Opinion
January 17, 1989
Appeal from the Supreme Court, Suffolk County (Baisley, J.).
Ordered that the order is modified, on the law, by deleting the provision granting the branches of the town's motion which were to dismiss the second, third, fourth, fifth and seventh causes of action, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.
Initially, we note that on appeal, the plaintiff implicitly concedes that the sixth cause of action, which is based upon the existence of a purported special relationship between the town and himself, cannot survive the motion to dismiss as the allegations contained in the complaint are insufficient to sustain the existence of such a special relationship.
With respect to the remaining causes of action asserted against the town, the allegations contained in the complaint with regard to the breach of the duty of care, if any, owed to the plaintiff by the town are sufficient to withstand the dismissal motion (see, Benjamin v City of New York, 64 N.Y.2d 44; Caldwell v Village of Is. Park, 304 N.Y. 268; Cimino v Town of Hempstead, 110 A.D.2d 805, affd 66 N.Y.2d 709). Brown, J.P., Lawrence, Eiber and Harwood, JJ., concur.