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DOCTRINE OF QUALIFIED GOVERNMENTAL IMMUNITY PROTECTED STATE FROM SUIT ALLEGING INADEQUATE HIGHWAY GUARDRAIL.

The Second Department, affirming the Court of Claims, determined the state was protected from suit by the doctrine of qualified immunity. Plaintiffs were injured when a van in which they were riding struck a highway guardrail and concrete pillar. The complaint alleged the guardrail was not long enough:

To establish its entitlement to qualified immunity, the governmental body must demonstrate “that the relevant discretionary determination by the governmental body was the result of a deliberate decision-making process” … . “A municipality is entitled to qualified immunity where a governmental planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury'” … . Accordingly, where the decision made by the municipality or governmental body was not the product of a governmental plan or study, the doctrine of qualified immunity is inapplicable … .

Here, the Court of Claims correctly applied the doctrine of qualified immunity based on the evidence the defendants submitted at trial that the guardrail was designed pursuant to the design standards set forth by the New York State Department of Transportation, which were the result of a deliberate decision-making process of the type afforded immunity from judicial interference … . Ramirez v State of New York, 2016 NY Slip Op 06815, 2nd Dept 10-19-16

 

COURT OF CLAIMS (DOCTRINE OF QUALIFIED GOVERNMENTAL IMMUNITY PROTECTED STATE FROM SUIT ALLEGING INADEQUATE HIGHWAY GUARDRAIL)/IMMUNITY (DOCTRINE OF QUALIFIED GOVERNMENTAL IMMUNITY PROTECTED STATE FROM SUIT ALLEGING INADEQUATE HIGHWAY GUARDRAIL)/GOVERNMENTAL IMMUNITY (DOCTRINE OF QUALIFIED GOVERNMENTAL IMMUNITY PROTECTED STATE FROM SUIT ALLEGING INADEQUATE HIGHWAY GUARDRAIL)/QUALIFIED IMMUNITY (DOCTRINE OF QUALIFIED GOVERNMENTAL IMMUNITY PROTECTED STATE FROM SUIT ALLEGING INADEQUATE HIGHWAY GUARDRAIL)/HIGHWAYS (DOCTRINE OF QUALIFIED GOVERNMENTAL IMMUNITY PROTECTED STATE FROM SUIT ALLEGING INADEQUATE HIGHWAY GUARDRAIL)/GUARDRAILS (DOCTRINE OF QUALIFIED GOVERNMENTAL IMMUNITY PROTECTED STATE FROM SUIT ALLEGING INADEQUATE HIGHWAY GUARDRAIL)

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STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS.

The Fourth Department, reversing the Court of Claims, determined the Court of Claims did not have the power to order the state to pay for liability insurance to allow claimant’s expert to test soil and water for contamination by highway deicing agents. Under the Court of Claims Act, the state cannot be required to pay fees for claimant’s witnesses:

In this real property tort action, claimants assert that deicing agents have run off of the Thruway and onto their farm located adjacent to the Thruway, thereby contaminating the soil and water. In order to prove their claim, claimants sought to inspect, test, and sample the Thruway shoulder and median adjacent to their farm. The testing would include, among other things, air, soil, and water testing and would involve “six visits to the site during the winter and early spring.” Claimants located a professor who agreed to perform the testing as their expert in exchange for permission to use the tests in his research and teaching; however, neither claimants nor the professor could afford the liability insurance routinely required by defendant in connection with inspections performed on its property.

Defendant moved for a protective order “requiring [c]laimants to provide satisfactory liability insurance in connection with proposed testing.” The Court of Claims issued an order stating, inter alia, that “[d]efendant shall be required to obtain or pay the costs of the insurance necessary to cover the anticipated testing activities” and that “the amount of insurance necessary shall be as determined by [d]efendant.” * * *

Under Court of Claims Act § 27, “costs, witnesses’ fees and disbursements shall not be taxed . . . by the court to any party.” Frederick v New York State Thruway Auth., 2016 NY Slip Op 06585, 4th Dept 10-7-16

COURT OF CLAIMS ACT (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/ENVIRONMENTAL LAW (HIGHWAY DEICING AGENTS, STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/REAL PROPERTY (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/HIGHWAYS (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/DEICING AGENTS  (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)

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IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT.

