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QUESTION OF FACT RAISED ABOUT WHETHER THE HOSPITAL DEFENDANTS MADE A REASONABLE AND SUFFICIENT EFFORT TO LOCATE THE NEXT OF KIN OF THE DECEDENT IN THIS RIGHT-OF-SEPULCHER CASE; THE PUBLIC ADMINISTRATOR, HOWEVER, ENJOYED GOVERNMENTAL FUNCTION IMMUNITY AND NO SPECIAL DUTY WAS OWED PLAINTIFFS (FOURTH DEPT).

The Fourth Department determined plaintiffs had raised a question of fact whether the hospital defendants made reasonable and sufficient efforts to locate the decedent’s next of kin in this right-of-sepulcher case alleging defendants interfered with plaintiffs right to immediate possession of decedent’s body. After the hospital defendants failed to locate the next of kin, the investigation was turned over to the County Public Administrator (PA). After the PA failed to locate the next of kin the decedent was buried. After plaintiffs learned of decedent’s death, the body was exhumed and a memorial service was held at the PA’s expense. The suit against the County PA was properly dismissed because the PA enjoyed governmental function immunity and no special duty was owed plaintiffs:

The common-law right of sepulcher “affords the decedent’s next of kin an absolute right to immediate possession of a decedent’s body for preservation and burial . . . , and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body” … . “To establish a cause of action for interference with the right of sepulcher, [a] plaintiff must establish that: (1) plaintiff is the decedent’s next of kin; (2) plaintiff had a right to possession of the remains; (3) defendant interfered with plaintiff’s right to immediate possession of the decedent’s body; (4) the interference was unauthorized; (5) plaintiff was aware of the interference; and (6) the interference caused plaintiff mental anguish” … . * * *

… [P]laintiffs identified certain records of the hospital defendants, which indicated that decedent had resided, on some occasions, at a local homeless shelter. Those documents were available to the hospital defendants at the time they conducted their search for decedent’s next of kin, and there is no dispute that the hospital defendants did not attempt to contact that homeless shelter during their search.

Plaintiffs also submitted deposition testimony from a person employed by the homeless shelter, who testified that decedent was a frequent resident there and that she knew members of decedent’s family and could have contacted them if she had been notified of decedent’s death. Green v Iacovangelo, 2020 NY Slip Op 03363, Fourth Dept 6-12-20

 

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CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS ACTION STEMMING FROM THE POLICE-KILLING OF AN 18-YEAR-OLD BOY AFTER HIS MOTHER CALLED 911 SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the City defendants’ motion for summary judgment in this negligence, wrongful death and civil-rights-violation action should not have been granted. Plaintiffs’ decedent, 18 years old, was shot and killed by police after his mother called 911. The Second Department noted that Supreme Court properly granted summary judgment to defendants on the cause of action based upon defendants’ alleged failure to follow the Patrol Guide for the apprehension of barricaded and emotionally disturbed persons because the relevant actions were discretionary and thus entitled to governmental immunity:

… [A] municipal defendant cannot be held liable for the negligent acts of its employee police officers where it establishes that the alleged negligent acts involved the exercise of discretionary authority … . Discretionary acts “involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … . …

… [T]he defendants submitted the deposition testimony of each of the defendant officers who fired at the decedent, as well as the deposition testimony of a nonparty civilian who observed the incident. … [T]he testimonies of these witnesses demonstrate the existence of triable issues of fact as to whether … the decedent posed a threat of imminent death or serious physical injury to the defendant officers or others sufficient to justify the officers’ use of deadly physical force against the decedent … . …  [T]he City may not rely on the defense of governmental immunity because the defendant officers’ actions, if negligent, would be in violation of the Patrol Guide’s prohibition against the use of deadly physical force, and therefore, not discretionary … . …

