Opinion
605664/2017
11-08-2017
P.N., as infant, by and through her Parent and Natural Guardian Jasmine Ginet Turcios-Flores, and Jasmine Ginet Turcios-Flores, Individually, Plaintiffs, v. Samuel G. Hightower, Jr., Samuel G. Hightower, Sr., Teresa Hightower, Town of Islip Housing Authority, Town of Islip, and the County of Suffolk, Defendants.
Palermo Touhy Bruno, PLLC Attorneys for Plaintiffs 1300 Veterans Memorial Hwy, Ste 320 Hauppauge, NY 11788 Thomas M. Bona, P.C. Attorneys for Defendants Hightower 12 Water Street White Plains, NY 10601 Towne, Ryan & Partners, P.C. Attorneys for Defendant Town of Islip Housing Authority 450 New Karner Road Albany, NY 12212 Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP Attorneys for Defendant Town of Islip 969 Jericho Tpke Saint James, NY 11780 Dennis M. Brown, ESQ. Suffolk County Attorney Attorneys for Defendant County of Suffolk 100 Veterans Memorial Hwy, PO Box 6100 Hauppauge, NY 11788
Palermo Touhy Bruno, PLLC Attorneys for Plaintiffs 1300 Veterans Memorial Hwy, Ste 320 Hauppauge, NY 11788 Thomas M. Bona, P.C. Attorneys for Defendants Hightower 12 Water Street White Plains, NY 10601 Towne, Ryan & Partners, P.C. Attorneys for Defendant Town of Islip Housing Authority 450 New Karner Road Albany, NY 12212 Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP Attorneys for Defendant Town of Islip 969 Jericho Tpke Saint James, NY 11780 Dennis M. Brown, ESQ. Suffolk County Attorney Attorneys for Defendant County of Suffolk 100 Veterans Memorial Hwy, PO Box 6100 Hauppauge, NY 11788 Joseph A. Santorelli, J.
Upon the following papers numbered 1 to 80 read on this motion for summary judgment ; Notice of Motion/ Order to Show Cause and supporting papers 1 - 16 (#01) & 51 - 60 (#02) ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 17 - 37 (#01) & 61 - 76 (#02) ; Replying Affidavits and supporting papers 38 - 50 (#01) & 77 - 80 (#02) ; Other; (and after hearing counsel in support and opposed to the motion) it is,
Defendant, Town of Islip Housing Authority, hereinafter referred to as "TOIHA", seeks an order granting summary judgment and dismissing the complaint and all cross claims. Defendant, County of Suffolk, hereinafter referred to as "County", seeks an order granting summary judgment and dismissing the complaint and all cross claims. The plaintiffs filed opposition to both motions.Plaintiffs commenced this action to recover damages for an incident that occurred on April 6, 2016, wherein the infant plaintiff suffered severe burns to the face and body as a result of exposure to an uncovered heating coil in her grandmother's section 8 rental apartment located as 6 Patton Street, Brentwood, New York. On July 15, 2017 the plaintiffs filed a Notice of Claim with the County, TOIHA and the Town of Islip. The County defendant sent the plaintiffs a letter allegedly rejecting the Notice of Claim on August 3, 2016. The General Municipal Law 50-h hearing was held on October 13, 2016 by the Town of Islip and TOIHA defendants. The summons and complaint were filed on the NYSCEF system on March 29, 2017.
CPLR §3212(b) states that a motion for summary judgment "shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admission." If an attorney lacks personal knowledge of the events giving rise to the cause of action or defense, his ancillary affidavit, repeating the allegations or the pleadings, without setting forth evidentiary facts, cannot support or defeat a motion by summary judgment ( Olan v . Farrell Lines , Inc., 105 AD2d 653, 481 NYS 2d 370 (1st Dept., 1984; aff'd 64 NY2d 1092, 489 NYS 2d 884 (1985); Spearman v . Times Square Stores Corp., 96 AD2d 552, 465 NYS 2d 230 (2nd Dept., 1983); Weinstein-Korn-Miller, New York Civil Practice Sec. 3212.09)).
