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Notice of Claim Timely Served by an Unauthorized Method Deemed Valid/Motion to Renew Based Upon Information Known at the Time of the Original Motion Properly Heard in Exercise of Discretion

The First Department determined the savings provision of General Municipal Law 50-e applied and a notice of claim which was timely served by an unauthorized method was valid.  The court noted that a motion court can exercise its discretion to hear a motion to renew which relies on information known but not raised at the time the original motion was made:

Although the motion was based on information that was available to plaintiff earlier, “courts have discretion to consider such evidence in the interest of justice” … .

Defendant moved for summary judgment on the ground that plaintiff’s notice of claim was not served within the 90-day period set forth in General Municipal Law § 50-e, and plaintiff had not timely moved for an extension of time to serve. Plaintiff contended that she qualified under either or both prongs of the “savings provision” under General Municipal Law § 50-e(3)(c), which provides that “[i]f the notice is served within the period specified by this section, but in a manner not in compliance with the provisions of this subdivision, the service shall be valid if the public corporation against which the claim is made demands that the claimant. . .be examined in regard to it, or if the notice is actually received by a proper person within the time specified by this section, and the public corporation fails to return the notice, specifying the defect in the manner of service, within thirty days after the notice is received.”

Moreover, “[t]he purpose of a notice of claim is to allow the municipal defendant to make a prompt investigation of the facts and preserve the relevant evidence. The applicable statute should be applies flexibly so as to balance two countervailing interests: on the hand, protecting municipal defendants from stale or frivolous claims, and on the other hand, ensuring that a meritorious case is not dismissed for a ministerial error. General Municipal Law § 50-e was not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones” … .

Here, the record shows that plaintiff served a notice of claim on defendant on December 8, 2011 via regular mail, which did not comply with the requirement that service be completed in person or via registered or certified mail. However, defendant subsequently demanded that plaintiff appear for examinations pursuant to General Municipal Law § 50-h with regard to her claim. Under such circumstances, plaintiff’s service of the notice of claim is valid under the first prong of General Municipal Law § 50-e(3)(c). Person v New York City Hous. Auth., 2015 NY Slip Op 05417, 1st Dept 6-23-15

 

 

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Court Properly Ordered Further Deposition of County Employee and the Deposition of the Commissioner of Public Works Based Upon Plaintiff’s Showing the Witness Previously Provided Did Not Have Sufficient Knowledge

The Fourth Department noted that the court did not abuse its discretion in ordering the further deposition of a county employee and the deposition of the Commissioner of Public Works concerning the maintenance of a section of the road where plaintiff’s-decedent’s car left the road and struck a pole.  The employee’s prior testimony was incomplete because he could not recall relevant information. And, although the county can determine who should be deposed on its behalf, the court can order the deposition of a specific witness where the plaintiff shows the witness previously produced did not have sufficient knowledge:

“A trial court has broad discretion in supervising the discovery process, and its determinations will not be disturbed absent an abuse of that discretion” … . We note with respect to the employee that he admitted at his initial deposition that he could not recall specific details relevant to plaintiffs’ theory of the County’s liability without reviewing the documents that subsequently were produced by the County. We thus conclude that the court did not abuse its discretion in directing the further deposition of the employee concerning those documents.

We likewise conclude that the court did not abuse its discretion in directing the County to produce the Commissioner for a deposition. “Although a municipality, in the first instance, has the right to determine which of its officers or employees with knowledge of the facts may appear for a deposition, a plaintiff may demand production of additional witnesses when (1) the officers or employees already deposed had insufficient knowledge or were otherwise inadequate, and (2) there is a substantial likelihood that the person sought for deposition possesses information which is material and necessary to the prosecution of the case” … . Here, the record establishes that the two employees previously produced by the County have at most a general understanding of the reconstruction project contemplated by the County with respect to the section of road where the accident occurred and the reasons that the reconstruction project was abandoned, while the Commissioner has peculiar and specific knowledge about that project and the decision-making process pursuant to which it was abandoned. We therefore conclude that plaintiffs met their burden of demonstrating that the employees previously produced by the County “did not possess sufficient knowledge of the relevant facts or [were] otherwise inadequate” … . Black v Athale, 2015 NY Slip Op 05355, 4th Dept 6-19-15

 

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Failure to Strictly Comply With Notice Requirement in the Civil Service Law Rendered the Involuntary Leave Imposed Upon the Petitioner-Firefighter a Nullity—Petitioner Entitled to Back Pay for Leave Period—Petitioner Properly Deemed Unfit for Active Duty Due to His Inability to Manage Diabetic Symptoms

