfund site, and the property owner was strictly liable pursuant to CERCLA and a consent order with the Environmental Protection Agency to remediate the site (see 88 NY2d at 728). Thus, we concluded that “cleanup costs are an acceptable, if imperfect, surrogate to quantify the environmental damage and provide a sound measure of the reduced amount a buyer would be willing to pay for the contaminated property” (id. at 732). Here, in contrast, there was no evidence that “a buyer of the property would have demanded an abatement in the purchase price to account for the contamination” (id. at 730). Petitioner admits there was no immediate legal requirement to abate the lead paint from the properties, and the ubiquitous nature of lead paint in residential properties, unlike the unique contamination of the Superfund site in Commerce Holding, undermines petitioner’s unsupported contention that there is a lead paint “stigma” depressing market value. Thus, petitioner’s proposed remediation costs are not an appropriate factor to be considered in evaluating the tax assessments of these properties.


author: Graffeo, J. Smith, J. (concurring). Abdus-Salaam, J. (concurring).

text:
    [995 NE2d 131, 972 NYS2d 169]
    Tiffany Applewhite, an Infant, by Samantha Applewhite, Her Mother and Natural Guardian, et al., Respondents, v Accuhealth, Inc., et al., Defendants, and City of New York, Appellant.
    Argued January 7, 2013; reargued May 30, 2013;
    decided June 25, 2013

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Drake A. Colley, Fay Leoussis, Amy G. London, Margaret G. King and Edward F.X. Hart of counsel), for appellant.
    I. The Appellate Division correctly ruled that plaintiff’s claim that emergency medical services should immediately have transported her daughter to the hospital implicated a governmental function, but erred in assuming a special duty pleading where plaintiff plainly never alleged one. (Valdez v City of New York, 18 NY3d 69; McLean v City of New York, 12 NY3d 194; Kovit v Estate of Hallums, 4 NY3d 499; Pelaez v Seide, 2 NY3d 186; Cuffy v City of New York, 69 NY2d 255; Laratro v City of New York, 8 NY3d 79; Silver v City of New York, 281 AD2d 233.) II. Assuming plaintiff had pleaded a special duty, the Appellate Division erred in finding that the emergency medical technicians’ response to plaintiff’s request that they immediately transport her daughter constituted an assurance or guarantee of safety and that plaintiff acted in justifiable reliance on that response. (Valdez v City of New York, 18 NY3d 69; Cuffy v City of New York, 69 NY2d 255; Dinardo v City of New York, 13 NY3d 872; McLean v City of New York, 12 NY3d 194; Kircher v City of Jamestown, 74 NY2d 251; Silver v City of New York, 281 AD2d 233; Lauer v City of New York, 95 NY2d 95; Laratro v City of New York, 8 NY3d 79; Mollerson v City of New York, 8 AD3d 70; Clark v Town of Ticonderoga, 291 AD2d 597, 98 NY2d 604.)

      Kramer, Dillof, Livingston & Moore, New York City (Matthew Gaier and Thomas A. Moore of counsel), Norman Bard and Murray S. Axelrod, for respondents.
    I. The allegations at issue in this case involve proprietary functions of ambulance attendants rather than governmental functions of the City of New York. (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428; Sebastian v State of New York, 93 NY2d 790; Balsam v Delma Eng’g Corp., 90 NY2d 966; Clinger v New York City Tr. Auth., 85 NY2d 957; Schrempf v State of New York, 66 NY2d 289; Miller v State of New York, 62 NY2d 506; Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Riss v City of New York, 22 NY2d 579; Bryant v New York City Health & Hosps. Corp., 93 NY2d 592; Matter of Beary v City of Rye, 44 NY2d 398.) II. This case involves misfeasance by the City of New York’s emergency medical technicians to which the special duty doctrine does not apply. (Fonville v New York City Health & Hosps. Corp., 300 AD2d 623; Badillo v City of New York, 35 AD3d 307; Haggerty v Diamond, 251 AD2d 455, 92 NY2d 814; LaLonde v Hurteau, 239 AD2d 858; Walsh v Town of Cheektowaga, 237 AD2d 947; Rodriguez v City of New York, 189 AD2d 166; McLean v City of New York, 12 NY3d 194; Parvi v City of Kingston, 41 NY2d 553; Wolf v City of New York, 39 NY2d 568; Marks v Nambil Realty Co., 245 NY 256.) III. The Appellate Division properly found that defendants were not entitled to summary judgment on the issue of whether there was a special duty. (Misicki v Caradonna, 12 NY3d 511; Bingham v New York City Tr. Auth., 99 NY2d 355; Fischer v Zepa Consulting, 95 NY2d 66; Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244; Matter of Nicole V., 71 NY2d 112; County of Nassau v Cuomo, 69 NY2d 737; Utica Mut. Ins. Co. v Prudential Prop. & Cas. Ins. Co., 64 NY2d 1049; McClelland v Mutual Life Ins. Co. of N.Y., 217 NY 336; Smalls v AJI Indus., Inc., 10 NY3d 733; JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373.)

