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Triggering Event for the Statute of Limitations Re: a Challenge of the Termination of Section 8 Rent Subsidies Is the Sending of the So-Called T-3 Letter-Notification, Irrespective of Whether the Two Prior Required Letter-Notifications Were Sent

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a three-judge dissent, determined that the so-called T-3 letter to tenants from the New York City Housing Authority (NYCHA), which notifies tenants of the termination of their Section 8 rent subsidies, is the triggering event for the four-month statute of limitations for challenging the termination. The applicable “Williams consent judgment” mandates a three-step procedure for termination of the rent subsidies, essentially three notifications to tenants, of which the T-3 letter is the last. The issue before the court was whether the NYCHA’s inability to show the first two notifications were properly sent prevented the statute of limitations from running when the T-3 letter was sent.  The Court of Appeals held that, although the failure to follow the three-step procedure is a defense to the termination of the subsidies, the statute of limitations for any challenge properly runs from the sending of the T-3 letter:

The plain language of the Williams consent judgment draws a distinction between what is required to commence the limitations period for a challenge to a termination of Section 8 benefits, on the one hand, and what is required for NYCHA to establish the merit of such a termination — including NYCHA’s full compliance with the notice requirements — on the other hand. Matter of Banos v Rhea, 2015 NY Slip Op 04029, CtApp 5-12-15

 

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City’s Annexation of Town Land Was in the Overall Public Interest

The Fourth Department determined the annexation of vacant town land by the city was demonstrated to be in the overall public interest, despite the loss of tax revenue to the town:

The municipality seeking an article 17 annexation has the burden of proving that the annexation is in the overall public interest” (…see General Municipal Law § 712…). “A reviewing court must weigh[ ] the benefit or detriment to the annexing municipality, the territory proposed to be annexed, and the remaining governmental unit from which the territory would be taken” … . “Benefit and detriment are customarily defined in terms of municipal services such as police and fire protection, health regulations, sewer and water service, public utilities and public education” … . “Another factor to consider is whether the municipality seeking the annexation and the territory proposed to be annexed have the requisite unity of purpose and facilities to constitute a community’ ” … .  Matter of City of Fulton v Town of Grandby, 2014 NY Slip Op 03371, 4th Dept 5-9-14

 

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Allegations that Town Was Negligent in Maintaining a Sewer System Involve a Proprietary Function Subject to Ordinary Rules of Negligence

The Fourth Department determined plaintiff’s causes of  action against a town alleging negligent maintenance, as opposed to design, of a sewer system properly survived summary judgment.  Maintenance is a proprietary function of the town and is subject to ordinary negligence principles:

If the municipality 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 municipality 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” (id. at 425 [internal quotation marks omitted]), the court must undertake a separate inquiry to determine whether the municipality owes a special duty to the injured party … . In the event that the plaintiff fails to prove such a duty, the municipality is insulated from liability. Even in the event that the plaintiff proves such a duty, however, the municipality will not be liable if it proves that the alleged negligent act or omission involved the exercise of discretionary authority … .

With respect to municipal sewer malfunctions, it is well settled that a municipality’s design of a sewer system constitutes a governmental function …, while a municipality’s “operation, maintenance and repair of th[at] sewer system is a proprietary function, and thus the Town’s liability in that respect is not contingent upon the existence of a special relationship”… . Gilberti v Town of Spafford, 2014 NY Slip Op 03382, 4th Dept 5-9-14

 

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County Department of Human Services Was Entitled to a Hearing On Whether It Should Be Held In Contempt for Failing to Place a Person In Need of Supervision In Foster Care

The Fourth Department determined the County Department of Human Services should not have been held in contempt without a hearing for failing to return the respondent (a person in need of supervision) to foster care.  The Department had raised a defense, i.e., the Department had tried but was unable to place the respondent, and was therefore entitled to a hearing. Matter of Andrew B., 2015 NY Slip Op 03999, 4th Dept 5-8-15

 

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Ordinance Prohibiting “Unnecessary Noise” Is Not Unconstitutionally Vague

