# Ellis v. City of New York

> New York Supreme Court, New York County · March 20, 2024 · 2024 NY Slip Op 30929(U)

URL: https://www.frixlaw.com/law-library/cases/9954292

## Case

- **Court:** New York Supreme Court, New York County
- **Decided:** March 20, 2024
- **Citations:** 2024 NY Slip Op 30929(U)
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Ellis v City of New York
2024 NY Slip Op 30929(U)
March 20, 2024
Supreme Court, New York County
Docket Number: Index No. 157661/2021
Judge: Nicholas W. Moyne
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 157661/2021
NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 03/20/2024

SUPREfvlE COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 52
------------------X

ANNA ELLIS AND BENJAMIN ZIMMERMAN, AS THE INDEX NO. 157661 /2021
ADMINISTRATORS OF THE ESTATE OF E. D. Z., ANNA
EL~IS, INDIVIDUALLY, BENJAMIN ZIMMERMAN,
INDIVIDUALLY, MOTION DATE 05/04/2023

Plaintiff, MOTION SEQ. NO. 002
-v-
THE CITY OF NEW YORK, THE NEW YORK CITY DECISION + ORDER ON
DEPARTMENT OF HEALTH AND MENTAL HYGIENE, MOTION
THE NEW YORK CITY ADMINISTRATION FOR
CHILDREN'S SERVICES,

Defendant.
------------------X

HON. NICHOLAS W. MOYNE:

The following e-filed documents, listed by NYSCEF document number (Motion 002) 27, 28, 29, 30, .31,
32,33,34,35,36,37,38,39 ,40,41,42,43,44,45,46,47 ,48,49,50
were read on this motion to/for DISMISSAL

Upon the foregoing documents, it is

This is an action for wrongful death and conscious pain and suffering
resulting from the death ofE.D.Z., the plaintiffs' child. The decedent, a 20-month-
old boy who passed away in October of 2020, was attending a privately-owned
daycare facility, Little Rising Stars Group Family Day Care LLC (hereinafter
"Little Rising Stars"). His death occurred when he was crushed by a large stroller
after he was left unattended and got out of his playpen during a scheduled naptime.

On or about December 10, 2020, plaintiffs served a Notice of Claim on
respondents City of New York and New York City Administration for Children's
Services (ACS). The Notice of Claim alleges, in relevant part, that the plaintiffs
"relied on the special relationship" between respondents and Little Rising Stars
"resulting from the inspections and applications of the rules and regulations" with
regard to Little Rising Stars, and that respondents failed to make certain that Little
Rising Stars had sufficient staffing following several earlier inspections conducted
in late 2019 and early 2020. The Notice of Claim also alleges that the respondents
failed to ensure that Little Rising Stars complied with applicable rules and
regulations designed to ensure a safe environment for children, including proper
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supervision and an environment free from physical hazards. On December 21,
2020, the plaintiffs filed a claim against the State of New York and Office of
Children and Family Services in the Court of Claims. The allegations in this claim
mirrored those contained in the Notice of Claim served against the City and
referenced the same regulations. A separate action was commenced against Little
Rising Stars and three of its employees which resulted in a settlement. .

The City now moves for an order, pursuant to CPR 321 l(a)(7), dismissing
the complaint against it for failure to state a cause of action. The motion relies
· upon the well-established principal of New York law which states that when a
public entity is sued for its negligent performance of a governmental function,
liability cannot attach unless the plaintiff establishes that the municipal defendant
owed a special duty specifically to the injured person, as opposed to a duty owed
only to the general public (see Ferreira v CityofBinghamton, 38 NY3d 298, 309-
310 [2022]; Valdezv City ofNew York, 18 NY3d 69, 75 [2011].)

When a negligence claim is asserted against a municipality, the first issue for
a court to decide is "whether the municipal entity was engaged in a proprietary
function or acted in a governmental capacity at the time the claim arose" ( Turturro
v City ofNew York, 28 NY3d 469,477 [2016], quoting Applewhite v Accuhealth,
Inc., 21 NY3d 420,425 [2013]; see Trenholm-Owens v City of Yonkers, 197 AD3d
521, 522 [2d Dept 2021]). "A government entity performs a purely proprietary role
when its activities essentially substitute for or supplement traditionally private
enterprises." (Applewhite, 21 NY3d at 425 [internal quotation marks omitted]; see
J.E. v Incorporated Vil. of Westbury, 200 AD3d 759, 760 [2d Dept 2021]; Marks-
Barcia v Village ofSl~epy Hollow Ambulance Corps, 183 AD3d 883, 884 [2d Dept
2020]). "If the municipality is engaged in a proprietary function, it is subject to suit
under the ordinary rules of negligence." (Trenholm-Owens, 197 AD3d at 523; see
Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 28 NY3d 709, 713 [2017];
Applewhite, 21 NY3d at 425). "In contrast, a municipality will be deemed to have
been engaged in a governmental function when its acts are undertaken for the
protection and safety of the public pursuant to the general police powers."
(Applewhite, 21 NY3d at 425·[internal quotation marks omitted]; see Connollyv
Long Is. Power Auth., 30 NY3d 719, 727 [2018]; Trenhoim-Owens, 197 AD3d at
523).

