Introduction

Kitt v. Incorporated Village of Babylon addresses two recurring and consequential themes in New York municipal liability practice:

• When and how a trial court may convert a motion to dismiss under CPLR 3211(a)(7) into a motion for summary judgment under CPLR 3211(c), and
• What factual allegations suffice at the pleading stage to establish a “special duty” owed by a municipality performing a governmental function, particularly in the context of building code enforcement and permitting.

The plaintiff, Austin Kitt, purchased a home in Babylon “as is,” later alleging that Village officials—including the Building Department and an official, Stephen Fellman—met with him and his team, inspected the property’s foundation, affirmatively advised that it was safe to proceed, and issued permits despite knowing the foundation needed replacement. After renovations commenced, the foundation allegedly had to be replaced, resulting in substantial damages.

Kitt sued the Village defendants for negligence, gross negligence, and harassment. The Supreme Court (Suffolk County) effectively converted the Village defendants’ CPLR 3211(a)(7) motion to dismiss into a motion for summary judgment and granted it in full, while denying Kitt’s cross-motion to amend a “harassment” claim to plead negligent misrepresentation. On appeal, the Second Department modified, reviving the negligence claim based on a sufficiently pleaded special duty while affirming dismissal of gross negligence and harassment and denying leave to amend.

Summary of the Opinion

• Improper conversion without notice: The trial court erred by, in effect, converting the Rule 3211(a)(7) motion into a summary judgment motion without giving adequate notice under CPLR 3211(c). None of the recognized exceptions applied.
• Negligence survives the pleadings: Applying the 3211(a)(7) standard, the Appellate Division held the complaint sufficiently pleaded a “special duty” owed by the Village defendants, allowing the negligence claim to proceed.
• Gross negligence dismissed: The complaint did not allege conduct “smacking of intentional wrongdoing” or reckless indifference; ordinary negligence at most.
• “Harassment” dismissed: New York does not recognize a standalone common-law cause of action for harassment.
• Leave to amend denied: The plaintiff’s attempt to amend the “harassment” cause to plead negligent misrepresentation was properly denied as palpably insufficient and patently devoid of merit.

The appellate court modified the order to reinstate the negligence claim and otherwise affirmed, without costs.

Analysis

Precedents Cited and Their Influence

• CPLR 3211(c) notice requirement: The court relied on Fedele v Qualified Personal Residence Trust of Doris Rosen Margett (137 AD3d 965, 966–967) and Deutsche Bank Natl. Trust Co. v Kuldip (108 AD3d 686, 687) to reaffirm that a trial court cannot convert a motion to dismiss into a summary judgment motion without providing adequate notice, unless narrow exceptions apply. None applied here. Although the conversion was improper, the appellate court reached the merits under the 3211(a)(7) standard in the interest of judicial economy because the parties had fully briefed them on appeal.
• 3211(a)(7) standard: Garcia v Polsky, Shouldice & Rosen, P.C. (161 AD3d 828, 829) and Leon v Martinez (84 NY2d 83, 87–88) supplied the familiar pleading standard: accept facts as true, give plaintiff every favorable inference, and ask only whether the facts fit any cognizable theory.
• Municipal duty and special relationship: Axt v Hyde Park Police Dept. (162 AD3d 728, 730) and Valdez v City of New York (18 NY3d 69, 75) underscore that when a municipality acts in a governmental capacity (as with permitting and inspections), a plaintiff must show a special duty owed to that plaintiff, beyond the duty owed to the public. The opinion draws the “voluntary assumption” pathway for special duty from Pelaez v Seide (2 NY3d 186, 199), as quoted in Merin v City of New York (154 AD3d 928, 929), and applied in Sloninski v City of New York (173 AD3d 801, 803).
• Cuffy four-part test: The core framework comes from Cuffy v City of New York (69 NY2d 255, 260): (1) affirmative undertaking to act; (2) knowledge that inaction could lead to harm; (3) direct contact; and (4) justifiable reliance. The court also cited Canberg v County of Nassau (214 AD3d 943, 945–946) and Halberstam v Port Auth. of N.Y. & N.J. (175 AD3d 1264, 1266). Santaiti v Town of Ramapo (162 AD3d 921, 925) illustrates how specific assurances and reliance can satisfy Cuffy at the pleadings stage.
• Gross negligence threshold: Soloviev v Ross Sch. (227 AD3d 746, 748) and Vissichelli v Glen-Haven Residential Health Care Facility, Inc. (136 AD3d 1021, 1023) confirm that gross negligence requires conduct akin to reckless indifference or intentional wrongdoing—far beyond ordinary carelessness.
• “Harassment” not a cognizable tort: Mago, LLC v Singh (47 AD3d 772, 773) and Oluwo v Mills (228 AD3d 879, 880) reiterate New York’s longstanding rule: there is no common-law tort of harassment.
• Leave to amend standard: The denial of leave to amend to negligent misrepresentation as “palpably insufficient and patently devoid of merit” is supported by Jacob Post, Inc. v Samuel Hampton, LLC (216 AD3d 625, 626) and Davydov v Youssefi (205 AD3d 881, 884).

