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PETITIONER’S EMPIRE ZONE CERTIFICATION SHOULD NOT HAVE BEEN REVOKED.

The Third Department, reversing the Empire Zone Designation Board, determined the decision to revoke petitioner's Empire Zones Program certification was arbitrary and capricious. The court noted that petitioner's affirmative response to a question mandated by the Tax Law concerning whether petitioner had ever been required to demonstrate the business was formed for a valid business purpose was not, standing alone, a basis for decertification:

In deciding whether a business should be decertified for failing the shirt-changer test, the Commissioner was directed to determine whether the entity had “caused individuals to transfer from existing employment with another business enterprise with similar ownership . . . to similar employment with the certified business enterprise or if the enterprise acquired, purchased, leased, or had transferred to it real property previously owned by an entity with similar ownership, regardless of form of incorporation or organization” (General Municipal Law § 959 [a] [v] [5]; see General Municipal Law § 959 [w]). Petitioner contends that it never engaged in such transfers of real property or employment, that the administrative record lacks any evidence to the contrary, and, thus, that there is no factual basis for the determination that this provision was violated. We agree, and therefore find that the Board's denial of petitioner's appeal from the revocation of its certificate was “arbitrary and capricious and without a rational basis” … . Matter of PG Erie Props., LLC v Department of Economic Dev., 2016 NY Slip Op 04284, 3rd Dept 6-2-16

MUNICIPAL LAW (PETITIONER'S EMPIRE ZONE CERTIFICATION SHOULD NOT HAVE BEEN REVOKED)/TAX LAW (MUNICIPAL LAW, PETITIONER'S EMPIRE ZONE CERTIFICATION SHOULD NOT HAVE BEEN REVOKED)/EMPIRE ZONES PROGRAM (PETITIONER'S EMPIRE ZONE CERTIFICATION SHOULD NOT HAVE BEEN REVOKED)

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COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM.

The Third Department, reversing Supreme Court, determined the county’s motion for summary judgment should have been granted. During a hurricane, a county drainage system overflowed and damaged plaintiffs’ property. The county was immune from suit based upon the design and placement of the drainage system. And the plaintiff’s failed to raise a question of fact concerning the allegation the county negligently maintained the drainage system:

… [T]o the extent that plaintiffs’ negligence claim alleges that defendant failed to adequately design or redesign the drainage system, it cannot be maintained. Decisions “‘determining when and where [drainage ditches] shall be built, of what size and at what level, are of a quasi judicial nature, involving the exercise of deliberate judgment and large discretion . . . [which] is not subject to revision by a court or jury in a private action for not sufficiently draining a particular lot of land'” … .

The act of maintaining a drainage system, on the other hand, is ministerial in nature and, thus, governmental immunity will not insulate defendant from plaintiffs’ alternative claim that it did so negligently … . “Nonetheless, [defendant] is not an insurer of its [drainage] system and cannot be held liable for injury unless it is shown that the injury was caused by active negligence in the maintenance of the system” … . Watt v County of Albany, 2016 NY Slip Op 04281, 3rd Dept 6-2-16

 

MUNICIPAL LAW (COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM)/IMMUNITY (GOVERNMENTAL IMMUNITY, COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM)/STORM DRAINAGE SYSTEMS (COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM)

NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL.

The First Department, in a full-fledged opinion by Justice Andrias, over an extensive dissenting opinion, determined a New York City local law mandating the disclosure of information about the selection process for construction of affordable housing was not preempted by state statutes and was not unconstitutional:

Although one may reasonably argue, as does the dissent, that the disclosure requirements imposed by the law are costly, difficult or cumbersome, or that the law will not remedy corruption in the developer selection process or further the flexible and economical implementation of publicly funded housing, the wisdom, necessity or efficacy of the law is not the province of the courts… .  … [T]he only issue before us is whether Local Law No. 44 is unconstitutional because it is preempted by state statutes or violates the Due Process and Equal Protection Clauses of the New York State Constitution. Applying well established precedent to the facts, we find that Local Law No. 44 does not unlawfully interfere with or frustrate [New York City Department of  Housing Preservation and Development (HPD)'s] authority under the City Charter or impermissibly conflict with the State Legislature's delegation of authority and discretion over affordable housing programs to HPD, and that it is not otherwise unconstitutional. New York State Assn. for Affordable Hous. v Council of the City of N.Y., 2016 NY Slip Op 04320, 1st Dept 6-2-16

