Opinion
11-30-2016
Abdus SHAHID, appellant, v. CITY OF NEW YORK, respondent.
Abdus Shahid, Brooklyn, N.Y., appellant pro se. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing and Kathy Chang Park of counsel), for respondent.
Abdus Shahid, Brooklyn, N.Y., appellant pro se.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing and Kathy Chang Park of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, ROBERT J. MILLER and HECTOR D. LaSALLE, JJ.
In an action to recover damages for injury to property, harassment, and intentional infliction of emotional distress, the plaintiff appeals from an order of the Supreme Court, Kings County (Jimenez–Salta, J.), dated August 15, 2014, which granted those branches of the defendant's motion which were for summary judgment dismissing the complaint and, in effect, pursuant to CPLR 3126 and CPLR 3042 to strike that portion of the complaint which alleged injury to property for failure to comply with its demand for a bill of particulars and discovery.
ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof granting those branches of the defendant's motion which were for summary judgment dismissing so much of the complaint as alleged injury to property, and, in effect, pursuant to CPLR 3126 and CPLR 3042 to strike that portion of the complaint which alleged injury to property for failure to comply with its demand for a bill of particulars and discovery, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, with costs to the plaintiff.
In September 2012, the plaintiff commenced this action to recover damages for injury to property, harassment, and intentional infliction of emotional distress, based on allegations that contractors sent by the defendant, the City of New York, intentionally caused damage to his building located on Tompkins Avenue in Brooklyn in June and July 2012, that the City wrongfully issued notices of violation in 2010 and 2011, and that the City wrongfully commenced an enforcement action against him in July 2012. In the order appealed from, dated August 15, 2014, the Supreme Court granted those branches of the City's motion which were for summary judgment dismissing the complaint and, in effect, pursuant to CPLR 3126 and CPLR 3042 to strike that portion of the complaint which alleged injury to property for failure to comply with its demand for a bill of particulars and discovery.
As the City correctly contends, "New York does not recognize a common-law cause of action to recover damages for harassment" (Adeniran v. State of New York, 106 A.D.3d 844, 845, 965 N.Y.S.2d 163 [internal quotation marks omitted]; see Wells v. Town of Lenox, 110 A.D.3d 1192, 1193–1194, 974 N.Y.S.2d 591 ; Pollack v. Cooperman, 109 A.D.3d 973, 975, 972 N.Y.S.2d 81 ). Moreover, the City established, prima facie, that the plaintiff failed to serve a timely notice of claim with respect to the notices of violation, which allegedly were wrongfully issued from January 1, 2010, through June 21, 2011 (see General Municipal Law §§ 50–e[1][a], 50–i[1][a] ; Sun v. City of New York, 131 A.D.3d 1015, 1016, 16 N.Y.S.3d 319 ; Shahid v. City of New York, 50 A.D.3d 770, 770, 855 N.Y.S.2d 612 ). In any event, the determinations to issue notices of violation, as here, under the Housing Maintenance Code were discretionary acts immune from liability (see N.Y. City Housing Maintenance Code [Administrative Code of City of N.Y.] § 27–2091 [a]; California Suites, Inc. v. Russo Demolition, Inc., 98 A.D.3d 144, 145, 946 N.Y.S.2d 55 ; Della Villa v. Constantino, 246 A.D.2d 867, 868–869, 668 N.Y.S.2d 724 ; Wolfanger v. Town of W. Sparta, 245 A.D.2d 1071, 666 N.Y.S.2d 77 ). Further, "[p]ublic policy bars claims sounding in intentional infliction of emotional distress against a governmental entity" (Matter of Gottlieb v. City of New York, 129 A.D.3d 724, 727, 10 N.Y.S.3d 542 [internal quotation marks omitted]; see Eckardt v. City of White Plains, 87 A.D.3d 1049, 1051, 930 N.Y.S.2d 22 ). Although the City raises the latter argument for the first time on appeal, it may be reached, since it involves a question of law which appears on the face of the record and which could not have been avoided if raised at the proper juncture (see Seldon v. Allstate Ins. Co., 107 A.D.3d 424, 424, 971 N.Y.S.2d 438 ; Muniz v. Mount Sinai Hosp. of Queens, 91 A.D.3d 612, 618, 937 N.Y.S.2d 244 ; Block v. Magee, 146 A.D.2d 730, 732–733, 537 N.Y.S.2d 215 ).
Accordingly, the City established its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged harassment and intentional infliction of emotional distress. Since the plaintiff failed to raise a triable issue of fact in opposition, the Supreme Court properly granted those branches of the City's motion which were for summary judgment dismissing that portion of the complaint.
However, the Supreme Court should have denied that branch of the City's motion which was for summary judgment dismissing so much of the complaint as sought to recover damages for injury to property allegedly caused by the City's contractors. The City contended that the plaintiff failed to offer any credible or admissible evidence in support of the claim that its contractors caused the alleged property damage. "A defendant moving for summary judgment dismissing the complaint cannot satisfy its initial burden by merely pointing to gaps in the plaintiff's case" (Lorenzo v. 7201 Owners Corp., 133 A.D.3d 641, 641, 20 N.Y.S.3d 123 ; see Williams v. CVS Pharmacy, Inc., 126 A.D.3d 890, 892–893, 6 N.Y.S.3d 78 ; Montemarano v. Atlantic Express Transp. Group, Inc., 123 A.D.3d 675, 675–676, 997 N.Y.S.2d 700 ). On appeal, the City contends that the property damage may have resulted from discretionary governmental acts in making emergency repairs. This contention, which is based on new factual allegations, is improperly raised for the first time on appeal and, accordingly, is not properly before this Court (see Carillon Nursing & Rehabilitation Ctr., LLP v. Fox, 118 A.D.3d 933, 934–935, 989 N.Y.S.2d 68 ). Since the City did not establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged injury to property, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers with respect to that issue (see D'Amico v. Zingaro, 135 A.D.3d 805, 807, 24 N.Y.S.3d 339 ).
Moreover, the Supreme Court improvidently exercised its discretion in granting that branch of the City's motion which was, in effect, pursuant to CPLR 3126 and CPLR 3042 to strike that portion of the complaint which alleged injury to property for failure to comply with its demand for a bill of particulars and discovery. The City did not assert or demonstrate that the plaintiff's failure to comply with its demand for a bill of particulars and discovery was willful and contumacious (see CPLR 3042[c], [d] ; CPLR 3126 [3] ; 6 Harbor Park Dr., LLC v. Town of N. Hempstead, 127 A.D.3d 1065, 1066, 5 N.Y.S.3d 887 ; Charter One Bank v. Houston, 300 A.D.2d 429, 430, 751 N.Y.S.2d 573 ; Randazzo v. Our Lady of Mercy Med. Ctr., 284 A.D.2d 158, 158, 726 N.Y.S.2d 638 ).