12–1965‐cv

Velez v. City of New York

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

                               

August Term, 2012

(Argued: March 6, 2013       Decided: September 18, 2013)

Docket No. 12‐1965‐cv

                                  

TOWANDA VELEZ, as personal representative of the Estate of Anthony Velez,

deceased,

Plaintiff‐Appellant,

— v. —

CITY OF NEW YORK, RUDOLPH HALL, AND MICHAEL RUGGIERO,

Defendants‐Appellees.

*

                                   

B e f o r e:

LYNCH, LOHIER, and CARNEY, Circuit Judges.

__________________

* The Clerk of Court is respectfully directed to amend the caption to

conform to that above.  

1
Plaintiff‐appellant Towanda Velez, representing the estate of her son,

Anthony Velez, sued the City of New York and several named and unnamed

police officers in the United States District Court for the Eastern District of New

York (Eric N. Vitaliano, Judge), alleging that the defendants were liable for her

son’s death.  Anthony Velez was murdered after the defendant police officers

searched an apartment based on a confidential tip from Velez.  A jury found for

the defendants.  On appeal, plaintiff principally contends that the district court

erred in instructing the jury that New York law required the plaintiff, as a

prerequisite to liability, to establish a special relationship between the defendants

and Velez.  Because we find no error entitling plaintiff to a new trial, we affirm

the judgment of the district court.  

AFFIRMED.

                             

MICHAELG.O’NEILL,ESQ.,New York, New York, for Plaintiff‐Appellant.

KATHY H. CHANG, Assistant Corporation Counsel (Larry A.

Sonnenshein, Assistant Corporation Counsel, on the brief), for

Michael A. Cardozo, Corporation Counsel of the City of New

York, New York, New York, for Defendants‐Appellees.

                              

2
GERARD E. LYNCH, Circuit Judge:

Plaintiff‐appellant Towanda Velez (“plaintiff”), representing the estate of

her deceased son, Anthony Velez, brought this action against defendants‐

appellees the City of New York, and two New York City police officers, Rudolph

Hall and Michael Ruggiero, in the United States District Court for the Eastern

District of New York (Eric N. Vitaliano, Judge), alleging that the defendants were

liable for her son’s death.1

  Anthony Velez (“Velez”) was shot and killed shortly

after a team of officers acting under Ruggiero’s supervision searched an

apartment based on a confidential tip from Velez.  A jury found that the

defendants were not liable for Velez’s death.  On appeal, plaintiff contends that

she is entitled to a new trial for two reasons.  First, plaintiff takes issue with the

district court’s jury instructions, which required the jury to find that Hall and/or

Ruggiero had a “special relationship” with Velez in order to find them or the City

liable for negligently causing Velez’s death.  Plaintiff contends the instructions

were erroneous because (1) a special relationship existed as a matter of law; (2)

the special relationship rule is limited to cases of nonfeasance as opposed to

1 Plaintiff originally sued a number of unnamed “John Doe” officers, but

later voluntarily dismissed the action against all individual police officers other

than Hall and Ruggiero.

3
misfeasance; and (3) the City could be found to have a “special relationship” with

Velez based on the acts or knowledge of some combination of City agents, not

limited to Hall and Ruggiero.  Second, she asserts that the district court erred by

dismissing plaintiff’s state law negligent training claims against the City on the

grounds that the officers were acting within the scope of their employment.

Because we find no error entitling plaintiff to a new trial, we AFFIRM the

judgment of the district court.  

BACKGROUND

I. Underlying Events2

In 2002, after becoming acquainted with Officer Hall, Velez began working

with the New York City Police Department as a confidential informant. Hall,

who was Velez’s secondary handler, sometimes received tips from Velez

regarding criminal activity. Velez’s tips were used to support search warrant

applications until early 2004, when a state trial court judge deemed Velez

unreliable. From that point, although Velez may no longer have been an official

confidential informant, he continued to communicate with Hall, conveying

2 We describe the trial evidence in the light most favorable to the jury’s

verdict.  See Taylor v. Brentwood Union Free Sch. Dist., 143 F.3d 679, 685 (2d Cir.

1998).  