The defendant was stopped by the police for a violation of a city ordinance prohibiting “unnecessary noise” (a loud car stereo).  The defendant argued that the stop, which resulted in drug charges, was not justified by probable cause because the “unnecessary noise” ordinance is “unconstitutionally vague.” The Fourth Department determined the ordinance was not unconstitutionally vague because it is tailored to the context of what can be heard more than 50 feet from a vehicle on a public highway and is sufficiently definite to put defendant on notice his conduct was forbidden:

Municipal ordinances “enjoy an exceedingly strong presumption of constitutionality’ ” …, and such legislative enactments “are to be construed so as to avoid constitutional issues if such a construction is fairly possible”… . “The void-for-vagueness doctrine embodies a rough idea of fairness’ ” …, and “an impermissibly vague ordinance is a violation of the due process of law” … . In addressing such a challenge, courts first “must determine whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his [or her] contemplated conduct is forbidden by the statute” … . “Second, the court must determine whether the enactment provides officials with clear standards for enforcement”

* * * … [T]he City Ordinance is not unconstitutionally vague because the section under which defendant was convicted was tailored to a specific context—the creation of “unnecessary noise” beyond 50 feet of a motor vehicle on a public highway (City Ordinance § 40-16 [b]). In our view, “[w]hat is usual noise in the operation of a car [radio or other sound production device] has become common knowledge . . . and any ordinary motorist should have no difficulty in ascertaining” whether the noise in question violates the applicable standard … . Based on the foregoing, we conclude that the ordinance in question was “sufficiently definite” to put defendant on notice that his conduct was forbidden, and that it provided the police “with clear standards for enforcement” … . People v Stephens, 2015 NY Slip Op 03991, 4th Dept 5-8-15

 

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Village’s Opting to Remove Petitioner’s Land from the Land Available for Purchase by New York City to Maintain the City’s Drinking-Water Watershed Was Not a Regulatory Taking

The Third Department determined the village had acted appropriately when it opted to exclude portions of land within the village from New York City’s watershed acquisition program.  Petitioner was attempting to sell an easement for her land to the City.  When the village opted to exclude petitioner’s land from the City’s acquisition program, the petitioner brought an action claiming the village had exceeded its authority by improperly restricting the ownership and transferability of her property. Petitioner further argued that the village’s action constituted a de facto regulatory taking of her property for which she was entitled to compensation:

Through voluntary agreement and accepting DEC [Department of Environmental Conservation] conditions, the City consented not to be a potential purchaser of some upstate property if the local municipalities opted to exclude the property from land acquisition by the City. This was part of a delicate balance designed to protect the watershed and save the City significant money while safeguarding the economic vitality of upstate communities … . It was not an improper attempt by a local municipality to regulate who owns or occupies property … , but, in essence, the withdrawal of one potential purchaser who received a significant benefit. * * *

Where, as here, “the contested [resolution] falls short of eliminating all economically viable uses of the encumbered property, the Court looks to several factors to determine whether a taking occurred, including ‘the [resolution’s] economic effect on the landowner, the extent to which the [resolution] interferes with reasonable investment-backed expectations, and the character of the government action'” … . The resolution’s result was that one potential purchaser — who had not made any offer during the years when an easement on petitioner’s farm could have been purchased — no longer remained a potential purchaser. Petitioner has since found another willing purchaser. The resolution did not hinder the use that was being made of the property as a farming operation. The purpose of the resolution was to protect the Town’s potential for growth and economic sustainability, which was one of the many goals of the various parties involved … and consistent with an overriding purpose of maintaining a safe, ample and relatively inexpensive drinking water supply for the City. Petitioner “did not meet [her] heavy burden of showing that the [resolution] resulted in a regulatory taking”… .  Matter of Nelson v City of New York, 2014 NY Slip Op 03319, 3rd Dept 5-8-14

 

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Revocation of Empire-Zone-Business Certifications Upheld in 9 of 11 Instances

