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Doctrine of Equitable Estoppel as Applied to Public Corporations Explained

In affirming the denial of the petition to file a late notice of claim against a public corporation, the Second Department explained the doctrine of equitable estoppel as it applies to public corporations:

Estoppel against a public corporation will lie only when the public corporation’s conduct was calculated to, or negligently did, mislead or discourage a party from serving a timely notice of claim and when that conduct was justifiably relied upon by that party … . Here, the petitioner failed to demonstrate that the respondents engaged in any misleading conduct that would support a finding of equitable estoppel … . In addition, there was no evidence that the respondents made any settlement representations upon which the petitioner justifiably relied prior to the expiration of the statutory periods for serving a notice of claim or seeking leave to serve a late notice of claim and, therefore, the petitioner could not have relied on any conduct by the respondents in discouraging him from serving a notice of claim or seeking leave … .  Attallah v Nassau Univ. Med. Ctr., 2015 NY Slip Op 06587, 2nd Dept 8-19-15

 

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Requirements for an Easement In Favor of Public Use Not Met

The Second Department determined the city had failed to demonstrate that an unmapped roadway used since the 1970’s had become a public highway under the Highway Law, and the city failed to demonstrate an “easement in favor of public use” existed over the portion of the roadway which was on defendant’s land. The “Highway Law” statute invoked by the city applied only to towns, not cities. And the requirements for an easement in favor of public use had not been demonstrated. The court explained the easement requirements:

The City argues … that an easement in favor of the public was created over the defendant’s property pursuant to the common-law doctrine of dedication. This doctrine requires evidence of the owner’s intent to dedicate the property for public use and acceptance of the dedication by the public authorities … . Here, however, the City’s submissions in support of its motion for summary judgment failed to establish, prima facie, that the defendant’s land had been dedicated to the use of public travel by any prior owner or the defendant. City of New York v Gounden, 2015 NY Slip Op 06569, 2nd Dept 8-19-15

 

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Apportionment of Damages Between the City and the Contractor Who Negligently Set Up Lane Closures for Its Highway Work Was Not Supported by the Weight of the Evidence—New Trial for Apportionment of Damages Ordered/Two-Justice Dissenting Opinion Argued that Plaintiffs’ Counsel’s Vouching for His Own Credibility and Attacking the Credibility of Defense Witnesses In Summation Warranted a New Trial

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissenting opinion, determined the weight of the evidence did not support a 65%/35% apportionment of damages to the city (65%) and the contractor (35%) who set up lane closures for highway repair work. Plaintiff was severely injured in an accident which the jury found was the result of the failure to adequately warn drivers of upcoming lane closures. Because the lane closures were the responsibility of the contractor, the majority determined the 65%/35% damages apportionment was not supported the weight of the evidence and sent the matter back for a new trial on the apportionment of liability. Much of the opinion, including the entirety of the dissenting opinion, focused on the propriety of remarks made by plaintiffs’ counsel during summation (vouching for his own credibility, attacking the credibility of defense witnesses, etc.):

It is well settled that trial counsel is afforded wide latitude in presenting arguments to a jury in summation … . During summation, an attorney “remains within the broad bounds of rhetorical comment in pointing out the insufficiency and contradictory nature of a plaintiff’s proofs without depriving the plaintiff of a fair trial” … . However, an attorney may not “bolster his case . . . by repeated accusations that the witnesses for the other side are liars” …. .

Although the City failed to object to the bulk of the challenged comments during summation, the City moved for an immediate mistrial based on comments impugning defense counsel, the reference to “Wang and his gang,” and plaintiffs’ counsel’s allegedly vouching for his own credibility. We find that although some of the comments were highly inflammatory, they did not ” create a climate of hostility that so obscured the issues as to have made the trial unfair'” … . The jury had ample reason to question the testimony of Officer Pagano, lessening the danger that they were improperly influenced by plaintiff’s counsel’s remarks. Gregware v City of New York, 2015 NY Slip Op 06408, 1st Dept 8-4-15

 

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Agency’s Failure to Follow Its Own Regulations Renders Determination Arbitrary and Capricious

The Second Department, over a partial dissent, in a rent-overcharge proceeding, affirmed Supreme Court’s review of the propriety of rent regulated by the NYC Rent Stabilization Code. The court explained the extent of the courts’ review powers of the administrative rulings, noting that the Deputy Commissioner’s failure to calculate the appropriate rent in the manner dictated by the controlling regulations rendered that particular aspect of the Commissioner’s ruling arbitrary and capricious:

“[I]n a CPLR article 78 proceeding to review a determination of the DHCR [NYC Department of Housing and Community Renewal], the court is limited to . . . the question of whether its determination was arbitrary and capricious and without a rational basis” … . In reviewing a determination of the DHCR, “[t]he court may not substitute its judgment for that of the DHCR” … . “The DHCR’s interpretation of the statutes and regulations it administers, if reasonable, must be upheld” … . * * *

