Opinion
103014/08.
Decided September 18, 2009.
Upon the foregoing papers, defendants' motion for summary judgment dismissing the complaint is granted.
This action arises out of the April 2007 collapse of a gabion retaining wall adjacent to the foundations of nine two-family units of the Waterview Court Development (hereinafter, the "Development") situated along the waterfront of the upper New York Bay near the Verazzano Bridge in Staten Island. The nine homeowner/plaintiffs are members of plaintiff Skyline Point Homeowners Association, Inc. (hereinafter "Skyline"). Insofar as it appears on the papers before the Court, the Development consists of twenty-seven two-family attached units. It is undisputed that nine of the units are situated at the top the gabion retaining wall that abuts the waterfront, and lie within a New York State Department of Environmental Conservation (hereinafter "DEC") mapped "Tidal Wetland and Coastal Erosion Hazard Area" (hereinafter "CEHA"). It is also undisputed that the subject units were constructed without the prior approval and required permits from the DEC. Moreover, it appears that although the installation of drywells was an integral component to proper drainage at the site, such required drywells either were not installed or were vastly undersized.
Notwithstanding all of the above, it appears that final certificates of occupancy for the subject units were issued by defendant New York City Department of Buildings (hereinafter "DOB") in the year 2000, and approximately seven years later, i.e., on or about April 14-15, 2007, the gabion retaining wall collapsed during a "Noreaster," placing the foundations of these particular units in imminent danger. Presently, certain "vacate orders" are in effect and the plaintiff/homeowners cannot occupy their residences. In this action, plaintiffs contend, inter alia, that despite the "blatant violations of New York State law and the Building Code of the City of New York, construction permits were granted and final certificates of occupancy were issued for all twenty-seven homes in the development." More specifically, it is alleged in the complaint that the City and its DOB improperly and negligently (1) issued permits for construction of buildings that lie within tidal wetlands and a CEHA site without the required approval of the DEC, (2) relied upon a private architect's certifications that DEC approvals were not required, (3) inspected and approved the gabion retaining wall that collapsed in April 2007, (4) inspected and approved the plumbing, electrical, sewerage and drainage systems in situ, and (5) issued certificates of occupancy for the subject units despite its failure to adequately inspect the gabion retaining wall and other drainage systems.
In moving for summary judgment, the City defendants (hereinafter, "City") maintain that plaintiffs have failed to state a viable cause of action relative to the alleged negligent inspections and issuance of permits and certificates of occupancy for the Development. Most significantly, movants point out that a municipality has absolute immunity from liability in tort arising out of its performance of its "discretionary actions". Consonant with this principle, it is alleged that the DOB's decisions in this case, e.g., to grant or deny a building permit and/or a certificate of occupancy, or direct how and by whom the inspections should be performed at a construction site, unequivocally require the exercise of discretion and professional judgment for which the City defendants have absolute immunity. In the alternative, defendants maintain that a special duty has not been shown to exist between plaintiffs and the City that would justify a tort claim against the municipality. In support, defendants set forth certain provisions of the New York City Administrative Code which constitutes its "Building Code" and regulates, e.g., the issuance of permits, certificates of occupancy, and inspections. Of particular relevance to the facts in this case, are the following code provisions:
§ 27-143, which states, in pertinent part, that an examination shall be made of all submitted plans, and the Buildings Commissioner may at his or her discretion, when the application is submitted by an architect or an engineer, designate portions of the examination for limited supervisory check;
§ 27-209, which states, as is relevant, that after the issuance of a work permit (1) inspections will be made during the progress of the work at such times or at such stages and in such manner as the Buildings Commissioner directs; (2) the Buildings Commissioner may accept signed statements by architects or engineers and supporting inspection and test reports which have been filed with the DOB covering material and equipment subject to controlled and semi-controlled inspections; and (3) the work may proceed without any verifying inspections or tests by the DOB itself provided that the names and addresses of those architects and engineers were provided in the work permit application or filed in writing with the DOB;
§ 27-210, which states, in pertinent part, that when work is completed, and before issuance of the certificate of occupancy, a final inspection will be conducted by the DOB;
§ 27-221, which states, inter alia, that an application for a certificate of occupancy shall be accompanied by a signed statement of the architect, engineer or other person who supervised or superintended the construction work, stating that he or she has examined the approved plans, and that to the best of his or her knowledge and belief, the building has been erected in accordance with the approved plans and that it complies with the Building Code and all other applicable laws and regulations.
In addition to the foregoing, defendants emphasize that the clearest evidence of the DOB's exercise of discretion in this case is the fact that the building plans for the Development were initially disapproved based upon a certain list of "objections" by the plan examiner, Mr. Sai Wat, but that the agency reversed itself and allowed a private architect or engineer retained by the developer to conduct the controlled inspections during the construction phase in lieu of sending DOB personnel ( see New York City Administrative Code § 27-209), and that it accepted the results of those inspections in the further exercise of its discretion.
