PREASTER v. CITY OF SYRACUSE

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

Kenneth PREASTER and Kathryn Preaster, Plaintiffs–Appellants, v. CITY OF SYRACUSE, Defendant–Respondent.

397

Decided: April 27, 2018

PRESENT:  SMITH, J.P., CENTRA, NEMOYER, CURRAN, AND TROUTMAN, JJ. WOODRUFF LEE CARROLL, SYRACUSE, FOR PLAINTIFFS–APPELLANTS. JOSEPH E. FAHEY, CORPORATION COUNSEL, SYRACUSE (TODD LONG OF COUNSEL), FOR DEFENDANT–RESPONDENT.

MEMORANDUM AND ORDER

Plaintiffs commenced this action seeking damages arising from a fire on their property.  According to plaintiffs, defendant's failure to repair a fire hydrant increased the damages they sustained when their house caught on fire.  Plaintiffs appeal from an order that, inter alia, granted defendant's motion to dismiss the “second amended complaint” and denied plaintiffs' cross motion and “second motion” for leave to amend the second amended complaint.  We affirm.

“When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose” (Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013];  see Moore v. Del–Rich Props., Inc., 151 A.D.3d 1817, 1818–1819, 58 N.Y.S.3d 772 [4th Dept. 2017] ).  A municipality performs a purely proprietary role when its “activities essentially substitute for or supplement ‘traditionally private enterprises' ” (Sebastian v. State of New York, 93 N.Y.2d 790, 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 [1999] ).  “In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers” (Applewhite, 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [internal quotation marks omitted] ).  It is well settled that where, as here, “the alleged negligence stems from municipal efforts to protect the safety of the public by ‘aggregating and supplying water for the extinguishment of fires,’ it is engaged in a government function entitled to immunity” (Billera v. Merritt Constr., Inc., 139 A.D.3d 52, 57, 29 N.Y.S.3d 562 [3d Dept. 2016] ).  Contrary to plaintiffs' further contention, “repairs to fire hydrants are made[ ] for the public good and not especially for ․ any particular class of persons.  Such being the case, [defendant] cannot be held liable here based upon its failure to ․ repair the hydrant” (Timmons v. Harvey, 85 A.D.2d 840, 840, 446 N.Y.S.2d 433 [3d Dept. 1981];  see Rood Utils. v. City of Auburn, 233 A.D.2d 873, 874, 649 N.Y.S.2d 291 [4th Dept. 1996] ).

Plaintiffs further contend that, although, as a general rule, “a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide ․ fire protection” (Etienne v. New York City Police Dept., 37 A.D.3d 647, 649, 830 N.Y.S.2d 349 [2d Dept. 2007] ), this case falls within the “narrow class of cases in which [the courts] have recognized an exception to this general rule and have upheld tort claims based upon a ‘special relationship’ between the municipality and the claimant” (Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 [1987], quoting De Long v. County of Erie, 60 N.Y.2d 296, 304, 469 N.Y.S.2d 611, 457 N.E.2d 717 [1983] ).  We reject that contention.  The elements of that special relationship include “an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured” (Cuffy, 69 N.Y.2d at 260, 513 N.Y.S.2d 372, 505 N.E.2d 937), and here plaintiffs failed to allege any promises or actions by defendant indicating an affirmative duty to act on their behalf.  Plaintiffs thus failed to allege a special relationship that would support a claim for negligence against this municipal defendant.

We have considered plaintiffs' remaining contentions and conclude that they are without merit.

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

Memorandum: