| Bhandari v Isis |
| 2007 NY Slip Op 08982 [45 AD3d 619] |
| November 13, 2007 |
| Appellate Division, Second Department |
| Guarav Bhandari et al.,Appellants-Respondents, v Marcellino Isis et al., Defendants, City of New York,Respondent, and Carmela Novellino, Appellant. |
—[*1] Abrams, Gorelick, Friedman & Jacobson, P.C., New York, N.Y. (Leonard G. Kamlet andAlexandra Rigney of counsel), for appellant Carmela Novellino, in her capacity as Executrix ofthe Estate of Angelina DeFranco. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and RonaldE. Sternberg of counsel), for respondent.
In a consolidated action to recover damages for personal injuries, etc., the plaintiffs appeal,as limited by their brief, from so much of an order of the Supreme Court, Queens County (Elliot,J.), entered July 6, 2006, as granted the motion of the defendant City of New York for summaryjudgment dismissing the complaint insofar as asserted against it, and the defendant CarmelaNovellino separately appeals from so much of the same order as denied that branch of her motionwhich was for summary judgment dismissing the complaint and all cross claims insofar asasserted against her in her capacity as executrix of the estate of Angelina DeFranco.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the cross motion of the defendant Carmela Novellino which was for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against her in hercapacity as executrix of the estate of Angelina DeFranco and substituting therefor a provisiongranting that branch of the cross motion; as so modified, the order is affirmed insofar as appealedfrom, with one [*2]bill of costs to the defendant City of NewYork and the defendant Carmela Novellino, in her capacity as executrix of the estate of AngelinaDeFranco, payable by the plaintiffs.
The infant plaintiff Guarav Bhandari lived in a two-family home owned by the estate ofAngelina DeFranco, situated next door to a home owned by the defendant Marcellino Isis, whichhad a swimming pool installed in its backyard. While a three-foot fence divided the backyards ofthe two homes, there was no gate installed on Isis's property to block access to his swimmingpool from an adjacent alleyway. Before the accident, Isis had torn down an old fence previouslyinstalled along the property line separating the two properties, as well as a latching gate that hadbeen erected on his property.
A complaint had been registered with the New York City Department of Buildings(hereinafter the Department) in July 2000 that the swimming pool was being constructed withouta permit. On October 22, 2000 the infant plaintiff was severely injured when he fell into Isis'sswimming pool. Although the Department marked the complaint a "priority B," requiring actionwithin 40 days, it did not investigate the complaint until the day after the accident, several weeksafter the 40-day period lapsed, at which time the Department issued a notice of violation againstIsis for his failure to install a proper gate near the swimming pool. The infant plaintiff thereafterentered into a persistent vegetative state as a result of the accident and his parents Arun Bhandariand Vijay Bhandari commenced this action.
Contrary to the plaintiffs' contention, Administrative Code of the City of New York §27-493 (b) contains no implied private right of action against the City based on its failure toinvestigate a code violation. Where, as here, a statute does not expressly authorize a private rightof action, "[o]ne may be fairly implied when (1) the plaintiff is one of the class for whoseparticular benefit the statute was enacted; (2) recognition of a private right of action wouldpromote the legislative purpose of the governing statute; and (3) to do so would be consistentwith the legislative scheme" (Pelaez vSeide, 2 NY3d 186, 200 [2004]). A review of the relevant provisions of theAdministrative Code indicates that allowing such a private right of action would be inconsistentwith the legislative scheme (see Pelaez v Seide, 2 NY3d at 201; Sheehy v Big FlatsCommunity Day, 73 NY2d 629, 634-635 [1989]). The remaining statutes and regulationscited by the plaintiffs are inapplicable here. Accordingly, the Supreme Court properly granted theCity's motion for summary judgment dismissing the complaint insofar as asserted against it.
A landowner has a duty to exercise reasonable care in maintaining his or her property in asafe condition under all of the circumstances, including the likelihood of injury to others, theseriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of apotential plaintiff's presence on the property (see Kurshals v Connetquot Cent. School Dist.,227 AD2d 593 [1996]). As a general matter, an owner owes no duty to warn others of, or toprotect others from, a defective or dangerous condition on neighboring premises, unless theowner created or contributed to it (Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]; Galperina v Mandelbaum, 27 AD3d520, 521 [2006]). However, it is possible that "some dangers from neighboring propertymight be so clearly known to the landowner, though not open or obvious to others, that a duty towarn would arise" (Galindo, 2 NY3d at 637). Here, the estate of Angelina DeFranco didnot cause or contribute to the dangerous condition on the neighboring property, and the dangerposed by the swimming pool on that property did not give rise to a duty on the part of the estateof Angelina Defranco to the infant plaintiff.[*3]
Accordingly, inasmuch as there can be no liability in theabsence of duty (see Pulka v Edelman, 40 NY2d 781, 782 [1976]; Spallholtz vHampton C.F. Corp., 294 AD2d 424 [2002]), the Supreme Court should have granted thatbranch of the cross motion of the defendant Carmela Novellino which was for summaryjudgment dismissing the complaint insofar as asserted against her in her capacity as executrix ofthe estate of Angelina DeFranco. Spolzino, J.P., Ritter, Covello and Dickerson, JJ., concur.