Okie v. Village of Hamburg

• Decision Date: 11 March 1994
• Citation: Okie v. Village of Hamburg, 609 N.Y.S.2d 986, 196 A.D.2d 228 (N.Y. App. Div. 1994)
• Parties: Edmund A. OKIE and Judith A. Okie, Respondents, v. VILLAGE OF HAMBURG, Appellant, and Stratford Homes, Inc., d/b/a Ryan Homes, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 986

609 N.Y.S.2d 986

196 A.D.2d 228

Edmund A. OKIE and Judith A. Okie, Respondents, v. VILLAGE OF HAMBURG, Appellant and Stratford Homes, Inc., d/b/a Ryan Homes, Respondent.

Supreme Court, Appellate Division Fourth Department.

March 11, 1994.

Abbott, Tills & Knapp by Kenneth Knapp, Hamburg, for appellant Village of Hamburg.

Casey, Sanchez, Amigone & Kelleher by Arthur Baumeister, Jr., Buffalo, for respondents Okie.

Gibson, McAskill & Crosby by Jeffrey Sendziak, Buffalo, for respondent Stratford Homes, Inc., d/b/a Ryan Homes.

Before DENMAN, P.J., and GREEN, LAWTON, CALLAHAN and DOERR, JJ.

LAWTON, Justice:

Presented on this appeal is the question whether a municipality is liable for mistakenly issuing a building permit to construct a residence within the boundaries of a floodplain and for erroneously issuing a certificate of occupancy following construction. Supreme Court denied defendant Village of Hamburg's motion for summary judgment to dismiss the homeowners' complaint and codefendant builder's cross claim.

The material facts are not in dispute. On April 7, 1986, plaintiffs entered into an agreement with defendant Stratford Homes, Inc. (Stratford) for the construction of a residence in the Village of Hamburg (Village). Stratford applied for and received a building permit from the Village building inspector on June 24, 1986. Construction started immediately with grading and the placement of foundation footings. The inspector, who was also the local administrator for the Federal Emergency Management Agency, upon visiting the job site, noted the proximity of Barrack Creek and became concerned that a portion of the residence might be within the 100-year floodplain, i.e., land subject to a 1% chance of flooding in a given year.

There is a dispute whether the inspector notified a representative of Stratford of his concerns at that time. Because this was his first encounter with this potential problem, the inspector contacted a New York State Department of Environmental Conservation (DEC) water program specialist to express his concerns and request guidance regarding how to proceed. He was informed that it would be necessary to have elevation measurements made to ascertain whether the building was in the floodplain. Work on the building was continued to completion and plaintiffs applied for and received a certificate of occupancy on September 4, 1986. Following further communications with DEC, elevation measurements were taken by the Village at the site on April 27, 1988; those measurements disclosed that the building encroached some 6 feet into the floodplain area. Based on the advice of DEC's representative, the Village legalized the presence of the structure by granting a variance on January 4, 1989. A notice of claim was filed by the plaintiffs against the Village on June 6, 1989, followed by the service of a summons and complaint on September 19, 1989.

The Village maintains that the complaint was untimely (citing Klein v. City of Yonkers, 73 A.D.2d 931, 423 N.Y.S.2d 685, aff'd 53 N.Y.2d 1011, 442 N.Y.S.2d 477, 425 N.E.2d 865; Pleasant Ridge Townhouses Homeowners' Assn. v. T & D Constr. Corp., 181 A.D.2d 871, 581 N.Y.S.2d 857; Matter of Magaldino v. Town of Hurley, 177 A.D.2d 906, 576 N.Y.S.2d 664; McVan v. City of New Rochelle, 127 A.D.2d 825, 511 N.Y.S.2d 942). Plaintiffs concede that more than one year and 90 days expired from the date of the happening of the event upon which the claim is based, i.e., the issuance of the building permit and the certificate of occupancy (see, McVan v. City of New Rochelle, supra, at 825-826, 511 N.Y.S.2d 942), but argue that, because of the Village's actions and plaintiffs' lack of knowledge, the Village should be estopped from relying upon the applicable Statute of Limitations (General Municipal Law § 50-i) to bar their action.

Supreme Court concluded that "the misrepresentations of the Village caused the delay in plaintiffs' filing of a timely Notice of Claim and the commencement of an action. Accordingly, plaintiffs are excused from such compliance pursuant to the provisions of General Municipal Law Section 50-i". We disagree.

A defendant may be estopped from asserting the Statute of Limitations if the defendant has engaged in fraud, deception or misrepresentation (Simcuski v. Saeli, 44 N.Y.2d 442, 449, 406 N.Y.S.2d 259, 377 N.E.2d 713). The record does not reveal that the Village misrepresented to plaintiffs that their home was not in a floodplain in a manner designed to inhibit them from filing suit (see, Montelione v. Greenburg Edgemont Union Free School Dist. of Scarsdale, 175 A.D.2d 113, 114, 572 N.Y.S.2d 17). The only representation made to plaintiffs was a generalized representation contained in the certificate of occupancy that the structure complied with all laws, which later turned out to be incorrect. That is insufficient to estop the Village from asserting a Statute of Limitations defense (see, Pleasant Ridge Townhouses Homeowners' Assn. v. T & D Constr. Corp., supra, 181 A.D.2d at 871-872, 581 N.Y.S.2d 857; Doyle v. 800, Inc., 72 A.D.2d 761, 762, 421 N.Y.S.2d 379).

By reason of the foregoing, the Village's summary judgment motion to dismiss the complaint should be granted and we need not consider the merits of plaintiffs' claim against the Village. Nevertheless, because we must deal with the merits of Stratford's cross claim against the Village, and because that cross claim is closely related to plaintiffs' claim against the Village, it is appropriate to discuss the merits of both the claim and cross claim.

For the purposes of our discussion, we make no distinction between the issuance of a building permit and the issuance of a certificate of occupancy, although we recognize that there are material differences (see, Green v. Irwin, 174 A.D.2d 879, 881, 570 N.Y.S.2d 868).

Garrett v. Holiday Inns, 58 N.Y.2d 253, 460 N.Y.S.2d 774, 447 N.E.2d 717 is the seminal case with respect to a municipality's liability for erroneously issuing a certificate of occupancy. With respect to members of the general public, no liability attaches for "a violation of a general duty owed by the town to the public at large" (Garrett v. Holiday Inns, supra, at 257, 460 N.Y.S.2d 774, 447 N.E.2d 717). The issuance of a certificate of occupancy and/or a building permit is a governmental function for which a municipality may not be held responsible for damages (O'Connor v. City of New York, 58 N.Y.2d 184, 460 N.Y.S.2d 485, 447 N.E.2d 33; Rolfe v. Village of Falconer, 96 A.D.2d 1142, 467 N.Y.S.2d 453, aff'd 62 N.Y.2d 884, 478 N.Y.S.2d 852, 467 N.E.2d 516). The only exception to that general prohibition is when a special relationship exists between the municipality and the applicant. In determining the duty of the Town of Greece to the codefendant owner, Holiday Inns, the Court of Appeals in Garrett, supra, 58 N.Y.2d at 261, 460 N.Y.S.2d 774, 447 N.E.2d 717 stated that "[s]uch a duty is found when a special relationship exists between the municipality and an individual or class of persons, warranting the imposition of a duty to use reasonable care for those...