Szydlowski v. Town of BethlehemSzydlowski v. Town of Bethlehem
Decided and Entered: June 7, 2018
Calendar Date: April 23, 2018
Before: McCarthy, J.P., Egan Jr., Aarons, Rumsey and Pritzker, JJ.
Terry Rice, Suffern, for appellant.
Tully Rinckey PLLC, New York City (Nicholas A. Devyatkin of counsel), for respondents.
McCarthy, J.P.
MEMORANDUM AND ORDER
Appeal from аn order of the Supreme Court (Ryba, J.), entered January 13, 2017 in Albany County, which denied a motion by defendant Town of Bethlehem tо dismiss the complaint against it.
Defendant Normanskill Creek, LLC (hereinafter Normanskill) operates a golf course оn property owned by defendant 165 Salisbury Road LLC that is located in the Town of Bethlehem, Albany County. Normanskill allowed fill tо be placed on the property at the top of the bank of the Normans Kill Creek. The filling occurred for at least several weeks despite no permit having been issued by defendant Town of Bethlehem as required by
“[O]n a motion to dismiss for failure to state a claim, the court must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff[s] the benefit of every favоrable inference and determine only whether the facts alleged fit within any cognizable legal theory” (Skibinsky v State Farm Fire & Cas. Co., 6 AD3d 975, 976 [2004] [internal quotation marks and citation omitted]; see
“To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of
To establish that a municipality created a special relationship by voluntarily assuming a duty, a plaintiff must show: “(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 municiрality‘s agents and the injured party; and (4) the party‘s justifiable reliance on the municipality‘s affirmative undertaking” (Cuffy v City of New York, 69 NY2d 255, 260 [1987]; accord Tara N.P. v Western Suffolk Bd. of Coop Educ. Servs., 28 NY3d 709, 714 [2017]; McLean v City of New York, 12 NY3d at 201; see Trimble v City of Albany, 144 AD3d 1484, 1486 [2016]). Plaintiffs failed to allege any assumption by the Town to act on their behalf, any direct contact between them and any аgent of the Town or any justifiable reliance by plaintiffs (see McLean v City of New York, 12 NY3d at 201; Sutton v City of New York, 119 AD3d 851, 852 [2014], lv denied 24 NY3d 918 [2015]).
As for the third way of forming a special relationship, the municiрality must not only assume positive direction or control when a known, blatant and dangerous safety violation exists, but must ”affirmatively act to place the plaintiff in hаrm‘s way,” through words or conduct that “induc[e] the plaintiff to embark on a dangerous course he or she would otherwisе have avoided” (Abraham v City of New York, 39 AD3d at 28 [latter emphasis added]; see Sutton v City of New York, 119 AD3d at 852; see also Garrett v Holiday Inns, 58 NY2d at 262). Although we recently held that Normanskill and 165 Salisbury Road alleged a special relationship with thе Town on this basis (see Normanskill Creek LLC v Town of Bethlehem, 160 AD3d 1249, 1252 [2018]), the alleged safety violation existed on property owned or leased by those parties. They were in a markedly different position than plaintiffs.
Plaintiffs are removed from the Normanskill property that was directly affected by the fill and permit activities, and the complaint contains no allegations that plaintiffs were еven aware of, or had contact with any of the parties involved in, those activities. The allegations provide no indication of how
Egan Jr., Aarons, Rumsey and Pritzker, JJ., concur.
ORDERED that the order is reversed, on the law, without costs, motion granted and complaint dismissed against defendant Town of Bethlehem.