        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

765
CA 14-01555
PRESENT: WHALEN, P.J., SMITH, NEMOYER, CURRAN, AND SCUDDER, JJ.


WALTER F. REYNOLDS, III, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

WILLIAM KREBS, INDIVIDUALLY AND AS MAYOR OF
VILLAGE OF SPRINGVILLE, AND VILLAGE OF
SPRINGVILLE, DEFENDANTS-RESPONDENTS.


THE LAW OFFICE OF PARKER R. MACKAY, KENMORE (PARKER R. MACKAY OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

HURWITZ & FINE, P.C., BUFFALO (MICHAEL F. PERLEY OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Shirley
Troutman, J.), entered May 5, 2014. The order dismissed the complaint
upon defendants’ motion.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In a prior appeal (Reynolds v Krebs, 81 AD3d 1269),
we concluded that Supreme Court erred in granting that part of
defendants’ motion for summary judgment dismissing plaintiff’s cause
of action alleging that defendants were negligent, inter alia, in
ordering the demolition of a building owned by plaintiff. The court
thereafter granted defendants’ motion for leave to amend their answer
to add the affirmative defense of governmental immunity, and upon
defendants’ subsequent motion, granted defendants summary judgment
dismissing the complaint based on that defense (see CPLR 5501 [a] [1];
Oakes v Patel, 20 NY3d 633, 644-645). Plaintiff’s contention that the
court erred in granting defendants’ motion for leave to amend their
answer is brought up for our review on his appeal from the order
granting defendants summary judgment dismissing the complaint.

     Plaintiff contends that defendants are barred by the doctrine of
judicial estoppel from raising the affirmative defense of governmental
immunity because they allegedly asserted in a prior federal action
that an adequate postdeprivation remedy was available in a state court
action (Reynolds v Krebs, 336 Fed Appx 27 [2nd Cir 2009]). “ ‘The
doctrine of judicial estoppel provides that where a party assumes a
position in a legal proceeding and succeeds in maintaining that
position, that party may not subsequently assume a contrary position
because [the party’s] interests have changed’ ” (Popadyn v Clark
                                 -2-                           765
                                                         CA 14-01555

Constr. & Prop. Maintenance Servs., Inc., 49 AD3d 1335, 1336). Here,
however, defendants did not allege as a basis for summary judgment in
the federal action that a negligence action would provide an adequate
remedy but, instead, argued that there was no dispute that there was
an adequate remedy in state court (Reynolds, 336 Fed Appx at 29).
Thus, we conclude that the court did not abuse its discretion in
granting defendants’ motion for leave to amend their answer to allege
as an affirmative defense that the determination to demolish
plaintiff’s building was protected by the doctrine of governmental
immunity (see generally Carro v Lyons Falls Pulp & Paper, Inc., 56
AD3d 1276, 1277).

     We reject plaintiff’s further contention that the court erred in
granting summary judgment dismissing the complaint. It is well
established that “an agency of government is not liable for the
negligent performance of a governmental function unless there existed
‘a special duty to the injured person, in contrast to a general duty
owed to the public.’ Such a duty . . . — ‘a duty to exercise
reasonable care toward the plaintiff’— is ‘born of a special
relationship between the plaintiff and the governmental entity’ ”
(McLean v City of New York, 12 NY3d 194, 199; see Bower v City of
Lockport, 115 AD3d 1201, 1202-1203, lv denied 24 NY3d 905).
Defendants established their entitlement to summary judgment
dismissing the complaint on the ground that they did not owe a special
duty to plaintiff (see Valdez v City of New York, 18 NY3d 69, 75;
Bower, 115 AD3d at 1202-1203), but instead acted under their police
power to protect the general public. In opposition to defendants’
motion, plaintiff failed to raise an issue of fact that defendants
owed him a special duty (see generally Zuckerman v City of New York,
49 NY2d 557, 562), and indeed, failed even to allege that defendants
owed him a special duty (cf. Bower, 115 AD3d at 1203).

     We further conclude, in any event, that defendants are also
entitled to summary judgment based on the defense of governmental
function immunity (see Bower, 115 AD3d at 1203). “That defense
‘shield[s] public entities from liability for discretionary actions
taken during the performance of governmental functions’ ” (id.,
quoting Valdez, 18 NY3d at 76; see Haddock v City of New York, 75 NY2d
478, 484). Here, section 77-11 of the Code of the Village of
Springville affords the mayor the discretion to demolish a building in
an emergency situation.




Entered:   October 7, 2016                      Frances E. Cafarell
                                                Clerk of the Court