MUNICIPAL LAW (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/AFFORDABLE HOUSING (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/PREEMPTION (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/LOCAL LAW (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/HOUSING  (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)

ONCE INJURED FIREFIGHTER BEGAN RECEIVING GENERAL MUNICIPLA LAW 207-a BENEFITS, THE CITY COULD NOT REQUIRE FIREFIGHTER TO SUBMIT AN APPLICATION FOR THOSE BENEFITS AND THEN DENY THEM.

The Second Department, in a full-fledged opinion by Justice Lasalle, determined an injured  firefighter who began receiving General Municpal Law 207-a benefits, before an application process for those benefits had been put in place by the city, could not be required to submit an application which resulted in a denial of those benefits. The denial was deemed to constitute a prohibited reassessment of the firefighter's medical condition:

General Municipal Law § 207-a(2) guarantees the payment of benefits to a firefighter who is permanently disabled in the line of duty, including the continued payment of the firefighter's regular salary until the mandatory retirement age, less certain amounts received from other sources (hereinafter Section 207-a[2] benefits). This proceeding presents an issue of first impression for this Court: whether the provisions of General Municipal Law § 207-a(2) authorize a municipality to terminate permanent disability retirement benefits previously awarded to a firefighter pursuant to that subsection, and require the firefighter to submit a formal application for those benefits pursuant to an application procedure that was adopted by the municipality subsequent to the firefighter's retirement. We hold that a municipality is not authorized to terminate such previously awarded Section 207-a(2) benefits or require the submission of a formal application for such benefits after the firefighter has retired, as this essentially amounts to an improper reconsideration of an award of benefits based on improved medical condition, a procedure which is not authorized by General Municipal Law § 207-a(2) … . Matter of Masullo v City of Mount Vernon, 2016 NY Slip Op 04225, 2nd Dept 6-1-16

MUNICIPAL LAW (ONCE INJURED FIREFIGHTER BEGAN RECEIVING GENERAL MUNICIPLA LAW 207-a BENEFITS, THE CITY COULD NOT REQUIRE FIREFIGHTER TO SUBMIT AN APPLICATION FOR THOSE BENEFITS AND THEN DENY THEM)/GENERAL MUNICIPAL LAW (FIREFIGHTERS, ONCE INJURED FIREFIGHTER BEGAN RECEIVING GENERAL MUNICIPLA LAW 207-a BENEFITS, THE CITY COULD NOT REQUIRE FIREFIGHTER TO SUBMIT AN APPLICATION FOR THOSE BENEFITS AND THEN DENY THEM)/FIREFIGHTERS (ONCE INJURED FIREFIGHTER BEGAN RECEIVING GENERAL MUNICIPLA LAW 207-a BENEFITS, THE CITY COULD NOT REQUIRE FIREFIGHTER TO SUBMIT AN APPLICATION FOR THOSE BENEFITS AND THEN DENY THEM)

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MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS.

The Third Department determined the village mayor did not have the authority to ignore the ruling of a hearing officer who found petitioner, a former firefighter, was entitled to General Municipal Law 207-a benefits based upon an on-the-job injury. When the mayor appointed the hearing officer, there was no indication the hearing officer's finding was merely advisory:

Based on the record, we conclude that Supreme Court's initial finding that the Village was not bound by the Hearing Officer's determination was in error. First, and contrary to respondents' argument, without any statutory or negotiated prohibition or direction, the Village was authorized to delegate its decision-making authority to the Hearing Officer … .  Second, that the Mayor did, in fact, appoint the Hearing Officer to make a final determination and not a recommendation is apparent from the record before us. Neither the 2010 nor the 2012 appointment was in any way qualified so as to limit the respective Hearing Officers to an advisory role.  Matter of McKay v Village of Endicott, 2016 NY Slip Op 04085, 3rd Dept 5-26-16

MUNICIPAL LAW (MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)/EMPLOYMENT LAW (GENERAL MUNICIPAL LAW, FIREFIGHTERS, MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)/GENERAL MUNICIPAL LAW (FIREFIGHTERS, MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)/FIREFIGHTERS (GENERAL MUNICIPAL LAW, MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)

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ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK.

