Rosa A. v D&E Equities, Inc. |
2019 NY Slip Op 09094 [178 AD3d 554] |
December 19, 2019 |
Appellate Division, First Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
Rosa A. et al., Respondents, v D&E Equities, Inc., et al., Respondents, and City of New York, Appellant, et al., Defendants. Gawayne Blake et al., Respondents, v D&E Equities, Inc., et al., Respondents, and City of New York, Appellant, et al. Defendants. Ethel Stewart Hall et al., Respondents, v D&E Equities, Inc., et al., Respondents, and City of New York, Appellant, et al., Defendants. Isadora Nembhard et al., Respondents, v Consolidated Edison of New York, Inc., et al., Defendants, and City of New York, Appellant. Hilda Ohmteng, Respondent, v D&E Equities, Inc., et al., Respondents, and City of New York, Appellant, et al., Defendants. Ramdhanie Rajkumar et al., Respondents, v D&E Equities, Inc., et al., Respondents, and City of New York, Appellant, et al., Defendants. Carmaleta H.S. et al., Respondents, v D&E Equities, Inc., et al., Respondents, and City of New York, Appellant, et al., Defendants. |
Zachary W. Carter, New York (Jeremy W. Shweder of counsel), for appellant.
Lisa M. Comeau, Garden City, for Rosa A. and others, respondents.
Faust Goetz Schenker & Blee, New York (Jeffrey Rubinstein of counsel), for D&E Equities, Inc., and Annal Management Company, Ltd. respondents.
Orders, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered February 6, 2019 and February 15, 2019, which denied the motions of defendant City of New York to dismiss the complaints and any cross claims asserted against it by defendants D&E Equities, Inc. and Annal Management Company, Ltd., unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgments accordingly.
At issue on these related appeals is whether the complaint in each of the actions alleges defendant City had a special relationship with plaintiffs such that it may be held liable to them for its alleged negligence in failing to inspect or correct safety violations, failure to ensure a fire hydrant was operable, failing to investigate or remove the child who allegedly started the fire, and/or failing to properly combat the fire (see generally Applewhite v Accuhealth, Inc., 21 NY3d 420, 425-426 [2013]). The complaints "allege[ ] no facts sufficient to show a special duty owed by the City defendants," requiring dismissal such claims (Green v City of New York, 150 AD3d 439, 439 [1st Dept 2017]). Furthermore, the spoliation of evidence claims against the City must also be dismissed as New York does not recognize an independent tort for either first- or third-party negligent spoliation of evidence (see Wood v NYU Hosps. Ctr., 116 AD3d 590, 591 [1st Dept 2014], lv denied 24 NY3d 914 [2015]). Concur—Acosta, P.J., Renwick, Manzanet-Daniels, Kapnick, González, JJ.