4
information concerning criminal activity.3

In February 2004, Velez contacted Hall regarding a criminal named

“Sonny,”and advised that he had seen drugs and weapons at Sonny’s apartment.

Velez asked Hall for the telephone number for Gunstoppers, a program that

provides monetary awards to individuals who anonymously report information

about guns.4 Hall gave Velez the number, and advised his supervisor, Michael

Ruggiero, that the department would receive a Gunstoppers tip. While Hall

never revealed the source of the tip, Ruggiero had a “pretty good idea” that it

had come from Velez.

Velez’s Gunstoppers tip was referred to Ruggiero’s unit.  Ruggiero ran

computer checks on the apartment location and found five active arrest warrants,

3 The parties continue to dispute whether Velez remained a registered

confidential informant or whether he was officially deactivated after being

deemed unreliable.  We need not resolve that disagreement.  A duty to protect

those who collaborate with police officers in the arrest or prosecution of criminals

arises “once it reasonably appears that [the collaborators] are in danger due to

their collaboration,” Schuster v. City of New York, 5 N.Y.2d 75, 81 (1958), and

does not turn on whether the collaborator was officially registered as a

confidential informant.  

4 NYPD Rewards,

http://www.nyc.gov/html/nypd/html/home/rewards.shtml (last visited Sept. 17,

2013).

5
including a parole warrant, for persons residing at that address. None of the

warrants was for anyone named Sonny. Ruggiero explained to his team that they

would proceed to the apartment and arrest any of the subjects of the arrest

warrants, and debrief those persons later at the station house to determine

whether any had information that might support a search warrant. No officers

discussed Velez as the possible source of the tip.

When Ruggiero and the other officers arrived at the apartment, Velez

unexpectedly appeared at the doorway. Although Ruggiero recognized Velez, he

did not alert any of the other squad members of Velez’s identity. Ruggiero

instructed another officer to hold Velez in the hallway, while the rest of the squad

entered the apartment, where they saw a woman and another man.5 The woman

gave the officers permission to search the rear bedroom, where they found a gun

inside a dresser drawer, and drugs in plain view.  Ruggiero arrested the woman

and the man, who was the subject of the outstanding parole warrant.  Sonny was

not at the apartment.

5 Ruggiero testified that a small child was also in the apartment at the time.

Officers gave the child to a neighbor.  

6
The officers did not arrest Velez, as he did not fit the description of anyone

named in the arrest warrants. Shortly after officers arrived back at the precinct

with the arrestees, Ruggiero learned that a man had been shot outside the

entrance of the apartment.  The victim, as it turned out, was Velez.  When police

arrived at the scene, Velez, who was still conscious, told officers that “Sonny shot

me.”  Velez died several hours later.6

II. Procedural History

Plaintiff, as representative of Velez’s estate, subsequently initiated this

lawsuit, asserting five causes of action under 42 U.S.C. § 1983 and New York state

law, seeking to hold defendants liable for Velez’s pain, suffering, and wrongful

death. Plaintiff’s theory of recovery was, in essence, that by failing to take Velez

into custody at the same time that they arrested the other individuals in the

apartment, the officers exposed Velez’s identity as the source of the tip, and thus

failed to protect him from the retribution that sometimes befalls those who act in

concert with law enforcement officials.  Specifically, plaintiff asserted a federal

claim against the City of New York pursuant to Monell v. Department of Social

6 The record does not reflect that anyone was ever convicted of Velez’s

murder.

7
Services, 436 U.S. 658 (1978), based on the City’s failure to provide adequate

training and supervision to the individual defendants; a federal claim against the

individual defendants based on their violation of Velez’s substantive due process

rights;7 a state common law claim against all defendants for negligence resulting

in “the pain, suffering, and wrongful death” of Velez; a claim against all

defendants based on the alleged violation of Velez’s rights under the New York

State Constitution; and a state law negligence claim against the City based on its

negligent training and supervision of the individual defendants.

The case proceeded to trial before a jury.  At the close of the trial, the

district court granted the City’s verdict for judgment as a matter of law with

respect to the Monell claim, the state constitutional claim, and the state law

negligent training claim. On appeal, of those claims on which the district court

entered judgment as a matter of law, plaintiff challenges only the dismissal of the

7 Plaintiff alleged that the defendants violated Velez’s constitutional rights

by failing to protect him“based on both the existence of a special relationship

between decedent and the defendants and the actions of the defendants in

placing decedent in a ‘state created danger.’” Joint Pretrial Order at 2, Velez v.

