Opinion
501251/19
07-25-2019
Andrea DOWNING, Individually, and in Her Representative Capacity as Parent and Natural Guardian of P.W., Plaintiffs, v. NEW YORK CITY HOUSING AUTHORITY, the City of New York, Shola Olatoye, Bill de Blasio, John Does and Jane Does, Defendants.
Certain & Zilberg, PLLC, 909 Third Avenue, 28th Floor, New York, NY 10022, Attorneys for Plaintiffs Corporation Counsel, New York City Law Department, Special Litigation Unit, 100 Church Street, New York, NY 10007, Attorneys for the City of New York and Mayor Bill de Blasio Hertzfeld & Rubin, P.C., 125 Broad Street, New York, NY 10004, Attorneys for NYCHA
Certain & Zilberg, PLLC, 909 Third Avenue, 28th Floor, New York, NY 10022, Attorneys for Plaintiffs
Corporation Counsel, New York City Law Department, Special Litigation Unit, 100 Church Street, New York, NY 10007, Attorneys for the City of New York and Mayor Bill de Blasio
Hertzfeld & Rubin, P.C., 125 Broad Street, New York, NY 10004, Attorneys for NYCHA
Reginald A. Boddie, J.
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this motion:
Papers Numbered
Df. Cross-Notice of Motion & Annexed Affirmation/Affidavits 1-2
Pl. Affirmation in Opposition 3
Df. Reply 4
Upon the foregoing cited papers, and after oral argument, the decision and order on defendants City of New York and Bill de Blasio's cross-motion to dismiss, pursuant to CPLR 3211 (a) (7), is as follows:
Plaintiffs commenced this action to recover damages allegedly arising from exposure to lead paint while residing at the Red Hook West Houses at 426 Columbia Street in Brooklyn, a premises owned by New York City Housing Authority (NYCHA). Plaintiff Downing has resided in the subject apartment since 2015. Plaintiff P.W. was born in January 2017. On October 22, 2017, plaintiff Downing received test results indicating that her child had blood lead levels exceeding safe limits as a result of lead paint contamination in the apartment.
Plaintiffs allege a pattern and policy of malfeasance, non-feasance, negligent, willful and fraudulent acts, including NYCHA's non-compliance with federal and state lead paint laws and concealment of lead paint violations. Plaintiffs allege in 2014, Mayor de Blasio affirmatively undertook a duty to monitor NYCHA and participate in inspections and remediation of lead-based paint conditions when he said, "the buck stops at City Hall from now on when it comes to NYCHA ... because I consider myself ultimately responsible for what we do at NYCHA."
Plaintiffs allege the City and the Mayor were negligent in the exercise and discharge of legally required inspections, testing requirements, biennial lead paint risk assessment reevaluations, reporting and notice requirements. Plaintiffs further allege defendants were aware that lead paint was present in the apartment and failed to comply with lead safety laws, rules, regulations and standards of practice that were intended to provide protection for the development, health and safety of potentially vulnerable children, and such failure exposed potentially vulnerable children to irreversible harms and permanent diminished potential.
Defendants City of New York (City) and Mayor Bill de Blasio seek dismissal of the complaint against them in entirety, pursuant to CPLR 3211 (a) (7), for failure to state a cause of action. The City argues for dismissal of plaintiffs' negligence claims on the grounds that NYCHA, not the City, owns and maintains the premises, the duty of the New York City Department of Health (DOH) to inspect the apartments for lead and Mayor de Blasio's public statements about NYCHA are governmental functions, and plaintiff has failed to plead a special relationship. The City further argues for dismissal of plaintiffs' fraud claim on the ground that plaintiffs failed to allege the City defendants knowingly made an affirmative misrepresentation upon which they relied. Finally, the City argues General Business Law § 349 does not apply to the City and therefore all relevant claims should be dismissed.
In deciding a motion to dismiss, the complaint must be construed in the light most favorable to plaintiffs and the court must accept all factual allegations as true ( CPLR 3211 [a] [7] ); see e.g. Nomura Home Equity Loan, Inc., Series 2006-FM2 v Nomura Credit & Capital, Inc. , 30 NY3d 572, 582 [2017] ). "Imposition of liability for a dangerous condition on property must be predicated upon occupancy, ownership, control, or special use of the premises" ( Velez v Captain Luna's Mar. , 74 AD3d 1191, 1192 [2d Dept 2010] [citations omitted] ). " ‘Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property’ " ( Velez , 74 AD3d at 1192, quoting Turrisi v Ponderosa, Inc. , 179 AD2d 956, 957 [3d Dept 1992] ).
