Certain Interested Underwriters at Lloyd's v City of New York
Annotate this CaseDecided on December 20, 2013
Supreme Court, Richmond County
Certain Interested Underwriters at Lloyd's a/s/o 1153 CASTLETON AVENUE LLC and VICTOR BATTAGLIA, Plaintiffs,
against
The City of New York and NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, Defendants.
104775/2008
Thomas P. Aliotta, J.
The following papers numbered 1 to 5 were marked fully submitted on the 9th day of
October, 2013.
Papers Numbered
Defendants' Amended Notice of Motion
to Dismiss the Complaint and for Summary Judgment,
with Supporting Papers
(dated July 26, 3013)...................................................................................... 1
Plaintiff's Notice of Cross Motion for Leave to Serve
an Amended Notice of Claim, with Supporting Papers
(dated September 12, 2013)............................................................................ 2
Plaintiff's Affirmation in Opposition to Defendants' Motion
(dated September17, 2013)............................................................................. 3
Affirmation in Opposition to Plaintiff's Cross Motion
(dated September 19, 2013)............................................................................. 4
Plaintiff's Reply Affirmation
(dated September 23, 2013)............................................................................. 5
Upon the foregoing papers, the motion (Seq. No. 003) of defendants The City of New York and the New York City Department of Housing Preservation and Development for dismissal of the complaint pursuant to CPLR 3211(a)(7) and/or summary judgment is granted; plaintiffs' cross motion (Seq. No. 004) for, inter alia, leave to serve an amended notice of claim is denied.
Insofar as it appears on the papers before the Court, on September 15, 2007, certain premises located at 1153 Castleton Avenue, Staten Island, New York sustained extensive smoke, heat and water damage as the result of a fire at the adjacent premises known as 1155 Castleton Avenue. To the extent relevant, plaintiffs allege that the fire was started by vagrants who were able to enter the premises due to the municipal defendants' negligent failure to board-up the doors and windows. Plaintiff is the former insurer of the 1153 Castleton Avenue property, which is suing as the subrogee of the owners (i.e., 1153 Castleton Avenue LLC and Victor Battaglia) to whom it has paid the sum of $105,157.89 for property damages resulting from said fire. It alleges, in pertinent part, that at the time of the fire, The City of New York and its Department of Housing Preservation and Development (hereinafter, the "City" or "HPD") were inpossession and control of the 1155 Castleton Avenue property (hereinafter, the "subject premises") by virtue of the entry of a certain Judgment granted pursuant to Administrative Code §§11-412 and 11-412.1 by Justice Joseph J. Maltese on February 7, 2007 in an In Rem Tax Foreclosure Action bearing Index No. 1000/2005 as it related to said property. In particular, it is alleged that the loss was caused by the City's breach of its "duty to properly maintain [the] premises in a safe condition and [to] prevent unauthorized unknown individuals and/or vagrants from using the premises and igniting [the] fire."In moving for dismissal of the complaint pursuant to CPLR 3211(a)(7) and/or summary judgment, the City maintains that plaintiff has failed to plead or prove the existence of a special duty, without which liability cannot be imposed upon the municipal defendants as a matter of law. In support, the City maintains that the notice of claim and the complaint are devoid of the requisite factual allegations of a special relationship between the municipal defendants and either of the nominal plaintiffs, i.e., the owners of 1153 Castleton Avenue. The City further maintains that it cannot be held liable for negligence in maintaining, repairing, supervising and/or safeguarding the subject premises since it was not the owner of the property at the time in question. Finally, the City claims to be shielded from liability under the doctrine of governmental function immunity.
Initially, the City points to the in rem Judgment of Foreclosure relating to 1155 Castleton Avenue, which provides, in pertinent part, "that unless and until the Commissioner of Finance executes a deed conveying [the] parcels of real property pursuant to Administrative Code §11-412 to the City of New York...the owners of such lands shall continue to have all the rights, liabilities, responsibilities, duties and obligations of an owner, including, but not limited to, maintaining such lands in compliance with the housing maintenance, building and fire codes and all other applicable law; provided, however, that upon entry of judgment, HPD or its authorized agent may have access to the parcels herein described for the purposes of conducting inspections". In view of the foregoing caveat, it is claimed that the in rem Judgment of Foreclosure failed to confer ownership of the subject [*2]premises upon the City. Moreover, it is claimed that there is no evidence that the Commissioner of Finance has ever executed a deed to that effect.
