Opinion
13255/01.
Decided December 16, 2004.
Upon the foregoing papers, defendant the City of New York (the City or defendant) moves for an order, pursuant to CPLR 3212, dismissing the complaint of plaintiffs Diane Carter; her children, Joshua Carter and Kendra Carter; Janice Dunbar; Alazed Anderson, an infant, by his mother and natural guardian, Janice Dunbar; Devon Burgess, an infant, by his mother and natural guardian; Janice Dunbar; and Brian Mendez (the Carter plaintiffs) and all cross claims against it. Third-party defendant Bancker Construction Corp. (Bancker) cross-moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the third-party complaint and all cross claims against it. The Carter plaintiffs cross move for an order: (1) granting them summary judgment, (2) granting them leave to amend their notice of claim or to serve a late notice of claim, and (3) ordering a trial on damages. Plaintiff Sharon Sims, as the Administratrix of the Estate of Ashley Sims (Sims), adopts the arguments advanced by the Carter plaintiffs and cross-moves for an order allowing her to amend her notice of claim or, in the alternative, permitting her to serve a late notice of claim.
Although the City seeks summary judgment dismissing all cross claims against it, it fails to attach a copy of the answer served by co-defendant Anthony Casanova or to otherwise identify and/or address any such cross claims. Accordingly, its motion will treated as being addressed solely to dismissal of the Carter plaintiffs' complaint.
Similarly, inasmuch as Bancker fails to identify or discuss any cross claims against it, and since it is the sole third-party defendant, its motion shall be treated as one to dismiss only the third-party complaint as against it.
Facts and Procedural Background
Plaintiffs commenced this action seeking to recover damages for personal injury and wrongful death arising out of a fire that occurred on July 22, 2000, at 27 Brevoort Place in Brooklyn. The building, which was owned by defendant Anthony Casanova, is a five story brownstone with one apartment on each floor; the building did not have a fire escape and had only one means of egress, the stairway where the fire originated. It is undisputed that the sprinkler system in the building was inoperable on the day of the fire. One child, Ashley Sims, died as a result of the fire; the remaining defendants sustained personal injuries, with the injuries sustained by Diane Carter being life threatening. Plaintiffs premise their demand for damages upon their claims that the City is responsible for the injuries sustained because it owned and controlled the premises; because it failed to properly inspect the premises and to compel repair of the building in accordance with the City's rules, regulations and laws; and because the City is at fault for shutting off the water feeding the sprinkler system.
On or about September 6, 2000, the Carter plaintiffs filed notices of claim with the City. By summons and complaint filed on April 11, 2001, these parties commenced an action against the City and Casanova (Index No. 13255/01). As is relevant to the applications now pending before the court, at her 50-h hearing, which was conducted on March 15, 2001, Diane Carter testified that the fire marshal told her that the City had shut off the sprinkler system from the street. On or about September 20, 2000, Sims filed a notice of claim. Thereafter, she commenced two actions, one against Casanova (Index No. 3534/00) and one against the City (Index No. 4319/01). By order of this court dated November 26, 2001, these three actions were consolidated for the purposes of joint discovery and trial.
Because arson was suspected, the City instituted an investigation into the cause of the fire by both the Fire Department (FDNY) and the Police Department (NYPD). Casanova was subsequently tried twice for suspicion of arson; the first trial resulted in a mistrial, the second in an acquittal. Discovery in this action was stayed for approximately two years pending the criminal investigation and the trials. As a result, FDNY did not release any documents and depositions were not held during the period of the stay.
The parties fail to apprise the court of how the stay was effectuated; when it was put into effect; or when it was lifted.
Plaintiffs further argue that although Casanova was acquitted in 2001, FDNY and the City sought numerous delays because of the problems and displacement caused by the terror attacks of September 11, 2001.
During the course discovery, it was learned that in 1993, the City entered into a contract with Bancker to install new sewers and water mains in the area of the subject building. By application dated January 4, 1993, Keven C. Kaszuba, the project manager, applied for the requisite permit, which was thereafter issued and the work was completed. The City subsequently commenced a third-party action against Bancker, claiming that pursuant to its contract, Bancker agreed to indemnify the City for any claims made against it by reason of the work performed.
Also prior to the fire, on October 5, 1999, the City's Department of Housing Preservation and Development (HPD) issued a violation to the owner to "abate the nuisance consisting of sprinkler [pipe] removed at basement sty public hall" pursuant to Administrative Code § 27-2005. On October 20, 1999, another violation was issued, which directed the owner "to abate the nuisance consisting of sprinkler system altered and test valve removed at 4 sty public hall," in violation of the same code provision.
Pursuant to the Fire and Incident Report dated November 21, 2002, FDNY determined that the fire was incendiary in nature, was caused by gasoline being ignited, originated in the second floor hallway and spread upward through the building. The report further noted that the building was equipped with sprinklers that were not operational and that examination of the system revealed that the water supply valve was shut in the street. A water main work order dated July 26, 2000 indicates that the site was excavated at the direction of NYPD.
At his deposition, Kevin Dallos, a fire marshal who investigated the fire on behalf of FDNY, testified that his investigation revealed that the fire originated in the hallway on the second floor. Further, the valve for the sprinkler system was shut off in the cellar and Louis Cendogorta told him that the sprinkler system was not operational because both the valve on street and the valve in the cellar were shut off. Dallos also testified that during the afternoon, he went outside and saw a whole in the street, which exposed valves approximately four to five feet below street level; he did not know who dug the hole and he could not tell if the valve was in the open or closed position. Dallos was present when that valve was turned on and water flowed into the sprinkler system.
At his deposition, Cendagorta testified that he is a civilian deputy chief inspector for FDNY for the Suppression Unit, which monitors and tests sprinkler systems; he was called the morning after the fire to investigate. He explained that the system for the building has a valve in the basement. In addition, there is a curb box, which is a hole in the ground, approximately three and one-half feet deep, that houses another valve for the sprinkler below the level of the sidewalk; anyone who has a "curb key" would have access to this valve. When the curb valve was turned on, no water flowed into the system. Cendagorta further explained that the system also has a "City connection," which is a valve located approximately five feet under the street, which connects the sprinkler to a City water main. When the Department of Environmental Protection (DEP) dug up that valve after the fire, it was closed; anyone with a backhoe could gain access to that valve. Cendagorta subsequently wrote a memo, dated August 11, 2000, to Fire Chief Harold Meyers, in which he concluded that "[t]he direct tap off the City main, which was at least five and-a-half feet deep, had to be shut off for some time;" Cendagorta testified that he reached that conclusion because the street did not look newly paved. The report also indicated that "an illegal tap from one-inch domestic feed was interconnected in the sprinkler from the check valve."
