Amato v. City of New York

• Decision Date: 05 June 1967
• Docket Number: No. 65 Civ. 2746.,65 Civ. 2746.
• Citation: 268 F. Supp. 705
• Parties: Angela AMATO, as Administratrix ad Prosequendum of Anthony Amato, Plaintiff, v. The CITY OF NEW YORK, Defendant and Third-Party Plaintiff, v. R. H. MACY & CO., International Fireworks Co., Inc., John Serpico, Individually and d/b/a International Fireworks Co., Petterson Lighterage and Towing Corporation and the United States of America, Third-Party Defendants.
• Court: U.S. District Court — Southern District of New York

268 F. Supp. 705

Angela AMATO, as Administratrix ad Prosequendum of Anthony Amato, Plaintiff, v. The CITY OF NEW YORK, Defendant and Third-Party Plaintiff, v. R. H. MACY & CO., International Fireworks Co., Inc., John Serpico, Individually and d/b/a International Fireworks Co., Petterson Lighterage and Towing Corporation and the United States of America, Third-Party Defendants.

No. 65 Civ. 2746.

United States District Court S. D. New York.

June 5, 1967.

Harry H. Lipsig, New York City, for plaintiff; Murray L. Lewis, New York City, of counsel.

J. Lee Rankin, Corp. Counsel, New York City, for defendant and third-party plaintiff; Richard A. Hagen, James M. Carroll, New York City, of counsel.

WYATT, District Judge.

This is a motion by defendant and third party plaintiff The City of New York (the City) for judgment on the pleadings (Fed.R.Civ.P. 12(c)) or in the alternative for summary judgment (Fed. R.Civ.P. 56).

This action was commenced on September 13, 1965 by plaintiff as personal representative of Anthony Amato (decedent). The sole defendant was the City. The complaint asked substantial damages because of the death of decedent, allegedly as the result of an unfortunate accident caused by an explosion on June 23, 1964 in a fireworks barge in the Hudson River. The complaint avers that the City issued a permit to R. H. Macy Co., Inc. (Macy) for a fireworks display on June 23, 1964 and that decedent, a pyrotechnician employed by International Fireworks Co. (International), was injured by an explosion during such display. The charge against the City is negligence in that (a) the permit was wrongfully issued because Macy proposed to set off fireworks "prohibited by law to be discharged or used" within the City, (b) the fireworks barge was not inspected, (c) proper inspectors were not employed, (d) its inspectors were not supervised, (e) the fireworks were "dangerous and unfit for use", etc. The complaint also avers that the fireworks "to be used" by Macy were "prohibited types" and unlawful to be used under Administrative Code of the City of New York (Admin.Code) § C19-42.0.

Jurisdiction is based on diversity of citizenship, plaintiff being described as one who "resides" in New Jersey and defendant being a New York municipal corporation. While an averment of residence is not sufficient as an averment of citizenship, it will be assumed that plaintiff is a citizen of New Jersey and that jurisdiction is proper under 28 U. S.C. § 1332.

A third party complaint was filed by the City bringing in the third party defendants named in the caption and asking for relief over against them in the event the City were held liable to plaintiff. The third party defendants do not seem to be concerned on this motion.

The Penal Law of New York (§ 1894-a), McKinney's Consol.Laws, c. 40 makes it an offense to use or explode any fireworks without a permit granted by a city or other appropriate governmental subdivision. The Penal Law specifies particular information which must be set forth in the application for a permit.

The permit authority of the City is the Fire Commissioner (the Commissioner). Admin.Code § C19-2.0 (32).

The storage, transportation or sale of certain specified types of fireworks is prohibited by the City. Admin.Code § C19-42.0.

The storage, transportation or sale of any fireworks is unlawful unless a certificate of registration of the name of the manufacturer has been issued by the Commissioner. Admin.Code § C19-41.0.

It appears without dispute that under date of May 26, 1964, the Commissioner issued certificate of registration M42936 covering "International Fireworks Brand" of colored shells, colored lights, showers and Roman candles manufactured by International.

It also appears without dispute that under date of May 27, 1964, Macy filed an application for a fireworks display on June 23, 1964. Examination of the application discloses that it set forth all, or substantially all, of the information required by Penal Law § 1894-a and by the Administrative Code.

It also appears without dispute that the Commissioner under date of June 16, 1964, issued permit M42996 to Macy for the fireworks display. The permit specified that the fireworks were to consist of "set pieces—aerial shells—colored lights Roman candles". The permit was made subject to 11 particular conditions set forth in an attachment to the permit.

