Tarpley v City of New York
Annotate this CaseDecided on June 1, 2010
Civil Court of the City of New York, New York County
Candece Tarpley, Claimant,
against
City of New York, Defendant.
2940/09
Kibbie F. Payne, J.
Claimant Candece Tarpley commenced this small claims action against the City of New York seeking to recover money damages for damages to her car caused by a rodent that "ate up wires" in her car. This case was tried before the Small Claims Part of the Civil Court of the City of New York on March 25, 2010. Candece Tarpley testified on her own behalf and Kiyo Tarpley and Zaum Dertaulian testified briefly. The witnesses were candid, forthright, and I give full credence to their testimony.
The findings of fact are briefly stated as follows: Ms. Tarpley lives in the Upper West Side of Manhattan near the Museum of Natural History. Ms. Tarpley testified there was a proliferation of rats in her neighborhood and she observed that rats would gnaw through the local restaurant's garbage bags that had been left overnight for sanitation disposal. According to Ms. Tarpley the rats would remove food from the garbage bags and then apparently to consume the food in a secure place would take the food into the engine area of parked cars. Ms. Tarpley observed many of her neighbors who would open the hoods of their cars to discover food leftovers such as chicken bones, steak bones and pasta. In order to deter rats from going into her car, Ms. Tarpley regularly placed a cheesecloth containing mothballs under the hood of the car. In this manner she could easily take and remove the mothballs without having to singly remove each mothball from the car. In April of 2008 Ms. Tarpley lifted the hood of her 1997 Mazda Protege, as was her usual practice before starting the car when she discovered a rat with what appeared to be a steak bone under the hood inside of her vehicle. This rat had eaten some of the car's inner wiring causing loss of horn [*2]functionality and damage to the engine harness. At trial Ms. Tarpley submitted car repair bills totaling $830.
Ms. Tarpley called 311 and reported the incident to the Department of Health and Mental Hygiene. She also contacted her local Councilwoman Gail Brewer. In response to her complaint, the Office of Pest Control performed an investigation of the area near West 88th Street between Riverside Drive and Western Avenue, during which inspectors observed rat burrows, structural holes, and gnawed marks at several properties in violation of the rodent control provisions of the Health Code. Ms. Tarpley testified the Office of Pest Control issued warnings and that the Office promised to conduct compliance inspections.
Claimant's essential argument in this case is that the municipality has the obligation to
safeguard the health and safety of its inhabitants by appropriately eliminating a proliferation of
vermin such as rodents and by the municipality's failure to do so her property was damaged.
Clearly, persons within this municipality are entitled to clean streets and the municipal agencies
respond to public health concerns. The state and federal constitutions guarantee a system of
representative government whereby aggrieved individuals may submit their complaints to be
remedied. The issue before this court is whether, when a municipality's efforts to eliminate
and/or reduce the rodent population fail does a citizen have an action at law. It is axiomatic that
before a defendant may be held liable it must be established that the defendant owes a duty to the
plaintiff (see Pulka v Edelman, 40 NY2d 781, 782; Palsgraf v Long Island R.R. Co.,
248 NY 339, 342). In the absence of a duty there can be no breach of duty and without a
breach there is no liability (Kimbar V Estis, 1 NY2d 399, 405). Long ago New York
State waived its immunity from liability when it enacted the court of claims.[FN1] It is well settled that a
municipality's duties are "owed to the public at large and not to any particular individual or class
of individuals" (Cuffy v City of New York, 69 NY2d 255, 260; H.R. Moch Co. v
Rensselaer Water Co., 247 NY 160, 164). However, there is a limited and narrow class of
cases in which the Court of Appeals has recognized an exception to the general rule and upheld
tort claims predicated upon the existence of a special relationship (Cuffy v City of New
York, supra; De Long v County of Erie, 60 NY2d 296, 304; Sorichetti v City of New
[*3]York, 65 NY2d 461, 469). In order to impose liability
upon a municipality as an exception to the rule the claimant must establish a "special
relationship" with representatives of the municipality by satisfying a four prong test, requiring
proof of direct contact between the citizen and her government, an assumption by the
municipality of an affirmative duty to act on behalf of the party, knowledge by agents of the
municipality that inaction could lead to harm, and justifiable reliance by the injured party
resulting in injury (see Laratro v City of
New York, 8 NY3d 79, 83). The elements are strictly construed and the right is reserved
for only a narrow class of cases. Here, Ms. Tarpley failed to demonstrate the existence of the
these four requirements. Additionally, she contacted the Department of Health and Mental
Hygiene, (Department), only after the rat damaged her vehicle. The claimant did not rely upon
the municipal agency, but instead she addressed her complaints to her local city councilwoman
who reported the severe rodent infestation to the Department on behalf of her constituents.
Although this court sympathizes with the claimant who commenced this small claims action
seeking to recover money for her motor vehicle damage caused by rodents, this decision is based
not upon sympathy or compassion but solely upon the evidence submitted by the parties in this
trial. In fact this court commends the claimant for her continued efforts to raise awareness of her
community's endemic rat problem. Nevertheless, in the absence of any demonstration of the
existence of any special relationship between the claimant and the municipality, this court cannot
hold the municipality subject to any tort liability. Accordingly, the complaint is dismissed. The
clerk is directed to mail the claimant her trial exhibits with a copy of this decision. The foregoing
constitutes the order and decision of this court.
Dated: June 1, 2010
_______________Kibbie F. PayneJ.C.C.
Footnotes
Footnote 1: Former §12- a ( now
§12 ) of the Court of Claims Act (L 1929, ch 467)
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