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PETITION TO DEEM A LATE NOTICE OF CLAIM TIMELY SERVED SHOULD NOT HAVE BEEN GRANTED, THE CITY’S KNOWLEDGE OF THE CROSSWALK DEFECT IN THIS SLIP AND FALL CASE IS NOT EQUIVALENT TO TIMELY KNOWLEDGE OF THE NATURE OF PLAINTIFF’S CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s petition to deem the late notice of claim timely served should not have been granted in this slip and fall case. Plaintiff alleged she tripped and fell over a defect in a crosswalk. The notice of claim was serve eight months after the fall. Photos of the defect were alleged to have been taken “shortly after” the fall but were not authenticated. An Internet map service apparently depicted the defects in 2013 and 2014. The court held that the fact that the city may have known of the defect does not mean the city had timely notice of the nature of plaintiff’s claim:

… [W]e disagree with the Supreme Court’s determination that the City acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident or a reasonable time thereafter. While the photographs submitted in support of the petition may have demonstrated that the City had prior knowledge of the crosswalk defect, actual knowledge of the defect is not tantamount to actual knowledge of the facts constituting the claim, since the City was not aware of the petitioner’s accident, her injuries, and the facts underlying her theory of liability… . Similarly, the service of the notice of claim approximately five months after the expiration of the 90-day statutory period for service did not provide the City with the requisite actual knowledge within a reasonable time … .

We also disagree with the Supreme Court’s determination, based on the photographs submitted by the petitioner, that she sustained her burden of demonstrating that the City would not be substantially prejudiced by the late notice. The petitioner contended that the photographic evidence showed that the defective condition was substantially the same in appearance at the time of her accident as it was some eight months later when her petition was served. However, the photographs purportedly taken “shortly after” the accident were never authenticated … , nor did the petitioner identify the actual date the photographs were taken or the person who took them. Moreover, the more recent photographs were taken at different angles than the earlier photos, and neither set of images contained any measurements or dimensions to support the conclusion that a comparison of the two sets of photographs established that the defect did not change in the interim … . Matter of Bermudez v City of New York, 2018 NY Slip Op 08477, Second Dept 12-12-18

 

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PLAINTIFF ASSUMED THE RISK OF INJURY STEMMING FROM A FIGHT DURING A HOCKEY GAME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff, an amateur hockey player, assumed the risk of injury stemming from a fight on the ice. Plaintiff alleged he was injured when a referee tried to pull him away from the fight. Plaintiff voluntarily engaged in physical contact with a player involved in the fight (plaintiff alleged he was trying to pull a player out of the fight when the referee grabbed the plaintiff):

Under the doctrine of primary assumption of risk, by engaging in a sport or recreational activity, a participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “[B]y freely assuming a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk” … . If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty… . However, a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … .

Here, the defendants established, prima facie, that the risks inherent in the sport of ice hockey, and in particular, involving oneself in an ongoing fight, were fully comprehended by the plaintiff and perfectly obvious. Further, the defendants established that the referees were permitted to make physical contact with players involved in a fight and, accepting the plaintiff’s version of the events as true, the plaintiff voluntarily engaged in physical contact with a player involved in the fight. Falcaro v American Skating Ctrs., LLC, 2018 NY Slip Op 08469, Second Dept 12-12-18

VOLUNTARY ENGAGEMENT PARTICIPATION FIGHT

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THE DIGNITY FOR ALL STUDENTS ACT (DASA) DOES NOT CREATE A PRIVATE RIGHT OF ACTION FOR IN-SCHOOL BULLYING AND HARASSMENT (SECOND DEPT),

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Brahwaite Nelson, determined that the Dignity for All Students Act (DASA, Education Law section 10) does not create a private right of action for a student injured by a school’s failure to enforce policies prohibiting discrimination and harassment. The plaintiffs alleged Joshua, a student, was bullied and the complaint, in addition to alleging a violation of DASA, alleged negligent supervision and negligent retention of employees. The negligence causes of action properly survived the motions to dismiss:

A private right of action “may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme” … . …

