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LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint seeking a declaration that plaintiff is the owner, by adverse possession, of land adjacent to municipal railway tracks states a cause of action. The court explained that land held by a municipality in a proprietary capacity, as opposed to a governmental capacity, is not immune from adverse possession:

Although a municipality cannot lose title through adverse possession to property which it owns in its governmental capacity, or which has been made inalienable by statute… , when a municipality holds real property in its proprietary capacity, there is no immunity against adverse possession … . Here, the [municipality] did not conclusively establish that the property is not subject to adverse possession on the basis of governmental immunity. Mazzei v Metropolitan Transp. Auth., 2018 NY Slip Op 06007, Second Dept 9-12-18

MUNICIPAL LAW (LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT))/REAL PROPERTY LAW (ADVERSE POSSESSION, MUNICIPAL LAW, (LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT))/IMMUNITY (MUNICIPAL LAW, ADVERSE POSSESSION, LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT))/ADVERSE POSSESSION (MUNICIPAL LAW, ADVERSE POSSESSION, LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT))/PROPRIETARY CAPACITY (MUNICIPAL LAW, ADVERSE POSSESSION, (LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT))

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CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT).

The First Department determined the city was immune from suit stemming from alleged interference with the right of sepulcher during Hurricane Sandy, which flooded the Bellevue Hospital morgue. The court further determined there was no special relationship between plaintiff and the city:

Contrary to plaintiffs’ argument, the right of sepulcher does not, by definition, trump governmental immunity … acted in its governmental capacity at all relevant times… . The specific act from which plaintiffs’ claims arise is the City’s treatment of the decedent’s body in the context of Hurricane Sandy, i.e., as the hurricane approached, once it had struck, and in its aftermath. Plaintiffs seek to ignore or minimize the significance of that context. However, their claims directly implicate the City’s emergency preparations and the decisions it made during and immediately after the unprecedented hurricane, which caused, among other things, unprecedented flooding in the Bellevue Hospital morgue — all quintessential governmental functions. Moreover, these preparations and decisions were discretionary, not ministerial … . Thus, the record demonstrates the elements of governmental function immunity from liability as a matter of law … .

Plaintiffs failed to establish the special relationship with the City required for holding the City liable for their injury … . In support of their contention that the City violated a statutory duty enacted for their benefit, they rely on statutes that do not contemplate private rights of action and, in any event, are not relevant to this case, which does not involve autopsy, dissection or unclaimed remains (see Public Health Law § 4215) or individuals fighting for control over the disposition of those remains … . Nor did plaintiffs establish that, in its treatment of the decedent’s body in the wake of Hurricane Sandy,the City voluntarily assumed a duty that generated their justifiable reliance … . Lee v City of New York, 2018 NY Slip Op 05626, First Dept 8-2-18

SEPULCHER (CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT))/MUNICIPAL LAW (SEPULCHER, CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT))/NEGLIGENCE (SEPULCHER, CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT))/NEGLIGENCE (SEPULCHER, CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT))/IMMUNITY (MUNICIPAL LAW, SEPULCHER, CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT))

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COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT).

The Second Department, in a comprehensive and informative analysis, determined plaintiff had stated a negligence cause of against the town for the shooting death of plaintiff’s decedent, Nigro. The town police had responded to Nigro’s residence where she told the police her live-in companion, Groesbeck, had assaulted her. She also told the police Groesbeck, a former New Jersey police officer, had an unlicensed handgun. The police did not arrest Groesbeck, but took possession of the handgun. The police later returned the handgun to Groesbeck who subsequently shot and killed Nigro with it. The Second Department found that the complaint adequately alleged a special relationship between Nigro and the town, and further found that the town did not demonstrate the doctrine of governmental immunity applied as matter of law:

… [C]onstruing the complaint liberally and according the plaintiff the benefit of every possible favorable inference, it was sufficient to allege the existence of a special relationship between the Town and Nigro. The complaint adequately alleged “direct contact” between the agents of the Town and Nigro … , and that the Town police department undertook “through promises or actions” an affirmative duty, on behalf of Nigro, to safeguard Groesbeck’s handgun … . In addition, the complaint adequately alleged circumstances indicating that the Town, through its agents, knew that the return of the handgun to Groesbeck “could lead to harm” … . The Town’s evidentiary submissions failed to “utterly refute” these factual allegations as a matter of law … .

