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LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN AN APARTMENT WHERE THE CHILD SPENT 50 HOURS PER WEEK IN THE CARE OF HER GRANDMOTHER, LAW REQUIRING LEAD PAINT ABATEMENT APPLIES ONLY TO APARTMENTS WHERE A CHILD RESIDES.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissenting opinion by Judge Fahey, determined a New York City Local Law, which imposed a duty on the landlord to abate lead paint in an apartment where a child under the age of six “resides,” did not apply to an apartment where a child was cared for 50 hours per week. Plaintiff’s child was cared for during the day by grandmother in grandmother’s apartment. The child developed an elevated lead level. In order to sue the landlord, the landlord must have owed a statutory duty to the child to abate the lead in grandmother’s apartment. The majority held that the term “reside” in the Local Law did not encompass the child’s presence in the apartment 50 hours a week. Therefore the landlord owed no duty to the child:

Dictionaries from the relevant time period define “reside” as “to dwell permanently or continuously: occupy a place as one’s legal domicile” (Merriam Webster’s New Collegiate Dictionary 1003 [9th ed 1986]) and “to have a settled abode for a time; have one’s residence or domicile” (Webster’s Third New International Dictionary 1931 [1981]). According to Webster’s Third, “reside” is the “preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his fixed, settled, or legal abode” … . Black’s Law Dictionary notes that “residence” “is made up of fact and intention, the fact of abode and the intention of remaining, and is a combination of acts and intention. Residence implies something more than mere physical presence and something less than domicile” (Black’s Law Dictionary 1176 [5th ed 1979]). * * *

Nothing in the legislative history of Local Law 1 suggests that the City Council meant anything other than this understanding of the term “reside.” We presume the City was familiar with the common meaning and usage of the words it used as well as existing decisional law …, which, in this case, understood residence as something more than physical presence but something less than domicile — living in a particular place with the intent to retain it as a residence … . Had the City intended to expand the meaning of the word “reside” to include children who do not actually live in an apartment but spend significant amounts of time there, it could have used words to that effect … . Yaniveth R. v LTD Realty Co., 2016 NY Slip Op 02550, CtApp 4-5-16

NEGLIGENCE (LEAD PAINT, LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN AN APARTMENT WHERE THE CHILD SPENT 50 HOURS PER WEEK IN THE CARE OF HER GRANDMOTHER, LAW REQUIRING LEAD PAINT ABATEMENT APPLIES ONLY TO APARTMENTS WHERE A CHILD RESIDES)/LEAD PAINT (LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN AN APARTMENT WHERE THE CHILD SPENT 50 HOURS PER WEEK IN THE CARE OF HER GRANDMOTHER, LAW REQUIRING LEAD PAINT ABATEMENT APPLIES ONLY TO APARTMENTS WHERE A CHILD RESIDES)/LANDLORD-TENANT (LEAD PAINT, LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN AN APARTMENT WHERE THE CHILD SPENT 50 HOURS PER WEEK IN THE CARE OF HER GRANDMOTHER, LAW REQUIRING LEAD PAINT ABATEMENT APPLIES ONLY TO APARTMENTS WHERE A CHILD RESIDES)

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QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN; QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM.

The Third Depatment, in a full-fledged opinion by Justice Garry, determined questions of fact had been raised about governmental immunity and tort liability arising from contract in a property-damage case arising from road renovation work. Village officials and the contractor hired to do the road work (Merritt) decided to allow what was thought to be a small water leak to remain unaddressed temporarily. The leak was apparently created when a fire hydrant was removed to accommodate the road work. At some point the water main burst, causing flooding and a mudslide which damaged plaintiffs' property. The questions before the court were whether the village should be allowed to amend its answer with a governmental-immunity affirmative defense, and whether an indemnification cross-claim against the contractor (Merritt) by the village should have been allowed. The Third Department answered both questions in the affirmative. Although maintenance of a water system for fire protection is a governmental function to which immunity applies, maintenance of the water system generally is a proprietary function, to which immunity would not apply. With respect to Merritt, although tort liability does not usually arise from a contract, here there was a question of fact whether Merritt “launched an instrument of harm” which would trigger liability in tort. With respect to whether governmental immunity applied, the court explained:

