Opinion
Index No. EC2021-32888
09-21-2022
Paul J. McGreevy and JENNIFER E. MCGREEVY, Plaintiffs, v. John McClure, MCCLURE & SONS CONSTRUCTION, LLC, SWANSON CONSULTING & ASSOCIATES, INC., and TOWN OF CAMBRIDGE, Defendants.
Catherine A. Burkly, Schuylerville, for plaintiffs. Johnson & Laws, LLC, Clifton Park (April J. Laws of counsel), for defendant Town of Cambridge.
Unpublished Opinion
Catherine A. Burkly, Schuylerville, for plaintiffs.
Johnson & Laws, LLC, Clifton Park (April J. Laws of counsel), for defendant Town of Cambridge.
Robert J. Muller, J.
Plaintiffs Paul J. McGreevy and Jennifer E. McGreevy own a home located at 860 County Route 59 in the Town of Cambridge, Washington County. On or about October 23, 2019, plaintiffs entered into a written contract with defendants John McClure and McClure & Sons Construction, LLC (hereinafter referred to collectively as defendants) for the demolition of an existing addition on the home and the construction of "a new forty-four (44) feet by thirty-six (36) feet, two (2) story addition" for $111,000.00, with plaintiffs paying an initial deposit of $16,000.00. Plaintiffs and defendants thereafter entered into a verbal agreement relative to the installation of a new septic system for $25,000.00.
Defendants "retained SEI Design Group and Discovery Dream Homes to produce professional stamped drawings of the proposed addition," for which plaintiffs paid $7,000.00. Defendants then presented these drawings to Laverne Davis, the Code Enforcement Officer for defendant Town of Cambridge (hereinafter the Town), along with an application for a building permit. The permit was issued on November 25, 2019, and defendants began work on the project soon thereafter.
In March 2020, defendant Swanson Consulting & Associates, Inc. (hereinafter Swanson) performed a rough-in inspection of the electrical installation for the new addition, with the installation apparently passing. Also "in the late [w]inter/early [s]pring[ of] 2020, [d]efendants... installed [the] replacement septic system." It is alleged that plaintiffs "made payments to [d]efendants... through the course of the [w]inter 2019 and the [s]pring and [s]ummer of 2020 in the amount of... $143,000.00." In July 2020, defendants discontinued work on the project.
Davis visited the premises on July 3, 2020 and "failed the excavation/footings, foundation/before backfill, framing, plumbing and installation[, as well as the] septic system." Davis was subsequently terminated from his employment with the Town and his responsibilities were contracted out to John Graham, the Washington County Code Enforcement Officer, in August of 2020. In September of 2020, Graham inspected the new addition and provided plaintiffs with a list of 47 separate code enforcement violations, including issues with foundation/footing, framing, insulation, plumbing, electrical, sewage disposal, as well as other miscellaneous items. Graham advised plaintiffs that, "as currently constructed, [his] office would never be able to issue the Certificate necessary [for plaintiffs] to use the addition." Plaintiffs reached out to defendants to discuss the litany of issues found by Graham, but they never received a response.
In April 2021, "it was discovered by the senior electrical inspector that there was risk of an electrical fire due to the faulty electrical installation and the electricity to the addition was disconnected." Plaintiffs thereafter consulted with a licensed engineer and a number of contractors, all of whom advised that demolishing and rebuilding the structure would be more cost effective than repairing it - and this is what plaintiffs ultimately did. They then commenced this action on May 21, 2021 seeking $500,000.00 in damages, which amount is comprised of $400,000.00 in compensatory damages and $100,000.00 in punitive damages.
It is unclear whether this electrical inspector was employed by the Town or some other entity.
Defendants and Swanson were served with the pleadings on May 28, 2021 and June 1, 2021, respectively, with neither appearing in response. On June 18, 2021, plaintiffs submitted a proposed Judgment on default to the Washington County Clerk, which Judgment was against defendants in the amount of $500,620.00. The Clerk signed the Judgment on June 21, 2021 and filed it that same date. On June 23, 2021, plaintiffs submitted another proposed Judgment on default to the Clerk, this one against Swanson in the amount of $500,800.00. This Judgment was also executed by the Clerk and filed that same date.
