Municipal Law – Page 106 – New York Appellate Digest

VILLAGE FAILED TO DEMONSTRATE MELTING AND FREEZING OF A PILE OF SNOW DID NOT CREATE THE HAZARD, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined summary judgment in favor of the defendant village should not have been granted in this sidewalk slip and fall case. Although the village demonstrated it did not have written notice of snow and ice on the sidewalk, it did not demonstrate its practice of piling snow did not create the hazard:

While the mere failure to remove all snow or ice from a sidewalk is an act of omission, rather than an affirmative act of negligence … , a municipality’s act in piling snow as part of its snow removal efforts, which snow pile then melts and refreezes to create a dangerous icy condition, constitutes an affirmative act excepting the dangerous condition from the prior written notice requirement … . The defendant’s evidence demonstrated that the temperature rose and remained above freezing for an extended period of time on the day before the plaintiff’s accident, after the defendant created the snow piles. On the day of the plaintiff’s accident, however, the temperature dropped to below freezing. While the defendant submitted an affidavit of an employee who stated that he applied sand and salt to the area of the sidewalk where the plaintiff fell sometime between 7:30 a.m. and 4:00 p.m. on the day of plaintiff’s accident, the plaintiff testified at his hearing held pursuant to General Municipal Law § 50-h that there was no sand or salt on the sidewalk at the time of his fall. Evidence submitted by the defendant also indicates that the ice upon which the plaintiff fell was located on a portion of the sidewalk that sloped down from the snow piles. Larenas v Incorporated Vil. of Garden City, 2016 NY Slip Op 06684, 2nd Dept 10-12-16

MUNICIPAL LAW (NEGLIGENCE,VILLAGE FAILED TO DEMONSTRATE MELTING AND FREEZING OF A PILE OF SNOW DID NOT CREATE THE HAZARD, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE (MUNICIPAL LAW, VILLAGE FAILED TO DEMONSTRATE MELTING AND FREEZING OF A PILE OF SNOW DID NOT CREATE THE HAZARD, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (MUNICIPAL LAW, VILLAGE FAILED TO DEMONSTRATE MELTING AND FREEZING OF A PILE OF SNOW DID NOT CREATE THE HAZARD, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SIDEWALKS (MUNICIPAL LAW, VILLAGE FAILED TO DEMONSTRATE MELTING AND FREEZING OF A PILE OF SNOW DID NOT CREATE THE HAZARD, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

October 12, 2016

APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES.

The Fourth Department determined claimant’s application for leave to file a late notice of claim should not have been granted. Apparently plaintiff’s daughter was injured by a student from defendant school district who was subject to an order of protection requiring the student to stay away from the school attended by claimant’s daughter. Although claimant demonstrated defendant had timely knowledge of the order of protection but not demonstrate the defendant had timely knowledge of any injuries resulting from the violation of the order:

Supreme Court abused its discretion in granting claimant’s application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5) approximately one year after the incident in which her daughter was injured occurred. “It is well settled that key factors for the court to consider in determining an application for leave to serve a late notice of claim are whether the claimant has demonstrated a reasonable excuse for the delay, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining a defense on the merits” … . “While the presence or absence of any single factor is not determinative, one factor that should be accorded great weight is whether the [municipality] received actual knowledge of the facts constituting the claim in a timely manner” … . It is well established that “[k]nowledge of the injuries or damages claimed . .. , rather than mere notice of the underlying occurrence, is necessary to establish actual knowledge of the essential facts of the claim within the meaning of General Municipal Law § 50-e (5)” … , and the claimant has the burden of demonstrating that the respondent had actual timely knowledge … . Matter of Turlington v Brockport Cent. Sch. Dist., 2016 NY Slip Op 06572, 4th Dept 10-7-16

EDUCATION-SCHOOL LAW (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES)/MUNICIPAL LAW (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES)/NOTICE OF CLAIM (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES)

October 7, 2016

Municipal Law, Public Health Law

NYC DEPARTMENT OF HEALTH EXCEEDED ITS REGULATORY AUTHORITY WITH RESPECT TO MANDATING INFLUENZA VACCINATIONS FOR CERTAIN PRE-SCHOOL PROGRAMS.

