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Tax Payments Made Voluntarily Cannot Be Recovered Under a Mistake of Law Theory/Supreme Court Should Not Raise a “Non-Subject-Matter-Jurisdiction” Defense Sua Sponte

The Third Department determined Supreme Court properly denied petitioner’s request for a refund of real estate taxes paid re: optic cable installations located on private rights-of-way because petitioner had not protested the tax payments and made them voluntarily.  In addition, the court noted that the court should not have raised the statute of limitations defense sua sponte because the defense did not implicate subject matter jurisdiction:

… [U]nless subject matter jurisdiction is implicated, a court should not raise an issue sua sponte when a party is prejudiced by its inability to respond … . Here, because respondent Essex County failed to raise the statute of limitations as an affirmative defense in a pre-answer motion to dismiss or in its answer (see CPLR 3211 [a] [5]; [e]; 7804 [f]), it was improper for Supreme Court to raise it sua sponte … . * * *

… [W]e find no reason to disturb Supreme Court’s partial denial of the petition on the ground that petitioner failed to demonstrate that it paid the taxes involuntarily. To recover payments made under a mistake of law, as in the present case … , a taxpayer is required to show that the payments were made involuntarily … . This requirement ensures that governmental entities have notice that they may need to provide for tax refunds … . Here, petitioner fully paid all of the relevant taxes and offered no proof that it did so under protest or that such payments were otherwise involuntary … . Indeed, petitioner did nothing to indicate that its payments were involuntary until nearly 18 months after the final contested tax bill was paid, when petitioner submitted its RPTL 556-b correction applications … . Matter of Level 3 Communications, LLC v Essex County, 2015 NY Slip Op 04899, 3rd Dept 6-11-15

 

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The Medical Examiner Who Conducted an Autopsy of Plaintiffs’ 17-Year-Old Son Upon the Son’s Death in an Auto Accident Was Not Under a Statutory or Ministerial Duty to Return the Brain or to Inform Plaintiffs He Had Removed The Brain for Further Examination and Testing

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a two-judge dissent, determined the medical examiner, who conducted an autopsy of plaintiffs’ 17-year-old son after his death in a car accident, was under no statutory or ministerial duty to inform plaintiffs he had removed plaintiffs’ son’s brain for further examination and testing, nor was he under a duty to return the brain. Plaintiffs therefore did not have a “negligent infliction of emotional distress” or “violation of right of sepulcher” cause of action against the city. (Plaintiffs had been awarded significant damages at trial:)

When the Legislature enacted statutes granting medical examiners (and others) the authority to conduct autopsies and dissections (see Public Health Law §§ 4209; 4210), it acknowledged through the enactment of section 4215 (1) that there would be situations where the decedent’s body may not be buried or incinerated within a reasonable time after the decedent’s death, as per section 4200 (1)’s directive. Thus, section 4215 strikes a balance permitting the lawful dissection of a body, while concomitantly ensuring that once the lawful purposes have been accomplished the body will be buried, incinerated or properly disposed of as per section 4200 (1), and that the penalties for the interference or injuries to the body would “apply equally to the remains of the body after dissection . . .”

When section 4200 (1) and section 4215 (1) are read in tandem, there is no language that would cause a medical examiner to divine from section 4215 (1) that he or she is required to return not only decedent’s body, but the organs and tissue samples that the medical examiner is legally permitted to remove. Similarly, our right of sepulcher jurisprudence does not mandate that a medical examiner return decedent’s organs and tissue samples. Thus, because there was no governing rule or statutory command requiring a medical examiner to turn over organs and tissue samples, it could not be said that he or she has a ministerial duty to do so. At most, a medical examiner’s determination to return only the body without notice that organs and tissue samples are being retained is discretionary, and, therefore, no tort liability can be imposed for either the violation of the common-law right of sepulcher or Public Health Law § 4215 (1). Once a medical examiner returns a decedent’s body sans the organs and tissue samples, the medical examiner for all intents and purposes has complied with the ministerial duty under section 4215 (1). Absent a duty to turn over organs and tissue samples, it cannot be said that the medical examiner has a legal duty to inform the next of kin that organs and tissue samples have been retained. * * *

