Defendants, City of Buffalo (“City”) and James Comerford, Jr., Commissioner of Permit & Inspection Services (collectively, “City Defendants”), have applied for an order (Motion 1; Doc. 15) granting summary judgment and dismissing the Complaint (Doc. 2) as against them. Defendant, Hannah Demolition, Inc. (“Hannah”) has also applied for an order (Motion 2; Doc. 26) granting summary judgment and dismissing the Complaint as against it. BACKGROUND This action arises out of the City’s demolition of the improvement located on real property owned by Plaintiff, Timothy Jones (“Jones”). The Complaint asserts causes of action against all three (3) Defendants grounded in negligence, trespass, trespass to chattels, conversion, and prima facie tort (Doc. 2). The following facts are undisputed and apply to both applications: 1. Plaintiff owns the real property located at 858 Jefferson Avenue, Buffalo, New York (“Property”), which is the subject of this action. 2. On April 9, 2018, a fire occurred at the Property (“Fire”). 3. On July 23, 2019, the Hon. Patrick M. Carney, Buffalo Housing Court Judge, issued a demolition order with respect to the Property (“Demolition Order”) (Doc. 18). Judge Carney determined that the structure located on the Property (“Structure”) was “dangerous to the life, health, or safety of the public, and that demolition of the structure(s) on that property is necessary to promote and protect the public interest” (Id.). The Demolition Order further authorized the City to carry out the demolition “as soon as it is practical for the City to do so” (Id.). 4. On September 9, 2019, the City notified Jones of the impending demolition by affixing a notice of the Demolition Order to the front door of the Structure. 5. On September 11, 2019, Jones’ counsel asked the City to refrain from taking further steps to demolish the Structure at the Property. 6. On September 11, 2019, at 11:28 p.m., Rashied McDuffie, Esq., an attorney employed by the City Corporation Counsel’s Office, emailed Jones’ counsel, Kevin Stocker, Esq., stating, in relevant part, as follows: Generally, the only legal mechanism to halt a demolition by the city that is now under contract and given a final notice to proceed is by filing an Order to Show Cause with a temporary restraining order in State Supreme Court. However, you have informed me that you will not do so, which makes resolution on this basis a non-starter and leaves a high probability that the demolition of your client’s property can proceed. (Emphasis added) (Doc. 38). 7. Mr. McDuffie also offered to appear before Judge Carney on September 12, 2019, at 9:30 a.m. for an emergency hearing as to whether the Demolition Order should be vacated (Id.). 8. Mr. McDuffie appeared before Judge Carney on the morning of September 12, 2019, but Mr. Stocker was unavailable, because he had a conflict with a previously scheduled court appearance in a different matter. 9. After returning from his appearance before Judge Carney, Mr. McDuffie emailed Mr. Stocker on September 12, 2019, at 10:22 a.m., stating, in relevant part, the following: Judge Carney has advised that he has no pending case before him concerning the property and the only way to stop the demolition is through filing of an action in Supreme Court. Based on this representation, you are hereby advised that the demolition of Mr. Jones’ property is scheduled to take place on tomorrow, Friday, September 13, 2019. The scheduled demolition will proceed, if we are not served with an OTSC with restraining order before that time. (Emphasis added) (Id.). 10. On September 12, 2019, Jones commenced a proceeding against the City, pursuant to CPLR Article 78, for the purpose of “securing a temporary restraining order against Respondent to stay the condemnation and demolition of the Property” (“Article 78 Proceeding”) (Index No. 811711/19; Doc. 1). 11. The City is only respondent identified in the Article 78 Proceeding. Neither Comerford, nor Hannah are named as respondents therein. 12. On September 13, 2019, Jones served the City with an order to show cause granted by the Hon. Henry J. Nowak, J.S.C. (“Order to Show Cause”) in the context of the Article 78 Proceeding (Doc. 19). 13. Later in the day on September 13, 2019, Hannah caused the Structure to be demolished, in accordance with the Demolition Order. 14. The Order to Show Cause does not identify Hannah as a party respondent, nor is Hannah mentioned anywhere in it. The City (not including Comerford) is the only party identified as a respondent therein. 15. The Order to Show Cause did not include a temporary restraining order precluding the City from proceeding with enforcing the Demolition Order. Rather, it ordered the City to appear before the court on September 20, 2019, at 10:00 a.m., in connection with whether one should be granted. 