A threshold inquiry in determining if a municipality is entitled to immunity in a negligence action is “whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose” … . Where the alleged negligence arose out of proprietary, rather than governmental acts, no immunity will attach and a municipality will generally be liable to the same extent as a private actor … . The maintenance of a municipal water system to provide water for the private use of residents has been deemed to be a proprietary function … . However, where the alleged negligence stems from municipal efforts to protect the safety of the public by “aggregating and supplying water for the extinguishment of fires,” it is engaged in a government function entitled to immunity … . These established rules can present challenges as applied to modern municipal water systems that are used to provide water to both homes and hydrants … . In such cases, where a municipality can be seen to be serving dual governmental and proprietary roles, we must look to “the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred” … . Billera v Merritt Constr., Inc., 2016 NY Slip Op 02503, 3rd Dept 3-31-16

MUNCIPAL LAW (QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/GOVERNMENTAL IMMUNITY (QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/PROPRIETARY FUNCTION (QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/NEGLIGENCE (MUNICIPAL LAW, QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/TORT LIABILITY ARISING FROM CONTRACT (QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM)/CONTRACT LAW (QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM)/NEGLIGENCE  (QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM)

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SPECIAL NEEDS STUDENT SHOULD HAVE BEEN ALLOWED TO AMEND HER NOTICE OF CLAIM TO REFLECT ALLEGATIONS OF AN ASSAULT AND RAPE SHE MADE IN HER DEPOSITION, ALLEGATIONS WHICH DIFFERED DRAMATICALLY FROM THOSE MADE IN THE ORIGINAL NOTICE OF CLAIM.

The Fourth Department, over an extensive dissent, determined Supreme Court should have allowed plaintiff, a special needs student, to amend her notice of claim to reflect allegations made in her deposition. At the deposition, she alleged she was raped by an African-American male under the bleachers on the athletic field. Her original notice of claim alleged she was raped by a white man in a locker room. The essence of the notice of claim was the school district's failure to supervise plaintiff, who was always to be accompanied by an aide. The Fourth Department determined the essence of the claim, failure to supervise, remained unchanged and the amendment would not prejudice the school district:

“Pursuant to [General Municipal Law] section 50-e (6), a court in its discretion may permit the correction of a notice of claim where there has been a mistake, omission, irregularity or defect made in good faith . . . , provided it shall appear that the other party was not prejudiced thereby' ” … . We conclude that Doe's documented delays in cognitive and social functioning, together with her fear of the assailant and post traumatic stress disorder allegedly resulting from the attack, provide a good faith basis for the amendment sought by plaintiffs … .

We further conclude that the District is not prejudiced by the proposed amendment. Contrary to the contention of the District, the amendment sought by plaintiffs does not make “substantive changes in the theory of liability” … . Plaintiffs' theory of liability in the original notice of claim was that Doe suffered injury as the result of the District's negligent failure to provide the level of supervision that it had previously determined was necessary for her, i.e., door-to-door transportation and an aide to accompany her at all times throughout the school day. Plaintiffs' claim remains that defendant was negligent in failing to supervise Doe, regardless of the identity of her assailant or the precise location of the attack. Doe v Rochester City School Dist., 2016 NY Slip Op 02275, 4th Dept 3-25-16

