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COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined the county was immune from suit by a student who was assaulted by a worker at a county-owned facility. The worker was referred to the lessee of the premises, the North Amityville Community Economic Council (NACEC), as part of a welfare to work program. NACEC only accepted referrals for persons with no criminal record. The Suffolk County Department of Labor (SWEP) referred the worker despite knowledge of his status as a level three sex offender. The court determined the county was acting in its governmental, not proprietary, capacity when it referred the worker and there was no special relationship between the county and the victim of the assault:

In this case, the specific act or omission that caused plaintiff’s injury was the County’s referral of Smith to NACEC through the County’s SWEP program, a referral made in spite of NACEC’s caveat that it would not accept candidates with a criminal record. The administration of SWEP … was quintessentially a governmental role. The County’s conduct in referring Smith was undertaken solely in connection with its administration of that program and was part of the County’s fundamental governmental activity. Therefore, we hold that the County was acting in its governmental capacity when it referred Smith to NACEC. * * *

There is no view of the evidence that could allow one to conclude that the County voluntarily assumed a special duty to plaintiff. Even if the County promised that it would not refer anyone with a criminal background, that promise would have been made only to NACEC and there is no evidence that plaintiff ever had any knowledge of NACEC’s request. In addition, … it is undisputed that there was no direct contact between plaintiff and the County. Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 2017 NY Slip Op 01255, CtApp 2-16-17

 

MUNICIPAL LAW (COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/IMMUNITY (COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/GOVERNMENTAL FUNCTION (MUNICIPAL LAW, IMMUNITY, COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/PROPRIETARY FUNCTION (MUNICIPAL LAW, IMMUNITY, COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/SPECIAL RELATIONSHIP (MUNICIPAL LAW, IMMUNITY, COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM) 

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NEGLIGENT BRAKING BY TRUCK DRIVER, IN RESPONSE TO A COLLISION WITH A THIRD PARTY, MAY HAVE BEEN A PROXIMATE CAUSE OF THE COLLISION BETWEEN THE TRUCK AND PLAINTIFFF. 

The Fourth Department, reversing Supreme Court, determined plaintiff’s expert had raised a question of fact about whether the actions of defendant truck driver (negligent application of the brakes) contributed to the accident:

… [A] tractor-trailer … driven by Mark C. Shaw … collided with a car driven by defendant Robin F. Lewis … , after Lewis made a sudden left turn in front of the tractor-trailer. After that initial collision, the tractor-trailer jackknifed, collided with plaintiff’s car, and ended up in a ditch on the opposite side of the road, on top of plaintiff’s car.

We agree with plaintiff that Supreme Court erred in granting defendants’ motion insofar as it sought summary judgment dismissing the complaint against them on the ground that Lewis’s conduct was the sole proximate cause of the collision. Even assuming, arguendo, that defendants met their initial burden of establishing their entitlement to judgment as a matter of law, we conclude that plaintiff raised triable issues of fact by submitting the affidavit of an expert forensic examiner … . Plaintiff’s expert opined within a reasonable degree of professional certainty that Shaw’s conduct was a proximate cause of the collision with plaintiff’s vehicle because he inappropriately and negligently applied the brakes, which caused the tractor-trailer to jackknife after the initial impact with Lewis’s vehicle. The expert’s opinion was not based on speculation, but was supported by voluminous deposition testimony, police reports, and the New York State Commercial Driver’s Manual … . Pacino v Lewis, 2017 NY Slip Op 01099, 4th Dept 2-10-17

 

NEGLIGENCE (NEGLIGENT BRAKING BY TRUCK DRIVER, IN RESPONSE TO A COLLISION WITH A THIRD PARTY, MAY HAVE BEEN A PROXIMATE CAUSE OF THE COLLISION BETWEEN THE TRUCK AND PLAINTIFFF)/TRAFFIC ACCIDENTS (NEGLIGENT BRAKING BY TRUCK DRIVER, IN RESPONSE TO A COLLISION WITH A THIRD PARTY, MAY HAVE BEEN A PROXIMATE CAUSE OF THE COLLISION BETWEEN THE TRUCK AND PLAINTIFFF)/TRUCKS (TRAFFIC ACCIDENTS, NEGLIGENT BRAKING BY TRUCK DRIVER, IN RESPONSE TO A COLLISION WITH A THIRD PARTY, MAY HAVE BEEN A PROXIMATE CAUSE OF THE COLLISION BETWEEN THE TRUCK AND PLAINTIFFF)

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TRIPPING OVER EDGE OF A RUG NOT ACTIONABLE, NO SHOWING RUG DEFECTIVE OR DANGEROUS.

