Moore v. Del-Rich Props., Inc.

• Decision Date: 16 June 2017
• Citation: 151 A.D.3d 1817,58 N.Y.S.3d 772
• Parties: Lillie MOORE, as Grandmother and Custodial Guardian of Daiquan Sanders, an Infant Under the Age of Eighteen, Plaintiff–Respondent, v. DEL–RICH PROPERTIES, INC., Defendant, City of Buffalo Urban Renewal Agency and City of Buffalo, Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1817

58 N.Y.S.3d 772

Lillie MOORE, as Grandmother and Custodial Guardian of Daiquan Sanders, an Infant Under the Age of Eighteen, Plaintiff–Respondent,

v. DEL–RICH PROPERTIES, INC., Defendant,City of Buffalo Urban Renewal Agency and City of Buffalo, Defendants–Appellants.

Supreme Court, Appellate Division, Fourth Department, New York.

June 16, 2017.

Scott C. Billman, Buffalo, for Defendant–Appellant City of Buffalo Urban Renewal Agency.

Timothy A. Ball, Corporation Counsel, Buffalo (Robert E. Quinn of Counsel), for Defendant–Appellant City of Buffalo.

Lipsitz & Ponterio Llc, Buffalo (Zachary James Woods Of Counsel), for Plaintiff–Respondent.

PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND SCUDDER, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries her grandson allegedly sustained as a result of exposure to lead paint while he was visiting and then residing with plaintiff in an apartment owned by defendant Del–Rich Properties, Inc. (Del–Rich). After it was discovered that there were dangerous levels of lead paint throughout the structure, Del–Rich applied to enroll in the Lead Hazard Control Project (Project), which was a federally-funded grant program designed to address the high rate of lead poisoning in and around defendant City of Buffalo (City). Employees of defendant City of Buffalo Urban Renewal Agency (BURA) helped manage the Project, and properties enrolled in the Project would receive lead abatement work performed by contractors chosen by the Project.

The lead abatement work was performed at plaintiff's apartment in or around February 2000. Nevertheless, when the property was retested in April 2001, dangerous levels of lead were again detected. Plaintiff alleges that the City and BURA (collectively, defendants) are liable for the injuries sustained by her grandson as a result of the negligent lead abatement work performed at the residence pursuant to the Project.

The City moved for summary judgment dismissing the complaint against it, contending that it was not negligent as a matter of law; that plaintiff could not establish liability against the City, a government entity, because plaintiff could not establish a special relationship with the City; and that the City was immune from suit because its actions were discretionary. BURA likewise moved for summary judgment dismissing the complaint against it, incorporating all of the factual and legal arguments raised by the City. Plaintiff cross-moved for partial summary judgment on the issue of negligence against defendants. We conclude that Supreme Court properly denied defendants' respective motions and properly granted in part plaintiff's cross motion for summary judgment, determining as a matter of law that defendants' actions were proprietary and therefore not subject to governmental immunity.

"When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. If the municipality's actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties" ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 ). "The relevant inquiry in determining whether a governmental agency is acting within a governmental or proprietary capacity is to examine the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred" ( Turturro v. City of New York, 28 N.Y.3d 469, 478, 45 N.Y.S.3d 874, 68 N.E.3d 693 [internal quotation marks omitted] ). That determination " ‘turns solely on the acts or omissions claimed to have caused the injury’ " (id. ).

"If it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a ‘special duty’ to the injured party ... It is the plaintiff's obligation to prove that the government defendant owed a special duty of care to the injured party because duty is an essential element of the negligence claim itself" ( Applewhite, 21 N.Y.3d at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; see Turturro, 28 N.Y.3d at 478, 45 N.Y.S.3d 874, 68 N.E.3d 693 ). Finally, even if plaintiff can establish a special duty or relationship, defendants may nevertheless be entitled to dismissal of the claims under the "governmental function immunity" defense, which provides, in pertinent part, that " ‘[a] public employee's discretionary acts-meaning conduct involving the exercise of reasoned judgment-may not result in the municipality's liability even when the conduct is negligent’ ... In other words, even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense and proves that...