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MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED.

The Second Department determined plaintiff’s motion to amend the notice of claim was properly granted. The slip and fall allegedly occurred around midnight on March 2/3. The notice of claim was one day late if the incident occurred on March 2 and was timely if it occurred on March 3. The amendment changed the date of the accident stated in the notice from March 2 to March 3:

Here, mere minutes constituted the difference between whether the plaintiff’s fall occurred on March 2, 2012, or March 3, 2012. Under these circumstances, the Supreme Court providently exercised its discretion in granting the plaintiff’s cross motion for leave to amend the notice of claim and the pleadings to reflect March 3, 2012, as the correct date of the accident. There is no indication that the date originally set forth in the notice of claim as the accident date, March 2, 2012, was set forth in bad faith, the Transit Authority did not demonstrate any actual prejudice as a result of the discrepancy, and the record discloses no basis to presume the existence of prejudice … . Bowers v City of New York, 2017 NY Slip Op 01174, 2nd Dept 2-15-17

MUNICIPAL LAW (MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED)/NOTICE OF CLAIM (MUNICIPAL LAW, MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED)/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO AMEND NOTICE OF CLAIM TO CHANGE THE DATE OF THE ACCIDENT, RENDERING THE NOTICE OF CLAIM TIMELY, PROPERLY GRANTED

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COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined the county was immune from suit by a student who was assaulted by a worker at a county-owned facility. The worker was referred to the lessee of the premises, the North Amityville Community Economic Council (NACEC), as part of a welfare to work program. NACEC only accepted referrals for persons with no criminal record. The Suffolk County Department of Labor (SWEP) referred the worker despite knowledge of his status as a level three sex offender. The court determined the county was acting in its governmental, not proprietary, capacity when it referred the worker and there was no special relationship between the county and the victim of the assault:

In this case, the specific act or omission that caused plaintiff’s injury was the County’s referral of Smith to NACEC through the County’s SWEP program, a referral made in spite of NACEC’s caveat that it would not accept candidates with a criminal record. The administration of SWEP … was quintessentially a governmental role. The County’s conduct in referring Smith was undertaken solely in connection with its administration of that program and was part of the County’s fundamental governmental activity. Therefore, we hold that the County was acting in its governmental capacity when it referred Smith to NACEC. * * *

There is no view of the evidence that could allow one to conclude that the County voluntarily assumed a special duty to plaintiff. Even if the County promised that it would not refer anyone with a criminal background, that promise would have been made only to NACEC and there is no evidence that plaintiff ever had any knowledge of NACEC’s request. In addition, … it is undisputed that there was no direct contact between plaintiff and the County. Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 2017 NY Slip Op 01255, CtApp 2-16-17

 

MUNICIPAL LAW (COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/IMMUNITY (COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/GOVERNMENTAL FUNCTION (MUNICIPAL LAW, IMMUNITY, COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/PROPRIETARY FUNCTION (MUNICIPAL LAW, IMMUNITY, COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/SPECIAL RELATIONSHIP (MUNICIPAL LAW, IMMUNITY, COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM) 

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WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED.

The First Department determined the city’s summary judgment motion was properly granted in this bicycle accident case. Plaintiff was injured when his bicycle struck a pile of gravel near a manhole that was being accessed for sewer maintenance. Because sewer maintenance is a governmental function, the written notice requirement applies. Without written notice of the condition, the city cannot be held liable:

This action seeks recovery for injuries allegedly sustained by plaintiff Daniel Chambers when the front wheel of the bicycle he was riding came into contact with gravel located around a large hole, near a manhole cover. …

The court properly dismissed the action as plaintiff failed to establish that an exception to the prior written notice requirement of Administrative Code of the City of New York § 7-201(c)(2) is at issue here … . The City’s ownership of a manhole cover, which allows the City to access the sewer system and water pipes in order to perform maintenance and repairs, does not provide the City with “a special benefit from that property unrelated to the public use” … . Accordingly, it does not fall within the “special use” exception … . Chambers v City of New York, 2017 NY Slip Op 01120, 1st Dept 2-10-17

 

MUNICIPAL LAW (WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED)/NEGLIGENCE (MUNICIPAL LAW, WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED)/BICYCLE ACCIDENTS (MUNICIPAL LAW, WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED)

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NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS TO PROVIDE INFORMATION ABOUT THE LEVEL OF SODIUM IN THE RESTAURANT FOOD.

