Opinion
633 CA 20-00005
08-26-2021
CHRISTOPHER M., Individually and as Administrator of the Estate of Heather M., Deceased, Individually, and as Administrator of the Estate of T.M., Deceased, and as Parent and Natural Guardian of M.M., an Infant, Plaintiff-Appellant, v. Christopher J. MINEO, Defendant, Nicholas Morosco, Individually, and as Assistant Fire Chief of Yorkville Fire Department, the Yorkville Fire and Hose Company, Inc., and Village of Yorkville, Defendants-Respondents.
DAVID A. LONGERETTA, UTICA, FOR PLAINTIFF-APPELLANT. SUGARMAN LAW FIRM, LLP, SYRACUSE (PAUL V. MULLIN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS NICHOLAS MOROSCO, INDIVIDUALLY, AND AS ASSISTANT FIRE CHIEF OF YORKVILLE FIRE DEPARTMENT, AND THE YORKVILLE FIRE AND HOSE COMPANY, INC. TADDEO & SHAHAN, LLP, SYRACUSE (STEVEN C. SHAHAN OF COUNSEL), FOR DEFENDANT-RESPONDENT VILLAGE OF YORKVILLE.
DAVID A. LONGERETTA, UTICA, FOR PLAINTIFF-APPELLANT.
SUGARMAN LAW FIRM, LLP, SYRACUSE (PAUL V. MULLIN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS NICHOLAS MOROSCO, INDIVIDUALLY, AND AS ASSISTANT FIRE CHIEF OF YORKVILLE FIRE DEPARTMENT, AND THE YORKVILLE FIRE AND HOSE COMPANY, INC.
TADDEO & SHAHAN, LLP, SYRACUSE (STEVEN C. SHAHAN OF COUNSEL), FOR DEFENDANT-RESPONDENT VILLAGE OF YORKVILLE.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: We affirm for reasons stated in the decision at Supreme Court. We write only to note that, inasmuch as plaintiff correctly concedes in his appellate brief that the amended complaint fails to allege the existence of a special duty, the court properly granted those parts of the motions of defendants Nicholas Morosco, individually, and as Assistant Fire Chief of the Yorkville Fire Department, the Yorkville Fire and Hose Company, Inc., and the Village of Yorkville, seeking to dismiss the sixth cause of action, which is against Morosco for gross negligence. "In a negligence-based claim against a municipality [and its agents], a plaintiff must allege that a special duty existed between the municipality and the [injured person]" ( Kirchner v. County of Niagara , 107 A.D.3d 1620, 1623, 969 N.Y.S.2d 277 [4th Dept. 2013] ; 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] ; Laratro v. City of New York , 8 N.Y.3d 79, 82-83, 828 N.Y.S.2d 280, 861 N.E.2d 95 [2006] ). "Without a [special] duty running directly to the injured person[,] there can be no liability in damages, however careless the conduct or foreseeable the harm" ( Lauer v. City of New York , 95 N.Y.2d 95, 100, 711 N.Y.S.2d 112, 733 N.E.2d 184 [2000] ). Thus, contrary to plaintiff's contention, even if we accept as true the allegation that Morosco was grossly negligent and we accord plaintiff the benefit of every possible favorable inference (see Leon v. Martinez , 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), "in the absence of a special duty there can be no liability" ( Rennix v. Jackson , 152 A.D.3d 551, 554, 59 N.Y.S.3d 57 [2d Dept. 2017] ).