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ( Friends of Animals v Associated Fur Mfrs ., 46 NY2d 1065, 416 NYS2d 790 [1979]). To grant summary judgment it must clearly appear that no material and triable issue of fact is presented ( Sillman v Twentieth Century-Fox Film Corporation , 3 NY2d 395, 165 NYS2d 498 [1957]). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form . . . and must "show facts sufficient to require a trial of any issue of fact" CPLR3212 [b]; Gilbert Frank Corp. v Federal Insurance Co.,70 NY2d 966, 525 NYS2d 793, 520 NE2d 512 [1988]; Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established ( Castro v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 1981]). Furthermore, the evidence submitted in connection with a motion for summary judgment should be viewed in the light most favorable to the party opposing the motion ( Robinson v Strong Memorial Hospital , 98 AD2d 976, 470 NYS2d 239 [4th Dept 1983]).
On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (see S .J. Capelin Associates v Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478, 313 NE2d 776 [1974]). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated ( Prunty v Keltie's Bum Steer , 163 AD2d 595, 559 NYS2d 354 [2d Dept 1990]). If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried, then summary judgment should be granted ( Prunty v Keltie's Bum Steer , supra, citing Glick & Dolleck v Tri-Pac Export Corp .,22 NY2d 439, 293 NYS2d 93, 239 NE2d 725 [1968]; Columbus Trust Co . v Campolo ,110 AD2d 616, 487 NYS2d 105 [2d Dept 1985], affd, 66 NY2d 701, 496 NYS2d 425, 487 NE2d 282).
Service of a notice of claim is a condition precedent to commencing an action against a municipal defendant. ( Small v NY City Tr . Auth ., 14 AD3d 690, 691, 789 NYS2d 229 [2nd Dept 2005]). Here the Notice of Claim was timely served on the municipal defendants.
24 CFR 982.407 states that
Part 982 does not create any right of the family, or any party other than HUD or the PHA [public housing authority], to require enforcement of the HQS [housing quality standards] requirements by HUD or the PHA, or to assert any claim against HUD or the PHA, for damages, injunction or other relief, for alleged failure to enforce the HQS.
24 CFR 982.405 (g) states that
(a) The PHA must inspect the unit leased to a family prior to the initial term of the lease, at least biennially during assisted occupancy, and at other times as needed, to determine if the unit meets the HQS. (See § 982.305(b)(2) concerning timing of initial inspection by the PHA.)
(b) The PHA must conduct supervisory quality control HQS inspections.
(c) In scheduling inspections, the PHA must consider complaints and any other information brought to the attention of the PHA.
(d) The PHA must notify the owner of defects shown by the inspection...
(g) If a participant family or government official reports a condition that is life-threatening (i.e., the PHA would require the owner to make the repair within no more than 24 hours in accordance with § 982.404(a)(3)), then the PHA must inspect the housing unit within 24 hours of when the PHA received the notification. If the reported condition is not life-threatening (i.e., the PHA would require the owner to make the repair within no more than 30 calendar days in accordance with § 982.404(a)(3)), then the PHA must inspect the unit within 15 days of when the PHA received the notification. In the event of extraordinary circumstances, such as if a unit is within a Presidentially declared
disaster area, HUD may waive the 24-hour or the 15-day inspection requirement until such time as an inspection is feasible.
The Court in Messam v Williams , 284 AD2d 437, 439 [2nd Dept 2001], held that
The rent for the premises was subsidized through the Federal section 8 housing assistance payment program (see, 42 USC § 1437 [f]), which was administrated at the local level by the defendant New York City Housing Authority (hereinafter the NYCHA). The NYCHA, as a public housing administrator (hereinafter PHA) under the program, was required to comply with various Federal statutes and regulations, including, inter alia, regulations requiring the inspection of a dwelling unit to determine whether it met Federal housing quality standards (see, 24 CFR 965.601, 982.401 [a] [3]; 982.405 [a])... The NYCHA's performance of its obligations as a PHA constituted a governmental function and, therefore, it cannot be held liable to the plaintiffs for the alleged negligent performance of such obligations on a common-law negligence theory in the absence of a special relationship between the parties (see, O'Connor v City of New York , 58 NY2d 184; Garrett v Holiday Inns , 58 NY2d 253; Gibbs v Paine , 280 AD2d 517; Gibbs v Paine , 276 AD2d 743). Here, in opposition to the NYCHA's prima facie demonstration of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact that such a special relationship existed; that is, that the NYCHA voluntarily assumed an affirmative duty beyond its ordinary inspection and monitoring obligations as a PHA (see, Gibbs v Paine , 280 AD2d 517, supra; Gibbs v Paine , 276 AD2d 743, supra).
