Rosario v. Town of Mount Kisco
Docket 2021-00965
Court of record · Indexed in NoticeRegistry archive · AI-enriched for research
- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02685
- Docket
- 2021-00965
Appeal from an order granting defendants' CPLR 3211(a)(7) motion to dismiss the complaint insofar as asserted against them in a wrongful death action
Summary
The Appellate Division, Second Department affirmed the Supreme Court's dismissal of Rosario's wrongful-death, fraud, and civil-conspiracy claims against the Town and Village of Mount Kisco. The plaintiff alleged the municipality failed to enforce housing regulations after her adult son died in a basement fire in an illegally converted apartment. The court held the complaint did not plead a special relationship between the municipality and decedent, did not identify a private right of action under the cited statutes, and failed to allege facts showing voluntary assumption of duty, affirmative control, justifiable reliance, or municipal participation in fraud or a conspiracy.
Issues Decided
- Whether the complaint sufficiently alleged a special relationship between the municipality and the decedent to impose municipal tort liability for failure to enforce housing regulations
- Whether the statutes and regulations relied on by the plaintiff create a private right of action against the municipality
- Whether the complaint adequately pleaded that the municipality voluntarily assumed a duty or exercised affirmative control creating justifiable reliance
- Whether the complaint plausibly alleged fraud or municipal participation in a civil conspiracy to commit fraud
Court's Reasoning
New York law requires a special relationship or a private right of action to impose liability on a municipality for failure to enforce laws; the complaint only alleged general regulatory duties owed to the public. The plaintiff's allegations were legal conclusions without sufficient factual detail to show statutory authorization for a private suit, voluntary assumption of duty with justifiable reliance, or that the municipality assumed control in the face of a known dangerous condition. Likewise, the pleadings did not contain the factual specificity needed to state fraud or municipal participation in a fraud-based conspiracy, so dismissal under CPLR 3211(a)(7) was proper.
Authorities Cited
- O'Connor v City of New York58 NY2d 184
- Pelaez v Seide2 NY3d 186
- Leon v Martinez84 NY2d 83
- Godfrey v Spano13 NY3d 358
Parties
- Appellant
- Ramona J. Rosario
- Respondent
- Town of Mount Kisco
- Respondent
- Village of Mount Kisco
- Judge
- Valerie Brathwaite Nelson, J.P.
- Judge
- William G. Ford, J.
- Judge
- Lillian Wan, J.
- Judge
- Laurence L. Love, J.
Key Dates
- Decision date
- 2026-04-29
- Supreme Court order date
- 2021-01-04
What You Should Do Next
- 1
Consult appellate counsel about further review
If the plaintiff wishes to pursue the municipal claims further, she should consult counsel about seeking permission to appeal to the Court of Appeals or identifying any preserved issues suitable for further review.
- 2
Evaluate claims against other defendants
Review the status of any remaining claims or defendants in the trial court and consider motions or discovery to strengthen theories not involving the municipality.
- 3
Consider amendment only if facts support it
If additional factual evidence exists suggesting a private right of action, voluntary assumption of duty, or municipal control, consider moving to replead with specific supporting facts and documentary proof.
Frequently Asked Questions
- What did the court decide?
- The appellate court affirmed dismissal of the claims against the Town and Village of Mount Kisco because the complaint failed to allege a special relationship or a private right of action and lacked sufficient factual detail to show voluntary assumption of duty, control, fraud, or conspiracy.
- Who is affected by this decision?
- The decision affects the plaintiff (the decedent's mother/administrator) and the Town and Village of Mount Kisco; it means the municipal defendants are no longer liable on the pleaded theories in this case.
- What happens next in the case?
- The decision affirms dismissal of the claims against the municipal defendants; other defendants or claims (if any) may continue in the court below, and the plaintiff may consider other procedural options.
- Why were the fraud and conspiracy claims dismissed?
- Because the complaint did not include the factual specificity required to plausibly plead fraud or to show municipal participation in a conspiracy, the court held those claims were insufficient.
- Can this decision be appealed again?
