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CITY OF NEW YORK v. KEENE CORP.

304 A.D.2d 119 (2003)

756 N.Y.S.2d 536

CITY OF NEW YORK et al., Appellants, v. KEENE CORPORATION et al., Defendants, and BASIC, INC., Respondent. CITY OF NEW YORK et al., Appellants, v. AAER SPRAYED INSULATIONS, INC., a DIVISION of ROGERS INSULATING & ROOFING COMPANY, INC., et al., Defendants, and BASIC, INC., Respondent. CITY OF NEW YORK, Appellant, v. AAER SPRAYED INSULATIONS, INC., a DIVISION of ROGERS INSULATING & ROOFING COMPANY, INC., et al., Defendants, and BASIC, INC., Respondent.

Appellate Division of the Supreme Court of the State of New York, First Department.

March 11, 2003.

Attorney(s) appearing for the Case

Jane L. Gordon of counsel (Pamela Seider Dolgow, Edward F.X. Hart and Alan H. Kleinman on the brief; Michael D. Hess and Michael A. Cardozo, Corporation Counsel, New York City, attorneys), for appellants.

Steven A. Weiner of counsel (Picillo Caruso O'Toole, attorneys), for respondent.

ANDRIAS, J.P., ELLERIN, FRIEDMAN and MARLOW, JJ., concur.

OPINION OF THE COURT

LERNER, J.

At issue is whether the principle enunciated by this Court in City of New York v Corwen (164 A.D.2d 212 [1990]), that a municipality absolutely waives its public interest/governmental privilege when it commences an action, should be superseded by a fact-specific balancing assessment in which a municipality's status as a plaintiff is merely one factor to be considered (see Matter...

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