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DEFENDANTS’ MOTION TO DISMISS CLAIMS NOT INCLUDED IN THE NOTICE OF CLAIM PROPERLY GRANTED; MOTION TO AMEND THE NOTICE OF CLAIM AND MOTION FOR LEAVE TO FILE A LATE NOTICE PROPERLY DENIED; JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE CLAIM FOR LOSS OF SERVICES BECAUSE THAT RELIEF WAS NOT REQUESTED (SECOND DEPT).

The Second Department determined defendants’ motion to dismiss claims that were not in the notice of claim was properly granted, and plaintiffs’ motions to amend the notice of claim and for leave to file a late notice of claim were properly denied. The Second Department noted that the loss of services claim should not have been dismissed (sua sponte) because that relief was not requested. The action alleged negligent supervision by the school. Plaintiff student was allegedly pushed into a wall during gym class by another student who had been bullying her for some time:

The plaintiffs’ new claims of other purported bullying incidents and Dupper’s [plaintiff-student’s father’s] claim that he suffered stress, anxiety, and depression as a result of the … incident constitute new theories of liability which were not included in the notice of claim and should be dismissed … . …

The plaintiffs’ proposed amendments to the notice of claim add substantive new facts and new theories of liability not set forth in the original notice of claim and which are not permitted as late filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . …

… [T]he plaintiffs’ failure to include a proposed notice of claim with their cross motion alone was a sufficient basis for denying that branch of the cross motion … . C.D. v Goshen Cent. Sch. Dist., 2020 NY Slip Op 04916, Second Dept 9-16-20

 

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THE TERMINATED SCHOOL EMPLOYEE’S PETITION FOR REINSTATEMENT WAS PROPERLY DISMISSED FOR FAILURE TO TIMELY SERVE A NOTICE OF CLAIM AS REQUIRED BY THE EDUCATION LAW; ALTHOUGH PETITIONER NOTIFIED THE SCHOOL DISTRICT’S SUPERINTENDENT AND THE BOARD OF EDUCATION WAS AWARE OF THE ACTION, FAILURE TO SERVE THE BOARD WAS A FATAL DEFECT (SECOND DEPT).

The Second Department determined the terminated school-district employee’s petition seeking reinstatement was properly dismissed because notice of the action was served on the school district’s superintendent, not the board of education as required by the Education Law:

… [T]he petitioner failed to present his purported notice of claim to the governing body, namely, the Board (see Education Law § 3813[1] …). The letter that the petitioner contends constituted his notice of claim was sent to the School District’s Superintendent, which did “not constitute service upon the Board” … . The petitioner did not submit an affidavit of service or any other evidence to demonstrate that he had in fact served or presented his letter to the governing body … . That the Board ultimately obtained actual knowledge of the letter from the Superintendent’s office was of no moment … . The petitioner’s failure to present his purported notice of claim to the governing body was “a fatal defect” … . Matter of Jovasevic v Mount Vernon City Sch. Dist., 2020 NY Slip Op 04839,  Second Dept 9-2-20

 

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THE SOLAR ARRAY IS ATTACHED TO THE COLLEGE’S LAND AND IS THEREFORE TAXABLE REAL PROPERTY; THE ARRAY IS OWNED BY THE INSTALLER, NOT THE COLLEGE, AND IS THEREFORE NOT EXEMPT FROM TAXATION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the solar array installed on petitioner-college’s land was owned by the installer, Argos, not the college, and is taxable as real property because it is permanently attached to the land:

Respondents contend that the system constitutes taxable real property under RPTL 102 (12) (b). We agree. Pursuant to that statute, taxable real property is defined as “[b]uildings and other articles and structures, substructures and superstructures erected upon, under or above the land, or affixed thereto” (id.). “The common law relating to fixtures provides guidance in determining whether particular items fall within [that] statutory definition” … . “To meet the common-law definition of fixture, the personalty in question must: (1) be actually annexed to real property or something appurtenant thereto; (2) be applied to the use or purpose to which that part of the realty with which it is connected is appropriated; and, (3) be intended by the parties as a permanent accession to the freehold” … . …

… .RPTL 420-a (1) (a) provides, in relevant part, that “[r]eal property owned by a corporation or association organized or conducted exclusively for . . . educational . . . purposes, and used exclusively for carrying out thereupon . . . such purposes . . . shall be exempt from taxation.” “Land and [structures] are separately defined as taxable forms of real property (see RPTL 102 [12] [a], [b]), and [parties to an agreement] may agree to their separate ownership” … . …

Here, it is undisputed that petitioner is a qualifying corporation, but Argos is not, and that the system is used for a qualifying purpose; therefore, whether the system is tax exempt depends on its ownership. Matter of Cornell Univ. v Board of Assessment Review, 2020 NY Slip Op 04636, Fourth Dept 8-20-20

 