EDUCATION SCHOOL LAW (SPECIAL NEEDS STUDENT SHOULD HAVE BEEN ALLOWED TO AMEND HER NOTICE OF CLAIM TO REFLECT ALLEGATIONS OF AN ASSAULT AND RAPE SHE MADE IN HER DEPOSITION, ALLEGATIONS WHICH DIFFERED DRAMATICALLY FROM THOSE MADE IN THE ORIGINAL NOTICE OF CLAIM)/MUNCIPAL LAW (SPECIAL NEEDS STUDENT SHOULD HAVE BEEN ALLOWED TO AMEND HER NOTICE OF CLAIM TO REFLECT ALLEGATIONS OF AN ASSAULT AND RAPE SHE MADE IN HER DEPOSITION, ALLEGATIONS WHICH DIFFERED DRAMATICALLY FROM THOSE MADE IN THE ORIGINAL NOTICE OF CLAIM)/NOTICE OF CLAIM  (SPECIAL NEEDS STUDENT SHOULD HAVE BEEN ALLOWED TO AMEND HER NOTICE OF CLAIM TO REFLECT ALLEGATIONS OF AN ASSAULT AND RAPE SHE MADE IN HER DEPOSITION, ALLEGATIONS WHICH DIFFERED DRAMATICALLY FROM THOSE MADE IN THE ORIGINAL NOTICE OF CLAIM)

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PROPERTY DEVELOPMENT BASED UPON AN INVALID PERMIT DOES NOT GIVE RISE TO A VESTED RIGHT IN THE DEVELOPED PROPERTY.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined petitioner did not acquire a vested right to an advertising sign erected pursuant to an invalid permit which was later revoked by the city (NYC). The court further determined the proper procedure for seeking approval for the sign is an application for a variance. Whether petitioner relied in good faith on the invalid permit could be considered in the variance proceeding:

“[A]n owner of real property can acquire a common law vested right to develop property in accordance with prior zoning regulations when, in reliance on a 'legally issued permit,' the landowner 'effect[s] substantial changes and incur[s] substantial expenses to further the development' and '[t]he landowner's actions relying on [the] valid permit [are] so substantial that the municipal action results in serious loss rendering the improvements essentially valueless'” … .

Vested rights cannot be acquired, however, where there is reliance on an invalid permit … . When a permit is wrongfully issued in the first instance, the vested rights doctrine does not prevent the municipality from revoking the permit to correct its error. Because the 2008 permit was unlawfully issued, petitioner could not rely on it to acquire vested rights. Matter of Perlbinder Holdings, LLC v Srinivasan, 2016 NY Slip Op 02122, CtApp 3-24-16

ZONING (PROPERTY DEVELOPMENT BASED UPON AN INVALID PERMIT DOES NOT GIVE RISE TO A VESTED RIGHT IN THE DEVELOPED PROPERTY)

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FIREFIGHTER’S GENERAL MUNCIPAL LAW CAUSE OF ACTION FOR INJURIES INCURRED WHILE FIGHTING A FIRE CANNOT BE BASED UPON AN ALLEGED OSHA VIOLATION ON THE PART OF THE PROPERTY OWNER.

The Second Department determined a firefighter's General Municipal Law 205-a(1) cause of action was properly dismissed. Plaintiff firefighter was injured when he fell into a pit in defendants' garage while fighting a fire. The General Municipal Law allows a firefighter to sue for injury incurred due to a failure to comply with an applicable regulation. Plaintiff alleged the open pit violated an OSHA regulation. However, OSHA regulations apply only in employer/employee relationships:

General Municipal Law § 205-a(1) provides that a firefighter has a cause of action when he or she sustains an injury in the line of duty “as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments.” The plaintiff contends that he sustained an injury in the line of duty as a result of the defendants' violation of OSHA regulation 29 CFR § 1910.23(a)(1). However, a cause of action predicated on the alleged violation of OSHA regulations can only be maintained against a plaintiff's employer … . This Court has noted that OSHA governs employee/employer relationships, and thus OSHA regulations do not impose a specific statutory duty on parties other than a plaintiff's employer … . Gallagher v 109-02 Dev., LLC, 2016 NY Slip Op 02051, 2nd Dept 3-23-16

