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PLAINTIFF POLICE OFFICER WAS PARTICIPATING IN A TRAINING SESSION WHEN HE WAS BITTEN BY A POLICE DOG; THE TRAINING WAS A GOVERNMENTAL FUNCTION; THEREFORE THE MUNICIPALITY MUST HAVE OWED PLAINTIFF A SPECIAL DUTY TO BE LIABLE, NOT THE CASE HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipality (City of Middletown) did not owe a special duty to plaintiff police officer, who was bitten by a police dog during training: The dog handler, Officer McDonald (a City of Middletown police officer), and plaintiff were participants in training sessions conducted by the NYS Homeland Security and Emergency Services when the unleased dog bit plaintiff:

As part of the training, the police dogs were off-leash. The plaintiff, who was participating in a different training event in a different building, entered the building where the explosives detection training exercise was being held and was still in progress when he was bitten by Officer McDonald’s police dog.

When a negligence cause of action is asserted against a municipality, and the municipality was exercising a governmental function, a municipality may not be held liable unless it owed a special duty to the injured party … . Such a special duty can arise, as relevant here, where “the municipality took positive control of a known and dangerous safety condition” … . Here, the defendants established, prima facie, that they did not owe a special duty to the plaintiff. There was no evidence that Officer McDonald [the dog handler] took positive control of a known and dangerous safety condition which gave rise to the plaintiff’s injuries … . The defendants established that Officer McDonald was an attendee at a training program conducted by the New York State Homeland Security and Emergency Services at a New York State facility, that he merely participated in the training exercise, and that he took direction from the NYPD canine instructor. Mahar v McDonald, 2025 NY Slip Op 00315, Second Dept 1-22-25

Practice Point: Here the police dog handler did not have control of the unleashed dog when it bit plaintiff. The dog and the handler were participating in an explosive-detection training session conducted by a third party. Because the dog handler had not taken control of a known and dangerous safety condition (the dog) at the time plaintiff was injured, the dog handler did not owe plaintiff a special duty, a prerequisite to municipal liability.

 

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PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY AN EMPLOYEE OF THE COUNTY SHERIFF’S DEPARTMENT IN A GUARDED DEPARTMENT PARKING LOT AND IN A LOCKED BATHROOM IN THE JAIL; BECAUSE THE COUNTY WAS ENGAGED IN A GOVERNMENTAL, NOT A PROPRIETARY, FUNCTION (PROVIDING SECURITY FOR THE PARKING LOT AND JAIL), PLAINTIFF MUST DEMONSTRATE THE COUNTY OWED HIM A SPECIAL DUTY, WHICH HE WAS UNABLE TO DO (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the negligence action against the county in this Child Victims Act case should have been dismissed. Plaintiff alleged defendant Weis, a corrections officer employed by defendant Suffolk County Sheriff’s Department, sexually abused him in a guarded parking lot at the Sheriff’s Department and in a locked bathroom in the jail. The Second Department held that the alleged negligence related to a governmental function, not a proprietary function of the Sheriff’s Department, requiring plaintiff to demonstrate he was owed a “special duty:”

… [T]he specific acts or omissions that allegedly caused the plaintiff’s injuries were the defendant’s decisions regarding the level of security and surveillance to provide in a fenced-in jail parking lot, with admission controlled by a posted guard, or within the facility itself. Those decisions go beyond the scope of the defendant’s duty as a landlord and constitute actions undertaken in the defendant’s police protection capacity … . Accordingly, the specific acts or omissions at issue here involved a governmental function.

… [B]ecause the defendant was engaged in a governmental function, the plaintiff was required to demonstrate that the municipality owed him a “special duty” … . A special duty can arise, as relevant here, where “the plaintiff belonged to a class for whose benefit a statute was enacted” or “the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally” … . Here, the defendant demonstrated, prima facie, that it did not owe a special duty to the plaintiff, and the plaintiff failed to raise a triable issue of fact in opposition … . Neary v Suffolk County Sheriff’s Dept., 2025 NY Slip Op 00105, Second Dept 1-8-25

Practice Point: It is not easy to determine whether a governmental entity is engaged in a governmental function or a proprietary function at the time of an alleged negligent act or omission. Here plaintiff alleged abuse by a Sheriff’s Department employee in the guarded department parking lot and in a locked bathroom in the jail. The Second Department deemed the security of the parking lot and the jail a governmental function (acting as a landlord) and held the county could not be liable unless it owed plaintiff a ‘special duty.” Plaintiff was unable to demonstrate a “special duty.”

