New York State Court of Claims

New York State Court of Claims

REID v. THE STATE OF NEW YORK, #2007-041-012, , Motion No. M-72856


Synopsis


Claimant’s motion to have notice of intention be treated as a claim denied where notice of intention fails to state facts sufficient to constitute a claim, in that defendant’s alleged failure to conduct certain health and safety code inspections involved a discretionary governmental function for which defendant is immune from liability for damages.

Case Information

UID:
2007-041-012
Claimant(s):
APRIL REID
Claimant short name:
REID
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-72856
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
APRIL REIDPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Ellen Matowik Russell, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 26, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Claimant moves for an order seeking to have her notice of intention to file a claim be treated as a claim. Court of Claims Act § 10 (8) provides, at relevant part, as follows:
“A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.”

“Where a claimant files a timely notice of intent, the court may, in its discretion, deem the notice of intent as a claim . . . . In order to treat a notice of intent as a claim, the notice of intent must state a cause of action” (Artale v State of New York, 140 AD2d 919 [3d Dept 1988]; see Jackson v State of New York, 85 AD2d 818, 819 [3d Dept 1981], lv dismissed and denied 56 NY2d 501, 568 [1982], rearg denied 56 NY2d 806 [1982]; Waters of Saratoga Springs v State of New York, 68 NY2d 777 [1986]; Hodge v State of New York, 213 AD2d 766 [3d Dept 1995]).

The notice of intention was served upon the Attorney General by certified mail, return receipt requested, on January 13, 2004. In its responsive papers, the defendant limits its opposition to asserting that the notice of intention fails to state facts sufficient to constitute a claim and that the Court lacks subject matter jurisdiction over the proposed claim.

The basis of the proposed claim is a regulatory agreement entered into between the New York State Division of Housing and Community Renewal (DHCR) and the owner of the building in which claimant resides, pursuant to a low-income housing tax credit program overseen by DHCR. Claimant alleges that the building owner has failed to comply with the regulatory agreement, primarily because the grounds and building have been plagued by plumbing and sewage system failures, leading to numerous health code violations.

The claimant sets forth five causes of action in her notice of intention.

The first alleges that claimant is a third-party beneficiary of the regulatory agreement and that DHCR breached the regulatory agreement by failing to adequately enforce it against the building owner. Claimant requests damages of $10,000.00 from DHCR for the alleged breach of contract.

The second cause of action alleges that DHCR negligently failed to “conduct an on-site inspection of the building” which had “woefully fallen into disrepair and currently is still in code violation.” Claimant requests damages of $10,000.00 from DHCR for its allegedly negligent failure to perform inspections.

Claimant next alleges that DHCR policies regarding “on-site inspections” constitute a denial of equal protection under the New York State Constitution since she is now “part of an underclass of tenants whose landlords participate” in the subject program. Claimant requests $10,000.00 in damages for violation of her state constitutional rights.

Claimant also alleges a violation of her equal protection rights under the United States Constitution since she is now “in an underclass of tenants in US government subsidized housing in that she lives in a substandard building while other tenants in buildings overseen by agencies more vigilant than DHCR do not.” Claimant also requests $10,000.00 for this alleged federal constitutional violation.

Finally, claimant requests a “[d]eclaratory judgment that certain sections of the [regulatory agreement between DHCR and her landlord] be declared null and void as against public policy.”

With respect to the breach of contract cause of action, “[a] third party may be the beneficiary of a public as well as a private contract . . . . He may recover, however, only by establishing (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for his benefit and (3) that the benefit to him is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate him if the benefit is lost” (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 336 [1983]).

Significantly, the claimant’s notice of intention references § 2040.13 of the regulatory agreement which states that:
“Compliance with the requirements of the Code is the sole responsibility of the owner of the building for which the credit is allowable. DHCR's obligation to monitor for compliance with the requirements of the Code does not create liability for an owner's non-compliance.”

The very agreement by which claimant asserts status as an intended third-party beneficiary expressly disclaims any such liability on the part of the defendant for the omissions alleged in the notice of intention. Further, claimant fails to allege that the regulatory agreement was intended for her benefit and that the benefit to her is “sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [her] if the benefit is lost” (Burns at 336). The Court finds that claimant lacks standing to sue as a third party beneficiary under the regulatory agreement. As such, the breach of contract cause of action fails to state a cause of action against defendant (see Mendel v Henry Phipps Plaza West, Inc., 6 NY3d 783 [2006]).

The liability disclaimer of § 2040.13 of the regulatory agreement also reveals a lack of merit in claimant’s negligence cause of action. Even beyond the specific obstacle presented by the disclaimer in the regulatory agreement, claimant fails to allege any legally cognizable duty owed to her by the defendant.

In general, “[p]ublic entities remain immune from negligence claims arising out of the performance of their governmental functions” Miller v State of New York (62 NY2d 506, 510 [1984]; see Court of Claims Act § 8). The Court must therefore determine whether DHCR was engaged in a governmental function with respect to the activities referred to in the notice of intention.

As the Court of Appeals explained in Miller at pp. 511-512:

“A governmental entity’s conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection.”

State or municipal enforcement of a public health or safety code represents a governmental rather than proprietary function (see Broncati v City of White Plains, 6 AD3d 476, 478 [2d Dept 2004]; Linden v President and Directors of Chase Manhattan Bank, 299 AD2d 216, 217 [1st Dept 2002], lv denied 99 NY2d 509; Sebastian v State of New York, 93 NY2d 790, 794 [1999]; McEnaney v State of New York, 267 AD2d 748 [3d Dept 1999]; O'Connor v City of New York, 58 NY2d 184 [1983]).