The Third Department determined the notice of claim, although “bare bones,” was sufficient under the circumstances because defendant Office of Mental Retardation and Developmental Disabilities (OMRDD) had conducted an investigation into the fire at a residential care facility with caused the death of claimant’s decedent:

Court of Claims Act § 11 (b) “places five specific substantive conditions upon [defendant’s] waiver of sovereign immunity by requiring the claim to specify (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” … . These statutory requirements are “strictly construed” … . The guiding principle and “purpose of the notice of claim requirement [is] to allow [defendant] to investigate the claim and to estimate its potential liability” … . “‘Absolute exactness'” is not required …, but the claim must enable prompt investigation and be “sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability” … . Moreover, defendant is not required “to ferret out or assemble information that section 11 (b) obligates the claimant to allege” … . * * *

Where an agency of defendant has performed the internal investigation of an incident and is therefore the primary or, perhaps, even the sole source of information upon which a claim is based, it cannot be readily found that a lack of specificity has interfered with defendant’s ability to investigate a claim … , nor that defendant has been improperly required to “assemble” information regarding a claim … . Davila v State of New York, 2016 NY Slip Op 04752, 3rd Dept 6-16-16

 

NEGLIGENCE (IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT)/COURT OF CLAIMS (IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT)/NOTICE OF CLAIM (IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT)

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Where the State Is a Potential Joint Tortfeasor Which Cannot Be Joined In the Supreme Court Action with the Other Defendant (Because the State Must Be Sued in the Court of Claims), the Jury in the Supreme Court Trial Should Be Allowed, If Appropriate, to Apportion Damages Between the Defendant and the State

Plaintiff was injured when a tree limb fell and struck her car while she was driving on a state highway. Plaintiff sued both the defendant (the property owner) and the state. However, the state could be sued only in the Court of Claims, so two separate actions were brought against the two potential tortfeasors. The Third Department, in a case of first impression, in a full-fledged opinion by Justice McCarthy, over a partial dissent, determined that evidence of both the defendant’s and the state’s liability could be presented in the Supreme Court trial and the jury should, if appropriate, be allowed to apportion damages between the defendant and the state:

“Under CPLR article 16, a joint tortfeasor whose culpability is 50% or less is not jointly liable for all of [a] plaintiff’s noneconomic damages, but severally liable for its proportionate share” … . The provision was promulgated as a modification of the common-law theory of joint and several liability, the purpose of which was to “remedy the inequities created by joint and several liability on low-fault, ‘deep pocket’ defendants” … . However, where potential tortfeasors are not joined in an action, the culpability of a nonparty tortfeasor may be imposed upon the named defendant if the plaintiff can show that he or she is unable to obtain jurisdiction over the nonparty tortfeasor (see CPLR 1601 [1]). Here, plaintiffs do not face a jurisdictional limitation in impleading the State as a codefendant, but instead cannot do so due to the doctrine of sovereign immunity … . Plaintiffs’ only recourse against the State is to pursue an action in the Court of Claims (see Court of Claims Act §§ 8, 9). Likewise, if defendant is found liable in Supreme Court, it could seek indemnification from the State relative to its share of actual culpability as an additional claimant in the subsequent Court of Claims action … .