 

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A REPORT OF A ROAD DEFECT SUBMITTED THROUGH A CITY’S ONLINE REPORTING SYSTEM MAY CONSTITUTE “WRITTEN NOTICE” TRIGGERING MUNICIPAL LIABILITY FOR INJURY CAUSED BY THE DEFECT (CT APP).

The Court of Appeals, in full-fledged opinion by Judge Garcia, determined there was a question of fact whether the online reporting of a road defect constituted “written notice” of the defect such that the municipality may be liable for plaintiff’s motorcycle accident. The Court noted that the plaintiff also raised a question of fact whether the city created the road defect, obviating the need for written notice, and the doctrine of sovereign immunity does not apply to the proprietary function of road repair:

Plaintiff was injured when he lost control of his motorcycle on Lark Street in the City of Albany. He brought this lawsuit claiming that the accident was caused by a road defect that the City knew about and had failed to repair. The primary issue on appeal is whether certain reports submitted to the City through an online reporting system called “SeeClickFix” (SCF) served as “written notice” of that defect and, if so, whether those reports were “actually given” to the official designated by statute to receive such notice. Viewing the evidence in the light most favorable to plaintiff, based on the implementation and use of the SCF system by the City and its Department of General Services (DGS), we hold that plaintiff raised a triable issue of fact as to prior written notice to the appropriate City official. We further hold that plaintiff raised a triable issue of fact regarding the affirmative negligence exception to the prior written notice requirement, and that the City lacks governmental immunity from suit. We therefore affirm. * * *

… [A]t the time of the accident, the City’s prior written notice statute provided:

“No civil action shall be maintained against the City for damages or injuries to person or property sustained in consequence of any street . . . being defective, out of repair, unsafe, dangerous or obstructed unless, previous to the occurrence resulting in such damages or injury, written notice of the defective, unsafe, dangerous or obstructed condition of said street . . . was actually given to the Commissioner of Public Works and there was a failure or neglect within a reasonable time after the receipt of such notice to repair or remove the defect, danger or obstruction complained of” (Albany City Code former § 24-1 …). Calabrese v City of Albany, 2024 NY Slip Op 06289, CtApp 12-17-24

Practice Point: Here a report of a road defect had been submitted through an online reporting system implemented by the city. There was a question of fact whether such a report constituted “written notice” of the road defect, and whether the notice was actually given to the commissioner of public works.

 

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OFFICIALS OF A NATIVE AMERICAN NATION CAN BE SUED IN NEW YORK STATE COURTS FOR OFF-RESERVATION ACTIONS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, over a partial concurrence and partial dissent, determined the trustees (officials) of a sovereign Native American nation may be sued in New York State courts for their off-reservation actions. Here the defendants constructed billboards within a highway right of way which traversed land owned by the Nation. The opinion addresses an issue of first impression and is too complex and detailed to fairly summarize here:

In March and April 2019, the defendants allegedly had trees cut and removed from within the highway right-of-way, without obtaining a work permit from the DOT, and the DOT allegedly issued two stop work orders to the defendants’ alleged contractors. Thereafter, the defendants allegedly began trenching and placed large equipment, a pile of stones, and support piles within the highway right-of-way, without a work permit from the DOT. The DOT allegedly issued another stop work order and a cease and desist letter to the defendants. The plaintiffs alleged that the defendants ignored the stop work orders and the cease and desist letter. * * *

… [N]otwithstanding sovereign immunity, Native Americans “going beyond reservation boundaries are subject to any generally applicable state law,” “[u]nless federal law provides differently” … . Here, the plaintiffs alleged that the structures are being constructed upon the subject property, over which the State has a permanent easement. The plaintiffs further alleged that the subject property is not aboriginal or sovereign land of the Nation, the Nation owns the subject property in fee simple, and the subject property is not part of the Reservation nor held in trust by the federal government. Thus, according to the plaintiffs, the Trustee defendants have engaged in conduct “beyond reservation boundaries,” and they are subject to generally applicable state laws … . Commissioner of the N.Y. State Dept. of Transp. v Polite, 2024 NY Slip Op 06023, Second Dept 12-4-24

Practice Point: Officials (trustees) of a Native American Nation can be sued in New York State courts for off-reservation actions. Here the trustees constructed billboards on a highway right of way which traversed land owned by the Nation.

