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NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED.

The Fourth Department, over an extensive dissent, determined plaintiffs’ negligent hiring/retention cause of action against the city and city police department was properly dismissed. The action stemmed from incidents of sexual abuse by a police officer (O’Shei). It was alleged the officer should not have been retained after suffering brain injury:

Plaintiffs contend that the City defendants failed to do an appropriate evaluation of O’Shei’s neuropsychological status after the second motor vehicle accident. Recovery on a negligent retention theory “requires a showing that the employer was on notice of the relevant tortious propensit[y] of the wrongdoing employee” … , i.e., “that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Thus, contrary to plaintiffs’ contention, the City defendants were under no common-law duty to institute specific procedures for supervising or retaining O’Shei inasmuch as they did not know of facts that would lead a reasonably prudent person to investigate the employee … .

* * * …[T]his is a retention case, and it is well settled that the common-law duty for retention does not require as high a degree of care as does hiring … . Pater v City of Buffalo, 2016 NY Slip Op 05462, 4th Dept 7-8-16

 

NEGLIGENCE (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/EMPLOYMENT LAW (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/MUNICIPAL LAW (POLICE OFFICERS, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/NEGLIGENT RETENTION (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)

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THREE-YEAR TIME LIMIT FOR STARTING EMINENT DOMAIN PROCEEDINGS AFTER A COURT CHALLENGE STARTS TO RUN WHEN THE COURT OF APPEALS DISMISSES THE APPEAL FROM THE APPELLATE DIVISION DECISION.

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, determined the three-year time limit within which a municipality must commence eminent domain proceedings begins to run when the Court of Appeals dismisses the appeal:

EDPL 401, entitled “Time for acquisition,” prescribes the time during which a condemnor may commence proceedings “to acquire the property necessary for the proposed public project” (EDPL 401[A]). Specifically, section 401(A) provides that the condemnor may commence such proceedings “up to three years” after the latest of “(1) publication of its determination and findings pursuant to [EDPL 204], or (2) the date of the order or completion of [an exemption procedure under EDPL 206], or (3) entry of the final order or judgment on judicial review pursuant to [EDPL 207]” (EDPL 401[A][1]-[3]). Section 401(B) provides that if the condemnor does not commence EDPL article 4 proceedings within the specified time, “the project shall be deemed abandoned, and thereafter, before commencing [EDPL article 4 proceedings,] the condemnor must again comply with the provisions of article two” (EDPL 401[B]).

The plain and common-sense interpretation of the statute is that “the final order or judgment on judicial review” is the final order or judgment disposing of any EDPL 207 challenge and terminating judicial review. Our October 12, 2010 decision did not finally terminate judicial review, as the challengers filed a notice of appeal which entailed further review by the Court of Appeals. The decision of the Court of Appeals could not be known until such time as it issued its order dismissing the appeal. Matter of City of New York v 2305-07 Third Ave., LLC, 2016 NY Slip Op 05352, 1st Dept 7-5-16

 

EMINENT DOMAIN (THREE-YEAR TIME LIMIT FOR STARTING EMINENT DOMAIN PROCEEDINGS AFTER A COURT CHALLENGE STARTS TO RUN WHEN THE COURT OF APPEALS DISMISSES THE APPEAL FROM THE APPELLATE DIVISION DECISION)/MUNICIPAL LAW (EMINENT DOMAIN, THREE-YEAR TIME LIMIT FOR STARTING EMINENT DOMAIN PROCEEDINGS AFTER A COURT CHALLENGE STARTS TO RUN WHEN THE COURT OF APPEALS DISMISSES THE APPEAL FROM THE APPELLATE DIVISION DECISION)

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ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED.

The Fourth Department, affirming Supreme Court, determined the arbitrator exceeded his powers vacation of the award was therefore proper. The arbitration concerned the termination of a deputy sheriff for driving while intoxicated and related charges. The arbitrator refused to consider some of the evidence (finding it inadmissible) and reinstated the deputy:

“Under CPLR 7511 (b) an arbitration award must be vacated if, as relevant here, a party’s rights were impaired by an arbitrator who exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made’ ” … . “It is well settled that a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … . “Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact’ ” … .