The City argues it is entitled to dismissal of plaintiffs' negligence claims on the grounds that it did not own or otherwise control the premises where the lead poisoning occurred. Indeed, here, the record demonstrates that the subject property was owned, controlled and maintained by NYCHA, not the City. Further, it was not alleged that the City made special use of the premises. Therefore, plaintiffs' cause of action against the City for negligence under the theory of premises liability is dismissed (see e.g. Rivera v City of New York , 90 AD3d 735, 736 [2d Dept 2011] ).
Turning to plaintiffs' claims for negligent monitoring, inspection, reporting, notice, and remediation of lead paint conditions, New York Courts recognize that NYCHA's performance of its obligations as a public housing administrator constitutes a governmental function (e.g. Messam v Williams , 284 AD2d 437, 439 [2d Dept 2001). There is no liability for the negligent performance of a governmental function unless there existed " ‘a special duty to the injured person, in contrast to a general duty owed to the public’ " ( McLean v City of New York , 12 NY3d 194, 199 [2009], quoting Garrett v Holiday Inns , 58 NY2d 253, 261 [1983] ; see also e.g. Kircher v City of Jamestown , 74 NY2d 251, 544 [1989] ; Lauer v City of New York , 95 NY2d 95, 101 [2000] ; Pelaez v Seide , 2 NY3d 186, 198-199 [2004] [abrogated by McLean on other grounds]; Laratro v City of New York , 8 NY3d 79, 83 [2006] ). The duty to exercise reasonable care toward the plaintiff is "born of a special relationship between the plaintiff and the governmental entity" ( McLean , 12 NY3d at 199, quoting Pelaez , 2 NY3d at 198-199 ).
"A special relationship can be formed in three ways: (1) when the municipality 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 benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation" ( Pelaez , 2 NY3d at 199 [abrogated by McLean on other grounds], citing Garrett v Holiday Inns , 58 NY2d 253, 261-262 [1983] ). Here, defendant argues plaintiffs failed to plead a special relationship through breach of a statute which imposes a duty on defendants and confers a private right of action on plaintiffs. Plaintiffs did not oppose this argument or plead a statute which gives plaintiffs a private right of action against the City and the Mayor (see Sheehy v Big Flats Community Day , 73 NY2d 629, 633 [1989] ; see also Gibbs v Paine , 280 AD2d 517, 518 [2d Dept 2001] ; Juarez v Wavecrest Mgt. Team , 88 NY2d 628, 643 [1996] ; c.f. New York City Administrative Code § 27-2056.1 [Local Law 1 of 2004 contains a rebuttable presumption that paint in pre-1960 buildings has a lead base and charges landlords of multiple dwellings with notice of any lead paint hazard within an apartment which the landlord knows is occupied by a child six years of age and under] ).
Plaintiffs, however, allege a special relationship arose when Mayor de Blasio voluntarily assumed a duty to monitor NYCHA and participate in inspections and remediation of lead-based paint conditions by making public statements in 2014. A "special relationship" is formed when the municipality, through promises or actions and with knowledge that inaction could lead to harm, assumes an affirmative duty to act on behalf of the party who was injured; there exists some form of direct contact between the municipality's agents and the injured party; and the injured party justifiably relies on the municipality's affirmative undertaking ( Cuffy v City of New York , 69 NY2d 255, 260 [1987], citing see Shinder v State of New York , 62 NY2d 945, 946 [1984] ; see also Sorichetti v City of New York , 65 NY2d 461, 469 [1985] ; cf. Nallan v Helmsley-Spear, Inc. , 50 NY2d 507, 522-523 [1980] ). The reliance "element provides the essential causative link between the ‘special duty’ assumed by the municipality and the alleged injury. [Plaintiffs may recover only when] a municipality's voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced him [or her] either to relax his [or her] own vigilance or to forego other available avenues of protection" ( Cuffy , 69 NY2d at 261, citing see De Long v County of Erie , 60 NY2d 296, 305 [1983] ; Florence v Goldberg , 44 NY2d 189, 197 [1978] ).
