JOSLYN v. VILLAGE OF SYLVAN BEACH

Reset A A Font size: Print

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

John F. JOSLYN, Individually and as Administrator of the Estate of Tammy Jo Joslyn, Deceased, and Margaret A. Joslyn, Appellants, v. VILLAGE OF SYLVAN BEACH and County of Oneida, Respondents.  (Appeal No. 1.)

Decided: December 31, 1998

Present:  DENMAN, P.J., GREEN, HAYES, BALIO and BOEHM, JJ. Brindisi and Murad by Stephanie Palmer, Utica, for Plaintiffs-Appellants. Melvin and Melvin by Susan E. Otto, Syracuse, for Defendant-Respondent Village of Sylvan Beach. Joseph D. Caldwell, New Hartford, for Defendant-Respondent County of Oneida.

Plaintiffs commenced this action against the Village of Sylvan Beach (Village) and the County of Oneida (County), seeking to recover for the drowning of plaintiffs' 10-year-old daughter in Oneida Lake.   Plaintiffs allege that the Village was negligent in its ownership, operation and supervision of the “sandy beach” from which plaintiffs' daughter gained access to the lake.   As limited by their brief, plaintiffs allege that the County breached its ministerial duty to enforce, against the Village, State regulations governing bathing beaches (see generally, 10 NYCRR 6-2.1 et seq.).   Plaintiffs appeal from a judgment dismissing the complaint based on an order granting defendants' respective motions for summary judgment.

 Supreme Court properly granted summary judgment to the County.   Enforcement of a statute or regulation is a distinctly governmental function as to which liability may not attach absent a special relationship giving rise to a special duty on the part of the municipality to exercise care for the benefit of a particular class of individuals (see, O'Connor v. City of New York, 58 N.Y.2d 184, 190-192, 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;  Sanchez v. Village of Liberty, 42 N.Y.2d 876, 877-878, 397 N.Y.S.2d 782, 366 N.E.2d 870;  Quinn v. Nadler Bros., 92 A.D.2d 1013, 1014, 461 N.Y.S.2d 455, affd. 59 N.Y.2d 914, 466 N.Y.S.2d 292, 453 N.E.2d 521;  Newhook v. Hallock, 215 A.D.2d 804, 805, 626 N.Y.S.2d 300;  Bounauito v. William Floyd School Dist., 203 A.D.2d 225, 226, 609 N.Y.S.2d 661).   The County established that there was no special relationship, and plaintiffs failed to raise an issue of fact.

 The court erred, however, in granting summary judgment to the Village.   The Village failed to sustain its initial burden on its motion of demonstrating its entitlement to judgment as a matter of law (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Indeed, the Village's submissions raise triable questions of fact concerning whether the Village owned or operated the beach and negligently failed to supervise bathing by the public at that location (see, Caldwell v. Village of Is. Park, 304 N.Y. 268, 273-276, 107 N.E.2d 441;  cf., Jacques v. Village of Lake Placid, 39 A.D.2d 163, 164-165, 332 N.Y.S.2d 743, affd. 32 N.Y.2d 739, 344 N.Y.S.2d 641, 297 N.E.2d 521;  Christian v. City of Binghamton, 28 A.D.2d 611, 611-612, 279 N.Y.S.2d 1001).

Judgment unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: