365 West End LLC v. New York City Department of Environmental Protection

Judge Feinman

365 WEST END LLC v. NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION — Resolution of this motion to dismiss for failure to state a cause of action requires the court to determine whether the municipal defendants should be afforded immunity for the issuance of a Three Day Notice by an inspector from the New York City Department of Environmental Protection (“DEP”). As a consequence of receiving the Notice, plaintiff, a residential landlord, was obliged to expend funds to hire a contractor to excavate the street in front of its building in order to repair an underground water pipe. It turned out that the leaky pipe did not belong to plaintiff, but rather to another building down the block. The court concludes that the inspector’s actions were discretionary, rather than ministerial, in nature. Therefore, as a matter of law, the municipal defendants are entitled to immunity even if it can be said that these discretionary duties were carried out negligently. Accordingly, the motion to dismiss must be granted.