CPLR 1601 (1) is silent in regard to whether the State’s proportionate share of liability should be considered in calculating a defendant’s culpability in an action like the one at bar, and we have never decided the issue. * * *

Although we recognize the possibility of inconsistent verdicts as to the apportionment of fault in Supreme Court and in the Court of Claims, we note that this risk arises regardless of whether or not the jury is entitled to apportion liability between defendant and the State … . Given the statutory purpose of CPLR 1601 (1) to “limit[] a joint tortfeasor’s liability for noneconomic losses to its proportionate share, provided that it is 50% or less at fault” …, we find that juries in this scenario should be given the option to, if appropriate, apportion fault between defendant and the State. Artibee v Home Place Corp., 2015 NY Slip Op 06556, 3rd Dept 8-13-15

 

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Failure to Adequately Describe Location of Slip and Fall Rendered Notice of Intention Jurisdictionally Defective

The Third Department determined claimant’s notice of intention was jurisdictionally defective because it did not adequately describe the location of plaintiff’s alleged slip and fall on ice and snow:

Court of Claims Act § 11 (b) requires that a notice of intention to file a claim set forth, among other things, “the time when and place where such claim arose” … . While “absolute exactness” is not necessary … a claimant must “provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of [its] liability” … . “Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result” … .

Claimant’s notice of intention states that he slipped and fell on unseen ice on a sidewalk “on the campus of the State University of New York at Oneonta.” While we recognize that notices of intention are reviewed less strictly than claims …, we nevertheless find that this generalized description of the location at which claimant fell was insufficient to permit defendant to investigate its liability … . Because claimant’s notice of intention was deficient, claimant did not receive the benefit of the two-year extension and was obligated to file his claim within 90 days of its accrual … . As claimant failed to do so, his claim was properly dismissed. Sommer v State of New York, 2015 NY Slip Op 06472, 3rd Dept 8-6-15

 

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Road Washout Was Due to a Highway Design Issue for Which Adequate Remedial Planning Had Been Made—The Washout Was Not, Therefore, Caused by a Highway Maintenance Deficiency to Which the Negligence Standard Applies—State Entitled to Qualified Immunity Re: a Vehicle Accident Caused by a Sinkhole

The Third Department determined the maintenance and construction of a culvert, around which the road repeatedly washed out, was a highway design issue, for which the state was protected by qualified immunity, not a highway maintenance issue, for which a negligence standard applies. Claimant was injured when his vehicle went into a sinkhole near the culvert.

Municipalities unquestionably have a duty to maintain roads in a reasonably safe condition … . With respect to highway safety and design, however, defendant is “accorded a qualified immunity from liability arising out of a highway planning decision” … . Here, the gravamen of the claim is that the 9-foot-high, 15-foot-wide oval culvert that carried the Spuytenduiveil Creek underneath Route 8 was too small and should have been replaced. Plaintiff maintains that this condition presented a maintenance and repair issue that defendant was required to address in its proprietary capacity for which basic negligence and not sovereign immunity principles apply … . * * *

In order to successfully invoke the qualified immunity defense, defendant had the burden of demonstrating that its decision with regard to the replacement of the culvert “‘was the product of a deliberative decision-making process'” … . Even with design planning issues, liability may exist where the municipality does not adequately analyze the condition or if there is no reasonable basis for its plan … . If a remedial plan is developed, “liability may result from a failure to effectuate the plan within a reasonable period of time,” but “a reasonable delay justified by design considerations [or] a legitimate claim of funding priorities would not be actionable” … .

Based upon our review of the probative evidence, we agree with the Court of Claims that the replacement of the culvert presented a design and not a maintenance issue and that defendant was entitled to qualified immunity. Evans v State of New York, 2015 NY Slip Op 06288, 3rd Dept 7-23-15

 

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Service of an Unverified Petition in Violation of the Court of Claims Act Did Not Constitute a Jurisdictional Defect

Reversing the Court of Claims, the Second Department determined that service of a petition which was not verified was not a jurisdictional defect in a proceeding to recover money placed in escrow by the NYS Comptroller pending claims for the state’s appropriation and use of easements.

