Szydlowski v. Town of Bethlehem, 525747

• Decision Date: 07 June 2018
• Docket Number: 525747
• Citation: 162 A.D.3d 1188,78 N.Y.S.3d 454
• Parties: Francis J. SZYDLOWSKI, et al., Respondents, v. TOWN OF BETHLEHEM, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1188
78 N.Y.S.3d 454

Francis J. SZYDLOWSKI, et al., Respondents,
v.
TOWN OF BETHLEHEM, Appellant, et al., Defendants.

525747

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

Calendar Date: April 23, 2018
Decided and Entered: June 7, 2018

78 N.Y.S.3d 455

Terry Rice, Suffern, for appellant.

Tully Rinckey PLLC, New York City (Nicholas A. Devyatkin of counsel), for respondents.

Before: McCarthy, J.P., Egan Jr., Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

McCarthy, J.P.

Appeal from an order of the Supreme Court (Ryba, J.), entered January 13, 2017 in Albany County, which denied a motion by defendant Town of Bethlehem to dismiss the complaint against it.

Defendant Normanskill Creek, LLC (hereinafter Normanskill) operates a golf course on property owned by defendant 165 Salisbury Road LLC that is located in the Town of Bethlehem, Albany County. Normanskill allowed fill to be placed on the property at the top of the bank of the Normanskill Creek. The filling occurred for at least several weeks despite no permit having been issued by defendant Town of Bethlehem as required by Code of the Town of Bethlehem § 128–49. The Town eventually advised Normanskill that it needed to apply for a fill permit; Normanskill applied and the Town granted a permit. A short time later, the Town determined that the permit had been exceeded and ordered that dumping cease.

A few weeks later, a landslide occurred at the property, causing approximately 120,000

78 N.Y.S.3d 456

cubic yards of earth and debris to slide into Normanskill Creek. Plaintiffs filed a complaint alleging that defendants' negligence caused damming of the creek and flooding of their property, which is located on Normanside Drive in the City of Albany and is adjacent to the Normanskill Creek. Specifically, plaintiffs alleged that the Town was negligent in the issuance of the fill permit to Normanskill and in its enforcement and administration of the Town Code. The Town moved to dismiss the complaint against it and Supreme Court denied the motion.¹ The Town appeals.

"[O]n a motion to dismiss for failure to state a claim, the court must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff[s] the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable legal theory" ( Skibinsky v. State Farm Fire & Cas. Co., 6 A.D.3d 975, 976, 775 N.Y.S.2d 200 [2004] [internal quotation marks and citation omitted]; see CPLR 3211[a][7] ; Graven v Children's Home R.T.F., Inc., 152 A.D.3d 1152, 1153, 60 N.Y.S.3d 556 [2017] ). To hold a municipality liable for negligence in relation to its governmental, as opposed to proprietary, functions, the plaintiff must show that the municipality owed him or her a special duty beyond that owed to the public at large (see Valdez v. City of New York, 18 N.Y.3d 69, 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011] ; McLean v. City of New York, 12 N.Y.3d 194, 199, 202–203, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009] ). A special 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 persons' benefit" ( Garrett v. Holiday Inns, 58 N.Y.2d 253, 261, 460 N.Y.S.2d 774, 447 N.E.2d 717 [1983] ). "A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit...