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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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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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