A police officer whose employment records and family memorabilia were accidentally carted off after Tropical Storm Irene cannot hold a local municipality liable, a Brooklyn appellate court said.
Rockland County resident David Katz followed advisories to evacuate as the storm approached the area in August 2011. When he returned to his Clarkstown home, he put family items and his awards and records as an officer in the driveway to air out. A town official told him bulk garbage pick-up would start in about a week.
But within days, the town started pick-ups and the items Katz had put in his driveway had been removed, except for a generator.
Katz sued the town, several agencies and officials for injury to property and negligent infliction of emotional distress.
In April 2013, Rockland County Supreme Court Justice Robert Berliner (See Profile) dismissed the suit. The Appellate Division, Second Department, affirmed in an unsigned decision in Katz v. Town of Clarkstown, 2013-06366, released Aug. 20.
The panel said municipalities can be held liable for negligence in the performance of ministerial acts, such as garbage collection, if there was a “special relationship” between the plaintiff and defendant. Special relationship showings require elements such as a municipality’s assumption “through promises or actions, of an affirmative duty to act” on the injured party’s behalf.
Here, “no facts were alleged indicating that the defendants undertook an affirmative duty to act on behalf of the plaintiff,” said the panel, which included Justices Thomas Dickerson (See Profile), John Leventhal (See Profile), Jeffrey Cohen (See Profile) and Sylvia Hinds-Radix (See Profile).
Brian Condon, Laura Catina, and Amy Witkowski of Condon & Associates in Nanuet represented Katz.
Edward Frey of Joseph A. Maria, P.C. in White Plains represented the town.