You are here: / / THE BUILDING AND FIRE CODES DID NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST...
, ,

THE BUILDING AND FIRE CODES DID NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST THE CITY TO CONTEST THE ANNUAL INSPECTION FEES; A NEGLIGENCE ACTION AGAINST A MUNICIPALITY BASED UPON A STATUTORY DUTY WILL NOT FLY UNLESS THE STATUTE PROVIDES A PRIVATE RIGHT OF ACTION; A PRE-ANSWER MOTION TO DISMISS A REQUEST FOR A DECLARATORY JUDGMENT MUST BE DENIED IF IT SETS FORTH A CAUSE OF ACTION, THE MERITS OF THE REQUEST CANNOT BE CONSIDERED (SECOND DEPT).

The Second Department determined the putative class action suit by two realty companies alleging the city charges annual fire and building code inspection fees but does not do the inspections was properly dismissed, with the exception of the request for a declaratory judgment. The suit alleged breach of contract, breach of fiduciary duty and negligence, and requested a declaratory judgment finding the fee violates the NYS Constitution. The Second Department held that the fire and building codes do not give rise to a private right of action. With respect to municipal liability for negligence and the request for a declaratory judgment, the court wrote:

To sustain liability against a municipality engaged in a governmental function, “the duty breached must be more than that owed the public generally” … . The Court of Appeals has recognized that a special duty can arise “when the municipality violates a statutory duty enacted for the benefit of a particular class of persons” … . “To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action” … [N]either the Uniform Code nor the Yonkers Fire Code gives rise to a private right of action. * * *

… [T]he Supreme Court should have denied that branch of the defendants’ motion which was to dismiss the sixth cause of action, which sought a declaration, inter alia, that the inspection fees were invalid as an unconstitutional tax. “‘A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable [disposition]'” … . WMC Realty Corp. v City of Yonkers, 2021 NY Slip Op 02440, Second Dept 4-21-21

 

You might also like
FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
Criteria for Vacation of a Stipulation of Settlement Not Met
QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.
AWARDING WIFE A DISTRIBUTIVE SHARE OF HUSBAND’S MEDICAL PRACTICE AND DETERMINING HUSBAND’S MAINTENANCE OBLIGATION BASED UPON INCOME FROM THE PRACTICE DID NOT CONSTITUTE DOUBLE-COUNTING.
THE PETITIONERS DEMONSTRATED THAT THE OPERATION OF A CONCRETE PLANT WOULD CAUSE INJURIES TO THEM DIFFERENT FROM THOSE SUFFERED BY THE PUBLIC AT LARGE; SUPREME COURT SHOULD NOT HAVE DETERMINED PETITIONERS DID NOT HAVE STANDING TO CONTEST THE RENOVATION AND OPERATION OF THE PLANT (SECOND DEPT).
Evidence of Mother’s Mental Illness, Without More, Did Not Justify Neglect Finding
Assault by Another Student—Question Whether School District Had Notice of Dangerous Conduct Precluded Summary Judgment to Plaintiff
ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS MAINTENANCE-ARREARS ACTION SHOULD NOT HAVE BEEN AWARDED WITHOUT AN EVIDENTIARY HEARING (SECOND DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE PROPERTY OWNERS DID NOT HAVE NOTICE OF THE ALLEGED DEFECT IN THE STOVE IN... DEFENSE COUNSEL EXPLAINED HIS STRATEGIES BEHIND WAIVING THE HUNTLEY HEARING...