Here, we conclude that the arbitrator clearly exceeded his authority as provided by the CBA [collective bargaining agreement]. The CBA mandated that “[t]he arbitrator shall review the record of the disciplinary hearing and determine if the finding of guilt was based upon clear and convincing evidence.” Rather than comply with that mandate and review the record from the hearing, the arbitrator considered a portion of the record only, deciding to exclude certain evidence from his review. Having failed to review that which he was required to review, the court properly concluded that the arbitrator exceeded his authority and vacated the arbitration award … . Matter of O’Flynn (Monroe County Deputy Sheriffs’ Assn., Inc.), 2016 NY Slip Op 05261, 4th Dept 7-1-16

 

ARBITRATION (ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED)/MUNICIPAL LAW (ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED)/EMPLOYMENT LAW (ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED)

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VILLAGE CODE DID NOT SPECIFICALLY MAKE ABUTTING PROPERTY OWNERS LIABLE IN TORT FOR FAILING TO MAINTAIN A SIDEWALK; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PLAINTIFF.

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff fell on a concrete sidewalk and sued both the village and the abutting property owner. The village code required abutting property owners to keep sidewalks in good repair but did not impose tort liability for failure to keep the sidewalk in good epair. To hold an abutting property owner liable, therefore, plaintiff must demonstrate the property owner created the dangerous condition or subjected the sidewalk to special use:

Although the Code of Incorporated Village of Valley Stream requires an abutting landowner to keep a sidewalk in good and safe repair …. , it does not specifically impose tort liability for a breach of that duty … . Thus, without proof that [the property owner] either created the alleged defective condition or caused it to occur because of a special use, which is absent in the record before us, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law on the issue of liability … . Obee v Ricotta, 2016 NY Slip Op 05129, 2nd Dept 6-29-16

NEGLIGENCE (SLIP AND FALL, SIDEWALKS, VILLAGE CODE DID NOT SPECIFICALLY MAKE ABUTTING PROPERTY OWNERS LIABLE IN TORT FOR FAILING TO MAINTAIN A SIDEWALK; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PLAINTIFF)/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS, VILLAGE CODE DID NOT SPECIFICALLY MAKE ABUTTING PROPERTY OWNERS LIABLE IN TORT FOR FAILING TO MAINTAIN A SIDEWALK; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PLAINTIFF)/SLIP AND FALL (SIDEWALKS,  VILLAGE CODE DID NOT SPECIFICALLY MAKE ABUTTING PROPERTY OWNERS LIABLE IN TORT FOR FAILING TO MAINTAIN A SIDEWALK; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PLAINTIFF)/SIDEWALKS (SLIP AND FALL, VILLAGE CODE DID NOT SPECIFICALLY MAKE ABUTTING PROPERTY OWNERS LIABLE IN TORT FOR FAILING TO MAINTAIN A SIDEWALK; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PLAINTIFF)

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PRE-ANSWER MOTION TO DISMISS PETITION ALLEGING WRONGFUL TERMINATION OF A PROBATIONARY CORRECTIONS OFFICER SHOULD NOT HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, over an extensive dissent, determined a pre-answer motion to dismiss the petition of a probationary corrections officer alleging wrongful termination should not have been granted. Petitioner had repeatedly informed his superior that an inmate had swallowed soap and bleach and needed medical care. After the inmate died, petitioner was terminated:

 

Petitioner Raymond Castro commenced this article 78 proceeding to contest respondent New York City Department of Correction’s (DOC) termination of his employment as a probationary correction officer. His termination occurred after an inmate died because petitioner’s superior, a captain, thwarted the efforts of several people, including Officer Castro, to assist the inmate with his medical condition. Officer Castro cooperated in the investigation of the inmate’s death and the federal prosecution of his superior. As fully detailed below, on the present record, Officer Castro’s conduct, both in response to the inmate’s medical emergency and during the investigation of the inmate’s death, appears appropriate. Likewise, Officer Castro’s termination, without an explanation, appears questionable and in bad faith. Under the circumstances, this Court is unable to conclude that his claim of wrongful termination as a probationary correction officer is without foundation to warrant a pre-answer dismissal based solely on the ground that it fails to state a cause of action. * * *