NEGLIGENCE (FIREFIGHTER'S GENERAL MUNCIPAL LAW CAUSE OF ACTION FOR INJURIES INCURRED WHILE FIGHTING A FIRE CANNOT BE BASED UPON AN ALLEGED OSHA VIOLATION ON THE PART OF THE PROPERTY OWNER)/GENERAL MUNICIPAL LAW (FIREFIGHTER'S GENERAL MUNCIPAL LAW CAUSE OF ACTION FOR INJURIES INCURRED WHILE FIGHTING A FIRE CANNOT BE BASED UPON AN ALLEGED OSHA VIOLATION ON THE PART OF THE PROPERTY OWNER)/FIREFIGHTERS (FIREFIGHTER'S GENERAL MUNCIPAL LAW CAUSE OF ACTION FOR INJURIES INCURRED WHILE FIGHTING A FIRE CANNOT BE BASED UPON AN ALLEGED OSHA VIOLATION ON THE PART OF THE PROPERTY OWNER)/OSHA REGULATIONS (FIREFIGHTER'S GENERAL MUNCIPAL LAW CAUSE OF ACTION FOR INJURIES INCURRED WHILE FIGHTING A FIRE CANNOT BE BASED UPON AN ALLEGED OSHA VIOLATION ON THE PART OF THE PROPERTY OWNER)

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QUESTION OF FACT WHETHER OFFICER DEMONSTRATED RECKLESS DISREGARD FOR THE SAFETY OF OTHERS IN HIGH-SPEED PURSUIT.

The Second Department determined the county’s motion for summary judgment in an action stemming from a high-speed police pursuit was properly denied. Before the pursued car went through a red light and collided with plaintiff’s decedent, there were several similar close calls as the pursuit proceeded through a residential neighborhood:

” The manner in which a police officer operated his or her vehicle in responding to an emergency may form the basis of civil liability to an injured third party if the officer acted in reckless disregard for the safety of others'” … . ” The reckless disregard’ standard requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow'” … .

In this case, the County defendants, in moving for summary judgment, failed to establish, prima facie, that [the officer] did not act in reckless disregard for the safety of others in commencing, conducting, or failing to terminate the high-speed pursuit of [the] vehicle … . Among other things, there are triable issues of fact as to what occurred just moments before the accident and as to whether [the officer] pursued [the vehicle] in a manner that prevented [the pursued driver] from stopping for fear of a collision with [the officer’s] police vehicle. Furthermore, considering the testimony indicating that the pursuit was conducted at high speeds in a residential neighborhood, that [the pursued driver] disobeyed several traffic control devices, and that collisions with other cars at earlier intersections were narrowly avoided, there are triable issues of fact as to whether [the officer] should have terminated the pursuit. … . Foster v Suffolk County Police Dept., 2016 NY Slip Op 01639, 2nd Dept 3-9-16

NEGLIGENCE (POLICE HIGH-SPEED PURSUIT, QUESTION OF FACT RE: RECKLESS DISREGARD FOR SAFETY)/MUNICIPAL LAW (POLICE HIGH-SPEED PURSUIT, QUESTION OF FACT RE: RECKLESS DISREGARD FOR SAFETY)/POLICE (POLICE HIGH-SPEED PURSUIT, QUESTION OF FACT RE: RECKLESS DISREGARD FOR SAFETY)/VEHICLE AND TRAFFIC LAW  (POLICE HIGH-SPEED PURSUIT, QUESTION OF FACT RE: RECKLESS DISREGARD FOR SAFETY)

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ABSENCE OF ANY MENTION OF DEFENDANT DISCARDING A WEAPON IN THE PAPERWORK RELATING TO DEFENDANT’S ARREST, AND THE DIFFERING VERSIONS OF EVENTS PRIOR TO DEFENDANT’S ARREST, RAISED A QUESTION OF FACT WHETHER THERE WAS PROBABLE CAUSE TO ARREST DEFENDANT FOR POSSESSION OF A WEAPON.

The First Department, over an extensive dissent, determined questions of fact precluded summary judgment in favor of the defendants (city and police) in an action alleging, inter alia, malicious prosecution. Defendant was accused of possession of a weapon and spent 247 days in jail before being acquitted at trial. The accusation was based on the testimony of one of the police officers at the scene who said he saw defendant drop the weapon on a pile of garbage bags (where the weapon was apparently recovered). No other officer at the scene saw defendant with a weapon. And there was no mention of defendant discarding the weapon in any of paperwork relating to defendant’s arrest:

The elements of a claim for malicious prosecution are (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice … . A jury may infer that a defendant acted with actual malice from the fact that there was no probable cause to arrest the plaintiff … . As noted, there are numerous factual questions concerning whether the police had the requisite probable cause to arrest plaintiff and initiate criminal proceedings. The omissions in the police paperwork and the various versions of events raise questions as to the credibility of the police account of what transpired. Further, the presumption of probable cause attaching upon an accused’s arraignment or indictment may be overcome by evidence that “the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or [that they have] otherwise acted in bad faith” … . Mendez v City of New York, 2016 NY Slip Op 01586, 1st Dept 3-8-16

MALICIOUS PROSECUTION (QUESTION OF FACT WHETHER POLICE HAD PROBABLE CAUSE TO ARREST, EVIDENCE MAY HAVE BEEN FABRICATED)/MUNICIPAL LAW (MALICIOUS PROSECUTION, QUESTION OF FACT WHETHER POLICE HAD PROBABLE CAUSE TO ARREST, EVIDENCE MAY HAVE BEEN FABRICATED)

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PUBLIC EMPLOYEE FAILED TO DEMONSTRATE ELIMINATION OF POSITION WAS DONE IN BAD FAITH; NEGLIGENT VIOLATION OF OPEN MEETINGS LAW DID NOT INVALIDATE TOWN’S ACTIONS.

The Third Department determined the petitioner did not demonstrate the elimination of his position with the parks maintenance department was done in bad faith or to circumvent the Civil Service Law. The Third Department concluded the town violated the Open Meetings Law when it eliminated petitioner’s position, but the nature of the violation (mere negligence) did not warrant invalidating the town’s actions:

“[A] public employer may, in the absence of bad faith, collusion or fraud, abolish positions for purposes of economy or efficiency” … . Respondent explained through the affidavits of its Supervisor and a member of its Town Board that because its parks maintenance department consisted of only petitioner and one part-time laborer, it could achieve greater economy and efficiency by abolishing the supervisory position in favor of hiring additional laborers. Petitioner’s managerial duties were shifted to the Supervisor and two full-time and one part-time laborer positions were created at an overall cost savings.

The burden was then on petitioner to demonstrate that his position was eliminated in bad faith or as a subterfuge to circumvent his rights under the Civil Service Law … . However, the mere reassignment of duties, in and of itself, does not constitute proof of bad faith … . Nor is there any indication in the record of any personal or political animosities that would suggest some deceitful purpose of ousting and replacing petitioner. Rather, petitioner’s conclusory and unsupported assertions fail to refute the Town Board’s showing that its actions were part of a good faith effort to reorganize a municipal department for the purposes of reducing costs and increasing efficiency … .

* * * “[T]he record does not suggest that the [Town Board’s] failure to comply with the precise requirements of the Open Meetings Law was anything more than mere negligence,” which does not constitute good cause to invalidate the Town Board’s otherwise permissible actions … . Matter of Cutler v Town of Mamakating, 2016 NY Slip Op 01543, 3rd Dept 3-3-16

MUNICIPAL LAW (ELIMINATION OF PUBLIC EMPLOYEE’S POSITION NOT DONE IN BAD FAITH)/EMPLOYMENT LAW (ELIMINATION OF PUBLIC EMPLOYEE’S POSITION NOT DONE IN BAD FAITH)/OPEN MEETINGS LAW (NEGLIGENT VIOLATION OF OPEN MEETINGS LAW DID NOT INVALIDATE TOWN’S ACTIONS)

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POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION BASED SOLELY UPON THE APPLICANT’S CRIMINAL RECORD WITHOUT APPLYING THE HIRING CRITERIA GENERALLY REQUIRED BY THE CORRECTIONS LAW.

