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USE OF ROADWAY BY PEDESTRIANS AND BICYCLISTS MAY SUFFICE TO SHOW A ROADWAY, NOT USED BY VEHICLES, HAS NOT BEEN ABANDONED WITHIN THE MEANING OF THE HIGHWAY LAW.

The Second Department, reversing Supreme Court, determined there was a question of whether a roadway had been abandoned under Highway Law 205. The court noted that the lack of use by vehicles does not necessarily render a roadway abandoned. Use by pedestrians and bicyclists may suffice. The plaintiff demonstrated such recreational use. The town raised a question of fact whether the roadway had been abandoned with proof portions of the roadway were impassable:

Once a highway exists, it is presumed to continue until the contrary is demonstrated … . “It will be deemed abandoned, however, if it is not traveled or used as a public highway for six years” … . To show use as a highway, there must be evidence that travel proceeds, in forms reasonably normal, along the lines of an existing street … . Automobile use is not determinative in assessing whether a road has been abandoned … . Indeed, evidence of frequent recreational activity may be sufficient to preclude a finding of abandonment … . Dandomar Co., LLC v Town of Pleasant Val. Town Bd., 2016 NY Slip Op 05905, 2nd Dept 8-31-16

MUNICIPAL LAW (USE OF ROADWAY BY PEDESTRIANS AND BICYCLISTS MAY SUFFICE TO SHOW A ROADWAY, NOT USED BY VEHICLES, HAS NOT BEEN ABANDONED WITHIN THE MEANING OF THE HIGHWAY LAW)/HIGHWAY LAW (USE OF ROADWAY BY PEDESTRIANS AND BICYCLISTS MAY SUFFICE TO SHOW A ROADWAY, NOT USED BY VEHICLES, HAS NOT BEEN ABANDONED WITHIN THE MEANING OF THE HIGHWAY LAW)/ABANDONMENT (HIGHWAY LAW, USE OF ROADWAY BY PEDESTRIANS AND BICYCLISTS MAY SUFFICE TO SHOW A ROADWAY, NOT USED BY VEHICLES, HAS NOT BEEN ABANDONED WITHIN THE MEANING OF THE HIGHWAY LAW)

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WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED.

The First Department determined the Port Authority of NY & NJ did not waive sovereign immunity, despite several contract provisions requiring several steps to resolve disputes prior to resorting to suit. Because the notice of claim and the subsequent filing of a complaint were not timely pursuant to Unconsolidated Law 7107, the complaint was properly dismissed. The court noted that, although the waiver of sovereignty argument was not raised below, the appellate court could consider the argument (which was rejected). With respect to the powers of the appellate court in this context, the court explained:

… [W]here a party does not allege new facts, but merely raises a legal argument that appeared upon the face of the record, we are free to consider the argument “[s]o long as the issue is determinative and the record on appeal is sufficient to permit our review” … . The waiver argument presents this very circumstance, and therefore, we consider [the] waiver argument on this appeal. W&W Steel, LLC v Port Auth. of N.Y. & N.J., 2016 NY Slip Op 05900, 1st Dept 8-25-16

(MUNICIPAL LAW (WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED)APPEALS (WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED)/IMMUNITY (MUNICIPAL LAW, WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED)

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LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE.

The Second Department determined the lessee of property abutting a sidewalk and the city (NYC) were entitled to summary judgment in this slip and fall case. The city argued it did not have prior written notice of the hole in the sidewalk. The lessee, El Fuerte, argued it did not create the dangerous condition, did not violate any statute or ordinance, and the lease imposed no duty to repair the sidewalk. With regard to the liability of the abutting property owner, the court noted that, although a curb cut and pedestrian ramp leading from a sidewalk to the street are not the responsibility of the abutting property owner, the defect here was not in the curb cut or ramp:

… [A] lessee of property which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the lessee the obligation to maintain the sidewalk which imposes liability upon the lessee for injuries caused by a violation of that duty … . * * * … [A] provision of a lease which obligates a tenant to repair a sidewalk does not impose on the tenant a duty to a third party, such as the plaintiff. Martin v Rizzatti, 2016 NY Slip Op 05797, 2nd Dept 8-17-16

NEGLIGENCE (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/MUNICIPAL LAW (SIDEWALK SLIP AND FALL, LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/LANDLORD-TENANT (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/SIDEWALKS (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/SLIP AND FALL (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)

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INVESTIGATION OF CHILD ABUSE IS A DISCRETIONARY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION.