A probationary employee may be dismissed for almost any reason, or for no reason at all, and the employee has no right to challenge the termination in a hearing or otherwise, absent a showing that he or she was dismissed in bad faith or for an improper or impermissible reason … . The burden falls on the petitioner to demonstrate by competent proof that bad faith exists, or that the termination was for an improper or impermissible reason … . Matter of Castro v Schriro, 2016 NY Slip Op 05105, 1st Dept 6-28-16

 

EMPLOYMENT LAW (PROBATIONARY EMPLOYEE, PRE-ANSWER MOTION TO DISMISS PETITION ALLEGING WRONGFUL TERMINATION OF A PROBATIONARY CORRECTIONS OFFICER SHOULD NOT HAVE BEEN GRANTED)/MUNICIPAL LAW (EMPLOYMENT, PRE-ANSWER MOTION TO DISMISS PETITION ALLEGING WRONGFUL TERMINATION OF A PROBATIONARY CORRECTIONS OFFICER SHOULD NOT HAVE BEEN GRANTED)/PROBATIONARY EMPLOYEE (PROBATIONARY EMPLOYEE, PRE-ANSWER MOTION TO DISMISS PETITION ALLEGING WRONGFUL TERMINATION OF A PROBATIONARY CORRECTIONS OFFICER SHOULD NOT HAVE BEEN GRANTED)

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CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED.

The Third Department, reversing County Court, determined plaintiff was not required to file a notice of claim because the action against the city sounded in contract, not tort. Plaintiff alleged the city violated an easement when work was done on plaintiff’s property:

General Municipal Law § 50-e (1) (a) provides that a party seeking to bring a tort action against a municipality must file a notice of claim within 90 days of the date that the claim arises … . A similar provision is contained in Charter of the City of Glens Falls § 10.14.5. The notice of claim provisions of General Municipal Law § 50-e, however, apply only to actions sounding in tort, not to those premised upon breach of contract … . The same is true of City of Glens Falls City Charter § 10.14.5, as its terms make clear. Here, plaintiff’s small claims action is premised upon defendant’s alleged failure to comply with the provisions of the easement agreement resulting in damage to his property in the amount of $5,000. Inasmuch as plaintiff’s action sounds in breach of contract, not tort, the notice of claim provisions of General Municipal Law § 50-e and Charter of the City of Glens Falls § 10.14.5 are inapplicable. Strauss v City of Glens Falls, 2016 NY Slip Op 04750, 3rd Dept 6-16-16

 

MUNICPAL LAW (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/REAL PROPERTY (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/CONTRACT LAW (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/EASEMENTS (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/NOTICE OF CLAIM (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)

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MEDICAL RECORDS DOCUMENTING THE MEDICAL CARE DID NOT DEMONSTRATE THE HOSPITAL HAD TIMELY NOTICE OF THE NATURE OF THE MEDICAL MALPRACTICE CLAIM; MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a three-judge dissenting opinion, determined plaintiff's motion for leave to serve a late notice of claim was properly denied. Plaintiff alleged medical malpractice on the part of defendant New York City Health and Hospitals Corporation (HHC). The majority concluded that the mere existence of medical records documenting the hospital care did not demonstrate timely knowledge of the nature of the claim:

… [T]he medical records must do more than “suggest” that an injury occurred as a result of malpractice. [The plaintiff's] argument implies that so long as medical experts reasonably disagree as to whether, based on their respective interpretations of the medical records, the medical staff deviated from the standard of care, a factual question is present and an application for service of late notice must be granted as a matter of law. … [T]he medical records must “evince that the medical staff, by its acts or omissions, inflicted an[] injury on plaintiff . . .” in order for the medical provider to have actual knowledge of the essential facts … . Wally G. v New York City Health & Hosps. Corp. (Metropolitan Hosp.), 2016 NY Slip Op 04443, CtApp 6-9-16