 

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NEW JERSEY TRANSIT CORPORATION CANNOT ASSERT THE SOVEREIGN IMMUNITY DEFENSE IN THIS TRAFFIC ACCIDENT CASE; THE ACCIDENT INVOLVED A NEW JERSEY TRANSIT CORPORATION BUS AND OCCURRED IN NEW YORK CITY (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, over two concurrences and a dissent, determined the New Jersey Transit Corporation could not assert the sovereign immunity defense in this traffic-accident case:

In Franchise Tax Bd. of Cal. v Hyatt, the United States Supreme Court recognized that the text and structure of the Federal Constitution not only preserved States’ pre-ratification sovereign immunity, but compelled absolute recognition of that immunity in other States’ courts as a matter of “equal dignity and sovereignty” … . However, the Court did not address how to determine whether a state-created entity is entitled to this immunity. We glean from the Court’s analysis that the relevant inquiry is whether subjecting a state-created entity to suit in New York would offend that State’s dignity as a sovereign. We hold that, to answer this question, courts must analyze how the State defines the entity and its functions, its power to direct the entity’s conduct, and the effect on the State of a judgment against the entity. Considering these factors, we conclude that maintaining this action against defendant New Jersey Transit Corporation (NJT) in our courts would not offend New Jersey’s sovereign dignity and accordingly hold that defendants are not entitled to invoke a sovereign immunity defense. On February 9, 2017, a bus owned and operated by NJT allegedly struck and injured plaintiff Jeffrey Colt as he traversed a crosswalk on 40th Street in Manhattan. The bus was driven by defendant Ana Hernandez, an employee of NJT. Colt and his wife, plaintiff Betsy Tsai, commenced this action on September 18, 2017, asserting causes of action for negligence, negligent hiring, and loss of consortium. Defendants answered the complaint and denied many of plaintiffs’ factual allegations. Defendants asserted—as part of an exhaustive list including many boilerplate defenses—that plaintiffs’ recovery was “barred by lack of jurisdiction over NJT” and “barred as this Court lacks jurisdiction,” and that defendants were “immune from suit.” Colt v New Jersey Tr. Corp., 2024 NY Slip Op 05867, CtApp 11-25-24

Practice Point: Here the New Jersey Transit Corporation could not invoke the sovereign immunity defense to a New York City traffic accident involving a New Jersey Transit Corporation bus.

 

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IN THIS CHILD VICTIM’S ACT CASE ALLEGING SEXUAL ABUSE AFTER PLACEMENT IN FOSTER CARE BY THE DEFENDANT COUNTY, THE SECOND DEPARTMENT, DISAGREEING WITH THE FIRST AND FOURTH DEPARTMENTS, DETERMINED THE COUNTY OWED PLAINTIFF A SPECIAL DUTY UPON ASSUMING CUSTODY OVER HER FOR FOSTER-CARE PLACEMENT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ventura, affirming Supreme Court’s denial of the county’s motion for summary judgment, expressly disagreeing with contrary rulings in the First and Fourth Departments, determined a municipal agency which assumes custody over a child for the purpose of placing the child in foster care owes a special duty to the child. In this Child Victims Act case, plaintiff alleged sexual abuse during the 1970’s by her foster father and, during a different foster placement, by her adult neighbor:

The Court of Appeals has long held 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” … . In this case, we consider how this rule applies in the context of claims against municipalities for the negligent placement and supervision of children in foster care. In contrast to the recent holdings of the Appellate Division, First and Fourth Departments, we conclude that a municipal agency owes a special duty to a foster child upon assuming legal custody of that child. An agency that assumes custody of a foster child, and which selects and supervises that child’s foster parents, necessarily owes a duty to the child “more than that owed the public generally” … . Thus, where, as here, a plaintiff asserts causes of action to recover damages for harm suffered by a foster child due to the negligent performance of a governmental function and alleges facts sufficient to show that the defendant municipal agency assumed legal custody over that child, that plaintiff need not prove any additional facts in order to satisfy the special duty rule. Adams v Suffolk County, 2024 NY Slip Op 05428, Second Dept 11-6-24

Practice Point: A municipality’s liability for negligence in performing a governmental function is predicated upon owing the injured party a special duty, over and above that owed to the general public. Here, disagreeing with contrary holdings in the First and Fourth Departments, the Second Department held a county which assumes custody of a child for placement in foster care owes a special duty to that child.

