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FIREFIGHTER RULE DID NOT PRECLUDE ACTION BY POLICE OFFICER STEMMING FROM A FALL AT THE OFFICE; GENERAL MUNICIPAL LAW 205-e ACTION PROPERLY BASED ON ALLEGED VIOLATION OF LABOR LAW 27-a.

The Second Department determined a police officer’s common law negligence and General Municipal Law 205-e actions should not have been dismissed.  The officer tripped over an electric cord at the office.  The firefighter rule did not bar the suit because the injury was not the result of the heightened risk associated with police work. The General Municipal Law 205-e cause of action was correctly based upon an alleged violation of Labor Law 27-a:

Here, the defendants failed to establish, prima facie, that the firefighter rule barred the plaintiffs’ cause of action alleging common-law negligence. The injured plaintiff’s injury did not occur during an act in furtherance of a police function which exposed her to a heightened risk of sustaining that injury. The performance of her duties merely furnished the occasion for the injury. Furthermore, the defendants failed to establish, prima facie, that they did not have constructive notice of the condition complained of … . Therefore, the Supreme Court erred in directing dismissal of the plaintiffs’ common-law negligence cause of action.

The Supreme Court also erred in dismissing the plaintiffs’ cause of action pursuant to General Municipal Law § 205-e. General Municipal Law § 205-e permits a police officer to assert a tort claim against a fellow officer or an employer. To establish a cause of action under General Municipal Law § 205-e, a police officer plaintiff must (1) identify the statute or ordinance with which the defendant failed to comply, (2) describe the manner in which the police officer was injured, and (3) set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm … . As a prerequisite to recovery pursuant to a General Municipal Law § 205-e cause of action, “a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties” … .

Here, the plaintiffs predicate their General Municipal Law § 205-e cause of action on Labor Law § 27-a(3)(a)(1). The Supreme Court correctly determined that Labor Law § 27-a(3)(a)(1) may appropriately serve as a statutory predicate for a section 205-e cause of action, and does so here … . Kelly v City of New York, 2015 NY Slip Op 08808, 2nd Dept 12-2-15

NEGLIGENCE (POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK)/MUNICIPAL LAW ([POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK, FIREFIGHTER RULE)/FIREFIGHTER RULE (POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK)/GENERAL MUNICIPAL LAW 205-e (POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK)/LABOR LAW 27-a(3)(a)(1) (VIOLATION AS PREDICATE FOR GENERAL MUNICIPAL LAW 205-e ACTION)

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Petitioner, Who Was Required to Work in the “Work Experience Program [WEP]” to Receive Public Assistance, Was an “Employee” Entitled to Minimum Wage Under the Fair Labor Standards Act (FLSA)

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over an extensive dissenting opinion by Judge Abdus-Salaam (in which Judge Pigott concurred), determined petitioner, who received public assistance from New York City and was therefore required to work 35 hours per week in the Work Experience Program (WEP), was an “employee” entitled to the minimum wage under the Fair Labor Standards Act (FLSA). Petitioner, after completing the WEP, won $10,000 in the state lottery. Under the lottery rules, the state sought one-half of the lottery proceeds as reimbursement for the public assistance paid to petitioner. Petitioner argued that the reimbursement reduced the amount the state paid him for his WEP work below the minimum wage required by the FLSA. The Court of Appeals agreed with petitioner’s argument. The bulk of the opinion and the dissent dealt with the propriety of finding petitioner was an “employee” entitled to the minimum wage protections of the FLSA:

… [W]e must apply the economic reality test and, under that test, the City should be considered Carver’s employer. The City had the power to hire and fire WEP workers, in that it was the City’s responsibility to assign public assistance recipients to a WEP agency and the City could dismiss workers from WEP based upon their performance. Additionally, the City and its WEP agencies supervise and control the work schedule of the workers. Furthermore, the City and its agencies, such as HRA, maintain the employment records of the WEP workers. While the Social Services Law, not the WEP agencies or the City, determines the rate and method of payment of WEP workers, that is simply one factor. The economic reality test “encompasses the totality of the circumstances” … . Matter of Carver v State of New York, 2015 NY Slip Op 08451, CtApp 11-19-15

 

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Standing Criteria for Petitioning for Review of Municipal Environmental Rulings Clarified; The Fact that Many People, in Addition to Petitioner, Will Suffer the Same Adverse Effects as Petitioner, Did Not Negate Petitioner’s Standing

