Chelmu v. Department of Health (197 A.D.2d 353, 1993)

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered August 5, 1992, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The elements of a tort claim based on a municipality’s "special relationship” to the claimant include justifiable reliance on the municipality’s affirmative undertaking (see, Cuffy v City of New York, 69 NY2d 255, 260-261). As a matter of law, that element is not present where, as here, plaintiff alleges that the municipality’s agent ignored a health-threatening defect pointed out by plaintiff and threatened plaintiff with closure of the laboratory in which she was employed if the complaint were pursued, and where plaintiff responded by pursuing her own attempts to remedy the unsafe condition. Concur—Murphy, P. J., Ellerin, Wallach, Kassal and Nardelli, JJ.