 

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THE ACTIONS TAKEN BY THE 911 DISPATCHER AND THE EMERGENCY MEDICAL TECHNICIANS CONSTITUTED THE EXERCISE OF DISCRETION IN THE PERFORMANCE A GOVERNMENT FUNCTION; THE GOVERNMENT FUNCTION IMMUNITY DEFENSE INSULATED THE MUNICIPAL DEFENDANTS FROM LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipal defendants were entitled to summary judgment dismissing the negligence action stemming from decisions made by emergency personnel in response to a 911 call. The emergency services, including the dispatch of a “Basic Life Support” (BLS), as opposed to an “Advanced Life Support” (ALS) ambulance, and the attempts to intubate the unresponsive plaintiff rather than to immediately transport her to the hospital, were deemed the exercise of discretion while performing a government function. Discretionary actions taken in performance of a government function are insulated from liability by the government-function-immunity defense:

“[W]hen both the special duty requirement and the governmental function immunity defense are asserted in a negligence case, the rule that emerges is that government 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” … . In other words, in a negligence action where the municipality has raised the governmental function immunity defense, a plaintiff may only hold the municipality liable for actions taken in its governmental capacity where (1) a special duty exists and (2) the municipality’s actions were ministerial in nature and not the result of discretionary decision-making … . * * *

The defendants demonstrated that the 911 dispatcher’s decision, among other things, to send a BLS ambulance rather than an ALS ambulance “was discretionary and, therefore, protected by the doctrine of governmental immunity” … . Under the circumstances presented, the defendants also established that the EMTs exercised their discretion in declining to immediately transport [plaintiff] to the nearby hospital and to instead wait for the paramedics in the ALS ambulance to arrive. Similarly, the defendants demonstrated that the actions of the paramedics resulted from discretionary decision-making, including with regard to the type of treatment to render … . Walker-Rodriguez v City of New York, 2024 NY Slip Op 05237, Second Dept 10-23-24

Practice Point: Consult this decision for a concise but complete one-paragraph compilation of all the issues associated with municipal liability for negligence–proprietary versus government function, special duty, discretionary versus ministerial acts, etc.

 

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HERE THE COMPLAINT STATED A CHILD-VICTIMS-ACT CAUSE OF ACTION AGAINST THE STATE; THE STATE ASSUMES A DUTY OF PROTECTION AGAINST HARM FOR A CHILD IN ITS CUSTODY; THE COMPLAINT WAS NOT DEFECTIVE FOR FAILURE TO ALLEGE THE STATE OWED PLAINTIFF A SPECIAL DUTY, OVER AND ABOVE THAT OWED THE GENERAL PUBLIC (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Aarons, over a concurrence, determined the complaint in this Child Victims Act action alleging sexual abuse while under the care of the state should not have been dismissed. The issue was whether the complaint must allege a special duty owed by the government to the plaintiff. The Third Department found that a special duty need not be alleged to survive a motion to dismiss under the facts alleged:

A cause of action for negligence requires proof that defendant owed the claimant a legally recognized duty, that “defendant breached that duty and that such breach was a proximate cause of an injury suffered by the [claimant]” … . That said, “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 can arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition” … . Claimant does not dispute that he has not pleaded one of those three bases for a special duty, instead contending that he was not required to so plead because he was in OCFS’s [Office of Children’s and Family Services’] custody.

We agree. Mindful that our review requires us to determine “whether the alleged facts fit within any cognizable legal theory” … , claimant’s failure to plead a special duty is not fatal to the extent his claim alleges negligence in the performance of obligations stemming from OCFS’s custody of him during his placement at the Schenectady facility … . When a government entity assumes custody of a person, thus diminishing that person’s ability to self-protect or access those usually charged with such protection, that entity owes to that person a duty of protection against harms that are reasonably foreseeable under the circumstances … . The duty of protection is coextensive with the entity’s “physical custody of and control” of the person, terminating at the point the person passes out of the “orbit of [the entity’s] authority” … . Thus, we have held that “[a] governmental foster care agency is under a duty to adequately supervise the children in its charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision,” including “negligence in the selection of foster parents and in supervision of the foster home” … . A.J. v State of New York, 2024 NY Slip Op 04231, Third Dept 8-15-24

Practice Point; When the state assumes custody of a child, it owes the child a duty of protection against harm. Under the facts of this case, the plaintiff was not required to alleged the state owed a special duty to the plaintiff.