… [Re: 42 USC 1983] the defendants failed to demonstrate, prima facie, the absence of triable issues of fact as to whether the defendant officers’ use of deadly physical force against the decedent was objectively reasonable under the circumstances … . The defendants further failed to establish, prima facie, the absence of triable issues of fact as to whether a reasonable officer, facing the same situation, could have believed that deadly physical force was necessary to protect himself or herself or others from death or serious physical injury, and that the defendant officers are thus entitled to qualified immunity … . Owens v City of New York, 2020 NY Slip Op 03019, Second Dept 5-27-20

 

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MANUFACTURER AND SELLER OF THE PRODUCT WHICH ALLEGEDLY INJURED INFANT PLAINTIFF CANNOT SUE THE PARENTS FOR CONTRIBUTION ON A THEORY OF NEGLIGENT SUPERVISION OF THE INFANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the third-party complaint brought by the defendant manufacturer and seller of a humidifier against the parents of the injured child, alleging negligent supervision of the child, should have been dismissed:

In March 2014, the then-10-month-old infant plaintiff allegedly was injured when she knocked over a humidifier and hot water spilled onto her foot. The infant’s father had placed the humidifier on the living room floor before leaving the apartment with the infant’s five-year-old sibling. The infant’s mother was in the living room when the accident occurred. In August 2014, this action to recover damages for the infant’s injuries was commenced against the defendants, which allegedly manufactured and sold the humidifier. In December 2015, the defendants commenced a third-party action against the parents for contribution. …

There is no legally cognizable cause of action to recover damages for injuries suffered by a minor child against his or her parent for negligent supervision … . Additionally, where a secondary right of contribution is dependent upon “the parent’s alleged failure to perform a duty owing to the plaintiff child, the absence of the primary cause of action defeats the . . . third-party complaint” … . Although there is an exception when the parent’s conduct implicates a duty owed to the public at large … , the acts complained of in the third-party complaint were encompassed within the intrafamily immunity for negligent supervision … . Martinez v Kaz USA, Inc., 2020 NY Slip Op 02776, Second Dept 5-13-20

 

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WHETHER PLAINTIFFS WILL BE ABLE TO ESTABLISH THE CLAIMS IN A COMPLAINT IS NOT CONSIDERED ON A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM; HERE THE DEFENDANTS’ ARGUMENT THAT PLAINTIFFS WILL NOT BE ABLE TO LEARN AN ESSENTIAL ASPECT OF THEIR CASE IN DISCOVERY BECAUSE OF STATUTORY IMMUNITY WAS NOT RELEVANT TO WHETHER THE COMPLAINT STATED CAUSES OF ACTION (FIRST DEPT).

The First Department determined defendant school’s motion to dismiss the complaint was properly denied. Plaintiffs alleged the school retaliated against them after they complained about race-related issues by making a false child neglect report to Child Protective Services (CPS). The school argued the plaintiffs will not be able to learn the identity of the person who reported the alleged neglect because of the immunity provided by the Social Services Law. The 2nd Department explained that the immunity question is not relevant to whether the complaint states causes of action:

… [P]laintiffs assert causes of action for intentional infliction of emotional distress, defamation, violations of the New York State and City Human Rights Laws, and negligent hiring, training and supervision … .

Defendants moved to dismiss all of these causes of action on the basis that plaintiffs would be unable to prove any of these claims because they did not know the identity of the CPS reporter and would be unable to learn it in discovery. …

… [I]n the context of this motion to dismiss, the Court does not assess the relative merits of the complaint’s allegations against defendant’s contrary assertions or to determine whether or not plaintiffs can produce evidence to support their claims … . Whether plaintiffs “can ultimately establish [their] allegations is not a part of the calculus in determining a motion to dismiss” … . Thus, regardless of whether plaintiffs will be able to obtain disclosure concerning the identity of the CPS reporter (Social Services Law § 422[4][A] …), defendants have not demonstrated entitlement to dismissal of the well-pleaded complaint for failure to state a cause of action … . M.H.B. v E.C.F.S., 2019 NY Slip Op 08276, First Dept 11-14-19

