Plumitallo v County of Nassau

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Plumitallo v County of Nassau 2011 NY Slip Op 33373(U) December 8, 2011 Supreme Court, Nassau County Docket Number: 20095/09 Judge: Karen V. Murphy Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. :......................... .,.... [* 1] Short Form Order SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 15 NASSAU COUNTY PRESENT: Murphv Justice of the Supreme Court Honorable Karen v: GRACE PLUMIT ALLO, an infant under the age of Index No. 20095/09 14 years by her parents and natural guardians, LOUIS PLUMITALLO and MICHELLE PLUMITALLO and LOUIS PLUMITALLO and MICHELLE PLUMITALLO, individually, Motion Submitted: 9/28/11 Motion Sequence: 004 Plaintiff(s), -againstCOUNTY OF NASSAU, TOWN OF OYSTER BA-Y, INCORPORATED VILLAGE OF BAYVLLE and ROBERT MONTAGNESE, Defendant(s ). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers.......................................................... Reply............................................................................. . Briefs: Plaintiff s/Petitioner ' s............,. Defendant' s/Respondent' s...................... ...... Defendant Vilage of Bayvile (" Vilage ) moves this Court for an Order granting summary judgment in its favor and dismissing the complaint and all cross claims. Plaintiffs oppose the requested relief, and assert that they are entitled to partial summary judgment in their favor declaring that there is a special relationship created between the Vilage and the infant plaintiff. [* 2] This action arises as the result of injuries sustained primarily by the infant plaintiff during a July 4 , 2008 celebration. The celebration took place on a beach in Bayvile , New York. . A bonfire had been lit and individuals were shooting offfireworks. What has been described as a "ball of flame " by the infant plaintiff s father struck the infant plaintiff on her upper thighs , causing bums. The complaint in this matter alleges that the Vilage was negligent in the ownership, operation , management, supervision , maintenance and control of the beach where the bonfire/fireworks occurred , and that as a result of the Vilage s negligence , the plaintiffs suffered injuries. The Court has previously granted summar judgment in favor of defendants County of Nassau and Town of Oyster Bay on the grounds that they do not own or maintain the propert where the celebration and accident occurred , and that they did not produce a fireworks display at that location. The Vilage asserts that it is entitled to summar judgment in its favor because it owed no special duty to plaintiffs and it does not own the propert on which the bonfire/fireworks were located. Plaintiffs assert that, because the Vilage failed to issue a fireworks display permit and/or enforce the State s fireworks permit law, a special relationship was created between it and the infant plaintiff. Plaintiffs further allege that the Vilage was aware of the bonfires/fireworks occurring on the beach , but did nothing to stop the activity by enforcing New York' s permit laws. In the alternative , plaintiffs contend that further discovery is necessar pursuant to CPLR 9 3212 (1) in order to ascertain whether the Vilage " endorsed" the bonfire/fireworks. This Court recognizes that summary judgment is a drastic remedy and as such should (Andre only be granted in the limited circumstances where there are no triable issues 2d 131 (1974)). Summar judgment 35 N. 2d 361 , 320 N. 2d 853 362 N. should only be granted where the court finds as a matter oflaw that there is no genuine issue 41 A. D.3d 755 , 837 N. S.2d 594 (2d Dept. , 2007)). The Court' s analysis of the evidence must be viewed in the light most favorable to the non-moving 2d 621 (2d Dept. , 2005)). D.3d 625 , 796 N. offact. v. Pomeroy, as to any material fact. (Cauthers v. Brite Ideas, LLC, par (Makaj v. Metropolitan Transportation Authority, Plaintiffs assert that the Vilage has failed to prove that it does not own the beach where the display was located. The Court rejects plaintiffs ' argument in light of the affidavit ofthe Vilage Administrator , Maria Alfano- Hardy. ," [* 3] inMcLean v. City of New York (12 Y.3d 194 203, 905 N. 2d 1167 , 878 N. S.2d 238 (2009)) is that (g)overnment action if discretionary, may not be a basis for liabilty, while ministerial actions may be , but only ifthey violate a special duty owed to the plaintiff, apar from a duty to the public in general." The rule of governmental