MUNICIPAL LAW (NOTICE OF CLAIM, MEDICAL RECORDS DOCUMENTING THE MEDICAL CARE DID NOT DEMOSTRATE THE HOSPITAL HAD TIMELY NOTICE OF THE NATURE OF THE MEDICAL MALPRACTICE CLAIM; MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED)/NOTICE OF CLAIM (MEDICAL MALPRACTICE CLAIM AGAINST CITY HOSPITAL, MEDICAL RECORDS DOCUMENTING THE MEDICAL CARE DID NOT DEMOSTRATE THE HOSPITAL HAD TIMELY NOTICE OF THE NATURE OF THE MEDICAL MALPRACTICE CLAIM; MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED)/MEDICAL MALPRACTICE (CLAIM AGAINST CITY HOSPITAL, MEDICAL RECORDS DOCUMENTING THE MEDICAL CARE DID NOT DEMOSTRATE THE HOSPITAL HAD TIMELY NOTICE OF THE NATURE OF THE MEDICAL MALPRACTICE CLAIM; MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED)

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TOWN DID NOT ADDRESS ALL THEORIES OF LIABILITY RAISED BY THE PLEADINGS IN THIS SLIP AND FALL CASE, MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED ON THAT GROUND.

The Second Department determined the town did not make the requisite showing for summary judgment in this slip and fall case. The town's motion did not address all of the theories of liability raised in the pleadings:

Here, the plaintiff, in her pleadings, alleged that the Town created the hole in the parking lot that caused her to fall, and that the Town made a special use of the parking lot. Thus, in support of its motion for summary judgment, the Town was required to demonstrate, prima facie, that it did not have prior written notice of the allegedly defective condition, that it did not create the condition, and that it did not make a special use of the parking lot … . Since the Town failed to make this showing, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact. Breest v Long Is. R.R., 2016 NY Slip Op 04376, 2nd Dept 6-8-16

NEGLIGENCE (TOWN DID NOT ADDRESS ALL THEORIES OF LIABILITY RAISED BY THE PLEADINGS IN THIS SLIP AND FALL CASE, MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED ON THAT GROUND)/MUNICIPAL LAW (SLIP AND FALL, TOWN DID NOT ADDRESS ALL THEORIES OF LIABILITY RAISED BY THE PLEADINGS IN THIS SLIP AND FALL CASE, MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED ON THAT GROUND)/SLIP AND FALL (TOWN DID NOT ADDRESS ALL THEORIES OF LIABILITY RAISED BY THE PLEADINGS IN THIS SLIP AND FALL CASE, MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED ON THAT GROUND)

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QUESTION OF FACT WHETHER TOWN CREATED THE DANGEROUS CONDITION IN THIS TRIP AND FALL CASE, PRE-DISCOVERY SUMMARY JUDGMENT IN FAVOR OF DEFENDANT TOWN PREMATURE.

The Third Department, reversing Supreme Court, determined the pre-discovery granting of the defendant-town's motion for summary judgment in this trip and fall case was premature. Although the town proved it did not have written notice of the defect, the plaintiffs raised a question of fact whether the town created the dangerous condition, thereby eliminating the written notice requirement:

In opposition to defendant's motion, plaintiffs provided an affidavit from … Debra Rodriguez. According to Rodriguez, … she heard a “loud bang while one of the [d]efendant's snowplows was clearing the roadway in front of [her] house.” Then, “[a]fter the snow melted, [she] saw that the end of the culvert pipe was mangled, bent upwards and protruding above the surrounding surfaces . . . [and] [she] believe[s] that this dangerous condition was created by [defendant's] snowplow.” * * *

“[A] summary judgment motion is properly denied as premature when the nonmoving party has not been given reasonable time and opportunity to conduct disclosure relative to pertinent evidence that is within the exclusive knowledge of the movant” … . We find that the Rodriguez affidavit is sufficient to demonstrate that discovery is required and, therefore, defendant's motion should have been denied as premature. Greener v Town of Hurley, 2016 NY Slip Op 04291, 3rd Dept 6-2-16

