Rodriguez v. City of New York

Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered May 13, 2003, after a jury trial, finding the municipal defendants collectively 30% at fault and the Realty and Lenox Family Center defendants collectively 70% at fault, and awarding the infant plaintiff damages in the amount of $40,000 for past medical expenses, $110,000 for future medical expenses, $500,000 for future pain and suffering, and nothing for past pain and suffering, reversed, on the law, without costs, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

We dismiss plaintiffs’ claims against the municipal defendant because the provision of temporary housing for homeless families is a governmental function mandated by the State Constitution for the benefit of the general public, with no statute conferring a private right of action upon individuals receiving government assistance (see Biro v Department of Social Servs./ Human Resources Admin., 1 AD3d 302 [2003]). Moreover, plaintiffs neither pleaded nor demonstrated the existence of the “special relationship” exception to the general rule of municipal immunity from tort liability, which, in a narrowly defined class of cases, imputes a governmental duty to an individual (see Pelaez v Seide, 2 NY3d 186, 198-199 [2004]).

In addition, the Lenox Family Center’s failure to provide a cover for the subject cast iron radiator did not constitute actionable negligence (Bernstorff v Title Guar. & Trust Co., 269 App Div 708 [1945]). There was no evidence that this radiator was malfunctioning or that it was improperly installed. Further, the Building Code does not require covering for this type of radiator. Accordingly, the injuries suffered by the infant plaintiff did not result from any alleged breach of the duty to maintain the apartment in a reasonably safe condition (see Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 643 [1996]). They were instead the unfortunate result of a number of circumstances which were unforeseeable to the landlord (Sanchez v Biordi, 259 AD2d 434 [1999], lv denied 94 NY2d 754 [1999]). Concur—Mazzarelli, J.E, Friedman, Sullivan and Williams, JJ.