      John A. Mancini, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.
    I. Abandoning the long-held standard that there can be no liability against a municipality without plaintiff demonstrating that a special duty was owed to that person would expose local governments and the state to an avalanche of litigation and potential liability, stressing municipal and state resources that are already stretched to the breaking point. (Valdez v City of New York, 18 NY3d 69; Laratro v City of New York, 8 NY3d 79; Cuffy v City of New York, 69 NY2d 255.) II. Judgment against defendants could have a tremendous chilling effect on other municipalities across the state that provide on-scene emergency medical services, as well as police and fire protection. III. Municipal emergency responders should not have to fear liability when exercising their professional judgment. (Mon v City of New York, 78 NY2d 309; Arias v City of New York, 22 AD3d 436.)

      Michael Jaffee, New York City, and Pollack Pollack Isaac & De Cicco (Brian J. Isaac of counsel) for New York State Trial Lawyers Association, amicus curiae.
    Governmental immunity does not apply to the provision of on-the-scene medical care, which is governed by ordinary negligence principles in which special duty/relationship rules have no application. (Valdez v City of New York, 18 NY3d 69; Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428; McLean v City of New York, 12 NY3d 194; Dinardo v City of New York, 13 NY3d 872; Lauer v City of New York, 95 NY2d 95; Sebastian v State of New York, 93 NY2d 790; Schrempf v State of New York, 66 NY2d 289; Riss v City of New York, 22 NY2d 579; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222; Eiseman v State of New York, 70 NY2d 175.)
   OPINION OF THE COURT

Graffeo, J.

When a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, it performs a governmental function and cannot be held liable unless it owed a “special duty” to the injured party. Based on the specific allegations interposed in this case, plaintiffs have adequately established questions of fact on the applicability of the special duty doctrine, thereby precluding summary judgment for the municipal defendants.

I

In 1998, plaintiff Tiffany Applewhite suffered from uveitis, an eye condition, which required the intravenous administration of a prescribed medication. After a visiting nurse injected Tiffany with the drug at her home, the 12-year-old girl experienced an episode of anaphylactic shock. When Tiffany’s breathing difficulties worsened, her mother dialed 911 seeking assistance. While the nurse performed whatever emergency care that she could provide, Tiffany had a seizure followed by cardiac arrest.

Within minutes after the 911 call was placed, two emergency medical technicians (EMTs) employed by the New York City Fire Department arrived at the Applewhite apartment, having traveled in a basic life support ambulance. The EMTs had been dispatched because no advanced life support (ALS) ambulance transporting paramedics was available at the time. One EMT immediately began performing cardiopulmonary resuscitation (CPR) on Tiffany while the other called for an ALS ambulance and then retrieved equipment from the ambulance.

At some point, Tiffany’s mother allegedly requested that the EMTs transport Tiffany to nearby Montefiore Hospital. The EMT continued to conduct CPR on Tiffany until paramedics from a private hospital, who arrived in an ALS ambulance, appeared at the scene. The paramedics injected Tiffany with epinephrine to counter the effects of anaphylactic shock, intubated her, administered oxygen and then transported her to Montefiore Hospital. Tiffany survived the ordeal but tragically suffered serious brain damage.

Tiffany and her mother commenced this action against the nurse, her employer (Accuhealth, Inc.), and the City of New York and its emergency medical services (EMS). Accuhealth dissolved in bankruptcy and the lawsuit against the nurse was settled. Thus, the only claims that remain outstanding are those against the municipal defendants (referred to collectively as the City).

The City moved for summary judgment, primarily contending that it was immune from liability because it did not owe a special duty to plaintiffs. In the alternative, the City maintained that the actions of its personnel were not the proximate cause of Tiffany’s injuries; rather, Tiffany’s allergic reaction was the result of the drug administered to the child by the nurse. Supreme Court granted the City’s motion, concluding that plaintiffs could not prove that the City owed them a special duty or that the municipal defendants were the proximate cause of the harm.

The Appellate Division reversed and reinstated the claims against the City (90 AD3d 501 [1st Dept 2011]). It determined that the City’s emergency medical response was governmental in nature, but found that plaintiffs raised triable issues of fact as to whether the City had assumed a special duty to plaintiffs and whether it proximately caused their injuries. The Appellate Division certified a question to us asking if its decision was correct.

II

When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. If the municipality’s actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties (see Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 446-447 [2011], cert denied sub nom. Ruiz v Port Auth. of New York & New Jersey, 568 US —, 133 S Ct 133 [2012]). A government entity performs a purely proprietary role when its “activities essentially substitute for or supplement traditionally private enterprises” (Sebastian v State of New York, 93 NY2d 790, 793 [1999] [internal quotation marks omitted]). In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are “undertaken for the protection and safety of the public pursuant to the general police powers” (id. [internal quotation marks omitted]).

