Preaster v. City of Syracuse

• Decision Date: 27 April 2018
• Docket Number: CA 17–01246,397
• Citation: 160 A.D.3d 1423,75 N.Y.S.3d 727
• Parties: Kenneth PREASTER and Kathryn Preaster, Plaintiffs–Appellants, v. CITY OF SYRACUSE, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 1423
75 N.Y.S.3d 727

Kenneth PREASTER and Kathryn Preaster, Plaintiffs–Appellants,
v.
CITY OF SYRACUSE, Defendant–Respondent.

397
CA 17–01246

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

Entered: April 27, 2018

WOODRUFF LEE CARROLL, SYRACUSE, FOR PLAINTIFFS–APPELLANTS.

JOSEPH E. FAHEY, CORPORATION COUNSEL, SYRACUSE (TODD LONG OF COUNSEL), FOR DEFENDANT–RESPONDENT.

PRESENT: SMITH, J.P., CENTRA, NEMOYER, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

Memorandum:

Plaintiffs commenced this action seeking damages arising from a fire on their property. According to plaintiffs, defendant's failure to repair a fire hydrant increased the damages they sustained when their house caught on fire. Plaintiffs appeal from an order that, inter alia, granted defendant's motion to dismiss the "second amended complaint" and denied plaintiffs' cross motion and "second motion" for leave to amend the second amended complaint. We affirm.

"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" ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ; see Moore v. Del–Rich Props., Inc., 151 A.D.3d 1817, 1818–1819, 58 N.Y.S.3d 772 [4th Dept. 2017] ). A municipality performs a purely proprietary role when its "activities essentially substitute for or supplement ‘traditionally private enterprises’ " ( Sebastian v. State of New York, 93 N.Y.2d 790, 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 [1999] ). "In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police

75 N.Y.S.3d 729

powers" ( Applewhite, 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [internal quotation marks omitted] ). It is well settled that where, as here, "the alleged negligence stems from...