A "curb key" is a metal stick, approximately three feet long, that allows the valve at the curb to be turned on and off from the sidewalk. The keys are readily available to plumbers and FDNY personnel; they are generic in nature, since the valves are not locked, but located several feet under ground; and the same "key" can be used to access any sprinkler valve.
At his deposition, Thomas Verdone, a supervisor for DEP, testified that his crew excavated the fire line at the subject site on the day of the fire and that he found the valve at the main, located approximately five feet below the street, was shut off.
The Parties' Contentions
In support of its motion, the City argues that it is entitled to summary judgment as against the Carter plaintiffs on the grounds that: (1) the City did not own or control the subject building; (2) in the absence of a special relationship, which is lacking here, there is no cause of action recognized against a municipality for negligent inspection, the failure to compel repairs, or to enforce rules, regulations and statutes; (3) plaintiffs failed to assert the claim that the City shut off the water in their notice of claim, and accordingly they improperly raise this claim for the first time in their supplemental bill of particulars, which was served on October 27, 2003; and (4) the provision of water for fighting a fire is a governmental function for which there is no tort liability. The City further alleges that a search of the records maintained at the DEP revealed no documents indicating that DEP shut off the water to the sprinkler; the only records found for the property that predated the fire showed that Bancker installed a new water main in the roadway in front of the building in 1993.
In opposition to the City's motion and in support of their cross motions, plaintiffs allege that in a report dated October 3, 2000 of an investigation conducted by Deputy Chief David M. Corcoran of FDNY, it was concluded that the "stairway sprinkler [was] inoperative due to being shut off in the street. Heavy fire in stairway denied occupant access to sole means of egress." Pursuant to New York City Administrative Code § 24-308a, only DEP can shut off sprinklers at the street level. Plaintiffs further assert that the Department of Transportation (DOT) issued a permit to DEP to excavate the roadway for a major installation of water mains and appurtenances in the area in 1993 and no subsequent permits for excavating the street in the immediate area of the premises were issued. In addition, the shut off valve at the street level was owned, controlled and operated by DEP, which is a water authority that charges residents for water consumption, so that it is performing a proprietary function in providing water. Plaintiffs accordingly conclude that the City is liable for its negligence in constructing the water main, installing the valve to the water main, and shutting the valve off before back filling, affirmative acts of negligence that caused the sprinkler to fail to operate.
In reaching this conclusion, plaintiffs rely upon an affidavit from Gene West, a principal of Guardian Investigation Fire Arson Consultations, a former firefighter and Fire Marshall and lead investigator assigned to the Citywide Special Investigations Unit, in which he summarizes the facts, i.e., that the fire began in the second floor hallway when a flammable liquid was ignited, and then extended vertically through the building; that a DEP crew arrived at the site and dug up the City connection for the sprinkler, approximately five and one-half feet below street level, which was found to be in the closed position, so that no water could be supplied; and that in 1993, the existing six inch water main was replaced with an eight inch main. West further alleges that DEP assumes full responsibility for insuring that all replaced mains, taps and other connections are installed and properly operational and that there is no conclusive evidence in any of the investigative reports to support a finding that the sprinkler valve in the basement had been shut off.
West also notes the two violations that were issued by HPD in October 1999, one for a missing section of pipe for the sprinkler system and the second for an altered sprinkler system and missing test valve on the fourth floor. West opines that since the investigations that followed the fire did not reveal any missing section of pipe, and no summons was issued to the owner, it is reasonable to assume that after the subject repairs were made, the sprinkler system still did not function. Under such a scenario, a request would be made to DEP to ascertain why the sprinkler did not work. No records substantiating this opinion, however, have been located.
Plaintiffs also rely upon an affidavit submitted by Alexander McMullen, who is employed by DEP, Bureau of Water Supply and Waste Collection, as the Chief Inspector of the Tapping Division, provided in response to the third-party's notice for discovery and inspection. Therein, McMullen alleges that taps or other connections to water mains are installed by DEP employees, while private plumbers install the service lines that bring water into a building; a DEP permit to tap into the water main and a DOT permit to open the street are required for any such work. To turn off a tap to a water main, it is necessary to excavate the street. McMullen further asserts that the costs of installing and maintaining taps and service lines has always been the responsibility of the owner. In his affidavit, West asserts that the McMullen affidavit has limited relevance to the instant case, since the owner of the building had no responsibility for the 1993 installation of the new water main.
Plaintiffs further argue that their notices of claim are not defective, since they provided the City with sufficient details to allow it to investigate the possible source of liability, i.e., that DEP was negligent in installing the valve for the sprinkler system in the shut position when the new water main was installed in 1993. In this regard, they contend that a plaintiff is not obligated to offer a full legal theory in a notice of claim, and instead need only provide the nature of the claim and the physical circumstances from which the negligence arises. In the alternative, if the court determines that the notices of claim are defective, plaintiffs should be granted leave to correct the error or omission pursuant to General Municipal Law § 50-e (6), or leave to serve a late notice of claim, since the City has not demonstrated any prejudice. In further support of this demand for relief, plaintiffs contend that the City was aware of this theory of recovery since March 15, 2001, when Diane Carter testified at her General Municipal Law § 50-h hearing that the Fire Marshall told her that water had been shut off to the sprinkler system at the water main, and because the investigations that were conducted by FDNY and NYPD made the same finding.