The First Department, in a full-fledged opinion by Justice Gesmer, determined the NYC Board of Health properly issued a regulation requiring certain restaurant to provide factual information about the level of sodium in the restaurant food. The decision is comprehensive and cannot fairly be summarized here. Applying the Boreali factors, the First Department held the rule was well within the board’s rule-making authority. In addition, the court found the rule did not violate the First Amendment (commercial speech):

Salt is both an essential ingredient of our diet and, when consumed in excess, a significant health hazard. Excess consumption of sodium, the primary ingredient of salt, can cause high blood pressure, which is in turn correlated with a higher risk of cardiovascular disease, congestive heart failure and kidney disease, according to the overwhelming consensus among scientists and the federal agencies charged with protecting the nation’s health. To address this issue, defendant New York City Board of Health (the Board) adopted a rule requiring certain restaurants to provide factual information to consumers on this issue. That rule is challenged in this appeal by the National Restaurant Association (NRA). We affirm the trial court’s rejection of that challenge, since the Board acted legally, constitutionally and well within its authority in adopting this limited yet salutary rule. National Rest. Assn. v New York City Dept. of Health & Mental Hygiene. 2017 NY Slip Op 01140, 1st Dept 2-10-17

MUNICIPAL LAW (NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS TO PROVIDE INFORMATION ABOUT THE LEVEL OF SODIUM IN THE RESTAURANT FOOD)/ADMINISTRATIVE LAW (NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS TO PROVIDE INFORMATION ABOUT THE LEVEL OF SODIUM IN THE RESTAURANT FOOD)/SODIUM (NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS TO PROVIDE INFORMATION ABOUT THE LEVEL OF SODIUM IN THE RESTAURANT FOOD)/RESTAURANTS (NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS TO PROVIDE INFORMATION ABOUT THE LEVEL OF SODIUM IN THE RESTAURANT FOOD)

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THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR NYC PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION.

The First Department, in a full-fledged opinion by Justice Saxe, determined that the various record-keeping and inspection statutes and regulations which apply to New York City pawnbrokers did not violate the unreasonable search and seizure prohibition in Article I, section 12 of the New York State Constitution. Therefore, the preliminary injunction prohibiting enforcement of the statutes, regulations and procedures should not have been granted:

Here, the statutory and regulatory framework at issue consists of two distinct components: not merely inspection requirements involving targeted, on-premises administrative inspections by government officials, but also substantial reporting requirements, involving submission of transactional information to the government.

To the extent the statutory and regulatory framework involves transactional reporting requirements, it does not involve either physical inspections or administrative searches of a business or its records; instead, it merely requires the submission of information in which the businesses have little, if any, expectation of privacy. * * *

Even if we focus on those provisions that authorize inspections, and characterize them as administrative searches, plaintiffs failed to demonstrate a likelihood that they will prevail. The Court of Appeals … acknowledged the continued viability of an “administrative search” exception to the constitutional requirements of probable cause and warrants. While that exception “cannot be invoked where … the [administrative] search is undertaken solely to uncover evidence of criminality’ and the underlying regulatory scheme is in reality, designed simply to give the police an expedient means of enforcing penal sanctions'” … , a regulatory administrative search scheme can pass muster under New York’s Constitution where it is “pervasive and include[s] detailed standards in such matters as, for example, the operation of the business and the condition of the premises” … . Collateral Loanbrokers Assn. of N.Y., Inc. v City of New York, 2017 NY Slip Op 00953, 1st Dept 2-7-17

 

MUNICIPAL LAW (NYC) (THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/CONSITUTIONAL LAW (NYS) (PAWNBROKERS, NYC, THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/PAWNBROKERS (NYC) (THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/ADMINISTRATIVE SEARCHES (NYC) (PAWNBROKERS, THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/SEARCH AND SEIZURE (PAWNBROKERS, NYC, THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)

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NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE.

The First Department, reversing Supreme Court, determined plaintiff’s notice of claim in this medical malpractice action was timely served as a matter of law under the continuous treatment doctrine. Two justices, in a concurring decision, agreed that the action should not have been dismissed, but argued there was a question of fact whether the continuous treatment doctrine applied:

On January 25, 2006, plaintiff served a notice of claim on defendant HHC. At the 50-h hearing in June 2006, plaintiff testified that while her last actual medical treatment at Lincoln Hospital occurred on October 19, 2005, when hospital personnel removed the sutures from her leg, she received a follow-up appointment to return to Lincoln Hospital on October 24, 2005. Plaintiff stated that she arrived at Lincoln Hospital for treatment on that date, but was informed that the staff could not locate her medical records and that she should return to the Hospital in one week, on October 31, 2005. Plaintiff testified that she did, in fact, return on October 31, only to have the staff inform her that they did not accept her insurance and that she should seek treatment elsewhere.

