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RECORDINGS OF 911 CALLS RE: PLAINTIFF’S DECEDENT’S CAR ACCIDENT DISCOVERABLE IN A WRONGFUL DEATH ACTION.

In a matter of first impression at the appellate level, the Second Department determined the recordings of 911 calls relating to plaintiff’s decedent’s (Reece’s) car accident were discoverable. The wrongful death action was brought against the state alleging that a traffic counting device shattered when plaintiff’s decedent’s car drove over it, puncturing the gas tank and causing a fire which killed plaintiff’s decedent and two children. The claimant served a subpoena upon non-party county for the recordings and the county moved to quash the subpoena. The Second Department held that the motion to quash was properly denied:

The County moved to quash the subpoena on the ground that under County Law § 308(4), 911 recordings and documents are not discoverable by any entity or person other than certain designated public agencies and emergency medical providers. The claimant opposed the motion and thereafter moved to compel discovery of, inter alia, the 911 tapes, arguing that they were discoverable under CPLR 3101 as material and relevant matter. Specifically, the claimant argued that the material may be expected to reveal why Reece’s vehicle left the roadway, the length of time the vehicle’s occupants experienced conscious pain and suffering, and the amount of time it took for police to respond to the scene. * * *

We view the language of County Law § 308(4) as generally prohibiting entities and private individuals from accessing 911 tapes and records … . However, the statute is not intended to prohibit the disclosure of matter that is material and relevant in a civil litigation, accessible by a so-ordered subpoena or directed by a court to be disclosed in a discovery order … . Indeed, in analogous criminal practice, 911 tapes and records are frequently made available to individual defendants as part of the People’s disclosure obligations pursuant to People v Rosario (9 NY2d 286…) and are admitted at trials to describe events as present sense impressions of witnesses … , to identify perpetrators as present sense impressions … , or as excited utterances … . Clearly, the general language of County Law § 308(4), which is part of the statute governing the establishment of an emergency 911 system in various counties, cannot be interpreted as prohibiting court-ordered discovery of 911 material in civil litigation. Anderson v State of New York, 2015 NY Slip Op 09648, 2nd Dept 12-30-15

CIVIL PROCEDURE (911 TAPES DISCOVERABLE IN WRONGFUL DEATH ACTION)/MUNICIPAL LAW (911 TAPES DISCOVERABLE IN WRONGFUL DEATH ACTION)/EVIDENCE (911 TAPES DISCOVERABLE IN WRONGFUL DEATH ACTION)/NEGLIGENCE (911 TAPES DISCOVERABLE IN WRONGFUL DEATH ACTION)/WRONGFUL DEATH (911 TAPES DISCOVERABLE)/911 TAPES (DISCOVERABLE IN WRONGFUL DEATH ACTION)

FAILURE TO NAME INDIVIDUAL POLICE OFFICERS, OR JOHN DOE OFFICERS, IN A NOTICE OF CLAIM PRECLUDED SUIT AGAINST THE POLICE OFFICERS SUBSEQUENTLY NAMED IN THE COMPLAINTS.

The First Department affirmed the lower court’s dismissal of an action against the police department and several named individual police officers because the notice of claim named only the New York City Police Department as a defendant and did not name any individual officers or any “john doe” officers. Justice Sweeney explained his reasoning for affirming in a concurring memorandum. Two justices dissented in a memorandum by Justice Manzanet-Daniels. Justice Sweeney argued that the underlying purpose of a notice of claim is to allow the municipality to make a timely investigation into the allegations. By failing to name individual officers, the municipality was not given sufficient notice. The dissent argued that the General Municipal Law does not require the naming (in a notice of claim) of individual employees of a municipality to state a valid claim against employees of a municipality:

Plaintiffs here did not put the City on notice that it would seek to impose liability upon specific employees of the NYPD. Indeed, as the action progressed, more and more police officers were added as individual defendants, the last of which over three years removed from the incident in question, thus rendering a timely investigation into and assessment of the claims impossible. To permit such a result raises questions of fundamental fairness for the individual defendants, since they were not put on notice, even in a generic way by way of “Police Officer John Doe” or similar language, that they were going to become defendants. Moreover, the prejudice accruing to both the municipal and individual defendants from such a delay is obvious, since memories fade over time, records that could have easily been obtained early on may have been archived, lost or discarded, and witnesses may have relocated, just to name a few of the potential obstacles. Delay in investigating and evaluating a claim defeats the purpose of GML § 50-e. Alvarez v City of New York, 2015 NY Slip Op 09601, 1st Dept 12-29-15