If the municipality was acting in a governmental capacity, then the plaintiff
must prove the existence of a special duty as an element of his or her negligence
cause of action (see Ferreira, 38 NY3d at 298 [2022];. Turturro, 28 NY3d at 478;
Trenholm-Owens, 197 AD3d at 523). In this case, it is clear that City was acting in
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a governmental capacity when it investigated and/or inspected Little Rising Stars
for alleged safety issues involving understaffing and/or inadequate supervision of
children. Plaintiffs' notice of claim alleges that the City failed to enforce multiple
sections pertaining to daycare facilities contained in the Rules and Regulations of
the State of New York, 18 NYCRR § 413ff. The complaint specifically references
18 NYCRR §418-1.8, which is entitled "supervision of Children," and cites Social
Services Law §390.2. These claims clearly indicate that the City was acting in a
governmental capacity and the cited statutes do not create any private rights of
action. Therefore, to survive a motion to dismiss, the plaintiff must plead facts
sufficient to establish the existence of a special relationship between the City and
the plaintiffs. A special relationship can be formed in three ways: ( 1) when the
municipality violates a statutory duty enacted for the benefit of a particular class of
persons; (2) when it voluntarily assumes a duty that generates justifiable reliance
by the person who benefits from the duty; or (3) when the municipality assumes
positive direction and control .in the face of a known, blatant and dangerous safety
violation. (See Garrett v Holiday Inns, 58 NY2d 253, 261-262 [1983]).

In this case, the plaintiffs contend that the City had a special duty to the
plaintiffs because it undertook and agreed to a special duty to "operate, manage,
inspect, supervise, monitor, control, and maintain the infants at [Little Rising
Stars]." (Complaint at ,r32). To the extent the plaintiffs are alleging a special
relationship was created by the voluntary assumption of a duty. by the City, they
must establish: ( 1) an assumption by the municipality, through promises or actions,
of an affirmative duty to act on behalf of the party who was injured; (2) knowledge
on the part of the municipality's agents that inaction could lead to harm; (3) some
form of direct contact between the municipality's agents and the injured party; and
(4) that party's justifiable reliance on the municipality's affirmative undertaking.
(See Cuffy v City ofNew York, 69 NY2d 255,260 [1987]).

The City maintains that the plaintiffs had not pied any facts which would
demonstrate that the plaintiffs justifiably relied upon any promise or representation
by the City or its agents as to the safety of the daycare center. While the co~plaint
alleges that Little Rising Stars had numerous safety violations which the City was
aware of and failed to correct, it does not suggest that the plaintiffs even knew
about these violations, let alone that it relied on representations from the City that
the violations had been cured or remedied. In fact, the plaintiffs specifically
testified at their 50-h hearing that they never spoke to any city employees about
anything regarding Little Rising Stars prior to the accident.

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The City argues that the failure to plead facts constituting evidence of
justifiable reliance is fatal to the plaintiffs claim and requires dismissal of the
complaint before discovery has even been concluded. Plaintiffs argue that the
motion is premature as discovery has not concluded and the parties have yet to
depose Elaine Francis, the individual who inspected Little Rising Stars on behalf of
the City before the accident. Plaintiffs suggest that the deposition of Ms. Francis
may reveal relevant information including: ( 1) whether violations were posted so
parents could see violations and if so, where were they posted; (2) information
regarding where the stroller was stored and whether the City directed the facility in
any way to move the stroller from one location to another or to secure the stroller
in any way; (3) information regarding the pack and play where E.D.Z. napped and
whether the City was aware that it was damaged; (4) information regarding the
motivation for allowing the facility to continue to operate, especially in an
unsupervised way; and (5) information regarding why the facility had not been
inspected since March 2020, when other facilities and other types of inspections
had resumed, despite the COVID-19 pandemic.

The problem for the plaintiffs is that none of the referenced outstanding
discovery would be relevant to determining whether the plaintiffs justifiably relied
on affirmative representations by the City and/or whether that reliance was
sufficient to create a special duty between the City and the plaintiffs that the City
could be held liable for breaching. The plaintiff claims that discovery thus far has
revealed that the City knew about unsafe conditions at Little Rising Stars including
inadequate staffing and unsafe rooms. But the issue is not what the City knew.
The issue is what the City told the plaintiffs that the plaintiffs could have
justifiably relied on. As indicated above, the plaintiffs acknowledge that they
never spoke to anyone from the City about safety issues at Little Rising Stars prior
to the accident.