Legal Reasoning

1) Conversion error and appellate approach

The trial court erred by, in effect, converting a motion to dismiss into one for summary judgment without CPLR 3211(c) notice. Typically, conversion requires explicit notice so parties can submit evidence geared to summary judgment. The recognized exceptions—such as the parties “deliberately charting a summary judgment course” or a purely legal issue that can be resolved on the pleadings—did not apply. Nonetheless, because the parties fully briefed the merits on appeal, the Second Department proceeded to decide the motion under the 3211(a)(7) standard.

2) Special duty sufficiently pleaded for negligence

Building code enforcement and permitting are governmental functions. Under the public-duty rule, a municipality owes duties to the public at large, not to individual plaintiffs, unless a “special duty” is established. The court found the complaint, construed liberally, alleged facts fitting the Cuffy special duty framework:

• Affirmative undertaking: Village officials allegedly met with the plaintiff, his architect, and contractor before work began, inspected the foundation, and advised it was safe to build. They then issued permits despite knowing replacement was necessary.
• Knowledge of potential harm: The complaint alleged the officials knew the foundation needed replacement; proceeding without replacement could foreseeably cause harm once renovations were underway.
• Direct contact: Allegations of in-person meetings between the plaintiff’s team and the official(s), including specific on-site inspection and communications, sufficed.
• Justifiable reliance: The plaintiff allegedly began construction in reliance on the Village’s assurances and permits, leading to damages when the foundation later had to be replaced after renovations had been performed.

The court underscored an evidentiary detail submitted in opposition: the contractor testified that the official, after inspecting the foundation, stated that “in his professional opinion the foundation looks good … we’re gonna give you the green light to start the project.” Although on a 3211(a)(7) motion courts primarily assess the pleading, New York practice permits a plaintiff to submit evidence to remedy pleading deficiencies and demonstrate that a viable claim exists. Here, both the complaint and the submission together supported the special duty allegations sufficiently to survive dismissal at this early stage.

Crucially, the court distinguished scenarios where municipalities merely issue permits or conduct inspections without specific, individualized assurances. The analysis aligns with cases like Merin (where generalized municipal activity was insufficient), and Santaiti (where specific assurances and reliance supported special duty). Kitt’s allegations of explicit, individualized assurances, coupled with reliance and known risk, made the difference.

3) Gross negligence properly dismissed

The complaint did not allege conduct so egregious as to evince reckless indifference or intentional wrongdoing. Even if the Village defendants were negligent in giving assurances and issuing permits, that does not approach the stringent gross negligence threshold. Thus, the gross negligence claim was correctly dismissed.

4) No standalone “harassment” tort

New York does not recognize a common-law civil cause of action for “harassment.” That claim was therefore properly dismissed as a matter of law.

5) Leave to amend to negligent misrepresentation denied

The plaintiff’s cross-motion to amend the seventh cause of action from harassment to negligent misrepresentation was denied as palpably insufficient and patently devoid of merit. While the opinion does not elaborate at length, New York law generally requires, for negligent misrepresentation, a “special relationship” of trust or confidence imposing a duty to impart correct information (often described as a privity-like or fiduciary-like relationship), a false statement, and reasonable reliance causing pecuniary loss. In the municipal context, courts are reluctant to find that building departments owe such information-based duties to individual property owners in a way that gives rise to negligent misrepresentation liability, especially where the alleged misstatements are opinion-laden judgments (e.g., an official’s “professional opinion” that a foundation “looks good”) rather than concrete misstatements of fact. Moreover, where the theory duplicates negligence, or is barred by municipal immunity doctrines, amendment can be futile. The court concluded amendment here would be futile and denied leave.