A review of DASA’s legislative history shows that finding a private right of action under the act would be inconsistent with the legislative scheme. As noted above, DASA requires school districts to create and implement certain policies, procedures, and guidelines aimed at creating an educational environment in which children can thrive free of discrimination and harassment (see Education Law §§ 10, 13). In a letter to the Governor, Senator Thomas Duane described DASA as focusing “on the education and prevention of harassment and discrimination before it begins rather than punishment after the fact” …  The letter stated that under the existing regime, school districts were paying “a high cost in civil damages for failure to prevent bullying,” thereby suggesting that implementing DASA would alleviate such costs (id. at 9). Similarly, the Assembly sponsor of the bill also advised the Governor that “the Legislature intends [DASA] to be primarily a preventive, rather than punitive, measure; it should therefore be implemented accordingly, with the emphasis on proactive techniques such as training and early intervention to prevent discrimination and harassment” … . Eskenazi-McGibney v Connetquot Cent. Sch. Dist., 2018 NY Slip Op 08467, Second Dept 12-12-18

 

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PROOF THAT DEFENDANT WAS SERVED WITH THE RPAPL 1304 NOTICE IN THIS FORECLOSURE PROCEEDING WAS NOT SUFFICIENT, THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the bank’s motion for summary judgment in this foreclosure action should not have been granted. The proof of service of the RPAPL 1304 notice was deemed insufficient:

Plaintiff failed to establish a presumption that it properly served defendant with RPAPL 1304 notice through proof either of actual mailing or of a standard office practice or procedure for proper addressing and mailing … . Its business operations analyst testified at the hearing on this issue that she was familiar with plaintiff’s record keeping practices and procedures. However, she did not testify either that she was familiar with plaintiff’s mailing procedures or that she was personally aware that RPAPL 1304 notices had been mailed to defendant… . Nor does the fact that some of the RPAPL 1304 notices admitted into evidence at the hearing bear a certified mail number suffice to raise the presumption of proper service … . CitiMortgage, Inc. v Moran, 2018 NY Slip Op 08435, First Dept 12-11-18

 

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WHETHER A JUVENILE’S STATEMENT TO THE POLICE WAS VOLUNTARILY GIVEN PRESENTED A MIXED QUESTION OF LAW AND FACT WHICH IS NOT REVIEWABLE BY THE COURT OF APPEALS, TWO DISSENTERS ARGUED JUVENILES SHOULD NOT BE INTERROGATED OUTSIDE THE PRESENCE OF THEIR ADULT LEGAL GUARDIANS (CT APP).

The Court of Appeals, over a two-judge dissent, determined the finding that a juvenile’s statement to police was voluntarily given presented a mixed question of law fact which is not reviewable by the Court of Appeals. The dissenters argued juveniles should not be interrogated outside the presence of their adult guardians. Matter of Luis P., 2018 NY Slip Op 08427, CtApp 12-11-18

 

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TIME LIMITS ON ADDITIONAL COMPENSATION FOR A PERMANENT PARTIAL DISABILITY INCLUDED IN WCL 15 (3) (w) APPLY TO THE CALCULATION OF THE AMOUNT OF THE BENEFITS IN WCL 15 (3) (v) (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a dissenting opinion, determined the durational limits for compensation pursuant to Workers’ Compensation Law (WCL) 15 (3) (w) (paragraph w) are incorporated into WCL 15 (3) (v) (paragraph v). Therefore the claimant was entitled to compensation for permanent partial disability (50 % loss of use of his left arm) only for the 275 weeks allowed by paragraph w:

… [N]othing in the language of paragraph v regarding termination of additional compensation upon eligibility for age-based social security benefits contradicts paragraph w’s durational restrictions or precludes their application to paragraph v recipients. By incorporating the entirety of paragraph w’s framework for calculating benefits, paragraph v provides additional compensation lasting a maximum number of weeks as a supplement to the schedule award the worker already received. Paragraph v’s requirement that such payment terminates if the worker becomes eligible for age-based social security payments (regardless of how many weeks have passed) merely places another limit, where applicable, on the additional compensation a claimant can receive. …

… [N]either of the primary benefits that section 15(3) provides are open-ended. Both schedule loss of use awards and non-schedule benefits continue for a maximum number of weeks, depending on the nature or severity of the worker’s disability. Interpreting paragraph v to grant a subset of recipients open-ended benefits limited only by eligibility for age-based social security payments — an award that would potentially span their working lifetimes — would uniquely benefit that small group above all other permanent partial disability award recipients. There is no textual support for such an exceptional interpretation. Rather, under the plain language of paragraph v, additional compensation awards are calculated pursuant to the formula and durational provisions of paragraph w, terminating earlier if or when a claimant becomes eligible for age-based social security benefits. Matter of Mancini v Office of Children & Family Servs., 2018 NY Slip Op 08425, CtApp 12-11-18

