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Negligence and “1983” Causes of Action Against the City and/or City Employees Stemming from the Alleged Failure to Provide Medical Assistance to a Rikers Island Inmate Reinstated

The First Department, reversing Supreme Court, determined there were triable issues of fact concerning whether corrections officers breached a duty to protect the decedent, an inmate at Rikers Island, by failing to respond to decedent’s medical emergency.  The court also determined there were triable issues of fact concerning a 1983 action against one of the city employees based upon her alleged “deliberate indifference” to decedent’s “serious medical needs.”  The court noted that the 1983 action against the city, alleging deliberate indifference, was properly dismissed:

Dozens of eyewitnesses provided conflicting accounts regarding, among other things, the timing of the officers’ calls for medical assistance, and whether resuscitative efforts undertaken before medical personnel arrived were performed by the officers or whether other inmates took such measures in the face of inaction by the officers. Plaintiffs’ expert affirmation raised triable issues of fact as to the adequacy of the officers’ response and the soundness of defendants’ expert’s opinions. The City’s reliance on governmental immunity is unavailing, since there are triable issues of fact as to whether the death was caused in part by a negligent failure to comply with mandatory rules and regulations of the New York City Department of Corrections (DOC), requiring, among other things, that correction officers respond immediately in a medical emergency, and that officers who are trained and certified in CPR administer CPR where appropriate … .

The court correctly dismissed the § 1983 claim against the City. … There is … no evidence of a “policy or custom” evincing deliberate indifference to the rights of inmates … . “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action” … . “Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights” … . Luckey v City of New York, 2014 NY Slip Op 05697, 1st Dept 8-7-14

 

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Ordinary Negligence Standard Applied Where Ambulance (Responding to an Emergency) Struck Plaintiff Who Was Lawfully in the Crosswalk/Questions of Fact Whether There Was a “Special Relationship” Between the City’s Crossing Guard and the Plaintiff, and Whether the Crossing Guard Was Performing Ministerial, Rather than Discretionary, Functions (Such that the City Could Be Held Liable)

In a case involving a pedestrian who was lawfully crossing a street when struck by an ambulance responding to an emergency, in the presence of a city employee acting as a crossing guard, the Second Department determined that ordinary negligence standards applied to the ambulance (not the “emergence” “reckless disregard” standard of Vehicle and Traffic Law 1104) and that there were questions of fact whether the city was liable based upon a “special relationship” with the plaintiff and whether the city was liable because the crossing guard was performing ministerial, rather than discretionary, functions:

Failure to abide by the provisions set forth in Vehicle and Traffic Law §§ 1111 (duty to yield to pedestrians in crosswalk) and 1112 (pedestrian has right of way), which was the injury-causing conduct at issue here, is not privileged conduct pursuant to Vehicle and Traffic Law § 1104(b). As the injury-producing conduct was not specifically exempted from the rules of the road by Vehicle and Traffic Law § 1104(b), the principles of ordinary negligence apply … . * * *

“To impose liability [upon a municipality], there must be a duty that runs from the municipality to the plaintiff. We have recognized a narrow class of cases in which a duty is born of a special relationship between the plaintiff and the governmental entity” … . One of the ways that a special relationship arises is when the municipality “assumes a duty that generates justifiable reliance by the person who benefits from the duty” … . * * *

Further, “[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff apart from any duty to the public in general” … . Here, the City defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them on the basis that the crossing guard’s actions were discretionary. Based on their submissions in support of their cross motion, and under the circumstances here, the City defendants failed to eliminate all triable issues of fact as to whether the crossing guard’s actions constituted ministerial governmental functions … . Benn v New York Presbyt Hosp, 2014 NY Slip Op 05615, 2nd Dept 8-6-14

 

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Equitable Estoppel Against NYS Department of Environmental Conservation (DEC) Not Available Under the Facts

The Third Department determined the doctrine of equitable estoppel could not be applied to a statute of limitations defense raised by the Department of Environmental Conservation (DEC).  The petitioner’s president [Sage] alleged he was told by an employee of the DEC [Lynch] that he need not comply with the 30 day time limit for challenging the DEC’s approval of a Freshwater Wetlands permit:

It is axiomatic that the doctrine of equitable estoppel cannot generally be invoked against governmental agencies in the exercise of their governmental function … . However, estoppel may apply in certain “exceptional cases in which there has been a showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon” … .