In its reply affirmation, the City alleges that plaintiffs' demand for relief should be denied on the grounds that the notices of claim cannot be amended pursuant to General Municipal Law § 50-e (6), since amendment pursuant to that section is not permitted to change the nature of the theory of liability. In this regard, the City further argues that although the investigations conducted by FDNY and NYPD established that the City connection was cut off at the street, the reports did not indicate why the valve was turned off or that the valve was turned off by the City, so that City was not aware that such a claim would be made against it in the instant action. In addition, the investigations conducted addressed the situation as it existed on the day of the fire, and did not look into the installation of the new water main in 1993, since plaintiffs had not raised a claim of negligence in the installation. Further, if Diane Carter's 50-h testimony was sufficient to alert plaintiffs that the City was negligent in shutting off the valve to the sprinkler system at the water main in 1993, plaintiffs should have moved to amend their notices of claim at that time.
The City also submits several additional affidavits that they claim support their entitlement to summary judgment. In an affidavit from Maria Giordano, Chief of the Personal Injury Division at the New York City Comptrollers Office, the City alleges that because plaintiffs' notices of claim indicated that the action involved the City's failure to inspect, maintain, operate, repair, control and supervise the subject property and failed to enforce its own rules and regulations regarding inspections of the property, the notices were forwarded only to HPD, and not to DEP, since there was no mention that DEP was negligent in any manner. Hence, no investigation of DEP's alleged negligent installation of the water main in 1993 was undertaken. In an affidavit from Mohamed H. Hafeez, Director of Customer Operations of the Bureau of Customer Services of DEP, the City explains the billing procedures of the New York City Water Board and concludes that a review of the records reveals that the subject premises were never billed for water or sewer service on a fire sprinkler, thereby negating plaintiffs' contention that the City was engaged in a proprietary function in supplying water for a fee. In an affidavit from Herbert Kass, the Chief of the Division of Permitting and Connections, the City further explains that if a homeowner requires water service, they apply for a tap connection to the water main, which is installed by the City. In contrast, if a repair is needed, it is made by the owner's plumber, who is required to file a certification with DEP stating that the work was properly done, although few plumbers comply with this procedure. In an affirmation from Ernest Cavagnaro, Chief of the Repairs Division of Water and Sewer Field Operations of DEP, the City explains that under DEP rules, a tap into a water main is supplied by the City and installed by DEP, with the cost charged to the owner. The service lines running into a building are installed by private plumbers. All leaks on the tap or in the service line are the financial responsibility of the owner; the City will give an owner notice of a leak and if it is not repaired, the City will shut off the tap if a danger to public safety is presented and bill the owner.
Although the parties discuss the routine procedures of DEP with regard to installing taps into water mains and repairing water lines, it is unclear what relevance, if any, the City's normal operating procedures have to the case at bar, where an outside contractor, Bancker, was hired to replace the existing water main.
Casanova has not submitted any papers on the motion or cross motions.
Sufficiency of Plaintiffs' Notices of Claim The Law
Under General Municipal Law § 50-e, claims against a municipality are required to be filed within 90 days of the incident giving rise to the claim.
"The point of the notice of claim requirement of General Municipal Law § 50-e is to ensure the municipal authority was given enough information about the accident to 'locate the place, fix the time and understand the nature of the accident' ( Brown v. City of New York, 95 NY2d 389, 393). The operative concern in considering whether a notice of claim is sufficient to cover a particular claim is whether the notice provided enough information to enable authorities to 'investigate, collect evidence and evaluate the merit of a claim' ( id. at 392). The critical point is whether the defendant is prejudiced by the inclusion of matter not contained in the notice ( see Torres v. New York City Hous. Auth., 261 AD2d 273, 274, lv denied 93 NY2d 816)."
( Mahase v. Manhattan Bronx Surface Tr. Oper. Auth., 3 AD3d 410, 414). Thus, plaintiffs should not be permitted to present evidence of theories that were not included in their notices of claim and which substantially alter the nature of their claim ( see e.g. Kane v. Triborough Bridge Tunnel Auth., 8 AD3d 239 [where plaintiff's notice of claim asserted that defendant negligently maintained a bridge's metal grating in a worn and slippery condition, plaintiff should not have been permitted to present evidence suggesting that defendant was negligent in failing to install a median barrier or certain warning signs on the bridge, since these theories substantially altered the nature of his claim]; Rodriguez v. New York City Tr. Auth., 286 AD2d 681 [plaintiffs should not have been permitted to present evidence of a design defect to the jury, since such theory was not referred to in the plaintiffs' original or amended notices of claim and substantially altered the nature of their claims]; Fuller v. New York City Bd. of Educ., 206 AD2d 452, 452-453, appeal denied 89 NY2d 810 [defendant's motion to dismiss the action at the close of the plaintiffs' opening statement was properly granted where plaintiffs' notice of claim and bill of particulars did not sufficiently apprise defendant of the assertions by the plaintiffs' attorney in his opening statement, since permitting the assertion of a negligent supervision cause of action would have required the defendant to reorient its defense, which would have been difficult, since the subject accident occurred more than five-and-a-half years earlier]). Similarly, it has been held that a complaint should be dismissed where a plaintiff's notice of claim fails to identify causation ( see e.g., LaBorde v. Most Serv. Co., 270 AD2d 462, 463 [defendant's motion for summary judgment dismissing the complaint insofar as asserted against it for failure to comply with General Municipal Law § 50-e was properly granted where the notice of claim merely alleged that "claimant sustained extensive and severe injuries resulting from the negligence of [defendant] . . . in the ownership, operation, management, maintenance, custody, supervision and control of their . . . omnibuses," but failed to include the manner in which the claim arose]; see also Adrian v. Town of Oyster Bay, 262 AD2d 433, 434; Santiago v. New York City Hous. Auth., 220 AD2d 655, 656, appeal denied 88 NY2d 801; Siena v. Marlboro Houses, 188 AD2d 534, 535, appeal denied 81 NY2d 711).
It must also be recognized that "[i]n passing on the sufficiency of a notice of claim in the context of a motion to dismiss, courts are not confined to the notice of claim itself . . . [but] may look to evidence adduced at a section 50-h hearing, and to such other evidence as is properly before the court" ( D'Alessandro v. New York City Transit Auth., 83 NY2d 891, 893; accord Barrios v. City of New York, 300 AD2d 480, 481, appeal denied 100 NY2d 534; see generally Lomax v. New York City Health Hosps., 262 AD2d 2, 3 [plaintiff should have been granted leave to amend her notice of claim to name the correct hospital that treated her pursuant to General Municipal Law § 50-e (6), since defendant was in possession of her records, which would have identified the proper hospital, and plaintiff clarified the name of the hospital at her General Municipal Law § 50-h hearing]; Ortiz v. New York City Hous. Auth., 214 AD2d 491 [summary judgment dismissing the complaint should not have been granted because the notice of claim set forth an incorrect address where a reading of the transcript of plaintiff's General Municipal Law § 50-h hearing, conducted four months after the accident, indicated that the Housing Authority was able to identify precisely the site of the accident, so that no prejudice resulted from the inadvertent error in the notice of claim]).