In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals clarified the nature of the standing requirement for contesting municipal rulings under the State Environmental Quality Review Act (SEQRA). The Village of Painted Post had approved the sale of municipal water to a company which operates gas wells in Pennsylvania. As part of that project, construction of a railroad loading facility was approved. A resident of the village, Martin, was one of the petitioners seeking the annulment of the Village’s SEQRA rulings. Martin, who lives near the rail facility, alleged the noise from the facility was different in degree from that experienced by the general public (thus according him standing to bring the petition). Supreme Court agreed Martin had standing. The Appellate Division reversed. The Court of Appeals determined Martin did in fact sufficiently allege standing. The fact that other nearby residents would experience the same intrusion as Martin was not dispositive:

The Appellate Division, in concluding that petitioner Marvin lacked standing, applied an overly restrictive analysis of the requirement to show harm “different from that of the public at large,” reasoning that because other Village residents also lived along the train line, Marvin did not suffer noise impacts different from his neighbors. * * *

To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody.”]). The harm that is alleged must be specific to the individuals who allege it, and must be “different in kind or degree from the public at large”… , but it need not be unique. Here, petitioner Marvin is not alleging an indirect, collateral effect from the increased train noise that will be experienced by the public at large, but rather a particularized harm that may also be inflicted upon others in the community who live near the tracks.

The number of people who are affected by the challenged action is not dispositive of standing. …[S]tanding rules should not be “heavy-handed,” …[w]e are “reluctant to apply [standing] principles in an overly restrictive manner where the result would be to completely shield a particular action from judicial review” … . Applying the Appellate Division’s reasoning, because there are multiple residents who are directly impacted, no resident of the Village would have standing to challenge the actions of the Village, notwithstanding that the train noise fell within the zone of interest of SEQRA. That result would effectively insulate the Village’s actions from any review and thereby run afoul of our pronouncement that the standing rule should not be so restrictive as to avoid judicial review. Matter of Sierra Club v Village of Painted Post, 2015 NY Slip Op 08452, CtApp 11-19-15

 

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County Did Not Demonstrate Its Entitlement to Qualified Immunity Re: Obstructed Intersection

The Second Department determined the county did not demonstrate (as a matter of law) it was entitled to qualified immunity for  the placement of a sensor station and the failure to trim the nearby hedges. The complaint alleged the sensor station and hedges obstructed plaintiff’s view of oncoming traffic, resulting in an accident. The county’s motion for summary judgment was properly denied. The court explained the analytical criteria:

A governmental body owes a nondelegable duty to keep its streets in a reasonably safe condition … . However, a governmental body is accorded a qualified immunity from liability arising out of a highway safety planning decision … . Such immunity is predicated upon an ability to demonstrate that the relevant discretionary determination by the governmental body was the result of a deliberative decision-making process … .

Contrary to the County’s contention, it did not sustain its prima facie burden on the issue of qualified immunity. The County failed to demonstrate, inter alia, that its placement of the sensor station cabinet and its decision to refrain from trimming the hedge were highway safety planning decisions resulting from a deliberative decision-making process of the type afforded immunity from judicial interference … . Iacone v Passanisi, 2015 NY Slip Op 08386, 2nd Dept 11-18-15

 

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Question of Fact Whether City Created Hazardous Condition

The Second Department, reversing Supreme Court, determined there was a question of fact whether the city created the allegedly hazardous condition (an expansion joint cover plate on a bridge which was struck by plaintiff’s bicycle):

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury … . In addition, “[a] municipality that has adopted a prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies” … . The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality … .

Here, the City failed to establish, prima facie, that the subject metal expansion joint cover plate did not present a hazardous or defective condition … . Although the plaintiff does not dispute that the City did not have prior written notice of the alleged hazardous or defective condition, a triable issue of fact exists as to whether the City created the alleged hazardous or defective condition … . Oser v City of New York, 2015 NY Slip Op 08393, 2nd Dept 11-18-15

 

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Supreme Court Should Not Have Deemed a Verified Claim to Be a Summons and Complaint Under the Authority of CPLR 2001 (Allowing Correction of Mistakes in the Method of Filing)

Reversing Supreme Court, the Fourth Department determined that a verified claim filed by the plaintiff should not have been deemed a summons and complaint pursuant to CPLR 2001 (which allows correction or clarification of a mistake in the method of filing):

Plaintiff filed a verified claim in this action and, before answering, defendant filed a CPLR 3211 motion to dismiss, contending that plaintiff had “yet to file a Summons or a Complaint” and that “a complete failure to file is a jurisdictional defect.” Relying upon CPLR 2001, Supreme Court deemed the claim to be a complaint and excused the failure to file a summons as “an irregularity that shall be disregarded in this case.” That was error. We agree with defendant that CPLR 2001 does not permit a court to disregard the complete failure to file a summons, i.e., an initial paper necessary to commence an action … . As recognized by the Court of Appeals in quoting from the Senate Introducer’s Memorandum in support of the bill that amended CPLR 2001, the statute may be invoked as a basis to correct or clarify ” a mistake in the method of filing, AS OPPOSED TO A MISTAKE IN WHAT IS FILED’ “… . Fox v City of Utica, 2015 NY Slip Op 08267, 4th Dept 11-13-15