Here, less than 30 days after the permit was issued, Sage spoke with Lynch regarding petitioner’s plans to challenge the permit. According to Sage, Lynch explained that he was not adequately familiar with the permit and needed to review the matter. Sage “believe[d]” that it was during this conversation that Lynch told him that petitioner did not need to commence a CPLR article 78 proceeding within 30 days of the issuance of the permit because petitioner had four months to bring a challenge, which would give Lynch time to review it. Although Lynch acknowledged having spoken to Sage about the permit, he denied telling Sage that the applicable statute of limitations was four months or that the limitations period would be extended. Indeed, Lynch averred that he had no authority to waive or extend the applicable statute of limitations on behalf of DEC, and the statement that petitioner attributes to Lynch was, at best, akin to erroneous advice that does not rise to the level necessary to implicate the exception where estoppel may be invoked against a governmental agency… . Matter of Atlantic States Legal Found Inc v NYS Dept of Envtl Conservation, 2014 NY Slip Op 05384, 3rd Dept 7-17-14

 

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Delay In Arrival of an Ambulance During a Snow Storm Not Actionable

The causes of action against the city based upon delay in the arrival of an ambulance during a snow storm were dismissed.  The Second Department determined that both the ambulance service and the snow removal were governmental functions and, in the absence of a special relationship with the decedent, were not actionable:

A municipal emergency response system is “a classic governmental, rather than proprietary, function” … . Contrary to the plaintiffs’ contentions, the amended complaint fails to allege any facts tending to show that there was any “justifiable reliance” on any promise made to the decedent by the defendants. Accordingly, the amended complaint fails to state facts from which it could be found that there was a special relationship between the decedent and the defendants and, therefore, the amended complaint does not state a viable cause of action against the defendants based upon their alleged negligence in responding to the plaintiffs’ 911 call … . Estate of Radvin v City of New York, 2014 NY Slip Op 05302, 2nd Dept 7-16-17

 

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City Employee Blocking Roadway to Facilitate Repairs Was Engaged in a Proprietary, Not a Governmental, Function–Ordinary Rules of Negligence Applied

In a full-fledged opinion by Judge Graffeo, the Court of Appeals reversed the trial court and the appellate division, finding that a city employee was acting in a proprietary, not a governmental, capacity when he told the plaintiff she could proceed on a roadway that he was closing for repairs but did not warn her of the depression in the roadway which caused her to fall.  The question came down to whether the employee was performing a road repair (proprietary) or a traffic control (governmental) function.  Because the employee was deemed to be performing a proprietary function, the ordinary rules of negligence applied to the city:

We recently explained the framework that must be used when a negligence claim is asserted against a municipality in Applewhite v Accuhealth, Inc. (21 NY3d 420 [2013]). First, a court must decide “whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose” (id. at 425). If the municipality's actions fall on the proprietary side, “it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties”… . A governmental entity undertakes a proprietary role when its “activities essentially substitute for or supplement traditionally private enterprises” … . “In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers” (id. [internal question marks and citation omitted]). Generally, “the distinction is that the government will be subject to ordinary tort liability if it negligently provided services that traditionally have been supplied by the private sector” … . In deciding whether a function is proprietary or governmental, a court examines “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 . . . , not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred” … .

Historically, the maintenance of roads and highways was performed by both private entities and local governments, with each subject to the ordinary rules of negligence… . Wittorf v City of New York, 2014 NY Slip Op 04037, CtApp 6-5-14

 

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Causes of Action Against County Personnel Based Upon Negligent Hiring, Training and Supervision Should Not Have Been Dismissed–Plaintiff’s Decedent Was Killed at the Hands of Her Mother and Half-Brother—Complaint Alleged County’s Negligence in Failing to Protect Plaintiff’s Decedent

In a lawsuit alleging county personnel, including deputy sheriffs, were negligent resulting in the death of plaintiff’s decedent at the hands of her mother and half-brother, the Fourth Department determined: (1) governmental immunity could not be determined at the pleading stage because whether the government’s actions were discretionary (and therefore immune) was a question of fact; (2) absent a local law to the contrary, a sheriff can not be held vicariously responsible for the actions of deputy sheriffs under the doctrine of respondeat superior; (3) the causes of action for negligent hiring, training and supervision of county personnel should not have been dismissed; (4) the notices of claim were sufficient to notify the county of the negligent hiring, training and supervision causes of action; and (5) the notice of claim was not defective for failing to name the sheriff in his official capacity.  Mosey v County of Erie, 2014 NY Slip Op 03041, 4th Dept 5-2-14

 

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No Negligence Cause of Action Against Commissioner of Mental Health (Based Upon Alleged Statutory Violations)

The Third Department determined claimant, an insanity acquittee, could not bring a negligence cause of action against the Commissioner of Mental Health based upon alleged violations of Criminal Procedure Law 330.20.  The court explained the applicable law re: the liability of a governmental agency (special duty/special relationship):

The rule is well established “that an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public” … . A special duty will only arise from a special relationship, which can be formed in three ways: “(1) when the [governmental entity] violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the [governmental entity] assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … . Inasmuch as claimant asserts that CPL 330.20 creates a statutory duty for the benefit of the class of which he is a member, i.e., insanity acquittees, only the first of these categories is potentially applicable.