City of New York, No. 04‐CV‐1775 (ENV) (MDG), 2012 WL 1237646 (E.D.N.Y.

Apr. 12, 2012).

8
negligent training claim.8

  

The two remaining claims – a § 1983 claim, based on a substantive due

process theory, and a state law negligence claim – were submitted to the jury.

With respect to the state law negligence claim, the district court instructed the

jury that in order to find negligence, the jury first had to determine whether the

police officers owed a duty of care to Velez.  As the district court explained:

Generally, the police owe a duty to provide protection

to the public at large, rather than any particular

individual.  There is an exception where there is a

special relationship between the City and the injured

party. . . . Under New York State law, this exception has

four elements:

First, that the City, through promises or actions, took on

an affirmative duty with regard to Anthony Velez.

Second, knowledge on the part of the officers that

inaction could lead to harm to Anthony Velez.

Third, some form of direct contact between the officers

and Anthony Velez.

Fourth, that Anthony Velez justifiably relied on the

City’s affirmative actions or promises.

8 This challenge is properly before us.  Where, as here, a party files a

motion for a new trial, the time to file an appeal runs from the entry of the order

disposing of that motion.  See Fed. R. App. P. 4(a)(4)(A)(v).  

9
If the plaintiff fails to show any of these four elements,

then you cannot find that the police owed a duty to

protect him.

App’x 971.  The jury returned a verdict for defendants on the negligence claim,

expressly finding that plaintiff had failed to establish the second element of the

special relationship test, namely, knowledge on the part of Hall and Ruggiero

that their inaction could lead to harm to Velez.9

Plaintiff moved for a new trial pursuant to Federal Rule of Civil Procedure

59, contending, as relevant to this appeal, that the jury charge was erroneous and

that the district court had improperly dismissed the state law negligent training

claim before submission to the jury. As to the jury instructions, plaintiff

contended that she was entitled to an “ordinary negligence” instruction, and that

in any event, she was not required to prove a special relationship with respect to

any particular City employee. The district court denied plaintiff’s motion, Velez

v. City of New York, No. 04‐CV‐1775 (ENV) (MDG), 2012 WL 1237646 (E.D.N.Y.

Apr. 12, 2012), holding that plaintiff’s ordinary negligence argument was “wholly

without merit,” and that the jury was properly instructed on the elements of the

9 The jury also returned a verdict for defendants on plaintiff’s substantive

due process claim. Because plaintiff raises no challenge relevant to that aspect of

the verdict, we do not discuss it further.

10
special relationship test.  Id. at *2.  The district court also noted that under New

York law “the great weight of authority teaches that a negligent training claim is

viable . . . only when the alleged wrongful conduct occurred outside the scope of

employment.” Id. at *6 (emphasis in original).  This timely appeal followed.  

DISCUSSION

I. Standard of Review

In general “we review for abuse of discretion a district court’s denial of a

motion for a new trial pursuant to Rule 59,” Bucalo v. Shelter Island Union Free

Sch. Dist., 691 F.3d 119, 128 (2d Cir. 2012), but where the basis of the Rule 59

motion is an erroneous jury instruction, we review the jury instructions de novo,

see Cobb v. Pozzi, 363 F.3d 89, 112 (2d Cir. 2004); Gordon v. New York City Bd.

of Educ., 232 F.3d 111, 115 (2d Cir. 2000).  “A jury instruction is erroneous if it

misleads the jury as to the correct legal standard or does not adequately inform

the jury on the law.” Gordon, 232 F.3d at 116 (internal quotation marks omitted).

An erroneous jury instruction requires a new trial, unless the error is harmless.

Rasanen v. Doe, — F.3d —, 2013 WL 3766538, at *5 (2d Cir. July 19, 2013).  

“We review de novo a district court’s decision to grant a Rule 50 motion for

judgment as a matter of law,“ Cash v. County of Erie, 654 F.3d 324, 332 (2d Cir.