MUNICIPAL LAW (NOTICE OF CLAIM, FAILURE TO NAME POLICE OFFICERS OR JOHN DOE OFFICERS PRECLUDED SUIT AGAINST OFFICERS SUBSEQUENTLY NAMED)/NOTICE OF CLAIM (FAILURE TO NAME POLICE OFFICERS OR JOHN DOE OFFICERS PRECLUDED SUIT AGAINST OFFICERS SUBSEQUENTLY NAMED)/POLICE OFFICERS (NOTICE OF CLAIM, FAILURE TO NAME POLICE OFFICERS OR JOHN DOE OFFICERS PRECLUDED SUIT AGAINST OFFICERS SUBSEQUENTLY NAMED)

AGREEMENT ALLOWING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ “HOME RULE” RIGHTS.

The Third Department, in a full-fledged opinion by Justice Garry, determined the petitioners, the Town of Vernon and the Town of Verona, did not have standing to attack an agreement (ratified by the New York Gaming Economic Development Act of 2013 [UNYGEDA]) allowing the Oneida Nation to implement legalized casino gambling. The towns argued that the agreement violated the towns’ “home rule” rights by removing land from their zoning and environmental authority, as well as preventing the collection of property taxes. The Third Department held that it was the placing of Oneida Nation land in trust (by the federal Department of the Interior) which caused these negative consequences and the trust was created before the agreement at issue:

These negative consequences … did not result from the agreement or from the UNYGEDA, but, instead, from the decision by the Department to place the lands in trust. That decision had already been made when the agreement was executed, and it was unaffected by any State action other than the agreement’s provision that the State and the Counties would discontinue then-pending federal litigation that challenged the Department’s decision. In 2014, the State and Counties did so … . The State has no constitutional obligation to pursue litigation, nor have petitioners established that the litigation would have resulted in the reversal of the Department’s decision to place the lands in trust if it had not been settled. Further, the discontinuance of the State’s claims did not foreclose the Towns from pursuing separate federal litigation that challenged the Department’s action, which they did until the action was dismissed on the merits in 2015 … . Thus, the State’s actions did not cause the harm that forms the basis of the Towns’ claims. Accordingly, the Towns failed to establish that the agreement and the UNYGEDA impinged upon their home rule powers, and Supreme Court properly ruled that they lacked the capacity to bring this action/proceeding. Matter of Town of Verona v Cuomo, 2015 NY Slip Op 09338, 3rd Dept 12-17-15

MONTHLY COMPILATION INDEX ENTRIES:

MUNCIPAL LAW (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)/HOME RULE (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)/GAMBLING (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)/ONEIDA NATION (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)

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QUESTION OF FACT WHETHER CITY LIABLE FOR FAILURE TO INSTALL A STOP SIGN AT AN ACCIDENT-PRONE INTERSECTION.

The Second Department determined there was a question of fact whether the municipality should have installed an all-way stop at an intersection where plaintiff was injured. A study of the intersection by the municipality, prompted by the number of accidents, was deemed inadequate:

A municipality owes a nondelegable duty to keep its streets in a reasonably safe condition … . However, it is accorded a qualified immunity from liability arising out of a highway safety planning decision … . A municipality may be held liable only “when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan” … . * * *

“Once [a municipality] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger” … . “Moreover, after the [municipality] implements a traffic plan it is under a continuing duty to review its plan in the light of its actual operation'” … . Under these circumstances, the City’s submissions revealed triable issues of fact regarding the adequacy of the … 2008 re-evaluation of its prior study which it undertook to complete, and the reasonableness of the City’s failure to install a stop sign … at the intersection under all of the attendant circumstances … . Langer v Xenias, 2015 NY Slip Op 09258. 2nd Dept 12-16-15

NEGLIGENCE (MUNICIPAL LIABILITY, FAILURE INSTALL STOP SIGN)/MUNICIPAL LAW (LIABILITY FOR FAILURE TO INSTALL STOP SIGN)/TRAFFIC PLAN (MUNICIPAL LIABILITY FOR FAILURE TO INSTALL STOP SIGN)

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NO SPECIAL RELATIONSHIP BETWEEN CITY AND PLAINTIFF; CITY WAS THEREFORE IMMUNE FROM SUIT.