… [P]laintiff argued, her last treatment date was October 31, 2005 and thus, she had timely served her notice of claim on January 25, 2006. Hill v New York City Health & Hosps. Corp., 2017 NY Slip Op 00914, 1st Dept 2-7-17

 

MUNICIPAL LAW (NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/NEGLIGENCE (MEDICAL MALPRACTICE, NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/MEDICAL MALPRACTICE (MUNICIPAL LAW, NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/NOTICE OF CLAIM (MUNICIPAL LAW, MEDICAL MALPRACTICE, (NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE)

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PETITIONER DID NOT COME FORWARD WITH SUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION THAT THE REAL PROPERTY TAX ASSESSMENT WAS VALID.

The Fourth Department determined the petitioner (city) did not overcome the presumption that the respondent’s (town’s) real property tax assessment was valid. The city owned a drinking water reservoir and dam area in the town. The city failed to produce an appraisal to challenge the town’s assessment. Therefore, the town was not required to come forward with any proof to support the assessment:

It is the rule in an RPTL article 7 proceeding that the “locality’s tax assessment is presumptively valid,” but that “[the] petitioner may overcome that presumption by bringing forth substantial evidence that its property has been overvalued” … . “In the context of a proceeding to challenge a tax assessment, substantial evidence will often consist of a detailed, competent appraisal based on standard, accepted appraisal techniques and prepared by a qualified appraiser” … . Until the presumption of the validity of the assessment is overcome, there is no obligation on the part of the assessor to come forward with proof of correctness of the assessment … . Only if the petitioner rebuts the presumption of validity must the court then examine and “weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued” … . …

Here, the record contains no competent appraisal evidence by which the court plausibly might have determined that the fair value of the parcel was, on each of the taxable dates in question, $11.45 million. Given that lack of proof of valuation, it must be concluded that petitioner failed to carry its evidentiary burden in challenging its tax assessment … . Matter of City of Rome v Board of Assessors, 2017 NY Slip Op 00864, 4th Dept 2-3-17

 

REAL PROPERTY TAX LAW (PETITIONER DID NOT COME FORWARD WITH SUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION THAT THE REAL PROPERTY TAX ASSESSMENT WAS VALID)/MUNCIPAL LAW (REAL PROPERTY TAX LAW, CITY DID NOT COME FORWARD WITH SUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION THAT THE TOWN’S REAL PROPERTY TAX ASSESSMENT WAS VALID)

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LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY.

The Fourth Department determined Supreme Court properly granted claimants leave to file a late notice of claim against the water authority which allegedly created a depression in the roadway (the cause of the injury). Claimants had filed a timely notice of claim against the city and only later learned the water authority was the general contractor:

An “[e]rror concerning the identity of the governmental entity to be served” can constitute a reasonable excuse for the delay “provided that a prompt application for relief is made after discovery of the error” … . …

Here, claimants demonstrated a reasonable excuse for the delay inasmuch as they served a timely notice of claim upon the City, and then promptly applied for leave to serve a late notice of claim upon respondents after discovering respondents’ alleged involvement in causing claimant’s injuries … . Furthermore, although respondents lacked actual knowledge of claimant’s injuries, respondents have ” made no particularized or persuasive showing that the delay caused [them] substantial prejudice’ ” … . Indeed, we note that the Water Board was the general contractor for the construction project that allegedly created the defect in the roadway, and thus respondents’ ability to investigate the facts underlying the claim is furthered by their possession of documents and other information related to the construction project. King v Niagara Falls Water Auth., 2017 NY Slip Op 00855, 4th Dept 2-3-17

 

MUNICIPAL LAW (LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)/NOTICE OF CLAIM (LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)/NEGLIGENCE (MUNICIPAL LAW, LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)/TRAFFIC ACCIDENTS (MUNICIPAL LAW, LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)

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COUNTY’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED; NO EVIDENCE SHELTER PERSONNEL WERE AWARE OF VICIOUS PROPENSITIES; HEALTH DEPARTMENT’S KNOWLEDGE THE DOG HAD BITTEN SOMEONE ELSE NOT IMPUTED TO SHELTER PERSONNEL; NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED.

