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NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT.

The Second Department determined the City emergency response personnel did not enter into a special relationship with plaintiff’s decedent based upon the 911 operator’s assurance an ambulance was on its way. There was some confusion about where plaintiff’s decedent was located which resulted is some delay in the arrival of help:

Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by establishing that no special relationship existed between it and the decedent … . The defendant demonstrated, prima facie, that the firefighters did not assume an affirmative duty to act on the decedent’s behalf, and, in opposition, the plaintiffs failed to raise a triable issue of fact … . Moreover, even assuming that the 911 operator’s assurance that an ambulance was on its way constituted an assumption by the defendant of an affirmative duty to act on behalf of the decedent, the defendant demonstrated, prima facie, that the decedent and the plaintiffs did not rely to their detriment on that assurance. In opposition, the plaintiffs failed to raise a triable issue of fact. The record does not show that the plaintiffs were lulled by any assurance made by the 911 operator into a false sense of security that caused them “to forego other available avenues of protection” … . Holloway v City of New York, 2016 NY Slip Op 05627, 2nd Dept 7-27-16

MUNICIPAL LAW (NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT)/ GOVERNMENTAL IMMUNITY (NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT)/NEGLIGENCE (GOVERNMENTAL IMMUNITY, (NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT)

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PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED.

The Second Department, over a dissent, determined defendants Long Island Power Authority (LIPA) and National Grid Electric Services (NGES) were not protected by government-function immunity. The lawsuit alleged defendants were negligent in not cutting off electrical power during Hurricane Sandy, resulting in fires which damaged plaintiffs’ property. The court held the defendants were performing proprietary, not governmental, functions and standards of ordinary negligence therefore applied:

… [T]he provision of electricity is properly categorized as a proprietary function. The provision of electricity has traditionally been a private enterprise in this State, and the Legislature clearly created LIPA as a public authority to substitute for a private enterprise … . * * *

… [T]he functions of electric utilities in the ordinary course of providing electricity and in responding adequately to a hurricane are both part of the proprietary core functions of their business. True, here, the appellants’ actions, because of the size of LIPA’s customer base, affected many people and many businesses. True, too, LIPA’s response to the hurricane may have involved complex considerations. But every private electric utility in the region faced the same hurricane. Heeran v Long Is. Power Auth. (LIPA), 2016 NY Slip Op 05486, 2nd Dept 7-13-16

 

NEGLIGENCE (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)/GOVERNMENTAL IMMUNITY (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)/PUBLIC UTILITIES (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)/PROPRIETARY FUNCTION (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)

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COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM.

The Third Department, reversing Supreme Court, determined the county’s motion for summary judgment should have been granted. During a hurricane, a county drainage system overflowed and damaged plaintiffs’ property. The county was immune from suit based upon the design and placement of the drainage system. And the plaintiff’s failed to raise a question of fact concerning the allegation the county negligently maintained the drainage system:

… [T]o the extent that plaintiffs’ negligence claim alleges that defendant failed to adequately design or redesign the drainage system, it cannot be maintained. Decisions “‘determining when and where [drainage ditches] shall be built, of what size and at what level, are of a quasi judicial nature, involving the exercise of deliberate judgment and large discretion . . . [which] is not subject to revision by a court or jury in a private action for not sufficiently draining a particular lot of land'” … .

The act of maintaining a drainage system, on the other hand, is ministerial in nature and, thus, governmental immunity will not insulate defendant from plaintiffs’ alternative claim that it did so negligently … . “Nonetheless, [defendant] is not an insurer of its [drainage] system and cannot be held liable for injury unless it is shown that the injury was caused by active negligence in the maintenance of the system” … . Watt v County of Albany, 2016 NY Slip Op 04281, 3rd Dept 6-2-16

 

MUNICIPAL LAW (COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM)/IMMUNITY (GOVERNMENTAL IMMUNITY, COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM)/STORM DRAINAGE SYSTEMS (COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM)

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RABBINICAL COURT IMMUNE FROM SUIT UNDER DOCTRINE OF ARBITRAL IMMUNITY.

The Second Department, reversing Supreme Court, determined rabbinical arbitrators were immune from suit in the absence of an allegation the rabbinical court acted in the clear absence of all jurisdiction. The fact that a court previously determined the rabbinical court acted in excess of its authority did not destroy the arbitral immunity:

Here, the factual allegations of the complaint merely asserted conduct by the rabbinical defendants in their capacity as arbitrators … . It is well established that arbitrators are immune from liability for acts performed in their arbitral capacity … . Such immunity also applies to acts taken in excess of authority … . As the plaintiffs failed to allege how any of the acts of the rabbinical court defendants were undertaken in the clear absence of all jurisdiction, these defendants enjoy arbitral immunity from civil liability … . Pinkesz Mut. Holdings, LLC v Pinkesz, 2016 NY Slip Op 04034, 2nd Dept 5-25-16

ARBITRATION (RABBINICAL COURT IMMUNE FROM SUIT UNDER DOCTRINE OF ARBITRAL IMMUNITY)/IMMUNITY (RABBINICAL COURT IMMUNE FROM SUIT UNDER DOCTRINE OF ARBITRAL IMMUNITY)/RABBINICAL COURTS (RABBINICAL COURT IMMUNE FROM SUIT UNDER DOCTRINE OF ARBITRAL IMMUNITY)/ARBITRAL IMMUNITY (RABBINICAL COURT IMMUNE FROM SUIT UNDER DOCTRINE OF ARBITRAL IMMUNITY)

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DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO BOTH QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY.