The First Department, in a full-fledged opinion by Justice Richter, determined the New York City Department of Health exceeded the scope of its regulatory authority when it adopted regulations mandating influenza vaccinations for children attending certain child care, pre-kindergarten and kindergarten programs. The regulations allowed programs to opt-out of the vaccination requirement by paying a fine. The opt-out provision was deemed unrelated to public health, and therefore beyond the Department of Health’s regulatory authority:

… [W]e conclude that by adopting the challenged amendments, the Board of Health “cross[ed] the line into legislative territory” … . [T]he Board of Health did not merely balance costs and benefits, but instead improperly made value judgments by creating a regulatory scheme with exceptions not grounded in promoting public health. … [T]he challenged amendments do not prohibit a child who was not vaccinated against the flu from attending child care or school, but provide only that the facility “may” refuse entry to the unvaccinated child … . Instead, the provider or school can, in effect, opt-out of the vaccination requirement and allow an unvaccinated child to attend, upon payment of a monetary fine … .

This opt-out provision stands in stark contrast to section 2164(7)(a) of the State’s Public Health Law, which, logically, forbids children from remaining in school without proof of the immunizations required under that statute. The challenged amendments, on the other hand, allow a child care provider or school to make an economic choice to pay a fine rather than expel a student and lose a year’s worth of tuition. Creating a policy whereby unvaccinated children are allowed to stay in child care or school flies in the face of respondents’ claim that the challenged amendments are meant to promote the public health by reducing transmission of the flu virus. Not surprisingly, respondents are unable to point to any health-related reason supporting the opt-out provision. Garcia v New York City Dept. of Health & Mental Hygiene, 2016 NY Slip Op 06559, 1st Dept 10-6-16

MUNICIPAL LAW (NYC DEPARTMENT OF HEALTH EXCEEDED ITS REGULATORY AUTHORITY WITH RESPECT TO MANDATING INFLUENZA VACCINATIONS FOR CERTAIN PRE-SCHOOL PROGRAMS)/ADMINISTRATIVE LAW (NYC DEPARTMENT OF HEALTH EXCEEDED ITS REGULATORY AUTHORITY WITH RESPECT TO MANDATING INFLUENZA VACCINATIONS FOR CERTAIN PRE-SCHOOL PROGRAMS)/INFLUENZA VACCINATIONS (NYC DEPARTMENT OF HEALTH EXCEEDED ITS REGULATORY AUTHORITY WITH RESPECT TO MANDATING INFLUENZA VACCINATIONS FOR CERTAIN PRE-SCHOOL PROGRAMS)

October 6, 2016

Municipal Law, Unemployment Insurance

CITY HOUSING AUTHORITY OUTREACH WORKER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS.

The Third Department determined an outreach worker/field supervisor who, pursuant to a grant, worked for the Niagara Falls Housing Authority was an employee entitled to unemployment insurance benefits:

Prior to being hired, claimant filled out an application and was required to submit a résumé, after which he was interviewed by a panel, which included two officials from the Housing Authority, that determined to hire him … . Upon being hired, claimant was required to attend training … . The rate of pay for claimant, who was required to work 35 hours per week, was not subject to negotiation … , and claimant was required to fill out and submit weekly time sheets that would have to be approved and signed by his supervisor before receiving remuneration from the Housing Authority … . While claimant did not receive benefits, he was reimbursed for expenses related to the costs of a cell phone, gas, tolls, food and office supplies … , and the Housing Authority also provided claimant with office space to use in one of its buildings. While performing his duties as an outreach worker, claimant was required to wear a jacket or shirt, as well as a hat, identifying him as part of the SNUG [violence reduction] program … and was required to maintain a certain number of clients and to meet with those clients. Claimant was also not allowed to subcontract his work or employ a substitute to perform his work … , and his work in the community was reviewed periodically and subject to oversight by his supervisors … . Matter of Cole (Niagara Falls Hous. Auth.–Commissioner of Labor), 2016 NY Slip Op 06281, 3rd Dept 9-29-16

UNEMPLOYMENT INSURANCE (CITY HOUSING AUTHORITY OUTREACH WORKER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS)

September 29, 2016

Municipal Law

FAILURE TO STRICTLY COMPLY WITH SIGNATURE REQUIREMENTS IN THE VILLAGE LAW REQUIRED INVALIDATION OF REFERENDUM PETITION.