16. There is no indication in the record that Jones applied for a stay of the Demolition Order between the time Judge Nowak signed it on September 13, 2019 and the September 20, 2019 return date. 17. On May 11, 2021, Judge Nowak appeared for a deposition in this matter, at which time he testified, inter alia, that the Order to Show Cause “doesn’t have specific language prohibiting the demolition of the building” (Doc. 22, p. 42). 18. The demolition of the Structure rendered the Article 78 Proceeding moot. 19. Jones’ notice of claim does not refer to damage to the Structure caused by firefighting training activities at the Property. DISCUSSION Buffalo Defendants’ Motion Negligence (First Cause of Action) In demolishing the Structure pursuant to authority granted to it under the Demolition Order, Jones contends that the City acted intentionally. Jones further contends that the City intentionally disregarded the Order to Show Cause by demolishing the Structure prior to the September 20, 2019 return date. Accordingly, summary judgment is granted with respect to Jones’ negligence claims against the City Defendants (Morrow v. MetLife Investors Ins. Co., 177 AD3d 1288, 1289 [4th Dept 2019] ["the court erred in denying that part of the motion seeking to dismiss the first, second, and ninth causes of action, for negligence and gross negligence, against him because each of those causes of action depends on allegations of intentional conduct that cannot form the basis of a claim founded on negligence"]; see also, Smith v. Cnty. of Erie, 295 AD2d 1010, 1010 [4th Dept 2002] ["New York has adopted the prevailing modern view that, once intentional offensive contact has been established, the actor is liable for assault and not negligence…"]). Jones does not attempt to distinguish Morrow. Rather, he focuses on whether the City’s actions were in the context of its proprietary or governmental capacities. However, whether Jones has properly asserted a negligence claim does not turn on whether the City acted in its proprietary or governmental capacity. It turns on whether Jones asserted intentional versus unintentional conduct. Finally, the court disagrees with Jones’ contention that the City was not authorized to demolish the Structure on September 13, 2019. Jones relies, to his detriment, on the fact that the Order to Show Cause merely scheduled a return date of September 20, 2019, for a hearing over whether the court should grant a temporary restraining order. In scheduling the return date, the court did not stay the Demolition Order. Section 6313(a) of the CPLR provides, in relevant part, as follows: If, on a motion for a preliminary injunction, the plaintiff shall show that immediate and irreparable injury, loss or damages will result unless the defendant is restrained before a hearing can be had, a temporary restraining order may be granted without notice. Upon granting a temporary restraining order, the court shall set the hearing for the preliminary injunction at the earliest possible time. (Emphasis added). Jones could have applied for an immediate temporary restraining and requested that it be included in the Order to Show Cause. The record does not reflect whether he did so. If he did so, the request was denied, and he should have appealed from such denial. If he failed to do so, he proceeded at his peril, because the mere scheduling of a return date — in the absence of a temporary restraining order or other form of stay, failed to prohibit the City from moving forward with executing the Demolition Order. Indeed, Judge Nowak testified that the Order to Show Cause “doesn’t have specific language prohibiting the demolition of the building” (Doc. 22, p. 42). The City was free to proceed with demolition in the face of the signed Order to Show Cause. The City was clear to inform Jones, prior to the demolition, that demolition would proceed unless it was served with a temporary restraining order precluding the execution of the Demolition Order. Despite these crystal clear instructions, the Order to Show Cause fails to include a temporary restraining order, either because Jones failed to include it in the proposed order he submitted to Judge Nowak, or Judge Nowak refused to issue one. Regardless, the Order to Show Cause, in merely scheduling a return date, did not stay anything. Moreover, Jones failed to seek a stay of the Demolition Order from Judge Carney, despite the City’s suggestion that he do so. Trespass (Second Cause of Action) With respect to his claim for trespass, Jones must demonstrate an “intentional entry onto…[the Property] without justification or permission” (Pearl St. Parking Assocs. LLC v. Cnty. of Erie, 207 AD3d 1029, 1032 [4th Dept 2022]). Clearly, the City did not trespass onto the Property. The Demolition Order coupled with the absence of a temporary restraining order or other form of stay provided