LoTEMPIO v. ERIE COUNTY HEALTH DEPARTMENT

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Jennifer LoTEMPIO, Claimant-Appellant, v. ERIE COUNTY HEALTH DEPARTMENT and County of Erie, Respondents-Respondents.

Decided: April 29, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, PINE, AND LAWTON, JJ. Hogan & Willig, PLLC, Amherst (Diane R. Tiveron of Counsel), for Claimant-Appellant. Frederick A. Wolf, County Attorney, Buffalo (Kristin Klein Wheaton of Counsel), for Respondents-Respondents.

Claimant appeals from an order denying her application for leave to serve a late notice of claim against respondent County of Erie (County).   Although Supreme Court gave no reasoning for the exercise of its discretion, we affirm on the ground that the claim is “patently meritless” (Matter of Catherine G. v. County of Essex, 3 N.Y.3d 175, 179, 785 N.Y.S.2d 369, 818 N.E.2d 1110).   The proposed notice of claim alleges that a County Health Department employee negligently inspected and approved the septic system of claimant's home pursuant to a provision of the County Sanitary Code requiring such inspections and approvals upon a transfer of property.   Those allegations, however, are not sufficient to sustain a negligence cause of action against the County and thus the claim is patently without merit.   Where, as here, there is no special relationship between the municipality and the applicant, “the mere failure to uncover [defects in the septic system] clearly would not constitute a sufficient predicate for imposing liability on the [County]” (Garrett v. Holiday Inns, 58 N.Y.2d 253, 262, 460 N.Y.S.2d 774, 447 N.E.2d 717;  see O'Connor v. City of New York, 58 N.Y.2d 184, 189-191, 460 N.Y.S.2d 485, 447 N.E.2d 33, rearg. denied 59 N.Y.2d 762, 463 N.Y.S.2d 1030, 450 N.E.2d 254;   Okie v. Village of Hamburg, 196 A.D.2d 228, 231-232, 609 N.Y.S.2d 986;   Appleby v. Webb, 186 A.D.2d 1078, 1079, 588 N.Y.S.2d 228;  see generally Pelaez v. Seide, 2 N.Y.3d 186, 778 N.Y.S.2d 111, 810 N.E.2d 393).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: