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ACCIDENT REPORT WHICH DID NOT INDICATE PETITIONER WAS INJURED DID NOT NOTIFY THE CITY OF THE ESSENTIAL FACTS, THEREFORE LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED.

The Second Department determined the petition for leave to file a late notice of claim against the city, based upon a traffic accident involving a city police car, was properly denied. Although there was a police report of the accident, there was no indication in the report that petitioner was injured:

“A report which describes the circumstances of the accident without making a connection between the petitioner’s injuries and negligent conduct on the part of the public corporation will not be sufficient to constitute actual notice of the essential facts constituting the claim” … . Here, since the police accident report does not connect any injuries sustained by the petitioners to any negligent conduct on the part of the operator of the respondents’ vehicle, it was not sufficient to provide the respondents with actual notice of the essential facts constituting the claim. Moreover, the direct involvement of the respondents’ employee in the accident itself, without more, is also not sufficient to establish that the respondents acquired actual notice of the essential facts constituting the claim … . Matter of D’Agostino v City of New York, 2017 NY Slip Op 00302, 2nd Dept 1-18-17

MUNICIPAL LAW (ACCIDENT REPORT WHICH DID NOT INDICATE PETITIONER WAS INJURED DID NOT NOTIFY THE CITY OF THE ESSENTIAL FACTS, THEREFORE LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)/NEGLIGENCE (MUNICIPAL LAW, ACCIDENT REPORT WHICH DID NOT INDICATE PETITIONER WAS INJURED DID NOT NOTIFY THE CITY OF THE ESSENTIAL FACTS, THEREFORE LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)/NOTICE OF CLAIM (MUNICIPAL LAW, ACCIDENT REPORT WHICH DID NOT INDICATE PETITIONER WAS INJURED DID NOT NOTIFY THE CITY OF THE ESSENTIAL FACTS, THEREFORE LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)

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TOWN BOARD OF ASSESSMENT REVIEW IS A QUASI-JUDICIAL BODY IMMUNE FROM SUIT, 42 USC 1983 CAUSES OF ACTION AGAINST TOWN ASSESSORS INDIVIDUALLY CAN GO FORWARD.

The Third Department, in a decision too detailed to be fairly summarized here, determined a town board of assessment review (BAR) is a quasi-judicial body and is therefore entitled to absolute immunity from suit. The Third Department further determined that causes of actions for civil rights violations (42 USC 1983) against two town assessors individually (stemming from allegedly discriminatory property tax assessments) can go forward:

Consistent with the provisions of RPTL 523, the Town was required to have a board of assessment review (see RPTL 523 [1] [a]), and its individual members, in turn, were required to attend mandated training (see RPTL 523 [1] [d]; [2]). Here, in accordance with its appointed duties, the BAR had a statutory obligation to “fix the place or places for the hearing of complaints in relation to assessments” (RPTL 525 [1]) and, on the date required by law, to “meet to hear complaints in relation to assessments” (RPTL 525 [2] [a]). Upon convening for the required hearing, the BAR could “administer oaths, take testimony and hear proofs in regard to any complaint and the assessment to which it relates” and, further, could “require the person whose real property is assessed, or his or her agent or representative, or any other person, to appear before [it] and be examined concerning such complaint, and to produce any papers relating to such assessment” (RPTL 525 [2] [a]). “Minutes of the examination of every person [so] examined” were required to “be taken and filed in the office of the . . . town clerk” (RPTL 525 [2] [a]), and the BAR thereafter was required to “determine the final assessed valuation or taxable assessed valuation . . . of the real property of each complainant” (RPTL 525 [3] [a]), “prepare and verify a statement showing the changes determined to be made by them in the assessments” and notify each complainant of its determination and the time within which to seek judicial review thereof (RPTL 525 [4]). In light of these statutory mandates, it is apparent that the BAR’s determinations constitute decisions of a quasi-judicial nature and, hence, the BAR (and its individual members) are entitled to absolute immunity … . * * *

… [S]uffice it to say that [defendants town assessors’] proof … fell short of establishing that the assessors valued plaintiff’s property in a nondiscriminatory fashion and, therefore, defendants failed to demonstrate their entitlement to summary judgment [on the violation of civil rights causes of action]. Corvetti v Town of Lake Pleasant, 2017 NY Slip Op 00227, 3rd Dept 1-12-17

 

REAL PROPERTY TAX LAW (TOWN BOARD OF ASSESSMENT REVIEW IS A QUASI-JUDICIAL BODY IMMUNE FROM SUIT, 42 USC 1983 CAUSES OF ACTION AGAINST TOWN ASSESSORS INDIVIDUALLY CAN GO FORWARD)/MUNICIPAL LAW (REAL PROPERTY TAX LAW, TOWN BOARD OF ASSESSMENT REVIEW IS A QUASI-JUDICIAL BODY IMMUNE FROM SUIT, 42 USC 1983 CAUSES OF ACTION AGAINST TOWN ASSESSORS INDIVIDUALLY CAN GO FORWARD)/BOARD OF ASSESSMENT REVIEW (REAL PROPERTY TAX LAW, (TOWN BOARD OF ASSESSMENT REVIEW IS A QUASI-JUDICIAL BODY IMMUNE FROM SUIT, 42 USC 1983 CAUSES OF ACTION AGAINST TOWN ASSESSORS INDIVIDUALLY CAN GO FORWARD)/IMMUNITY (TOWN BOARD OF ASSESSMENT REVIEW IS A QUASI-JUDICIAL BODY IMMUNE FROM SUIT, 42 USC 1983 CAUSES OF ACTION AGAINST TOWN ASSESSORS INDIVIDUALLY CAN GO FORWARD)/CIVIL RIGHTS (42 USC 1983) (TOWN BOARD OF ASSESSMENT REVIEW IS A QUASI-JUDICIAL BODY IMMUNE FROM SUIT, 42 USC 1983 CAUSES OF ACTION AGAINST TOWN ASSESSORS INDIVIDUALLY CAN GO FORWARD)/42 USC 1983 (REAL PROPERTY TAX LAW, TOWN BOARD OF ASSESSMENT REVIEW IS A QUASI-JUDICIAL BODY IMMUNE FROM SUIT, 42 USC 1983 CAUSES OF ACTION AGAINST TOWN ASSESSORS INDIVIDUALLY CAN GO FORWARD)

NEW YORK CITY LOCAL LAW BANNING E-CIGARETTES DOES NOT VIOLATE THE ONE SUBJECT RULE OF THE NEW YORK STATE CONSTITUTION, THE MUNICIPAL HOME RULE LAW OR THE NEW YORK CITY CHARTER.

The First Department, in a full-fledged opinion by Justice Saxe, determined a New York City Local Law (Local Law 152), which included electronic or e-cigarettes in the law’s smoking ban, did not violate the “one subject” rule in the New York State Constitution. Although the court found that the constitutional prohibition only applies to state statutes, it noted that the Municipal Home Rule Law and the New York City Charter have a similar prohibition. The idea behind the “one subject” rule is to prevent a statute which ostensibly relates to a particular subject from including “hidden” provisions which address another unrelated subject:

Municipal Home Rule Law § 20(3) states that “[e]very such local law shall embrace only one subject. The title shall briefly refer to the subject matter”; the New York City Charter provides that “[e]very local law shall embrace only one subject. The title shall briefly refer to the subject-matter” (NY City Charter § 32).

Local Law 152 does not violate those requirements. It was titled “A Local Law to amend the administrative code …, in relation to the regulation of electronic cigarettes.” The regulation of electronic cigarettes was the only subject of the bill and that subject was clearly stated in its title. Therefore, the bill met the transparency requirement of the one-subject rule and adequately apprised the City Council and members of the public of its contents and purpose … . NYC C.L.A.S.H. v City of New York, 2017 NY Slip Op 00042, 1st Dept 1-3-17

 

MUNICIPAL LAW (E-CIGARETTE BAN, NEW YORK CITY LOCAL LAW BANNING E-CIGARETTES DOES NOT VIOLATE THE ONE SUBJECT RULE OF THE NEW YORK STATE CONSTITUTION, THE MUNICIPAL HOME RULE LAW  OR THE NEW YORK CITY CHARTER)/ONE SUBJECT RULE (E-CIGARETTE BAN, NEW YORK CITY LOCAL LAW BANNING E-CIGARETTES DOES NOT VIOLATE THE ONE SUBJECT RULE OF THE NEW YORK STATE CONSTITUTION, THE MUNICIPAL HOME RULE LAW OR THE NEW YORK CITY CHARTER)/E-CIGARETTES (NEW YORK CITY LOCAL LAW BANNING E-CIGARETTES DOES NOT VIOLATE THE ONE SUBJECT RULE OF THE NEW YORK STATE CONSTITUTION, THE MUNICIPAL HOME RULE LAW OR THE NEW YORK CITY CHARTER)

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BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE.