Because this dichotomy is easier to state than to apply in some factual scenarios, the determination categorizing the conduct of a municipality may present a close question for the courts to decide (see Matter of World Trade Ctr. Bombing Litig., 17 NY3d at 446-447; Sebastian, 93 NY2d at 793-794). Police and fire protection are examples of long-recognized, quintessential governmental functions (see e.g. Valdez v City of New York, 18 NY3d 69, 75 [2011]; Harland Enters. v Commander Oil Corp., 64 NY2d 708, 709 [1984]). Additional examples include security operations at the World Trade Center (see Matter of World Trade Ctr. Bombing Litig., 17 NY3d at 450); oversight of juvenile delinquents (see Sebastian, 93 NY2d at 796); issuance of building permits or certificates of occupancy (see Rottkamp v Young, 15 NY2d 831, 833 [1965], affg 21 AD2d 373 [2d Dept 1964]; Worth Distribs. v Latham, 59 NY2d 231, 237 [1983]); certifying compliance with fire safety codes (see Garrett v Holiday Inns, 58 NY2d 253, 261-262 [1983]); teacher supervision of a public school playground (see Bonner v City of New York, 73 NY2d 930, 932 [1989]); boat inspections (see Metz v State of New York, 20 NY3d 175, 179-180 [2012]); and garbage collection (see Nehrbas v Incorporated Vil. of Lloyd Harbor, 2 NY2d 190, 194-195 [1957]). On the other hand, we have recognized that certain medical services delivered by the government in hospital-type settings are more akin to private, proprietary conduct (see e.g. Schrempf v State of New York, 66 NY2d 289 [1985]; Bryant v New York City Health & Hosps. Corp., 93 NY2d 592 [1999]; Matter of Murray v City of New York, 30 NY2d 113 [1972]). As a general rule, the distinction is that the government will be subject to ordinary tort liability if it negligently provides “services that traditionally have been supplied by the private sector” (Sebastian, 93 NY2d at 795).

If it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a “special duty” to the injured party. The core principle is that to “ ‘sustain liability against a municipality, the duty breached must be more than that owed the public generally’ ” (Valdez, 18 NY3d at 75, quoting Lauer v City of New York, 95 NY2d 95, 100 [2000]). We have recognized that a special duty dan 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 (see e.g. Metz, 20 NY3d at 180). It is the plaintiff’s obligation to prove that the government defendant owed a special duty of care to the injured party because duty is an essential element of the negligence claim itself (see Lauer, 95 NY2d at 100; see also Valdez, 18 NY3d at 75). In situations where the plaintiff fails to meet this burden, the analysis ends and liability may not be imputed to the municipality that acted in a governmental capacity.

III

In this case, the parties dispute whether the City exercised a governmental or proprietary function when the EMTs initiated emergency care. The City asserts that the provision of 911 referrals and emergency medical service responses are within the traditional responsibilities of municipal government, similar in nature to emergency fire protection services. Plaintiffs, however, maintain that the governmental function terminated with the arrival of the EMTs at Tiffany’s home and a proprietary function arose once emergency medical care was undertaken since treatment of this nature is generally offered by private parties (e.g., doctors and hospital personnel) and the City charges fees for its ambulance services. Consistent with their respective arguments, the City asserts that plaintiffs failed, as a matter of law, to establish triable issues of fact pertaining to the creation of a special relationship, and plaintiffs urge that summary judgment was inappropriate because there are factual disputes to be resolved before the issue of special duty can be determined.

In Laratro v City of New York (8 NY3d 79 [2006]), the plaintiff sued the City for responding too slowly to a 911 call (the ambulance took 35 minutes to arrive, as opposed to the several-minute response time in this case). Our analysis began with the recognition that “[protecting health and safety is one of municipal government’s most important duties” (id. at 81) and this responsibility extends to “the duty to provide police protection, fire protection or ambulance service” to the general public (id. at 82-83 [emphasis added]). We proceeded to determine whether the plaintiff had sufficiently established the existence of a special duty—an inquiry that would have been unnecessary had we viewed the City’s response to the 911 call as a proprietary function. Hence, we have previously viewed municipal emergency systems and responses to 911 calls to be within the sphere of governmental functions.