immunity made clear Discretionar acts cannot serve as a basis for municipal liability, even if the conduct is (McLean, supra; see also Donald v. State of New York 17 N. Y.3d 389 395- 396 2d 552 (2011)). Thus , if a governental action is considered 953 N. 2d 790 , 929 N. discretionar, there is no need to determine if a special duty or relationship existed between plaintiff and defendant municipality. negligent A governental action is considered " discretionar " ifit involves " conduct involving the exercise of reasoned judgment. . . . By contrast , ministerial acts mean( ) conduct requiring adherence to a governing rule , with a compulsory result. . . . (Lauer v. City of New York 95 N. Y.2d 95, , 733 N. 2d 184 , 711 N. 2d 112 (2000)). Accordingly, the Court wil first address plaintiffs ' contention that they are entitled to partial summary judgment pertaining to the existence of a special relationship between the Vilage and the infant plaintiff. Plaintiffs assert that the Vilage failed to enforce New York State s fireworks permit law found in Penal Law 9 405. , and that the Vilage did not ensure that the requirements outlned in that statute were fulfilled with respect to the bonfire/fireworks that caused injury to the infant plaintiff. Penal Law 9 405. 00 is entitled "Permits for public displays of fireworks, " although there is authority that it applies to permits for private displays of fireworks as well (2011 ); 2010N. Y. Ope Att. Gen. (Inf. Y. Op. Atty. Gen. No. 8, 2011 WL 3025685 (N. 1001 2010 WL 2644774 (N. In that same 2011 Opinion , which is cited by plaintiffs, the Attorney General states that " we are of the opinion that the text and structure of the statute (Penal Law 405. 00) rather than a ministerial one mandated as a consequence of the successful completion of an application. The Legislature consistently used the term ' may ' rather than ' shall' in connection with the issuance of a permit for the display of fireworks " (emphasis added). make approval and issuance of a fireworks display permit a discretionary aCt Upon review of the statute relied upon by plaintiffs , the Court is in agreement with the Attorney General' s Opinion. The statute clearly grants discretion to the permit authority through the use of the word " may, " and further vests the permit authority, in this case the Vilage , to require " such other information as the permit authority may deem necessary to [* 4] protect persons and 405. 00 th/). (penal Law propert" Thus , the Vilage canot be held liable for the alleged failure to enforce Penal Law 9 405. 00, and this Court need not determine whether there was a special relationship between the Vilage and the infant plaintiff. Accordingly, plaintiffs have failed to establish their entitlement to summar judgment as a matter of law. Thus , plaintiffs ' motion for partial summary judgment is denied. Conversely, and as a matter oflaw based upon the foregoing analysis , defendants have established their entitlement to summary judgment. The Vilage does not have a special duty, or relationship with, the infant plaintiff (see Clarke v. City of New York, 82 because the act complained of is not a " Santos v. County of Westchester 2d 913 (2d Dept. DJd 1143 , 920 N. Post v. County of Suffolk 80 A. DJd 682 2d 209 (2d Dept. DJd 710, 916 N. Shipley v. City of New York 80 A. DJd 171 , 908 915 N. S.2d 124 (2d Dept. Reidv. City of New York 79 A. D.3d 839, 912 N. S.2d410 2d425 (2dDept. ministerial" one , 2011); , 2011); , 2011); , 2010); (2d Dept., 2010)). In opposition to the Vilage s showing, plaintiffs have failed to raise a triable issue of fact. Thus , defendant Vilage s motion for summar judgment is granted. Plaintiffs ' alternative request for furter discovery pursuant to CPLR 9 3212(1) is denied. Plaintiffs have failed to demonstrate that further discovery is anything more than a 2d657 (2dDept. (Downeyv. Schneider 23 A. DJd 514 , 517 , 806 N. 2d 758 (2d Dept., 2003); 2005); Price v. County of Suffolk 303 A. D.2d 571 572 , 756 N. S.2d 100 (2d Dept. , 1997)). Greenberg v. McLaughlin 242 A. 2d 603, 604 662 N. fishing expedition The foregoing constitutes the Order of this Court. Dated: December 8 , 2011 Mineola , N. permit. It i undisputed that the Vilage did not issue a permit regarding these events of July 4 2008 , and based upon the paries ' submission , this Cour concludes that no one ever applied for a ENTFRED DEC 13 2011 NASSAU COUN1 S QFF'CE COUNTY CLERK'

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