| Ferreira v Cellco Partnership |
| 2013 NY Slip Op 07706 [111 AD3d 777] |
| November 20, 2013 |
| Appellate Division, Second Department |
| John Ferreira et al., Respondents, v CellcoPartnership, Doing Business as Verizon Wireless, Defendant, and Incorporated Village of Garden City,Appellant. |
—[*1] Sullivan & Sullivan, Garden City, N.Y. (Joseph D. Sullivan of counsel), forrespondents.
In an action, inter alia, to recover damages for personal injuries, the defendantIncorporated Village of Garden City appeals from an order of the Supreme Court, NassauCounty (Bruno, J.), dated September 17, 2012, which denied its motion pursuant toCPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it for failure tostate a cause of action.
Ordered that the order is reversed, on the law, with costs, and the motion of thedefendant Incorporated Village of Garden City pursuant to CPLR 3211 (a) (7) to dismissthe complaint insofar as asserted against it is granted.
The plaintiffs own houses located on parcels of property adjacent to or near a facilityowned and operated by the defendant Cellco Partnership, doing business as VerizonWireless (hereinafter Verizon). The Verizon facility is located within the defendantIncorporated Village of Garden City. The plaintiffs allege that, beginning in December2009, they were exposed to "noise, smoke and odor" emanating from machinery thatVerizon installed on the roof of an extension to its facility, and that such exposure"constitute[d] a health hazard." In October 2010, the plaintiffs commenced this actionagainst Verizon and the Village seeking, inter alia, to recover damages for personalinjuries. With respect to Village, the complaint, which was subsequently amended,alleged that the Village was negligent in failing to "uphold and enforce the rules andregulations and building codes of the County of Nassau, the Town of Hempstead, and the. . . Village." The Supreme Court denied the Village's motion pursuant toCPLR 3211 (a) (7) to dismiss the amended complaint insofar as asserted against it forfailure to state a cause of action. The Village appeals.
When considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7),"the court will 'accept the facts as alleged in the complaint as true, accord plaintiffs thebenefit of every possible favorable inference, and determine only whether the facts asalleged fit within any cognizable legal theory' " (Nonnon v City of New York, 9 NY3d 825, 827 [2007],quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Sokol v Leader, 74 AD3d1180, 1181 [2010]). "[A]ffidavits may be received for [*2]a limited purpose only, serving normally to remedy defectsin the complaint" (Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]).Here, the amended complaint, even as supplemented by certain affidavits that theplaintiffs submitted in opposition to the motion to dismiss, did not adequately plead alegally cognizable cause of action against the Village.
"[I]t has long been the rule in this State that, in the absence of some specialrelationship creating a duty to exercise care for the benefit of particular individuals,liability may not be imposed on a municipality for failure to enforce a statute orregulation" (O'Connor v City of New York, 58 NY2d 184, 192 [1983]; see Metz v State of New York,20 NY3d 175 [2012]; Bellv Village of Stamford, 51 AD3d 1263 [2008]). A special relationship can beformed in three ways: (1) when the municipality violates a statutory duty enacted for thebenefit of a particular class of persons; (2) when the municipality voluntarily assumes aduty that generates justifiable reliance by the person who benefits from the duty; or (3)when the municipality assumes positive direction and control in the face of a knownblatant and dangerous safety violation (see Pelaez v Seide, 2 NY3d 186, 199 [2004]; Bell vVillage of Stamford, 51 AD3d at 1264).
"To form a special relationship through breach of a statutory duty, the governingstatute must authorize a private right of action" (Pelaez v Seide, 2 NY3d at 200;see Lauer v City of New York, 95 NY2d 95, 100 [2000]). Here, the plaintiffshave not alleged, or provided any authority establishing, that the unspecified "noise, odorand building code" ordinances of the Village, or of the Town of Hempstead or theCounty of Nassau, create a private right of action in favor of persons who may beprotected by or subject to such ordinances. Therefore, even if the Village failed toproperly enforce its own codes and regulations, such failure, in and of itself, does notestablish the requisite special relationship (see Abraham v City of New York, 39 AD3d 21, 25-26[2007]).
With respect to the creation of a special relationship by the municipality's voluntaryassumption of a duty and the plaintiffs' justifiable reliance on the municipality'sundertaking, four criteria must be shown: " '(1) an assumption by the municipality,through promises or actions, of an affirmative duty to act on behalf of the party who wasinjured; (2) knowledge on the part of the municipality's agents that inaction could lead toharm; (3) some form of direct contact between the municipality's agents and the injuredparty; and (4) that party's justifiable reliance on the municipality's affirmativeundertaking' " (Valdez v City ofNew York, 18 NY3d 69, 80 [2011], quoting Cuffy v City of New York,69 NY2d 255, 260 [1987]; see Pelaez v Seide, 2 NY3d at 202; Laratro v City of New York, 8NY3d 79 [2006]; Kovit vEstate of Hallums, 4 NY3d 499, 506-507 [2005]). Here, even as supplementedby the plaintiffs' affidavits, the amended complaint does not allege that the Village hadknowledge that inaction on its part could lead to harm (see Kovit v Estate ofHallums, 4 NY3d at 507-508; Abraham v City of New York, 39 AD3d at27). Indeed, there is nothing in the complaint, even as amplified and supplemented by theaffidavits submitted by the plaintiffs, to show that the "problems" allegedly created byVerizon were anything more than a substantial annoyance to the plaintiffs. In this sameregard, we note that the amended complaint, even as supplemented by the affidavits, doesnot allege that the Village assumed "positive direction and control in the face of aknown, blatant and dangerous safety violation" (Pelaez v Seide, 2 NY3d at199-200; see Bell v Village of Stamford, 51 AD3d at 1264).
Nor have the plaintiffs alleged justifiable reliance. "[R]eliance must be examined inthe specific context of the nature of the affirmative duty undertaken[,]" and "[i]t is theplaintiffs' burden to show that the defendants' conduct actually lulled them into a falsesense of security, induced them to . . . forego other avenues of protection,and thereby placed themselves in a worse position than they would have been had thedefendants never assumed the duty" (Conde v City of New York, 24 AD3d 595, 597 [2005]; see Mollerson v City of NewYork, 8 AD3d 70, 72 [2004]). In the case at bar, the plaintiffs did not plead thatthey detrimentally failed to pursue other avenues of redress in reliance on the allegedpromise of the Village to address the situation.
Accordingly, the facts alleged by the plaintiffs do not constitute the "specialrelationship" necessary to maintain this action insofar as asserted against the Village.Thus, the Supreme Court should have granted the Village's motion pursuant to CPLR3211 (a) (7) to dismiss the complaint insofar as asserted against it for failure to state acause of action (see Bell v Village of [*3]Stamford, 51 AD3d at 1264). Austin, J.P., Sgroi,Cohen and Hinds-Radix, JJ., concur.