There is simply no legal directive that requires a medical examiner to return organs or tissue samples derived from a lawful autopsy and retained by the medical examiner after such an autopsy. The medical examiner’s obligations under both the common-law right of sepulcher and Public Health § 4215 (1) are fulfilled upon returning the deceased’s body to the next of kin after a lawful autopsy has been conducted. If the Legislature believes that next of kin are entitled to notification that organs, tissues and other specimens have been removed from the body, and that they are also entitled their return prior to burial of the body or other disposition, it should enact legislation delineating the medical examiner’s obligations in that regard, as it is the Legislature that is in the best position to examine the issue and craft legislation that will consider the rights of families and next of kin while concomitantly taking into account the medical examiner’s statutory obligations to conduct autopsies. Shipley v City of New York, 2015 NY Slip Op 04791, CtApp 6-10-15

 

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Demolition of Building Without Notice or Opportunity to Be Heard Was a Proper Exercise of City’s Police Powers

The Second Department determined summary judgment dismissing the complaint against the city, based upon the city’s demolishing a building without notice or the opportunity to be heard, was properly granted:

“In the exercise of its police powers [a] municipality may demolish a building without providing notice and an opportunity to be heard if there are exigent circumstances which require immediate demolition of the building to protect the public from imminent danger” … . “[W]here there is competent evidence allowing the official to reasonably believe that an emergency does in fact exist, or that affording pre-deprivation process would be otherwise impractical, the discretionary invocation of an emergency procedure results in a constitutional violation only where such invocation is arbitrary or amounts to an abuse of discretion” … . Here, the defendant City of New York made a prima facie showing that its decision to cause the demolition of the subject building was not arbitrary or an abuse of discretion … . In opposition, the plaintiffs failed to raise a triable issue of fact. Iavarone v City of New York, 2015 NY Slip Op 04811, 2nd Dept 6-10-15

 

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“Reckless Disregard” Standard of Care Applies to Operators of Street Sweepers in New York City—Standard Explained

The Court of Appeals determined the “reckless disregard” standard in Vehicle and Traffic Law 1103, not the ordinary negligence standard, applied to the operator of a New York City street sweeper who was in the process of cleaning the street when the sweeper struck plaintiff’s car.  A question of fact had been raised whether the applicable standard of care was violated:

… [U]nder VTL § 1642, the City of New York is authorized to establish additional rules, including rules that supercede those of the State (see VTL § 1642 [a] [“the legislative body of any city having a population in excess of one million, may by local law . . . restrict or regulate traffic on or pedestrian use of any highway . . .]). At the time of the accident, 34 RCNY [Rules of the City of New York] § 4-02 (d) (1)(v) provided that VTL § 1103 applies “to any person or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway” and that “such persons are not relieved from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions of this subparagraph protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others” (34 RCNY § 4-02 [d] [1] [iv]).

In Riley [95 NY2d 455], this Court held that the unambiguous language of VTL § 1103 (b), as further supported by its legislative history, made clear that the statute exempts from the rules of the road all vehicles, including sanitation sweepers, which are “actually engaged in work on a highway” (95 NY2d at 460), and imposes on such vehicles a recklessness standard of care (see id. at 466). The Court further concluded that liability under that standard is established upon a showing that the covered vehicle’s operator “‘has intentionally done 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’ and has done so with conscious indifference to the outcome” (id. at 466… ). Deleon v New York City Sanitation Dept., 2015 NY Slip Op 04788, CtApp 6-9-15

 

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County Was Not Responsible for the Day to Day Operation of Community College and Did Not Own the Dormitory Where Plaintiff’s Decedent Suffered Cardiac Arrest and Died—County Owed No Duty of Care to Plaintiff’s Decedent

Plaintiff’s decedent died of cardiac arrest in a Sullivan County Community College (SCCC) dormitory.  Plaintiff sued the county, alleging the dormitory should have been equipped with a defibrillator and/or should have had an emergency medical response plan in effect.  The Court of Appeals determined the complaint against the county was properly dismissed.  Although the county was the “sponsor” of the community college, it did not own the dormitory and did not manage the day-to-day operation of the community college, which was handled by the board of trustees (Education Law 6306):