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted in this slip and fall case. Although plaintiff’s foot apparently “picked up” the corner of a rug, there was no showing the rug was defective or dangerous:

Although the rug may not have been designed to be placed over another rug or the recessed mat system, the video of the incident, which was submitted in opposition to the motion, shows that decedent tripped over the front edge of the rug. There is no indication that the rug slipped, and there is no record evidence that the rug constituted a defective or dangerous condition at the time of the fall. We conclude that “the mere placement of the [rug] by the front door of the defendant’s premises was not an inherently dangerous condition” … . Slattery v Tops Mkts., LLC, 2017 NY Slip Op 01078, 4th Dept 2-10-17

NEGLIGENCE (TRIPPING OVER EDGE OF A RUG NOT ACTIONABLE, NO SHOWING RUG DEFECTIVE OR DANGEROUS)/SLIP AND FALL (TRIPPING OVER EDGE OF A RUG NOT ACTIONABLE, NO SHOWING RUG DEFECTIVE OR DANGEROUS)/RUGS (SLIP AND FALL, TRIPPING OVER EDGE OF A RUG NOT ACTIONABLE, NO SHOWING RUG DEFECTIVE OR DANGEROUS)

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WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED.

The First Department determined the city’s summary judgment motion was properly granted in this bicycle accident case. Plaintiff was injured when his bicycle struck a pile of gravel near a manhole that was being accessed for sewer maintenance. Because sewer maintenance is a governmental function, the written notice requirement applies. Without written notice of the condition, the city cannot be held liable:

This action seeks recovery for injuries allegedly sustained by plaintiff Daniel Chambers when the front wheel of the bicycle he was riding came into contact with gravel located around a large hole, near a manhole cover. …

The court properly dismissed the action as plaintiff failed to establish that an exception to the prior written notice requirement of Administrative Code of the City of New York § 7-201(c)(2) is at issue here … . The City’s ownership of a manhole cover, which allows the City to access the sewer system and water pipes in order to perform maintenance and repairs, does not provide the City with “a special benefit from that property unrelated to the public use” … . Accordingly, it does not fall within the “special use” exception … . Chambers v City of New York, 2017 NY Slip Op 01120, 1st Dept 2-10-17

 

MUNICIPAL LAW (WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED)/NEGLIGENCE (MUNICIPAL LAW, WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED)/BICYCLE ACCIDENTS (MUNICIPAL LAW, WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED)

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NO PRETRIAL NOTICE OF IDENTIFICATION TESTIMONY BY A POLICE OFFICER, CONVICTION REVERSED.

The Fourth Department, reversing defendant’s conviction, determined the identification testimony of a police officer should not have been admitted because pretrial notice of the identification had not been provided to the defendant:

We agree with defendant … that the court erred in permitting the officer to identify defendant as the person in the left rear seat of the vehicle in the absence of a notice pursuant to CPL 710.30 (1) (b). We therefore reverse the judgment and grant that part of the omnibus motion seeking preclusion of that testimony on the ground that the People failed to serve a notice pursuant to CPL 710.30 (1) (b). The prosecutor advised the court and defense counsel after jury selection that the officer would identify defendant as the left rear passenger. Defendant objected and the court conducted a hearing, over defendant’s objection, and determined that the officer’s identification of defendant by means of a single photo approximately two hours after the incident was merely confirmatory and thus that no notice was required pursuant to CPL 710.30 (1) (b).

The exception to the requirement to provide notice pursuant to CPL 710.30 “carries significant consequences” … , and the Court of Appeals has “consistently held that police identifications do not enjoy any exemption from the statutory notice and hearing requirements” … . Unlike the buy-and-bust scenario, where the police participant is focused on the face-to-face contact with defendant with the goal of identifying him or her when he or she is picked up by a back up unit … , here, the officer was standing by the vehicle for approximately three minutes while he was engaged with all of the occupants of the vehicle. Thus, “we cannot conclude that the circumstances of [the officer’s] initial viewing were such that, as a matter of law, the subsequent identification could not have been the product of undue suggestiveness” … . Indeed, “the statute contemplates pretrial resolution of the admissibility of identification testimony’ ” … , and “[t]o conclude otherwise directly contravenes the simple procedure that has been mandated by the Legislature and would permit the People to avoid their statutory obligation merely because a police officer’s initial viewing of a suspect and a subsequent identification might be temporally related” … . People v Clay, 2017 NY Slip Op 01074, 4th Dept 2-10-17