The Second Department, reversing Supreme Court, determined defendant property owner could not be held liable for the condition of a NYC-owned tree well within the abutting sidewalk:

Administrative Code of the City of New York § 7-210(a) places the duty to maintain a sidewalk in a reasonably safe condition on the owner of the property abutting the sidewalk, and provides for civil liability for injuries proximately caused by the failure to so maintain the sidewalk. However, the statute does not extend that duty of maintenance to City-owned tree wells or provide for civil liability for injuries occurring in City-owned tree wells … . Thus, liability may be imposed on the abutting landowner in such instances only where she or he has “affirmatively created the dangerous condition, negligently made repairs to the area, [or] caused the dangerous condition to occur through a special use of that area” … . Gibbons v City of New York, 2016 NY Slip Op 04019, 2nd Dept 5-25-16

NEGLIGENCE (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/MUNICIPAL LAW (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/SLIP AND FALL (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/SIDEWALKS (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/TREE WELLS (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)

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INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiffs' motion for leave to file a late notice of claim against defendant school district should have been denied. Although infancy tolls the one-year-ninety-days statute of limitations, it does not toll the 90-day period for filing a notice of claim. The motion for leave to file a late notice was not made until more than four years after the expiration of the 90-day filing period:

Here, the plaintiffs failed to establish that the defendant had “acquired actual knowledge of the essential facts constituting the claim” within 90 days of the accident or a reasonable time thereafter (General Municipal Law § 50-e[5]). The school's principal prepared an accident claim form on the day of the accident, and the infant plaintiff's parents completed the medical claim portion of that form a couple of weeks after the accident. Contrary to the plaintiffs' contention, this form, which merely indicated that the infant plaintiff lost his left front tooth and part of his right front tooth when he hit his mouth on the gymnasium floor in an attempt to “duck from a ball” during physical education class, did not establish that the defendant had timely, actual knowledge of the essential facts underlying the claims that it was negligent in supervising the students, in failing to provide a safe play area, and in allowing the infant plaintiff to engage in an inappropriate activity … . Accordingly, the defendant had no reason to conduct a prompt investigation into the purported negligent supervision and alleged unsafe condition of the gymnasium floor … . Horn v Bellmore Union Free Sch. Dist., 2016 NY Slip Op 04021, 2nd Dept 5-25-16

NEGLIGENCE (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)/CIVIL PROCEDURE (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)/EDUCATION-SCHOOL LAW (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)/MUNICIPAL LAW (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)

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DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO BOTH QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY.

The Second Department determined defendants' motion to set aside the plaintiff's verdict, in a case alleging use of excessive force by police officers, should have been granted. Plaintiff, who was mentally ill, punched a police officer who approached him and ran up some stairs. When the police attempted to restrain him, he and the officers fell down the stairs. The Second Department held the facts did not support a finding of excessive force. The court further held the officers did not clearly violate plaintiff's statutory or constitutional rights and were therefore entitled to qualified immunity. In addition, the Second Department found the officers were performing a discretionary, not ministerial function, and were therefore entitled to government function immunity, requiring dismissal of the negligence cause of action. On the topic of qualified immunity, the Second Department wrote:

“The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” … . While the doctrine does not require “a case directly on point, . . . existing precedent must have placed the statutory or constitutional question beyond debate” … . The dispositive question is whether the violative nature of particular conduct is clearly established … . “This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition” … . “Such specificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts” … . “This exacting standard gives government officials breathing room to make reasonable but mistaken judgments' by protect[ing] all but the plainly incompetent or those who knowingly violate the law'” … . Davila v City of New York, 2016 NY Slip Op 03846, 2nd Dept 5-18-16