In Scruggs-Leftwich v Rivercross Tenants' Corp., (70 NY2d 849 [1987]), the Court of Appeals reversed an order of the Appellate Division which had estopped DHCR from enforcing certain regulations against a Mitchell-Lama cooperative housing company. The Appellate Division based its estoppel holding upon the fact that the predecessor regulatory body to DHCR had issued a prospectus expressly stating that the subject regulations did not apply to this particular cooperative housing company.

In reversing the Appellate Division, the Court of Appeals held that “[i]n exercising its regulatory powers over [the cooperative housing company], DHCR was acting in a governmental--not proprietary--capacity” and “estoppel may not be invoked against a municipal agency to prevent it from discharging its statutory duties” (Scruggs-Leftwich, 70 NY2d at 851-852).

Similarly, under the regulatory agreement in this matter, DHCR was acting in a governmental capacity when it exercised regulatory control over the building owner and when it allegedly negligently failed to “conduct an on-site inspection of the building” which had “woefully fallen into disrepair and currently is still in code violation.”

Where the defendant State is “sued for negligence in the performance of its governmental functions, it may not be found liable unless it was, by statute or its own voluntary undertaking, specially obligated to perform the subject functions specifically for plaintiffs’ benefit” (Davis v Owens, 259 AD2d 272 [1st Dept 1999], lv denied 93 NY2d 810 [1999]).

“A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” (Pelaez v Seide, 2 NY3d 186, 199-200 [2004]).

The Court of Appeals, in Pelaez, cautioned that “[w]hile the existence of a special relationship depends on the facts, a plaintiff has a heavy burden in establishing such a relationship” and, consequently, has “dismissed most such claims as a matter of law” (Pelaez, 2 NY3d 186, 199 n 8).

Claimant has not alleged that the defendant violated a statutory duty enacted for the benefit of a particular class of persons. Rather, she alleges that the defendant failed to conduct inspections required by the non-statutory regulatory agreement and/or failed to enforce a building code intended to protect the public at large. Further, claimant cannot claim to have justifiably relied upon any purported assumption of a duty by DHCR as a party to the regulatory agreement, since the liability disclaimer contained in § 2040.13 of the regulatory agreement expressly precludes any such reliance. Finally, claimant does not allege in the notice of intention that DHCR assumed positive direction and control in the face of a known, blatant and dangerous safety violation. To the contrary, claimant insists that DHCR failed to assume such direction and control.

Accordingly, the notice of intention fails to allege facts sufficient to demonstrate a “special relationship” and therefore fails to state a claim.

Even assuming that the negligence cause of action stated a claim, the Court lacks subject matter jurisdiction over such a claim. Claimant challenges the discretionary administrative actions of the Division of Housing and Community Renewal. “The appropriate remedy for such a challenge is a CPLR article 78 proceeding” (Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]). In particular, claimant alleges that defendant has failed to perform a duty it was mandated to perform by law. Thus, the claim is in the nature of a mandamus to compel and such relief is available, if at all, only by way of an Article 78 proceeding, commenced in Supreme Court (Matter of McCullough v State of New York, 278 AD2d 709 [3d Dept 2000], lv dismissed 96 NY2d 754 [2001], lv denied 96 NY2d 706 [2001]).

Although the Court of Appeals has recognized a cause of action for a state “constitutional tort” in the Court of Claims (Brown v State of New York, 89 NY2d 172 [1996]), it is also acknowledged that a constitutional tort remedy will not be implied when an adequate alternative remedy exists (Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]). Claimant could have raised her state constitutional claim in the context of an article 78 proceeding or declaratory judgment action in Supreme Court (see Bullard v State of New York, 307 AD2d 676 [3d Dept 2003]; Walton v New York State Dept. of Correctional Services, 2007 NY Slip Op 01384 [2007]). Claimant can also seek to recover her damages directly from the building owner.

With respect to the claimant’s cause of action alleging that the DHCR’s code enforcement policies constitutes a denial of equal protection under the United States Constitution, it is well-settled that no cause of action for damages against the State of New York exists for an alleged violation of an individual’s rights under the United States Constitution since the State is not a “person” amenable to suit pursuant to 42 USC § 1983 (see Gable Transport, Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]).

Claimant’s fifth and final cause of action requests a judgment declaring that “certain sections of the [regulatory agreement between DHCR and her landlord] be declared null and void as against public policy.” The Court of Claims is a court of limited jurisdiction and the powers conferred upon it do not include the authority to provide the type of equitable relief requested by claimant (Madura v State of New York, 12 AD3d 759 [3d Dept 2004], lv denied 4 NY3d 704 [2005]). The jurisdiction of the Court of Claims is invoked where money damages are the essential object of the claim, unlike an instance where the principal claim is equitable in nature (such as to compel action by a state agency), with monetary relief being incidental to the principal claim (see Harvard Fin. Servs. v State of New York, 266 AD2d 685, 685 [3d Dept 1999]; Matter of Gross v Perales, 72 NY2d 231, 236 [1988]).

Claimant’s fifth cause of action fails to state a claim since it “seeks a declaratory judgment which the Court of Claims does not have authority to render” (Wikarski v State of New York, 91 AD2d 1174 [4th Dept 1983]).

For all of the foregoing reasons, claimant’s motion seeking to have her notice of intention to file a claim be treated as a claim is denied.

March 26, 2007
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Claimant’s Notice of Motion, filed January 22, 2007;
  1. Affidavit of April Reid, sworn to December 28, 2006, with annexed exhibits;
  1. Affirmation of Ellen Matowik Russell, affirmed on March 14, 2007 and filed on March 15, 2007.