 

CRIMINAL LAW (NO PRETRIAL NOTICE OF IDENTIFICATION TESTIMONY BY A POLICE OFFICER, CONVICTON REVERSED)/IDENTIFICATION (CRIMINAL LAW, NO PRETRIAL NOTICE OF IDENTIFICATION TESTIMONY BY A POLICE OFFICER, CONVICTON REVERSED)

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NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS TO PROVIDE INFORMATION ABOUT THE LEVEL OF SODIUM IN THE RESTAURANT FOOD.

The First Department, in a full-fledged opinion by Justice Gesmer, determined the NYC Board of Health properly issued a regulation requiring certain restaurant to provide factual information about the level of sodium in the restaurant food. The decision is comprehensive and cannot fairly be summarized here. Applying the Boreali factors, the First Department held the rule was well within the board’s rule-making authority. In addition, the court found the rule did not violate the First Amendment (commercial speech):

Salt is both an essential ingredient of our diet and, when consumed in excess, a significant health hazard. Excess consumption of sodium, the primary ingredient of salt, can cause high blood pressure, which is in turn correlated with a higher risk of cardiovascular disease, congestive heart failure and kidney disease, according to the overwhelming consensus among scientists and the federal agencies charged with protecting the nation’s health. To address this issue, defendant New York City Board of Health (the Board) adopted a rule requiring certain restaurants to provide factual information to consumers on this issue. That rule is challenged in this appeal by the National Restaurant Association (NRA). We affirm the trial court’s rejection of that challenge, since the Board acted legally, constitutionally and well within its authority in adopting this limited yet salutary rule. National Rest. Assn. v New York City Dept. of Health & Mental Hygiene. 2017 NY Slip Op 01140, 1st Dept 2-10-17

MUNICIPAL LAW (NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS TO PROVIDE INFORMATION ABOUT THE LEVEL OF SODIUM IN THE RESTAURANT FOOD)/ADMINISTRATIVE LAW (NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS TO PROVIDE INFORMATION ABOUT THE LEVEL OF SODIUM IN THE RESTAURANT FOOD)/SODIUM (NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS TO PROVIDE INFORMATION ABOUT THE LEVEL OF SODIUM IN THE RESTAURANT FOOD)/RESTAURANTS (NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS TO PROVIDE INFORMATION ABOUT THE LEVEL OF SODIUM IN THE RESTAURANT FOOD)

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FALL FROM TRUCK BED 20 INCHES ABOVE THE GROUND NOT COVERED BY LABOR LAW 240 (1).

The Fourth Department, reversing Supreme Court, determined plaintiff’s fall from a truck bed was not the type of elevation risk covered by Labor Law 240 (1):

Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by Joseph T. Grabar (plaintiff) when the trailer on which plaintiff was standing tipped, and he fell. Plaintiff was on the bed of the trailer in order to place fuel in a welder that was located on the trailer, and it is undisputed that the trailer bed was approximately 20 inches from the ground. …

We conclude that the trailer “did not present the kind of elevation-related risk that the statute contemplates” … . Grabar v Nichols, Long & Moore Constr. Corp., 2017 NY Slip Op 01068, 4th Dept 2-10-17

 

LABOR LAW-CONSTRUCTION LAW (FALL FROM TRUCK BED 20 INCHES ABOVE THE GROUND NOT COVERED BY LABOR LAW 240 (1))

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UNAMBIGUOUS TERM OF INSURANCE CONTRACT CAPPING PAYMENT FOR WATER DAMAGE SHOULD HAVE BEEN ENFORCED.

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the terms of the insurance policy were not ambiguous and the $25,000 cap for water damage applied:

It is well-settled that insurance contracts are construed “in light of common speech’ and the reasonable expectations of a businessperson” … . “[U]nambiguous provisions of an insurance contract must be given their plain and ordinary meaning” … . We conclude that the contract language at issue here is not ambiguous. By its plain terms, the contract limits coverage to $25,000 for damage caused when ground water enters the basement through a gap, hole, or opening in the wall, and the conduit clearly falls within the water damage exclusion and endorsement … . Papa v Associated Indem. Corp., 2017 NY Slip Op 01118, 4th Dept 2-10-17

INSURANCE LAW (UNAMBIGUOUS TERM OF INSURANCE CONTRACT CAPPING PAYMENT FOR WATER DAMAGE SHOULD HAVE BEEN ENFORCED)/CONTRACT LAW (iNSURANCE LAW, UNAMBIGUOUS TERM OF INSURANCE CONTRACT CAPPING PAYMENT FOR WATER DAMAGE SHOULD HAVE BEEN ENFORCED)

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DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION.