The Second Department determined defendants' motion to set aside the plaintiff's verdict, in a case alleging use of excessive force by police officers, should have been granted. Plaintiff, who was mentally ill, punched a police officer who approached him and ran up some stairs. When the police attempted to restrain him, he and the officers fell down the stairs. The Second Department held the facts did not support a finding of excessive force. The court further held the officers did not clearly violate plaintiff's statutory or constitutional rights and were therefore entitled to qualified immunity. In addition, the Second Department found the officers were performing a discretionary, not ministerial function, and were therefore entitled to government function immunity, requiring dismissal of the negligence cause of action. On the topic of qualified immunity, the Second Department wrote:

“The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” … . While the doctrine does not require “a case directly on point, . . . existing precedent must have placed the statutory or constitutional question beyond debate” … . The dispositive question is whether the violative nature of particular conduct is clearly established … . “This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition” … . “Such specificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts” … . “This exacting standard gives government officials breathing room to make reasonable but mistaken judgments' by protect[ing] all but the plainly incompetent or those who knowingly violate the law'” … . Davila v City of New York, 2016 NY Slip Op 03846, 2nd Dept 5-18-16

MUNICIPAL LAW (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/IMMUNITY (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/CIVIL RIGHTS (POLICE, EXCESSIVE FORCE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/QUALIFIED IMMUNITY (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/GOVERNMENT FUNCTION IMMUNITY (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/NEGLIGENCE (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)

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TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983.

The Second Department, reversing Supreme Court, determined defendant members of a town board were absolutely immune from a lawsuit stemming from their legislative activities:

… [T]he defendants are entitled to dismissal of the complaint insofar as asserted against the defendants who are members of the Town Board … based on the principle of absolute immunity. Local legislators are “absolutely immune from suit under [42 U.S.C.] § 1983 for their legislative activities” … , and such immunity is applicable to all actions within the “sphere of legitimate legislative activity” … . The allegations asserted in the complaint against the Town Board defendants are based on actions that were legislative and within the sphere of legislative activity. Therefore, the Town Board defendants are entitled to absolute immunity … .

The defendants are also entitled to dismissal of the complaint insofar as asserted against the defendant Robert W. Fitzsimmons, an official with the Town … building department. The complaint does not allege that Fitzsimmons undertook any actions that violated “clearly established constitutional rights of which a reasonable person would have been aware” … . Therefore, the defendants are entitled to dismissal of the complaint insofar as asserted against Fitzsimmons, based on the principle of qualified immunity … . 24 Franklin Ave. R.E. Corp. v Cannella, 2016 NY Slip Op 03499, 2nd Dept 5-4-16

MUNICIPAL LAW (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/IMMUNITY (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/ABSOLUTE IMMUNITY (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/QUALIFIED IMMUNITY (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/42 USC 1983 (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)

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THE CITY (NYC) HAD ENTERED A SPECIAL RELATIONSHIP WITH DEFENDANT PROPERTY OWNERS CONCERNING THE REPAIR OF A DEFECTIVE SIDEWALK, DEFENDANTS WERE ENTITLED TO CONTRIBUTION FROM THE CITY IN THIS SLIP AND FALL CASE.

The Second Department determined defendant property owners, the Bilellos, were entitled to contribution from the city (NYC), based upon a special relationship with the city, in a sidewalk slip and fall case. Tree roots had raised the sidewalk in front of the Bilellos property. The city issued a notice of violation to the Bilellos and the Bilellos were told by the city not to touch the sidewalk until a plan for repair was developed by the city. The Department of Forestry never got in touch with the Bilellos and plaintiff tripped and fell over the defect 11 months after the Bilellos' last communication from the city:

Here, it is undisputed that the City did not owe a direct duty of care to the plaintiff, because the 2003 enactment of Administrative Code of City New York 7-210 shifted liability for injuries arising from sidewalk defects from the City to the abutting property owner … . However, if the City owed an independent, special duty to the Bilellos, it may be held liable “for the portion of the damage attributable to [its] negligence, despite the fact that the duty violated was not one owing directly to the injured person” … . “Such a duty is found when a special relationship exists between the municipality and an individual or class of persons warranting the imposition of a duty to use reasonable care for those persons' benefit” … . To establish the existence of a special relationship based on a municipality's voluntary assumption of a duty, the party asserting the relationship has a heavy burden to prove the following elements: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the party; and (4) the party's justifiable reliance on the municipality's affirmative undertaking … . Stanciu v Bilello, 2016 NY Slip Op 02802, 2nd Dept 4-13-16


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QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN; QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM.

