On April 19, 2018, the Appellate Division, Third Department, issued a decision denying a motion to dismiss on governmental immunity grounds in favor of the parties represented by Couch White Attorneys Joel Howard, Adam Schultz and Alita Giuda. In 2016, Plaintiffs Normanskill Creek, LLC and 165 Salisbury Road, LLC (“Normanside”) filed a Complaint seeking damages for negligence and property damage against the Town of Bethlehem in relation to a landslide that occurred at Plaintiffs’ property. The Complaint set forth the details of the Town’s failure to require a permit regulating the placement of fill at the property, despite the Town’s knowledge of the fill placement and indeed, despite the Town sending third parties to Plaintiffs’ property to dispose of fill. Additionally, the Town cut substantial corners on the fill permit process, assuring Normanside that it was safe to place fill on the landslide, while the Town also had knowledge of the likelihood of landslides in that location.
The Town of Bethlehem filed a motion to dismiss on governmental immunity grounds, arguing that there was a bar to recovery due to the discretionary nature of the decision-making involved, as well as a failure to demonstrate the existence of a special relationship. The Supreme Court, Albany County, rejected this argument. In its April 19, 2018 decision, the Third Department affirmed. The Court detailed the governing rules, and found that the complaint “alleges the existence of a special relationship between the parties” preventing dismissal. Id. at 2-3. The Court found that the allegations, if proven true, were “sufficient to establish that [the Town] voluntarily assumed a duty to plaintiffs,” and that the Town “assumed positive direction and control in the face of a known, blatant and dangerous safety violation,” either of which constitute a “special relationship.” Id. at 4. The Court also rejected the Town’s claim that a discretionary action was present in this action that required dismissal on governmental immunity grounds. Instead, the Court held that the Complaint sufficiently alleged that the Town’s own failure to require sufficient permitting documentation precluded the Town from having the authority to make a discretionary determination in the first place. On this basis, the Third Department affirmed the denial of the Town’s motion to dismiss.