Opinion
17073/10
10-19-2011
Bonnie Wiener, as Administratrix OF THE ESTATE OF MITCHELL WIENER, BONNIE WIENER, Individually, ADAM WIENER, JORDAN WIENER, and FARRELL WIENER, Plaintiff, v. The City of New York, NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE, NEW YORK CITY DEPARTMENT OF EDUCATION and THE BOARD OF EDUCATION FORE THE CITY OF NEW YORK, Defendant.
Plaintiff Attorney: Napoli Bern Ripka, LLP. Danielle Brenner, Esq. Defendant Attorney: Michael A. Cardozo Faye Lubinof, Esq.
Plaintiff Attorney: Napoli Bern Ripka, LLP. Danielle Brenner, Esq.
Defendant Attorney: Michael A. Cardozo Faye Lubinof, Esq.
Phyllis Orlikoff Flug, J.
Defendants, the City of New York, the New York City Department of Health and Mental Hygiene, the New York City Department of Education and the Board of Education for the City of New York, moves to dismiss plaintiffs' Complaint pursuant to CPLR 3211.
This is an action to recover damages for the wrongful death of Mitchell Weiner which occurred after he allegedly contracted the H1N1 virus ("swine flu") by coming into contact with students who were infected with the virus while working in his position as an Assistant Principal at the Susan B. Anthony School, in the County of Queens, City and State of New York.
"On a motion to dismiss the complaint pursuant to CPLR 3211[a][7] for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Young v. Campbell, No. 2010-07864, 2011 NY App. Div. LEXIS 6235, at *3 [2d Dept. Aug. 23, 2011](quoting Rietschel v. Maimonides Med. Ctr., 83 AD3d 810 [2d Dept. 2011]); see also Leon v. Martinez, 84 NY2d 83, 87-88 [1994]).
It is well settled that "[g]overnment action, if discretionary, may not be a basis for liability" (McLean v. City of New York, 12 NY3d 194, 203 [2009]). This is true even if the municipality has acted with malice or negligence (See Tango v. Tulevech, 61 NY2d 34, 40 [1983]). On the other hand, government action, if ministerial, may be a basis for liability, but only if the municipality violates a special duty owed to the plaintiff, apart from any duty to the public in general (See McLean, 12 NY3d at 203).
The City's response to a possible outbreak of a communicable disease is a discretionary action (See Abraham v. City of New York, 39 AD3d 21, 24 [2d Dept. 2007] ("the investigation of a possible outbreak of tuberculosis in a school calls for the exercise of discretion and judgment by city and department officials and cannot be characterized as ministerial")). Thus, even though there are triable issues of fact regarding whether there existed a special relationship between Mr. Weiner and the City, because the City's actions were discretionary, there is simply no basis for liability (See McLean, 12 NY3d at 203; Dinardo v. City of New York, 13 NY3d 872, 876, 878 [2009] (Lippman, J., concurring in result; Ciparick, J., concurring in result)).
Accordingly, defendants' motion is granted, in its entirety, and the Complaint is dismissed.
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J.S.C.