the City with adequate “justification or permission” to enter upon the Property on September 13, 2019 and demolish the Structure. Trespass to Chattels (Third Cause of Action) With respect to trespass to chattels, New York Pattern Jury Instructions, Civil, 3:9, entitled “Intentional Torts-Trespass to Chattels”, provides as follows: A person who, without justification or consent, intentionally physically interferes with the use and enjoyment of personal property in the possession of another commits a trespass and is liable for any damage caused by that conduct. Like the claim for trespass, this claim also fails, because the City was justified in entering upon the Property to demolish the Structure. It was Jones’ responsibility to remove any possessions stored within the Structure at the Property immediately following the issuance of the Demolition Order. His failure to do so is attributed entirely to him. The City (nor Hannah) was under no obligation to confirm that Jones’ possessions had been removed from the Structure prior to its demolition. Conversion (Fourth Cause of Action) The Appellate Division, Fourth Department has defined “conversion” as, any unauthorized exercise of dominion or control over property by one who is not the owner of the property which interferes with and is in defiance of a superior possessory right of another in the property. (Meese v. Miller, 79 AD2d 237, 242 [4th Dept 1981]). A plaintiff seeking to establish a claim for conversion, must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question…to the exclusion of plaintiff’s rights. (Castaldi v. 39 Winfield Assoc., 30 AD3d 458, 458 [2nd Dept 2006]). Jones’ conversion claim fails, because the City’s actions in entering upon the Property and demolishing the Structure were authorized by the Demolition Order and in no way was the City’s authority to proceed with demolition abridged or otherwise limited by the Order to Show Cause which glaringly lacked a temporary restraining order. Moreover, in light of the Demolition Order, Jones is incapable of demonstrating “an immediate superior right of possession”, as required by Castaldi. Prima Facie Tort A cause of action for prima facie tort consists of the following four (4) elements: (i) intentional infliction of harm; (ii) causing special damages; (iii) without excuse or justification; (iv) by an act or series of acts that would otherwise be lawful (Curiano v. Suozzi, 63 NY2d 113, 117 [1984]; Freihofer v. Hearst Corp., 65 NY2d 135, 142-143 [1985]). However, “there is no recovery in prima facie tort unless malevolence is the sole motive for defendant’s otherwise lawful act” (Burns Jackson Miller Summit & Spitzer v. Lindner, 59 NY2d 314, 333 [1983] [emphasis added]). A complaint does not state a cause of action for prima facia tort when it fails to allege that defendants were motivated solely by malevolence (Niagara Mohawk Power Corp. v. Testone, 272 AD2d 910 [4th Dept 2000]). The City’s actions in entering upon the Property and demolishing the Structure were justified and authorized by the Demolition Order. Accordingly, Jones is incapable of proceeding with a claim grounded in prima facie tort. Finally, the court rejects Jones’ claim that City firefighters caused damage to the Structure during training exercises several days prior to demolition, because such claim was not included in the Notice of Claim, and Jones has not sought leave to amend and supplement it (Clare-Hollo v. Finger Lakes Ambulance EMS, Inc., 99 AD3d 1199 [4th Dept 2012] [a party may not pursue a new theory of liability not included in the notice of claim]; see also, Lemma v. Off Track Betting Corp., 272 AD2d 669, 671 [3d Dept 2000] ["Knowledge of the injuries or damages claimed by a plaintiff and of the allegations of culpability, rather than mere notice of the underlying occurrence, is necessary to establish actual knowledge of the essential facts of the claim within the meaning of General Municipal Law §50-e(5)"]). Hannah’s Application Hannah’s application is granted for the reasons previously stated in connection with the City Defendants’ application. In addition, had the Order to Show Cause included a temporary restraining order — it did not, it would have been ineffective as against Hannah because Hannah was not named as a party Respondent in it. In light of the foregoing, it is hereby ORDERED, that the City Defendants’ application for summary judgment is granted and the Complaint is hereby dismissed as against them; and it is further ORDERED, that Hannah’s application for summary judgment is granted and the Complaint is hereby dismissed as against it. This constitutes the Decision and Order of this court. Submission of an order by the parties is not necessary. The delivery of a copy of this Decision and Order by this court shall not constitute notice of entry. Dated: October 31, 2022
