Calendar Date: April 23, 2018Before: McCarthy, J.P., Egan Jr., Aarons, Rumsey andPritzker, JJ.__________Terry Rice, Suffern, for appellant.Tully Rinckey PLLC, New York City (Nicholas A. Devyatkin ofcounsel), for respondents.__________McCarthy, J.P.Appeal from an order of the Supreme Court (Ryba, J.),entered January 13, 2017 in Albany County, which denied a motionby defendant Town of Bethlehem to dismiss the complaint againstit.Defendant Normanskill Creek, LLC (hereinafter Normanskill)operates a golf course on property owned by defendant 165Salisbury Road LLC that is located in the Town of Bethlehem,Albany County. Normanskill allowed fill to be placed on theproperty at the top of the bank of the Normans Kill Creek. Thefilling occurred for at least several weeks despite no permithaving been issued by defendant Town of Bethlehem as required byCode of the Town of Bethlehem § 128-49. The Town eventuallyadvised Normanskill that it needed to apply for a fill permit;Normanskill applied and the Town granted a permit. A short timelater, the Town determined that the permit had been exceeded andordered that dumping cease.A few weeks later, a landslide occurred at the property,causing approximately 120,000 cubic yards of earth and debris toslide into Normans Kill Creek. Plaintiffs filed a complaintalleging that defendants’ negligence caused damming of the creekand flooding of their property, which is located on NormansideDrive in the City of Albany and is adjacent to the Normans KillCreek. Specifically, plaintiffs alleged that the Town wasnegligent in the issuance of the fill permit to Normanskill andin its enforcement and administration of the Town Code. The Townmoved to dismiss the complaint against it and Supreme Courtdenied the motion.1 The Town appeals.“[O]n a motion to dismiss for failure to state a claim, thecourt must afford the complaint a liberal construction, accept astrue the allegations contained therein, accord the plaintiff[s]the benefit of every favorable inference and determine onlywhether the facts alleged fit within any cognizable legal theory”(Skibinsky v State Farm Fire & Cas. Co., 6 AD3d 975, 976 [2004][internal quotation marks and citation omitted]; see CPLR 3211[a] [7]; Graven v Children’s Home R.T.F., Inc., 152 AD3d 1152,1153 [2017]). To hold a municipality liable for negligence inrelation to its governmental, as opposed to proprietary,functions, the plaintiff must show that the municipality owed himor her a special duty beyond that owed to the public at large(see Valdez v City of New York, 18 NY3d 69, 75 [2011]; McLean vCity of New York, 12 NY3d 194, 199, 202-203 [2009]). A specialduty “is found when a special relationship exists between themunicipality and an individual or class of persons, warrantingthe imposition of a duty to use reasonable care for thosepersons’ benefit” (Garrett v Holiday Inns, 58 NY2d 253, 261[1983]). “A special relationship can be formed in three ways:(1) when the municipality violates a statutory duty enacted forthe benefit of a particular class of persons; (2) when itvoluntarily assumes a duty that generates justifiable reliance bythe person who benefits from the duty; or (3) when themunicipality assumes positive direction and control in the faceof a known, blatant and dangerous safety violation” (Pelaez vSeide, 2 NY3d 186, 199-200 [2004]; see Applewhite v Accuhealth,Inc., 21 NY3d 420, 426 [2013]; McLean v City of New York, 12 NY3dat 199).“To form a special relationship through breach of astatutory duty, the governing statute must authorize a privateright of action” (Signature Health Ctr., LLC v State of New York,92 AD3d 11, 14 [2011], lv denied 19 NY3d 811 [2012]; see Abrahamv City of New York, 39 AD3d 21, 25 [2007], lv denied 10 NY3d 707[2008]). Plaintiffs assert that the Town violated Code of theTown of Bethlehem § 128-49, but that section does not authorize aprivate right of action. Thus, no special relationship wasformed through breach of a statutory duty.To establish that a municipality created a specialrelationship by voluntarily assuming a duty, a plaintiff mustshow: “(1) an assumption by the municipality, through promises oractions, of an affirmative duty to act on behalf of the party whowas injured; (2) knowledge on the part of the municipality’sagents that inaction could lead to harm; (3) some form of directcontact between the municipality’s agents and the injured party;and (4) the party’s justifiable reliance on the municipality’saffirmative undertaking” (Cuffy v City of New York, 69 NY2d 255,260 [1987]; accord Tara N.P. v Western Suffolk Bd. of Coop Educ.Servs., 28 NY3d 709, 714 [2017]; McLean v City of New York, 12NY3d at 201; see Trimble v City of Albany, 144 AD3d 1484, 1486[2016]). Plaintiffs failed to allege any assumption by the Townto act on their behalf, any direct contact between them and anyagent of the Town or any justifiable reliance by plaintiffs (seeMcLean v City of New York, 12 NY3d at 201; Sutton v City of NewYork, 119 AD3d 851, 852 [2014], lv denied 24 NY3d 918 [2015]).As for the third way of forming a special relationship, themunicipality must not only assume positive direction or controlwhen a known, blatant and dangerous safety violation exists, butmust “affirmatively act to place the plaintiff in harm’s way,”through words or conduct that “induc[e] the plaintiff to embarkon a dangerous course he or she would otherwise have avoided”(Abraham v City of New York, 39 AD3d at 28 [latter emphasisadded]; see Sutton v City of New York, 119 AD3d at 852; see alsoGarrett v Holiday Inns, 58 NY2d at 262). Although we recentlyheld that Normanskill and 165 Salisbury Road alleged a specialrelationship with the Town on this basis (see Normanskill CreekLLC v Town of Bethlehem, 160 AD3d 1249, 1252 [2018]), the allegedsafety violation existed on property owned or leased by thoseparties. They were in a markedly different position thanplaintiffs.Plaintiffs are removed from the Normanskill property thatwas directly affected by the fill and permit activities, and thecomplaint contains no allegations that plaintiffs were even awareof, or had contact with any of the parties involved in, thoseactivities. The allegations provide no indication of howplaintiffs could have been induced by the Town to embark on anycourse of action, let alone a dangerous one that they wouldotherwise have avoided (compare Goudreau v City of Rensselaer,134 AD2d 709, 709, 711 [1987]). Thus, the complaint does notallege a special relationship between the Town and plaintiffs(see Sutton v City of New York, 119 AD3d at 852-853; Abraham vCity of New York, 39 AD3d at 28). Because plaintiffs did notallege facts establishing that the Town owed them a duty, thecomplaint fails to state a negligence cause of action against theTown.Egan Jr., Aarons, Rumsey and Pritzker, JJ., concur.ORDERED that the order is reversed, on the law, withoutcosts, motion granted and complaint dismissed against defendantTown of Bethlehem.ENTER:Robert D. MaybergerClerk of the Court