 

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ALTHOUGH DEFENDANT WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN VIRGINIA, THERE WAS NO SEX-RELATED ELEMENT IN THE VIRGINIA OFFENSE, DEFENDANT NEED NOT REGISTER AS A SEX OFFENDER IN NEW YORK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a three-judge dissenting opinion, determined that defendant need not register as a sex offender in New York based upon a murder conviction in Virginia, even though Virginia law required such registration. There was no sex-related element in the offense. Defendant, in 1989, at age 19, murdered his half-sister because she was harassing him. At the time, he said he was “hearing voices telling him to kill people:”

Blind deference to another jurisdiction’s registry without asking, fundamentally, whether that jurisdiction considers its own registrant a sex offender would contravene the plain and limiting language of section 168-a (2) (d) (ii) and could subject an entire class of defendants with no relation to SORA’s purpose to its strict requirements. * * *

In concluding that SORA does not require defendant’s registration because Virginia does not consider defendant a sex offender, we reserve weightier issues of a foreign registry’s potential conflict with New York’s due process guarantees or public policy for another day. …

… Our holding today merely requires a court or the Board to determine—not based on “intuition,” but rather on the offense of conviction and its relation to the foreign registry statute—whether the out-of-state defendant is considered a sex offender before requiring registration under SORA. …

Defendant’s out-of-state felony conviction did not require him to “register as a sex offender” in Virginia under Correction Law § 168-a (2) (d) (ii) and, thus, he should not be required to register as a sex offender in New York. People v Diaz, 2018 NY Slip Op 08424, CtApp 12-11-18

 

 

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RECORDS OF DISCIPLINARY PROCEEDINGS CONCERNING A POLICE OFFICER ARE EXEMPT FROM DISCLOSURE EVEN IF THE IDENTIFYING INFORMATION IS REDACTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, affirming the appellate division, over a concurring opinion and two dissenting opinions, determined that the records of New York Police Department disciplinary proceedings concerning a police officer are exempt from disclosure, even if the identifying information in the records is redacted:

The FOIL exemption at issue, Public Officers Law § 87 (2) (a), provides that an agency may deny access to records that “are specifically exempted from disclosure by state or federal statute.” The parties agree that the disciplinary decisions requested by the NYCLU are covered by a state statute: Civil Rights Law § 50-a. * * *

“There can be no question” that Civil Rights Law § 50-a permits court-ordered disclosure “only in the context of an ongoing litigation” … . Absent officer consent, protected personnel records are shielded from disclosure “except when a legitimate need for them has been demonstrated to obtain a court order” based on a “showing that they are actually relevant to an issue in a pending proceeding” … . Here, in the context of the NYCLU’s FOIL request, the requested records are not “relevant and material” to any pending litigation … , and accordingly, they are not disclosable. * * *

This case presents a straightforward application of Civil Rights Law § 50-a and Public Officers Law § 87 (2) (a), which mandate confidentiality and supply no authority to compel redacted disclosure. To the extent the dissent would prefer to revoke civil rights protections afforded to police officers (Civil Rights Law § 50-a), victims of sex crimes (Civil Rights Law § 50-b), medical patients (Public Health Law § 2803-c [3] [f]), or others, those arguments are properly directed to the Legislature. Matter of New York Civ. Liberties Union v New York City Police Dept., 2018 NY Slip Op 08423, CtApp 12-13-18

FREEDOM OF INFORMATION LAW, POLICE OFFICERS

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THEORY THAT DEFENDANT VETERINARY CLINIC WAS LIABLE IN NEGLIGENCE FOR A DOG BITE WHICH OCCURRED IN THE CLINIC WAITING ROOM REJECTED, ONLY A STRICT LIABILITY THEORY COULD APPLY AND PLAINTIFF CONCEDED RELIEF WAS NOT AVAILABLE PURSUANT TO STRICT LIABILITY (THIRD DEPT).

The Third Department determined defendant veterinary clinic could not be held liable for a dog bite which occurred in the clinic waiting room under a negligence (failure to provide a safe waiting room area) theory. Plaintiff contended the strict liability theory did not apply because defendant clinic did not own the dog:

… [W]e hold that for defendant to be liable for the personal injuries allegedly sustained due to the dog attack that occurred in the waiting room, plaintiff must establish that defendant knew or should have known about the dog’s vicious propensities.

