Opinion
1117 Index No. 156708/20 Case No. 2022–05268
11-28-2023
Steven TISHMAN, as Executor of the Estate of Erica Tishman, and Steven Tishman, Individually, Plaintiff–Appellant, v. HIMMEL + MERINGOFF PROPERTIES, LLC et al., Defendants, The City of New York, Defendant–Respondent.
Morelli Law Firm PLLC, New York (Sara A. Mahoney of counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York (Deborah A. Brenner of counsel), for respondent.
Morelli Law Firm PLLC, New York (Sara A. Mahoney of counsel), for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Deborah A. Brenner of counsel), for respondent.
Manzanet–Daniels, J.P., Friedman, Gonza´lez, Pitt–Burke, Higgitt, JJ.
Order, Supreme Court, New York (Judy H. Kim, J.), entered November 3, 2022, which granted defendant City of New York's motion to dismiss the complaint as against it, unanimously affirmed, without costs.
Plaintiff failed to plead facts to support a claim that the City owed plaintiff's decedent a special duty ( Ferreira v. City of Binghamton, 38 N.Y.3d 298, 173 N.Y.S.3d 484, 194 N.E.3d 239 [2022] ). The sections of the Administrative Code that plaintiff alleges were violated by the City were designed to protect the general public and not a special class to which plaintiff belonged (see Worth Distribs., Inc. v. Latham, 59 N.Y.2d 231, 237, 464 N.Y.S.2d 435, 451 N.E.2d 193 [1983] ; see also O'Connor v. City of New York, 58 N.Y.2d 184, 460 N.Y.S.2d 485, 447 N.E.2d 33 (1983) ; Gibbs v. Paine, 280 A.D.2d 517, 720 N.Y.S.2d 184 [2d Dept. 2001], lv denied 96 N.Y.2d 714, 729 N.Y.S.2d 441, 754 N.E.2d 201 [2001] ). Nor is the fact that the City allegedly reduced the class of violation issued to the building at an OATH hearing sufficient to support a claim that the City assumed direction and control (compare Ferreira, 38 N.Y.3d 298, 173 N.Y.S.3d 484, 194 N.E.3d 239 ; Smullen v. City of New York, 28 N.Y.2d 66, 320 N.Y.S.2d 19, 268 N.E.2d 763 [1971] ).