Here, even assuming the Mayor's 2014 statements constituted a voluntary, affirmative assumption of a duty to NYCHA residents to monitor and abate the lead paint conditions in NYCHA housing, and assuming the Mayor made these statements with the knowledge that failure to fulfill this duty could lead to harm, plaintiffs have not plead facts sufficient to show some form of direct contact between themselves and Mayor de Blasio or the City or that they justifiably relied on such statements (cf. Sorichetti v City of New York , 65 NY2d 461, 469 [1985] [holding a special relationship was established through infant's distraught mother, and not the injured infant, who had the direct contact with the law enforcement officials due to the close relationship between the interests of the mother and those of the child, the mother's contact with the police which had been initiated solely for the purpose of obtaining protection for the child, who was herself helpless, the existence of an order of protection, and the police department's knowledge of the assailants violent history, the specific situation in which plaintiff's infant had been placed, its response to plaintiff's pleas for assistance on the day of the assault; and the mother's reasonable expectation of police protection]; Cuffy v City of New York , 69 NY2d 255, 260 [1987] [holding there was no special relationship with a family member who did not live in the plaintiffs' home, whose interests were not tied to those of the rest of his family, and the assurances of protection his father had received directly from the police were not obtained on his behalf]; McLean v City of New York , 12 NY3d 194, 201 [2009] [holding that a phone call between a municipal employee and plaintiff, although the employee was negligent in answering questions and that negligence caused plaintiff's child's injuries, was not sufficient to establish a special relationship because the municipal employee did not make any promises or take action to do something on plaintiff's or her child's behalf]; cf. De Long , 60 NY2d at 304 [1983] [holding the special relationship that arose from the City's creation of the 911 service, acceptance of the call for emergency assistance, and the operator's assurances to the caller that help was on the way was sufficient to hold the City liable for negligently directing the police patrol cars to the wrong locality and taking no further action when the responding officers reported no such address as that given] ).
Plaintiffs' argument that "[d]efendants had some form of direct contact with the injured party via the New York City Department of Health & Mental Hygiene inspections" falls short of establishing the elements of direct contact and reliance required by law. "... [T]he proper application of the ‘direct contact’ requirement depends on the peculiar circumstances of each case, all of which must be considered in light of the policies underlying the narrow ‘special duty’ doctrine" ( Cuffy , 69 NY2d at 262 ). Here, the complaint alleged DOH was notified of P.W.'s blood test results in October 2017, which prompted DOH to commence inspections. The gravaman of plaintiffs' complaint as to the City and the Mayor was that defendants failed in their oversight of NYCHA's inspection, reporting and remediation duties. Even construing DOH's inspections as some form of direct contact between the City, the Mayor and P.W., the DOH inspection, and therefore the alleged direct contact, occurred after the alleged negligence. Moreover, there are no allegations that plaintiffs received personal assurances of safety from the City, the Mayor, or DOH. Therefore, plaintiffs failed to demonstrate a special relationship based on voluntary assumption of a duty.
Plaintiffs further allege that the City and Mayor de Blasio formed a special relationship with P.W. by assuming positive direction and control in the face of the known, blatant and dangerous safety violation. This argument also fails. It is well established that "[t]he City's decision concerning the allocation of resources ‘d[oes] not provide a proper predicate for tort liability against the City’ " (see Page v City of Niagara Falls , 277 AD2d 1047 [4th Dept 2000] [reasoning that plaintiff's complaint alleging the City did not allocate sufficient resources for its fire department was properly dismissed], quoting Balsam v Delma Eng'g Corp. , 90 NY2d 966, 968 [1997] ; see Mastroianni v County of Suffolk , 91 NY2d 198, 203 [1997] ; Kircher v City of Jamestown , 74 NY2d 251, 256 [1989] ; see also Cuffy v City of New York , 69 NY2d 255, 260 [1987] ; Riss v City of New York , 22 NY2d 579, 581-582 [1968] ). The Court of Appeals considers the case of Smullen v City of New York , 28 NY2d 66 (1971), "the prototypical case" for establishing a special relationship by assumption of positive direction and control of a known, blatant and dangerous safety violation ( Pelaez , 2 NY3d at 204, [abrogated by McLean on other grounds] ). In Smullen , the Court found a special relationship between the City and a worker who was killed when a trench collapsed because "a city inspector, who was in control of the site and had the power to stop work, assured the worker the trench was ‘solid’ " ( Pelaez , 2 NY3d at 204, citing Smullen , 28 NY2d at 69 ).
Here, plaintiffs failed to establish the City or Mayor made personal assurances of their safety upon which they relied. Plaintiffs argued that "defendants took positive control of a known and dangerous safety condition, i.e. lead, by committing ‘over two billion dollars to remediate the deplorable conditions in NYCHA housing and signed [a] proposed consent decree as an interested party.’ " However, this argument implicates resource allocation as opposed to personal assurances of plaintiffs' individual safety. On these facts, this court cannot adopt plaintiffs' argument without expanding the boundaries of special relationships under New York law (see Pelaez , 2 NY3d at 205 ). Accordingly, the court finds plaintiffs have failed to demonstrate a special relationship based on assumption of positive direction and control of a known, blatant and dangerous safety violation.