… [T]he complaint was also sufficient to allege Nigro’s “justifiable reliance” on the Town’s affirmative undertaking to safeguard Groesbeck’s handgun … .  * * *

… [A] factfinder could reasonably conclude that Groesbeck’s use of the allegedly illegal handgun to harm Nigro was a “foreseeable consequence of the situation created by the [Town’s] negligence” … . * * *

The issue of whether a defendant is entitled to governmental immunity is distinct from the issue of whether a special duty exists in a particular case… . The doctrine of governmental immunity refers to “an affirmative defense on which [a defendant] bears the burden of proof” … . * * *

Even assuming that the allegedly negligent act of returning the handgun was discretionary in nature, it cannot be said, as a matter of law, that “the discretion possessed by [the Town] was in fact exercised” … , or that any such exercise of discretion was “in compliance with the municipality’s procedures” … . Santaiti v Town of Ramapo, 2018 NY Slip Op 04584, Second Dept 6-20-18

​MUNICIPAL LAW (NEGLIGENCE, COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/GOVERNMENTAL IMMUNITY (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/POLICE (NEGLIGENCE, COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/THIRD PARTY ASSAULT, LIABILITY FOR (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))

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NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT).

The Second Department determined no special relationship had been formed between the police department and plaintiff’s decedent, who was killed by her husband after she alerted the police he had contacted her in violation of an order of protection. The husband had previously taken plaintiff’s decedent and their two teenage daughters hostage and threatened them with knives and a shotgun. The police department was immune from suit:

Generally, “a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection” … . When a cause of action alleging negligence is asserted against a municipality, and the municipality is exercising a governmental function, the plaintiff must first demonstrate that the municipality owed a special duty to the injured person … . The elements required to establish such a duty are: “(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” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that, while the police endeavored to contact the husband in order to instruct him not to further communicate with the decedent, the police did not promise to arrest the husband and the decedent could not have justifiably relied upon assurances of police protection … . Axt v Hyde Park Police Dept., 2018 NY Slip Op 04298, Second Dept 6-13-18

​NEGLIGENCE (MUNICIPAL LAW, POLICE, NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, POLICE, NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, POLICE, NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, POLICE, NEGLIGENCE, IMMUNITY, NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT))

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PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined there was no special relationship between the town and the plaintiffs. The town had allowed fill to be dumped near a stream (Normanskill) by issuing a permit to the property owner, 165 Salisbury Road LLC. A landslide occurred which caused flooding on plaintiffs’ property:

To establish that a municipality created a special relationship by voluntarily assuming a duty, a plaintiff must show: “(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) the party’s justifiable reliance on the municipality’s affirmative undertaking”… . Plaintiffs failed to allege any assumption by the Town to act on their behalf, any direct contact between them and any agent of the Town or any justifiable reliance by plaintiffs … .

As for the third way of forming a special relationship, the municipality must not only assume positive direction or control when a known, blatant and dangerous safety violation exists, but must “affirmatively act to place the plaintiff in harm’s way,” through words or conduct that “induc[e] the plaintiff to embark on a dangerous course he or she would otherwise have avoided” … . Although we recently held that Normanskill and 165 Salisbury Road alleged a special relationship with the Town on this basis … , the alleged safety violation existed on property owned or leased by those parties. They were in a markedly different position than plaintiffs.

Plaintiffs are removed from the Normanskill property that was directly affected by the fill and permit activities, and the complaint contains no allegations that plaintiffs were even aware of, or had contact with any of the parties involved in, those activities. The allegations provide no indication of how plaintiffs could have been induced by the Town to embark on any course of action, let alone a dangerous one that they would otherwise have avoided … . Szydlowski v Town of Bethlehem, 2018 NY Slip Op 04066, Third Dept 6-7-18

MUNICIPAL LAW (NEGLIGENCE, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))/NEGLIGENCE (MUNICIPAL LAW, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))/LANDSLIDES (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))/FLOODING  (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))

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CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, BUT CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT). ​

The Second Department determined the city was properly found liable for the stabbing death of plaintiff’s decedent in a parking garage, but found that the city should not have been held 100% liable. Operating a parking garage is a proprietary function to which governmental immunity does not apply:

Contrary to the City’s contention, it was not entitled to governmental immunity for these claims, which arose out of the performance of proprietary functions. In that respect, the plaintiffs offered proof that the City failed in its capacity as a commercial owner of a public parking garage to meet the basic proprietary obligation of providing minimal security for its garage property … . …

… [T]he plaintiffs made out a prima facie case of negligence at trial, and the jury’s finding in this regard was not against the weight of the evidence. Under the circumstances of this case, in which the plaintiffs established that the City employed almost no security measures in the parking garage where the decedent was murdered, no expert testimony was necessary for the plaintiffs to establish that the City breached its duty to provide minimal security precautions to protect the patrons of the parking garage where the decedent was murdered … . Additionally, in light of the history of criminal activity in the parking garage, which included people being ambushed as they walked to their cars, as was the decedent in this case, the City should have been aware of the “likelihood of conduct on the part of third [parties]” that would “endanger the safety” of visitors to the garage … . …