The First Department determined the city’s (NYC’s) motion for summary judgment in this sidewalk slip and fall case should not have been granted. There was a question of fact whether the Big Apple Map gave the city notice of the defect:

The affidavit of Ralph Gentles, an associate production manager of Sanborn Map Co., Inc. responsible for the legend on Big Apple Maps, wherein he averred that the symbol for a “raised or uneven portion of the side walk,” which appears on the Big Apple Map in the area where plaintiff tripped over a raised manhole cover, also applied to the manhole cover which would have been considered part of the sidewalk, was competent evidence of the business or professional custom or practice of the designations used by the company … . As such, it raised a triable issue of fact as to whether the Big Apple Map gave the City prior written notice of the defect, and the court should have denied the City’s motion for summary judgment predicated on the lack of such notice. Hennessey-Diaz v City of New York, 2017 NY Slip Op 00025, 1st Dept 1-3-17

NEGLIGENCE (BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)/MUNICIPAL LAW (SLIP AND FALL, BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)/SIDEWALKS (SLIP AND FALL, BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)/SLIP AND FALL (MUNICIPAL LAW, BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)/WRITTEN NOTICE (MUNICIPAL LAW, SIDEWALKS, SLIP AND FALL, BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)/BIG APPLE MAPS (MUNICIPAL LAW, SIDEWALKS, SLIP AND FALL, BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)

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PLAINTIFF’S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW, NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION.

The Third Department, reversing Supreme Court, after finding the notice of claim was sufficient notice of the negligent supervision cause of action, determined the defendant town was entitled to summary judgment dismissing the complaint. Town workers were in the process of delivering a load of wood chips to plaintiff. When the wood chips stopped flowing from the dump truck, plaintiff attempted to free the chips by slamming the tailgate. Plaintiff's thumb and wrist were crushed by the tailgate. Although plaintiff alleged that he called out to the driver (Klopfer) to ask if he should slam the tailgate, there was no response. The Third Department found plaintiff's unilateral decision to slam the tailgate was the sole proximate cause of his injury:

The dispute centers on whether defendant owed a duty of care to plaintiff and, if so, whether defendant's breach of duty was a proximate cause of plaintiff's injuries. From a general perspective, we recognize that Klopfer had a duty to exercise reasonable care in the operation of a municipal dump truck. Moreover, Klopfer was certainly aware of plaintiff's presence during the unloading process. That said, the Court of Appeals has emphasized a “reluctance to extend liability to a defendant for failure to control the conduct of others” … . By his testimony, plaintiff confirmed that he acted of his own accord, slamming the tailgate twice within only a few seconds, providing little if any opportunity for Klopfer to respond — even if he heard plaintiff call out … . There was no defect in the tailgate and the risk of injuring one's hand when slamming a tailgate is obvious as a matter of common sense. No resident, including plaintiff, had ever previously attempted to intervene in the discharge process and, while [a second town worker] had stepped away, plaintiff knew he was on site and could have sought his assistance. Under these circumstances, we conclude that plaintiff's intervening action in slamming the tailgate was the sole proximate cause of his injuries … . Barone v Town of New Scotland, 2016 NY Slip Op 08927, 3rd Dept 12-29-16

NEGLIGENCE (PLAINTIFF'S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW)/MUNICIPAL LAW (NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION)/NOTICE OF CLAIM (NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION)/PROXIMATE CAUSE (PLAINTIFF'S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW)/NEGLIGENT SUPERVISION (PLAINTIFF'S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW, NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION)

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INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES.

INSURANCE LAW, MUNICIPAL LAW, NEGLIGENCE.

In a decision too lengthy and fact-specific to fairly summarize here, the First Department determined whether the insurance company which insured a company that maintained street lighting and traffic control devices under a contract with the Bronx had a duty to defend against personal injury suits brought against New York City.  The city was named an additional insured in the policies. . The personal injury suits alleged improper street lighting, malfunctioning traffic control devices, and, in one case, injury from a falling traffic control device. A duty to defend was found in four of the five lawsuits. The court explained the applicable law as follows:

On a summary judgment motion in a case involving an insurance contract or policy, “[t]he evidence will be construed in the light most favorable to the one moved against” … . The insured, however, has the burden of showing that an insurance contract covers the loss for which the claim is made … .

The applicable standard holds that the duty to defend arises when at least one of two alternate criteria are met. “A duty to defend exists whenever the allegations in the complaint in the underlying action, construed liberally, suggest a reasonable possibility of coverage, or where the insurer has actual knowledge of facts establishing such a reasonable possibility” … . City of New York v Wausau Underwriters Ins. Co., 2016 NY Slip Op 08932, 1st Dept 12-29-16

 

INSURANCE LAW (INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/MUNICIPAL LAW (INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/NEGLIGENCE (INSURANCE LAW, MUNICPAL LAW, NSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/DUTY TO DEFEND (INSURANCE LAW, INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/STREET LIGHTING (INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/TRAFFIC CONTROL DEVICES  (INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/HIGHWAYS AND ROADS  (INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)

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COMPLAINT INCLUDED ACTIONABLE DEFAMATORY STATEMENTS AGAINST THE INDIVIDUAL WHO MADE THE STATEMENTS IN A LETTER TO TOWN OFFICIALS, TOWN OFFICIALS ENTITLED TO ABSOLUTE OR QUALIFIED IMMUNITY.