While the County exercises significant influence and control over SCCC’s finances, only the College’s board of trustees is authorized to manage SCCC’s facilities; therefore, it alone is charged with the duty of care … . And here, the County additionally established that it did not even own the dormitory where decedent’s accident occurred … . Branch v County of Sullivan, 2015 NY Slip Op 04756, CtApp 6-9-15

 

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Late Notice of Claim Should Not Have Been Deemed Timely (Sua Sponte, Nunc Pro Tunc)—the 90 Days Started Running When Plaintiff’s Asthma Symptoms Worsened, Not When a Doctor Connected the Symptoms to Mold in the Apartment—the Plaintiff Did Not Make a Motion for Permission to File a Late Notice of Claim

The First Department determined Supreme Court should not have, sua sponte (in the absence of a motion by the plaintiff), deemed plaintiff’s late notice of claim timely filed nunc pro tunc. The claim alleged mold resulting from a leak in plaintiff’s New York City Housing Authority (NYCHA) apartment exacerbated plaintiff’s asthma.  The First Department found that the cause of action accrued when plaintiff’s symptoms worsened, no later than February, 2011, not when a connection between the mold and plaintiff’s symptoms was suggested by a doctor in March 2011:

[Plaintiff] was required to file a notice of claim within 90 days after “the date of [her] discovery of the injury” or the date on which “through the exercise of reasonable diligence the injury should have been discovered” (CPLR 214-c[3]; see General Municipal Law § 50-e[1][a]…). NYCHA established that plaintiff’s claim accrued no later than February 2011, by relying on plaintiff’s testimony that her asthma symptoms worsened, resulting in more frequent attacks and hospital visits, starting in September or December of 2010, or January or February of 2011, when she was prescribed additional medications, as reflected in her hospital records. Thus, the notice of claim, filed over 90 days later in June 2011, without leave of court, was late and without effect … .

Plaintiff argues that her claim did not accrue until March 2011, when a doctor noted a connection between her symptoms and the mold in her apartment. However, a “cause of action for damages resulting from exposure to toxic substances accrues when the plaintiff begins to suffer the manifestations and symptoms of his or her physical condition, i.e.[,] when the injury is apparent, not when the specific cause of the injury is identified” … .

The court lacked authority to deem the late notice of claim timely filed nunc pro tunc, since plaintiff never moved for such relief and the statutory time limitation for bringing the claim had already expired when NYCHA moved for summary judgment … . Vincent v New York City Hous. Auth., 2015 NY Slip Op 04767, 1st Dept 6-9-15

 

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The Town’s Actual or Constructive Notice of a Sidewalk Defect Does Not Obviate the Written Notice Requirement

The Second Department determined summary judgment was properly awarded to the town (re: an allegedly defective sidewalk where plaintiff fell) because the “written notice manually transcribed by the complainant” requirement was not met. The fact that there existed writings and email generated by the town concerning the defect, and the fact that the town may have had constructive or actual notice of the defect, did not obviate the written notice requirement:

“A municipality that has enacted a prior written notice statute may not be subjected to liability for injuries caused by a defective condition in a sidewalk unless it either has received written notice of the defect or an exception to the written notice requirement applies” … . ” The only two recognized exceptions to a prior written notice requirement are the municipality’s affirmative creation of a defect or where the defect is created by the municipality’s special use of the property'” … . The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition … . Here, the Town has adopted a prior written notice law stating that written notices must be “manually subscribed by the complainant” and submitted to the Town Superintendent of Highways or the Town Clerk (Code of the Town of North Hempstead § 26-1). Wolin v Town of N. Hempstead, 2015 NY Slip Op 04846,, 2nd Dept 6-9-15

 

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Pursuant to the Public Authorities Law, Interest on a Judgment To Be Paid by the New York City Transit Authority Cannot Exceed 3%

The First Department noted that, although plaintiff procured a judgment (after trial) for past lost earnings against the city, the judgment will ultimately be paid by non-party New York City Transit Authority.  Therefore, pursuant to Public Authorities Law 1212(6), the interest on the judgment cannot exceed 3 %.  Soltero v City of New York, 2015 NY Slip Op 04770, 1st Dept 6-9-15

 