- A further appeal to the Court of Appeals may be possible by permission, but the decision as an intermediate appellate ruling is final unless a higher court accepts review.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Rosario v Town of Mount Kisco - 2026 NY Slip Op 02685 Rosario v Town of Mount Kisco 2026 NY Slip Op 02685 April 29, 2026 Appellate Division, Second Department Ramona J. Rosario, etc., appellant, v Town of Mount Kisco, et al., respondents, et al., defendants. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on April 29, 2026 2021-00965, (Index No. 54017/20) Valerie Brathwaite Nelson, J.P. William G. Ford Lillian Wan Laurence L. Love, JJ. Harriton & Furrer, LLP, Armonk, NY (Kimberly A. Sanford of counsel), for appellant. Morris Duffy Alonso Faley & Pitcoff, New York, NY (Iryna S. Krauchanka and Kevin G. Faley of counsel), for respondents. DECISION & ORDER In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated January 4, 2021. The order granted the motion of the defendants Town of Mount Kisco and Village of Mount Kisco pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them. ORDERED that the order is affirmed, with costs. In January 2016, the plaintiff's adult son (hereinafter the decedent) died in a fire in a rented basement apartment that, among other deficiencies, lacked an emergency exit, smoke detectors, or a building permit for the basement's conversion to an apartment. The plaintiff, individually and as the administrator of the decedent's estate, commenced this action against, among others, the Town of Mount Kisco and the Village of Mount Kisco (hereinafter together Mount Kisco), asserting causes of action, inter alia, to recover damages for wrongful death, fraud, and civil conspiracy to commit fraud. The complaint alleged, among other things, that Mount Kisco negligently failed to enforce applicable housing regulations. Mount Kisco moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them. The Supreme Court granted Mount Kisco's motion. The plaintiff appeals. On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must "accept the facts as alleged in a complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88; see Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d 137, 141). Nonetheless, allegations "consisting of bare legal conclusions with no factual specificity . . . are insufficient to survive a motion to dismiss" ( Godfrey v Spano , 13 NY3d 358, 373; see Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d at 141). "[I]t has long been the rule in this State that, in the absence of some special relationship creating a duty to exercise care for the benefit of particular individuals, liability may not be imposed on a municipality for failure to enforce a statute or regulation" ( O'Connor v City of New York , 58 NY2d 184, 192; see Metz v State of New York , 20 NY3d 175, 180). "The core principle is that to sustain liability against a municipality, the duty breached must be more than that owed the public generally" ( Applewhite v Accuhealth, Inc. , 21 NY3d 420, 426 [internal quotation marks omitted]). "A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation" ( Pelaez v Seide , 2 NY3d 186, 199-200; see Applewhite v Accuhealth, Inc. , 21 NY3d at 426). "To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action" ( Pelaez v Seide , 2 NY3d at 200). Here, the plaintiff's bare legal conclusions fail to sufficiently establish a private right of action under any of the relied upon statutes or regulations. Nor has she provided any authority that would support a finding of a private right of action ( see O'Connor v City of New York , 58 NY2d at 189-192; WMC Realty Corp. v City of Yonkers , 193 AD3d 1018, 1021; Ferreira v Cellco Partnership , 111 AD3d 777, 779). Further, the plaintiff has not alleged sufficient facts that would establish that Mount Kisco voluntarily assumed a duty that generated justifiable reliance by the plaintiff or the decedent or that Mount Kisco assumed positive direction and control in the face of a known blatant and dangerous safety violation ( see Cockburn v City of New York , 129 AD3d 895, 897; Ferreira v Cellco Partnership , 111 AD3d at 779-780). Accordingly, the facts alleged by the plaintiff do not constitute the "special relationship" necessary to maintain a negligence cause of action against Mount Kisco. In addition, neither the allegations in the complaint nor the surrounding circumstances are sufficient to allege a fraud by Mount Kisco ( see generally Eurycleia Partners, LP v Seward & Kissel, LLP , 12 NY3d 553, 559) or that Mount Kisco participated in a conspiracy with respect to a fraud committed by others ( see Mohammad v Rehman , 236 AD3d 892, 894; B & H Flooring, LLC v Folger , 228 AD3d 809, 812). In light of our determination, we need not reach the parties' remaining contentions. BRATHWAITE NELSON, J.P., FORD, WAN and LOVE, JJ., concur. ENTER: Darrell M. Joseph