The professional who conducted the inspections of the retaining wall, the installation of the drywells and the internal drainage at the Development, and submitted statements to the DOB attesting to such was Rocco DeFellippis, P.E., an engineer retained by the developer. Mr. DeFellippis is currently the subject of a DOB disciplinary proceeding based on his performance of the Waterview Court construction and it is alleged that he engaged in false filing with regard to construction of drywells at the Development.
In the alternative, defendants maintain that, even assuming, arguendo, that their actions were deemed to be ministerial in nature, plaintiffs have failed to set forth a factual basis to establish the existence of a "special relationship" between themselves and the municipality. In this regard, movants point to the absence of any direct contact between plaintiffs and the DOB during the permit and construction phases of the Development.
In opposing the motion, several of the plaintiff/homeowners have submitted affidavits attesting to their justifiable reliance upon the DOB's issuance of the certificates of occupancy when they purchased their residences as creating a special duty which was breached by, inter alia, the municipal defendants failing to enforce their own building and environmental codes. As such, it is argued that the City is not entitled to governmental immunity from tort liability in this particular case.
Plaintiffs also maintain that the motion for summary judgment is premature since it is made prior to the commencement of discovery and, as such, certain facts essential to justify their opposition remain unavailable and hidden from disclosure ( see CPLR 3212[f]). By way of example, plaintiffs question the DOB's decision to convert the project "to [a] professional certification" project, which relies upon the same party which submitted the building plans that were initially rejected by the DOB to "self-certify" their own revisions rather than obtaining the DOB's approval. Accordingly, plaintiffs contend that if the original rejection was due to the location of the site within a tidal wetlands or CEHA, or the improper size or location of the proposed drywells and/or type of retaining wall, then the City cannot assert its freedom from liability while "turning a blind eye" if the builder/developer for personal gain acts to circumvent the Building Code which the DOB is charged to enforce.
In addition, plaintiffs claim that they are entitled to inquire into (1) certain "required" inspections of the site by the DOB employees that either were not conducted or "signed off improperly", and (2) the subsequently revealed discipline, termination or indictment for bribery charges of certain DOB employees assigned to inspect the proposed building plans or otherwise engaged in Waterview Court Development. According to plaintiffs, all of the pertinent documents, applications, permits, inspection reports and job filings concerning this development are presently within the exclusive custody and control of the defendants. In fact, it is believed that at least one essential witness with direct knowledge of the project's "application history", i.e., Mr. Sai Wat, remains on the DOB's payroll. Plaintiffs claim that they must be allowed to explore the documents that defendants' possess and to question this witness and any others regarding the entire DOB application process for the Development.
Finally, plaintiffs have accused the DOB of misconduct, as allegedly described in certain newspaper articles from, e.g., the New York Times (1992) and the New York Daily News (2008), which portray the "routine" bribing and "paying-off" City building inspectors as a "business necessity". In short, plaintiffs contend that the City's actions in this case were "so egregious" as to amount to gross neglect or even wilful misconduct, and that even a perfunctory "supervisory" site visit by the DOB would clearly have revealed the manifest irregularities and "blatant and dangerous [building] code violations" that existed at the site. In support, plaintiffs submit certain portions of a report by Nicholas Tamborra, AIA, who examined the documents filed with the DOB for this project and allegedly discovered numerous "discrepancies" and "obvious deficiencies and inconsistencies" between, inter alia, the internal drainage and drywell construction plans as portrayed in the documents submitted to the DOB and the DEP for approval, and those which were actually constructed. By way of example, Mr. Tambora explains that the drywells approved in the submitted plans required 30 feet of rear yard for their proper installation; however, based upon the survey submitted to the DOB, the rear yards in question are only 22 feet in length, therefore, rendering the proposed and approved drywells "mathematically impossible to be placed in the ground." Finally, plaintiffs' expert opined that under the circumstances, the DOB's purpose in changing the project status to one of professional certification "is puzzling and . . . subject to question."
In view of the above, plaintiffs contend that discovery is necessary to determine whether the DOB's inspectors acted in good faith in performing their inspections of the site, and that should discovery reveal that DOB employees engaged in misconduct or acted improperly, a critical issue is raised as to whether the Superintendent and, through him, the City are chargeable with the knowledge of same.