The Second Department determined no special relationship existed between plaintiff, a city sanitation worker, and the city (NYC). Therefore, the city was protected from plaintiff’s suit by the doctrine of governmental immunity. Plaintiff was attacked by a participant in a community service program with whom plaintiff was working. The gravaman of plaintiff’s complaint was the city’s failure to provide security. The provision of security is a governmental, not proprietary, function. Therefore, absent a special relationship between the plaintiff and the city, the city was immune from suit. Giordanella v City of New York, 2015 NY Slip Op 09251, 2nd Dept 12-16-15

NEGLIGENCE (GOVERNMENT IMMUNITY, GOVERNMENTAL FUNCTION, NO SPECIAL RELATIONSHIP)/GOVERNMENTAL IMMUNITY (GOVERNMENTAL FUNCTION, NO SPECIAL RELATIONSHIP)/MUNICIPAL LAW (GOVERNMENTAL IMMUNITY, GOVERNMENTAL FUNCTION, NO SPECIAL RELATIONSHIP)/SPECIAL RELATIONSHIP (GOVERNMENTAL IMMUNITY, GOVERNMENTAL FUNCTION)

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CITY (NYC), NOT ABUTTING LANDOWNERS, RESPONSIBLE FOR MISSING SIDEWALK HYDRANT VALVE COVER PURSUANT TO RULES OF CITY OF NEW YORK DEPARTMENT OF TRANSPORTATION.

The Second Department determined that the city (NYC) was responsible for maintenance of grates or covers on sidewalks pursuant to the Rules of the City of New York Department of Transportation. Therefore plaintiff, who allegedly fell because a sidewalk hydrant valve cover was missing, could not sue the abutting landowners:

Section 7-210 of the Administrative Code of the City of New York imposes liability for injuries resulting from negligent sidewalk maintenance on the abutting property owners. However, Rules of City of New York Department of Transportation (34 RCNY) § 2-07(b) provides that owners of covers or gratings on a street are responsible for monitoring the condition of those covers and gratings and the area extending 12 inches outward from the perimeter of the hardware, and for ensuring that the hardware is flush with the surrounding street surface. “34 RCNY 2-01 includes a sidewalk’ within the definition of street'” … . Accordingly, the City, and not the defendants, was responsible for maintaining the condition of the area where the plaintiff fell … . “[T]here is nothing in section 7-210 of the Administrative Code of the City of New York indicating that the City Council intended to supplant the provisions of 34 RCNY 2-07(b) and to allow a plaintiff to shift the statutory obligation of the owner of the cover or grating to the abutting property owner” … . Torres v Sander’s Furniture, Inc., 2015 NY Slip Op 09091 2nd Dept 12-9-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

 NEGLIGENCE (CITY [NYC], NOT ABUTTING LANDOWNERS, RESPONSIBLE FOR MAINTENANCE OF SIDEWALK HYDRANT VALVE COVER)/SLIP AND FALL (CITY [NYC], NOT ABUTTING LANDOWNERS, RESPONSIBLE FOR MAINTENANCE OF SIDEWALK HYDRANT VALVE COVER)/MUNICIPAL LAW (CITY [NYC]], NOT ABUTTING LANDOWNERS, RESPONSIBLE FOR MAINTENANCE OF SIDEWALK HYDRANT VALVE COVER)/TRANSPORTATION, NYC DEPARTMENT OF (RESPONSIBLE FOR MAINTENANCE OF SIDEWALK HYDRANT VALVE COVER)

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PROOF REQUIREMENTS FOR RACIAL DISCRIMINATION UNDER THE NEW YORK CITY HUMAN RIGHTS LAW EXPLAINED; PLAINTIFF’S ACTION SHOULD HAVE BEEN DISMISSED.

