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

65
CA 16-01212
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.


ERINN BARSKI, DAVID BARSKI AND BARSKI’S XTREME
LAZER TAG, LLC, PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

TOWN OF AURELIUS, DEFENDANT-RESPONDENT.


CAMARDO LAW FIRM, P.C., AUBURN (JUSTIN T. HUFFMAN OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

MACKENZIE HUGHES LLP, SYRACUSE (W. BRADLEY HUNT OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Cayuga County (Mark H.
Fandrich, A.J.), entered September 9, 2015. The order granted
defendant’s motion to dismiss plaintiffs’ amended complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying defendant’s motion in part
and reinstating the first cause of action and as modified the order is
affirmed without costs.

     Memorandum: The individual plaintiffs, the owners of plaintiff
Barski’s Xtreme Lazer Tag, LLC, entered into a lease with the Finger
Lakes Mall, located in defendant, Town of Aurelius. Plaintiffs
applied for a building permit to enable them to renovate the leased
premises, submitting the necessary documentation and plans. Defendant
issued the building permit to plaintiffs and, upon completion of the
renovations, plaintiffs received a certificate of occupancy. They
opened the business in December 2013, but defendant revoked the
certificate of occupancy the following month, alleging that a
different fire protection system than had been previously approved was
required. The new fire protection system was cost-prohibitive, and
plaintiffs had to close the business. Plaintiffs commenced this
action alleging, inter alia, causes of action for negligent
misrepresentation and violation of their procedural due process
rights. Supreme Court granted defendant’s motion to dismiss the
amended complaint pursuant to CPLR 3211, and plaintiffs appeal. We
note at the outset that plaintiffs on appeal do not challenge the
dismissal of their second cause of action and are therefore deemed to
have abandoned that cause of action (see Ciesinski v Town of Aurora,
202 AD2d 984, 984). We agree with plaintiffs that the court erred in
granting that part of the motion with respect to one of the two
remaining causes of action, and we therefore modify the order
                                 -2-                            65
                                                         CA 16-01212

accordingly.

     “On a motion to dismiss pursuant to CPLR 3211, the pleading is to
be afforded a liberal construction . . . We accept the facts as
alleged in the 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). The “criterion [on a CPLR 3211 motion]
is whether the proponent of the pleading has a cause of action, not
whether he [or she] has stated one” (Ramos v Hughes, 109 AD3d 1121,
1122 [internal quotation marks omitted]). Affording the allegations
in the amended complaint every possible favorable inference (see
Palladino v CNY Centro, Inc., 70 AD3d 1450, 1451), we conclude that
plaintiffs have alleged a cause of action for negligent
misrepresentation, and they correctly acknowledged that liability may
not be imposed without the existence of a special relationship (see
generally Okie v Village of Hamburg, 196 AD2d 228, 232). We further
agree with plaintiffs that the doctrine of exhaustion of
administrative remedies has no application here inasmuch as plaintiffs
are seeking money damages in this action based on defendant’s alleged
negligent misrepresentation (see Matter of Stein v Board of Educ. of
City of N.Y., 87 AD2d 514, 514).

     Finally, we reject plaintiffs’ contention that the court erred in
dismissing their remaining cause of action inasmuch as plaintiffs
failed to state a viable procedural due process cause of action (see
Fike v Town of Webster, 11 AD3d 888, 889-890).




Entered:   February 10, 2017                    Frances E. Cafarell
                                                Clerk of the Court