Briefly, CPLR 3215 (a) provides that "[i]f the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default." Otherwise, "the plaintiff shall apply to the court for judgment" (CPLR 3215 [a]). Here, plaintiffs' claim is not for a sum certain. The County Clerk was therefore without authority to execute the Judgments against defendants and Swanson and, as a result, they are a nullity (see Ayres Mem. Animal Shelter, Inc. v Montgomery County Socy. for Prevention of Cruelty to Animals, 17 A.D.3d 904, 905 [2005]; Action Lawn & Landscaping v East Glenville Fire Dist., 254 A.D.2d 585, 587 [1998]).
Indeed, Swanson filed a motion seeking to vacate the Judgment entered against it in December 2021, which motion was resolved by Stipulation and Order entered on June 2, 2022. This Stipulation and Order indicates that the Judgment against Swanson is vacated in accordance with the terms of a Confidential Release and Settlement Agreement apparently executed by the parties on March 22, 2022. A Stipulation of Discontinuance as against Swanson was then filed on September 8, 2022.
Presently before the Court is the Town's pre-answer motion to dismiss the complaint as against it for failure to state a cause of action (see CPLR 3211 [a] [7]), and plaintiffs' cross motion to (1) sever the claims against the Town from those against defendants and Swanson; (2) amend their complaint so as to assert additional allegations against the Town; and (3) hold the Town's motion in abeyance pending the exchange of discovery. The motion and cross motion will be addressed ad seriatim.
Turning first to the motion, "the standard to be applied on a motion to dismiss for failure to state a cause of action is both familiar and well settled - '[the Court] must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable legal theory'" (Rodriguez v Jacoby & Meyers, LLP, 126 A.D.3d 1183, 1185 [2015], lv denied 25 N.Y.3d 112 [2015], quoting He v Realty USA, 121 A.D.3d 1336, 1339 [2014] [internal quotation marks and citation omitted]; see Torrance Constr., Inc. v Jaques, 127 A.D.3d 1261, 1263 [2015]; Snyder v Brown Chiari, LLP, 116 A.D.3d 1116, 1117 [2014]).
Here, plaintiffs assert two causes of action against the Town: negligence and breach of fiduciary duty. Both causes of action emanate from Davis's failure to inspect each phase of the construction, with plaintiffs alleging that - as the Code Enforcement Officer for the Town - he was obligated to conduct such inspections and had he done so, the defects would have been discovered earlier and the damages ameliorated.
According to the Town, plaintiffs cannot succeed on their negligence cause of action because there was no special relationship between the parties. In this regard, "'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'" (Bell v Village of Stamford, 51 A.D.3d 1263, 1264 [2008], quoting O'Connor v City of New York, 58 N.Y.2d 184, 192 [1983]; see McLean v City of New York, 12 N.Y.3d 194, 199 [2009]; Sanchez v Village of Liberty, 42 N.Y.2d 876, 877-878 [1977]; Newhook v Hallock, 215 A.D.2d 804, 805 [1995]). That being said, a special relationship may arise in one of three ways:
"'(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation'" (Bell v Village of Stamford, 51 A.D.3d at 1264, quoting Pelaez v Seide, 2 N.Y.3d 186, 199-200 [2004]; see Garrett v Holiday Inns, 58 N.Y.2d 253, 261-262 [1983]; Cooper v State of New York, 13 A.D.3d 867, 868 [2004]).
