State of New York
Supreme Court : County of Monroe

- against -

Index No. 2002/6613

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

These are two motions to dismiss brought by the City of Rochester and the Humane Society in an action by a meter reader who was attacked by pit bulls while attempting to read a meter in the city. The plaintiff contends in his papers that the Humane Society was providing animal control services to the city when he was attacked. In fact, the Society's contract with the City had expired seven months before. Although the Society's attorney covers all the applicable law in admirable detail, this fact alone, which is not contested by the plaintiff, would mandate dismissal.

Had it been necessary to reach this point the law which governs the city's liability would also mandate dismissal on behalf of the Humane Society. That is the fundamental principle that no tort liability against a government body arises out of duties owed to the public at large. The plaintiff would have to show that a special duty existed between either the City or the Humane Society on the one hand and the plaintiff on the other. He has failed to do this. It is clear that, in this case, there was no special duty either imposed or assumed. The plaintiff received no special assurances from the city , he made no reports of animals at the house, and no contractual relationship between his employer and the city gave rise to a special relationship. In addition, it appears that the plaintiff had a hand held computer available with which he could check for the presence of dangerous animals at a given address. He chose not to do this because it would take extra time.

Against this reasoning the plaintiff makes two counter-arguments. The first is that the investigation and/or removal of dangerous animals is a ministerial instead of discretionary governmental activity. He cites a number of cases holding that government officers lose their immunity if they fail in a ministerial activity, though not if they were acting in a discretionary capacity. However, the loss of immunity is of no account if there is no underlying tort duty. Since a duty owed to the general public gives rise to no liability whatsoever, whether a breach of that duty can be considered a ministerial or discretionary failure is irrelevant.

The plaintiff's other argument is that he requires further discovery to determine if a special duty exists. In a discussion of summary judgment principles, this court has stated:

[S]ummary judgment will be denied where there are essential facts within the exclusive knowledge of the moving party which might be disclosed by an examination before trial.

The courts have created a three-pronged test for these cases:

(1) There must be a "likelihood" that there is relevant evidence "predominantly if not exclusively" within movant's knowledge

(2) There must be a showing of how discovery might reveal the existence and content of such evidence

(3) There must be a showing of a reasonable attempt prior to the motion to obtain the discovery now deemed necessary (citations omitted).

Furthermore, whether or not defendants "might have made commitments or had a special relationship with plaintiff's employer" is entirely speculative. The fact that this City includes in its answer a possible claim over or contributory cause of action against Rochester Gas & Electric does not indicate that there is any such agreement. Finally , the contractual requirement that plaintiff's employer protect persons such as the plaintiff does not give rise to any suspicion of a special relationship between the city and the employer. In short, plaintiff wants to delay the summary judgment motion in order to conduct a fishing expedition, an improper ground (see, e.g., Prado v Bowne & Sons, 207 AD2d 875, 876; Williams v Village of Endicott, 202 AD2d 885, 886).

The defendants are entitled to an order dismissing the complaint, with costs. The Humane Society's motion to strike an exhibit of 50-h transcript excepts that were purportedly highlighted in an inflammatory way is moot. Mr. Campolieto may prepare the order DATED: Rochester, New York

October 23, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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