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Declaratory Judgment Action Is the Appropriate Vehicle for Challenging a County Law—The Legislative Body Which Enacted the Law Is a Necessary Party

In the course of determining an Article 78 petition which, in part, alleged that the Westchester County Human Rights Law violated state law, the Second Department noted that the challenge must be made in a declaratory judgment proceeding.  The court could not convert the proceeding to one for a declaratory judgment because it did not have jurisdiction over all of the necessary parties—specifically the legislative body which enacted the challenged law:

…[T]he petitioners are, in effect, seeking a declaration that certain sections of the Westchester County Human Rights Law violate State law. However, the petitioners are not entitled to such relief. “A declaratory judgment action is the proper vehicle for challenging the validity of a legislative enactment” … . Pursuant to CPLR 103(c), this Court has the power to convert a proceeding into an action. However, that power is conditioned upon this Court having jurisdiction over all of the necessary parties … . “In a declaratory judgment action challenging a local law or ordinance, the legislative body that enacted the challenged local law or ordinance is a necessary party” … . Since the Westchester County Board of Legislators was not named as a party or joined in this proceeding, this Court cannot exercise its authority pursuant to CPLR 103(c) … . Matter of Hoffmann Invs. Corp. v Ruderman, 2015 NY Slip Op 03361, 2nd Dept 4-22-15

 

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Under Powers Reserved to the Town by an 1818 Law, the Town Cannot Regulate Shoreline Dune Reconstruction and Erosion Control Undertaken by a Village within the Town

The Second Department, reversing Supreme Court, determined laws enacted in the early 1800’s prohibited the Town of Southampton from regulating shoreline activities such as dune restoration and erosion control undertaken by the Village (located within the Town):

The language of the 1818 Law “only relates to the use of the beach or shore, by taking seaweed from it and carting or transporting to and from or landing property on such shore” and “makes no reference to the management or regulation of the lands constituting the beach or shore . . . , but merely provides for the [Town’s] management and regulation of the waters, fisheries, and taking of seaweed and the productions of the waters” … . Accordingly, the Village was entitled to a judgment declaring, inter alia, that the [Town has] no lawful governmental or regulatory power to grant or deny permits in connection with (i) the placement and grading of sand and earth, and (ii) the development, construction, maintenance, and use of structures and lands located anywhere upon the ocean beaches situated within the boundaries of the Village. Semlear v Incorporated Vil. of Quogue, 2015 NY Slip Op 03345, 2nd Dept 4-22-15

 

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Owners of Single Family Residence Not Liable for Defects in Abutting Sidewalk

In affirming the grant of summary judgment to the defendants who owned a single family residence abutting the allegedly defective sidewalk where plaintiff fell, the Second Department explained the relevant New York City law:

[Defendants] demonstrated that they were exempt from liability pursuant to Administrative Code of the City of New York § 7-210(b) for their alleged failure to maintain the sidewalk abutting their property by establishing that the subject property was a single-family residence, that it was owner occupied, and that it was used solely for residential purposes (see Administrative Code of City of N.Y. § 7-210[b]…).  Further, they established, prima facie, that they could not be held liable for the plaintiff’s alleged injuries under common-law principles. ‘Absent the liability imposed by statute or ordinance, an abutting landowner is not liable to a passerby on a public sidewalk for injuries resulting from defects in the sidewalk unless the landowner either created the defect or caused it to occur by special use’… . Shneider v City of New York, 2015 NY Slip Op 03148, 1st Dept 4-15-15

 

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Criteria for Common Carrier Liability for Injury Caused by a Sudden Stop Explained (Not Met Here)

In affirming the grant of summary judgment to the defendant transit authority, the Second Department explained the circumstances under which a common carrier may be liable for injuries to a passenger caused by a sudden stop:

To prevail on a cause of action alleging that a common carrier was negligent in stopping a bus, a plaintiff must prove that the stop was unusual and violent, rather than merely one of the sort of ‘jerks and jolts commonly experienced in city bus travel’… . Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent … . There must be ‘objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant’ … . In seeking summary judgment dismissing the complaint, … common carriers have the burden of establishing, prima facie, that the stop was not unusual and violent … .  Alandette v New York City Tr. Auth., 2015 NY Slip Op 03113, 2nd Dept 4-15-15

