| Bell v Village of Stamford |
| 2008 NY Slip Op 04431 [51 AD3d 1263] |
| May 15, 2008 |
| Appellate Division, Third Department |
| Vera S. Bell, Respondent, v Village of Stamford,Appellant. |
—[*1] Gregory L. Kottmeier, Delhi, for respondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Coccoma, J.), entered November21, 2007 in Delaware County, which denied defendant's motion to dismiss the complaint.
Plaintiff owns and resides in a building in the Village of Stamford, Delaware County. Shealleges that Core Values, Inc. constructed a building and parking area on three vacant lots itowned across the street from her building without obtaining "a building permit, a variance or anyother permission to proceed" from defendant and that, after informing it of the unauthorizedactivities, defendant failed to take any action to stop the construction. On this basis, shecommenced this action against defendant claiming negligence and breach of contract. Thereafter,contending that plaintiff failed to allege sufficient facts to establish the requisite specialrelationship between it and plaintiff, defendant moved, in lieu of answering, to dismiss thecomplaint for failure to state a cause of action. Supreme Court denied the motion and defendantnow appeals.
Affording the complaint a liberal construction and construing all inferences in her favor (see Bailey v Chernoff, 45 AD3d1113, 1116 [2007]; Rickson v Town of Schuyler Falls, 263 AD2d 863, 864 [1999]),we find that plaintiff has failed to state a cause of action and her complaint must be dismissed."[I]t has long been the rule in this State that, in the absence of some special relationship creatinga duty to exercise care for the benefit of particular individuals, liability may not be imposed on amunicipality for failure to enforce a statute or regulation" (O'Connor v City of New York,58 NY2d 184, 192 [1983]; see Sanchez v Village of Liberty, 42 [*2]NY2d 876, 877-878 [1977]; Newhook v Hallock, 215AD2d 804, 805 [1995]). A special relationship may arise in three ways: "(1) when themunicipality violates a statutory duty enacted for the benefit of a particular class of persons; (2)when it voluntarily assumes a duty that generates justifiable reliance by the person who benefitsfrom the duty; or (3) when the municipality assumes positive direction and control in the face ofa known, blatant and dangerous safety violation" (Pelaez v Seide, 2 NY3d 186, 199-200 [2004]; see Garrett vHoliday Inns, 58 NY2d 253, 261-262 [1983]; Cooper v State of New York, 13 AD3d 867, 868 [2004]). Plaintiffhas failed to allege any facts which either directly or inferentially could be construed as sufficientto state cognizable claims under any of these three theories.
Regarding the first avenue, contrary to Supreme Court's conclusion, the adoption of zoningordinances and building codes by a municipality does not create a special relationship with itsresidents. Ordinances and codes enacted for the benefit of the general public do not, withoutmore, give rise to a special relationship between a municipality and an individual (seeO'Connor v City of New York, 58 NY2d at 189-191; Sanchez v Village of Liberty,42 NY2d at 877-878; Mahoney v Town of Santa Clara, 89 AD2d 718, 719 [1982],affd 58 NY2d 661 [1982]; Garrett v Town of Greece, 78 AD2d 773, 774 [1980],affd 55 NY2d 774 [1981]; see also Major v Waverly & Ogden, 7 NY2d 332, 335[1960]; Newhook v Hallock, 215 AD2d at 805; Johns v Village of Potsdam, 92AD2d 660, 660-661 [1983]). Plaintiff also alleges no affirmative conduct on the part ofdefendant which may have induced plaintiff's reliance and given rise to a special relationshipunder the second scenario. Instead, she claims only that she informed defendant of theunauthorized conduct on numerous occasions and that defendant failed to act. However, withoutsome affirmative conduct on the part of defendant by which it voluntarily assumed a duty,plaintiff's allegations are insufficient (see Pelaez v Seide, 2 NY3d at 202; compareBargy v Sienkiewicz, 207 AD2d 606, 609 [1994]). As to the third avenue, while plaintiffalleges that "[d]ue to [the mayor's] ownership interest in Core Values, Inc., defendant itself had aproprietary interest in Core Values, Inc.," she offers no further factual allegations to support thisclaim, and such a purely speculative and conclusory assertion is insufficient to state a cause ofaction (see Lockheed Martin Corp. v Aatlas Commerce, Inc., 283 AD2d 801, 804 [2001];Kovach v Hinchey, 276 AD2d 942, 943-944 [2000]).
Furthermore, we find that the complaint also fails to state a cause of action premised upon an"implied and statutory contract between plaintiff and defendant" (see generally Maas vCornell Univ., 94 NY2d 87 [1999]) and, therefore, we dismiss the complaint in its entirety.
Peters, J.P., Rose, Kane and Stein, JJ., concur. Ordered that the order is reversed, on the law,without costs, motion granted and complaint dismissed.