Opinion
XXXXX.
Decided July 18, 2011.
Plaintiff was represented by Stanley K. Shapiro, Esq., New York, NY; Defendant was represented by Michael Shender Esq., Michael A. Cardozo, Corporation Counsel for the City of New York, Brooklyn NY.
Defendant, City of New York, moves pursuant to CPLR § 3211(a)(7) to dismiss the complaint brought by the plaintiff, Nashwa Elbadawi. Plaintiff is seeking damages under the theory that the City owed her a duty of care in maintaining its records, and that the City's malfeasance has caused her to suffer injury.
FACTS
Plaintiff commenced this action by filing a Notice of Claim on April 2, 2009. Plaintiff alleged that on August 16, 2003 she tripped and fell while exiting from a pizza store at 30 Nevins Street, Brooklyn, New York, and sustained major injuries. In her pursuit of litigation for negligence, Plaintiff requested the land title records maintained by the City in order to discover the identity of the property owner of the pizza store. According to records provided by the City, the property owner of the pizza store was listed as Neliv Realty Corporation. Based on this information, Plaintiff timely commenced action against Neliv Realty Corporation on April 2, 2010.
Plaintiff subsequently learned that prior to her accident, Neliv Realty Corporation sold the subject property to Reuven and Helen Altschuler on or about May 2002, and filed the deed with the City Register's Office. It is undisputed that the City Register's Office misfiled/misrecorded the deed to 30 Nevins Street, and consequently, the conveyance of ownership from Neliv Realty Corporation to Reuven and Helen Altschuler was not reflected in the records. Plaintiff contends that due to the failure of the City Register's Officer to correctly file/record the deed, she was unable to bring suit against Reuven and Helen Altschuler, the legal owners of the property, for the injuries sustained on their property.
In support of its motion to dismiss, Defendant contends that it does not owe Plaintiff a duty of care to maintain its records. The City argues that "a Defendant may be held liable for negligence only when it breaches a duty owed to the Plaintiff" (see Strauss v. Belle Realty Co., 65 NY2d 399, 402). That because the Plaintiff was not a party to the deed and had no legal relationship to its signatories, there was no duty owed to her by the Defendant regarding maintenance of its records.
In her opposition to the motion to dismiss, the Plaintiff argues that the City owed a duty of care to the general public to properly maintain records of land deeds and that a breach of that duty subjects the City to liability (see Baccari v. DeSanti, 70 AD2d 198; Kagen v. State of New York, 221 AD2d 7).
LAW
It is well settled that a motion to dismiss pursuant to CPLR 3211(a)(7) should be granted only where, even viewing the allegations as true, the facts do not fit within any cognizable legal theory (see Kuzmin v. Nevsky, 903 N.Y.S.2d 96, 98, Leon v. Martinez, NY2d 83, 87-88). The movant in a summary judgment motion bears the initial burden in establishing a prima facie showing that there exists no material issue of fact (see Alvarez v. Prospect Hosp. 68 NY2d 320, 324).
Here the City contends that they owe a duty to properly file the land deed only to the property owners, and not this Plaintiff. The City argues that Plaintiff was not a party involved in the transaction of the deed, therefore she had no direct interest in the recording of the deed between Neliv Realty Corporation and Reuven and Helen Altschuler. The Court finds that the City's allegations that it only owed a specific duty of care to the parties involved in the conveyance of the land deed, sufficient to establish its prima facie entitlement to summary judgment.
The burden now shifts to the Plaintiff, who must present sufficient evidence to require a trial of an issue of fact in order to defeat the motion for summary judgment (see Zuckerman v. City of New York, 49 NY2d 557, 562).
The Plaintiff contends the City's maintenance of the land deeds is a ministerial duty, which created a duty of care to the general public. Plaintiff argues that the City breached its duty to properly maintain its records by misfiling the deed (see Baccari v. DeSanti, 70 AD2d 198, 203).
"A ministerial act is defined as, an administrative act carried out in a prescribed manner not allowing for substantial personal discretion" (see Kagen v. State of New York, 221 AD2d 7). Here, the Office of City Register's duties require that they adhere to regulations in filing and recording deeds, which are set forth under the New York City Charter. Accordingly, the court finds that the City engaged in a ministerial duty, which created a duty of care to the general public.