The Second Department determined failure to strictly comply with the signature requirements in the Village Law invalidated a referendum concerning the elimination of paid fireman positions:

Village Law § 9-902(8) states: “Petition shall be made upon white paper containing the signatures of qualified electors of the village. The sheets of such a petition shall be numbered consecutively beginning with number one at the foot of each sheet. Such petition must set forth in every instance the correct date of signing, the full name of the signer, his present residence, the ward if any and the village election district if any. A signer need not himself fill in the date, residence, ward, or election district” … . The respondents/defendants do not dispute that their referendum petitions failed to set forth the village election district for all but 5 of the 4,254 signatories. * * *

The Court of Appeals has held that, “[w]hile substantial compliance is acceptable as to details of form, there must be strict compliance with statutory commands as to matters of prescribed content” … . Here, the prescribed content includes the village election district, which is a matter of substance, not form … . Matter of Pilla v Karnsomtob, 2016 NY Slip Op 06142, 2nd Dept 9-26-16

MUNICIPAL LAW (FAILURE TO STRICTLY COMPLY WITH SIGNATURE REQUIREMENTS IN THE VILLAGE LAW REQUIRED INVALIDATION OF REFERENDUM PETITION)/VILLAGE LAW (FAILURE TO STRICTLY COMPLY WITH SIGNATURE REQUIREMENTS IN THE VILLAGE LAW REQUIRED INVALIDATION OF REFERENDUM PETITION)/REFERENDUM (FAILURE TO STRICTLY COMPLY WITH SIGNATURE REQUIREMENTS IN THE VILLAGE LAW REQUIRED INVALIDATION OF REFERENDUM PETITION)/PETITIONS (REFERENDUM, VILLAGE LAW, FAILURE TO STRICTLY COMPLY WITH SIGNATURE REQUIREMENTS IN THE VILLAGE LAW REQUIRED INVALIDATION OF REFERENDUM PETITION)

September 26, 2016

Environmental Law, Municipal Law

SCRAP METAL SALES OPERATION WAS NOT A TRANSFER STATION WITHIN THE MEANING OF THE COUNTY SOLID WASTE LAW.

The Second Department, in a full-fledged opinion by Justice Cohen, determined a scrap metal seller was not operating a “transfer station” within the meaning of the Westchester County Solid Waste Law. Therefore, certain fines and license fees related to the operation of a transfer station should not have been imposed by the county. The Second Department noted that, in reviewing an Article 78 proceeding, as long as the underlying statute does not require expertise to interpret, the reviewing court has the power to determine the meaning of the controlling statute. Here the plain meaning of the statute would not support defining the scrap metal sales operation as a transfer station:

The petitioner, Universal Metal & Ore, Inc. (hereinafter Universal), is an international metal trading company founded in 1951, which maintains a facility in Mount Vernon. Essentially, Universal is in the business of purchasing scrap metal, and reselling it at a profit to other companies. The primary issue raised on appeal is whether Universal’s Mount Vernon facility, where Universal accepts deliveries of scrap metal from independent dealers and stores it pending transport, may be considered a solid waste “transfer station” under the Westchester County Solid Waste and Recyclables Collection Licensing Law (hereinafter the Solid Waste Law). … [W]e conclude that Universal’s facility is not a transfer station as defined by the Solid Waste Law, and that there was thus no rational basis for the Westchester County Solid Waste Commission’s determination to fine Universal for operating a transfer station without a license. Matter of Universal Metal & Ore, Inc. v Westchester County Solid Waste Commn., 2016 NY Slip Op 06091, 2nd Dept 9-21-16

MUNICIPAL LAW (SCRAP METAL SALES OPERATION WAS NOT A TRANSFER STATION WITHIN THE MEANING OF THE COUNTY SOLID WASTE LAW)/ENVIRONMENTAL LAW (SOLID WASTE LAW, SCRAP METAL SALES OPERATION WAS NOT A TRANSFER STATION WITHIN THE MEANING OF THE COUNTY SOLID WASTE LAW)/SOLID WASTE LAW (SCRAP METAL SALES OPERATION WAS NOT A TRANSFER STATION WITHIN THE MEANING OF THE COUNTY SOLID WASTE LAW)/SCRAP METAL (SCRAP METAL SALES OPERATION WAS NOT A TRANSFER STATION WITHIN THE MEANING OF THE COUNTY SOLID WASTE LAW)

September 21, 2016

Employment Law, Human Rights Law, Municipal Law

EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY.