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CLAIMANT’S PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS STUDENT-ON-STUDENT ASSAULT CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimant’s petition for leave to file a late notice of claim on the school district in this student-on-student third-party assault case should not have been granted:

” In determining whether to grant such leave, the court must consider, inter alia, whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality’ ” … . …

… [C]laimant described the assault on her child as “unprovoked,” and the accident report prepared contemporaneously by a school nurse, which claimant submitted with her reply affidavit, describes a single punch resulting only in a headache and swollen face. Inasmuch as “an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” …, we agree with respondent that the known facts failed to give “reasonable notice from which it could be inferred that a potentially actionable wrong had been committed by [respondent]”. Matter of Mary Beth B. v West Genesee Cent. Sch. Dist., 2020 NY Slip Op 04630, Fourth Dept 8-20-20

 

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PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS NEGLIGENT SUPERVISION AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ACTION AGAINST THE DEPARTMENT OF EDUCATION STEMMING FROM THE ALLEGED RAPE OF PLAINTIFF ON SCHOOL GROUNDS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for leave to file a late notice of claim should have been granted for the negligent supervision and negligent infliction of emotional distress causes of action against the Department of Education stemming from the the sexual assault of the plaintiff on school grounds:

The DOE had actual knowledge, within the statutory period or a reasonable time thereafter, of the facts constituting [the] claims, which arose as a result of the alleged rape that occurred on September 28, 2017 … . Furthermore, in light of the DOE’s actual knowledge of the essential facts constituting the claims of negligent supervision and negligent infliction of emotional distress, the plaintiff met her initial burden of establishing a lack of substantial prejudice to the DOE in maintaining a defense with respect to those claims … . In opposition, the DOE failed to make a particularized evidentiary showing that it would be substantially prejudiced if the late notice with respect to those claims was allowed … . “[W]here there is actual notice and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim” … . Doe v City of New York, 2020 NY Slip Op 03768, Second Dept 7-8-20

 

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QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS SEX AND DISABILITY DISCRIMINATION ACTION BY A TENURED ASSOCIATE PROFESSOR ON THE EQUAL PAY ACT CAUSE OF ACTION AND CERTAIN NYS HUMAN RIGHTS LAW CAUSES OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the Equal Pay Act (EPA) cause of action and certain NYS Human Rights Law (NYSHRL) causes of action should not have been dismissed in this sex and disability discrimination action brought by a tenured associate professor:

With respect to the cause of action alleging violations of the EPA, defendant failed to establish as a matter of law that the difference in pay between plaintiff and a less senior male colleague who performed similar work under similar conditions “is due to a factor other than sex” … . * * *

With respect to the causes of action for sexual discrimination under Title VII and the NYSHRL, we conclude that issues of fact exist whether defendant’s challenged actions were “based upon nondiscriminatory reasons,” and thus summary judgment is precluded on those causes of action … . Indeed, defendant offered inconsistent and shifting justifications for the pay disparity … . * * *

… [T]he court erred in granting the motion with respect to the sixth cause of action, alleging violations of the NYSHRL based on unlawful retaliation … . To establish a claim for unlawful retaliation under the NYSHRL, a plaintiff must show that “(1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action” … . …  [I]ssues of fact exist whether defendant unlawfully retaliated against plaintiff after she complained of gender discrimination when it required her to retain her position as the undergraduate coordinator while at the same time maintaining her regular course load … . Nordenstam v State Univ. of N.Y. Coll. of Envtl. Science & Forestry, 2020 NY Slip Op 03346, Fourth Dept 6-12-20

 

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QUESTIONS OF FACT RAISED ABOUT THE APPLICABILITY OF THE STORM IN PROGRESS RULE, WHETHER THE DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF WAS INJURED BY A CONDITION HE WAS HIRED TO REPAIR; SLIP AND FALL OCCURRED ON DEPARTMENT OF EDUCATION, NOT NYC, PROPERTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Department of Education’s (DOE’s) motion for summary judgment in this slip and fall case should not have been granted. Plaintiff slipped and fell on an exterior step of a school. Questions of fact were raised about the applicability of the storm in progress rule, whether the defect was trivial, and whether the plaintiff was injured by the condition he was hired to repair. However, the City’s motion for summary judgment was properly granted because the slip and fall occurred on DOE property, not NYC property:

… [A]lthough it is undisputed that a storm was in progress at the time of the plaintiff’s accident, the defendants failed to eliminate triable issues of fact as to whether an allegedly defective condition with the step caused or contributed to the plaintiff’s injuries … . … There may be more than one proximate cause of an accident, and here, the defendants failed to establish, prima facie, that the alleged unevenness of the step was not a proximate cause of the plaintiff’s accident … . …

… [T]he defendants submitted the DOE’s 2010-2011 building condition assessment survey for the school, which indicated that the step was in “poor” condition, described the deficiency as “stone deteriorated substrate,” and noted “replace substrate and reset” as a potential action. Although “[p]hotographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” … , the only photograph submitted by the defendants in their moving papers was a small, black-and-white photograph of the step in the building condition assessment survey for the school, which was indistinct and failed to establish that the alleged defect was trivial as a matter of law … . …

