| Serradilla v Lords Corp. |
| 2008 NY Slip Op 03092 [50 AD3d 345] |
| April 8, 2008 |
| Appellate Division, First Department |
| Lisa A. Serradilla et al., Respondents, v Lords Corporationet al., Defendants, and Ronald Vargo et al., Appellants. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for Cityof New York, appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York (Richard E. Lerner ofcounsel), for Nathan Barotz, appellant. Law Offices of Victor A. Worms, P.C., New York (Victor A. Worms of counsel), forrespondents.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered on or aboutFebruary 27, 2007, which denied defendants-appellants' motions for summary judgmentdismissing the complaint as against them, unanimously modified, on the law, to dismissplaintiff's first three causes of action as against defendant City of New York, and otherwiseaffirmed, without costs.
Plaintiffs allege that they purchased a single room occupancy multiple dwelling for thepurpose of renovating it and occupying it as a single-family home, but were unable to commencethe renovation because a vacate order issued before they took title had not been cured, precludingissuance of the certificate of no harassment that was needed to obtain a building permit(see Administrative Code of City of NY § 27-198). Plaintiffs further allege thatthey were unaware of the existence of the vacate order, or of the need for a certificate of noharassment, due to the negligence of defendants-appellants—the attorney who representedplaintiffs at the closing, the architect who prepared the renovation plans and submitted them tothe City's Department of Buildings, and the City of New York whose Department of HousingPreservation and Development (HPD) issued the vacate order and is the agency authorized toissue certificates of no harassment. Plaintiffs' first cause of action as against the City fornegligence should be dismissed for lack of evidence that the City owed plaintiffs, as opposed tothe general public, a [*2]duty to serve, file or publish the vacateorder (see Lauer v City of New York, 95 NY2d 95, 100-101 [2000]). Plaintiffs were notthe record owners of the building at the time the vacate order was issued, and the recordestablishes that the City complied with the procedures in place at that time. Nor do plaintiffsadduce evidence that HPD assumed an affirmative duty to act on their behalf, or that HPD'sagents knew that inaction would harm them, such as might raise an issue of fact as to whether theCity owed plaintiffs a duty to serve, file and publish the vacate order based on a "specialrelationship" (see id. at 102). Plaintiffs' second cause of action for illegal denial of thebuilding permit should be dismissed because the City's decision whether to issue a permit isdiscretionary, and thus immune from lawsuits (see City of New York v 17 Vista Assoc.,84 NY2d 299, 307 [1994]). While the City raised this issue for the first time on appeal, "there isa sufficient record on appeal and the issue is determinative" (Matter of Allstate Ins. Co. vPerez, 157 AD2d 521, 523 [1990]). Plaintiff's third cause of action for "financial hardship"should be dismissed as derivative of the first two causes of action. The City's challenges toplaintiffs' fifth and sixth causes of action for denial of due process and regulatory taking ofproperty, as moot and/or premature, were improperly raised for the first time in the City's replypapers, and we decline to consider them (see Dannasch v Bifulco, 184 AD2d 415,416-417 [1992]). We note the absence of argument on plaintiffs' fourth cause of action.Concerning plaintiffs' cause of action against the architect for professional malpractice alleging,inter alia, his failure to obtain a certificate of no harassment, issues of fact exist, including whenthe architect's professional relationship with plaintiffs ended, and thus whether the complaint asagainst him is time-barred under CPLR 214 (6) (see N. R. S. Constr. Corp. v Board of Educ.,Cent. School Dist. No. 2, Towns of Yorktown, New Castle & Cortlandt, 82 AD2d 876[1981]). Such issue is raised by documentary evidence tending to show that the architect wasretained not just to draft construction plans but also to obtain Building Department permits andapprovals (see Matter of Kohn Pederson Fox Assoc. [FDIC], 189 AD2d 557, 558[1993]). Concerning the cause of action against the attorney for legal malpractice alleging, interalia, his failure to advise plaintiffs of the need for a certificate of no harassment, the attorneyfailed to meet his initial burden of coming forward with evidence establishing, inter alia, that hisonly obligation to plaintiffs was to ensure that marketable title was transferred at closing and thatthe requisite standard of care did not require that he advise plaintiffs, prior to closing, of the needfor a certificate of no harassment (see Estate of Nevelson v Carro, Spanbock, Kaster &Cuiffo, 259 AD2d 282, 283-284 [1999]). Concur—Tom, J.P., Saxe, Nardelli andWilliams, JJ.