Our concurring colleagues contend that the EMTs acted in a proprietary capacity when they began to render aid, equating their conduct with medical services such as mental health care (see Schrempf v State of New York, 66 NY2d 289 [1985]), obstetrics (see Bryant v New York City Health & Hosps. Corp., 93 NY2d 592 [1999]) and surgery (see Matter of Murray v City of New York, 30 NY2d 113 [1972]). In those situations, however, the “governmental activities . . . displaced or supplemented traditionally private enterprises” (Riss v City of New York, 22 NY2d 579, 581 [1968]). Emergency medical services, in contrast, have widely been considered one of government’s critical duties (see e.g. 1982 Ops St Comp No. 82-182; Edwards v City of Portsmouth, 237 Va 167, 171, 375 SE2d 747, 750 [1989]; Ross v Consumers Power Co., 420 Mich 567, 654, 363 NW2d 641, 677 [1984]; King v Williams, 5 Ohio St 3d 137, 140, 449 NE2d 452, 455 [1983]; Thornton v Shore, 233 Kan 737, 742, 666 P2d 655, 659 [1983]; McIver v Smith, 134 NC App 583, 587, 518 SE2d 522, 525 [1999]; Wanzer v District of Columbia, 580 A2d 127, 131 [DC Ct App 1990]; Ayala v City of Corpus Christi, 507 SW2d 324, 328 [Tx Civ App 1974]; Smith v City of Lexington, 307 SW2d 568, 569-570 [Ky Ct App 1957]).

Consistent with this view and our reasoning in Laratro (8 NY3d 79), we believe that publicly-employed, front-line EMTs and other first responders, who routinely place their own safety and lives in peril in order to rescue others, surely fulfill a government function—certainly no less so than municipal garbage collectors and school playground supervisors (see Nehrbas, 2 NY2d at 194-195; Bonner, 73 NY2d at 932; see also Edwards v City of Portsmouth, 237 Va at 171, 375 SE2d at 750)— because they exist “for the protection and safety of the public” and not as a “substitute for . . . private enterprises” (Sebastian, 93 NY2d at 793 [internal quotation marks omitted]). The facts of this case reinforce this view since the purportedly negligent EMTs were employees of the City’s fire department using City resources in an effort to fulfill the City’s obligation to answer an emergency 911 dispatch and attempt to save Tiffany Applewhite’s life. And contrary to the belief expressed in the concurring opinions, the fact that private entities operate ambulance services in New York City is not determinative because those companies provide supplemental support for a critical governmental duty rather than vice versa (see Edwards v City of Portsmouth, 237 Va at 171-172, 375 SE2d at 750 [“the test cannot be whether the same thing is done by private entities, but rather whether, in providing such services, the governmental entity is exercising the powers and duties of government conferred by law for the general benefit and well-being of its citizens”]). Nor does the City’s policy of charging a fee for its ambulance service (see 3 RCNY 4900-02 [b]) alter the analysis because it is designed to defray the cost of maintaining this essential component of the City’s emergency response system, not to create a profit for the taxpayers (see General Municipal Law § 122-b [2]; 2005 Ops St Comp No. 05-8; see also Wanzer, 580 A2d at 131; Edwards, 237 Va at 172, 375 SE2d at 750; Smyser v City of Peoria, 215 Ariz 428, 435-436, 160 P3d 1186, 1193-1194 [Ct App 2007]; McIver v Smith, 134 NC App at 587, 518 SE2d at 526).

Moreover, and unlike the types of medical providers identified by the concurrences, the EMTs employed by the New York City Fire Department (FDNY) and deployed via the 911 system receive training in basic life support techniques and their range of approved emergency services is limited by law (see Public Health Law § 3001 [6] [defining the term “emergency medical technician”]; 10 NYCRR 800.6 [c] [listing eight types of emergency medical services personnel]; 10 NYCRR 800.20 [c] [5] [i] [describing the required curricula for various classes of first responders]). Basic EMTs function in a “pre-hospital setting” and their activities are generally restricted to “CPR, oxygen administration, bleeding control, foreign body airway obstruction removal, and spinal immobilization.” Most EMTs (who are not specially certified as paramedics) are not authorized by law to administer medication, such as epinephrine, or perform invasive procedures, and do not have access to advanced diagnostic and medical treatment equipment or physician assistance (see generally 10 NYCRR 800.20 [c] [5] [i] [a]-[c]), all of which are common in public and private hospital facilities. EMTs cannot be realistically compared to the proprietary medical professionals whose licensure requires extensive educational and training credentials, and who typically provide services at hospital or medical facilities rather than in the unpredictable community-at-large.

Public policy considerations support this analysis. The rationale underlying the government-function doctrine rests on several critical concerns: that the costs of tort recoveries would be excessively burdensome for taxpayers; the threat of liability could dissuade municipalities from maintaining emergency medical and ambulance services; and extensive exposure to liability could consequently render municipal governments less, not more, effective in protecting their citizens (see Laratro, 8 NY3d at 82). This, in turn, would place the public at greater risk of danger, particularly in locales that are a considerable distance from private medical or hospital emergency care. Even a metropolis like New York City could feel a chilling effect when it considers the prospect of unknown liability exposure from the thousands of EMS runs its performs on a daily basis. It would be an unfortunate consequence if municipal emergency response systems were limited to mere transport service rather than emergency medical stabilization measures. We therefore decline to adopt a rule that has the potential to undermine this significant aspect of the government’s 911 emergency response system.