11
2011), applying the same standard as the district court, see Zellner v. Summerlin,

494 F.3d 344, 371 (2d Cir. 2007).  The standard is a stringent one, and the movant

may prevail only when “a party has been fully heard on an issue during a jury

trial and the court finds that a reasonable jury would not have a legally sufficient

evidentiary basis to find for the party on that issue.”  Fed. R. Civ. P. 50(a)(1).  

II. Analysis

A. Jury Instructions

On appeal, plaintiff primarily challenges the district court’s jury

instructions regarding the “special relationship” test, identifying three separate

errors.  First, plaintiff contends that because Velez had acted as a police

informant, he had a special relationship with the officers as a matter of law.

Second, she asserts that the special relationship test applies only in cases of

nonfeasance, and that the police officers’ actions that may have disclosed Velez

as the source of the tip constituted misfeasance rather than nonfeasance.  Third,

plaintiff argues that it was error to require the jury, in order to return a

negligence verdict against the City, to find that all of the elements of the special

relationship test were proven as to one of the individual defendants.  The

arguments are all without merit.   

12
A recent decision of the New York Court of Appeals clearly lays out the

governing principles of New York law regarding the duties owed by

municipalities and their employees, and in so doing, makes clear that the district

court was correct to require the jury to find a special relationship in order for

liability to attach.  See Applewhite v. Accuhealth, Inc., — N.Y.3d —, 2013 N.Y.

LEXIS 1672 (June 25, 2013).  

When a negligence claim is asserted against a municipality or its

employees, the threshold inquiry is “whether the municipal entity was engaged

in a proprietary function or acted in a governmental capacity at the time the

claim arose.”  Id. at *4.  A municipality performs a governmental function when

its acts are “undertaken for the protection and safety of the public pursuant to the

general police powers.”  Sebastian v. State of New York, 93 N.Y.2d 790, 793 (1999)

(internal quotation marks omitted).  Providing police protection has long been

recognized as a quintessential governmental function.  See Valdez v. City of New

York, 18 N.Y.3d 69, 75 (2011).

Where, as here, a municipality undoubtedly acts in a governmental

capacity, a plaintiff may not recover without proving that the municipality owed

13
a “special duty” to the injured party.10  Valdez, 18 N.Y.3d at 75.  The core

principle is that “to sustain liability against a municipality, the duty breached

must be more than that owed the public generally.”  Id. (internal quotation marks

and alteration omitted).  The plaintiff bears the burden of proving a special

relationship, and “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.”  Applewhite, 2013 N.Y. Lexis 1672, at *7.   

To establish a special relationship beyond the duty that is owed to the

public generally, four elements must be present:

(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.  

10 New York case law appears to use “special duty” and “special

relationship” interchangeably.  A special duty or relationship arises in “three

situations: (1) the plaintiff belong[s] to a class for whose benefit a statute was

enacted; (2) the government entity voluntarily assume[s] a duty to the plaintiff

beyond what was owed to the public generally; or (3) the municipality [takes]

positive control of a known and dangerous safety condition.”  Applewhite, 2013

N.Y. LEXIS 1672, at *7 (internal citation omitted).  Here, plaintiff’s argument is

premised on the second of those alternatives.  

14
Id. at *16 (internal quotation marks and citations omitted).  The distinction

between nonfeasance and misfeasance is “irrelevant to the . . . analysis,”id. at *7

n.1, and the existence of a special relationship is a question of fact that may be

properly submitted to a jury, id. at *16‐17.

1. Special Relationship as a Matter of Law

The foregoing principles are fatal to plaintiff’s contentions.  First, it is clear

that under New York law, a special duty instruction was entirely appropriate in

this case, and that the district court was under no obligation to declare the

existence of a special relationship as a matter of law.  As Applewhite holds,

whether a special relationship exists is ordinarily a jury question.  Id.  Although a

municipality “owes a special duty to use reasonable care for the protection of

persons who have collaborated with it in the arrest or prosecution of criminals,”

Schuster, 5 N.Y.2d at 80, such a duty attaches only “once it reasonably appears

that [the collaborators] are in danger due to their collaboration,” id at 81.  Thus,

the fact that Velez had provided information to the police does not, by itself,

establish the existence of a special duty; whether such a duty exists depends on

the factors set out in Applewhite, including the officers’ knowledge of a danger

to Velez and reliance by him on police protection.  The evidence adduced at trial

15
did not compel the conclusion that a threat to Velez’s life was reasonably

apparent, nor that any such threat had been reported to police officers.  Thus, the

issue was properly submitted to the jury, and the jury specifically found that the

plaintiff had failed to prove that either Hall or Ruggiero “had knowledge that his

action or inaction could lead to harm to Anthony Velez.”  App’x 35‐36.