The Second Department determined the City of New York was immune from a suit alleging the negligent investigation of child abuse, leading to the child’s death two years later. The court also noted that New York does not recognize a cause of action for negligent investigation or prosecution:

… [T]he defendants contended and established that they engaged in discretionary conduct in investigating the report of abuse in 2003, and thus cannot be held liable for the manner in which the investigation was performed under the doctrine of governmental immunity … . A government’s performance of a governmental function, when discretionary in nature, cannot result in liability .. . Discretionary acts “involve the exercise of reasoned judgment which could typically produce different acceptable results” … . The defendants demonstrated that the subject investigation consisted of a series of discretionary acts … , and that this was not a situation in which no discretion or judgment was exercised. In any event, the defendants also demonstrated their prima facie entitlement to judgment as a matter of law by establishing that New York does not recognize a cause of action sounding in negligent investigation or negligent prosecution … . Hines v City of New York, 2016 NY Slip Op 05794, 2nd Dept 8-17-16

NEGLIGENCE (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/MUNICIPAL LAW (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/GOVERNMENTAL IMMUNITY (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/CHILD ABUSE (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/NEGLIGENT INVESTIGATION OF CHILD ABUSE (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)

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PETITIONER SHOULD HAVE BEEN ALLOWED TO FILE A LATE NOTICE OF CLAIM IN RESPONSE TO THE CITY’S RAISING AN AFFIRMATIVE DEFENSE IN A RELATED FEDERAL ACTION.

The First Department, over an extensive two-justice dissent, determined the petitioners’ motion for leave to file a late notice of claim against the city should have been granted. Petitioner was using a bicycle provided by New York City’s Citi Bike program when he struck a wheel stop and flipped over, injuring his head. In a federal diversity action stemming from the same incident, the city asserted an affirmative defense based upon petitioner’s failure to wear a helmet. Petitioner, in the federal action, was allowed thereafter to assert a negligence claim against the city based upon the city’s failure to rent helmets. Petitioner, in the state action, then sought both to amend the notice of claim and to file a late notice of claim to reflect the helmet allegation, as well as a negligent design allegation (re: placement of the wheel stop). The motion to amend was rejected by the First Department but the motion to file a late notice (General Municipal Law 50-3 (5)) was granted:

Here, to the extent that the allegations concerning the design of the station differ between the original notice of claim and the proposed amended notice of claim, the City unquestionably had actual notice of the claims in the latter document, based on the original notice of claim. Further, it was not prejudiced by petitioner’s amplification of the claims in the proposed amended notice, since the alleged defect was not transitory in nature … . * * *

We note that petitioner’s failure to use a helmet is akin to a plaintiff’s failure to use a seatbelt in a motor vehicle case. It is well settled that any such failure does not go to comparative liability but rather to how damages, if any, should be assessed … . Further, the City bears the burden of proving that some or all of petitioner’s injuries would not have been received had he used a helmet … . Accordingly, petitioners had no reason to make a claim concerning the lack of helmets until the City raised the issue. Additionally, * * * the City cannot claim to be prejudiced where it chose to inject a mitigation defense into the federal action, and petitioners are merely trying to ensure that their notice of claim supports their effort to rebut that defense … . Matter of Corwin v City of New York, 2016 NY Slip Op 05663, 1st Dept 7-28-16

 

MUNICIPAL LAW (PETITIONER SHOULD HAVE BEEN ALLOWED TO FILE A LATE NOTICE OF CLAIM IN RESPONSE TO THE CITY’S RAISING OF AN AFFIRMATIVE DEFENSE IN A RELATED FEDERAL ACTION)/NEGLIGENCE (MUNICIPAL LAW, PETITIONER SHOULD HAVE BEEN ALLOWED TO FILE A LATE NOTICE OF CLAIM IN RESPONSE TO THE CITY’S RAISING OF AN AFFIRMATIVE DEFENSE IN A RELATED FEDERAL ACTION)/NOTICE OF CLAIM (ALTHOUGH THE NOTICE COULD NOT BE AMENDED, A LATE NOTICE ASSERTING A NEW THEORY SHOULD HAVE BEEN ALLOWED)/BICYCLISTS (FAILURE TO WEAR A HELMET GOES TO COMPARATIVE NEGLIGENCE)/HELMETS (BICYCLISTS, FAILURE TO WEAR A HELMET GOES TO COMPARATIVE NEGLIGENCE)

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NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT.