Moreover, plaintiffs' argument that the August 14, 2018 opinion and order of the Honorable William H. Pauley III (SDNY 17cv7481) requires this court to deny defendants' motion to dismiss is unavailing. Citing Judge Pauley's decision, plaintiffs argue they plead a cause of action against the Mayor based on the Mayor's authority to appoint NYCHA's Chairperson and its board members, who serve at the Mayor's pleasure. In Paige v New York City Housing Authority , 17cv7481, Judge Pauley stated that plaintiffs' state law claims for negligence were not implicated by the motion pending before him. Therefore, the federal court never ruled on the issue, contrary to plaintiffs' contention.
The governmental immunity defense shields public entities from liability for discretionary actions taken during the performance of governmental functions (see Valdez v City of New York , 18 NY3d 69, 73 [2011], citing Matter of World Trade Ctr. Bombing Litig. , 17 NY3d 428, 442 [2011] ; Lauer v City of New York , 95 NY2d 95, 99 [2000] ; Tango v Tulevech , 61 NY2d 34, 40 [1983] ). In determining whether an act is discretionary, " ‘[e]ach case must be decided on the circumstances involved, the nature of the duty, the degree of responsibility resting on the officer, and his position in the municipality's table of organization. It must still be true that discretion is indicated if the powers are ‘to be executed or withheld according to his own view of what is necessary and proper’ " ( Tango , 61 NY2d 34, 40, citing Mills v City of Brooklyn , 32 NY 489, 497 [1865] ; cf. People v Kuder , 93 Cal App 42, 54-55 [1928] ; see Rottkamp v Young , 21 AD2d 373, 376 [2d Dept 1964] )." The rule applicable here is that discretionary acts, which are subject to governmental immunity, "involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" ( Tango , 61 NY2d at 41 ).
Applying this standard, Mayor de Blasio was acting in his official capacity as a top elected official of city government when he made appointments to NYCHA and decisions regarding allocation of funds. On these facts, the Mayor was clearly exercising discretion. Therefore, governmental immunity applies (see Tango , 61 NY2d at 41 ; see Stukuls v State of New York , 42 NY2d 272, 278 [1977] [for the proposition that high ranking public officials carrying out their duties and employing expert judgment in policy matters are exercising discretion]; see also Spitz v Loeffler , 161 AD2d 578, 579 [2d Dept 1990] [citations omitted] ). Moreover, plaintiffs failed to adequately plead how mayoral appointments of agency heads and budget allocation determinations give rise to a special duty to them as opposed to a general duty owed to the public (see McLean v City of New York , 12 NY3d 194, 199 [2009] [citations omitted] ). Accordingly, the negligence claims against the City and the Mayor are dismissed.
Turning to plaintiffs' claim of fraud, New York recognizes a cause of action for negligent misrepresentation in cases in which the defendant owes a duty to the plaintiff to exercise care in giving the information and the plaintiff is injured from his or her reasonable reliance on the information (e.g. Bivas v State , 97 Misc 2d 524, 527 [Ct Cl 1978] ; State of NY Workers' Compensation Bd. v Wang , 147 AD3d 104 [3d Dept 2017] ; Barski v Town of Aurelius , 147 AD3d 1483 [4th Dept 2017] ). To prevail on a claim of fraud, plaintiffs must show that there was a special relationship between the parties, that they actually relied on the purported fraudulent statements, and their reliance was reasonable or justifiable ( Gardianos v Calpine Corp. , 16 AD3d 456, 456 [2d Dept 2005] [citations omitted]; KNK Enters., Inc. v Harriman Enters., Inc. , 33 AD3d 872 [2d Dept 2006], citing see Harris v Camilleri , 77 AD2d 861, 863 [2d Dept 1980] ). Here, even assuming the Mayor's 2014 statements were fraudulently made, the pleadings did not allege that the City or the Mayor owed a duty to plaintiffs or that plaintiffs reasonably or justifiably relied on such. Accordingly, plaintiffs' fraud claims against the City and the Mayor are dismissed.
Finally, plaintiffs have failed to plead a claim pursuant to a statute that gives them a private right of action against the City or the Mayor. General Business Law § 349 authorizes a claim for deceptive business practices only against a "person, firm, corporation or association," and does not apply to a municipality or its agents performing governmental functions, as here ( General Business Law § 349 [b] ; see Walton v New York State Dept. of Correctional Servs. , 25 AD3d 999, 1002 [3d Dept 2006], affd 8 NY3d 186 [2007] ). Therefore, plaintiffs' claims against the City and Mayor de Blasio, pursuant to General Business Law § 349, are dismissed. Accordingly, the motion of the City of New York and Mayor Bill de Blasio to dismiss the complaint against them in entirety is granted.