The Fourth Department, reversing Supreme Court, determined the county’s motion for summary judgment in this dog bite case should have been granted. Plaintiff was a volunteer who walked dogs held at the county animal shelter. She was bitten by one of the dogs. There was no showing the shelter personnel were aware of the dog’s vicious propensities. The fact that the health department was aware the dog had bitten someone else in a prior incident was not imputed to the shelter personnel. The Fourth Department also held Supreme Court should not have denied the county’s motion to dismiss the negligence cause of action. Negligence does not lie in dog bite cases:

Contrary to plaintiff’s contention, the fact that shelter personnel may have been informed at the time of the dog’s surrender that the dog had previously knocked over a child is insufficient to raise an issue of fact as to the dog’s vicious propensities to bite. Although a tendency to knock a person over may reflect “a proclivity to act in a way that puts others at risk of harm” (Collier, 1 NY3d at 447), plaintiff’s injuries were not caused by the dog’s knocking her over, and the dog’s proclivity to do so, even if established, did not “result[] in the injury giving rise to the lawsuit”… .

We conclude that, under the circumstances of this case, any knowledge of that incident obtained by … [the] Health Department should not be imputed to the County or the shelter … . “A municipality often will have numerous employees assigned to separate and diverse agencies or departments” … , and the record demonstrates that there is no overlap in the respective scopes of authority of the Health Department and the shelter.

We further conclude that the court erred in denying the County’s motion with respect to plaintiff’s negligence cause of action. “[C]ases involving injuries inflicted by domestic animals may only proceed under strict liability based on the owner’s knowledge of the animal’s vicious propensities, not on theories of common-law negligence” … . Blake v County of Wyo., 2017 NY Slip Op 00826, 4th Dept 2-3-17

 

ANIMAL LAW (COUNTY’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED, NO EVIDENCE SHELTER PERSONNEL WERE AWARE OF VICIOUS PROPENSITIES, HEALTH DEPARTMENT’S KNOWLEDGE THE DOG HAD BITTEN SOMEONE ELSE NOT IMPUTED TO SHELTER PERSONNEL, NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)/MUNICIPAL LAW (COUNTY’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED, NO EVIDENCE SHELTER PERSONNEL WERE AWARE OF VICIOUS PROPENSITIES, HEALTH DEPARTMENT’S KNOWLEDGE THE DOG HAD BITTEN SOMEONE ELSE NOT IMPUTED TO SHELTER PERSONNEL, NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)/DOG BITES (COUNTY’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED, NO EVIDENCE SHELTER PERSONNEL WERE AWARE OF VICIOUS PROPENSITIES, HEALTH DEPARTMENT’S KNOWLEDGE THE DOG HAD BITTEN SOMEONE ELSE NOT IMPUTED TO SHELTER PERSONNEL, NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)

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COUNTY NOT IMMUNE FROM SUIT ALLEGING NEGLIGENT MAINTENANCE OF DRAINAGE SYSTEM; INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM; FLOOD DAMAGE RESULTED FROM DREDGING OPERATION.

The Second Department determined the county was not entitled to summary judgment on governmental immunity grounds and an independent contractor for the county was not entitled to summary judgment because of the contractual relationship. Plaintiffs alleged the county and the contractor were negligent in dredging a pond resulting in flood damage. The county could be liable in ordinary negligence for maintenance of the drainage system (as opposed to design) and the subcontractor could be liable for launching an instrument of harm:

Although a governmental entity may be entitled to immunity from liability arising out of claims that it negligently designed a sewerage or storm drainage system … , the immunity does not extend to claims that it negligently maintained the system … . Here, even assuming the subject project fell within the ambit of a governmental function, the plaintiffs contend that the County was negligent, inter alia, in its maintenance of the pond and oversight of the dredging operations. * * *

Generally, an independent contractor owes no tort duty of care to third parties … . However, there are “three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons … where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm … . Nachamie v County of Nassau, 2017 NY Slip Op 00657, 2nd Dept 2-1-17

MUNICIPAL LAW (COUNTY NOT IMMUNE FROM SUIT ALLEGING NEGLIGENT MAINTENANCE OF DRAINAGE SYSTEM, INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM, FLOOD DAMAGE RESULTED FROM DREDGING OPERATION)/NEGLIGENCE (COUNTY NOT IMMUNE FROM SUIT ALLEGING NEGLIGENT MAINTENANCE OF DRAINAGE SYSTEM, INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM, FLOOD DAMAGE RESULTED FROM DREDGING OPERATION)/IMMUNITY (COUNTY NOT IMMUNE FROM SUIT ALLEGING NEGLIGENT MAINTENANCE OF DRAINAGE SYSTEM, INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM, FLOOD DAMAGE RESULTED FROM DREDGING OPERATION)/CONTRACT LAW (INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM, FLOOD DAMAGE RESULTED FROM DREDGING OPERATION)

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