Order affirmed, without costs or disbursements.
The plaintiffs seek to impose liability upon the City of White Plains (hereinafter the city) for allegedly violating a special duty by issuing a permit and "blue card" for the installation of a gas conversion burner which, the plaintiffs allege, was defective and emitted a noxious chemical which resulted in the asphyxiation of the decedent Hyman Weiner and personal injuries to the plaintiff Shirley Weiner.
The city's issuance of a permit and/or "blue card" creates a special relationship only when the city knew that a dangerous condition existed at the time of issuance (see, Dutton v. Mitek Realty Corp., 95 A.D.2d 769). The rule is stated in Garrett v Holiday Inns ( 58 N.Y.2d 253, 263), as follows: "Although it has been held that the grant or denial of a building permit involves a discretionary governmental function, the exercise of which may not form the basis for liability in tort (e.g., Rothkamp v Young, 21 A.D.2d 373, affd on opn below, 15 N.Y.2d 831), a different situation is presented here. The town had a duty, in the face of the alleged blatant and dangerous code violations, to refuse to issue a certificate of occupancy."
In opposing a motion for summary judgment, the plaintiffs must lay bare and reveal their proof and show facts sufficient to require a trial of any issue of fact (Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065; Castro v. Liberty Bus Co., 79 A.D.2d 1014).
In this case the plaintiffs totally failed to set forth any proof tending to establish that the city had any notice of any fire or safety code violations or any defects in the gas conversion burner or appurtenances. Neither the complaint nor the bill of particulars alleges that the city knew or should have known of blatant or dangerous violations or defects. Further, the plaintiffs failed to annex an affidavit by an expert which could indicate, circumstantially, such knowledge by the city's inspector. In the absence of such proof, there is no special relationship between the plaintiffs and the city and, therefore, no municipal responsibility for negligence. Mollen, P.J., Thompson, Rubin and Spatt, JJ., concur.