Significantly, “[t]o form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action” … . Because CPL 330.20 does not expressly confer upon insanity acquittees the right to seek civil damages for any failure by the Commissioner to follow the statute’s provisions, “recovery may be had only if a private right of action can be implied” … . A private right of action may be fairly implied when all of the prerequisites are fulfilled, namely: “(1) the [claimant] 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” … . In our view, the legislative history supports the finding of the Court of Claims that CPL 330.20 was primarily enacted to benefit the public, rather than insanity acquittees … . Justice v State of New York, 2014 NY Slip Op 02483, 3rd Dept 4-10-14

 

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Requirements for a Negligence Action Against a Municipality (Based Upon Personal Injuries Allegedly Caused by the Actions of Police Officers) Explained

The Fourth Department, in affirming the grant of summary judgment to the defendant municipality in a suit based upon injuries alleged to have been caused by police officers, the court explained the law relevant to negligence suits against municipalities:

With respect to the negligence cause of action, it is well settled that, in an action against a municipality, it is “the fundamental obligation of a plaintiff pursuing a negligence cause of action to prove that the putative defendant owed a duty of care. Under the public duty rule, although a municipality owes a general duty to the public at large to [perform certain governmental functions], this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created. This is an offshoot of the general proposition that[,] ‘[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally’ . . . The second principle relevant here relates not to an element of plaintiff[’s] negligence claim but to a defense that [is] potentially available to [defendant]—the governmental function immunity defense . . . [T]he common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions . . . [pursuant to which] ‘[a] public employee’s discretionary acts—meaning conduct involving the exercise of reasoned judgment—may not result in the municipality’s liability even when the conduct is negligent’ ” … .

With respect to the issue whether a special duty exists, it is well settled “that an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public . . . Such a duty, . . . [i.e.,] a duty to exercise reasonable care toward the plaintiff[,] is born of a special relationship between the plaintiff and the governmental entity” … . “A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … . According to plaintiff, a special relationship was formed in this case by the second method, i.e., the voluntary assumption of a duty of care by the municipal agency. That method requires plaintiff to establish “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (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 injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking … .

We conclude that defendants met their burden on the motion by establishing as a matter of law that there was no voluntary assumption of a duty of care, and plaintiff failed to raise a triable issue of fact whether the police officers who came to the house assumed, through promise or action, any duty to act on his behalf. Even assuming, arguendo, that plaintiff raised a triable issue of fact with respect to that requirement, we conclude that he also failed to raise a triable issue of fact with respect to the fourth requirement, i.e., whether he justifiably relied on any such assumption of duty by the police officers … . Consequently, we conclude that the court erred in denying the motion with respect to the negligence cause of action.

We further conclude, in any event, that the defense of governmental function immunity constitutes a separate and independent ground for dismissal of the negligence cause of action. That defense “shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions” … . Here, defendants established that they were providing police protection and engaging in the investigation of possible criminal behavior. It is well settled that “[p]olice and fire protection are examples of long-recognized, quintessential governmental functions” … . Furthermore, “defendants established that the conduct of the police officers throughout the course of their interaction with [plaintiff] was undertaken in the exercise of reasoned professional judgment of the officers, and was not inconsistent with accepted police practice. Accordingly, such conduct cannot serve as a basis for municipal liability” … . Bower v City of Lockport…, 159, 4th Dept 3-21-14

 

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Taxi Owners Not Entitled to Damages After Ruling by NYC Taxi and Limousine Commission (Which Was Alleged to Have Damaged the Taxi Owners in the Amount of Over $15 Million) Was Found Arbitrary and Capricious

The First Department determined a ruling by the NYC Taxi and Limousine Commission (TLC), which was found to be arbitrary and capricious by the Court of Appeals, did not entitle the petitioners (taxi owners who lease their taxis to drivers) to damages. The court determined the damages were not “incidental” within the meaning of Article 78 and were not available in an Article 78 proceeding (under the facts). The court futher determined the TLC was immune from suit because the ruling at issue was an exercise of discretion . The ruling by the TLC had effectively reduced the amount a taxi owner could charge a driver by requiring that tax payments for which the owner is responsible be included in the amount charged for the lease (called a “lease cap”). After that ruling was found arbitrary by the Court of Appeals, the taxi owners sought “incidental damages” of over $15 million:

