GILLETTE v. CITY OF ELMIRA

Reset A A Font size: Print

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

Jeanne GILLETTE et al., Individually and as Parents and Guardians of Amy Gillette, an Infant, et al., Appellants, v. CITY OF ELMIRA et al., Respondents, et al., Defendants.

Decided: July 26, 2001

Before:  CARDONA, P.J., PETERS, SPAIN, CARPINELLO and LAHTINEN, JJ. Rinde, Urbanski & Flynn (Raymond J. Urbanski of counsel), Elmira, for appellants. Roe, Shantz & Iacono (Frederick F. Shantz of counsel), Buffalo, for respondents.

Appeal from an order of the Supreme Court (Castellino, J.), entered April 26, 2000 in Chemung County, which, inter alia, granted a motion by defendants City of Elmira and Chemung County Humane Society and Society for the Prevention of Cruelty to Animals Inc. for summary judgment dismissing the complaint against them.

In October 1996, Amy Gillette and Bobby Jo Fuller were attacked and bitten by two pit bull terriers after the dogs escaped through a hole in the fence surrounding the property rented by the dogs' owners in the City of Elmira, Chemung County.   Thereafter, plaintiffs commenced this personal injury action, individually and on behalf of their respective children, against, inter alia, defendant City of Elmira and its contractor for animal control services, defendant Chemung County Humane Society and Society for the Prevention of Cruelty to Animals Inc. (hereinafter the SPCA), alleging that the City and the SPCA (hereinafter collectively referred to as defendants) were negligent in failing to prevent the attack.   Specifically, plaintiffs claimed that the SPCA had responded to two prior complaints involving the dogs, yet failed to seize or control the animals.   Defendants moved for summary judgment dismissing the complaint against them, contending that they cannot be held liable in the absence of a special relationship between them and plaintiffs with regard to the governmental function of animal control.   Supreme Court granted the motion and this appeal by plaintiffs ensued.

 We affirm.   It is well settled that a municipality cannot be held liable for injuries resulting from negligence in the performance of a governmental function absent a special relationship between the municipality and the injured party (see, Kircher v. City of Jamestown, 74 N.Y.2d 251, 255, 544 N.Y.S.2d 995, 543 N.E.2d 443;  Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937;  La Londe v. Hurteau, 239 A.D.2d 858, 859, 657 N.Y.S.2d 522, lv. denied 90 N.Y.2d 807, 664 N.Y.S.2d 268, 686 N.E.2d 1363).   The well-established elements of a special relationship are “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;  (2) knowledge on the part of the municipality's agents that inaction could lead to harm;  (3) some form of direct contact between the municipality's agents and the injured party;  and (4) that party's justifiable reliance on the municipality's affirmative undertaking” (Cuffy v. City of New York, supra, at 260, 513 N.Y.S.2d 372, 505 N.E.2d 937;  accord, Grieshaber v. City of Albany, 279 A.D.2d 232, 234, 720 N.Y.S.2d 214).   We agree with Supreme Court that the absence of any direct contact between the injured parties-or their parents (see, Sorichetti v. City of New York, 65 N.Y.2d 461, 469, 492 N.Y.S.2d 591, 482 N.E.2d 70)-and defendants is fatal to plaintiffs' cause of action (see, Merced v. City of New York, 75 N.Y.2d 798, 800, 552 N.Y.S.2d 96, 551 N.E.2d 589;  Kircher v. City of Jamestown, supra, at 257, 544 N.Y.S.2d 995, 543 N.E.2d 443;  Cuffy v. City of New York, supra, at 261-262, 513 N.Y.S.2d 372, 505 N.E.2d 937).   Moreover, notwithstanding plaintiffs' assertion to the contrary, no special duty was created by the SPCA's prior involvement as the result of complaints about the dogs, as there is no basis for finding that plaintiffs relied on this involvement to their detriment (see, Merced v. City of New York, supra, at 800, 552 N.Y.S.2d 96, 551 N.E.2d 589;  Shinder v. State of New York, 62 N.Y.2d 945, 479 N.Y.S.2d 189, 468 N.E.2d 27;  cf., Zibbon v. Town of Cheektowaga, 51 A.D.2d 448, 453, 382 N.Y.S.2d 152, lv. dismissed 39 N.Y.2d 1056, 387 N.Y.S.2d 428, 355 N.E.2d 388).

ORDERED that the order is affirmed, with costs.

SPAIN, J.

CARDONA, P.J., PETERS, CARPINELLO and LAHTINEN, JJ., concur.

Copied to clipboard