Hence, we hold that a municipal emergency response system— including the ambulance assistance rendered by first responders such as the FDNY EMTs in this case—should be viewed as “a classic governmental, rather than proprietary, function” (Valdez, 18 NY3d at 75).

IV

Our conclusion does not necessarily immunize the City from liability because plaintiffs may yet establish that a special duty was owed to them. Of the three ways that a plaintiff may prove the existence of a special duty, only the second is at issue in this appeal—whether the City voluntarily assumed a “special relationship” with the plaintiffs beyond the duty that is owed to the public generally. The response to that question requires the presence of four elements:

“ ‘(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’ ” (Laratro, 8 NY3d at 83, quoting Cuffy v City of New York, 69 NY2d 255, 260 [1987]).

A plaintiff must satisfy each of these factors in order to establish a special relationship. Here, the parties’ dispute centers on the first and fourth elements. We agree with the Appellate Division that plaintiffs have adequately presented questions of fact on both of these factors.

Tiffany’s mother recalled that once she realized the treatment provided by the EMTs would be limited to CPU, she “asked them to please take Tiffany to Montefiore Hospital right away, because it was only a few minutes away from our house at that time.” The EMT apparently continued performing CPR and allegedly indicated that he was awaiting the arrival of ALS ambulance personnel. This poses a question of fact as to whether the EMTs, through their actions or promises, assumed an affirmative duty in deciding to have ALS paramedics undertake more sophisticated medical treatment rather than transporting the child to a hospital.

A factual resolution by a jury is also necessary to resolve the justifiable reliance element. It is possible that a fact finder could conclude that it was reasonable for Tiffany’s mother to rely on the EMTs’ alleged assurances rather than seek an alternative method for transporting Tiffany to the nearby hospital since the child’s mother claims that she was not informed that it would take about 20 minutes for the ALS ambulance to arrive. Although it is true, as the City contends, that plaintiffs have not specifically identified any “ ‘other available avenues of protection’ ” to which the mother could have resorted (Dinardo v City of New York, 13 NY3d 872, 874 [2009], quoting Cuffy, 69 NY2d at 261), the allegations raise the question of whether the EMTs may have “lulled” plaintiffs “into a false sense of security” (Dinardo, 13 NY3d at 874 [internal quotation marks omitted]). Plaintiffs are therefore entitled to show how the EMTs’ statements or “conduct deprived [plaintiffs] of assistance that reasonably could have been expected from another source” (Merced v City of New York, 75 NY2d 798, 800 [1990]). In this regard, plaintiffs have the ultimate burden of establishing that some other reasonable alternative was available (see Valdez, 18 NY3d at 75).

In sum, because there are issues of fact associated with the eventual determination as to whether the City owed a special duty to plaintiffs, the City is not entitled to summary judgment dismissing the complaint against it.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Smith, J. (concurring).

I concur in the result, but not the reasoning, of the majority opinion. I am unable to find in this record evidence either of a promise (implicit or explicit) by the EMTs to do anything other than what they in fact did, or of any justifiable reliance by either plaintiff on such a promise. I would vote to dismiss the complaint if I thought, as the majority does, that the EMTs were performing a governmental function.

But the provision of medical care—including emergency medical care—is not something that only government does or can do. I think the label “proprietary” better suits the activity of the EMTs here, and thus I conclude that the doctrine of governmental immunity does not apply to this case.

The doctrine has always been limited to those functions that are unique to government. For example, we have held that, in the absence of a special duty, a suit cannot be based on negligence in providing police protection (Valdez v City of New York, 18 NY3d 69 [2011]); maintaining a registry of child care centers (McLean v City of New York, 12 NY3d 194 [2009]); performing safety inspections of public vessels (Metz v State of New York, 20 NY3d 175 [2012]); or issuing a death certificate (Lauer v City of New York, 95 NY2d 95 [2000]). Governmental immunity does not apply when a public employee, acting in the course of his or her employment, commits an ordinary tort that anyone else might commit—for example, when the employee is negligent in driving a car (Dooley v State of New York, 254 App Div 381 [1938], affd 280 NY 748 [1939]) or firing a gun (Buckley v City of New York, 56 NY2d 300 [1982]). There are difficult, borderline cases: when a public entity is sued for failing to protect from harm the occupants of a building that it owns, it may not be obvious whether it is acting as a landlord providing security—in which case it is held to the same standards as a private landlord (Miller v State of New York, 62 NY2d 506 [1984])—or as a government deciding on the allocation of police resources—in which case it may claim immunity (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428 [2011]).