Petitioners seek damages based on the Court of Appeals’ determination that the TLC’s effective reduction of the taxi “lease cap” had no rational basis. The Court of Appeals’ determination, however, does not lead to a conclusion that the damages are “incidental to the primary relief sought” (CPLR 7806). Contrary to petitioners’ argument, monetary injury incurred as a result of agency action does not necessarily constitute incidental damages simply because a court later finds the action to have been arbitrary and capricious. Certainly, whether damages are characterized as incidental “is dependent upon the facts and issues presented in a particular case” … . Even so, incidental damages are generally confined to monies that an agency either collected from or withheld from a petitioner and then was obligated to reimburse after a court annulled a particular agency determination. * * *

CPLR 7806 explicitly limits the availability of damages in an article 78 proceeding … . That article 78 permits the court, in certain circumstances, to award damages in an action that also reviews the validity of a government determination does not create a right to damages that does not otherwise exist. * * *…

[T]he TLC’s determination in this case, however unjustified it may have been, was an exercise of discretion; the TLC did consider the issue of imposing the tax rule and decided to impose it. Putting aside the merits of its decision, there is no escaping that the TLC exercised its discretion. Indeed, a governmental function such as rulemaking is necessarily an “exercise of judgment and discretion performed in the public interest,” and is protected as a discretionary act … . Accordingly, in a plenary action, governmental immunity would preclude petitioners from recovering incidental damages. Metropolitan Taxicab Bd of Trade v New York City Taxi & Limousine Commn, 2014 NY Slip Op 01683, 1st Dept 3-18-14

 

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Imprisonment and Prosecution Based Upon the Violation of an Administratively Imposed Period of Post Release Supervision Gave Rise to Valid False Imprisonment and Malicious Prosecution Causes of Action Against the State

In a lengthy and thorough opinion by Justice Spain, the Third Department determined that the claimant, who was imprisoned and prosecuted based upon an administratively imposed “post release supervision” (PRS) violation, was entitled to summary judgment on his false imprisonment cause of action and had stated a cause of action for malicious prosecution.  The claimant was held in custody and prosecuted after the Court of Appeals had ruled that only the sentencing court can impose a term of post release supervision (Garner v NYS Dept of Correctional Services, 10 NY3d 358 [2008]):

…[C]aimant sufficiently alleged that his confinement was not privileged and it was defendant’s burden to establish that its confinement of claimant after Garner was privileged; defendant failed in the Court of Claims to produce a Division of Parole arrest warrant or a court order so as to demonstrate their validity or that the arrest or confinement of claimant was privileged … .   Further, to clarify, claimant does not challenge his arrest prior to Garner but, rather, premises his claims on his continued detention and reincarceration – after Garner – for a parole violation based upon an administrativelyimposed PRS term that Garner clearly held was invalid, i.e., he raises a claim for false imprisonment and not for false arrest. * * *

…[D]efendant does not have immunity for the actions of its parole officials.  To be sure, inherently discretionary parole decisions of government officials have been recognized to be quasi-judicial decisions entitled to absolute immunity … .  “Where, however, the official has stepped outside the scope of his [or her] authority and acted in the clear absence of all jurisdiction or without a colorable claim of authority, there is plainly no entitlement to absolute immunity, even if the underlying acts are . . . quasi-judicial in nature” … .  That is, “[t]here is a distinction between acts performed in excess of jurisdiction and acts performed in the clear absence of any jurisdiction over the subject matter.  The former is privileged, the latter is not”… . * * *

We similarly conclude that claimant stated a cause of action for malicious prosecution.  To make out a claim for malicious prosecution, claimant must establish: “(1) the commencement or continuation of a criminal proceeding by the defendant against the [claimant], (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” …. .  … On the second prong, claimant need not “demonstrate innocence” of the parole violation in order to satisfy that favorable termination prong; rather, claimant can satisfy it by showing that “there can be no further prosecution of the [alleged parole violation]” … .  We believe it self evident, under the facts here and despite the lack of state law on point, that defendant could not, after Sparber and Garner, ever lawfully prosecute claimant on a parole violation that occurred before those decisions, where the PRS in effect at the time of the alleged violation was imposed by DOCS and was, as such, a nullity… Moulton v State of New York, 515096, 3rd Dept 12-26-13

 

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