MUNICIPAL LAW (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/IMMUNITY (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/CIVIL RIGHTS (POLICE, EXCESSIVE FORCE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/QUALIFIED IMMUNITY (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/GOVERNMENT FUNCTION IMMUNITY (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/NEGLIGENCE (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)

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QUESTION OF FACT WHETHER ABUTTING PROPERTY OWNER VIOLATED THE NYC ADMINISTRATIVE CODE AND THEREBY OWED A DUTY TO PLAINTIFF WHO ALLEGEDLY FELL OVER A CABLE ON THE SIDEWALK.

The Second Department determined defendant abutting property owner did not demonstrate he owed no duty to the trip and fall plaintiff who allegedly fell over a piece of rebar which was on the sidewalk. The court explained the duty of abutting property owners under the New York City code:

…[L]ability may be imposed on the abutting landowner when the abutting landowner … violated a statute or ordinance imposing liability on the abutting landowner for failing to maintain the sidewalk … .

“Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner” … . …

Administrative Code section 7-210(a) states that “[i]t shall be the duty of the owner of the real property abutting any sidewalk . . . to maintain such sidewalk in an reasonably safe condition.” Administrative Code section 7-210(b) states that “[f]ailure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to . . . the negligent failure to remove snow, ice, dirt or other material from the sidewalk” … . Metzker v City of New York, 2016 NY Slip Op 03724, 2nd Dept 5-11-16

NEGLIGENCE (QUESTION OF FACT WHETHER ABUTTING PROPERTY OWNER VIOLATED THE NYC ADMINISTRATIVE CODE AND THEREBY OWED A DUTY TO PLAINTIFF WHO ALLEGEDLY FELL OVER A CABLE ON THE SIDEWALK)/MUNICIPAL LAW (NEW YORK CITY ADMINISTRATIVE CODE, QUESTION OF FACT WHETHER ABUTTING PROPERTY OWNER VIOLATED THE NYC ADMINISTRATIVE CODE AND THEREBY OWED A DUTY TO PLAINTIFF WHO ALLEGEDLY FELL OVER A CABLE ON THE SIDEWALK)/SLIP AND FALL (QUESTION OF FACT WHETHER ABUTTING PROPERTY OWNER VIOLATED THE NYC ADMINISTRATIVE CODE AND THEREBY OWED A DUTY TO PLAINTIFF WHO ALLEGEDLY FELL OVER A CABLE ON THE SIDEWALK)

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VILLAGE FAILED TO ESTABLISH PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT WHERE INJURY CAUSED BY TREE FALLING IN ROADWAY.

The Second Department determined the defendant village's motion papers did not demonstrate entitlement to summary judgment dismissing the complaint alleging injury to plaintiff-driver caused by a tree falling in the roadway:

A municipality has a duty to maintain its roadways in a reasonably safe condition, and this duty extends to trees adjacent to the road which could pose a danger to travelers … . However, a municipality will not be held liable unless it had actual or constructive notice of the dangerous condition … . Here, the Village failed to establish its prima facie entitlement to judgment as a matter of law … by demonstrating that it owed no duty to maintain or inspect the tree which fell in the roadway on the date of the subject accident or that it lacked actual or constructive notice of the alleged dangerous condition of the tree … . Furthermore, the Village failed to establish its prima facie entitlement to judgment as a matter of law by demonstrating that the breach of any duty allegedly owed by it was not a proximate cause of the subject accident. Since the Village failed to establish its prima facie entitlement to judgment as a matter of law, we need not review the sufficiency of the opposition papers … . Connolly v Incorporated Vil. of Lloyd Harbor, 2016 NY Slip Op 03463, 2nd Dept, 5-4-16

NEGLIGENCE (VILLAGE FAILED TO ESTABLISH PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT WHERE INJURY CAUSED BY TREE FALLING IN ROADWAY)/MUNICIPAL LAW (VILLAGE FAILED TO ESTABLISH PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT WHERE INJURY CAUSED BY TREE FALLING IN ROADWAY)

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