In accordance with the Eminent Domain Procedure Law, after the Attorney General determined that there was or might be a conflict with regard to the money allegedly owed as a result of the extended use of these temporary easements, the funds were deposited by the New York State Comptroller into a special interest-bearing eminent domain account (see EDPL 304[E][1]). Upon receiving notice of this deposit, the petitioner commenced this special proceeding for the distribution of the money pursuant to EDPL 304(E)(1) and Court of Claims Act § 23. The State promptly rejected the petition, noting that it was served without a proper verification. Within days, the petitioner provided the missing verification. The Court of Claims, however, dismissed the petition, concluding, inter alia, that the failure to comply with the statutory provisions requiring verification constituted a jurisdictional defect that mandated dismissal, without consideration of the merits. The petitioner appeals, and we reverse.

While the time limitations and service requirements set forth in Court of Claims Act §§ 10 and 11 have been referred to as “jurisdictional” … , the instant matter concerns a special proceeding pursuant to EDPL 304(E) for the distribution of money that had been deposited (see Court of Claims Act § 9[12]), and service of the petition without a verification did not constitute an incurable “jurisdictional” defect … . In this regard, the petitioner, upon notice from the State, cured the omission within a matter of days (see CPLR 3022, 3025[a]…). Moreover, considering that no substantive right of the State was prejudiced by the missing verification, even if the omitted material had not been supplied, the Court of Claims, under the circumstances presented to it, should have disregarded the technical infirmity pursuant to CPLR 2001 and 3026 … . Matter of Mazur Bros. Realty, LLC v State of New York, 2015 NY Slip Op 06149, 2nd Dept 7-15-15

 

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Court of Claims Must Determine the Interests of All Parties Named by the Attorney General as Potentially Entitled to Payment for a Taking by the State—Therefore a Claimant Must Join all the Parties Named by the Attorney General

The Second Department explained the procedure under the Eminent Domain Procedure Law (EDPL) for determining how to apportion payment for a taking when there is a dispute about which parties are entitled to payment. Under the EDPL and the Court of Claims Act, the Court of Claims must determine the interests of all parties named by the Attorney General as having a possible claim. Therefore a claimant must join all the named parties in any action seeking payment:

EDPL 304(E)(1) … provides that when the Attorney General determines that there is a conflict with regard to the person or persons legally entitled to receive payment for the value of property acquired by the State through the power of eminent domain, he or she shall request the Comptroller to deposit the funds in an interest-bearing account “to be distributed as ordered by the Court of Claims on application of any person claiming an interest in the amount” (EDPL 304[E][1]). The statute further provides that the procedure to be employed in connection with such an application “shall be the same as provided in [Court of Claims Act § 23],” and that “[n]o judgment of distribution shall be made unless the court shall first obtain personal jurisdiction over all persons certified by the Attorney General as having or claiming to have an interest in the fund” (EDPL 304[E][1]).

The claimant argues, in effect, that Mazur Brothers, Inc. (hereinafter MBI), an entity that the Attorney General has determined has a possible interest in the subject proceeds, does not in fact have any such interest and that, therefore, the claimant was under no obligation to join MBI as a party to this claim. In advancing this argument, however, the claimant essentially asked the Court of Claims to assume the very fact that is the ultimate fact that must be proven, namely, that MBI has no interest in the money deposited by the Comptroller. Without jurisdiction over MBI, it would have been improper for the Court of Claims to grant the relief requested by the claimant in connection with this claim. Indeed, as the claimant appears to have recognized, its remedy, under these circumstances, lies in a special distribution proceeding pursuant to EDPL 304 … . Mazur Bros. Realty, LLC v State of New York, 2015 NY Slip Op 06119, 2nd Dept 7-15-15

 

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Claims Against the State Based Upon Recurrent Flooding Properly In Supreme Court as Opposed to the Court of Claims/Criteria for Inverse Condemnation of Property Explained (Not Met Here)

The Fourth Department, over a two-justice dissent, determined that an action against the state alleging recurrent flooding of plaintiffs’ property was properly in Supreme Court, despite the statutory requirement that claims against the state for monetary damages be brought in the Court of Claims. The Fourth Department held that the state did not demonstrate that the essential nature of the claim was to recover money. The Fourth Department further determined that the cause of action for inverse condemnation was properly dismissed, explaining the criteria:

Contrary to defendant’s contention, the court properly denied that part of its cross motion seeking summary judgment dismissing all claims for money damages. Although defendant is correct that ” claims that are primarily against the State for damages must be brought in the Court of Claims, the Supreme Court may consider a claim for injunctive relief as long as the claim is not primarily for damages’ ” (… see Court of Claims Act § 9 [2]). “Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case” … . Here, defendant failed to establish in support of its cross motion that the essential nature of the causes of action for negligence, continuing nuisance, and continuing trespass is to recover money damages, and thus the court properly declined to grant summary judgment dismissing those causes of action.

We agree, however, with the further contention of defendant that the court erred in denying that part of its cross motion seeking summary judgment dismissing the cause of action for inverse condemnation, and we therefore modify the order accordingly. That cause of action alleged that the flooding intruded onto plaintiffs’ properties and interfered with their property rights to such an extent that it constituted “a constitutional taking requiring [defendant] to purchase the properties from plaintiffs.” It is well settled that such a “taking can consist of either a permanent ouster of the owner, or a permanent interference with the owner’s physical use, possession, and enjoyment of the property, by one having condemnation powers” … . “In order to constitute a permanent ouster, defendant[‘s] conduct must constitute a permanent physical occupation of plaintiff’s property amounting to exercise of dominion and control thereof’ ” … .

Here, defendant met its burden on its cross motion with respect to the cause of action for inverse condemnation by establishing as a matter of law that any interference with plaintiffs’ property rights was not sufficiently permanent to constitute a de facto taking … . Greece Ridge, LLC v State of New York, 2015 NY Slip Op 06072, 4th Dept 7-10-15

 

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Question of Fact Whether State Exercised Due Diligence In Addressing Recurrent Blowing-Snow Problem on Highway

The Third Department, reversing the Court of Claims, determined questions of fact had been raised about whether the state had taken adequate measures to address a recurrent “blowing snow” condition in the vicinity of plaintiff’s-decedent’s highway accident. The court rejected defendant’s argument that the “storm in progress” rule should be applied to blowing snow on a roadway. Rather the inquiry is whether the defendant exercised reasonable diligence in maintaining the roadway under the prevailing circumstances. There was evidence that the area in question was the site of several accidents and that installation of a snow fence may have prevented the problem. The state was unable to demonstrate it had undertaken a relevant study and was therefore unable to invoke qualified immunity:

… [I]t is a matter of established law that “[t]he pertinent inquiry is whether [defendant] exercised reasonable diligence in maintaining [the roadway] under the prevailing circumstances” … . Applying this analysis, ongoing adverse conditions do not excuse defendant from its duty to remediate dangerous conditions, but are relevant to the inquiry as to whether it exercised reasonable diligence in doing so … . * * *

Defendant may be held liable in negligence where it “failed to diligently remedy [a] dangerous condition[] once it was provided with actual or constructive notice or [where] it did not correct or warn of a recurrent dangerous condition of which it had notice” … . “Once [defendant] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger” … . * * *

… [A]n issue of fact exists with respect to whether defendant’s actions in seeking to remedy the recurring hazard of windblown snow by relying solely on plowing were reasonable. * * *

… [D]efendant failed to show that it was entitled to summary judgment on the basis of qualified immunity. When defendant undertakes a “stud[y] [of] a dangerous condition and determines as part of a reasonable plan of governmental services that certain steps need not be taken, that decision may not form the basis of liability” … . Although defendant contends that its decision not to utilize a snow fence or other measures intended to mitigate the hazard of windblown snow resulted from a “reasoned plan or study,” the record is inadequate to demonstrate, as a matter of law, that such a study was undertaken … . Frechette v State of New York, 2015 NY Slip Op 05538, 3rd Dept 6-25-15

 

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