The Third Department, partially reversing Supreme Court, determined several statements in this defamation action were not merely opinions and were therefore actionable against the defendant who made the statements in a letter to town officials. The republication of the defamatory statements as well as other statements by town officials were entitled to either absolute privilege or qualified immunity.  The decision includes substantive discussions of the elements of defamation, opinion versus fact, mixed opinion and fact, absolute immunity and qualified immunity, which cannot be fairly summarized here. With regard to (actionable) fact versus (nonactionable) opinion, the court explained:

It is well settled that, “[s]ince falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, only statements alleging facts can properly be the subject of a defamation action” … . “Distinguishing actionable fact from a protected expression of opinion is a question of law in which several factors are weighed, including whether the allegedly defamatory words have a precise meaning that is readily understood, whether the statement can be proven as true or false, and whether the context and surrounding circumstances would indicate that the comment is an opinion” … .

While a pure expression of opinion is not actionable, a “mixed opinion” — i.e., one that “‘implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it'” — can be the subject of a defamation claim … . “Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact,” we must “look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff” … . Hull v Town of Prattsville, 2016 NY Slip Op 08917, 3rd Dept 12-29-16

DEFAMATION (COMPLAINT INCLUDED ACTIONABLE DEFAMATORY STATEMENTS AGAINST THE INDIVIDUAL WHO MADE THE STATEMENTS IN A LETTER TO TOWN OFFICIALS, TOWN OFFICIALS ENTITLED TO ABSOLUTE OR QUALIFIED IMMUNITY)/MUNICIPAL LAW (DEFAMATION, COMPLAINT INCLUDED ACTIONABLE DEFAMATORY STATEMENTS AGAINST THE INDIVIDUAL WHO MADE THE STATEMENTS IN A LETTER TO TOWN OFFICIALS, TOWN OFFICIALS ENTITLED TO ABSOLUTE OR QUALIFIED IMMUNITY)/PRIVILEGE (DEFAMATION, TOWN OFFICIALS, COMPLAINT INCLUDED ACTIONABLE DEFAMATORY STATEMENTS AGAINST THE INDIVIDUAL WHO MADE THE STATEMENTS IN A LETTER TO TOWN OFFICIALS, TOWN OFFICIALS ENTITLED TO ABSOLUTE OR QUALIFIED IMMUNITY)/IMMUNITY (DEFAMATION, TOWN OFFICIALS, COMPLAINT INCLUDED ACTIONABLE DEFAMATORY STATEMENTS AGAINST THE INDIVIDUAL WHO MADE THE STATEMENTS IN A LETTER TO TOWN OFFICIALS, TOWN OFFICIALS ENTITLED TO ABSOLUTE OR QUALIFIED IMMUNITY)

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COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined the county’s motion for summary judgment was properly denied in this vehicle-accident case alleging the negligent failure to install a guardrail. The county did not demonstrate it was entitled to qualified immunity based upon a relevant highway-safety study of the area, and did not demonstrate the absence of a guardrail was not a proximate cause of plaintiff’s injuries:

A municipal defendant is entitled to qualified immunity “where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury” … . Here, the evidence presented by the County failed to establish that it undertook a study which entertained and passed on the very same question of risk that is at issue in this case … . …

… [T]he County failed to establish, prima facie, that it did not have a duty to place guardrails near the concrete headwall involved in the plaintiff’s accident. …

… [T]he County’s submissions failed to eliminate all triable issues of fact as to whether its alleged negligence in failing to place guardrails near the concrete headwall … was a substantial factor in aggravating the plaintiff’s injuries … . Bednoski v County of Suffolk, 2016 NY Slip Op 08832, 2nd Dept 12-28-16

 

NEGLIGENCE (MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED)/MUNICIPAL LAW (NEGLIGENCE, (MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED)/IMMUNITY (MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED)/HIGHWAYS (MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED)/GUARDRAILS (MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED)

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NYC RENT STABILIZATION RULES DO NOT APPLY TO A BUILDING CONVERTED FROM COMMERCIAL TO RESIDENTIAL USE AFTER 1974.