However, as a general rule, this duty of care is one that is ordinarily owed to the public at large and not to any particular individual (see Cuffy v. City of New York, 69 NY2d 255, 260). Breach of this general duty will not automatically subject the City of New York to liability (see Lauer v. City of New York 95 NY2d 95, 99). The exception to this general rule is where a special relationship is established with the City (see McLean v. City of New York, 12 NY3d 194, 203). In order to establish a special relationship with a municipality, the plaintiff must satisfy four elements: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking (see Cuffy v. City of New York, 69 NY2d 255, 260).
In the case at bar, the Court finds that Plaintiff failed to established a special relationship. The City did not make a promise of affirmation to Plaintiff, which is required to satisfy the first prong of this test (see Cuffy v. City of New York, supra). If a municipality voluntarily undertakes to assist a Plaintiff, the law imposes an obligation to perform the assumed duty of care (see Abrajan v. Kabasso, 2003 WL 22700683 at 3). Plaintiff has failed to submit any evidence which indicates that the City made a promise to aid the plaintiff with her negligence case. Therefore, the Court finds that no affirmation was made here that would create a special relationship.
Additionally, Plaintiff fails the second element of the special relationship test, that the City knew their inaction would lead to Plaintiff's harm. In Kovit v. Estate of Hallums, 4 NY3d 499, 508, the Court held that the Plaintiff failed the second prong of the special relationship test because the defendant was not aware their inaction would result in the plaintiff's injury. In Kovit, thePlaintiff never informed the police officer that he was too sick to drive, therefore the police officer was not aware that his inaction in preventing the Plaintiff from driving would lead to an accident. Similarly, there is no evidence that this Plaintiff informed the City that she needed the records to the land deed to pursue litigation. Therefore, Plaintiff has failed the second prong of the special relationship test. Accordingly, the Court holds that there is no special relationship between Plaintiff and the City, which would establish a duty of care to Plaintiff (see Sorichetti by Sorichetti v. City of New York, 65 NY2d 461, 468).
The Plaintiff erroneously relies on the Baccari case, to assert that ministerial negligence subjects the City to liability (see Baccari v. DeSanti, 70 AD2d 198). In that case, a prior mortgage was recorded but improperly indexed in the wrong municipality by the County Clerk ( Id at 201). The property was later sold, and the second purchaser recorded the new mortgage in the clerk's office without knowledge of the first mortgage on the property ( Id at 201). Subsequently, the first mortgagee sued the County Clerk's office for its misfeasance. The Court held that the County Clerk's misfeasance caused the Plaintiff's injury, because his mortgage was adversely affected by the clerk's mis-indexing ( Id at 203). The facts of Baccari establish that the Plaintiff was directly injured by the County Clerk's misfiling ( Id). The facts of this case are distinct. Here, Plaintiff was not directly or physically injured by the clerk's misfiling, but in fact, suffered injury from an unrelated accident to which the City was not a party. Therefore, the City's ministerial negligence would not subject them to liability since it did not directly injure the Plaintiff.
Also, Plaintiff's reliance on Haddock v. City of New York, 75 NY2d 478 is misplaced. In Haddock, the City's misfeasance in retaining an employee was the contributing direct cause of the Plaintiff's injury. In this case, Plaintiff was injured by her fall outside of a pizza store, owned by Reuven and Helen Altschuler, who may have been held liable for the injuries sustained by Plaintiff as a result of her fall. There is no allegation that the City of New York was allegedly liable for Plaintiff's fall and that the City's misfiling of the deed was a contributing cause to her trip and fall accident. (Lewis v. City of New York, 19 Misc 3d 1109).
The facts of this case do not establish the City of New York as a direct cause of Plaintiff's injury, or as a proximate cause of her injury (see Pulka v. Edelman, 40 NY2d 781, 782).(see McNulty v. City of New York, 100 NY2d 227, 234). Further, the special relationship exception is not applicable here, because the City did not undertake any voluntary affirmative act beyond the general duty owed to the public that would create this relationship (see Dinardo v. City of New York, 13, NY3d 872, 877). As a result, the Court finds that there is no genuine issue of fact as to whether the City of New York was a direct or contributing cause to the Plaintiff's physical injury, and that Plaintiff did not overcome her burden under the law of establishing she was owed a duty of care by the City of New York.
Lastly, the Court finds that Plaintiff's contention that Summary Judgment is not appropriate because her claim is not ripe for adjudication to be without merit.
Based on the above, the Defendant's motion for summary judgment is granted, Plaintiff's complaint is hereby dismissed.
This constitutes the Decision and Order of the Court.