 

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Criteria for Mandamus to Compel Explained (Not Met Here)

The Second Department determined the county personnel director’s ruling that community college employees would no longer be eligible for promotions to county jobs was rationally based on the terms of an agreement between the county and the college. In finding that the “mandamus to compel” petition was properly denied, the court explained the relevant criteria:

” The extraordinary remedy of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief has been demonstrated'” … . “A discretionary act involve[s] the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'” … . Since the petitioner sought to compel conduct clearly involving the application of … discretion and judgment …, the remedy of mandamus is not available. Matter of Suffolk County Assn. of Mun. Empls., Inc. v Levy, 2015 NY Slip Op 08181, 2nd Dept 11-12-15

 

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Due Diligence Requirements for Nail and Mail Service Do Not Apply Under the New York City Charter, One Attempt at Personal Service and Use of Nail and Mail Method for a Notice of Violation (by the NYC Department of Buildings) Sufficient

The First Department determined that, although the New York City Charter refers to CPLR article 3, the “due diligence” requirements for “nail and mail” service in article 3 do not apply to service of a notice of violation (NOV) by the Department of Buildings (DOB). Therefore, one attempt at personal service followed by use of the “nail and mail” method was sufficient service:

The reference to CPLR article 3 in the City Charter’s affix and mail provision merely prescribes the class of individuals whom respondents must try to personally serve, and does not import the “due diligence” requirement of CPLR article 3 … . This interpretation of the City Charter is supported by the statutory language as a whole, and by the legislative history showing a legislative intent to make service under section 1049-a(d)(2) of the City Charter less onerous than service under CPLR article 3 (see id.; see also Governor’s Mem approving L 1979, ch 623, 1979 McKinney’s Session Laws of NY at 1816-1817). Matter of Mestecky v City of New York, 2015 NY Slip Op 08077, 1st Dept 11-5-15

 

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Finding by Workers’ Compensation Board that Corrections Officer’s Condition Was Work-Related Did Not Automatically Entitle Officer to Disability Benefits Under General Municipal Law 207-c

In upholding the county’s determination petitioner (a corrections officer) was not entitled to disability benefits under General Municipal Law 207-c., the Third Department noted that the finding by the Workers’ Compensation Board that petitioner’s condition was work-related did not, under the doctrine of collateral estoppel, automatically entitle the petitioner to disability benefits:

Contrary to petitioner’s initial contention, it is settled law that “a determination by the Workers’ Compensation Board that an injury is work-related” does not, “by operation of collateral estoppel, automatically entitle an injured employee to General Municipal Law § 207-c benefits” … . Accordingly, the Board’s determination did not collaterally estop [the county] from denying petitioner’s application for General Municipal Law § 207-c benefits.

Further, substantial evidence supports the determination denying petitioner benefits. Pursuant to General Municipal Law § 207-c, correction officers are entitled to benefits when they are injured “in the performance of [their] duties” … , so long as they can establish the existence of a “‘direct causal relationship between job duties and the resulting illness or injury'” … . This Court will uphold a determination regarding a correction officer’s eligibility for benefits if such decision is supported by substantial evidence … , i.e., “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact, [which] is ‘less than a preponderance of the evidence'” … . Notably, credibility determinations are within the sole province of the Hearing Officer … . Matter of Jackson v Barber, 2015 NY Slip Op 08025, 3rd Dept 11-5-15

 

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Courts’ Limited Review Powers Re: an Administrative Determination Made After a Hearing Clearly Explained

In reversing Supreme Court’s annulment of the fire district board’s determination petitioner was not entitled to benefits pursuant to Municipal law 207-a (2), the Second Department explained the courts’ review powers in this context:

“Judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence” … .  “Substantial evidence means more than a mere scintilla of evidence,’ and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides” … . “When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'” … . “Moreover, where there is conflicting expert testimony, in making a General Municipal Law § 207-a determination, a municipality is free to credit one physician’s testimony over that of another'” … . “Thus, even if conflicting medical evidence can be found in the record,’ the municipality’s determination, based on its own expert’s conclusions, may still be supported by substantial evidence” … . Matter of Delgrande v Greenville Fire Dist., 2015 NY Slip Op 07838, 2nd Dept 10-28-15

 

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