Tishman v. Himmel + Meringoff Props., LLC ( 2023 )

Tishman v Himmel + Meringoff Props., LLC (2023 NY Slip Op 06106)

Tishman v Himmel + Meringoff Props., LLC

2023 NY Slip Op 06106

Decided on November 28, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 28, 2023
Before: Manzanet-Daniels, J.P., Friedman, González, Pitt-Burke, Higgitt, JJ.

Index No. 506714/15 Appeal No. 1117 Case No. 2022-05268

[*1]Steven Tishman, as Executor of the Estate of Erica Tishman, and Steven Tishman, Individually, Plaintiff-Appellant,

v

Himmel + Meringoff Properties, LLC et al., Defendants, The City of New York, Defendant-Respondent.

Morelli Law Firm PLLC, New York (Sara A. Mahoney of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Deborah A. Brenner of counsel), for respondent.

Order, Supreme Court, New York (Judy H. Kim, J.), entered November 3, 2022, which granted defendant City of New York's motion to dismiss the complaint as against it, unanimously affirmed, without costs.

Plaintiff failed to plead facts to support a claim that the City owed plaintiff's decedent a special duty (Ferreira v City of Binghamton, 38 NY3d 298 [2022]). The sections of the Administrative Code that plaintiff alleges were violated by the City were designed to protect the general public and not a special class to which plaintiff belonged (see Worth Distribs. v Latham, 59 NY2d 231, 237 [1983]; see also O'Connor v City of New York, 58 NY2d 184; Gibbs v Paine, 280 AD2d 517 [1st Dept 2001], lv denied 96 NY2d 714 [2001]). Nor is the fact that the City allegedly reduced the class of violation issued to the building at an OATH hearing sufficient to support a claim that the City assumed direction and control (compare Ferreira, 38 NY3d 298; Smullen v City of New York, 28 NY2d 66 [1971]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 28, 2023