The State of New York has waived its immunity from liability and has consented to have its liability determined "in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations". Court of Claims Act, § 8. The civil divisions of the State—counties, cities, towns, villages—do not have any independent sovereignty. Thus, when the State waived its immunity, its civil divisions became liable "equally with individuals and private corporations". Bernardine v. City of New York, 294 N.Y. 361, 365, 62 N.E.2d 604, 605, 161 A.L.R. 364 (1945).

Based on the language quoted above from Section 8 of the Court of Claims Act, decisions of the New York Courts have established the principle that the State continues to be immune in respect of acts and determinations which are discretionary, or merely administrative, or judicial, or quasi-judicial. The principle evolves because such acts and determinations, made solely as a function of sovereignty, are not comparable to any acts or determinations made by private "individuals or corporations" and therefore are not within the waiver made by Section 8.

Two of the leading cases are Steitz v. City of Beacon, 295 N.Y. 51, 64 N.E.2d 704, 163 A.L.R. 342 (1945) and Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 (1960). In the latter, then Judge Fuld said (7 N.Y.2d at 585, 200 N.Y.S.2d at 413, 167 N.E.2d at 67):

"It is proper and necessary to hold municipalities and the State liable for injuries arising out of the day-by-day operations of government—for instance, the garden variety injury resulting from the negligent maintenance of a highway—but to submit to a jury the reasonableness of the lawfully authorized deliberations of executive bodies presents a different question."

An illustration of the principle is found where the Attorney General was charged with damaging claimant by prosecuting an action against claimant on false affidavits and without cause. Dismissal of the claim by the Court of Claims was unanimously sustained by the Appellate Division because the Attorney General had "functioned in a matter committed by law to his control and supervision which necessarily involved the exercise of judgment and discretion". Instalment Department, Inc. v. State, 21 A.D.2d 211, 212, 250 N.Y.S.2d 124, 125 (3d Dept. 1964).

Another illustration is in a case where the Commissioner of Motor Vehicles failed to revoke a motor vehicle registration when required by statute to do so because the vehicle was uninsured. Claimant was injured by the uninsured vehicle. In ordering dismissal of the claim against the State, the Court said:

"The waiver of immunity by section 8 of the Court of Claims Act which subjects the State to the same liability as individuals or corporations for like acts is of no avail to claimant. The kind of governmental administration provided by this statute is sovereign in character and is completely foreign to any activity which is, or could be, carried on by a private person." Granger v. State, 14 A.D.2d 645, 646, 218 N. Y.S.2d 742, 743-744 (3d Dept. 1961).

In Terrace Hotel Co. v. State, 46 Misc. 2d 174, 259 N.Y.S.2d 553 (Ct.Cl.1965), aff'd, 26 A.D.2d 23, 270 N.Y.S.2d 460 (3d Dept. 1966), a claim was made against the State for damages because the Superintendent of Public Works had attempted to appropriate permanent easements over the land of claimant under supposed authority of a section of the Highway Law. The Court of Appeals had ruled that the Superintendent had no such authority. In ordering dismissal of the claim, the Court said (46 Misc.2d at 178, 259 N.Y.S.2d at 558):

"The act of the Superintendent in question in these cases, was an attempted appropriation, under a misconstruction by said Superintendent of his authority under said section and whose act was determined by the Court of Appeals to be void and a nullity. Since such an act could be performed only by a sovereign, it does not come within the provisions of the Court of Claims Act, Section 8, as construed in Newiadony, supra, and the State has not waived its immunity in this instance. The State, therefore, cannot be held liable for damages resulting from these acts of the Superintendent of Public Works."

Closer to the case at bar is Lockwood v. Village of Buchanan, 18 Misc.2d 862, 182 N.Y.S.2d 754 (Westchester County Ct.1959). There, the Village building inspector had issued a permit for work which plaintiff began to perform and to incur liabilities. The building inspector then revoked the permit. Plaintiff sued for damages by reason of negligence of the building inspector in issuing the permit in the first place. After collecting the cases, the Court (Hopkins, J., now Associate Justice, App.Div., 2d Dept.) ruled that there was no liability, saying in part (18 Misc.2d at 864-865, 182 N. Y.S.2d at 757-758; citations omitted):

"In the execution of governmental functions there are acts performed which have a plain parallel or similarity to acts performed by ordinary citizens for which liability habitually follows, if done by employees in a negligent manner, such as the operation of a motor vehicle, or the maintenance of property. Here, the usual rules applicable to actions based on negligence may be imposed without variation against municipalities.

"That does not hold true where the negligence claimed involves an act which the ordinary citizen would not be called upon to perform, such as the issuance of a building permit, as in the present case. Here, the governmental act itself is concerned, rather than the means of carrying out the

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