NEGLIGENCE (QUESTION OF FACT WHETHER TOWN CREATED THE DANGEROUS CONDITION IN THIS TRIP AND FALL CASE, PRE-DISCOVERY SUMMARY JUDGMENT IN FAVOR OF DEFENDANT TOWN PREMATURE)/MUNICIPAL LAW (QUESTION OF FACT WHETHER TOWN CREATED THE DANGEROUS CONDITION IN THIS TRIP AND FALL CASE, PRE-DISCOVERY SUMMARY JUDGMENT IN FAVOR OF DEFENDANT TOWN PREMATURE)/SLIP AND FALL (QUESTION OF FACT WHETHER TOWN CREATED THE DANGEROUS CONDITION IN THIS TRIP AND FALL CASE, PRE-DISCOVERY SUMMARY JUDGMENT IN FAVOR OF DEFENDANT TOWN PREMATURE)/CIVIL PROCEDURE (QUESTION OF FACT WHETHER TOWN CREATED THE DANGEROUS CONDITION IN THIS TRIP AND FALL CASE, PRE-DISCOVERY SUMMARY JUDGMENT IN FAVOR OF DEFENDANT TOWN PREMATURE)

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PETITIONER’S EMPIRE ZONE CERTIFICATION PROPERLY REVOKED.

The Third Department determined decertification of petitioner's Empire Zone status was supported by sufficient evidence, including, but not limited to, petitioner's affirmative response to whether it was subject to a Tax Law provision which required it to demonstrate the business was formed for a valid business purpose:

As a participant in the Empire Zones Program, petitioner was required to complete and submit business annual reports (hereinafter BARs) that provided information about its activities, employment and investments (see 5 NYCRR 11.7). The BAR that petitioner completed for 2006 included a section inquiring whether its business was subject to a recently-enacted Tax Law provision that excluded certain firms from receiving tax benefits unless they could establish that they had been formed for a valid business purpose (see Tax Law § 14 [j] [4] [B]). Petitioner responded affirmatively and, as required by the form, attached a statement explaining that it had been formed by combining two previously-existing accounting firms for various valid business purposes. We find that petitioner's affirmative response on the 2006 BAR, taken together with facts set forth in the attached explanatory statement, provided a rational basis for the Commissioner's decertification decision.

Petitioner's mere affirmative response to the question whether the Tax Law provision was applicable to its business, without more, would not have sufficed to provide a rational basis for the determination that it was a shirt-changer. * * * However, the statement that petitioner attached to the 2006 BAR to demonstrate that it was formed for a valid business purpose contained factual information that was relevant to the Commissioner's 2009 analysis. In the statement, petitioner averred that it was formed in 2002 by combining two previously existing accounting firms, one of which — then known as Dermody, Burke & Brown, P.C. — had been engaged in the practice of public accountancy for 50 years. According to the statement, the 14 shareholders of this firm joined with the seven partners of a second accounting firm, Pasquale and Bowers, LLP, to become members of a new entity, which subsequently carried on the combined practices of the two previous firms. These factual assertions were sufficient to give rise to the reasonable inference that petitioner had caused individuals to transfer from existing employment with the previous two accounting firms to similar employment with petitioner, and that — as petitioner's members were the same individuals who had been the members and shareholders of its predecessors — its ownership was similar to that of the prior firms. Accordingly, there was an evidentiary basis for the determination that petitioner was a shirt-changer within the meaning of the 2009 legislation … . Matter of Dermody, Burke & Brown, CPAs, LLC v Department of Economic Dev., 2016 NY Slip Op 04286, 3rd Dept 6-2-16

MUNICIPAL LAW (PETITIONER'S EMPIRE ZONE CERTIFICATION PROPERLY REVOKED)/TAX LAW (PETITIONER'S EMPIRE ZONE CERTIFICATION PROPERLY REVOKED)/EMPIRE ZONES PROGRAM (PETITIONER'S EMPIRE ZONE CERTIFICATION PROPERLY REVOKED)

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