Hahn v. City of Rensselaer

• Citation: 563 N.Y.S.2d 155,166 A.D.2d 795
• Parties: Robert HAHN, Appellant, v. CITY OF RENSSELAER, Respondent.
• Decision Date: 18 October 1990
• Court: New York Supreme Court Appellate Division

Page 155

563 N.Y.S.2d 155

166 A.D.2d 795

Robert HAHN, Appellant, v. CITY OF RENSSELAER, Respondent.

Supreme Court, Appellate Division Third Department.

Oct. 18, 1990.

Eugene R. Spada, Albany, for appellant.

Francis E. Lehner (Saul Aronson, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, LEVINE and HARVEY, JJ.

HARVEY, Justice.

Appeal from an order of the Supreme Court (Travers, J.), entered January 12, 1990 in Rensselaer County, which granted defendant summary judgment dismissing the complaint.

This action arises out of incidents which apparently occurred in or around July 1983 when defendant terminated the supply of water to plaintiff's property located in the City of Rensselaer, Rensselaer County, allegedly due to the nonpayment of plaintiff's water bill and/or a water problem in plaintiff's basement. As a result, defendant's representatives entered plaintiff's property and removed various fixtures and personal property following an inspection from which it determined that the condition of plaintiff's premises constituted a public health and safety hazard. Consequently, plaintiff commenced this action alleging, inter alia, that defendant intentionally caused him severe emotional distress, intentionally trespassed on his property, converted various fixtures and items of his personal property to its own use, defamed him and violated his right to privacy guaranteed by the Federal Constitution. Following joinder of issue and the commencement of discovery, defendant moved to dismiss the complaint for failure to state a cause of action. Supreme Court ultimately granted defendant summary judgment and plaintiff now appeals.

Initially, we reject plaintiff's contention that Supreme Court erred in treating defendant's motion as one for summary judgment without giving the parties notice of its intention to do so as required by CPLR 3211(c). While it is true that defendant's notice of motion did not specify whether the motion was being made pursuant to CPLR 3211 or 3212, Supreme Court's treatment of the motion as one for summary judgment was appropriate since issue had been joined and the papers submitted in support of and in opposition to the motion clearly indicated that the parties intended summary judgment treatment (see, Key Bank of Northern N.Y. v. Lake Placid Co., 103 A.D.2d 19, 25, 479 N.Y.S.2d 862,appeal dismissed 64 N.Y.2d 644, 485 N.Y.S.2d 49, 474 N.E.2d 257). By their express language and proof submitted, both parties unambiguously indicated their intention that the motion be treated as one for summary judgment and plaintiff cannot now rightfully claim that it was prejudiced by Supreme Court's election to do so. Unlike the situation presented in Mihlovan v. Grozavu, 72 N.Y.2d 506, 508, 534 N.Y.S.2d 656, 531 N.E.2d 288, cited by plaintiff, here the parties received notice "by expressly seeking summary judgment" and an appropriate record was made.

Turning to the merits, we initially conclude that Supreme Court correctly granted summary judgment dismissing the first, second, third, fourth and ninth causes of action relating principally to the turning off of plaintiff's water by defendant and also alleging trespass and the violation of his right to privacy. It is well settled that, where a municipality makes a quasi-judicial or discretionary determination involving the "exercise of reasoned judgment which could typically produce different acceptable results", it will be absolutely immune from liability for its conduct, regardless of the reasonableness or propriety of such conduct (Tango v. Tulevech, 61 N.Y.2d 34, 41, 471 N.Y.S.2d 73, 459 N.E.2d 182; see, Miller v. State of New York, 125 A.D.2d 853, 854, 510 N.Y.S.2d 214, lv. denied 69 N.Y.2d 608, 514 N.Y.S.2d 1026, 507 N.E.2d 322; Rottkamp v. Young, 21 A.D.2d 373, 376-377, 249 N.Y.S.2d 330, affd. 15 N.Y.2d 831, 257 N.Y.S.2d 944, 205 N.E.2d 866).

Here, the record shows that defendant acted in accordance with various sections of its building code that vest defendant with discretionary or quasi-judicial authority to take such action as is necessary to protect the interests, health, safety and welfare of the public. Of particular significance in this case are the provisions which empowered defendant to take action without prior notice and inspect defendant's premises and to remove and/or abate any hazard or danger existing therein, under emergency circumstances, which defendant found to exist. The presence of such hazards in this case were amply demonstrated in defendant's motion papers, thereby justifying defendant's "exercise of reasoned judgment" (Tango v. Tulevech, supra ) and establishing its immunity from liability for the alleged torts.

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