The municipal defendants also point to the deposition testimony of Alexander DeMarco, an inspector and employee of the New York City Department of Housing Preservation and Development, who testified with reference to a certain "Violation Summary Report" pertaining to 1155 Castleton Avenue, that it was generated in response to the complaint of a nuisance (i.e., an accumulation of wood and tires in the rear yard), that was reported to HPD on August 30, 2007 (two weeks before the fire), and resulted in a "Notice of Violation" being sent to the subject premises 10 days before the fire requiring the owner to "abate the [reported] nuisance".[FN1] Moreover, according to the City, the only evidence of any interaction between an HPD inspector and an owner of 1153 Castleton Avenue (i.e., Mr. Battaglia) occurred several weeks prior to the date of the fire, and there is no proof of the inspector's claimed oral assumption of any duty on the part of HPD to, e.g., board-up the building. Neither is there any evidence that this inspector had reason to know that HPD's failure to secure the premises would lead to harm. Accordingly, the City contends that the adjoining property owner's purported "reliance [on this alleged promise] to his detriment" is legally insufficient to demonstrate the existence of a special duty owed to the owners of 1153 Castleton Avenue, or that any such duty was breached.
Finally, the City argues that notwithstanding the obvious pleading deficiencies, and assuming arguendo that plaintiff could establish that a special duty existed based on the facts of this case, the municipality is nevertheless immune from liability since the conduct complained of involves the performance of a discretionary governmental function. According to the City, the HPD's post-judgment inspection and assessment of the subject premises; its direction to abate the nuisance in the rear yard; and its inspector's recommendation that the building be "boarded-up", involved the exercise of judgment and the use of discretion. As such, the City claims to be entitled to absolute immunity for any damages resulting from the agency's alleged failure to act reasonably under the circumstances.
In opposition to the City's motion and in support of its cross motion for leave to amend the notice of claim, complaint and bill of particulars, plaintiff claims that a special duty to properly maintain and safeguard the subject premises arose by virtue of the City's in rem possession of same. Thus, plaintiff points to the uncontroverted deposition testimony of its insured and a nominal plaintiff, Victor Battaglia, in which he states that during HPD's inspection of the subject premises "a couple of weeks before the fire", an HPD inspector advised Mr. Battaglia and his tenant that the City "owned" the adjacent premises, and that HPD would "seal the building up". This particular "interaction" and the contemporaneous representations made by the HPD inspector are alleged to have created a special duty on the part of the City to safeguard the subject premises. In addition, plaintiff contends that while the existence of a special duty can reasonably be inferred from the [*3]factual allegations set forth in the existing notice of claim and complaint, leave should be granted to, e.g., amend the pleadings to provide a higher level of specificity as to the existence of a special duty.
As a general rule, "a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection, fire protection or ambulance services" (Etienne v New York City Police Dept., 37 AD3d 647,649). There is, however, a narrow class of cases in which the courts have recognized an exception to this public duty rule, and have upheld tort claims based upon the existence of a special relationship between the municipality and the claimant which imposes a specific duty upon the municipality to act on his or her behalf (see Miller v State of New York, 62 NY2d 506, 510; see also Cuffy v City of New York, 69 NY2d at 260; Napolitano v County of Suffolk, 61 NY2d 863; De Long v County of Erie, 60 NY2d 296, 304). As articulated by the Court of Appeals in Cuffy v City of New York, "[t]he elements of this special relationship are: (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" (Cuffy v City of New York, 69 NY2d at 260; see Freeman v City of New York, __ AD3d __, 2013 NY Slip Op 7707). However, where, as here, a municipality has invoked the so-called "governmental function immunity defense", it is now well settled that a public employee's discretionary acts, i.e., acts which involve an exercise of reasoned judgment, will not subject the municipality to liability, even where such conduct can be categorized as negligent (see Valdez v City of New York, 18 NY3d 69, 76; Lauer v City of New York, 95 NY2d 95, 99). "[E]ven if a plaintiff establishes all [the] elements of a negligence claim, a state or municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense and proves that the alleged negligent act or omission involved [an] exercise of discretionary authority *** [and] that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated" ( Valdez v City of New York, 18 NY3d at 76).