In determining that the [landlord was] entitled to a rental increase of $204.01 per month pursuant to Rent Stabilization Code (9 NYCRR) § 2522.4(a)(1), the Deputy Commissioner deviated from the statutory calculations set forth in Rent Stabilization Code (9 NYCRR) § 2522.4(a)(4). Accordingly, the determination to recalculate the legal regulated rent to be $1,200 per month, by including a rental increase of $204.01 per month, was arbitrary and capricious and did not have a rational basis in the record … . Matter of Velasquez v New York State Div. of Hous. & Community Renewal, 2015 NY Slip Op 06353, 2nd Dept 7-29-15

 

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Village Immune from Suit Alleging Negligence of Ambulance Personnel Who Responded to a 911 Call

The Second Department determined the village was entitled to summary judgment in an action alleging negligence on the part of ambulance personnel responding to a 911 call. The ambulance service is a governmental function for which the city cannot be held liable absent a special relationship with plaintiff (not the case here). The court explained the relevant law:

“When a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, it performs a governmental function and cannot be held liable unless it owed a special duty’ to the injured party” … . Such a special duty can arise, as relevant here, where “the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally,” or, in other words, where the municipality “voluntarily assumed a special relationship’ with the plaintiffs” … . A municipality will be held to have voluntarily assumed a duty or special relationship with the plaintiffs where there is: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … . Earle v Village of Lindenhurst, 2015 NY Slip Op 06311, 2nd Dept 7-29-15

 

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Security at Homeless Shelter Is a Governmental Function–City Immune from Suit by Plaintiff Who Was Assaulted at the Shelter/Private Security Company Not Immune/Plaintiff Was a Third-Party Beneficiary of the Contract Between the Department of Homeless Services and the Security Company/Security Company Did Not Demonstrate It Was Free from Negligence and the Assault Was Not Foreseeable

The Second Department determined the city and the Department of Homeless Services (DHS) were immune from suit by plaintiff, who was assaulted in a city homeless shelter. The city’s obligation to provide security is a governmental function for which it cannot be held liable absent a special relationship with the plaintiff (not the case here).  However, the private security company, FJC  was not immune from suit. Plaintiff was a third-party beneficiary of the contract between DHS and FJC. FJC was not entitled to summary judgment because it failed to demonstrate it was not negligent and the attack was not foreseeable:

The plaintiff’s theory of recovery was premised upon the alleged failure of the municipal defendants to provide an adequate and proper security force to prevent attacks by third parties at the homeless shelter where the subject incident occurred. Such a claim, however, implicates a governmental function, liability for the performance of which is barred absent the breach of a special duty owed to the injured party … . Here, the municipal defendants demonstrated, prima facie, that they owed no special duty of care to the plaintiff, and the plaintiff failed to raise a triable issue of fact in opposition. Therefore, that branch of the municipal defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them was properly granted … . …

However, the Supreme Court erred in granting that branch of the motion of the defendant FJC Security Services, Inc. (hereinafter FJC), which was for summary judgment dismissing the complaint insofar as asserted against it. Contrary to its contention, FJC, a private, for-profit contractor of security services, is not entitled to governmental immunity … . In addition, the plaintiff is a third-party beneficiary of the contract between FJC and DHS. The provisions of the contract between FJC and DHS unequivocally express an intent to confer a direct benefit on the homeless clients in residence at the City shelter, such as the plaintiff, to protect them from physical injury. Thus, in order to prevail on its motion for summary judgment, FJC was required to demonstrate, prima facie, that there were no triable issues of fact as to whether it was negligent in the performance of its duties, or that the assault on the plaintiff was not a reasonably foreseeable consequence of any breach of its duties … .  FJC failed to demonstrate either. Clark v City of New York, 2015 NY Slip Op 06307, 2nd Dept 7-29-15

 

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City Did Not Demonstrate Entitlement to Qualified Immunity for a Planning Decision Re: Design of Playground Equipment

The Second Department determined questions of fact precluded summary judgment in favor of the city in a suit stemming from a playground injury. The complaint alleged the design of the playground equipment was unsafe. The city claimed qualified immunity for liability arising from planning decisions. But the city failed to demonstrate that it undertook a study which addressed the issue at the heart of the case:

Contrary to the City’s contention, it failed to establish its prima facie entitlement to judgment as a matter of law on the basis of qualified governmental immunity. While a municipality will generally be accorded qualified immunity from liability arising out of its planning decisions … , a governmental body may be liable for a planning decision when its study is “plainly inadequate or there is no reasonable basis for its plan” … . Here, the evidence presented by the City failed to establish that it undertook a study which entertained and passed on the very same question of risk that is at issue in this case … . Moskovitz v City of New York, 2015 NY Slip Op 06318, 2nd Dept 7-29-15

 

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Failure to Construct a Concrete Pad at a Bus Stop Does Not Constitute “Affirmative Negligence” On the Part of the City—Written Notice Requirement Applied

The Second Department determined the city’s failure to install a concrete pad for a bus stop was not the kind of “affirmative negligence” for which prior written notice of a defect is not required.

