Abraham v. City of New York

• Decision Date: 23 January 2007
• Docket Number: (Index No. 36665/03).,2004-09708.
• Citation: Abraham v. City of New York, 39 AD3d 21, 828 N.Y.S.2d 502, 2007 NY Slip Op 463 (N.Y. App. Div. 2007)
• Parties: LORETTA ABRAHAM et al., Appellants, v. CITY OF NEW YORK et al., Respondents, and ROMAN CATHOLIC DIOCESE OF BROOKLYN, New York, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

39 A.D.3d 21

828 N.Y.S.2d 502

2007 NY Slip Op 0463

LORETTA ABRAHAM et al., Appellants, v. CITY OF NEW YORK et al., Respondents, and ROMAN CATHOLIC DIOCESE OF BROOKLYN, New York, et al., Appellants.

2004-09708.

(Index No. 36665/03).

Appellate Division of the Supreme Court of the State of New York, Second Department.

January 23, 2007.

Vitarelli & DeSorbo, P.C. (Sanford F. Young, P.C., New York City [Jan B. Rothman] of counsel), for plaintiffs-appellants.

Murphy & Higgins, LLP, New Rochelle (David J. Rasmussen of counsel), for defendants-appellants.

Michael A. Cardozo, Corporation Counsel, New York City (Francis F. Caputo and Susan Paulson of counsel), for respondents.

OPINION OF THE COURT

FISHER, J.

The issue presented on this appeal concerns the extent to which a municipality may be held liable for the way it responds to a suspected outbreak of a communicable disease at a school.

Our Lady of Lourdes School is a parochial school run by the Roman Catholic Diocese of Brooklyn (hereinafter the Diocese) as an extension of Our Lady of Lourdes Church (hereinafter the church). The plaintiffs are current and former students and teachers who attended or worked at the school in 2002, as well as the parents and siblings of the students and spouses of the teachers. They commenced this personal injury action against the school, the church, the Diocese, the school's principal, one of its former teachers, and the priest who served as pastor of both the church and the school. The plaintiffs also named as defendants the City of New York and the New York City Department of Health and Mental Hygiene (hereinafter the Department).

The events in question began when, in mid-August of 2002, a teacher, who had worked at the school during the 2001-2002 school year, informed the Diocese and the school's principal that he had been diagnosed with active tuberculosis. The principal in turn, notified the Department, which had already received the same information from the teacher's physician. The plaintiffs concede, however, that the Department had no knowledge of the teacher's condition before August 2002.

Upon being told that the teacher would not be returning for the fall semester, a Department representative advised the principal that the school could reopen on schedule in September and that the Department would conduct an investigation thereafter. On or about September 9, 2002, the principal was contacted by a member of the Department's Epidemiology Unit, Magali Calderon, who asked for the names and addresses of all students who had attended classes taught by the former teacher during the prior academic year. Calderon explained that, because tuberculosis has an incubation period of 8 to 12 weeks, meaningful testing could not begin until approximately October 2002. This conversation was followed by a letter from Calderon, dated September 16, 2002, confirming that the Department was obligated to conduct an investigation pursuant to the New York City Health Code and the New York State Sanitary Code, and warning the principal that the information conveyed to him was confidential and could not be disclosed except as authorized by law.

The school opened on schedule in September and, in October, the Department conducted tests on 66 at-risk students. Of these, 45, or approximately 68%, tested positive for tuberculosis. On November 7, 2002, the Department held a public meeting "to discuss the outbreak and spread of tuberculosis at the [school]," and the Department thereafter continued to test, notify, and monitor at-risk individuals within the school community.

The amended complaint generally alleged that the City and the Department owed a special duty to the plaintiffs, which they breached by failing timely to notify persons at risk of infection and other proper parties, by permitting the school to reopen in September 2002, and by failing properly to treat, diagnose, and monitor the plaintiffs. The plaintiffs also allege that the Department violated various unspecified federal, state, and local laws as well as its own internal protocols. The crux of the amended complaint and cross claims, insofar as asserted against the City and the Department, is that they did too little too late to ascertain the existence of, and contain, the outbreak of the disease.

