| Battaglia v Town of Bethlehem |
| 2007 NY Slip Op 09994 [46 AD3d 1151] |
| December 20, 2007 |
| Appellate Division, Third Department |
| Anthony A. Battaglia, Individually and as President of BattagliaFruit and Produce Company, Inc., et al., Appellants, v Town of Bethlehem,Respondent. |
—[*1] Pennock, Breedlove & Noll, L.L.P., Clifton Park (Tracy M. LaRocque of counsel), forrespondent.
Kane, J. Appeals (1) from an order of the Supreme Court (McNamara, J.), entered February23, 2006 in Albany County, which partially granted defendant's motion for summary judgmentdismissing the complaint, and (2) from an order of said court, entered July 27, 2006 in AlbanyCounty, which granted defendant's motion for summary judgment dismissing the complaint.
Plaintiff Anthony A. Battaglia (hereinafter plaintiff) is the owner of plaintiff companies. InOctober 1999, he purchased property located on Delaware Avenue in the Town of Bethlehem,Albany County. Behind the building was a steep ravine leading down to Normanskill Creek.Plaintiff painted the building, installed a sign, and prepared the property to open a retail producestore in early May 2000. Two weeks prior to the store opening, Kevin Shea, defendant's deputybuilding superintendent, allegedly informed plaintiff that plaintiff needed to construct a fencealong the rear of his property and prohibit a certain individual from dumping wood chips behindthe property. Plaintiff built the fence and barred the individual from dumping. After the store wasopen for a few weeks, a landslide caused plaintiffs' building to slide down the ravine into thecreek.
Plaintiffs commenced this action alleging that defendant breached a special duty owed [*2]to plaintiffs, negligently maintained Delaware Avenue andNormanskill Creek, permitted a nuisance by not curtailing the dumping on plaintiff's propertyand breached a contract with plaintiffs. Defendant moved for summary judgment dismissing thecomplaint. Supreme Court partially granted the motion by dismissing the breach of contract andspecial duty claims, and denied the remainder of the motion with leave to renew. Defendantthereafter successfully moved for summary judgment seeking dismissal of the remaining claims.Plaintiffs appeal.
Defendant did not create or enjoy a special relationship with plaintiffs, requiring dismissal ofplaintiffs' claim for breach of a special duty. Governmental entities will only be held liable fornegligent performance of discretionary duties if a special relationship is established between theplaintiff and the governmental entity so as to create a special duty (see Pelaez v Seide, 2 NY3d 186,198-199 [2004]; Cuffy v City of New York, 69 NY2d 255, 260 [1987]). "A specialrelationship can be formed in three ways: (1) when the municipality violates a statutory dutyenacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty thatgenerates justifiable reliance by the person who benefits from the duty; or (3) when themunicipality assumes positive direction and control in the face of a known, blatant and dangeroussafety violation" (Pelaez v Seide, 2 NY3d at 199-200 [citation omitted]; see Cooper v State of New York, 13AD3d 867, 868 [2004]).
Addressing the first manner of creating a special duty, even assuming that defendant had astatutory duty to enforce its dumping ordinances, those ordinances were enacted for aestheticreasons and to protect the health of the general public, not for any particular class of persons(see Pelaez v Seide, 2 NY3d at 200; see also Lauer v City of New York, 95 NY2d95, 100-101 [2000]). There is no allegation that defendant violated any other statutory duty.
Addressing the second manner of creating a special duty, although defendant's employee,Shea, had direct contact with plaintiff regarding building a fence and prohibiting dumping, thiscontact did not constitute a promise or action by defendant leading to an affirmative duty to acton plaintiffs' behalf nor would it be reasonable for plaintiffs to rely on Shea's comments as proofthat the property was stable and suitable for running a business (see Pelaez v Seide, 2NY3d at 202). In fact, plaintiff acknowledged that Shea never stated the reason a fence must bebuilt, and Shea's instructions put the burden on plaintiffs to prevent dumping on the property.Contradicting any claims of justifiable reliance on defendant's alleged promises or actions, beforeever talking to Shea plaintiff (1) purchased the property without an environmental survey orinspection of the property itself, (2) cleaned and painted the store, and (3) otherwise prepared toopen the store (compare Kircher v City of Jamestown, 74 NY2d 251, 258 [1989]). Thereis no indication that plaintiffs changed position based upon Shea's comments. Plaintiffacknowledged that he would not have let anyone dump wood chips on his property regardless ofShea's comments. Thus, defendant did not assume a special duty to plaintiffs because Shea didnot promise to take any action nor did he make any representations upon which plaintiff couldjustifiably rely.
As for the third manner of creating a special duty, defendant did not take positive directionand control over a known safety violation. The record fails to show that defendant was aware ofany blatant safety violation (compare Smullen v City of New York, 28 NY2d 66, 71-72[1971]). Knowledge that an individual was dumping wood chips for years does not translate intoknowledge that the ravine was prone to landslides, especially considering that prior businesseshad operated on the property for 30 to 35 years without such problems. Under the circumstanceshere, defendant did not assume any special duty toward plaintiffs, requiring dismissal of that[*3]cause of action.
Supreme Court properly dismissed plaintiffs' causes of action based on nuisance andnegligent maintenance of the property because defendant did not owe plaintiffs a duty of care."[L]iability for a dangerous or defective condition on property is generally predicated uponownership, occupancy, control or special use of the property . . . Where none ispresent, a party cannot be held liable for injuries caused by the dangerous or defective conditionof the property" (Turrisi v Ponderosa, Inc., 179 AD2d 956, 957 [1992] [citation omitted];see Noble v Pound, 5 AD3d936, 938 [2004]). A licensed engineer and surveyor averred, based upon his prioremployment with the Department of Transportation and his review of attached documents, thatthe state owned and controlled Delaware Avenue, also known as State Route 443, since at least1927 and had a permanent easement for drainage pipes near plaintiffs' property. A title examineraffirmed that defendant did not own the land containing the ravine behind plaintiffs' property.Defendant's highway superintendent, as well as the engineer and surveyor, affirmed thatdefendant did not own, maintain or control any water or drainage systems under plaintiffs'property, Delaware Avenue, or the ravine behind plaintiffs' property. Without any contradictoryproof, this established defendant's lack of ownership of any land or water system at issue here.Absent ownership, occupancy or control of the property, defendant did not owe plaintiffs anyduty, and plaintiffs therefore could not hold defendant liable for any alleged negligence inmaintaining the property or creating a nuisance thereon (see Darby v Compagnie Natl. AirFrance, 96 NY2d 343, 347 [2001]; Phillips v KAPL, Inc., 20 AD3d 741, 741-742 [2005]).
By failing to contest dismissal of the breach of contract claim in their brief, plaintiffsabandoned any argument concerning that cause of action (see Pizarro v State of New York, 19 AD3d 891, 892 [2005], lvdenied 5 NY3d 717 [2005]; Fellionv Darling, 14 AD3d 904, 906 n [2005]). In any event, instructions from a municipality'sbuilding superintendent to build a fence do not create a contract between the municipality and theproperty owner.
Mercure, J.P., Spain, Carpinello and Mugglin, JJ., concur. Ordered that the orders areaffirmed, without costs.