The opinion
State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 7, 2016 521298
________________________________
DEBORAH BYNUM, Individually
and as Guardian of the
Person and Property of
HEATHER BYNUM,
Respondent,
v
MEMORANDUM AND ORDER
CAMP BISCO, LLC, et al.,
Defendants,
and
TOWN OF DUANESBURG et al.,
Appellants.
________________________________
Calendar Date: November 19, 2015
Before: Peters, P.J., Lahtinen, Garry and Rose, JJ.
__________
Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany
(Mark J. Dolan of counsel), for Town of Duanesburg, appellant.
Shantz & Belkin, Latham (M. Randolph Belkin of counsel),
for County of Schenectady, appellant.
LaFave, Wein & Frament, PLLC, Guilderland (Jason A. Frament
of counsel), for respondent.
__________
Rose, J.
Appeal from an order of the Supreme Court (Versaci, J.),
entered January 26, 2015 in Schenectady County, which denied
motions by defendant Town of Duanesburg and defendant County of
Schenectady for summary judgment dismissing the complaint against
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them.
Plaintiff's daughter, Heather Bynum, attended a music
festival known as Camp Bisco, held in the Town of Duanesburg,
Schenectady County, where she ingested a harmful substance and
sustained significant injuries. Thereafter, plaintiff commenced
this action on behalf of Bynum against, among others, defendants
Town of Duanesburg and County of Schenectady (hereinafter
collectively referred to as defendants), alleging that they
negligently issued the necessary permits for Camp Bisco because
they knew or should have known that the permit applications
significantly underestimated the anticipated number of attendees,
resulting in a level of medical staffing at the festival
inadequate to promptly respond to Bynum's condition.1 After
joinder of issue, defendants separately moved for summary
judgment dismissing the complaint against them, asserting
governmental immunity from tort liability. Supreme Court
thereafter denied defendants' motions, finding them to be
premature, and further finding that issues of fact existed as to
whether defendants assumed a special duty to Bynum. Defendants
now appeal, and we reverse.
Where, as here, a municipality engages in a quintessential
governmental function such as the issuance of permits, even if it
does so negligently, the municipality is immune from liability
unless it owed "a special duty to the injured person, in contrast
to a general duty owed to the public" (McLean v City of New York,
12 NY3d 194, 199 [2009] [internal quotation marks and citation
omitted]; see Applewhite v Accuhealth, Inc., 21 NY3d 420, 426
[2013]; Rickson v Town of Schuyler Falls, 263 AD2d 863, 864-865
[1999]). As relevant here, to prove a special duty to Bynum,
plaintiff must establish "[t]he elements of a special
relationship includ[ing] . . . direct contact between the
municipality's agents and [Bynum], and [Bynum's] justifiable
reliance . . . on the municipality's affirmative promise to act"
(DeCrescente v Catholic Charities of the Diocese of Albany, 89
1
Plaintiff also commenced a separate action alleging,
among other things, negligence against the festival promoters
(Bynum v Keber, ___ AD3d ___ [decided herewith]).
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AD3d 1272, 1274 [2011], lv dismissed and denied 18 NY3d 943
[2012]; see Applewhite v Accuhealth, Inc., 21 NY3d at 430-431;
Cuffy v City of New York, 69 NY2d 255, 260 [1987]).
Viewing the pleadings and submissions in the light most
favorable to plaintiff and providing her with every favorable
inference (see Andrew R. Mancini Assoc., Inc. v Mary Imogene
Bassett Hosp., 80 AD3d 933, 935 [2011]; Walton v Albany Community
Dev. Agency, 279 AD2d 93, 94-95 [2001]), we must agree with
defendants that plaintiff's complaint and bill of particulars are
devoid of factual allegations that Bynum had any direct contact
with defendants, or that she relied upon any affirmative promise
that defendants' agents would keep her safe while she attended
Camp Bisco. Indeed, plaintiff claims only that Bynum relied upon
the representations "contained in any and all applications for
permits for Camp Bisco," which were completed by the festival
organizers, not by defendants. In response to the motion,
plaintiff made no additional factual allegations regarding either
of these two required elements. Rather, she attempts to excuse
her facially inadequate pleadings by relying upon our decision in
Boland v State of New York (218 AD2d 235, 241-242 [1996]), where
we held that, when a statutory scheme clearly imposes a duty upon
a government to protect a discrete class of individuals, of which
the injured person is a member, it is unnecessary to prove direct
contact and reliance in order to establish a special relationship
between a municipality and the injured person.
The record here, however, makes clear that our holding in
Boland does not apply to plaintiff's claim against the Town, as
her allegations make no mention of any statutory scheme pursuant
to which the Town acted to approve a proposed amendment to the
special use permit for the festival site. As to plaintiff's
claim against the County, the pleadings allege only that the
County violated specific provisions of the State Sanitary Code by
granting a mass gathering permit based upon an application
containing attendance estimations well below the actual
attendance at Camp Bisco (see 10 NYCRR 7-4.2, 7-4.3, 7-4.7, 18.2,
18.3, 18.4, 18.6). While these regulations do require, among
other things, the provision of certain levels of medical services
depending on the number of attendees at large events, such as
Camp Bisco, the protections that they bestow are not limited only
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to Bynum and the other attendees of this particular festival. In
other words, "[t]he regulations were intended to benefit [Bynum],
but in the broad sense of protecting all members of the general
public similarly situated. This, alone, is insufficient to form
a basis for municipal liability" (O'Connor v City of New York, 58
NY2d 184, 190 [1983]; see Metz v State of New York, 20 NY3d 175,
180-181 [2012]).
Inasmuch as plaintiff does not allege any direct contact
between Bynum and defendants, or that defendants made any
affirmative promises directly to her, we find that Supreme
Court's order denying defendants' motions for summary judgment
must be reversed and the complaint against them must be dismissed
(see Dinardo v City of New York, 13 NY3d 872, 874-875 [2009];
McLean v City of New York, 12 NY3d at 200-202; DeCrescente v
Catholic Charities of the Diocese of Albany, 89 AD3d at 1274-
1275; Lewis v State of New York, 68 AD3d 1513, 1514-1515 [2009]).
Finally, we also disagree with Supreme Court's conclusion that
defendants' motions were premature, as plaintiff has not
demonstrated how additional discovery would produce relevant and
material evidence sufficient to remedy the failures of her
pleadings and proof (see Bowman v Kennedy, 126 AD3d 1203, 1206-
1207 [2015]; Ullmannglass v Oneida, Ltd., 121 AD3d 1371, 1373
[2014]; Cox v Maloney, 262 AD2d 832, 833 [1999]).
Peters, P.J., Lahtinen and Garry, JJ., concur.
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ORDERED that the order is reversed, on the law, without
costs, motions granted, summary judgment awarded to defendant
Town of Duanesburg and defendant County of Schenectady and
complaint dismissed against said defendants.
ENTER:
Robert D. Mayberger
Clerk of the Court