 

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NEGLIGENCE, BREACH OF CONTRACT AND DISCRIMINATION CLAIMS BROUGHT BY A DISABLED FORMER POLICE OFFICER CONCERNING GENERAL MUNICIPAL LAW 207-c BENEFITS PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department affirmed the grant of summary judgment to all defendants in this action by a disabled former police officer concerning claims for General Municipal Law 207-c benefits:

With respect to the City defendants, … we conclude that the court properly dismissed the negligence and gross negligence causes of action against them inasmuch as they were entitled to governmental function immunity based on the discretion they are afforded in administering payments of General Municipal Law § 207-c benefits … . Although plaintiff’s negligence and gross negligence causes of action involved the health care services that he was receiving, the City defendants were engaged in a governmental function because they were merely administering the payment of General Municipal Law § 207-c benefits, i.e., they did not actually provide plaintiff with health care services ;;; . Moreover, the City defendants were entitled to immunity inasmuch as the administration of section 207-c benefits involved the exercise of their discretion and the record establishes that the City defendants denied payment of the disputed claims for benefits after actually exercising this discretion … .

… Plaintiff was not a party to the contracts between [the remaining] defendants and City defendants, and therefore liability may be established where, inter alia, “the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launches a force or instrument of harm” (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). Here, the undisputed evidence established that the [defendants] did not have authority to deny payment of plaintiff’s claims for General Municipal Law § 207-c benefits. That authority rested, at all relevant times, with the City defendants. Thus, it cannot be said that these defendants launched any “instrument of harm” because they never made the decision to deny any of plaintiff’s claims for payment of medical care and treatment. …

… [W]e note that plaintiff, as a public employee, may not sue his employer under Title II of the ADA and the Rehabilitation Act, as plaintiff has done here … . Where, as here, plaintiff’s causes of action are “related to the terms, conditions and privileges of his employment[, i.e., his entitlement to benefits under General Municipal Law § 207-c, they] are covered by Title I” and not Title II of the ADA or the Rehabilitation Act … . Vassenelli v City of Syracuse, 2019 NY Slip Op 05878, Fourth Dept 7-31-19

 

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DOCTOR’S REPORTING PLAINTIFFS’ CHILD’S INJURIES TO CHILD PROTECTIVE SERVICES IS PROTECTED BY THE QUALIFIED IMMUNITY PROVISION IN THE SOCIAL SERVICES LAW, PLAINTIFFS’ DEFAMATION ACTION SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant doctor’s (Bludorn’s) and hospital’s motion for summary judgment in this defamation case should have been granted. The injury to plaintiffs’ child had been reported to Child Protective Services which ultimately determined the report to be unfounded:

Social Services Law § 413 requires certain individuals, including physicians like Bludorn, to make a child protective report whenever “they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child.” Where these mandated reporters discharge their reporting duties in good faith, they are accorded qualified immunity from civil liability (see Social Services Law § 419). A mandated reporter’s good faith “shall be presumed, provided [that] such person . . . was acting in the discharge of [his or her] duties and within the scope of [his or her] employment, and . . . such liability did not result from the willful misconduct or gross negligence of such person” … . “The reporting requirements [that] trigger the qualified immunity provision in Social Services Law § 419 are not predicated upon actual or conclusive proof of abuse or maltreatment. Rather, immunity attaches when there is reasonable cause to suspect that the infant might have been abused and when the party so reporting has acted in good faith in discharging the obligations and duties imposed by the statute” … . …

The child’s medical records and the social worker’s written assessment confirmed that plaintiffs had expressed uncertainty as to what had caused the child’s skull fracture and that they had offered two different possible explanations, both of which involved incidents that had occurred several days before they sought medical treatment for the child. Bludorn averred that he made the child protective report in good faith and that, in so reporting, he had no intent other than discharging his statutory duties under Social Services Law § 413 and protecting the interests of his patient. Hunter v Lourdes Hosp., 2019 NY Slip Op 05831, Third Dept 7-25-19