The Third Depatment, in a full-fledged opinion by Justice Garry, determined questions of fact had been raised about governmental immunity and tort liability arising from contract in a property-damage case arising from road renovation work. Village officials and the contractor hired to do the road work (Merritt) decided to allow what was thought to be a small water leak to remain unaddressed temporarily. The leak was apparently created when a fire hydrant was removed to accommodate the road work. At some point the water main burst, causing flooding and a mudslide which damaged plaintiffs' property. The questions before the court were whether the village should be allowed to amend its answer with a governmental-immunity affirmative defense, and whether an indemnification cross-claim against the contractor (Merritt) by the village should have been allowed. The Third Department answered both questions in the affirmative. Although maintenance of a water system for fire protection is a governmental function to which immunity applies, maintenance of the water system generally is a proprietary function, to which immunity would not apply. With respect to Merritt, although tort liability does not usually arise from a contract, here there was a question of fact whether Merritt “launched an instrument of harm” which would trigger liability in tort. With respect to whether governmental immunity applied, the court explained:

A threshold inquiry in determining if a municipality is entitled to immunity in a negligence action is “whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose” … . Where the alleged negligence arose out of proprietary, rather than governmental acts, no immunity will attach and a municipality will generally be liable to the same extent as a private actor … . The maintenance of a municipal water system to provide water for the private use of residents has been deemed to be a proprietary function … . However, where the alleged negligence stems from municipal efforts to protect the safety of the public by “aggregating and supplying water for the extinguishment of fires,” it is engaged in a government function entitled to immunity … . These established rules can present challenges as applied to modern municipal water systems that are used to provide water to both homes and hydrants … . In such cases, where a municipality can be seen to be serving dual governmental and proprietary roles, we must look to “the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred” … . Billera v Merritt Constr., Inc., 2016 NY Slip Op 02503, 3rd Dept 3-31-16

MUNCIPAL LAW (QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/GOVERNMENTAL IMMUNITY (QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/PROPRIETARY FUNCTION (QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/NEGLIGENCE (MUNICIPAL LAW, QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/TORT LIABILITY ARISING FROM CONTRACT (QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM)/CONTRACT LAW (QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM)/NEGLIGENCE  (QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM)

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County Did Not Demonstrate Its Entitlement to Qualified Immunity Re: Obstructed Intersection

The Second Department determined the county did not demonstrate (as a matter of law) it was entitled to qualified immunity for  the placement of a sensor station and the failure to trim the nearby hedges. The complaint alleged the sensor station and hedges obstructed plaintiff’s view of oncoming traffic, resulting in an accident. The county’s motion for summary judgment was properly denied. The court explained the analytical criteria:

A governmental body owes a nondelegable duty to keep its streets in a reasonably safe condition … . However, a governmental body is accorded a qualified immunity from liability arising out of a highway safety planning decision … . Such immunity is predicated upon an ability to demonstrate that the relevant discretionary determination by the governmental body was the result of a deliberative decision-making process … .

Contrary to the County’s contention, it did not sustain its prima facie burden on the issue of qualified immunity. The County failed to demonstrate, inter alia, that its placement of the sensor station cabinet and its decision to refrain from trimming the hedge were highway safety planning decisions resulting from a deliberative decision-making process of the type afforded immunity from judicial interference … . Iacone v Passanisi, 2015 NY Slip Op 08386, 2nd Dept 11-18-15

 

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The State’s “Donate Life Registry” (Re: Consent to Organ Donation) Is a Governmental, Not Proprietary, Function

The Third Department, in a full-fledged opinion by Justice Peters, reversing the Court of Claims, determined the “donate life registry,” which is based upon consent to organ donation indicated on driver’s license renewal applications, was a governmental, not a proprietary, function. Therefore the state may not be held liable for negligence with respect to organ donation absent a special relationship. No special relationship was alleged here. The lawsuit alleged claimant’s mother did not consent to the donation of her organs and that the Department of Health negligently interpreted a drawn line on the renewal application as a signature. The Court of Claims had upheld the “violation of the right of sepulcher” cause of action. The opinion includes detailed discussions of the law surrounding governmental versus proprietary functions, as well as the nature of governmental involvement in organ donation:

Quintessential examples of purely governmental functions include police and fire protection … and traffic regulation … . On the other hand, a governmental entity acts in a purely proprietary capacity when it serves as a landlord by virtue of its ownership and maintenance of property … . In determining where along the continuum a governmental entity’s challenged conduct falls, it is necessary to examine “‘the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred'”… . * * *

By establishing the Donate Life Registry and facilitating the identification of organ and tissue donors and the making of anatomical gifts through DMV applications and renewals, defendant is protecting and promoting the health and welfare of the public through the exercise of its general police powers. It is axiomatic that “‘[p]rotecting health and safety is one of municipal government’s most important duties'”… . Drever v State of New York, 2015 NY Slip Op 07726, 3rd Dept 10-22-15

 

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