The First Department determined plaintiff stated causes of action for employment discrimination and retaliation under both the state and city (NYC) Human Rights Law. The court noted that claims after 2011 were time-barred under the state law, but claims going back to 2007 were timely under the city law, which allows otherwise time-barred claims which are part of a continuing course of conduct:

… [P]laintiff’s claims under the New York State HRL for failure to promote after May 23, 2011 are timely and should not have been dismissed, as plaintiff alleged sufficient facts to meet his pleading burden for purposes of this motion to dismiss … . Plaintiff’s claims for failure to promote under the City HRL were also improperly dismissed because plaintiff has adequately alleged “a single continuing pattern of unlawful conduct [starting from his first promotion rejection in 2007] extending into the [limitations] period immediately preceding the filing of the complaint” … , which permits consideration under the City HRL of all actions relevant to that claim, including those that would otherwise be time-barred … . Moreover, while, as plaintiff concedes, the continuing violations doctrine only applies to his claims of failure to promote under the City HRL … , even under the State HRL, he “is not precluded from using the prior acts as background evidence in support of a timely claim'” … . St. Jean Jeudy v City of New York, 2016 NY Slip Op 06045, 1st Dept 9-15-16

EMPLOYMENT LAW (EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY)/HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY)/DISCRIMINATION (EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY)/

September 15, 2016

Employment Law, Municipal Law

COUNTY HAD AUTHORITY TO IMPOSE A WAGE FREEZE TO ADDRESS A FINANCIAL CRISIS.

MUNICIPAL LAW, EMPLOYMENT LAW.

The Second Department, interpreting the Public Authorities Law, determined Nassau County had the authority to impose a wage freeze on county employees to address a financial crisis:

… [W]e find that, contrary to the … petitioners’ contention, the Supreme Court correctly determined that NIFA [Nassau County Interim Finance Authority] was authorized under the NIFA Act to impose the subject wage freezes (see Public Authorities Law § 3669[3]). Public Authorities Law § 3669(3) expressly provides for NIFA’s authority to declare a control period by enacting a resolution finding a fiscal crisis, and upon such finding, order that all increases in salary or wages of county employees be suspended. Control periods may be declared “at any time” (Public Authorities Law § 3669[1]). Matter of Carver v Nassau County Interim Fin. Auth., 2016 NY Slip Op 05995, 2nd Dept 9-14-16

MUNICIPAL LAW (COUNTY HAD AUTHORITY TO IMPOSE A WAGE FREEZE TO ADDRESS A FINANCIAL CRISIS)/EMPLOYMENT LAW (MUNICIPAL LAW, COUNTY HAD AUTHORITY TO IMPOSE A WAGE FREEZE TO ADDRESS A FINANCIAL CRISIS)/WAGE FREEZE (COUNTY HAD AUTHORITY TO IMPOSE A WAGE FREEZE TO ADDRESS A FINANCIAL CRISIS)

September 14, 2016

Civil Rights Law, Municipal Law, Negligence

PORTION OF DETECTIVE’S INTERNAL AFFAIRS FILE DISCOVERABLE; DEPOSITION OF ADDITIONAL EMERGENCY MEDICAL TECHNICIANS SHOULD HAVE BEEN ALLOWED.

In an action against a detective and emergency medical technicians (EMT’s) alleging negligence during an emergency response, the Second Department determined a portion of the detective’s “internal affairs” file was discoverable as “material and necessary” and the deposition of two additional EMT’s should have been allowed because sufficient information about the response to the accident had not been provided by the EMT’s who had been deposed:

Contrary to the Supreme Court’s determination, we find that two of the Internal Affairs records must be disclosed because they are relevant and material: (1) a recording or recordings of emergency dispatch calls referred to as “Seventh Precinct Band (Disc #1)” and (2) a “Fire, Rescue, and Emergency Services (FRES)” recording. Accordingly, the court should have granted that branch of the plaintiffs’ motion which was to compel the disclosure of those two records (see Civil Rights Law § 50-a…). * * *

Supreme Court should have granted that branch of the plaintiffs’ motion which was to compel the depositions of the EMTs or EMT aides who were present at the accident scene. In the first instance, a municipality has the right to determine which of its officers or employees with knowledge of the facts may appear for a deposition … . Similarly, “[a] corporate entity has the right to designate, in the first instance, the employee who shall be examined” … . In order to demonstrate that additional depositions are necessary, the movant must show “(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case” … .