Alternatively, the plaintiffs argue that the City took "positive direction and
control" by issuing violations against Little Rising Stars and seeking to revoke its
license, but then negligently failed to close the facility prior to the accident. As
referenced above, a special relationship may be formed when a municipality
assumes positive direction and control in the face of a known, blatant, and
dangerous safety violation. The leading c~se concerning this exception is Smullen v
City ofNew York, 28 NY2d 66 [1971]. In Smullen, the Court of Appeals found a
special relationship between the municipality and a worker who was killed when a
trench collapsed. Before entering the trench, a city inspector, who was in control of
the site and had the power to stop work, assured the worker the trench was "solid."
(Id. at 69.) The verdict for the plaintiff at trial was sustained, "because of the city's
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actual knowledge of the dangerous condition and its failure to do anything about it
at a time when the inspector was directly on hand as the peril heightened" (id. at
71,320 N.Y.S.2d 19,268 N.E.2d 763). Here, the plaintiffs allege that the City
was aware of the understaffing and inadequate staffing issues at Little Rising Stars
and had issued several other citations for safety violations. (Complaint 138). The
City was aware of the violations and was in the process of attempting to revoke the
license of the operators but had not yet ordered the closing of Little Rising Stars.
They analogize this case to Smullen by claiming that the City had knowledge of the
dangerous conditions at Little Rising Stars, took positive action and control by
seeking to revoke its license but acted negligently in failing to close Little Rising
Stars or notify parents about the safety problems there.

Plaintiffs also cite Garrett v Holiday Inns, Inc., 58 NY2d at 253. Garrett
involved a wrongful death and personal injury actions brought by and on behalf of
motel guests against the municipality and the motel owners, operators, and
developers. The municipality was allegedly negligent in permitting alterations to
the original building plans which did not comply with applicable fire laws, in
issuing a certificate of occupancy representing that the building was safe and in
compliance with fire laws, and thereafter in failing to uncover violations upon
inspection, while having knowledge 9f "blatant fire and safety code violation."
(Id. at 261 ). The Court of Appeals held that the municipality could be held
proportionately liable since the municipality owed a duty to prevent foreseeable
risk of harm, even absent an actionable duty. Specifically, the Court of Appeals
held that if "known, blatant, and dangerous violations existed on these premises,
but the town affirmatively certified the premises as safe, upon which representation
appellants justifiably relied in their dealings with the premises, then a proper basis
for imposing liability on the town may well have been demonstrated." (Id. at 262).

Garrett and Smullen are clearly distinguishable from this case. In Smullen,
the basis for imposing liability rested on the affirmative actions taken by the
inspector who affirmatively declared the trench safe and advised the injured
plaintiff that it was safe for him to enter the trench. Since the City had the power
to halt the work, the presence of the inspector and his failure to prevent the
decedent from entering the trench were affirmative actions constituting positive
direction and control by the City over a dangerous condition and were sufficient to
establish a special relationship and a duty owed by the City to the decedent who
relied upon that relationship when he entered the trench. What is being alleged
here is not actions but rather inaction on the part of the City. The Smullen court
specifically declined to consider whether mere inactivity or passivity by a
municipal employee in the face of a dangerous condition could subject the
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municipality to liability based on the existence of a special relationship. (See
Smullen, 28 NY2d at 72). Here, the plaintiffs have acknowledged that there was
no direct contact of any kind between themselves and the City concerning the
safety of Little Rising Stars. Any liability imposed on the City here would·be
based on the City's inaction or passivity as opposed to the liability in Smullen. 1

Unfortunately, tragedies such as this case do occur somewhat frequently at
facilities such as Little Rising Stars but do not, with perhaps very rare exceptions,
subject a municipality to liability for negligent failure to perform its duties to
monitor and ensure the safety of daycare centers. Absent a special duty, a city
official is immune from liability based on their negligent performance of
governmental actions, including supervising the safety of daycare centers (see
McLean v City ofNew York, 12 NY3d 194 [2009]). As set forth above, there is no
basis for imposing a special relationship in this case. There are no alleged
· promises or actions by which the City assumed a duty to do something on the
plaintiffs' or their child's behalf. The City's duty to the plaintiffs was neither more
nor less than its duty to any other parent and child in need of day care. There is ilo
allegation of any direct contact of any kind between the City and the plaintiffs
prior to the accident. Even if the court assumes that the complaint sufficiently
asserts that the City acted negligently, the court cannot impose liability for
negligent supervision absent facts neither pied nor alluded to in the complaint. The
governing law requires dismissal.

The motion to dismiss is granted and the complaint is hereby dismissed.

1
Garrett is similarly unavailing and if anything, supports dismissal. In Garrett, the owners of a motel at
which a fire occurred were arguing that the municipality's issuance of a certificate of occupancy created a
special duty to them so as to support a claim for contribution. The issuance of the certificate was known
to the owner of the hotel and arguably relied upon by him in allowing guests to occupy his hotel in spite
of the allegedly dangerous conditions. Here, the plaintiffs were not operating the daycare center and have
acknowledged that no City employee directly provided them with any assurances or information about the
center on which they could have relied. Again, mere inaction or passivity, as opposed to affrrmative
assurances, is not sufficient to create a special relationship or duty. Indeed, as noted by the Court of
Appeals in Garrett, the Fourth Department had previously dismissed a complaint brought by the widower
of a motel guest killed in the fire because the plaintiff had alleged no more than a violation of a duty owed
by the town to the public at large." (Garrett, 58 N.Y.2d at 257).
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9954292. Public record. Not legal advice.