The defendants also failed to demonstrate their prima facie entitlement to judgment as a matter of law on the ground that the plaintiff was injured by the condition he was responsible for repairing … . Mejias v City of New York, 2020 NY Slip Op 03008, Second Dept 5-27-20

 

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OWNER OF A SOLAR ENERGY SYSTEM INSTALLED ON SCHOOL DISTRICT PROPERTY WAS ENTITLED TO THE STATUTORY EXEMPTION FROM REAL PROPERTY TAX DESPITE THE SCHOOL DISTRICT’S RESOLUTION OPTING OUT OF THE EXEMPTION; THE RESOLUTION WAS NEVER FILED AS REQUIRED BY THE REAL PROPERTY TAX LAW (THIRD DEPT).

The Third Department determined the petitioner, Laertes Solar, the owner of a solar energy system installed on school district property, was entitled to the statutory exemption from property tax on the system. The school district had adopted a resolution opting out of the exemption. But the resolution had never been filed with the NYS Department of Taxation and Finance (Department) or the NYS Energy and Research Development Authority (NYSEARDA) as required by the Real Property Tax Law (RPTL 487):

The … examination of “the language of the statute and the legislative intent underlying it” … leads us to agree with Supreme Court that the filing requirements of RPTL 487 (8) are mandatory and that the 2014 resolution was inapplicable to the system given the school district’s failure to meet those requirements during the relevant period (see RPTL 487 [8] [a]). Indeed, although we need not defer to the Department’s interpretation of RPTL 487 given that this case presents a question “of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent”… , it is notable that the Department has also taken the position that an opt-out resolution “must be filed” with both it and NYSERDA … . It follows that — even assuming that the system may be viewed as a distinct parcel of real property that may be taxed — Laertes was entitled to the RPTL 487 exemption for which it applied (see RPTL 487 [6]). Matter of Laertes Solar, LLC v Assessor of the Town of Harford, 2020 NY Slip Op 02302, Third Dept 4-16-20

 

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RESPONDENT WAIVED HIS RIGHT TO ARBITRATE HIS TERMINATION PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT BY BRINGING A BREACH OF CONTRACT ACTION SEEKING THE SAME RELIEF ON THE SAME GROUNDS, AS WELL AS DAMAGES (THIRD DEPT).

The Third Department, reversing Supreme Court, determined respondent (Ferreira) had waived his right to arbitrate his discharge from employment as a teacher pursuant to the collective bargaining agreement (CBA) because he sought an action at law seeking the same relief on the same grounds, as well as damages:

“Generally, when addressing waiver, courts should consider the amount of litigation that has occurred, the length of time between the start of the litigation and the arbitration request, and whether prejudice has been established” … . Moreover, the Court of Appeals has found no waiver where the ultimate objective of multiple procedures is the same, but the grounds urged for relief are discrete … .

Here, Ferreira waived his right to arbitrate because he chose to pursue an action at law asserting virtually the same grounds for relief and remedies sought in the arbitration. His notice of claim, alleging breach of contract, was filed approximately three months prior to his request for arbitration. An action was thereafter commenced, which was still pending at the time of oral argument, and, “[b]y commencing an action at law involving arbitrable issues, [Ferreira] waived whatever right [he] had to arbitration” … . Although use of litigation to preserve the status quo while awaiting arbitration does not effectuate waiver, Ferreira did not merely seek an equitable relief; rather, he sought monetary damages and other affirmative relief as a result of the termination of his employment and petitioner’s alleged violation of the CBA … . Matter of New Roots Charter Sch. (Ferreira), 2020 NY Slip Op 02223, Third Dept 4-9-20

 

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A PART-TIME COLLEGE INSTRUCTOR SHOULD NOT HAVE BEEN AWARDED UNEMPLOYMENT BENEFITS BECAUSE HE HAD BEEN ASSURED OF EMPLOYMENT IN THE SEMESTER FOLLOWING THE SUMMER BREAK; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, over a two-justice dissent, determined claimant, a part-time community college instructor, should not have been awarded unemployment benefits because he had been notified he would be employed in the semester after the summer break. The dissenters argued his employment depended upon course-enrollment which was uncertain:

Pursuant to Labor Law § 590 (10), “professionals who are employed by educational institutions are precluded from receiving unemployment insurance benefits during the period between two successive academic periods if they have received a reasonable assurance of continued employment” … . “A reasonable assurance has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period … . * * *

On the record before us, the Board’s decision was not supported by substantial evidence … . inasmuch as claimant received a reasonable assurance of continued employment for the 2018 fall semester such that he was ineligible to receive unemployment insurance benefits … . Matter of Barnett (Broome County Community Coll.–Commissioner of Labor), 2020 NY Slip Op 02229, Third Dept 4-9-20

 

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