The Fourth Department, reversing Supreme Court, determined the New York State Department of Human Rights’ (SDHR’s) ruling, without a hearing, there was no probable cause to believe petitioner was discriminated or retaliated against because of her disability was not arbitrary or capricious and had a rational basis:

“Where, as here, SDHR renders a determination of no probable cause without holding a hearing, the appropriate standard of review is whether the probable cause determination was arbitrary and capricious or lacked a rational basis’ ” … . We agree with respondent that the court erred in disturbing SDHR’s determination based upon, inter alia, its failure to conduct a hearing. “Courts give deference to SDHR due to its experience and expertise in evaluating allegations of discrimination” … , and “such deference extends to [SDHR’s] decision whether to conduct a hearing” … . SDHR has the discretion to determine the method to be used in investigating a claim, and “a hearing is not required in all cases” … . Inasmuch as “the parties made extensive submissions to [SDHR], petitioner was given an opportunity to present [her] case, and the record shows that the submissions were in fact considered, the determination cannot be arbitrary and capricious merely because no hearing was held’ … . * * *

Here, we conclude that “the conflicting evidence before SDHR did not create a material issue of fact that warranted a formal hearing” … . Rather, we agree with respondent that a rational basis supports SDHR’s determination that, based upon all of the facts and circumstances, there is no factual basis in the evidence sufficient to warrant a cautious person to believe that respondent unlawfully discriminated against petitioner based on her disability ,,, . In addition, SDHR rationally determined that the evidence did not support petitioner’s allegation that respondent subjected her to a hostile work environment … . Finally, we conclude that SDHR’s determination that there was no probable cause to believe that respondent retaliated against petitioner is not arbitrary or capricious, and it has a rational basis in the record … . Matter of McDonald v New York State Div. of Human Rights, 2017 NY Slip Op 01060, 4th Dept 2-10-17

 

EMPLOYMENT LAW (DISABILITY DISCRIMINATION, DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION)/HUMAN RIGHTS LAW (NYS) (EMPLOYMENT DISCRIMINATION, DISABILITY DISCRIMINATION, DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION)/DISABILITIES (EMPLOYMENT DISCRIMINATION, HUMAN RIGHTS LAW, DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION)

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GLAZIERS ENROLLED IN AN APPRENTICE PROGRAM SHOULD BE PAID AS APPRENTICES EVEN IF THE WORK FOR WHICH THEY ARE PAID IS NOT IN THE SAME TRADE AS THE APPRENTICESHIP PROGRAM.

The Fourth Department, over a dissent, determined the Department of Labor’s interpretation of a statute was wrong and reversed. The case concerned whether glaziers enrolled in an apprentice program should be paid as apprentices even if the work for which they are paid is not in the same trade or occupation as the apprenticeship program:

In reviewing Labor Law § 220 as a whole, we conclude that nothing in that statute establishes any basis for a different interpretation of section 220 (3-e). Rather, we note that the very limitation defendants seek to impose on section 220 (3-e), i.e., a limitation to work in the same trade or occupation, was added to other subdivisions of Labor Law § 220 (see § 220 [3] [a], [b]). When “the Legislature uses unlike terms in different parts of a statute it is reasonable to infer that a dissimilar meaning is intended” … . The fact that the Legislature did not add similar restrictive language to section 220 (3-e) further supports our conclusion that no such restriction was intended, and this Court will not “amend [the] statute by inserting words that are not there” … .

Inasmuch as “the language of [the] statute is clear and unambiguous, [we] must give effect to its plain meaning” … , and we may not “resort to extrinsic material such as legislative history or memoranda” … . We thus conclude that Labor Law § 220 (3-e), by its terms, permits glazier apprentices who are registered, individually, under a bona fide glazier apprenticeship program to work and be paid as apprentices even if the work they are performing is not work in the same trade or occupation as their apprenticeship program. International Union of Painters & Allied Trades v New York State Dept. of Labor, 2017 NY Slip Op 01112. 4th Dept 2-10-17

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