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Delay In Bringing Action Seeking to Stop a Development Project Which Had Been Proceeding for Years Precluded the Grant of a Preliminary Injunction, Despite the Apparent Legitimate Nature of the Allegations

The Third Department determined a preliminary injunction halting a development project which had been proceeding for years should not have been granted.  The development project started with the annexation of land by the village, for which no referendum had been held.  The action brought by the plaintiffs alleged the failure to hold the referendum violated local law and further alleged a conflict of interest arising from the mayor’s acquisition of project property  In spite of the apparently legitimate grounds for the action, the Third Department determined the plaintiffs were unlikely to succeed because the action was brought so late and the project, consequently, had progressed so far:

We are unpersuaded by plaintiffs’ assertion that, in essence, the failure to conduct a referendum leaves the annexation subject to being set aside at any time in the future without regard to any time limitation. Cases involving an alleged failure to adhere to a voting requirement during an annexation have generally been found to be subject to a pertinent limitations’ period … . A statute of limitations may apply even when conduct inconsistent with a statute or the state constitution is alleged … . Simply stated, “a [s];tatute of [l];imitations does not have the effect of curing the underlying wrong, but rather extinguishes the right to judicial relief” … . We need not decide the particular limitations’ period for challenging an annexation made without a referendum — whether four months (see CPLR 217), six years (see CPLR 213) or some time in between (see e.g. CPLR 9802). Plaintiffs failed to establish a likelihood that a challenge to the annexation based upon the failure to conduct a referendum would be viable where, as here, over seven years have passed since the annexation. …

Next, we consider the 2010 development agreement, which plaintiffs contend is void because [the mayor] had a conflict of interest arising from the 2009 acquisition of some project property by himself and his parents (see General Municipal Law § 804). The 2nd Department, in a case affirmed by the Court of Appeals, has held that the three-year statute of limitations of CPLR 214 (2) applies to such a claim … . The [Mayor’s] deeds had been a matter of public record since 2009, before the 2010 development agreement was executed. Any conflict was known or should have been known as of the execution in 2010 of the development agreement, which was also a public document. This action was not brought until 2014.

Long delays can be relevant to the issue of whether equitable injunctive relief should be granted … . Although plaintiffs allege some unsavory (or worse) conduct by certain people involved directly or indirectly in the project, it is not clear from this record whether they can successfully show that the project defendants engaged in such conduct so as to prevent them from relying on equitable defenses such as laches … . Rural Community Coalition Inc v Village of Bloomingbury, 2014 NY Slip Op 04110, 3rd Dept 6-5-14

 

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Statutory Prohibition of Court Review of Civil Service Commission’s Determination (Where the Employee Elects to Appeal to the Commission Before Seeking Judicial Review) Does Not Apply When Constitutional Rights Are Implicated or Where the Agency Has Acted Illegally or In Excess of Its Jurisdiction

The Third Department determined, despite a statutory provision prohibiting judicial review when the employee elects to appeal to the Civil Service Commission before seeking judicial review, the courts have the power to review the agency’s determination when the agency has acted in excess of its jurisdiction. Here the petitioner asserted her employment was terminated based on charges brought after the statute of limitations on those charges had passed. The Third Department agreed.  Although there is an exception to the application of the one-year statute of limitations when the charges constitute crimes, here the allegations of misconduct did not include the requisite mens rea for the crime of official misconduct (intent to gain a benefit and knowledge the conduct was unauthorized).  Therefore the one-year statute of limitations applied. With respect to the power to review the agency’s determination, the Third Department wrote:

Civil Service Law § 76 (3) provides that where, as here, an employee has elected to appeal to respondent before seeking judicial review, “[t]he decision of [respondent] shall be final and conclusive, and not subject to further review in any court” (see also Civil Service Law § 76 [1]). Such explicit statutory language ordinarily bars further appellate review … . However, statutory preclusion of all judicial review of the decisions rendered by an administrative agency in every circumstance would constitute a grant of unlimited and potentially arbitrary power too great for the law to countenance … . Thus, even when proscribed by statute, judicial review is mandated when constitutional rights are implicated by an administrative decision or “when the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction”… . Matter of De Guzman v State of New York Civ. Serv. Commn., 2015 NY Slip Op 04712, 3rd Dept 6-4-15

 

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