It has long been accepted that the provision of medical care by a governmental entity falls on the “proprietary” side of the line, so that in such cases the doctrine of governmental immunity is inapplicable. There are many cases involving alleged medical malpractice in publicly-owned hospitals, in which the unavailability of immunity has apparently been assumed without discussion (e.g. Bryant v New York City Health & Hosps. Corp., 93 NY2d 592 [1999]; Matter of Beary v City of Rye, 44 NY2d 398 [1978]; Matter of Murray v City of New York, 30 NY2d 113 [1972]; Schempp v City of New York, 25 AD2d 649 [1st Dept 1966], affd 19 NY2d 728 [1967]). In Schrempf v State of New York (66 NY2d 289, 293-294 [1985]), we expressly held that the rule that “the State cannot be held liable for negligent failure to perform governmental activities . . . has no application in cases where the State engages in a proprietary function . . . such as providing medical and psychiatric care.” No exception has been made where the care is provided on an “emergency” basis (see Murray, 30 NY2d at 115; Garcia v New York City Health & Hosps. Corp., 299 AD2d 268, 269 [1st Dept 2002]).

Yet the majority today concludes that the emergency medical care provided by the City-employed EMTs in this case was a governmental function, because the EMTs arrived at plaintiffs’ home in a City ambulance. The majority points out that in Laratro v City of New York (8 NY3d 79, 82-83 [2006]) we listed “the duty to provide . . . ambulance service” as among those that “the municipality owes to the general public,” and accordingly applied the governmental immunity doctrine (majority op at 427). But the service we were referring to in Laratro was the dispatching of an ambulance in response to a 911 call; the claim in Laratro, which we held barred by governmental immunity, was that a City-employed 911 operator was negligent in transmitting a request for emergency help. Answering a 911 call and seeing that help, where needed, is promptly sent is clearly a governmental function—so clearly that Laratro does not even discuss the governmental-proprietary distinction. The majority also relies on a number of out-of-state cases (see majority op at 428-429), but many of those are more similar to Laratro than to this case; only one, Smyser v City of Peoria (215 Ariz 428, 435-436, 160 P3d 1186, 1193-1194 [Ct App 2007]), involved alleged negligence in providing emergency medical care after an ambulance arrived.

Where that is the allegation, I see no reason why immunity should be more available to a city than if city employees were providing similar care in the emergency room of a city hospital; or why a city should be immune for acts that could clearly be the basis of suit if the EMTs were employed by a private ambulance service responding to the same call. Of course it is true, as the majority says, that EMTs do not provide the broad range of medical care that would be available in a hospital or a doctor’s office (see majority op at 429); but why does that make one activity governmental and the other proprietary? The more important fact, I suggest, is that the services of ambulance-dispatched EMTs, like other forms of medical care, can be and often are furnished by private providers.

The majority emphasizes “public policy considerations” (majority op at 430), arguing essentially that tort liability will burden municipalities excessively, and dissuade them from offering life-saving services. I agree that this is a legitimate concern—but it seems to me to apply no less to the equally important services provided in municipal hospitals. In general, it may well be a bad idea, where no special duty is found, to subject municipalities to potentially huge liability in cases involving such catastrophic injuries as the one suffered by the child plaintiff here. But it may be an even worse idea to exempt municipal agencies from that liability without also exempting their competitors in the private sector. If the burden is too heavy for the taxpayers to bear, why should the owner of a private ambulance service be asked to bear it? And if government is to be exempt from such liability when private providers are not, does that not invite the government to load excessive burdens on the private sector, without worrying about the consequences to itself?

I am not an uncritical admirer of our tort system, but I think it is best administered when public and private parties similarly situated are bound by the same rules. I therefore disagree with the favored treatment that the majority would accord to public entities that provide emergency medical care.

Abdus-Salaam, J. (concurring).

This Court must balance the important public policy of insulating the government from tort liability for essential services it provides to the public, with the equally important principle that those who undertake to provide medical treatment must do so with reasonable care. While I agree that the Appellate Division properly reinstated the complaint against the City, I believe that the majority’s rationale is incorrect. I would hold that the EMTs performed a proprietary function, and that there is a triable issue of fact concerning proximate cause.

As an initial matter, I differ with the majority’s interpretation of the Appellate Division’s decision. According to the majority, the Appellate Division held that the EMTs’ actions were governmental in nature and that issues of fact existed as to whether the City had assumed a special duty to plaintiffs and had proximately caused their injuries (see majority op at 425).

My reading of the decision is that the Appellate Division determined that the City “assumed a special duty toward th[ese] plaintiff[s]” (90 AD3d 501, 504 [1st Dept 2011]), and that no issues of fact remained as to this point. The court held that the EMTs’ “assurances and advice” that it would be best to wait for the ALS ambulance rather than transport Tiffany to the hospital “constituted an assumption, through promises or actions, to act on behalf of infant plaintiff” (id. [internal alterations and quotation marks omitted]), and that “[t]he mother justifiably relied on the EMS technicians, who had taken control of the emergency situation, and who elected to await the arrival of the ALS ambulance” (id. at 505). There was no dispute between the parties as to whether the remaining two factors required for a special relationship were satisfied. Thus, the dispositive issue of fact discerned by the Appellate Division was with respect to proximate cause, not special relationship.