The Fourth Department determined a firefighter was properly deemed unfit for active duty as a firefighter because of his inability to manage diabetic symptoms. During the course of the decision, the Fourth Department held that the city’s failure to strictly comply with the notice requirements of the Civil Service Law rendered the involuntary leave imposed on petitioner a nullity (entitling him to back pay for the leave period):

We conclude that the procedural protections contained in Civil Service Law § 72 (1) apply to proceedings brought pursuant Civil Service Law § 72 (5) based on the language in subdivision (1) that the provisions of notice and hearing therein apply to employees “placed on leave of absence pursuant to this section” (emphasis added), “which includes Civil Service Law § 72 (5)” … . These procedures are necessary “to afford tenured civil servant employees . . . procedural protections prior to involuntary separation from service” … . “Because of the significant due process implications of the statute, strict compliance with its procedures is required” … . Here, it is undisputed that respondents did not strictly comply with the procedures pursuant to section 72 for placing petitioner on immediate involuntary leave inasmuch as it was not until April 2012 that petitioner was provided with “[w]ritten notice of the facts providing the basis for the judgment of the appointing authority that [petitioner was] not fit to perform the duties of” his position (§ 72 [1]). Although the parties had engaged in negotiations during the period before respondents provided petitioner with written notice, respondents concede that at no time did petitioner waive his rights under section 72 … . Additionally, petitioner did not receive the final notice of determination within 75 days from the receipt of his request for review (see § 72 [1]). The absence of strict compliance with these procedural requirements renders petitioner’s alleged leave a nullity prior to September 30, 2013, when Linnertz issued his final determination after reviewing the Hearing Officer’s decision … , and petitioner is entitled to back pay and the restoration of benefits from August 26, 2011 until September 30, 2013. Matter of Williams v Troiano, 2015 NY Slip Op 05318, 4th Dept 6-19-15

 

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Construction at County Airport Was a Governmental Function—County is Therefore “Immune” from a Suit Alleging the Construction Caused a Highway White-Out Condition Which Resulted in Plaintiff’s-Decedent’s Death in a Collision

Plaintiffs alleged that construction by the defendant-county caused snow to blow across the highway leading to the “white-out” which resulted in plaintiff’s decedent’s death in a collision. The Fourth Department determined the county was immune from suit because the relevant construction was a governmental, not proprietary function, and the county did not owe a special duty to the plaintiffs:

… “[I]f the [municipal defendant] acted in a proprietary role, i.e., when its activities essentially substitute for or supplement traditionally private enterprises . . . , ordinary rules of negligence apply. If, however, the [defendant] acted in a governmental capacity, i.e., when its acts are undertaken for the protection and safety of the public pursuant to general police powers . . . , the court must undertake a separate inquiry to determine whether the [defendant] owes a special duty to the injured party. In the event that the plaintiff fails to prove such a duty, the [defendant] is insulated from liability” … . A municipal defendant can therefore establish entitlement to judgment as a matter of law by showing that its allegedly negligent acts were undertaken in a governmental rather than a proprietary capacity, and that it did not owe the plaintiff a special duty.

We conclude that defendants established on their motion that the construction of the tunnels and retaining wall was undertaken in a governmental capacity … , inasmuch as the construction was the result of defendants’ discretionary decision-making after defendants consulted with experts to determine how to make improvements to the Airport property in compliance with, inter alia, safety regulations of the Federal Aviation Administration … . We further conclude that plaintiffs failed to raise a triable issue of fact whether defendants owed a special duty to plaintiffs or were acting in a proprietary capacity … . Klepanchuk v County of Monroe, 2015 NY Slip Op 05323, 4th Dept 6-19-15

 

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Town Board’s Terminating, Without Notice, Plaintiff’s Construction Project Violated Plaintiff’s Right to Substantive Due Process/Town Was Not Entitled to Qualified Immunity

The plaintiff had cleared the way for building on land which included wetlands by obtaining the necessary permits and waivers from the Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACE) when, without notice, the town board passed a resolution rescinding a previously issued sewer tap-in waiver and terminating the construction project. Among other theories, plaintiff sued under 42 USC 1983 (deprivation of property without due process of law) and won. On appeal the due process violation verdict was upheld. The Fourth Department explained the criteria for the due process cause of action and noted that the defendant town was not entitled to qualified immunity because the town board’s actions violated plaintiff’s constitutional rights:

… [W]e note that the Court of Appeals has set forth a two-part test for substantive due process violations: “[f]irst, [a plaintiff] must establish a cognizable property interest, meaning a vested property interest, or more than a mere expectation or hope to retain the permit and continue their improvements; they must show that pursuant to State or local law, they had a legitimate claim of entitlement to continue construction’ . . . Second, [a plaintiff] must show that the governmental action was wholly without legal justification” … . Under the first prong, “a legitimate claim of entitlement to a permit can exist only where there is either a certainty or a very strong likelihood’ that an application for approval would have been granted” … . “Where an issuing authority has discretion in approving or denying a permit, a clear entitlement can exist only when that discretion is so narrowly circumscribed that approval of a proper application is virtually assured’ “… . * * *

We reject defendant’s contention that the state constitutional claims should be dismissed because defendant is entitled to qualified immunity. ” A government official is entitled to qualified immunity provided his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known’ ” … . Defendant failed to establish that it was objectively reasonable for the Town Board to believe that its conduct in withdrawing the sewer tap-in waiver request on … was appropriate … . Instead, the evidence established that the Town Board members acted without knowing the history of the project and acted knowing that only the Planning Board had to take action, i.e., to give site plan approval for the property. Despite the existence of plaintiff’s constitutionally protected property interest in the … tap-in waiver request, the Town Board acted … to withdraw that waiver request, which was a violation of plaintiff’s constitutional rights. As such, defendant is not entitled to qualified immunity. Acquest Wehrle, LLC v Town of Amherst, 2015 NY Slip Op 05346, 4th Dept 6-19-15

 

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Court Deferred to the Agency’s Interpretation of a Statute Because the Interpretation Involved Knowledge and Understanding of the Underlying Operational Practices (In the Usual Case, a Court Will Not Defer to an Agency’s Interpretation of a Statute)/The Term “Business Enterprise” in Tax Law 14 (a) Refers to the Taxable Entity, Not the Legal Entity

The Third Department deferred to the interpretation of a statute by the Tax Appeals Tribunal which found that petitioners were not entitled to Qualified Enterprise Zone Enterprise (QEZE) tax reduction credits and refundable Empire Zone (EZ) wage credits.  The case turned on the Tribunal’s definition of a business enterprise.  The Tribunal determined the term refers to the taxable entity, not the legal entity. Because the interpretation of the relevant statute, Tax Law 14 (a), involved knowledge and understanding of the underlying operational practices, the court deferred to the agency’s determination. (In the usual case a court need not defer to an agency’s interpretation of a statute):

The parties’ primary disagreement here centers on whether the term business enterprise under Tax Law § 14 (a) refers to the taxable entity or the legal entity. The Tax Law does not define business enterprise, and this Court will “defer to the governmental agency charged with the responsibility for administration of [a] statute in those cases where interpretation or application involves knowledge and understanding of underlying operational practices” … . While, as a general rule, courts will not defer to administrative agencies in matters of pure statutory interpretation, where, as here, the question is “‘one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially,'” deference is appropriate … . To prevail over the Tribunal’s construction of the statute, petitioners must establish that their “interpretation of the statute is not only plausible, but also that it is the only reasonable construction”… .

In our view, it cannot be said that the Tribunal acted irrationally in construing the term business enterprise in accordance with an entity’s classification for state and federal income tax purposes. Matter of Ayoub v Tax Appeals Trib. of the State of N.Y., 2015 NY Slip Op 05240, 3rd Dept 6-18-15

 

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Lien for Attorney’s Fees (Re: Workers’ Compensation Award) Can Be Satisfied Before Reimbursing Municipality for Benefits Paid by the Municipality to the Injured Corrections Officer Pursuant the General Municipal Law

The Third Department determined that a lien for attorney’s fees could be attached to Workers’ Compensation benefits prior to reimbursing a municipality for benefits paid to the municipal employee pursuant to the General Municipal Law. Claimant corrections officer was injured on the job. Under General Municipal Law 207-c municipal employers are required to pay full wages to corrections officers injured in the performance of their duties.  Workers’ Compensation Law 30 (3) provides that the amount of the payments made under the General Municipal Law shall be credited against any award of compensation pursuant to the Workers Compensation Law. The municipality argued it was entitled to the entire amount paid to the employee and the amount should not be reduced by the attorney’s fees (a lien on the Workers’ Compensation award).  The Third Department disagreed:

General Municipal Law § 207-c requires municipal employers to pay full wages to correction officers who are injured in the performance of their duties. Workers’ Compensation Law § 30 (3) provides that the amount of such payments “shall be credited against any award of compensation” that may also be made to such an officer. The employer contends that the mandatory language of the Workers’ Compensation Law provision entitles employers to full credit for such payments and, thus, precludes the attachment of a lien for counsel fees. However, Workers’ Compensation Law § 24 likewise uses mandatory language in providing that, when approved by the Board, counsel fees “shall become a lien upon the compensation awarded . . . [and] shall be paid therefrom only in the manner fixed by the [B]oard” (emphasis added). The lien attaches when the compensation is awarded “and takes precedence over the employer’s right to reimbursement of funds previously paid to the claimant-employee” … . The purpose of enacting Workers’ Compensation Law § 30 (3) was not to preclude counsel fees, but “to avoid duplicate benefits to an injured [officer], the combined total of which might exceed the salary [the officer] would have received for the period” if the injury had not occurred … . Workers’ Compensation Law § 30 (3) must be harmoniously interpreted with the Workers’ Compensation Law as a whole and with General Municipal Law § 207-c … . We find nothing in the statutory language indicating a legislative intent to treat employees who receive benefits under General Municipal Law § 207-c differently from other injured employees by departing from the statutory scheme for payment of counsel fees set forth in Workers’ Compensation Law § 24. Matter of McCabe v Albany County Sheriff’s Dept., 2015 NY Slip Op 05236, 3rd Dept 6-18-15

 

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Promise Made or Advice Given by a Municipal Employee Does Not Give Rise to Equitable Estoppel

The Second Department noted that the doctrine of equitable estoppel is applied only rarely against municipalities.  Here plaintiff alleged the four-month statute of limitations for redemption (re: a foreclosure action) passed because of a municipal employee’s promise to hold papers submitted in support of an attempt at redemption.  The court held that a promise made or advice given by a governmental employee will not give rise to equitable estoppel: “… [E]quitable estoppel is applied against a municipality performing governmental functions only in the rarest of cases …, and “erroneous advice by a governmental employee will not give rise to an exception to the general rule”… . Wilson v Neighborhood Restore Hous., 2015 NY Slip Op 05176, 2nd Dept 6-17-15

 

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Petitioner’s Position Properly Abolished by Enactment of Town Budget

The Second Department determined that the town did not act in bad faith when it abolished petitioner’s position through the enactment of the town budget. The court explained the applicable law:

A public employer may abolish civil service positions to “promote efficiency and economy,” provided that the employer acts in good faith … . Where a public employer has abolished a position, an employee challenging that determination has the burden of proving that the employer engaged in a bad faith effort to circumvent the Civil Service Law … . “Bad faith may be demonstrated by evidence that a newly hired person performed substantially the same duties as the discharged employee” … . “[W]hen there exists a triable issue of fact with regard to bad faith, a full hearing must be held” … .

Here, contrary to the petitioner’s contention, adoption of a municipal budget may properly serve, under certain circumstances, to abolish an employee’s position … . Matter of Grant v Town of Lewisboro, 2015 NY Slip Op 05187, 2nd Dept 6-17-14

 

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There Was a Rational Bases for Fire District Board of Commissioners’ Rejection of Petitioner’s Bid to Supply a Radio Dispatch System—Court Cannot Substitute Its Own Judgment for the Board’s

The Second Department determined the respondent board (fire district commissioners) had a rational basis for rejecting petitioner’s bid for a radio dispatch system. As long as a rational basis for an administrative decision exists it must be upheld.  A court may not substitute its own judgment:

General Municipal Law § 103(1) provides that, in awarding any contract in excess of $35,000, public entities must award the contract to “the lowest responsible bidder.” “The central purposes of New York’s competitive bidding statutes are the (1) protection of the public fisc by obtaining the best work at the lowest possible price; and (2) prevention of favoritism, improvidence, fraud and corruption in the awarding of public contracts'”… . Nevertheless, it is a municipality’s right to determine whether a bid meets its specifications, and that determination is entitled to deference if it is supported by “any rational basis” … . Thus, ” a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion'” … . It is the petitioner’s burden to demonstrate that a bid has been wrongly awarded … .

Here, the board identified three reasons for rejecting the petitioner’s bid: (1) the petitioner did not demonstrate that it had a service location within 20 miles of the fire district; (2) the petitioner offered to supply equipment which differed from the bid specifications; and (3) over the life of the contract, the monthly maintenance costs would render the petitioner’s bid more expensive than Eastern’s. Although the petitioner disagrees with the board’s conclusions as to each of these points, any one of them would provide a rational basis for the rejection of the petitioner’s bid. Matter of Hello Alert, Inc. v East Moriches Fire Dist., 2015 NY Slip Op 05189, 2nd Dept 6-17-15

 

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