decision in 2010’s Cunningham v. City of New York, 28 Misc.3d 84 (App.T., 1st Dep’t, 2010) looks suspiciously like Marbury v. Madison.
Jacqueline Bouet was struck by a vehicle while crossing the street in Manhattan. NYPD officers neglected to record the identity of the operator or owner of the offending vehicle. AD1 decides that the City is entitled to SJ because the investigation at the scene is a "governmental function" and, without a "special duty", the City cannot be held liable for negligence.
In Cunningham, AppT1 had found that such duties were not discretionary and enacted particularly for the benefit of plaintiff’s class, i.e., auto accident victims. This created a special relationship between plaintiff and the NYPD.
In Bouet, AD1 felt the absence of a private right of action under the VTL for failure to exercise their reporting duties was fatal, while in Cunninghmam, AppT1 says that the Legislature "left the mechanism of enforcement to the court."
Who wins? AD1, of course: "We find Cunningham unpersuasive and decline to follow it." It’s good to be king.