I disagree with the majority’s conclusion that municipal EMTs perform a governmental function. The provision of medical treatment, whether by an EMT or a doctor, either in an emergency or a non-emergency situation, simply is not a governmental function.

Here, the City, by dispatching an ambulance to plaintiffs’ home where EMTs treated Tiffany, acted in a dual proprietary and governmental capacity. As we observed in Matter of World Trade Ctr. Bombing Litig. (17 NY3d 428 [2011]):

“[I]n light of the fact that the varied functions of a governmental entity can be interspersed with both governmental and proprietary elements, the determination of the primary capacity under which a governmental agency was acting turns solely on the acts or omissions claimed to have caused the injury” (17 NY3d at 447).

I agree with plaintiffs and my concurring colleagues that the dispatch of the ambulance by the 911 operator was a governmental act (see Laratro v City of New York, 8 NY3d 79, 82-83 [2006]; Sherpa v New York City Health & Hosps. Corp., 90 AD3d 738, 740 [2d Dept 2011]), while the EMTs’ care and treatment of Tiffany was proprietary (see e.g. Schrempf v State of New York, 66 NY2d 289, 293-294 [1985] [state mental hospital engaged in proprietary function by treating and releasing patient]; Kowal v Deer Park Fire Dist., 13 AD3d 489, 491 [2d Dept 2004] [“misfeasance with respect to medical treatment ... is not a governmental function” and special relationship not applicable where fire department ambulance crew member “undertook the duty to treat the decedent”]; Fonville v New York City Health & Hosps. Corp., 300 AD2d 623, 624 [2d Dept 2002] [claim that EMT rendered improper treatment reinstated, even absent a showing of special duty, because EMT had duty to perform with due care]). That the City’s emergency medical services are assigned to the fire department does not mean, as suggested by the majority, that the entire EMS operation, including medical treatment, is a governmental function.

Nor does our decision in Laratro mandate that the entire EMS operation be considered a governmental function. In Laratro, we determined that, absent a special relationship, the City could not be held liable for the alleged negligence of a 911 operator because the dispatch of ambulances in response to 911 calls is a governmental function (see 8 NY3d at 82-83). This case does not involve a 911 operator’s delay in responding to an emergency call; rather, it concerns the allegedly negligent medical care and treatment rendered by the EMTs once they arrived at plaintiffs’ home. Thus, as plaintiffs and my concurring colleagues point out, Laratro does not necessarily extend to, or control the outcome, in this case.

It is beyond dispute that in New York, government hospitals are subject to liability for negligent medical treatment without any required showing by a plaintiff of a special relationship (see e.g. Schrempf, 66 NY2d at 293-294; Sukhraj v New York City Health & Hosps. Corp., 106 AD3d 809 [2d Dept 2013]). By grouping the provision of medical treatment by EMTs with the actions of “other first responders” (majority op at 428), the majority misses the point that unlike fire and police protection— services not traditionally provided by the private sector—the private sector has long been involved in the provision of ambulance and emergency medical services (cf. Sebastian v State of New York, 93 NY2d 790, 795 [1999] [patient’s placement and escape from a facility for juvenile delinquents “derives from State activities that are distinctly governmental and have no private sector counterpart”]). In fact, roughly 35% of all 911 ambulance tours in New York City are operated by private ambulances. Those who undertake to provide medical treatment must exercise reasonable care—regardless of whether the caregiver is a doctor, nurse, or EMT, or whether the care occurs in a “pre-hospital setting” (majority op at 429) or a hospital setting—and this duty should not be circumscribed by the constraints of governmental immunity.

I share the concerns of my colleagues that tort liability for negligent treatment rendered by municipal EMTs and other medical personnel will burden the public fisc and possibly dissuade municipalities from continuing to provide emergency medical treatment in connection with their ambulance services. However, I do not believe this concern should cause us to employ a strained legal analysis in order to reach a desired result.

In the majority’s view, defining medical treatment by EMTs as a governmental function, and requiring plaintiffs to demonstrate that a special duty exists, advances public policy by limiting the exposure of municipalities to excessive tort recoveries. This decision will not achieve the majority’s goal. It will be the rare case where an injured party, having been assessed and treated by an EMT, will not be able to demonstrate the four elements of a special relationship: (1) assumption by the EMT of an affirmative duty to act on behalf of the injured party, (2) knowledge by the EMT that inaction could lead to harm, (3) some form of direct contact between the EMT and the injured party, and (4) that party’s justifiable reliance on the EMT’s affirmative undertaking (see Mastroianni v County of Suffolk, 91 NY2d 198, 204 [1997]; Cuffy v City of New York, 69 NY2d 255, 260 [1987]). Thus, even in special duty cases, municipalities will likely be exposed to liability.

