Clinton v. McKeon

4 Citing cases

  1. Bletter v. Incorporated Village, Westhampton Beach

    88 F. Supp. 2d 21 (E.D.N.Y. 2000)   Cited 9 times
    Denying such a due process claim after reinterpreting it as a claim of a property interest in proper certification procedures, finding that there is no property interest in the procedures leading up to the issuance of a certificate of occupancy

    Moreover, it appears that the underlying state law regarding whether a municipality owes a duty of care to avoid issuing a Certificate of Occupancy on non-conforming property is, while perhaps not novel, certainly under-developed and somewhat contradictory. Compare Hill v. Middleton, 146 Misc.2d 283, 549 N.Y.S.2d 918 (Sup.Ct. Rensselaer Cty. 1989) (duty exists towards persons buying home) and Clinton v. McKeon, 174 A.D.2d 153, 578 N.Y.S.2d 685 (3d Dept. 1992) (duty does not exist towards person buying home from private seller). Finally, as this case involves questions regarding a municipality's liability for actions in performs incident to its governmental function, the Court finds that the New York State's interest in the outcome of the issues in the case favors resolution in state court rather than federal court.

  2. Hyman v. Queens County Bancorp, Inc.

    307 A.D.2d 984 (N.Y. App. Div. 2003)   Cited 39 times

    The defendant did not raise such an allegation and relied instead upon the certificate of occupancy issued in 1978 as proof that the renovation did in fact comply with applicable building code provisions. Contrary to the defendant's contention, issuance of a certificate of occupancy does not preclude a finding of negligence based upon the existence of building code violations (see Cirino v. Greek Orthodox Community of Yonkers, 193 A.D.2d 576). The fact that the City of New York issued a certificate of occupancy is not proof that the building complied with all applicable building code provisions at the time the certificate was issued ( see Garrett v. Holiday Inns, 58 N.Y.2d 253; Clinton v. McKeon, 174 A.D.2d 153). Beecher v. Northern Men's Sauna ( 272 A.D.2d 281), cited by the majority, does not support the defendant's contention. On the issue of proximate cause, the injured plaintiff's deposition testimony that he reached out for a handrail constituted proof in admissible form that the failure to provide handrails on both sides of the stairway may have been a proximate cause of the accident ( see Hotzoglou v. Hotzoglou, supra; Kanarvogel v. Tops Appliance City, 271 A.D.2d 409). Since the plaintiff was carrying nothing in his hands, there was nothing to prevent him from grasping a handrail if one had been present on the side of the stairway closest to him (see Lattimore v. Falcone, 35 A.D.2d 1069).

  3. Newhook v. Hallock

    215 A.D.2d 804 (N.Y. App. Div. 1995)   Cited 9 times

    The building construction code provides a "'basic and uniform performance standard'" applicable to all people of the State (Major v Waverly Ogden, 7 N.Y.2d 332, 335; see, Executive Law art 18). We further reject plaintiff's contention that there existed a special relationship between him and the Town upon which he relied since it is clear that the certificate of occupancy was issued to the Hallocks and not plaintiff and that he examined the Town's files on this residence only after he purchased it (see, Clinton v McKeon, 174 A.D.2d 153). Hence, in the absence of a special relationship, as here, the issuance of a certificate of occupancy is a "governmental function for which a municipality may not be held responsible for damages" (Okie v Village of Hamburg, 196 A.D.2d 228, 231; see, O'Connor v City of New York, supra; see generally, Bargy v Sienkiewicz, 207 A.D.2d 606).

  4. Santacapita v. Town of Brookhaven

    202 A.D.2d 489 (N.Y. App. Div. 1994)   Cited 2 times

    Furthermore, they have averred in an affidavit that they relied on the certificate of compliance in purchasing the home and using the deck (see, Garrett v. Holiday Inns, 58 N.Y.2d 253; Goudreau v. City of Rensselaer, 134 A.D.2d 709). However, no special relationship exists which would permit the plaintiffs to maintain this action against the Town to recover for injuries resulting from the collapse of the deck, inasmuch as the certificate of compliance was issued by the Town to the previous owner of the premises and there was no direct contact between the plaintiffs and the Town (see, Clinton v. McKeon, 174 A.D.2d 153; see generally, Kircher v. City of Jamestown, 74 N.Y.2d 251; Cuffy v. City of New York, 69 N.Y.2d 255; Julmis v. City of New York, 194 A.D.2d 522). "Any other result [w]ould conceivably leave a municipality open to suit from homeowners several generations removed from the individuals who had actual contact with the municipality" (Clinton v. McKeon, supra, at 155). Accordingly, the Town is entitled to summary judgment dismissing the complaint and all cross claims against it.