Here, only two EMTs who responded to the accident scene have been deposed thus far, and one of those EMTs is the … officer who allegedly failed to provide necessary first aid to the decedent. The testimony of these two emergency responders did not provide sufficient information regarding the actions taken by the various EMTs and ambulance workers who responded to the accident, and it is likely that other on-scene EMTs may possess relevant and material information. Under these circumstances, the plaintiffs are entitled to depose the other members of the ambulance company who were present at the accident scene … . Cea v Zimmerman, 2016 NY Slip Op 05968, 2nd Dept 9-14-16

MUNICIPAL LAW (PORTION OF DETECTIVE’S INTERNAL AFFAIRS FILE DISCOVERABLE; DEPOSITION OF ADDITIONAL EMERGENCY MEDICAL TECHNICIANS SHOULD HAVE BEEN ALLOWED)/CIVIL RIGHTS LAW (POLICE OFFICERS, PORTION OF DETECTIVE’S INTERNAL AFFAIRS FILE DISCOVERABLE)/POLICE OFFICERS (POLICE OFFICERS, PORTION OF DETECTIVE’S INTERNAL AFFAIRS FILE DISCOVERABLE)/CIVIL PROCEDURE (NEGLIGENCE, DEPOSITION OF ADDITIONAL EMERGENCY MEDICAL TECHNICIANS SHOULD HAVE BEEN ALLOWED)/NEGLIGENCE (NEGLIGENCE, PORTION OF DETECTIVE’S INTERNAL AFFAIRS FILE DISCOVERABLE; DEPOSITION OF ADDITIONAL EMERGENCY MEDICAL TECHNICIANS SHOULD HAVE BEEN ALLOWED)

September 14, 2016

Education-School Law, Municipal Law

CERTAIN CAUSES OF ACTION IN COMPLAINTS ALLEGING THE STATE HAS FAILED TO ADEQUATELY FUND NEW YORK CITY PUBLIC SCHOOLS ADEQUATELY PLED; MUNICIPALITY (CITY OF YONKERS), HOWEVER, DID NOT HAVE STANDING TO SUE.

The First Department, in a full-fledged opinion by Justice Tom, determined plaintiffs (parents of students, among others) had sufficiently pled certain causes of action based upon the state’s alleged failure to adequately fund New York City public schools. The complex discussion cannot be summarized here. With respect to a municipality’s (here, the City of Yonkers’) lack of standing standing to sue the state in this context, the court explained:

The City of Yonkers maintains that it has capacity to sue …, asserting that the educational funding cuts have deprived it of a proprietary interest in the Foundation Aid monies calculated to be apportioned to it by formula pursuant to the 2007 Budget and Reform Act. This argument is unpersuasive. Contrary to Yonkers’s contention, the proprietary interest exception does not apply where a municipality has “a mere hope or expectancy” of receiving funds … , but instead “relate[s] to funds or property of a municipal corporation in its possession or to which it had a right to immediate possession” … . The Foundation Aid monies provided for under the 2007 Budget and Reform Act (codified in Education Law § 3602) are the product of a complex formula that turns on the application of numerous variables, including things like a school district’s “daily attendance figures” … . Sums allocated pursuant to the formula therefore vary from year to year. Moreover, any sums provided for by Foundation Aid must themselves be the subject of a separate budgetary appropriation; absent such appropriation, they do not exist (see State Finance Law §§ 4[1]; 40[2][a]). Thus, the Foundation Aid formula does not create any “specific sum of money” that would “create[] a proprietary interest” in any school district … . Aristy-Farer v State of New York, 2016 NY Slip Op 05960, 1st Dept 9-8-16

EDUCATION-SCHOOL LAW (CERTAIN CAUSES OF ACTION IN COMPLAINTS ALLEGING THE STATE HAS FAILED TO ADEQUATELY FUND NEW YORK CITY PUBLIC SCHOOLS ADEQUATELY PLED; MUNICIPALITY (CITY OF YONKERS), HOWEVER, DID NOT HAVE STANDING TO SUE)/MUNICIPAL LAW (CERTAIN CAUSES OF ACTION IN COMPLAINTS ALLEGING THE STATE HAS FAILED TO ADEQUATELY FUND NEW YORK CITY PUBLIC SCHOOLS ADEQUATELY PLED; MUNICIPALITY (CITY OF YONKERS), HOWEVER, DID NOT HAVE STANDING TO SUE)

September 8, 2016