The City and the Department filed a pre-answer motion pursuant to CPLR 3211 (a) (7) to dismiss the amended complaint and all cross claims insofar as asserted against them on the ground of governmental immunity. The Supreme Court granted the motion, and these appeals by the plaintiffs and the remaining defendants followed.

Accepting as true all of the foregoing factual allegations which are drawn from the amended complaint and additional submissions by the nonmoving parties, and according the nonmoving parties all favorable inferences that may be drawn from those submissions (see Swift v New York Med. Coll., 25 AD3d 686, 687-688 [2006]), the plaintiffs may well be correct in asserting that the City and the Department mishandled the developing situation at the school. In scheduling testing, for example, the Department allegedly was guided by the fact that the incubation period for tuberculosis was between 8 and 12 weeks. But the former teacher was diagnosed with the disease in August, raising the possibility that he was already a carrier of the disease during the spring 2002 semester while he was still teaching. Yet, the Department did not administer tests immediately on his former students, opting instead to wait several more weeks, allowing at least some, and perhaps many, of those individuals to return to school and come into contact with other students and school personnel. Nevertheless, even if the City and the Department were shown, in hindsight, to have exhibited poor judgment, they are not liable to the plaintiffs in the circumstances of this case.

At the outset, the plaintiffs contend that the City and the Department are not shielded by governmental immunity because their negligence stems from a failure to perform "largely ministerial" tasks. Although it is true that a ministerial act may subject a municipality to liability for negligence and is not protected by governmental immunity (see Lauer v City of New York, 95 NY2d 95, 99 [2000]; Tango v Tulevech, 61 NY2d 34, 40-41 [1983]), we disagree that the allegations in the amended complaint make out a ministerial wrong. To the contrary, the investigation of a possible outbreak of tuberculosis in a school calls for the exercise of discretion and judgment by city and department officials and cannot be characterized as ministerial (see 10 NYCRR 2.6 [a] [upon receiving report of a case of communicable disease, health officer required to "make such an investigation as the circumstances may require for the purpose of verifying the diagnosis, ascertaining the source of infection and discovering contacts and unreported cases"]; NY City Health Code [24 RCNY] § 11.47 [b] [Department may require testing of household and nonhousehold contacts of a case of active tuberculosis]). And the rule of governmental immunity is that, absent proof of a special relationship between the plaintiff and the municipality (see Kovit v Estate of Hallums, 4 NY3d 499, 506 [2005]), "when official action involves the exercise of discretion, the [municipality] is not liable for the injurious consequences of that action even if resulting from negligence or malice" (Tango v Tulevech, supra at 40; see Kelleher v Town of Southampton, 306 AD2d 247, 248 [2003]). While the existence of a special relationship depends on the facts, "a plaintiff has a heavy burden in establishing such a relationship" and, as a result, most such claims fail and are dismissed as a matter of law (Pelaez v Seide, 2 NY3d 186, 199 n 8 [2004] [and cases cited therein]).

"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 v Seide, supra at 199-200).

As to the first, "[t]o form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action" (id. at 200; Lauer v City of New York, supra at 100-101). Contrary to the plaintiffs' contention here, neither the New York City Health Code nor the New York State Sanitary Code creates a private right of action in favor of persons at risk of contracting tuberculosis or other reportable or communicable diseases (see generally NY City Health Code [24 RCNY] art 11; 10 NYCRR part 2; cf. Candelario v Teperman, 15 AD3d 204, 205 [2005]; Ellis v Peter, 211 AD2d 353, 357-358 [1995]). Thus, assuming that the Department failed to comply with applicable laws and regulations in its investigation, that failure, in and of itself, does not provide a basis to establish the requisite special relationship. The laws and regulations of this State pertaining to the control of reportable or communicable diseases were enacted to protect the public in general, and not a particular class of persons such as schoolchildren or teachers. Stated otherwise, they "were intended to benefit the injured [plaintiffs], but in the broad sense of protecting all members of the general public similarly situated" (O'Connor v City of New York, 58 NY2d 184, 190 [1983]). Thus, the plaintiffs have failed to plead the existence of a special relationship through breach of a statutory duty.

As to the second way of forming a special relationship, viz., by the municipality's voluntary assumption of an affirmative duty and the plaintiffs' justifiable reliance on the municipality's undertaking, four elements must be shown:

"(1) an assumption by a municipality, through promises or...