2. Misfeasance vs. Nonfeasance

Second, Applewhite explicitly rejects plaintiff’s contention that a special

relationship is required only in cases of nonfeasance, as opposed to misfeasance

on the part of public officials, 2013 N.Y. LEXIS 1672, at *7 n.1, and emphatically

states that a special duty is required whenever a plaintiff seeks to impose liability

for the negligent performance of governmental functions such as policing.11  Id. at

*7.  The district court’s instructions on the definition of the requisite special duty,

11 Under New York law, police officers, and by extension municipalities,

may be liable in tort where the officers acting in the scope of their employment

“commit[] an ordinary tort that anyone else might commit – for example, when

the employee is negligent in driving a car or firing a gun.”  See Applewhite, 2013

N.Y. LEXIS 1672, at *19‐20 (Smith, J., concurring).  We have no occasion to

consider the boundaries of police conduct that may constitute ordinary torts, but

note that whether characterized as a failure to provide police protection to Velez,

or as negligently allowing his murderer to infer Velez’s identity, the tort alleged

by plaintiff amounts to negligent performance of policing functions, and has no

obvious analogue in a tort that “anyone else might commit,” id.

16
see supra p. 9‐10, exactly traced the elements specified by the New York Court of

Appeals in Applewhite.  

3. Knowledge on the Part of Velez or Hall

Third, on the facts of this case, the district court correctly instructed the

jury that the elements of a special relationship had to be established as to Hall or

Ruggiero in order for municipal liability to attach.  Plaintiff is correct, in the

abstract, that a municipality may acquire knowledge through any of its agents,

and in some cases, the relevant knowledge may be acquired through a

combination of agents, including nondefendants.  See Sorichetti v. City of New

York, 65 N.Y.2d 461, 469 (1985) (holding that second element of special

relationship test may be satisfied through “police department[] knowledge”).  In

this case, however, Ruggiero and Hall were the only officers who had any

knowledge of Velez’s identity and of his role in the police operation at the subject

apartment.  Thus, the jury’s finding that neither Hall nor Ruggiero knew that

Velez was in danger is fatal to plaintiff’s claim against the City.  

Accordingly, we hold that there was no error in the jury instructions

regarding the operation of the special relationship test, and plaintiff is not

entitled to a new trial.  

17
B. Negligent Training Claim

Finally, plaintiff argues that the district court erred in dismissing her state

law negligent training claim.  On de novo review, we conclude that the claim

fails as a matter of law.  To maintain a claim against a municipal employer for the

“negligent hiring, training, and retention” of a tortfeasor under New York law, a

plaintiff must show that the employee acted “outside the scope of her

employment.”  Gurevich v. City of New York, No. 06 Civ. 1646 (GEL), 2008 WL

113775, at *6 (S.D.N.Y. Jan. 10, 2008) (internal quotation marks omitted)

(collecting cases).  If the employee acted within the scope of her employment, the

employer and the employee’s supervisors may be held liable for the employee’s

negligence only under a theory of respondeat superior.  See Karoon v. N.Y.C.

Transit Auth., 659 N.Y.S.2d 27, 29 (1st Dep’t 1997).  “This is because if the

employee was not negligent, there is no basis for imposing liability on the

employer, and if the employee was negligent, the employer must pay the

judgment regardless of the . . . adequacy of the training.”  Id.   Plaintiff conceded

that the defendants were acting within the scope of their employment, thus

judgment as a matter of law was warranted on the negligent training claim.  

18
CONCLUSION

For the foregoing reasons the judgment of the district court is AFFIRMED.  

19