… [T]he apportionment of 100% of the fault in the happening of the attack to the City was not supported by a fair interpretation of the evidence … . An apportionment of 65% of the fault to the defendant and 35% of the fault to the nonparty tortfeasor better reflects a fair interpretation of the evidence … . Granata v City of White Plains, 2018 NY Slip Op 03964, Second Dept 6-6-18

​NEGLIGENCE (MUNICIPAL LAW, CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, ASSAULT, CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT))/IMMUNITY (MUNICIPAL LAW, ASSAULT, CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT))/ASSAULT (MUNICIPAL LAW, NEGLIGENCE, CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT))/PARKING GARAGE (MUNICIPAL LAW, CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT))

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PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined the city could not be held liable for a “trespass activity” motorcycle accident in the parking lot at Yankee Stadium. Trespassers have used the parking for motorcycles, dirt bikes and all-terrain vehicles for recreation for years. Plaintiff’s decedent was killed in a collision in the parking lot. Under the General Obligations Law the city could not be liable unless its conduct was willful or malicious:

The decedent, who trespassed onto a Yankee Stadium parking lot in the off season together with other trespassers who similarly rode motorcycles, dirt bikes and all-terrain vehicles, suffered fatal injuries in a collision with an all-terrain vehicle operated by defendant Pena. The record shows that the nature of the trespass activity involved was commonplace for the parking lot in question, for at least two years, and that drag racing would sometimes be involved. Plaintiff alleged that the City (as lot owner) and Kinney (as lessee) were negligent for not repairing and/or securing the lot’s perimeter fence, and in not employing proper security or supervision to keep trespassers off the premises.

Here, the subject property was physically conducive to the motorcycle activity taking place thereon, and was appropriate for public use in pursuing the activity as recreation (see General Obligations Law § 9-103). As such, the City is immune from liability for any ordinary negligence on its part that may have given rise to the cause of the decedent’s accident, and plaintiff has not otherwise demonstrated that the City’s challenged conduct was willful or malicious as might preclude the City’s reliance on the defense afforded under General Obligations Law § 9-103 … .

Furthermore, although Kinney has not relied upon General Obligation Law § 9-103 as a potential defense to the action against it, the statute’s defense is available to lessees as well as property owners … . Inasmuch as the issue appears on the face of the record, involves no new facts and could not have been avoided if it were timely raised … . Rodriguez v City of New York, 2018 NY Slip Op 03821, First Dept 5-29-18

​NEGLIGENCE (MUNICIPAL LAW, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/MUNICIPAL LAW (NEGLIGENCE, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/TRESPASS ACTIVITY (MUNICIPAL LAW, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))/GENERAL OBLIGATIONS LAW (MUNICIPAL LAW, IMMUNITY, PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF  A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT))

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DEFENDANT CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the defendant city’s motion for summary judgment in this car-pedestrian injury case should not have been granted. The city had paved a driveway which connected a road to a pave walking path in a park. Defendant driver, who was intoxicated, drove his car to the park path where plaintiffs had been walking their dogs. There were no barriers or warning signs. The city was not immune because maintenance of a park is a proprietary, not a governmental function:

… [W]e note that, while the City has a duty to maintain its roads in a reasonably safe condition … , plaintiffs’ claims also implicate the City’s “duty to maintain its park and playground facilities in a reasonably safe condition”… . We thus reject the City’s contention that it is immune from liability because plaintiffs’ claims arise from its performance of a governmental function. “It is well settled that regardless of whether or not it is a source of income the operation of a public park by a municipality is a quasi-private or corporate and not a governmental function” … . Furthermore, a “municipality may not ignore the foreseeable dangers [it created], continue to extend an invitation to the public to use the area and not be held accountable for resultant injuries” … . Similarly, where, as here, it is undisputed that the City did not consider and render a determination regarding any potential danger prior to paving the driveway, the City’s maintenance of the intersection in question is also a proprietary function … . …

The City never disputed in its motion papers that it paved the driveway during its development of the park, thereby creating the condition of which plaintiffs now complain, but it instead argued that “[p]laintiffs have offered no evidence” that the City failed to adhere to applicable design standards or that the driveway created or enhanced a risk to park patrons. It is well established that “a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent’s proof” … . Similarly, because the City relied exclusively on its argument, unsupported by any evidence, that a defective or dangerous condition did not exist for which a warning was required, it also failed to establish as a matter of law that it had no duty to warn of the foreseeable danger of collision created by this driveway access … . Brady v City of N. Tonawanda, 2018 NY Slip Op 03253, Fourth Dept 5-4-18

​NEGLIGENCE DEFENDANT (CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))/MUNICIPAL LAW (NEGLIGENCE, IMMUNITY, CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))/IMMUNITY (CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))/PARKS (NEGLIGENCE, MUNICIPAL LAW, IMMUNITY, CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))/PROPRIETARY FUNCTION (NEGLIGENCE, MUNICIPAL LAW, CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))/SUMMARY JUDGMENT (GAPS IN PROOF, CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))

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COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT).