Impact and Practical Implications

For municipal entities and building officials

• Communications matter: This decision signals that specific preconstruction assurances by building officials—especially following on-site inspection—can, at the pleadings stage, support a special duty. Casual or definitive “green-light” statements may expose the municipality to negligence claims if property owners reasonably rely on them.
• Training and protocols: Municipalities should consider training staff to avoid unqualified assurances about structural safety; use written communications with appropriate disclaimers; and clarify the limited scope of permit issuance and inspections.
• Documentation: Where advice is given, memorialize the context, any limitations, and referrals (e.g., advising owners to obtain their own engineering assessments) to mitigate reliance-based claims.

For plaintiffs and practitioners

• Pleading the Cuffy elements with specificity: Identify direct contacts, the particular promises or assurances made, knowledge of risk, and concrete reliance leading to harm. Kitt exemplifies how such allegations can overcome a 3211(a)(7) challenge.
• Use of affidavits/extrinsic submissions: On a 3211(a)(7) motion, plaintiffs may submit evidence to bolster the complaint’s sufficiency. Here, deposition testimony excerpted from the contractor enhanced the plausibility of the alleged assurances and reliance.
• Be cautious with “gross negligence” and “harassment” labels: The bar for gross negligence is high, and “harassment” is not a cognizable tort in New York common law.
• Negligent misrepresentation is a narrow path against municipalities: Absent a clear, privity-like informational relationship and a factual misstatement, misrepresentation claims are frequently found futile.

For trial courts and motion practice

• Strict adherence to CPLR 3211(c): Conversion requires notice. Absent express notice or an applicable exception, courts should decide under 3211(a)(7) standards or else risk modification on appeal.
• Limited scope of this ruling: The decision addresses pleading sufficiency. It does not resolve potential governmental immunity defenses that may arise later (e.g., discretionary-function immunity) after factual development.

Complex Concepts Simplified

• CPLR 3211(a)(7) vs. CPLR 3211(c): A 3211(a)(7) motion asks whether the complaint states a claim, assuming its facts are true. A 3211(c) conversion effectively treats the motion like summary judgment, considering full evidentiary submissions—but conversion generally requires advance notice so parties can marshal proof.
• Governmental vs. proprietary function: When a municipality acts as a sovereign regulator (e.g., issuing permits, enforcing codes), it performs a governmental function and generally owes duties to the public, not individuals—unless a special duty is created. Proprietary functions (like running a hospital) are treated more like private actors.
• Special duty (Cuffy test): A special duty arises where the municipality (1) affirmatively undertakes to act for the plaintiff; (2) knows harm could result from inaction; (3) has direct contact with the plaintiff; and (4) the plaintiff justifiably relies on the undertaking.
• Gross negligence: A heightened form of negligence akin to reckless disregard for others’ rights. Ordinary carelessness—even serious mistakes—often does not qualify.
• No common-law “harassment” tort: In New York, “harassment” is not a standalone civil claim; it is typically addressed under other torts or criminal statutes.
• Leave to amend—“palpably insufficient”: Amendments are freely given unless they lack legal merit on their face. If the proposed new claim cannot succeed even if its allegations are accepted as true, leave may be denied as futile.

Conclusion

Kitt v. Incorporated Village of Babylon refines two critical aspects of New York practice. Procedurally, it reaffirms that trial courts may not convert a motion to dismiss into one for summary judgment without proper CPLR 3211(c) notice. Substantively, it underscores that specific, individualized preconstruction assurances by municipal building officials—following direct contact and inspection—can, at the pleading stage, create a special duty sufficient to sustain a negligence claim against a municipality performing a governmental function.

At the same time, the decision cabins liability by dismissing gross negligence and reiterating that “harassment” is not a cognizable tort, while signaling that negligent misrepresentation claims against municipalities will be closely scrutinized and often futile absent a privity-like informational duty. The ruling’s practical impact will likely be felt in municipal training and communications, plaintiffs’ pleading strategies in building-code cases, and trial courts’ adherence to procedural safeguards in motion practice.

The takeaway is clear: where municipal officials give explicit, individualized safety assurances that reasonably induce reliance, plaintiffs may clear the pleading hurdle on special duty—yet they still face the substantive proof and immunity defenses that await beyond the motion to dismiss stage.