As to the first avenue, "the adoption of... building codes by a municipality does not create a special relationship with its residents" (Bell v Village of Stamford, 51 A.D.3d at 1264). "[C]odes enacted for the benefit of the general public do not, without more, give rise to a special relationship between a municipality and an individual" (id.; see O'Connor v City of New York, 58 N.Y.2d at 189-191; Sanchez v Village of Liberty, 42 N.Y.2d at 877-878; Mahoney v Town of Santa Clara, 89 A.D.2d 718, 719 [1982], affd 58 N.Y.2d 661 [1982]; Garrett v Town of Greece, 78 A.D.2d 773, 774 [1980], affd 55 N.Y.2d 774 [1981]). Further, plaintiffs allege "no affirmative conduct on the part of [the Town] which may have induced [their] reliance and given rise to a special relationship under the second scenario" (Bell v Village of Stamford, 51 A.D.3d at 1265). Rather, plaintiffs allege that Davis failed to take affirmative steps to inspect the construction on an ongoing basis. Finally, with respect to the third avenue, plaintiffs in no way allege that the Town assumed positive direction and control of the construction in the face of a known, blatant and dangerous safety violation.
Under the circumstances, the Court finds that - even when affording the complaint a liberal construction and construing all inferences in plaintiffs' favor - they have still failed to state a cause of action for negligence as against the Town.
The Court further finds that plaintiffs have failed to state a cause of action for breach of fiduciary duty as against the Town. "A fiduciary relationship exists when one party reposes confidence in another and reasonably relies on the other's superior expertise or knowledge" (Robare v Fortune Brands, Inc., 39 A.D.3d 1045, 1046-1047 [2007], lv denied, 9 N.Y.3d 810 [2007] [citations and internal quotation marks omitted]; see Sears v First Pioneer Farm Credit, ACA, 46 A.D.3d 1282, 1286 [2007]). "More importantly, '[w]here, as here, a... plaintiff seeks to establish the existence of a fiduciary relationship with... institutional... defendant[s], the plaintiff may not merely rely on the [defendants'] status in general, but must come forward with facts demonstrating that his or her relationship with the institution[s] was somehow unique or distinct from the institution[s'] relationship with other[s] generally'" (Robare v Fortune Brands, Inc., 39 A.D.3d at 1047, quoting Doe v Holy See [State of Vatican City], 17 A.D.3d 793, 795 [2005]). Here, Davis's alleged relationship with plaintiffs was exactly the same as his relationship with any other resident in the Town undertaking new construction; there is nothing unique or distinct about it.
It must also be noted that the Town is shielded from liability under the doctrine of governmental immunity, "which 'shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions'" (Stevens & Thompson Paper Co. Inc. v Middle Falls Fire Dept., Inc., 188 A.D.3d 1504, 1505 [2020], quoting Valdez v City of New York, 18 N.Y.3d 69, 76 [2011]; see McLean v City of New York, 12 N.Y.3d 194, 202 [2009]; Lauer v City of New York, 95 N.Y.2d 95, 99 [2000]). "Under the doctrine, '[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general" (Stevens & Thompson Paper Co. Inc. v Middle Falls Fire Dept., Inc., 188 A.D.3d at 1505-1506, quoting McLean v City of New York, 12 N.Y.3d at 203; accord Valdez v City of New York, 18 N.Y.3d at 76-77; see Normanskill Cr., LLC v Town of Bethlehem, 160 A.D.3d 1249, 1250 [2018]; DiMeo v Rotterdam Emergency Med. Servs., Inc., 110 A.D.3d 1423, 1424 [2013], lv denied 22 N.Y.3d 864 [2014]). Official acts of code enforcement officers are discretionary and, as such, Davis's actions cannot be a basis for liability (see Iodice v City of White Plains, 42 Misc.3d 1233 [A], 2014 NY Slip Op 50322[U], *4 [Sup Ct, Westchester County 2014]; cf. Matter of Willows Condominium Assn. v Town of Greenburgh, 153 A.D.3d 535, 537 [2017]).
To the extent plaintiffs contend that the official acts of code enforcement officers are ministerial, the Court finds this contention to be without merit. That being said, even if Davis's acts were ministerial, plaintiffs have failed to establish a special duty owed to them apart from the duty owed to the public and, as such, liability would not attach.