The Second Department, in a full-fledged opinion by Justice Dickerson, determined the exemption from (New York City) rent stabilization rules for housing units constructed after January 1, 1974, applied to defendant’s post-1974 conversion of a commercial building to residential units:

… [Supreme Court] found that the defendant had made a prima facie showing that the complex was exempt from rent stabilization by demonstrating that its renovations had converted the complex from commercial to residential use, and that it had paid for a majority of the conversion costs. The court further found that the plaintiffs had failed to raise a triable issue of fact as to whether the complex was subject to rent stabilization. In this regard, the court reasoned that the 75% requirement of Rent Stabilization Code § 2520.11 did not apply where a commercial building was converted to residential use. We affirm. * * *

The plaintiffs contend that … they raised a triable issue of fact as to whether the defendant failed to replace 75% of the systems … in accordance with section 2520.11(e)(1) of the Rent Stabilization Code… . We disagree. The most natural reading of the … 75% requirement is that it is applicable in situations where an owner purports to substantially rehabilitate an existing residential building, and not in situations where a commercial building is converted to residential use. Bartis v Harbor Tech, LLC, 2016 NY Slip Op 08831, 2nd Dept 12-28-16

 

LANDLORD-TENANT (NYC RENT STABILIZATION RULES DO NOT APPLY TO A BUILDING CONVERTED FROM COMMERCIAL TO RESIDENTIAL USE AFTER 1974)/MUNICIPAL LAW (NYC RENT STABILIZATION RULES DO NOT APPLY TO A BUILDING CONVERTED FROM COMMERCIAL TO RESIDENTIAL USE AFTER 1974)/RENT STABILIZATION (NYC RENT STABILIZATION RULES DO NOT APPLY TO A BUILDING CONVERTED FROM COMMERCIAL TO RESIDENTIAL USE AFTER 1974)

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DEFENDANTS’ SUMMARY JUDGMENT MOTION WAS PREMATURE, PLAINTIFF ENTITLED TO DISCOVERY TO FLESH OUT RELATIONSHIP AMONG PARTIES, RELATION-BACK DOCTRINE ALLOWED AMENDMENT OF COMPLAINT TO ADD PARTY, NOTICE OF CLAIM REQUIRED FOR SUIT AGAINST LONG ISLAND POWER AUTHORITY.

CIVIL PROCEDURE, MUNICIPAL LAW.

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this rear-end collision case was premature. The truck which struck plaintiff’s vehicle was registered to Long Island Power Authority (LIPA) but the driver was an employee of National Grid, which was under contract with LIPA. Plaintiff never served a notice of claim on LIPA, as required by the Public Authorities Law and the General Municipal Law. The Second Department held that plaintiff was entitled to discovery concerning the relationship between LIPA and National Grid, and further held that the relation-back doctrine allowed the amendment of the complaint to add National Grid as a defendant:

A party who contends that a motion for summary judgment is premature must “demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” … . In opposition to the defendants’ motion for summary judgment, the plaintiff demonstrated that the defendants had not revealed that, at the time of the subject accident, the defendant driver was actually employed by National Grid LLC, and not LIPA, until the defendants filed their summary judgment motion. The award of summary judgment dismissing the complaint insofar as asserted against the defendant driver was therefore premature, inasmuch as substantial discovery with respect to the relationship between the National Grid LLC and the defendant driver, as well as the nature of the business the defendant driver was conducting at the time of the subject accident, remains outstanding … . Marrone v Miloscio, 2016 NY Slip Op 08856, 2nd Dept 12-28-16

CIVIL PROCEDURE (DEFENDANTS’ SUMMARY JUDGMENT MOTION WAS PREMATURE, PLAINTIFF ENTITLED TO DISCOVERY TO FLESH OUT RELATIONSHIP AMONG PARTIES, RELATION-BACK DOCTRINE ALLOWED AMENDMENT OF COMPLAINT TO ADD PARTY)/CIVIL PROCEDURE (RELATION-BACK DOCTRINE ALLOWED AMENDMENT OF COMPLAINT TO ADD PARTY)/SUMMARY JUDGMENT (DEFENDANTS’ SUMMARY JUDGMENT MOTION WAS PREMATURE, PLAINTIFF ENTITLED TO DISCOVERY TO FLESH OUT RELATIONSHIP AMONG PARTIES)/MUNICIPAL LAW (NOTICE OF CLAIM REQUIRED FOR SUIT AGAINST LONG ISLAN POWER AUTHORITY)/NOTICE OF CLAIM (SUIT AGAINS LONG ISLAND POWER AUTHORITY)

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