Boyle v. Tuthill , 538 N.Y.S.2d 451 ( 1989 )

— In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), entered September 21, 1987, which granted the motion of the defendant Town of Southold to dismiss the amended complaint as against it.

Ordered that the order is modified, on the law, by deleting the provision granting the branches of the town’s motion which were to dismiss the second, third, fourth, fifth and seventh causes of action, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

Initially, we note that on appeal, the plaintiff implicitly concedes that the sixth cause of action, which is based upon the existence of a purported special relationship between the town and himself, cannot survive the motion to dismiss as the allegations contained in the complaint are insufficient to sustain the existence of such a special relationship.

With respect to the remaining causes of action asserted against the town, the allegations contained in the complaint with regard to the breach of the duty of care, if any, owed to the plaintiff by the town are sufficient to withstand the dismissal motion (see, Benjamin v City of New York, 64 NY2d 44; Caldwell v Village of Is. Park, 304 NY 268; Cimino v Town of Hempstead, 110 AD2d 805, affd 66 NY2d 709). Brown, J. P., Lawrence, Eiber and Harwood, JJ., concur.