The Third Department, in a full-fledged opinion by Justice Lynch, considered the Empire Zone Designation Board’s revocation of petitioners’ certifications as empire zone businesses. The Department of Economic Development (DED) was directed, in 2009, to conduct a review of all certified businesses to determine whether decertification was warranted on one of two grounds: “First, DED could decertify a business enterprise if it was a “shirt-changer,” that is, if the enterprise was certified prior to August 1, 2002, and it “caused individuals to transfer from existing employment with another business enterprise with similar ownership . . . to similar employment with [the enterprise] or if the enterprise acquired, purchased, leased, or had transferred to it real property previously owned by an entity with similar ownership, regardless of form of incorporation or ownership” (General Municipal § 959 [a] [v] [5]; see 5 NYCRR 11.9…). Second, DED could decertify a business enterprise if it failed to meet the 1:1 benefit-cost test … . The latter test required decertification where it was determined that the enterprise “has submitted at least three years of business annual reports [and it] has failed to provide economic returns to the [s]tate in the form of total remuneration to its employees (i.e., wages and benefits) and investments in its facility that add to a greater value than the tax benefits the business enterprise used and had refunded to it” … . Applying the standard criteria for review of administrative determinations, the Third Department upheld all but two of the 11 decertifications, but also determined retroactive decertifications were improper. Matter of Lyell Mt. Read Bus. Ctr. LLC v Empire Zone Designation Bd., 2015 NY Slip Op 03906, 3rd Dept 5-7-15

 

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Suit Against Town by Representatives of Ambulance Personnel Killed in an Accident Prohibited by Volunteer Ambulance Workers’ Benefit Law/Question of Fact Whether Ambulance Driver Was Reckless (in Violation of Vehicle and Traffic Law 1104)

The Second Department determined the town was protected against a suit by representatives of ambulance personnel killed when the ambulance was involved in an accident.  Volunteer Ambulance Workers’ Benefit Law section 19 provides an exclusive remedy (much like the Workers’ Compensation Law) and thereby precluded the lawsuit against the town.  The Second Department also determined a question of fact had been raised about whether the ambulance driver was reckless.  Therefore suit against the driver was not precluded by Vehicle and Traffic Law 1104 which imposes a “reckless disregard” standard for causes of action against the drivers of emergency vehicles.  It is worth noting that the question of fact under the “reckless disregard” standard was found to exist in spite of a Department of Motor Vehicles hearing which determined the ambulance driver did not act recklessly.  Ryan v Town of Riverhead, 2014 NY Slip Op 03250, 2nd Dept 5-7-14

 

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Late Notice of Claim Can Be Allowed Even in Absence of Reasonable Excuse Where Defendants Had Actual Notice

The Second Department explained the criteria for determining whether to allow a late notice of claim, noting that the lack of a reasonable excuse does not necessarily require denial of the application where there is actual notice and an absence of prejudice:

The determination of an application for leave to serve and file a late notice of claim is left to the sound discretion of the court … . Among the factors to be considered by a court in determining whether leave to serve a late notice of claim should be granted are whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense … . Neither the presence nor absence of any one factor is determinative … . The absence of a reasonable excuse is not necessarily fatal … . However, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance … .

Here, the City defendants had actual notice of the essential facts constituting the claim well within the 90-day period for serving a notice of claim. Bakioglu v Tornabene, 2014 NY Slip Op 03219, 2nd Dept 5-7-14

 

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Question of Fact Whether County Had Constructive Notice of Pothole Which Injured Bicyclist

The Second Department determined a question of fact had been raised about whether the county had constructive notice of a pothole. Plaintiff was injured when his bicycle struck the pothole. Although the county did not have written notice of the defect, the Highway Law (section 139[2]) provides that a county may be liable for a defective highway condition if the county has constructive notice of it. Plaintiff’s expert opined the pothole had existed for four months prior to the accident:

Notwithstanding the existence of a prior written notice statute, a County may be liable for an accident caused by a defective highway condition where the County has constructive notice of the condition (see Highway Law § 139[2]…). Here, the County submitted the deposition testimony of a County employee who stated that he inspected the roadway where the fall is alleged to have occurred every Monday through Friday until the week before the accident, and did not observe any potholes. This was sufficient to establish, prima facie, that the County lacked constructive notice of the alleged defect … . However, in opposition to the County’s motion, the plaintiff submitted the affidavit of an expert who inspected the subject roadway and opined that the defect was in existence for at least four months prior to the accident. This affidavit was sufficient to raise a triable issue of fact as to whether the County had constructive notice of the alleged defect by virtue of the fact that it existed for so long a period that it should have been discovered and remedied in the exercise of reasonable care and diligence … . Rauschenbach v County of Nassau, 2015 NY Slip Op 03818, 2nd Dept 5-6-15

 

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