Based upon the foregoing, the Town's pre-answer motion to dismiss the complaint as against it is granted in its entirety.
Turning now to the cross motion, plaintiffs first seek to sever their claims as against the Town from their claims as against defendants and Swanson. To the extent that plaintiffs' claims against the Town have been dismissed, this aspect of the cross motion is moot. That being said, plaintiffs are not entitled to the requested relief in any event. CPLR 603 provides that "[i]n furtherance of convenience or to avoid prejudice the court may order a severance of claims." Here, because the default judgment rendered against defendants is a nullity, the severance of plaintiffs' claims against the Town from those asserted against defendants may result in prejudice to the Town.
Plaintiffs next seek to amend their complaint with additional allegations, most of which arise from Paul McGreevy's testimony at his General Municipal Law § 50-h examination. These allegations include the following:
The citations to the transcript of Paul McGreevy's testimony have been removed from this quotation.
"Mr. McGreevy... raised concerns with Mr. Davis' replacement, John Graham.... Specifically, Mr. McGreevy discussed his concerns about the construction that had taken place under Mr. Davis' supervision and what were perceived to be code violations that Mr. Davis neglected to address.
"Mr. Graham expressed disbelief at the work performed and required the removal of sheetrock to inspect the work that Mr. Davis failed to inspect
"Mr. Graham said that you have to have a septic system plan stamped by an engineer in order to get a building permit, and how Mr. Davis issued a building permit without that documentation was something that was very curious to him.
"Since March 2020, Mr. McGreevy and his wife have spoken directly to Mr. Davis on various occasions. Mr. Davis visited [p]laintiffs' property and Mr. McGreevy pointed out his concerns. Mr. Davis, however, did not help or seem concerned about building codes.
"There were also conversations between Mr. McGreevy, Mr. Davis, and Mr. McClure. Mr. Davis attempted to convince Mr. McGreevy to bury the... septic system that had been installed; Mr. Davis did not want his name on it, and he did not want to sign anything.
"Mr. McGreevy made complaints to the Town and the State, asserting that Mr. Davis was not actually a code inspector and that he was curious why the Town would hire him in the first place. Based on Mr. McGreevy's understanding, the Town had used Mr. Davis to save money.
"Mr. McGreevy also spoke with the Town's attorney. The Town's attorney indicated that this was not the first call/complaint he received in regard to Mr. Davis and that he was not surprised."
Plaintiffs contend that these new allegations establish a special relationship, but this contention is without merit. Even accepting these allegations as true, they do not fall within the purview of the three avenues discussed hereinabove for establishing a special relationship (see Bell v Village of Stamford, 51 A.D.3d at 1264-1265).
Plaintiffs further contend that these new allegations sound in negligent hiring and retention, but - again, as discussed above - municipalities are entitled to governmental immunity for discretionary actions, and the alleged negligent hiring and retention resulted from the exercise of discretion by the Town (see Mon v City of New York, 78 N.Y.2d 309, 315-316 [1991]).
Finally, plaintiffs seek to hold the Town's motion in abeyance pending the exchange of discovery. Specifically, plaintiffs want discovery with respect to why the Town hired Davis and then retained him as the Code Enforcement Officer notwithstanding it's alleged receipt of multiple complaints. That being said, to the extent that there exists no viable cause of action against the Town for negligent hiring and retention, any such discovery is irrelevant.
Based upon the foregoing, plaintiffs' cross motion is denied in its entirety.
Therefore, having considered NYSCEF document Nos. 15 through 18, 28 through 34, and 40, it is hereby
ORDERED that the Town's motion to dismiss the complaint as against it is granted; and it is further
ORDERED that plaintiffs' cross motion to, inter alia, leave to amend the complaint is denied in its entirety.
The original of this Decision and Order has been e-filed by the Court. Counsel for the Town is hereby directed to serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513.