In that regard, unlike my concurring colleagues who find no record evidence of a special relationship, I think the facts of this case demonstrate that the EMTs assumed a special duty toward plaintiffs (see 90 AD3d at 504). Merely by undertaking to treat Tiffany, the EMTs assumed an affirmative duty to act on her behalf (see Cuffy, 69 NY2d at 260 [a municipality assumes an affirmative duty to act “through promises or actions”]) and plaintiffs justifiably relied on the EMTs “who had taken control of the emergency situation” (90 AD3d at 505). Even if I could agree with the majority that the EMTs were performing a governmental function, I would nonetheless conclude that there is no triable issue regarding a special relationship between plaintiffs and the EMTs.

Chief Judge Lippman and Judges Read and Rivera concur with Judge Graffeo; Judge Smith concurs in result in an opinion in which Judge Pigott concurs; Judge Abdus-Salaam concurs in result in a separate opinion.

Order affirmed, with costs, and certified question answered in the affirmative.

      . Contrary to the parties’ arguments, our precedent does not differentiate between misfeasance and nonfeasance, and such a distinction is irrelevant to the special duty analysis (see generally McLean v City of New York, 12 NY3d 194, 202 [2009]; Schuster v City of New York, 5 NY2d 75, 82 [1958]).

        (n. cont’d)

      . Although the City claims that plaintiffs were required to specifically plead the existence of a special duty in their complaint, we decline to address this issue because it was not properly raised in Supreme Court. Additionally, the City does not challenge the Appellate Division’s determination that the EMTs were “acting in a ministerial capacity” (90 AD3d at 503).

      . In fact, as Judge Abdus-Salaam’s concurrence observes (see concurring op at 437), government-operated ambulances handle approximately two thirds of EMS tours in New York City (see 2012/2013 Ann Rep of Fire Dept of City of New York at 27, available at http://www.nyc.gov/html/fdny/pdf/publications/ annual_reports/2012_annual_report.pdf [accessed June 19, 2013]).

      . See Fire Dept of City of New York, http://www.nyc.gov/html/fdny/html/ community/emt_medic_faq.shtml (accessed June 19, 2013).

      . During the 2012 fiscal year alone, there were approximately 1.4 million EMS apparatus responses in New York City—an average of approximately 3,800 per day—most of which were performed by municipal employees (see 2012/2013 Ann Rep of Fire Dept of City of New York at 26-27, available at http://www.nyc.gov/html/fdny/pdf/publications/annual_reports/2012_annual _report.pdf [accessed June 19, 2013]).

      . The Appellate Division did indicate that the mother’s affidavit in opposition to a different motion made by another defendant, nurse Russo, might have raised an issue of fact because it did not specifically allege that the mother asked the EMTs to transport her daughter to the hospital. But the court found her affidavit “irrelevant” to the City’s motion (90 AD3d at 505).

      . In this regard, the majority’s citation to Edwards v City of Portsmouth (237 Va 167, 375 SE2d 747 [1989]), a decision by the Supreme Court of Virginia, is inapposite. The Virginia court has held, in contrast to New York jurisprudence, that “hospital services provided by a city [are] an exercise of a governmental function” (Edwards, 237 Va at 171, 375 SE2d at 749, citing City

        of Richmond, v Long, 58 Va [17 Gratt] 375 [1867]). Similarly, many of the other out-of-state cases cited by the majority, which address a municipality’s general authority to operate a public ambulance system (see Ayala v City of Corpus Christi, 507 SW2d 324, 328 [Tx Civ App 1974]) and its potential liability for the negligent actions of 911 dispatchers (see Ross v Consumers Power Co., 420 Mich 567, 654, 363 NW2d 641, 677 [1984]; Wanzer v District of Columbia, 580 A2d 127, 131 [DC Ct App 1990]), ambulance drivers (see King v Williams, 5 Ohio St 3d 137, 140, 449 NE2d 452, 455 [1983]; McIver v Smith, 134 NC App 583, 587, 518 SE2d 522, 525 [Ct App 1999]; Smith v City of Lexington, 307 SW2d 568, 569-570 [Ky Ct App 1957]), and operators of police vehicles (see Thornton v State, 233 Kan 737, 742, 666 P2d 655, 659 [1983]), do not support the conclusion that the provision of medical care by EMTs must be classified as a governmental function.

        (n. cont’d)

      . Hearing on the Fiscal Year 2013 Executive Budget, Finance Division Briefing Paper, Fire Department, June 1, 2012 at 5, available at http://council. nyc.gov/downloads/pdf/budget/2013/execbudget/057%20Fire%20Department .pdf (last visited June 19, 2013).