Board of Education v. Nationwise Exterminating & Deodorizing, Inc.

Appellate Division of the Supreme Court of New York

Board of Education v. Nationwise Exterminating & Deodorizing, Inc.

216 A.D.2d 263, 627 N.Y.S.2d 768, 1995 N.Y. App. Div. LEXIS 5992

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 5, 1995

StatusPublished

This text of 216 A.D.2d 263 (Board of Education v. Nationwise Exterminating & Deodorizing, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Board of Education v. Nationwise Exterminating & Deodorizing, Inc., 216 A.D.2d 263, 627 N.Y.S.2d 768, 1995 N.Y. App. Div. LEXIS 5992 (N.Y. Ct. App. 1995).

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Opinion

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered March 18, 1994, which granted the motion of the defendant County of Westchester to dismiss the complaint insofar as it is asserted against it for failure to state a cause of action.

Ordered that the order is affirmed, with costs.

The defendant Nationwise Exterminating and Deodorizing, Inc. (hereinafter Nationwise) allegedly misapplied pesticide chemicals at the plaintiffs high school which led to the illness of the students and faculty. Thereafter, the defendant County of Westchester closed the school, and directed and supervised the cleanup of the chemicals. The plaintiff subsequently brought an action to recover damages grounded in negligence against the County and Nationwise.

The Supreme Court properly granted the County’s motion to dismiss the complaint against it. While the complaint alleges that the County took action to clean up the chemicals in order to preserve and protect the public health, that allegation does not demonstrate a "special relationship” between the plaintiff and the County necessary to overcome the County’s sovereign immunity from claims of negligence (see, Cuffy v City of New York, 69 NY2d 255; Miller v State of New York, 62 NY2d 506; Isaksson v Rulffes, 135 AD2d 611). Similarly, the complaint fails to state causes of action for indemnification and restitution against the County. The actual wrongdoer is the defendant Nationwise which allegedly misapplied the chemicals, and the plaintiff should pursue the foregoing causes of action against it (see, Trustees of Columbia Univ. v Mitchell/ Giurgola Assocs., 109 AD2d 449; City of New York v Keene Corp., 132 [264]*264Misc 2d 745, affd 129 AD2d 1019). Balletta, J. P., Thompson, Santucci, Altman and Hart, JJ., concur.

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In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered March 18, 1994, which granted the motion of the defendant County of Westchester to dismiss the complaint insofar as it is asserted against it for failure to state a cause of action.

Ordered that the order is affirmed, with costs.

The defendant Nationwise Exterminating and Deodorizing, Inc. (hereinafter Nationwise) allegedly misapplied pesticide chemicals at the plaintiffs high school which led to the illness of the students and faculty. Thereafter, the defendant County of Westchester closed the school, and directed and supervised the cleanup of the chemicals. The plaintiff subsequently brought an action to recover damages grounded in negligence against the County and Nationwise.

The Supreme Court properly granted the County’s motion to dismiss the complaint against it. While the complaint alleges that the County took action to clean up the chemicals in order to preserve and protect the public health, that allegation does not demonstrate a "special relationship” between the plaintiff and the County necessary to overcome the County’s sovereign immunity from claims of negligence (see, Cuffy v City of New York, 69 NY2d 255; Miller v State of New York, 62 NY2d 506; Isaksson v Rulffes, 135 AD2d 611). Similarly, the complaint fails to state causes of action for indemnification and restitution against the County. The actual wrongdoer is the defendant Nationwise which allegedly misapplied the chemicals, and the plaintiff should pursue the foregoing causes of action against it (see, Trustees of Columbia Univ. v Mitchell/ Giurgola Assocs., 109 AD2d 449; City of New York v Keene Corp., 132 [264]*264Misc 2d 745, affd 129 AD2d 1019). Balletta, J. P., Thompson, Santucci, Altman and Hart, JJ., concur.

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Bluebook (online)

216 A.D.2d 263, 627 N.Y.S.2d 768, 1995 N.Y. App. Div. LEXIS 5992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-education-v-nationwise-exterminating-deodorizing-inc-nyappdiv-1995.

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