The First Department, as a matter of first impression, determined the police department (NYPD) could refuse to hire petitioner as a civilian police communication technician (PCT) solely because petitioner had a criminal record, without regard to the criteria set out in Corrections Law article 23-a. The Corrections Law, in an effort to support the hiring of persons with a criminal record, generally requires employers to determine whether an applicant’s criminal record has a direct relationship with the responsibilities of the job and/or whether employment of the applicant would pose an unreasonable risk to the public.  The First Department concluded the Corrections Law excluded law enforcement from the reach of its hiring criteria:

Article 23-A broadly provides that employers, whether public or private, are prohibited from unfairly discriminating against persons previously convicted of one or more criminal offenses, unless after consideration of certain enumerated statutory factors, the employer determines that there is direct relationship between the offense(s) and the duties or responsibilities inherent in the license or employment sought or held by the individual, or such employment or license poses an unreasonable risk to the public, etc. (Correction Law §§ 752, 753). The statute defines the term “employment” as follows: “(5) Employment’ means any occupation, vocation or employment, or any form of vocational or educational training. Provided, however, that “employment” shall not, for the purposes of this article, include membership in any law enforcement agency” (Correction Law § 750[5] emphasis added). Matter of Belgrave v City of New York, 2016 NY Slip Op 01548, 1st Dept 3-3-16

EMPLOYMENT LAW (POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION SOLELY ON THE BASIS OF THE APPLICANT’S CRIMINAL RECORD)/CORRECTIONS LAW (POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION SOLELY ON THE BASIS OF THE APPLICANT’S CRIMINAL RECORD)/MUNICIPAL LAW  (POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION SOLELY ON THE BASIS OF THE APPLICANT’S CRIMINAL RECORD)

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EXTENSION OF TIME TO FILE NOTICE OF APPEARANCE RE: A CLAIM FOR DAMAGES FOR THE ACQUISITION OF REAL PROPERTY BY THE VILLAGE PROPERLY GRANTED, CRITERIA EXPLAINED.

The Second Department affirmed Supreme Court’s grant of an extension of time to file a notice of appearance pursuant to Eminent Domain Procedure Law (EDPL) 503 (B). The village’s petition for condemnation had been granted and the EDPL requires a landowner to file a notice of appearance for any claim of damages arise from the acquisition of real property. The landowners’ attorney failed to timely file the notice of appearance with the clerk of the court, but the village had been served with it. The Second Department explained the relevant law:

 

The time within which to file a written claim or notice of appearance pursuant to EDPL 503 is “merely a procedural direction to be issued by the court in the exercise of its broad discretion to administer the litigation in an orderly and expeditious manner” … . It is neither a statute of limitations nor a condition precedent to compensation and may be extended by the Supreme Court ” upon such terms as may be just and upon good cause shown'” … . In considering a motion for such an extension of time, “[a] court may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit” … .

Here, the landowners established ” good cause'” for an extension of time to file a notice of appearance … . Although the landowners’ attorney failed to properly file a notice of appearance with the clerk of the court within the timeframe set forth by the Supreme Court, the Village was nevertheless served with a notice of appearance that alerted it to the landowners’ claims. Moreover, the landowners repeatedly demanded an “advance payment” for the taking (EDPL 304), repeatedly requested that their expert appraisers be given access to the subject property in order to assess its value, and sought to exchange “written appraisal reports” (EDPL 508). In addition, after the Village had acquired the subject property, a judicial viewing of the property took place (see EDPL 510). Furthermore, the landowners demonstrated that their claim was potentially meritorious through the submission of expert evidence demonstrating that the property was worth significantly more than the amount tendered by the Village as an advance payment. Matter of Village of Haverstraw v Ray Riv. Co., Inc., 2016 NY Slip Op 01500, 2nd Dept 3-2-16

 

EMINENT DOMAIN (EXTENSION OF TIME TO FILE NOTICE OF APPEARANCE RE: DAMAGES FOR ACQUISITION OF REAL PROPERTY PROPERLY GRANTED)/NOTICE OF APPEARANCE (EMINENT DOMAIN, EXTENSION OF TIME TO FILE NOTICE OF APPEARANCE RE: DAMAGES FOR ACQUISITION OF REAL PROPERTY PROPERLY GRANTED)/MUNICIPAL LAW (EMINENT DOMAIN, EXTENSION OF TIME TO FILE NOTICE OF APPEARANCE RE: DAMAGES FOR ACQUISITION OF REAL PROPERTY PROPERLY GRANTED)

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