Stranger v. New York State Elec. & Gas Corp.

• Decision Date: 28 March 1966
• Citation: 25 A.D.2d 169,268 N.Y.S.2d 214
• Parties: Leon F. STRANGER, as Administrator of the Goods, Chattels and Credits of Leona P. Stranger, Deceased and individually, Plaintiff-Appellant, v. NEW YORK STATE ELECTRIC & GAS CORP., Frank Steiger, Christina Mazza, Defendants, City of Ithaca, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 214

268 N.Y.S.2d 214

25 A.D.2d 169

Leon F. STRANGER, as Administrator of the Goods, Chattels and Credits of Leona P. Stranger, Deceased and individually, Plaintiff-Appellant, v. NEW YORK STATE ELECTRIC & GAS CORP., Frank Steiger, Christina Mazza, Defendants, City of Ithaca,

Defendant-Respondent.

Supreme Court, Appellate Division, Third Department.

March 28, 1966.

Wiggins, Tsapis & Golder, Ithaca (Walter J. Wiggins, Ithaca, of counsel), for plaintiff-appellant.

Bryant, Mazza & Williamson, Ithaca (Frederick B. Bryant, Ithaca, of counsel), for defendant-respondent City of Ithaca.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and HAMM, JJ.

GIBSON, Presiding Justice.

Appeal is taken from an order of the Supreme Court at Special Term which, as to defendant city, dismissed, for insufficiency, the amended complaint in an action to recover wrongful death damages, caused when on February 15, 1963 an unvented open-flame gas heater 'exploded or otherwise caused flames to reach plaintiff's intestate'.

The amended complaint alleges that the use of the heater was in violation of the Building Code and the Housing Code of the City of Ithaca and that the city on March 10, 1959 notified the defendant owner and the defendant lessee that a dangerous condition existed by reason of the use in the building of unvented portable gas heaters, and on March 16, 1959 directed them to correct that condition and a number of other dangerous conditions or to vacate the building, failing which the city would demolish it. The amended complaint does not specifically relate these generalities to the particular apartment and particular heater here involved; nor does it plead or otherwise indicate proximate cause generally. It seems reasonably clear, however, that, under the codes, the use of a portable and readily removable heater did not require that the building 'be demolished by the * * * defendant City'. (Indeed, appellant's brief states that an inspection by the building commissioner's office On the day before the fire gave rise to a recommendation 'that the apartment of the plaintiff Also be declared unfit for human habitation and condemned.') After these general allegations of the violations of the codes by respondent city's codefendants, the amended complaint proceeds (in paragraph 15) to specify the city's negligence as in (a) 'failing to condemn the apartment', (b) 'permitting an open flame, unvented gas fired heater to be used in said apartment', (c) 'failing to enforce within a reasonable time the recommendations, orders and directives made by the Building Commissioner * * * dated March 16, 1959, and by the Fire Chief * * * dated March 10, 1959, to the defendant owner and the defendant lessee' and (d) 'failing to take any steps to render said premises safe for occupancy or to condemn the same when said defendant, City of Ithaca, had full knowledge of the dangerous condition existing in said apartment.'

The case before us cannot, in our view, be distinguished from Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635, and Rivera v. City of Amsterdam, 5 A.D.2d 637, 174 N.Y.S.2d 530. (The two latter cases involved the same building, the same allegedly defective oil heater and the same fire.) In those cases, as in this, the fire was attributed to a defective heater, of which the city had prior knowledge. The city, nevertheless, failed, as did the city in the case before us, to follow up its knowledge with action to require that the heater be made safe or its use discontinued. In those cases, the basis of the city's supposed liability was claimed by the plaintiffs to lie in sections 303 and 305 of the Multiple Residence Law; here, plaintiff would have us look to the comparable provisions of the Ithaca Building Code and Housing Code. As was said by (then) Justice Bergan, writing for a unanimous court in Rivera: 'No liability is cast upon public authority by the Multiple Residence Law for private damage resulting from failure to enforce its directory provisions.' (5 A.D.2d 637, 638, 174 N.Y.S.2d 530, 532.) We find nothing in either of the Ithaca codes to require a different conclusion here; and, indeed, subdivision (b) of section 13--2 of the Ithaca Housing Code specifically provides for conformity to the Multiple Residence Law. It was said in Rivera, further, that, 'Proceedings by public authority in a court to enforce statute law is in the nature of a governmental function, the failure of which is not actionable on behalf of a private person suffering damage' (p. 638, 174 N.Y.S.2d p. 532); and the apparent intent of the statute to require enforcement by resort to judicial process was noted; as we observe that similar proceedings are provided by sections 6--16(e) and 6--17 of the Ithaca Building Code. The holding in Rivera was quoted at some length and specifically approved in Motyka (supra), which also cites the general rule that 'liability arises out of a statuate only in limited instances where disregard of the command of the statute results in damage to one of the class for whose especial benefit the statute was enacted' (15 N.Y.2d 139, 256 N.Y.S.2d 598, 204 N.E.2d 637). Similar actions were found without legal basis in Messineo v. City of Amsterdam, 17 N.Y.2d 523, 267 N.Y.S.2d 905, 215 N.E.2d 163 (decided January 20, 1966) and Henry v. City of New York, 15 N.Y.2d 726, 256 N.Y.S.2d 939, 205 N.E.2d 204, the latter case being, like this, an appeal from dismissal of the complaint for insufficiency.

Of necessity, appellant argues that the City of Ithaca is liable for negligent failure to abate or enjoin, under the local codes, the allegedly dangerous condition known to exist, although in Motyka (supra) and Rivera (supra, 5 A.D.2d p. 638, 174 N.Y.S.2d p. 531) the City of Amsterdam was not liable for its failure, under the substantially similar provisions of the Multiple Residence Law and the Public Health Law, to abate or enjoin an alleged nuisance of which it had knowledge. Appellant contends, somewhat inconsistently with his reliance upon the local codes, that this case is an exception to the general rule and is, instead, within the common-law principle 'that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all' (Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167, 159 N.E. 896, 898, 62 A.L.R. 1199); but in proceeding with their inspections and in giving warnings, the city's employees were not volunteers or persons assuming to act gratuitously, within the meaning of the rule, so as thereby to render themselves subject to a duty which would not have existed otherwise. The duty had previously been imposed by their employment and the question is not as to the existence of a...