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A Police Report of a Vehicle Accident Involving Respondent’s Employee Was Not Sufficient to Alert Respondent to the Facts Underlying Petitioner’s Claim—Petition to File Late Notice of Claim Properly Denied

The Second Department determined the petition to file a late notice of claim was properly denied because there was no showing the respondent school district was aware of the facts underlying the claim, there was no showing the school district was not prejudiced by the two-month delay, and there was no showing of an adequate excuse for the delay.  The petitioner argued that a police report describing a vehicle accident provided notice of the facts to the school district. But the report indicated only that respondent’s employee was involved in the accident, which was not sufficient to establish respondent’s knowledge of the facts of plaintiff’s claim:

For a police accident report to serve as sufficient notice to the public corporation, the public corporation must have been “able to readily infer from that report that a potentially actionable wrong had been committed by the [employee of] the public corporation” … . A report which describes the circumstances of the accident without making a connection between the petitioner’s injuries and negligent conduct on the part of the public corporation will not be sufficient to constitute actual notice of the essential facts constituting the claim … . The petitioners’ contention that the respondent had actual knowledge of their claim solely on the basis of the allegation that its employee was directly involved in the accident, without more, such as a report or record demonstrating that the respondent acquired actual knowledge of the essential facts constituting the claim, is without merit … . Matter of Thill v North Shore Cent. School Dist., 2015 NY Slip Op 04332, 2nd Dept 5-20-15

 

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Compliance With the Rules of the City of New York (RCNY) Re: a Sidewalk Vault Cover Did Not Override Cable Company’s General Duty Not to Create a Hazardous Condition

Plaintiff tripped on a sidewalk in front of defendant’s (Palm Beach’s) property in the vicinity of a vault cover installed by defendant cable company (Cablevision).  The Second Department determined the causes of action against both defendants properly survived summary judgment. There was no showing Palm Beach did not have constructive notice of the condition. Cablevision argued that dismissal was warranted because it had complied with the Rules of the City of New York (RCNY) concerning sidewalk installations.  Supreme Court properly held that the duties imposed by the regulations were in addition to the generally duty not to create a hazardous condition:

Contrary to the contention of the Cablevision defendants, they cannot be absolved of such liability by either the “guarantee period” set forth in 34 RCNY 2-11(e)(16)(ii) (“Permittees shall be responsible for permanent restoration and maintenance of street openings and excavations for a period of three years on unprotected streets”) or the 12-inch rule set forth in 34 RCNY 2-07(b)(1) and (2) (requiring owners of covers or gratings to “monitor[ ] the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware” and to “replace or repair” any defective cover or grating and any defective street condition found within twelve inches of the cover or grating). As the Supreme Court correctly concluded, the regulations relied on by the Cablevision defendants impose upon them a duty to maintain their vault and the surrounding area that is separate from, and in addition to, their duty not to create hazardous conditions … . Shehata v City of New York, 2015 NY Slip Op 04305, 2nd Dept 5-20-15

 

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In Order for a Municipality to Be Liable for the Creation of a Dangerous Condition, the Dangerous Condition Must Result Immediately from the Negligent Act—Here the Allegation the Dangerous Condition Developed Over a Period of Years Was Not Sufficient

The Second Department noted that the “prior written notice” requirement (as a prerequisite for municipal liability for a dangerous condition) is independent of any actual or constructive notice of a defect.  Although there is an exception to the “prior written notice” requirement where the municipality created the defect through an affirmative act of negligence, that act of negligence must immediately result in the existence of a dangerous condition. It is not sufficient to allege that the defect developed over a period of years (here allegedly stemming from work done in 2008):

“A municipality that has adopted a prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice” … . A defendant’s actual or constructive notice of the allegedly defective condition does not satisfy the prior written notice requirement … . Further, although an exception to the prior written notice requirement exists where the municipality created the defect through an affirmative act of negligence …, that exception “[is] limited to work by the [municipality] that immediately results in the existence of a dangerous condition”… . DeVita v Town of Brookhaven, 2015 NY Slip Op 04086, 2nd Dept 5-13-15

 

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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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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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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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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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