| Delanoy v City of White Plains |
| 2011 NY Slip Op 03024 [83 AD3d 773] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Joseph J. Delanoy, Jr., et al., Respondents, v City of WhitePlains, Appellant, et al., Defendants. |
—[*1] Goldberg Segalla, LLP, White Plains, N.Y. (William T. O'Connell of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant City of White Plainsappeals from so much of an order of the Supreme Court, Westchester County (Liebowitz, J.),entered January 22, 2010, as denied that branch of its joint motion, made with the defendantRobert J. Mullins, which was for summary judgment dismissing the complaint insofar as assertedagainst it.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the motion of the defendants City of White Plains and Robert J. Mullins whichwere for summary judgment dismissing the third and fourth causes of action of the complaintinsofar as asserted against them, and substituting therefor provisions granting those branches ofthe motion; as so modified, the order is affirmed, without costs or disbursements.
The Supreme Court properly denied those branches of the motion of the defendants City ofWhite Plains (hereinafter the City) and Robert J. Mullins (hereinafter together the Citydefendants) which were for summary judgment dismissing the first and fifth causes of action ofthe complaint insofar as asserted against them. "Government action, if discretionary, may not bea basis for liability, while ministerial actions may be, but only if they violate a special duty owedto the plaintiff, apart from any duty to the public in general" (McLean v City of New York, 12 NY3d 194, 203 [2009]; seeLauer v City of New York, 95 NY2d 95 [2000]; Tango v Tulevech, 61 NY2d 34, 40[1983]; Kochanski v City of NewYork, 76 AD3d 1050, 1051 [2010]). The City failed to demonstrate, prima facie, that theactions of Mullins, a City plumbing inspector, in connection with his inspection of the plaintiff'splumbing work, were discretionary, and not ministerial, in nature. Moreover, although the Citydemonstrated, prima facie, that no "special relationship" existed between Mullins and theplaintiff (McLean v City of New York, 12 NY3d at 199; Pelaez v Seide, 2 NY3d 186,199-200 [2004]), the plaintiff raised a triable issue of fact as to whether such a relationshipexisted because Mullins allegedly "affirmatively act[ed] to place [him] in harm's way" (Abraham v City of New York, 39AD3d 21, 28 [2007] [emphasis omitted]). Furthermore, the City failed to show, prima facie,that its adoption of a testing protocol applicable to the work at issue was not the "product ofinadequate study" or without a "reasonable basis" (Southworth v State of New York, 62AD2d 731, 741 [1978], affd 47 NY2d 874 [1979]; see Weiss v Fote, 7 NY2d579, 589 [1960]; Winney v [*2]County of Saratoga, 8 AD3d 944, 945 [2004]). In view ofthe City defendants' failure to sustain their prima facie burden on that issue, the sufficiency of theplaintiff's opposing papers need not be considered (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]).
The Supreme Court erred, however, in denying those branches of the City defendants' motionwhich were for summary judgment dismissing the third and fourth causes of action insofar asasserted against them. The third cause of action pursuant to Labor Law § 200 did not applyto the City defendants since they were not the parties charged with the responsibility to providethe plaintiff with a safe work place (see Russin v Louis N. Picciano & Son, 54 NY2d311, 316-317 [1981]; Lopes v Interstate Concrete, 293 AD2d 579, 579-580 [2002]).Moreover, the fourth cause of action pursuant to Labor Law § 241 (6) was not applicableto the City defendants, since they were not owners or contractors, or statutory agents thereof,within the meaning of that statute (see Russin v Louis N. Picciano & Son, 54 NY2d at317-318; Lopes v Interstate Concrete, 293 AD2d at 579).
We note that the defendant Robert J. Mullins did not appeal, and a motion to amend thenotice of appeal to include Mullins was previously denied by this Court. Although normally wedo not grant relief to a nonappealing party, we may do so where, as here, it is necessary in orderto grant complete relief to the appealing party (see Mixon v TBV, Inc., 76 AD3d 144, 155 [2010]).
The parties' remaining contentions are without merit. Dillon, J.P., Florio, Dickerson andCohen, JJ., concur.