The Second Department determined the City emergency response personnel did not enter into a special relationship with plaintiff’s decedent based upon the 911 operator’s assurance an ambulance was on its way. There was some confusion about where plaintiff’s decedent was located which resulted is some delay in the arrival of help:

Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by establishing that no special relationship existed between it and the decedent … . The defendant demonstrated, prima facie, that the firefighters did not assume an affirmative duty to act on the decedent’s behalf, and, in opposition, the plaintiffs failed to raise a triable issue of fact … . Moreover, even assuming that the 911 operator’s assurance that an ambulance was on its way constituted an assumption by the defendant of an affirmative duty to act on behalf of the decedent, the defendant demonstrated, prima facie, that the decedent and the plaintiffs did not rely to their detriment on that assurance. In opposition, the plaintiffs failed to raise a triable issue of fact. The record does not show that the plaintiffs were lulled by any assurance made by the 911 operator into a false sense of security that caused them “to forego other available avenues of protection” … . Holloway v City of New York, 2016 NY Slip Op 05627, 2nd Dept 7-27-16

MUNICIPAL LAW (NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT)/ GOVERNMENTAL IMMUNITY (NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT)/NEGLIGENCE (GOVERNMENTAL IMMUNITY, (NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT)

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HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE.

The First Department, over an extensive dissent, determined the New York City Housing Authority (NYCHA) effectively made it impossible for the petitioner to meet the prerequisites for a hearing (paying use and occupancy arrears) on her “remaining family member” grievance. The case was therefore remitted for a hearing on the grievance:

The NYCHA Management Manual requires that a remaining family member grievant must remain current in use and occupancy to pursue the grievance (NYCHA Management Manual, ch 1, subd XII[D][2][b]). This Court has upheld that requirement (Matter of Garcia v Franco, 248 AD2d 263, 265 [1st Dept 1998], lv denied 92 NY2d 813 [1998]). However, in this case, NYCHA’s application of that rule to petitioner, and its resulting dismissal of her remaining family member grievance, was arbitrary and capricious. NYCHA failed and refused to recalculate use and occupancy based on petitioner’s income, notwithstanding that the NYCHA Management Manual requires that it do so, during the pendency of a remaining family member grievance, in order for it to determine use and occupancy as the lower of the tenant of record’s rent or the rent rate based on the income of the remaining occupant (Manual, at ch 1, subd XII[D][2][b])[FN1]. NYCHA also failed and refused to provide petitioner with information and documents necessary for her to apply for funds to pay the arrears in use and occupancy. As a result, it was impossible for petitioner to meet the condition precedent to a hearing. Matter of Figueroa v New York City Hous. Auth., 2016 NY Slip Op 05619, 1st Dept 7-21-16

MUNICIPAL LAW (HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE)/LANDLORD-TENANT (NEW YORK CITY HOUSING AUTHORITY, HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE)/NEW YORK CITY HOUSING AUTHORITY (HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE)

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NO NOTICE OF CLAIM REQUIRED FOR RETALIATORY TERMINATION CLAIM PURSUANT TO CIVIL SERVICES LAW 75-b.

The First Department, reversing Supreme Court, determined (1) a retaliatory termination claim pursuant to Civil Services Law Section 75-b seeking only monetary damages is not subject to the notice of claim requirement of General Municipal Law Sections 50-e and 50-i; and (2), even if a notice of claim were required, the notice was adequate despite the failure to specifically mention a violation Civil Services Law Section 75-b:

… [W]e now find that a notice of claim is not required for a Civil Service Law § 75-b claim. As with the Human Rights Law claims that were the subject of Margerum, Civil Service Law § 75-b claims are not tort actions under 50-e and are not personal injury, wrongful death, or damage to personal property claims under 50-i, and there is no reason to encumber the filing of a retaliatory termination claim. * * *