 

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STATEMENTS POSTED ON AN ELECTION-RELATED FACEBOOK PAGE ABOUT THE OPPOSING CANDIDATE ARE NOT SHIELDED BY IMMUNITY AND ARE ACTIONABLE IN THIS DEFAMATION CASE; TO APPEAL THE DENIAL OF A MOTION TO STRIKE PORTIONS OF A COMPLAINT A MOTION FOR LEAVE TO APPEAL MUST BE MADE (THIRD DEPT).

The Third Department determined statements posted on an election-related Facebook page by defendant, a Sheriff running for County Executive, concerning plaintiff, a Deputy County Executive also running for County Executive, were actionable in this defamation case. The court noted that the defendant’s appeal of the denial of his motion to strike certain paragraphs of the complaint (CPLR 3024) was not before the court because a motion for leave to appeal had not been made (CPLR 5701 [b] [3]):

… [W]e reject defendant’s contention that he is shielded from liability due to absolute immunity. This immunity protects government officials, such as defendant, “with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties” … . As such, plaintiff cannot maintain a defamation claim against defendant based upon statements “emanating from official reports and communications” … . Although defendant was commenting about an investigation being conducted by his office, as well as responding to attacks on the credibility of his office, the documentary evidence in the record establishes that the challenged statements were not posted on the official site of the Chemung County Sheriff. Rather, they were posted on defendant’s campaign Facebook page and another Internet website. Under these circumstances, defendant cannot rely on absolute immunity … .

… The statement that plaintiff was “pilfering free gas from taxpayers” is “susceptible to a defamatory meaning, inasmuch as [it] convey[s], at a minimum, serious impropriety and, at worst, criminal behavior” … . Such statement also “has a precise meaning that is capable of being proven true or false” … . …

The complaint alleged that defendant published the false statements and that they “were made in bad faith, with reckless disregard for the truth” and “tend[ed] to subject plaintiff to public contempt, ridicule, aversion, and disgrace.” In view of these allegations, as well as the specific statements at issue, we are satisfied that plaintiff sufficiently pleaded malice … . Krusen v Moss, 2019 NY Slip Op 05733, Third Dept 7-18-19

 

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THE CITY’S STUDIES OF THE INTERSECTION WHERE INFANT PLAINTIFF WAS STRUCK BY A CAR WERE DONE IN THE SUMMER WHEN NO SCHOOL CHILDREN USED THE INTERSECTION, THEREFORE THE CITY WAS NOT ENTITLED TO SUMMARY JUDGMENT BASED ON THE DOCTRINE OF QUALIFIED IMMUNITY, THE STUDIES HAD CONCLUDED NO TRAFFIC CONTROL DEVICE WAS NECESSARY, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the city’s motion for summary judgment in this intersection pedestrian traffic accident case should not have been granted. Infant plaintiff, the eight years old, attempted to cross the street, Avenue J, to get on his school bus when he was struck by a vehicle. The city submitted evidence that a studies of the intersection had been done which found that no traffic control device was required. Therefore, the city argued, and Supreme Court agreed, it was entitled to qualified immunity precluding suit:

… [I]n the field of traffic design engineering, the [governmental body] is accorded a qualified immunity from liability arising out of a highway planning decision” … . Under the doctrine of qualified immunity, a governmental body may not be held liable for a highway safety planning decision unless its study of the traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan . Immunity will apply only “where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury” … .