Discussion
Herein, the notices of claim filed by the Carter plaintiffs stated the claim was:
"a result of the negligence, recklessness and carelessness of THE CITY OF NEW YORK, its agents, servants and employees and various agencies including the New York City Buildings Department, in failing to properly inspect, maintain, operate, repair, control and supervise the building located at 27 Brevoort Place . . . in the County of Kings, City and State of New York, which was the scene of a fatal fire on July 22, 2000; in failing to enforce its own laws, rules and regulations with regard to building safety and construction; in permitting said building to be and remain in an unsafe, dangerous, defective and hazardous condition; in permitting hazards and risks to exist which brought about the accident herein; in permitting the building to continued [sic] to be occupied in spite of there being no sprinklers in the building for at least eight months prior to the fire; in forcing the plaintiff into a position of danger; in failing to insure that there were adequate and proper smoke and fire alarms, fire extinguishers, fire escapes, and other appropriate safeguards and devices; in failing to remedy same prior to the date and time of claimant's injuries in the fire; in violating New York City Rules and Regulations and laws; in failing to make timely inspections; in causing and permitting a nuisance and trap to exist despite notice and warnings of the aforementioned conditions; in failing to post warnings and warn residents of the fire hazards known by the City of New York to exist in said building; in failing to rectify violations of the Builder's Certificate of Occupancy or Fitness; in failing to update various City agencies and department's records; and in failing to remedy same before the date and time of the fatal fire."
Inasmuch as the same attorney filed the notice of claim for each of the Carter plaintiffs, the statement of the nature of the claim is essentially the same for all.
The notice of claim filed by Sims described the incident as being caused when:
"a fire erupted and the sprinkler system did not work. The City of New York was negligent in failing to force the landlord, Antonio Casanova, to repair the defective sprinkler system, when the City had actual notice through repeated inspection of the sprinkler system in the building. The City inspectors visited this building on October 1, 1999 and again on October 10, 1999, both times issuing violations for defective sprinklers. The City of New York was further negligent in failing to effect repairs and or closing down the building."
In applying the above general principles of law to the facts of this case, it is concluded that neither the Carter plaintiffs nor Sims filed a notice of claim that gave the City notice of the nature of the claim that plaintiffs seek to recover upon, i.e., that the City negligently shut off the City connection to the sprinkler system for the building during the installation of the new water main in 1993. In so holding, it is noted that the Sims notice of claim is narrowly drawn in that it alleges only that the City was negligent in failing to force the owner of the building to effect repairs to the sprinkler system or in closing down the building; no mention is made of negligence in installing or maintaining the sprinkler system, or of negligence in the installation of the water main or City connection in 1993. Similarly, although the notices of claim filed by the Carter plaintiffs are broader in scope, they also fail to refer to the alleged negligent installation of the water mains and/or the City connection in 1993.
Accordingly, plaintiffs' notices of claim are legally insufficient to allow them to assert such a claim at this stage of the proceedings.
Plaintiffs' Request for Leave to Amend Their Notices of Claim
Pursuant to General Municipal Law § 50-e (6), "a mistake, omission, irregularity or defect made in good faith" in a notice of claim may be "corrected, supplied or disregarded" in the court's discretion, provided that the public corporation is not prejudiced thereby. It is well established, however, that "[w]hile evidence adduced at the statutory hearing can rectify deficiencies in a notice of claim's descriptions of location and injuries, information supplied at the hearing may not be used to amend the theory of liability set forth in the notice of claim where, as here, amendment would change the nature of the claim" ( Figueroa v. New York City Hous. Auth., 271 AD2d 238, 238-239 [citations omitted]). Similarly, amendments of a substantive nature to add new theories of recovery are not within the purview of General Municipal Law § 50-e (6) ( see e.g., Ruggiero v. Suffolk County Police Dept., 7 AD3d 605; accord Hendler v. City of New York, 2 AD3d 685, 686; Trowell v. New York City Health Hosps., 305 AD2d 583, 584; Richard v. Town of Oyster Bay, 300 AD2d 561, 562; Linden v. President Dirs. of Chase Manhattan Bank, 299 AD2d 216, 217; White v. New York City Hous. Auth., 288 AD2d 150). Thus, since the proposed amended notices of claim are intended solely to add a new theory of recovery, leave to so amend is denied.
General Municipal Law § 50-e (6) provides that: "Mistake, omission, irregularity or defect. At any time after the service of a notice of claim and at any stage of an action or special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby."
Similarly, plaintiffs' reliance upon the investigations conducted by FDNY and NYPD in preparation of prosecuting a criminal case against Casanova is insufficient to establish that their delay in seeking to interpose this theory of recovery did not work to prejudice the City. As is relevant in this regard, it has been held that:
"Even if we assume that the NYCHA police conducted an investigation, it would not necessarily mean that the NYCHA 'acquired actual knowledge of the essential facts constituting the claim,' since a police investigation into a crime is 'geared toward finding the [perpetrator] and not toward the preparation of the possible claim for pain and suffering on the basis of alleged negligence by the [NYCHA].' Nor may [plaintiff] rely upon the fact that a NYPD 'Aided Report' was prepared in connection with the incident as providing actual notice to the NYCHA. As a general rule, knowledge of an accident or occurrence by a municipality's police or fire department cannot be imputed to another public or municipal corporation. The lack of actual knowledge, coupled with the lengthy delay in seeking leave to file the late notice of claim, clearly prejudiced the NYCHA's ability to defend the claim on its merits."