In Garrett v Holiday Inns , Inc., 58 NY2d 253, 261-262 [1983], the Court held that
When a claim is made that a municipality has negligently exercised a governmental function, liability turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public ( Florence v Goldberg , 44 NY2d 189; Sanchez v Village of Liberty , 42 NY2d 876, app dsmd on other grounds 44 NY2d 817). Such a 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 (see Sanchez v Village of Liberty , supra). This principle operates to impose liability where the municipality has violated a duty commanded by a statute enacted for the special benefit of particular persons (see Motyka v City of Amsterdam , 15 NY2d 134); where the municipality has voluntarily assumed a duty, the proper exercise of which was justifiably relied upon by persons benefitted thereby ( Florence v Goldberg , supra; cf. Schuster v City of New York , 5 NY2d 75); or where it assumes positive direction and control under circumstances in which a known, blatant and dangerous safety violation exists ( Smullen v City of New York , 28 NY2d 66).
Based upon a review of the motion papers the Court concludes that the TOIHA and County defendants have made a prima facie showing of their entitlement to judgment as a matter of law. The factual allegations made by the plaintiffs are insufficient to establish that a special relationship exists between the plaintiffs and either the TOIHA or County that would create a duty owned by either defendant to the plaintiffs under the circumstances presented. The plaintiffs have failed to provide any allegations that the missing heating cover and hole in the wall were present when the TOIHA performed its last inspection on August 27, 2015, at which time the unit passed the inspection. The only factual allegations presented by the plaintiffs are that the coils for the heater usually have a cover, the plaintiffs moved into the apartment two weeks before the accident, for that two week period leading up to the accident the cover was missing and there was a 1 foot square hole in the wall above the missing cover.
As to defendant TOIHA, there are no facts alleged showing that the it acts in any way exceeded its general duty to provide assistance in housing placement or inspection under the Federal regulations in its role as a section 8 administrator, or that it took any steps beyond those required of it pursuant to statutory mandates. (see, Missouri by Missouri v Boyce , 182 Misc 2d 312, 316-317 [Sup Ct, Kings County 1999] ; Lindsay v New York City Hous . Auth., 1999 WL 104599, 1999 US Dist LEXIS 1893; Murdock v Harris , NYLJ, Aug. 4, 1999, at 24, col 3; Palmer v Millien , NYLJ, Mar. 31, 1999, at 35, col 1; Hill v 1801 Weeks Ave. Corp., Sup Ct, Bronx County, July 22, 1998). It is significant to note that the plaintiffs are not the parties that were provided the housing assistance by the TOIHA. The mother of plaintiff Jasmine Ginet Turcios-Flores, and grandmother of the infant plaintiff, is the party that received the Section 8 housing assistance benefits administered by the TOIHA. The plaintiffs have failed to show that a special duty existed between the TOIHA and the plaintiffs. Therefore, the motion for summary judgment insofar as it relates to the TOIHA defendant is granted and the complaint and all cross claims against it are dismissed.
Similarly the plaintiffs have failed to allege facts sufficient to show that a special duty existed between them and the County defendant. Therefore, the motion for summary judgment insofar as it relates to the County defendant is granted and the complaint and all cross claims against it are dismissed.
The County defendant's remaining contentions are denied as moot.
The foregoing constitutes the decision and Order of the Court. Dated: November 8, 2017 HON. JOSEPH A. SANTORELLI J.S.C.