Even if [a notice of claim] was required, the notice of claim filed by plaintiff was sufficient to allow the City to investigate his Civil Service Law § 75-b claim, even though it did not cite the section. Castro v City of New York, 2016 NY Slip Op 05615, 1st Dept 7-21-16

 

MUNICIPAL LAW (NO NOTICE OF CLAIM REQUIRED FOR RETALIATORY TERMINATION CLAIM PURSUANT TO CIVIL SERVICES LAW 75-b)/EMPLOYMENT LAW (MUNICIPAL LAW, NO NOTICE OF CLAIM REQUIRED FOR RETALIATORY TERMINATION CLAIM PURSUANT TO CIVIL SERVICES LAW 75-b)/RETALIATORY TERMINATION (MUNICIPAL LAW, NO NOTICE OF CLAIM REQUIRED FOR RETALIATORY TERMINATION CLAIM PURSUANT TO CIVIL SERVICES LAW 75-b)

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DISCLOSURE OF TOWN EMAIL LIST PROPERLY ORDERED.

The Second Department determined the town board did not articulate any valid reason for refusing to disclose an email list (gblist) consisting of the addresses of town residents who wished to be kept informed of news on matters of public concern:

 

Here, the Town parties did not articulate the applicability of any enumerated exemptions under Public Officers Law § 89(2)(b), nor did they show that the privacy interests at stake outweigh the public interest in disclosure of the information … . The petitioner seeks “to further the public discourse on matters of public importance and concern in the Town” by obtaining the names and email addresses of those persons who subscribe to the gblist—persons who have willingly divulged that information to the Town so that they may receive news and information, in electronic form, on matters of public concern in the Town. The Town parties did not articulate any privacy interest that would be at stake in the disclosure of the records. The Town parties’ contention that disclosure of the requested email addresses would render the gblist subscribers more susceptible to phishing, spamming, and other email scams is speculative; the Town parties failed to show that disclosure of the information would make the gblist subscribers more susceptible to such acts than they ordinarily would be. Matter of Livson v Town of Greenburgh, 2016 NY Slip Op 05570, 2nd Dept 7-20-16

FREEDOM OF INFORMATION LAW (FOIL) (DISCLOSURE OF TOWN EMAIL LIST PROPERLY ORDERED)/MUNICIPAL LAW (FREEDOM OF INFORMATION LAW, DISCLOSURE OF TOWN EMAIL LIST PROPERLY ORDERED)

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CLAIM FOR A DE FACTO TAKING ACCRUES WHEN THE TAKING IS FIRST APPARENT, NOT WHEN IT IS FIRST DISCOVERED BY THE CLAIMANT.

The Second Department determined the structures built by the city, which caused water to accumulate on claimant’s land, were apparent when constructed in 2005. The fact that the structures were not discovered by the claimant until 2011 was not relevant. Therefore the claim for a de facto taking expired in 2008 and was time-barred:

A de facto taking claim is governed by the three-year statute of limitations applicable to claims to recover damages for injury to property set forth in CPLR 214(4) … . Such a claim accrues at the time of the taking or, at the latest, when the taking becomes apparent, regardless of the time of discovery … .

Here, the record established that the headwall and overflow outlet were readily visible when the alleged taking occurred in September 2005. Accordingly, the Supreme Court properly determined that the claimant’s time to bring any claim for damages for the alleged de facto taking expired in September 2008… . Matter of South Richmond Bluebelt, Phase 3. 594 Assoc., Inc. (City of New York), 2016 NY Slip Op 05577, 2nd Dept 9-20-26

 

EMINENT DOMAIN (CLAIM FOR A DE FACTO TAKING ACCRUES WHEN THE TAKING IS FIRST APPARENT, NOT WHEN IT IS FIRST DISCOVERED BY THE CLAIMANT)/MUNICIPAL LAW (EMINENT DOMAIN, CLAIM FOR A DE FACTO TAKING ACCRUES WHEN THE TAKING IS FIRST APPARENT, NOT WHEN IT IS FIRST DISCOVERED BY THE CLAIMANT)/DE FACTO TAKING (EMINENT DOMAIN, CLAIM FOR A DE FACTO TAKING ACCRUES WHEN THE TAKING IS FIRST APPARENT, NOT WHEN IT IS FIRST DISCOVERED BY THE CLAIMANT)

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