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Demolition of Building Without Notice or Opportunity to Be Heard Was a Proper Exercise of City’s Police Powers

The Second Department determined summary judgment dismissing the complaint against the city, based upon the city’s demolishing a building without notice or the opportunity to be heard, was properly granted:

“In the exercise of its police powers [a] municipality may demolish a building without providing notice and an opportunity to be heard if there are exigent circumstances which require immediate demolition of the building to protect the public from imminent danger” … . “[W]here there is competent evidence allowing the official to reasonably believe that an emergency does in fact exist, or that affording pre-deprivation process would be otherwise impractical, the discretionary invocation of an emergency procedure results in a constitutional violation only where such invocation is arbitrary or amounts to an abuse of discretion” … . Here, the defendant City of New York made a prima facie showing that its decision to cause the demolition of the subject building was not arbitrary or an abuse of discretion … . In opposition, the plaintiffs failed to raise a triable issue of fact. Iavarone v City of New York, 2015 NY Slip Op 04811, 2nd Dept 6-10-15

 

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DEFENDANT DID NOT DEMONSTRATE PLAINTIFF DID NOT KNOW THE CAUSE OF HER FALL AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.
QUESTIONS OF FACT WHETHER DEFENDANT DRIVER HAD A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION PRECLUDED SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR, PLAINTIFF SUBMITTED A POLICE REPORT WHICH RAISED THE QUESTIONS OF FACT, BY SUBMITTING THE REPORT PLAINTIFF WAIVED ANY OBJECTIONS TO INADMISSIBLE STATEMENTS INCLUDED IN IT (SECOND DEPT).
PLAINTIFF’S DECEDENT WAS KILLED BY A DRIVER WHO WAS BEING PURSUED BY THE POLICE; THE POLICE DEPARTMENT’S INTERNAL RULES IMPOSED A HIGHER STANDARD OF CARE FOR POLICE-CHASES THAN THE VEHICLE AND TRAFFIC LAW; THE JURY SHOULD HAVE BEEN TOLD THE INTERNAL RULES COULD BE CONSIDERED ONLY AS SOME EVIDENCE OF NEGLIGENCE; PLAINTIFF’S JUDGMENT REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).
PURSUANT TO THE RES IPSA LOQUITUR DOCTRINE, THERE IS A QUESTION OF FACT WHETHER EPIDURAL INJECTIONS WERE DONE NEGLIGENTLY; THE FACT THAT PLAINTIFF SIGNED A CONSENT FORM WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION (SECOND DEPT).
THE INSURER IN THIS PERSONAL INJURY CASE DID NOT MEET ITS HEAVY BURDEN TO DEMONSTRATE ITS INSURED’S NON-COOPERATION SUCH THAT THE INSURER WAS NOT OBLIGATED TO INDEMNIFY THE INSURED; CRITERIA EXPLAINED (SECOND DEPT).
MOTION TO EXTEND TIME TO EFFECT SERVICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
YOUTHFUL OFFENDER DETERMINATION MUST BE MADE IN EVERY CASE WHERE DEFENDANT IS ELIGIBLE, CARE REMITTED FOR THAT DETERMINATION (SECOND DEPT).

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