“Prior written notice of a defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City” … . The two recognized exceptions to the prior written notice requirement are where the defect or hazard results from an “affirmative act of negligence” by the municipality, or a special use by the municipality that conferred a special benefit from it … . Only when one of these exceptions applies is the written notice requirement obviated … .

The plaintiff’s contention that the City failed to install a concrete bus pad, resulting in the formation of a physical defect in the roadway which caused her to fall, does not amount to an “affirmative act of negligence.” Thus, the plaintiff’s claim requires prior written notice pursuant to Administrative Code of the City of New York § 7-201(c) … . Rodriguez v City of New York, 2015 NY Slip Op 06324, 2nd Dept 7-29-15

 

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Village Did Not Have Authority to Sell Village Land Dedicated to Public Use (Public Roads) to Satisfy Property Tax Liens

The Second Department determined the village did not have the authority under the Real Property Tax Law (RPTL) to sell land dedicated to public use (dedicated public streets) to satisfy property tax liens:

… [W]hile RPTL [Real Property Tax Law] 995 allows a municipality to consent to the sale of property to satisfy a tax lien, not all property owned by a municipality is freely alienable. As relevant here, a municipality holds the fee of dedicated public streets in trust for the public …, and may not convey such a fee unless there is specific legislative authorization permitting it, or the parcel’s use as a dedicated public street has been discontinued… .

RPTL 995 did not provide the Village with that specific authorization. The statute only authorizes petitions to collect “validly levied or charged” taxes (RPTL 995). Since the Legislature limited the application of the statute in that way, it did not contemplate that municipally owned property held for public use, which is exempted from taxation by RPTL 406(1), would be subject to an enforcement proceeding under RPTL 995, or that such property would be sold by a municipality at public auction in reliance on section 995, in satisfaction of a claim for such taxes (see McKinney’s Cons Laws of NY, Book 1, Statutes § 222). Contrary to the Village’s contention, Village Law § 1-102 likewise did not provide the specific authorization necessary for the Village to sell a dedicated public road. Matter of AJM Capital II, LLC v Incorporated Vil. of Muttontown, 2015 NY Slip Op 06335, 2nd Dept 7-29-15

 

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Original Grantor Has the Power to Remove Restrictive Covenants from a Deed/Land Conveyed for Public Use Which Is Subject to a Condition Subsequent (Here a Reversionary Interest in the Deed) Is Not Covered by the Public Trust Doctrine (Legislative Approval for Conveyance for Private Use Not Required)

The Second Department upheld an agreement to remove restrictive covenants from a deed, allowing the village, to which the property had been conveyed, to retain the property free and clear from restrictions. The deed to the village from the Ortenbergs (husband and wife) included a covenant that the property would remain in its natural state for public purposes for the life of the village.  If the village ceased maintaining the property in a natural state, or if the village ceased to exist, the property reverted to the Ortenbergs, their heirs and assigns. After Mrs. Ortenberg died, Mr. Orternberg entered an agreement with the village to remove the restrictive covenants. The petitioners, owners of contiguous land, brought an Article 78 petition arguing that the agreement violated the public trust doctrine which requires the approval of the New York State Legislature before the land held for public use could be converted to private use.  The Second Department noted that the public trust doctrine does not apply to land conveyed for public use subject to a condition subsequent (the reversionary interest). The court also noted that the agreement was not subject to the State Environmental Quality Review Act (SEQRA):

Ortenberg, as the grantor, had the authority to release the Village from its obligation to perform the conditions in the deed and thereupon waive and terminate his reversionary interest (… see a… EPTL 6-5.1). Moreover, the Village was not required to obtain the approval of the New York State Legislature before mutually rescinding the underlying agreement with Ortenberg. Under the public trust doctrine, “a municipality, without specific legislative sanction, may not permit property acquired or held by it for public use to be wholly or partly diverted to a possession or use exclusively private” …, but this doctrine is inapplicable to property which is subject to a reversionary interest … . Where “the land acquired by the [municipality] for public . . . purposes was conveyed subject to a condition subsequent it is not under the control of the Legislature” … . Matter of Rappaport v Village of Saltaire, 2015 NY Slip Op 06246, 2nd Dept 7-22-15

 

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