(Russ v. New York City Hous. Auth., 198 AD2d 361, 361-362 [citations omitted]; accord Pappalardo v. City of New York, 2 AD3d 699, 700 [plaintiff's contention that defendants acquired actual knowledge of the facts underlying the subject claim within days of the accident's occurrence by virtue of, inter alia, the "Supervisor's Accident Investigation Report" and an "Incident Witness Statement" was without merit, since although these forms contained information as to how the appellant was injured, neither form suggested any connection between the happening of the accident and any alleged negligence by the respondents]; Rabanar v. City of Yonkers, 290 AD2d 428, 429 [that branch of the cross motion which was for leave to serve a late notice was properly denied and the complaint dismissed in its entirety where the police accident report and the investigator's diagram completed shortly after the accident did not provide the defendant with actual notice of the essential facts constituting the plaintiffs' claim, i.e., that a street light in the vicinity of the accident was not working, since the reports merely described the circumstances surrounding the accident and made no connection between the plaintiff's injuries and the allegedly negligent conduct of the defendant]; Mack v. City of New York, 265 AD2d 308, 309, appeal denied 94 NY2d 763 [plaintiffs' application for leave to serve a late notice of claim was properly denied where plaintiff's contention that the City received notice of the facts because of a police investigation was without merit, since plaintiffs offered no proof that the police investigation of the accident would have provided the City with notice of their claim that it negligently maintained a fence and grounds]; Saafir v. Metro-North Commuter R.R. Co., 260 AD2d 462, 463, appeal denied 93 NY2d 816 [plaintiffs failed to establish that defendants had actual knowledge of the essential facts within a reasonable time after the accident since neither the police aided report nor the daily activity log were sufficient to furnish actual knowledge of the essential facts underlying the claim since they failed to suggest any connection between the happening of the accident and any negligence on the part of the defendants]; Doherty v. City of New York, 251 AD2d 368, 369 [petitioner's application for leave to serve a late notice of claim was properly denied, since the Fire Department "Member Injury Report" upon which he relied was clearly inadequate to place the City on notice of a possible claim against it, as the report mentioned neither the City's alleged ownership of the subject premises nor its purported causative negligence]; Serrano v. New York City Hous. Auth., 197 AD2d 694, 696 [the mere happening of the incident, and the appearance of the New York City Fire Department at the scene, did not compel the conclusion that the New York City Housing Authority received actual notice of the essential facts constituting the petitioner's claim, nor could petitioner rely on the fact that a report was prepared by the New York City Fire Department in connection with the incident, since the report made no mention of any defective condition regarding the subject elevator and, in any event, knowledge of an occurrence by a municipality's police or fire department cannot be imputed to a public or municipal corporation for notice of claim purposes]; see also Martinez v. New York City Hous. Auth., 250 AD2d 686, 687; Deegan v. City of New York, 227 AD2d 620; Morehead v. Westchester County, 222 AD2d 507, 508; Plantin v. New York City Hous. Auth., 203 AD2d 579, 580; Camilleri v. County of Suffolk, 190 AD2d 669).
In the alternative, plaintiffs' motion for leave to amend their notices of claim must be denied on the ground that their respective cross motions were made after expiration of the period within which amendment of their notices of claim would have been permissible, i.e., the Statute of Limitations ( see e.g. Hendler, 2 AD3d at 686 [since the new theory set forth in the proposed amended notice of claim was time-barred pursuant to General Municipal Law § 50-e (5), it was not within the purview of General Municipal Law § 50-e (6)]; Santiago v. City of New York, 294 AD2d 483 [since the plaintiff's motion for leave to serve a late notice of claim was made more than one year and 90 days after the accrual date of the claim, the Supreme Court did not have the authority to grant the motion pursuant to General Municipal Law §§ 50-e (5) and 50-i]; De La Cruz v. City of New York, 221 AD2d 168, 169 [since plaintiffs did not seek to amend the notice of claim within the one-year-and-90-day period of limitations, the complaint was properly dismissed]).
Further, even assuming, arguendo, that the plaintiffs made an excusable error in initially failing to assert their claim that the City was negligent in installing the valve for the sprinkler at the water main in the closed position, in that the fact that construction work was done on the main during 1993 was learned during the course of discovery, plaintiffs fail to proffer a reasonable excuse for failing to serve an amended notice of claim promptly upon becoming aware of the basis of the claim ( see e.g., Goldberg v. County of Suffolk, 227 AD2d 482, 483; see generally Rosado v. Trinity Church, 221 AD2d 250, appeal denied 88 NY2d 806; Morrison v. New York City Health Hosps., 244 AD2d 487, 488). In this regard, it is also significant to note that although the claim was made by Diane Carter's 50-h hearing on March 15, 2001, plaintiffs did not seek leave to amend their notices of claim until the City made the instant motion for summary judgment.
Thus, leave to amend the notices of claim is denied.
The City's Control Over the Subject Building
As a threshold issue, the deed for the subject property indicates that it has been owned by Casanova since December 17, 1992. In opposition to the City's assertion that it did not own, operate or control the subject building or its sprinkler system in reliance upon the deed, plaintiffs fail to demonstrate any facts that would permit the court to reach a contrary conclusion. Accordingly, plaintiffs cannot succeed on their claims by arguing that the City controlled, operated or maintained the building and/or the sprinkler system ( see generally Gonzalez v. Barbieri, 271 AD2d 407, 408, appeal denied 95 NY2d 763 [where plaintiff alleged no facts sufficient to demonstrate that the City exercised direction or control over the operation of the subject amusement ride, no special duty existed and the City could not be held liable]; Wheeler v. City of New York, 253 AD2d 463, 464 [the defendants were properly granted summary judgment dismissing the plaintiff's claims against them where the undisputed evidence demonstrated that neither defendant owned the building in question]). Hence, in order to succeed in establishing liability on the part of the City, plaintiffs must establish that the City was negligent in failing to enforce the Building Code or in allowing the valve for sprinkler at the water main to be shut when the water main was installed.