Thus, while acknowledging that the presence of both the public duty rule and the governmental function immunity doctrine in the same case has occasionally generated some confusion (id. at 77), the Court of Appeals has now definitely ruled that "[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty owed to the public in general" (id. at 76-77) [internal quotation marks omitted]; see McLean v City of New York, 12 NY3d 194, 203).
Consonant with the foregoing principles, it is the opinion of this Court that the moving defendants have met their prima facie burden of establishing a prima facie entitlement to judgment as a matter of law by demonstrating that the alleged negligent acts attributed to HPD through its inspector were discretionary rather than ministerial in nature (Kelsey v City of New York, 108 AD3d 689, 689; Arias v City of New York, 22 AD3d 436, 437). In opposition, plaintiff has failed to raise a triable issue of fact on its claim that HPD's [*4]actions, or the lack thereof, were ministerial rather than discretionary in nature, i.e., were acts taken in "direct adherence to a governing rule or standard with a compulsory result" (Tango v Tulevech, 61 NY2d 34, 41).
In any event, even if ministerial in nature, plaintiff has failed to raise a triable issue of fact as to the creation of a special relationship based solely on Mr. Battaglia's representation that an HPD inspector orally asserted to him that the subject premises would be boarded-up at some unspecified future time. Absent some additional facts, no triable issue has been raised regarding plaintiff's claim of "justifiable reliance" on the inspector's alleged promise simply because it was made (see Valdez v City of New York, 18 NY3d at 83-84; cf. Mastroianni v County of Suffolk, 91 NY2d 198 [officers' promise of additional assistance to a wife while her estranged husband remained in the area in violation of an order of protection, coupled with their continued presence at the scene of the domestic disturbance, held to raise a triable issue of fact as to the reasonableness of the officers' conduct in leaving the area without prior notice to the wife, whose subsequent death occurred at the hands of her estranged spouse]). As did the Court of Appeals in Valdez, this Court declines to "conflate [these] two separate elements of the special relationship test [lest] proof that a promise was made [routinely be deemed to] simultaneously fulfill both the promise' and justifiable reliance' elements of [the] four-prong test" (id.) Although, in a colloquial sense, every promise implies fulfillment at some point in the indefinite future, "[t]he principle of justifiable reliance must be assessed through the prism of reasonableness" (id. at 84).
Turning to plaintiffs' cross motion for leave to amend, inter alia, the notice of claim, while "[a] determination whether to grant such leave is within the Supreme Court's broad discretion, and the exercise of that discretion will not be lightly disturbed, leave to amend a pleading should not be granted where the proposed amendment is palpably insufficient" (Freeman v City of New York, 2013 NY Slip Op 7707 at *6 [internal citations and quotation marks omitted]). In the case at bar, the proposed amendments are palpably insufficient to defeat the defense of governmental function immunity (see Valdez v City of New York, supra ; cf. Gotlin v City of New york, 90 AD3d 605, 607).
Accordingly, it is
ORDERED, that the motion of defendants The City of New York and the New York City Department of Housing Preservation and Development for, inter alia, summary judgment is granted, and the complaint is hereby dismissed; and it is further
ORDERED, the plaintiffs' cross motion for leave to amend the pleadings is denied; and it is further
ORDERED, that the Clerk enter judgment accordingly.
E N T E R,
Dated: December 20, 2013__/s/____________________
Hon. Thomas P. Aliotta
J.S.C.
Footnotes
Footnote 1: Also pertinent in this regard is the lack of any apparent nexus between the fire and the failure to abate the nuisance in the rear yard, inasmuch as Mr. Battaglia claims that he was informed by a fire marshal that the fire originated inside the building on a mattress.
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