 

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THE IMMUNITY CONFERRED ON HEALTHCARE PROVIDERS DURING THE COVID PANDEMIC CAN BE BASED ON THE OVERALL STRAIN ON THE OVERWHELMED HEALTHCARE SYSTEM; ALTHOUGH THE DEFENDANTS IN THIS MED MAL CASE MAY DEMONSTRATE ENTITLEMENT TO IMMUNITY AS THE CASE PROGRESSES, THEY DID NOT DEMONSTRATE ENTITLEMENT TO IMMUNITY AS A MATTER OF LAW SUCH THAT THE COMPLAINT SHOULD BE DISMISSED (SECOND DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, determined defendants in this med mal case were not entitled to dismissal of the complaint based upon the immunity conferred by the Emergency or Disaster Treatment Protection Act (EDPTA) during the COVID pandemic. The plaintiff-patient, who did not have COVID, fell near his hospital bed and suffered a brain injury. After he fell, and before he suffered any symptoms of the injury from the fall, he was examined by two doctors. The doctors were not made aware of the fall. The defendants moved to dismiss the complaint at the outset of the case based on the EDPTA, noting that the immunity conferred by the statute was based upon the overall strain placed on the healthcare system by the pandemic. The Second Department determined that, although the defendants may be able to demonstrate their entitlement to immunity as the case progresses, they did not demonstrate entitlement to immunity as a matter of law such that the complaint should be dismissed at the outset:

… [O]f the three conditions imposed by former Public Health Law § 3082(1), there is no question that defendants were arranging for or providing health care services as per the statute, and were doing so in good faith. The parties’ dispute distills to whether defendants established, conclusively, that “the treatment of [plaintiff was] impacted by [defendants’] decisions or activities in response to or as a result of the COVID-19 outbreak” (former Public Health Law § 3082[1][b]). * * *

A statute conferring immunity must be strictly construed … , and a party seeking its protections “must conform strictly with its conditions” … . In this regard, we note that only minimal discovery had been conducted at the time the motion was made, and that the applicability of the defense, itself, requires a fact-intensive inquiry. Whether or not defendants may ultimately be able to demonstrate that they are entitled to immunity, it is premature to deem the analysis completed at this juncture … . Holder v Jacob, 2024 NY Slip Op 03864, First Dept 7-18-24

Practice Point: Healthcare providers may be entitled to statutory immunity during the COVID pandemic. Here the defendants were unable to demonstrate entitlement to immunity as a matter of law such that the med mal complaint should be dismissed. But they may be able demonstrate entitlement to immunity as the case progresses.

 

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PLAINTIFF WAS INJURED AT JFK AIRPORT, OWNED BY THE PORT AUTHORITY OF NY & NJ, BY A FORKLIFT WHICH WAS BACKING UP; THE FACT THAT REAR-VIEW MIRRORS WERE OPTIONAL WAS NOT A DESIGN DEFECT, CRITERIA EXPLAINED; THE PORT AUTHORITY WAS IMMUNE FROM A NEGLIGENCE ACTION ALLEGING FAILURE TO INSPECT THE FORKLIFT, CRITERIA EXLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court in this forklift-accident case, determined the fact that the rear-view mirrors for the forklift were optional was not a design defect, and the landlord, the Port Authority, was immune from the negligence action alleging a failure to properly inspect the forklift:

… Unicarriers [defendant forklift manufacturer] established … the plaintiff’s employer was thoroughly knowledgeable about forklifts and knew that mirrors were available, since it maintained more than 100 forklifts in operation in New York, and the brochure for the forklift listed rearview mirrors as an optional feature. Unicarriers also established that the forklift was not unreasonably dangerous without backup mirrors and that the plaintiff’s employer was in the best position to balance the benefits and the risks of not having mirrors on the forklift … . * * *

… [T]he Port Authority established, prima facie, that its alleged failure to properly inspect the forklift and its issuance of a Port Authority license plate were governmental functions. Contrary to the plaintiff’s contention, the forklift inspections performed by the Port Authority and the issuance of the license plate were an exercise of the Port Authority’s police power for the protection and safety of the public rather than any authority conferred by a landlord-tenant relationship … . The actions of the Port Authority did not create a special duty toward the plaintiff because the inspections were designed to protect public safety rather than the safety of particular individuals … . Strassburger v Unicarriers Ams. Corps., 2024 NY Slip Op 01742, Second Dept 3-27-24

Practice Point: Here in this forklift accident case, the fact that rear-view mirrors were optional was not a designe defect. The relevant criteria are explained.

Practice Point: Here the Port Authority of NY & NJ, the landlord for JFK Airport, was exercising a governmental function when inspecting the forklift and therefore was immune from suit, criteria explained.

 

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