The First Department, in a full-fledged opinion by Justice Acosta, determined plaintiff, who had brought a racial-discrimination action under the New York City Human Rights Law,  was unable to show that the employer’s reasons for terminating her were pretextual. The court held that the phrase “a leopard does not change its spots” and the term “tirade,” used in reference to plaintiff’s behavior, did not have discriminatory meanings. With respect to the proof requirements under the NYC Human Rights Law (“City HRL”), the court explained:

How the City HRL’s distinctive substantive definitions, standards, and frameworks interact with existing standards for summary judgment has been the subject of some confusion … . As with any other civil case, a discrimination plaintiff must produce enough evidence to preclude the moving defendant from being able to prove that (1) no issues of material fact have been placed in dispute by competent evidence, and (2) a reasonable jury (resolving all inferences that can reasonably be drawn in favor of the non-moving party) could not find for the plaintiff on any set of facts under any theory of the case. But recognizing that the general evidentiary standard remains the same in discrimination cases does not permit a court to apply the standard in a manner that ignores the distinctiveness of City HRL causes of action. All the general standard does, in other words, is provide the template that says, “Defendant must prove that no reasonable jury can conclude X.” The “X” depends on the cause of action.

Thus, the only substantive requirement in a City HRL case where the plaintiff goes the “pretext” route is for the plaintiff to produce some evidence to suggest that at least one reason is “false, misleading, or incomplete.” A plaintiff who satisfies this requirement may well have produced less evidence than would be required under the state and federal laws. But he or she will have produced enough evidence to preclude the defendant from proving that no reasonable jury could conclude that any of the defendant’s reasons was pretextual. In other words, the general evidentiary standard comfortably co-exists with the distinctive substantive framework that must be applied to City HRL claims. Cadet-Legros v New York Univ. Hosp. Ctr., 2015 NY Slip Op 08984, 1st Dept 12-6-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

EMPLOYMENT LAW (NYC HUMAN RIGHTS LAW RACIAL DISCRIMINATION ACTION DISMISSED)/HUMAN RIGHTS LAW, NEW YORK CITY (PROOF REQUIREMENTS EXPLAINED)/DISCRIMINATION (NYC HUMAN RIGHTS LAW ACTION DISMISSED)/ MUNICIPAL LAW (DISCRIMINATION ACTION UNDER THE NEW YORK CITY HUMAN RIGHTS LAW)

TOWN’S WITHDRAWAL FROM A COORDINATED ASSESSMENT PROGRAM (CAP) DOES NOT TERMINATE TOWN ASSESSOR’S TERM.

The Third Department, in a matter of first impression, determined petitioner, a town assessor who was removed when the town withdrew from the coordinated assessment program (CAP), was entitled to finish out his six-year term. Under the CAP, the petitioner served three towns.  When one of those towns withdrew from the CAP, that town appointed its own town assessor. The Third Department held that petitioner was entitled to finish out his term as assessor for that town:

… [W]e find it telling that RPTL 579 was amended in 2009 to, among other things, clarify that an assessor appointed in a CAP receives a six-year term and to shorten the notice period for a member to withdraw (see L 2009, ch 46, §§ 1-3 [eff May 29, 2009]). The adoption of these companion provisions leads us to conclude that the Legislature intended an assessor’s six-year term to remain intact, even where a CAP member opts to withdraw. Insofar as the assessor is concerned, the effect of withdrawal is merely delayed until the assessor’s term expires, at which time the assessing unit is free to choose a new assessor, without approval from any other assessing unit. Matter of Rubeor v Town of Wright, 2015 NY Slip Op 08895, 3rd Dept 12-3-15

MUNICIPAL LAW (TOWN ASSESSOR’S TERM, EFFECT OF WITHDRAWAL FROM COORDINATED ASSESSMENT PROGRAM [CAP])/TOWN LAW (TOWN ASSESSOR’S TERM, EFFECT OF WITHDRAWAL FROM COORDINATED ASSESSMENT PROGRAM [CAP])/REAL PROPERTY TAX LAW (TOWN ASSESSOR’S TERM, EFFECT OF WITHDRAWAL FROM COORDINATED ASSESSMENT PROGRAM [CAP])/COORDINATED ASSESSMENT PROGRAM (TOWN ASSESSOR’S TERM, EFFECT OF WITHDRAWAL FROM)

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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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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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