Enforcement of Laws, Rules and Regulations The Law
"To sustain liability against a municipality, the duty breached must be more than that owed the public generally" ( Lauer v. City of New York, 95 NY2d 95, 100, citing Florence v. Goldberg, 44 NY2d 189, 195; Smullen v. City of New York, 28 NY2d 66, 70; 18 McQuillin, Municipal Corporations § 53.04.25, 165). Thus, "[i]t is well settled that when a municipality is engaged in a governmental function 'undertaken for the protection and safety of the public pursuant to the general police powers,' it generally will not be held liable for the negligent performance of those functions unless it can be shown that a special relationship exists between the injured party and the municipality" ( Lemery v. Village of Cambridge, 290 AD2d 765, 765-766 quoting Balsam v. Delma Eng'g, 90 NY2d 966, 968; Sebastian v. State of New York, 93 NY2d 790, 793). Accordingly, "it has long been the rule in this State that, in the absence of some special relationship creating a duty to exercise care for the benefit of particular individuals, liability may not be imposed on a municipality for failure to enforce a statute or regulation" ( O'Connor v. New York, 58 NY2d 184, 192). In order to establish a special relationship, a plaintiff must demonstrate:
"(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking." ( Cuffy v. City of New York, 69 NY2d 255, 260).
Thus, for example, in O'Connor ( 58 NY2d 184), it was held that although the City issued a "blue card" approving a faulty gas piping system that later exploded and killed several people, in violation of its statutory duty, a private right of action was unavailable, since the regulations were intended to protect the general public, as opposed to a particular class of persons. Similarly, in Motyka v. City of Amsterdam ( 15 NY2d 134), plaintiffs brought a cause of action against the city after a fire broke out in an apartment building, killing and injuring several people, alleging that the city failed to enforce certain provisions of the Multiple Residence Law by refusing to take proper action to see that a defective oil heater, which was known to have caused a previous fire, was repaired or removed. Therein, the court held that the complaint was properly dismissed because the city owed only a general duty to the public as opposed to a special duty to the plaintiffs. Similarly, in the case of Sanchez v. Village of Liberty ( 42 NY2d 876), in which plaintiffs commenced a wrongful death action after a fire which occurred in a multiple dwelling resulted in several deaths, alleging, inter alia, that the defendant village was negligent in hiring a building inspector, knowing him to be incompetent; that the building was not equipped with adequate fire escapes and means of ingress and egress, in violation of certain statutes and ordinances; and that the building inspector and the village had knowledge of the violations and failed to remedy them, the court held that because the statutes and ordinances involved created no special relationship, no liability could be imposed. In another similar case, Quinn v. Nadler Bros. ( 59 NY2d 914), an action by a city fireman to recover damages from the city for injuries he suffered when part of a building collapsed while he was fighting a fire inside, in which he alleged that the city had knowledge of the unsafe condition of the building and had begun to take action against the owner but failed to follow through, the Appellate Division properly dismissed the complaint as against the city, since it had no special duty to its fire fighters for its failure to enforce city ordinances designed to protect the general public from health, safety and fire hazards. In Worth Distributors, Inc. v. Latham, 59 NY2d 231, 236, a case that arose out of the collapse of a portion of the Broadway Central Hotel building in lower Manhattan, where forty-three actions to recover for wrongful death, personal injury, and property damage were consolidated, the complaints were dismissed against the city where the building department failed to enforce provisions of the city's Administrative Code relating to building safety, even though its employees knew of the dangerous structural conditions in the building, since the regulations were designed to protect the general public and no special relationship has been shown that would establish a municipal duty to the instant plaintiffs in particular. Accordingly, the City cannot be held liable to plaintiffs for its alleged failure to enforce its rules, regulations or statutes.
Implicit in this holding is the finding that plaintiffs have failed to allege any facts upon which the court may premise a finding that a special relationship existed between the plaintiffs and the City ( see e.g., Jaramillo v. Callen Realty, 200 AD2d 425, 426, appeal denied 84 NY2d 801 [there was no pleading or showing of a special relationship between the municipality and an individual or identified class of persons warranting the imposition of a duty to use reasonable care for the special benefit of particular persons, as it was not alleged that affirmative personal assurance was made]; cf. Kodryanu v. City of New York, 274 AD2d 376 [defendant city failed to establish the absence of an issue of fact as to the existence of a special relationship between the fire department and the plaintiff under circumstances where a firefighter who responded to a fire in an adjacent building allegedly told plaintiff not to worry and to go back to sleep, and the fire thereafter spread up through the walls of plaintiffs' building and caused property damage and injury]; Bargy v. Sienkiewicz, 207 AD2d 606 [where plaintiffs, a mother and her children, brought an action against defendants, the landlords and the county, alleging that the county negligently conducted investigations of the lead level in their apartments which caused the children personal injuries, plaintiffs were held to have to have raised an issue of fact with regard to whether a special relationship had been created under circumstances where the county's inspectors recommended the removal of the infants during the abatements and kept plaintiff apprised of the progress of each abatement]; Henderson v. New York, 178 AD2d 129 [plaintiff raised issues of fact sufficient to preclude summary judgment with regard to whether city inspectors owed or assumed a special duty to him, based upon his EBT testimony, which indicated that he relied upon the directions that he received from City inspectors that there were no energized cables below the surface of the excavation and his jackhammer thereafter struck a live cable]).
The City's Duty to Supply Water as a Proprietary or Governmental Function
As a general principle, a purely governmental function is undertaken for the protection and safety of the public pursuant to the general police powers, while a proprietary function is undertaken when governmental activities essentially substitute for or supplement traditionally private enterprises ( see generally Sebastian v. State, 93 NY2d 790, 793). When a municipality acts in a proprietary capacity, it is generally subject "'to the same duty of care as private individuals and institutions engaging in the same activity'" ( Dobin v. Town of Islip, ___ AD3d ___, 783 NYS2d 64, quoting Lemery, 290 AD2d at 766, quoting Schrempf v. State of New York, 66 NY2d 289, 294). When a municipality acts in a governmental capacity, as a general rule, it may not be held liable for injuries resulting from the negligent performance of a governmental function absent a special relationship between the injured party and the municipality ( id., citing Dixon v. Village of Spring Val., 6 AD3d 489.