… [P]laintiff acknowledges in her appellate brief that she is not asserting a claim for strict liability against defendant and that her claims against it are grounded in negligence and premises liability. In her opposition to defendant’s summary judgment motion, plaintiff likewise conceded that she did not have a strict liability claim against defendant. In any event, even if a strict liability claim could be extrapolated from plaintiff’s pleadings… . As such, Supreme Court correctly granted defendant’s motion for summary judgment and denied plaintiff’s cross motion for partial summary judgment … . Hewitt v Palmer Veterinary Clinic, PC, 2018 NY Slip Op 08396, Third Dept 12-6-18

ANIMAL LAW (DOG BITE, THEORY THAT DEFENDANT VETERINARY CLINIC WAS LIABLE IN NEGLIGENCE FOR A DOG BITE WHICH OCCURRED IN THE CLINIC WAITING ROOM REJECTED, ONLY A STRICT LIABILITY THEORY COULD APPLY AND PLAINTIFF CONCEDED RELIEF WAS NOT AVAILABLE PURSUANT TO STRICT LIABILITY (THIRD DEPT))/DOG BITE  (DOG BITE, THEORY THAT DEFENDANT VETERINARY CLINIC WAS LIABLE IN NEGLIGENCE FOR A DOG BITE WHICH OCCURRED IN THE CLINIC WAITING ROOM REJECTED, ONLY A STRICT LIABILITY THEORY COULD APPLY AND PLAINTIFF CONCEDED RELIEF WAS NOT AVAILABLE PURSUANT TO STRICT LIABILITY (THIRD DEPT))

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GENERAL RELEASE WAS NOT LIMITED TO A 2007 ACTION AND THEREFORE PRECLUDED THE 2014 ACTION, A UNILATERAL MISTAKE DOES NOT INVALIDATE A CONTRACT (THIRD DEPT).

The Third Department determined that, although the release signed by plaintiff (Moore) mentioned a 2007 action, the release stated it was not limited to the 2007 action. Therefore it applied to the instant action. The fact that plaintiff may not have intended that it apply to the current proceedings, a unilateral mistake, does not invalidate a contract:

The general release, executed by Moore after he commenced the present action, released defendant “from all manner of . . . claims and demands . . . in law or in equity that against [defendant] he ever had, now has or which he . . . shall or may have for any reason from the beginning of the world to the date of this release.” Plaintiffs nonetheless argue that the release is limited by its terms to the 2007 action, noting that “where a release contains a recital of a particular claim . . . and there is nothing on the face of the instrument other than general words of release to show that anything more than the matters particularly specified was intended to be discharged, the general words of release are deemed to be limited thereby” … . The release, however, does not limit or otherwise restrict itself to the 2007 action. Rather, it clearly and unambiguously specifies that it “includes, but is not limited to,” the incident that led to the 2007 action … . Moore executed the release with full knowledge that this action was pending against defendant, and the “timing and unequivocal and unconditional language” of the release therefore demonstrates its applicability to the 2014 action at issue here … . …

Although plaintiffs claim that Moore did not intend for the release to encompass this action when he executed it, “the fact that [Moore] may have intended something else is irrelevant[, as] a mere unilateral mistake . . . with respect to the meaning and effect of the release . . . does not constitute an adequate basis for invalidating” it … . Stevens v Town of Chenango (Forks), 2018 NY Slip Op 08389, Third Dept 12-6-18

CONTRACT LAW (GENERAL RELEASE WAS NOT LIMITED TO A 2007 ACTION AND THEREFORE PRECLUDED THE 2014 ACTION, A UNILATERAL MISTAKE DOES NOT INVALIDATE A CONTRACT (THIRD DEPT))/RELEASES  (GENERAL RELEASE WAS NOT LIMITED TO A 2007 ACTION AND THEREFORE PRECLUDED THE 2014 ACTION, A UNILATERAL MISTAKE DOES NOT INVALIDATE A CONTRACT (THIRD DEPT))/CIVIL PROCEDURE (GENERAL RELEASE WAS NOT LIMITED TO A 2007 ACTION AND THEREFORE PRECLUDED THE 2014 ACTION, A UNILATERAL MISTAKE DOES NOT INVALIDATE A CONTRACT (THIRD DEPT))

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