Addressing first plaintiffs' inference that DOB employees engaged in certain misconduct and improprieties in the performance or misfeasance of their duties as plan examiners and building inspectors, this Court is constrained to adhere to the claims asserted in plaintiffs' respective notices of claim and the verified complaint, all of which are devoid of any such allegations. Accordingly, notwithstanding the merit of any such allegations of, e.g., criminal conduct, on the part of the City's agents and/or employees for which it might be held vicariously liable under the doctrine of respondeat superior ( see e.g. Coffey v The City of New York , 49 AD3d 449 450-451; Bernardini v The City of New York, 45 AD3d 466, lv denied 10 NY3d 792; White v Hampton Mgt. Co, LLC , 35 AD3d 243 , 244; Gomez v City of New York, 304 AD2d 374, 375; Kirkman v Astoria Gen. Hosp., 204 AD2d 401, 402-403, lv denied 84 NY2d 811), discovery leading to the disclosure of such illegal conduct will be of no aid to plaintiffs, who may "not rely upon evidence in support of a theory of liability not advanced in the notice of claim to raise a triable issue of fact" ( Heckel v City of New York , 60 AD3d 812 , 813; see Semprini v Village of Southampton , 48 AD3d 543, 544). Plaintiffs at bar never sought leave to amend their notice of claim, and while an employer may be held vicariously liable for the misdeeds and even intentional torts of an employee or agent acting within the scope of his or her employment, there is no such liability for the torts of an employee committed solely for personal motives (e.g., bribe receiving) unrelated to the furtherance of the employer's business ( cf. White v Hampton Mgt. Co, LLC, 35 AD3d at 244). It is also worthy of note that much of the information which plaintiffs seek to obtain through discovery constitute matters of public record. Accordingly, plaintiffs have failed to make the required evidentiary showing that discovery might yield material evidence within movant's exclusive knowledge that would operate to defeat defendants' motion. Mere speculation and conjecture will not suffice ( see Rochester Linoleum Carpet Ctr., Inc. v Cassin , 61 AD3d 1201 , 1202; Bevens v Tarrant Mfg. Co., Inc. , 48 AD3d 939 , 942; Pank v Village of Canajoharie, 275 AD2d 508, 510; cf. Metichecchia v Palmeri , 23 AD3d 894 , 895)
Turning to the issue of the City's defense of absolute immunity from tort liability, the Court of Appeals has recently clarified the often litigated distinction between the discretionary and ministerial acts of governmental officials. In McLean v City of New York (12 NY3d 194, 202), the Court held that "[w]hen official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence or malice (internal quotations marks omitted)", citing Tango v Tulevech, ( 61 NY2d 34, 40). With regard to the so-called "special duty/special relationship rule", the Court further held that it is per se inapplicable to "[g]overnment action, if discretionary", and while its ministerial actions may serve as a basis for liability, this can only occur "if [the government] violate[s] a special duty owed to the plaintiff, apart from any duty to the public in general" ( McLean v City of New York, 12 NY3d at 203).
Consonant with the foregoing, it is well established that the decision to issue a building permit is discretionary in nature, thereby rendering a municipality immune from tort liability based on its decision ( City of New York v 17 Vista Assocs., 84 NY2d 299, 307; see Dinerman v Poehlman, 237 AD2d 483, app dismissed 90 NY2d 838, lv denied 90 NY2d 808; Rottkamp v Young, 21 AD2d 373, affd for the reasons stated by the Appellate Division 15 NY2d 831; accord Emmerling v Town of Richmond , 13 AD3d 1150 , 1151; Broncati v City of White Plains , 6 AD3d 476 , 477-478; Yan Shou Kong v Town of Huntington , 4 AD3d 419 , 419-420; Sposato v Village of Pelham, 275 AD2d 364, 365). Neither may municipal tort liability be predicated upon the discretionary acts of other municipal employees such as building inspectors, and persons charged with the enforcement of building safety provisions or the issuance of a certificates of occupancy ( see Worth Distribs. v Latham, 59 NY2d 231, 237; Newhook v Hallock, 215 AD2d 804, 805; Okie v Village of Hamburg, 196 AD2d 228, 231; cf. Hladik v Town of Malta, 55 NY2d 786). Plaintiffs have failed to cite any authority to the contrary. In any event, even were the duties in question ministerial in nature, the papers are devoid of any evidence of affirmative conduct on the part of the City defendants which may have induced plaintiffs' purported justifiable reliance upon its actions and/or given rise to a special relationship ( see McLean v City of New York, 12 NY3d at 203; Vera v Bell, 51 AD3d 1263, 1265). Nor can the municipality be said to have assumed "positive direction and control in the face of a known, blatant and dangerous safety violation" ( Pelaez v Seide, 2 NY2d 186, 199-200). Finally, the adoption of, e.g., zoning ordinances and building codes ( see Vera v Bell, 51 AD3d at 1264) and/or the issuance of building permits and certificates of occupancy ( see Davis v County of Onondaga , 31 AD3d 1156 , 1158) does not, per se, create a special relationship, but operate for the benefit of members of the general public ( id.).
In this regard, it is not without significance that the Court of Appeals in the aforecited case of the City of New York v 17 Vista Assocs. declined to find any liability on the part of the City where a predetermined sum of money had been paid, inter alia, for an expedited and favorable determination of the SRO status of a building which a developer was anxious to acquire, notwithstanding a counterclaim for damages caused by the resultant unexpected delay in issuing permits, branding the entire transaction void and against public policy.
Accordingly, it is
ORDERED, that defendants' motion for summary judgment is granted and the complaint is dismissed without prejudice to any further proceedings which may be deemed advisable for plaintiffs to undertake; and it is further
ORDERED, that the Clerk enter judgment accordingly.