"To determine whether a municipality's complained of act falls within the governmental or proprietary category, 'courts must examine "'the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred'"'" ( Lemery, 290 AD2d at 766, quoting Sebastian, 93 NY2d at 794, quoting Miller v. State of New York, 62 NY2d 506, 513, quoting Weiner v. Metropolitan Transp. Auth., 55 NY2d 175, 182). Further, "[m]aintenance and repair have been recognized as 'completely proprietary acts'" ( Johnson City Cent. Sch. Dist. v. Fidelity Deposit Co., 272 AD2d 818, 821, citing Clinger v. New York City Tr. Auth., 85 NY2d 957, 959; see generally Tappan Wire Cable v. County of Rockland, 7 AD3d 781, 782-783, appeal dismissed 2004 NY LEXIS 2482 [2004] [county was not entitled to governmental immunity arising out of claims that it negligently maintained a sewerage system, since those claims challenged conduct which was ministerial in nature and a municipality has a duty to maintain its sewerage or drainage system, so that it may be held liable for the resulting damage if it does so in a negligent manner]).
Over the years, many cases have addressed the issue of whether a municipal authority that supplies water is performing a governmental or a proprietary function. Thus, for example, in H.R. Moch Co. v. Rensselaer Water Co. ( 247 NY 160, 164), the court dismissed plaintiff's claim, concluding that no action for common-law negligence was maintainable because defendant waterworks company, having contracted to supply water to the city, owed no duty directly to the plaintiff when the water supply failed and its warehouse was destroyed, since no legal duty rests upon a city to supply its inhabitants with protection against fire. Similarly, in Steitz v. City of Beacon ( 295 NY 51), the court held that no private right of action against the city for its alleged failure to keep hydrants, valves or pipes in repair would be implied from a statute that provided that the city "may construct and operate a system of waterworks", in view of the crushing burden that would be imposed. These cases support the finding that no liability can be imposed upon the City for the damage that resulted from the failure of the sprinkler system to deliver water to fight the subject fire.
Moreover, it has been held that the City's construction of a water system is governmental in nature:
"While it may be that in the sale of its water for private or commercial purposes the city acts in a proprietary capacity, it is our opinion that in the construction and extension of its waterworks system, at least, the city performs a function necessary for the preservation of public health and safety, and consequently acts in a governmental, rather than a proprietary capacity. ( See Matter of Village of Massena v. St. Lawrence Water Co., 126 Misc 524, 530; Maribu v. Nohowec, 161 Misc 944, 949; Brush v. Commissioner, 300 US 352, 370-371)."
( Jamaica Water Supply Co. v. New York, 280 App Div 834, affd 304 NY 917, rehearing denied 305 NY 560, cert denied 345 US 821).
Further, in the case of County of Nassau v. South Farmingdale Water District ( 62 AD2d 380, affd on decision below 46 NY2d 794), the Second Department again concluded "that the supplying of water by the municipal water district for consumption must be treated, in the context of this case [which concerned the cost of the relocation of defendant's water mains and facilities incurred by reason of defendant's construction of a sewer system], as a governmental, rather than a proprietary, function of a municipality" ( id. at 390). In so holding, the court reviewed and rejected earlier cases that held that the supplying of water constituted a proprietary function, Layer v. City of Buffalo ( 274 NY 135, 136-139); Canavan v. City of Mechanicville ( 229 NY 473, 476); and Oakes Mfg. Co. v. City of New York ( 206 NY 221, 228), noting that those cases, which were based, to a large extent, on the historic fact that water was, for many years, supplied by private agencies, were distinguishable:
"[I]n this day and age, municipal water corporations have flourished to the relative exclusion of private utilities. Moreover, in our modern, complex urban civilization, it is readily apparent that the supplying of water by a municipality is as immediately and directly related to the health, safety and welfare of its inhabitants as is the construction of sewers which 'are all but universally regarded as governmental' (Seasongood, Municipal Corporations: Objections to the Governmental or Proprietary Test, 22 Va L Rev, pp 914-916)." ( id.). It is also significant to note that the court pointed out that "[i]n the Oakes and Canavan cases the Court of Appeals specifically noted that the supply of water by a municipal corporation to fight a fire was a governmental function ( id. at 388).
Accordingly, since this case concerns the installation of a new water main, the claimed negligence occurred during the performance of a governmental function. Thus, no liability can attach in the absence of a special relationship and, as discussed above, no such relationship has been established. In so holding, it is also noted that this case is readily distinguishable from those in which liability was imposed upon a municipal water authority for its negligence in maintaining its water mains, where, for example, a truck broke through the pavement in the center of the street and caused a six-foot hole in the water main, in the same place where the main had broken only a short time previously; where representatives of the city testified that the cause of the breaks was due to vibration from the ordinary use of the street, which washed away the foundation from the main; and an issue of fact was raised with regard to whether the men sent to shut off the water were properly equipped and/or supervised ( Layer, 274 NY at 139), or where the City was found to be negligent in failing to detect a leak in a water main where the survey crew was equipped with, but did not use ground microphones for the detection of leaks by sound, and in failing to shut off the flow of flood water within a reasonable time after the rupture, since the survey of the area was prompted principally by the desire to avoid waste of a commodity, i.e., water, and thus was conducted by the City acting proprietarily as a water vendor rather than in its governmental capacity as a protector of the public health and safety ( KS Realty Co. v. City of New York, 304 AD2d 349, 350).
Finally, the conclusion that the City is functioning in its governmental capacity in supplying water is supported by Public Authorities Law § 1045-f (9), which provides that:
"It is hereby determined and declared that the water board and the carrying out of its powers and duties are in all respects for the benefit of the people of the city and the state, for the improvement of their health, welfare and prosperity and that such purposes are public purposes and that the water board is and will be performing an essential governmental function in the exercise of the powers conferred upon it by this title."
Plaintiffs' reliance upon Giuliani v. Hevesi ( 90 NY2d 27, 34-35) to establish that the statute was was intended to apply solely to financing is without merit, since the language itself belies such a conclusion. Further, the Guiliani decision goes on to state, as is relevant here, that:
"The Act also permits the City, the Board and the Authority to enter into agreements related to the Water System. The Mayor can, for example, 'enter into an agreement with the water board for the transfer to the water board, for use in the exercise of its corporate powers and purposes, the sewerage system or water system, or both, of the city as the same shall be owned by the city' (Public Authorities Law § 1045-h [1]). The Board, moreover, can take title to the Water System and enter into contracts necessary to do so (Public Authorities Law §§ 1045-g [5], [9]). The City, the Board and the Authority additionally 'may enter into agreements for the purpose of providing for the construction and financing of a water project' (Public Authorities Law § 1045-i [1]).