Here, the City failed to sustain its prima facie burden on the issue of qualified immunity. The City established that, in response to citizen complaints, it had conducted studies of the subject intersection in 2005 and 2007 and concluded that no traffic control device on Avenue J was warranted. However, the City did not establish that those studies, which took place in the summertime, were conducted at times when the subject schools were in session. The City also failed to establish that the studies addressed the specific concern of schoolchildren crossing Avenue J to reach awaiting buses and, thus, did not establish that it had entertained and passed on the very same question of risk that is at issue in this case … . Tyberg v City of New York, 2019 NY Slip Op 05177, Second Dept 6-26-19

 

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INCLUSION OF CLAIMANT’S PHOTOGRAPH ON A WALL OF SHAME DEPICTING PERSONS ARRESTED DURING OPERATION SAFE INTERNET, AN INVESTIGATION INTO THE USE OF THE INTERNET FOR THE SEXUAL EXPLOITATION OF CHILDREN, CONSTITUTED ACTIONABLE DEFAMATION BY IMPLICATION SUPPORTING A $300,000 DAMAGES AWARD (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined the Court of Claim’s decision awarding claimant $300,000 in this defamation-by-implication action against the state was supported by the evidence. Claimant had been arrested during Operation Safe Internet, but only because of the alleged Internet communication by claimant’s roommate. Claimant was arrested solely for possession of drugs and his case was subsequently adjourned in contemplation of dismissal and ultimately dismissed with the record sealed. In a televised news conference about an initiative to “investigate and prosecute crimes involving the online sexual exploitation of children, ” under a sign saying “Internet Crimes Against Children,” claimant’s photograph was one of 61 on a “wall of shame” depicting those who had been arrested during the investigation:

… [W]e now adopt a two-part test to determine whether the first element is met in causes of action alleging defamation by implication, requiring proof (1) that the language of the communication as a whole reasonably conveys a defamatory inference, and (2) that such language affirmatively and contextually suggests that the declarant either intended or endorsed the inference … . * * *

… [W]ithout providing more information to the public regarding the underlying facts of claimant’s case, to a reasonable viewer, the communication as a whole falsely implied that claimant, whose photograph was on the wall of shame, had engaged in a sexual crime against a child … . * * *

… [W]e find that claimant has established that the context of defendant’s communication as a whole can be reasonably read to affirmatively suggest that defendant intended or endorsed the defamatory inference that claimant was arrested for a crime involving the online sexual exploitation of a child  … . In fact, the very placement of claimant’s photo in the array strongly suggested to the public that defendant intended and endorsed the message that claimant belonged on the “wall of shame” because of his fictional crime against children. Further, the use of a small, unreadable label listing the crime for which claimant was actually arrested, which was the particular manner in which the true facts were conveyed, supplied “additional, affirmative evidence suggesting that the defendant intend[ed] or endorse[d] the defamatory inference” that claimant had been arrested for a crime involving the sexual exploitation of a child … . Partridge v State of New York, 2019 NY Slip Op 03715, Third Dept 5-9-19

 

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QUESTION OF FACT WHETHER THE RECKLESS STANDARD APPLIED IN THIS PEDESTRIAN-POLICE CAR ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether the reckless standard applied in this pedestrian-police car traffic accident case. The court noted that the governmental function immunity doctrine does not apply to this scenario:

The governmental function immunity doctrine does not apply in this case where plaintiff pedestrian was injured when she was struck by a police vehicle that was allegedly pursuing a vehicle that had committed a traffic infraction … . Instead, where a plaintiff alleges that a municipality and/or its employees were negligent in the ownership or operation of an authorized emergency vehicle while engaged in one of the activities protected by Vehicle and Traffic Law § 1104(b), the “reckless disregard” standard set forth in Vehicle and Traffic Law § 1104(e) applies … .

Here, a factual issue exists as to whether defendants were engaged in a protected activity under Vehicle and Traffic Law § 1104(b), namely, proceeding past a steady red signal (see Vehicle and Traffic Law § 1104[b][2]), while pursuing a vehicle for a traffic violation so as to apply the reckless standard of care as opposed to ordinary negligence principles … . Santana v City of New York, 2019 NY Slip Op 01348, First Dept 2-26-19

 

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