Johns v. Village of Potsdam
Opinion of the Court
— Appeals from an order and judgment of the Supreme Court at Special Term (Shea, J.), entered December 10, 1981 in St. Lawrence County, which granted defendant Village of Potsdam’s motion to dismiss plaintiffs’ complaint as against it and dismissed defendant Cassara’s cross claim. On October 17,1980 plaintiffs sustained personal injuries when a porch or balcony outside a third floor apartment located in a building owned by defendant Cassara collapsed, throwing plaintiffs 30 feet to the street below. Personal injury actions were commenced against both Cassara and the Village of Potsdam. Defendant Cassara cross-claimed against the village, alleging that any injury sustained by plaintiffs was the result of the village’s negligence. Thereafter, defendant village moved to dismiss the complaint and cross claim on the ground that they failed to state a cause of action (CPLR 3211, subd [a], par 7) or, alternatively, for summary judgment (CPLR 3211, subd [c]). Plaintiffs cross-moved for discovery against defendant village (CPLR 3101). Special Term granted the village’s motion and denied plaintiffs’ cross motion. These appeals by plaintiffs and defendant Cassara ensued. We conclude that Special Term was correct in dismissing for failure to state a cause of action those portions of the complaint alleging negligence by the village in failing to enforce State and local statutes or to inspect as required by such laws. As in the case of an individual or private corporation, a municipality’s liability must be premised upon the existence and breach of a duty flowing from the municipality to the plaintiff (Motyka v City of Amsterdam, 15 NY2d 134). Moreover, the duty breached must be more than a duty owing to the general public. There must exist a special relationship between the municipality and the plaintiff, resulting in the creation of a duty to use care for the benefit of a particular person or class of persons (Florence v Goldberg, 44 NY2d 189, 195). These legal principles speak directly to the issue of municipal duty posited by plaintiffs’ complaint allegation, i.e., that the enactment of an Unsafe Building Law by defendant village (Local Laws, 1971, No. 2 of Village of Potsdam) created a special relationship such that a duty was owed by the village to plaintiffs which was breached, and constrain us to resolve that issue in favor of the village. Support for this holding is the case of Mahoney v Town of Santa Clara (89 AD2d 718, affd 58 NY2d 661), wherein it was held (p 719) that local ordinances relating to structures which are “deemed to be unsafe or dangerous to the public” do no more than provide general public safety protection. Here, the local law was enacted in regard to structures which “may now be or shall hereafter become dangerous or unsafe to the public” (emphasis added) (Local Laws, 1971, No. 2 of Village of Potsdam, § 2). Clearly, such language fails to create any duty, based upon a special relationship, running from defendant village to plaintiffs (see, also, Gordon v Holt, 65 AD2d 344, mot for Iv to opp
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