"Following adoption of the Act, on July 1, 1985 the City leased the Water System to the Board for 40 years or until all bonds of the Authority are paid in full, whichever is later. Under the lease, the DEP retains responsibility for system administration, operation, maintenance and capital construction, as required by the Act, and is to be reimbursed by the Board for its costs (Public Authorities Law § 1045-i [2] [vii]; § 1045-j [1] [ii], [iii])."
( id.). Since the water system was leased to DEP pursuant to the statute, it follows that the limits on liability made applicable to the water board pursuant to Public Authorities Law § 1045-f (9) should similarly be applicable to DEP, as leasee. Similarly unavailing is plaintiffs' contention that defendant's reliance upon the Public Authorities Law in support of its motion is untimely, since the CPLR does not specify when a defendant must particularize the statutory basis offered in defense of a claim made against it.
Accordingly, the City is granted summary judgment dismissing the Carter plaintiffs' complaint, since plaintiffs have failed to raise any factual issues with regard to a basis upon which liability to them may be premised.
Bancker's Cross Motion for Summary Judgment
Having granted the City's motion for summary judgment dismissing the complaint of the Carter plaintiffs, Bancker's cross motion for summary judgment dismissing the third-party complaint against it is granted. Inasmuch as the City did not move for summary judgment as against Sims, her complaint still stands and the cross motion, as it pertains to her claim, must be disposed of on the merits.
Inasmuch as the theories of liability as asserted by Sims are identical to those asserted by the Carter plaintiffs, it appears likely that City will be granted summary judgment dismissing her complaint, should it move for such relief.
The Parties' Contentions
In support of its demand for summary judgment, Bancker alleges that in 1993, it entered into a contract with the City to replace a water main in front of the premises. Hence, plaintiffs' claim that the City mistakingly turned off the water supply to the sprinkler system for the building does not involve Bancker. In this regard, Bancker emphasizes that plaintiffs' notices of claim state that the sprinklers were not working for approximately eight months prior to the fire, a claim that is not connected with Bancker's work in installing the water main in 1993. Finally, Bancker alleges that it had no contact with the area in which the water main was installed after it completed its work and there is no proof presented that it was called back to the site to perform any work whatsoever.
Although Bancker argued that it had yet to receive any documents in response to its discovery demands, the City attached its responses to its affirmation in opposition, so that this argument is now moot.
Bancker also relies upon several affidavits from Kaszuba, its project manager who oversaw the 1993 installation of the water main. Kaszuba alleges that he is familiar with the practice of the New York City Bureau of Water Supply, which is now DEP, and based upon his knowledge of the procedures with regard to a wet cut, it is the practice of the New York City inspector to inspect the wet cut valve connecting the City water main to the sprinkler line at the premises, at which time the inspector would confirm that the valve was open before it was buried and back filled. Further, after Bancker finished its work, there were no problems or complaints and there was no subsequent excavation at the site. In addition, Kaszuba states that he has personal knowledge that there are at least two shut off valves for the sprinkler system that are readily accessible, unlike the wet cut valve that was buried in 1993. Further, the violation issued by the City indicates that a test valve in the basement was changed and modified prior to the accident; this could not have been done without the water supply to the sprinkler being shut off, which could have been done at either of the more readily accessible valves. Finally, it was the City who installed the wet cut valve in 1993, so that if the valve was left shut off, it was due to the City's failure to confirm that the valve was open.
In opposition, the City argues that Bancker has failed to make a prima facie showing that it is entitled to summary judgment dismissing the third-party complaint. In reply, Bancker refutes this assertion, arguing that there is no proof presented to establish that it was responsible for ensuring that the sprinkler line valve was in an open position after it completed its work, particulary since the City submits an affidavit in which it alleges that it would have been the responsibility of a private plumber hired by the home owner to make sure that there was a water supply running from the main to the building. In addition, the City offers no evidence to refute Kazuba's assertion that the City would confirm and ensure that the tap for the water connection was in an open position before the street was back filled and paved. Finally, since the subject building was vacant in 1993, when the water main was installed, there was no reason for the tap to the sprinkler to be open.
Discussion
Bancker has failed to make a prima facie showing of entitlement to summary judgment dismissing the third-party complaint against it with regard to the Sims claim. It is undisputed that the valve to the sprinkler system was in the closed position on the day of the fire and the documentary proof adduced reveals that no excavation work was done in the area after the 1993 installation of the new water main. It is also undisputed that the City retained Bancker to perform the installation of the water main at the cost of $7,981,105. Although Kaszuba asserts that DEP installed the valve at the main, this assertion is conclusory in nature, since no evidence is offered to establish that DEP employees worked along side Bancker employees during the installation. Further, since the City bid the contract and retained Bancker to perform the work, and in view of the magnitude of the work that was performed, the conclusion that DEP workers were also utilized is certainly not self evident, so that an issue of fact remains with regard to whether a City employee or an employee of DEP actually installed the valve in question and left it in a closed position.
Moreover, even if the City was negligent in failing to inspect the valve to assure that it was in the open position before the area was back filled and the street paved, the City's negligence does not excuse negligence on Bancker's part, if Bancker employees installed the valve. In this regard, it is significant to note that Kaszuba does not allege that the City installed and/or inspected the valve at issue herein, but rather alleges that based upon his personal knowledge of DEP procedures, such installation or inspection took place. Finally, the fact that other valves to the sprinkler system were also shut off does not serve to absolve Bancker from liability if it is responsible for installing the valve at the water main in the shut position, but would instead only go to the apportionment of liability. Whether the building was vacant during the 1993 installation of the new water main, which was not conclusively established by Bancker by the evidence submitted on these motions, is irrelevant to a determination of these issues.
Conclusion
For the above stated reasons, the City's motion for summary judgment against the Carter plaintiffs is granted and their complaint is dismissed as against the City. The cross motion by the Carter plaintiffs for summary judgment in their favor and their motion for leave to serve an amended notice of claim, along with Sims' cross motion for leave to serve an amended notice of claim or to serve a late notice of claim, are denied. Bancker's cross motion for summary judgment dismissing the third-party complaint against it is granted only to the extent of dismissing the City's claim as it pertains to the Carter plaintiffs.
The foregoing constitutes the order and decision of this court.