The Third Department determined the complaint stated causes of action in negligence against the town. Plaintiffs operated and owned property on which they were placing fill. The town issued a permit allowing the filling. The fill caused a substantial landslide. The Third Department found that the complaint alleged a special relationship between the town and plaintiffs, and further alleged that the town engineer did not have the discretion to issue the truncated permit which was issued. Therefore the complaint sufficiently alleged governmental immunity could not be invoked:

Plaintiffs alleged that the Town Engineer directly stated to them that he can “override” the requirements of the Town Code “if [he] is confident that the fill will ‘increase stability’ of the slope” and that, on this basis, he did not require plaintiffs to submit all of the mandated components of a fill permit application. The complaint also alleged that defendant was aware of prior landslides along the same creek and that, after the incident on plaintiffs’ property, the Town Engineer cited a recent study indicating that the local soil was prone to landslides but, regardless of this knowledge, he had suggested to third parties that they dispose of fill at the property. …

Alternatively, plaintiffs have alleged sufficient facts to show that a special relationship existed because defendant assumed positive direction and control in the face of a known, blatant and dangerous safety violation. Plaintiffs alleged that the filling activities at the property “created a blatant risk of catastrophic failure of the bank,” that defendant “had been made aware of this blatant risk when it intervened at the [p]roperty” and that defendant demonstrated control over the property by directing plaintiffs to cease filling activities and obtain a fill permit and referring third parties to the property to dispose of fill. … * * *

The complaint alleges that the Town Code requires that a full application be submitted for a fill permit, the Town Code mandates that the Town Engineer require that all application components be submitted and that, as regards plaintiffs, the Town Engineer did not require submission of a completed application. Considering these Town Code requirements, the Town Engineer did not have the authority to make a discretionary determination to either grant or deny a fill permit until he had received a completed application, which never occurred here because he told plaintiffs that they did not need to submit some of the components of the application that are required under the Town Code … . Normanskill Cr., LLC v Town of Bethlehem, 2018 NY Slip Op 02697, Third Dept 4-19-18

​NEGLIGENCE (MUNICIPAL LAW, IMMUNITY, COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT))/MUNICIPAL LAW (NEGLIGENCE, IMMUNITY, COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT))/GOVERNMENTAL IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT))/SPECIAL RELATIONSHIP (NEGLIGENCE, MUNICIPAL LAW, IMMUNITY, COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT))

, ,

PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined the duty to keep a state park safe is a proprietary function, not a governmental function. The governmental immunity doctrine does not apply. Therefore the claimant’s motion for summary judgment based upon his being bitten by a rabid fox in a park was properly granted:

“The relevant inquiry in determining whether a governmental agency is acting within a governmental or proprietary capacity is 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’ ” … .

Here, claimant’s injuries allegedly resulted from defendant’s negligent failure to take adequate steps to protect park patrons from reasonably foreseeable danger, despite having actual notice of a potentially rabid animal on the park premises hours before the incident. “It is well settled that regardless of whether or not it is a source of income the operation of a public park by a municipality is a quasi-private or corporate and not a governmental function”… . Further, “a municipality is under a duty to maintain its park . . . facilities in a reasonably safe condition” … . That “duty goes beyond the mere maintenance of the physical condition of the park . . . and, although strict or immediate supervision need not be provided, the municipality may be obliged to furnish an adequate degree of general supervision which may require the regulation or prevention of such activities [or other conditions] as endanger others utilizing the park” … . Thus, we conclude that the court properly determined that claimants’ allegations that defendant failed “to minimize the risk posed with a relevant warning and effective notification to the [p]ark [p]olice” implicated defendant’s proprietary, not governmental, duties. Agness v State of New York, 2018 NY Slip Op 01747, Fourth Dept 3-16-18

COURT OF CLAIMS (PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/IMMUNITY (PARK SAFETY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/ANIMAL LAW  (PARK SAFETY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/PROPRIETARY FUNCTION  (PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/PARKS (COURT OF CLAIMS, PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/RABID ANIMALS (PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))

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