 

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Village Not Liable for Failure to Place a Crossing Guard at a Particular Intersection—Placement of Crossing Guards Is a “Discretionary,” Not “Ministerial,” Government Action—No Liability Absent Special Relationship to Plaintiff

Infant plaintiff was struck by a car as he was crossing a street after leaving school.  There was no crossing guard at the intersection where infant plaintiff was struck, but there were crossing guards at nearby intersections.  The Second Department determined that the placement of crossing guards was a “discretionary,” not a “ministerial” action.  “[D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result … “.  The municipality (village) was not liable absent a special relationship with the infant plaintiff apart from a duty to the general public:

“Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” … . ” [D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'” … . The assignment of crossing guards to intersections falls within the definition of a discretionary function … .

Here, the Village established its prima facie entitlement to judgment as a matter of law by demonstrating that its actions were discretionary. Although the Village had assigned crossing guards to certain intersections near the school, its decision not to post a crossing guard at the subject intersection does not give rise to liability on the part of the Village … . McCants v Hempstead Union Free School Dist., 2015 NY Slip Op 03136, 2nd Dept 4-15-15

 

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Failure to State in the Notice of Claim that Defendant Created the Icy Condition on the Sidewalk, or that the Condition Was the Result of Defendant’s Negligence, Required Dismissal of the Complaint

The Second Department determined summary judgment dismissing the complaint in a slip and fall case was appropriate because the notice of claim did not set forth the legal theory upon which the suit was based:

A notice of claim which, inter alia, sufficiently identifies the claimant, states the nature of the claim, and describes the time when, the place where, and the manner in which the claim arose, is a condition precedent to asserting a tort claim against a municipality (see General Municipal Law § 50-e[1][a]…). While a claimant need not state “a precise cause of action in haec verba in a notice of claim” …, the notice of claim must at least adequately apprise the defendant that the claimant would seek to impose liability under a cognizable theory of recovery … . Moreover “a party may not add a new theory of liability which was not included in the notice of claim” … . Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting proof that the notice of claim made no allegations that the ice patch on which the plaintiff slipped and fell was created by its snow removal operation, or existed by virtue of its negligence … . Steins v Incorporated Vil. of Garden City, 2015 NY Slip Op 03149, 2nd Dept 4-15-15

 

Disabled-Veteran Food Vendors Subject to the General Business Law—“Food” Is Encompassed by the Statutory Terms “Goods” and “Merchandise”

The First Department determined that the terms “goods” and “merchandise” in General Business Law 35-a encompass “food.”  Therefore the General Business Law regulates New York City’s disabled-veteran food vendors .   Most of the violations at issue in the case related to the number of vendors permitted within a block and the related refusal to move when requested. What constituted a “block face” within the meaning of the related regulations was addressed in depth.  Matter of Rossi v New York City Dept. of Parks & Recreation, 2015 NY Slip Op 03047, 1st Dept 4-9-15

 

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Application to File Late Notice of Claim Should Have Been Granted—Plaintiff Was Incapacitated for Months and the City Contributed to the Delay by Failing to Respond to Freedom of Information Requests

Reversing Supreme Court, the First Department determined plaintiff’s application for leave to file a late notice of claim in a slip and fall case should have been granted.  Plaintiff was incapacitated by her injuries for months and did not unreasonably delay in making the application after she retained counsel.  Counsel had difficulty determining the owners of the construction site in issue, of which the city was one, and the city contributed to the delay by failing to respond to plaintiff’s freedom of information requests:

Under these circumstances, where the City contributed to the delay, and the motion was made within the one-year and ninety-day statute of limitations (see CPLR 217-a; see also General Municipal Law § 50-e[5]), the City cannot argue that petitioner unduly delayed in making the motion, or that it did not acquire essential knowledge of the facts underlying petitioner’s claim within a reasonable time after the expiration of the 90-day period for filing a timely notice of claim … . Matter of Rivera v City of New York, 2015 NY Slip Op 03029, 1st Dept 4-9-15

 

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Where It Was Not Clear that Grand Jury Proceedings in Which a County Employee Was Directed to Appear Involved a Criminal Matter, as Opposed to Civil Misconduct or Neglect, the County Was Required to Pay for the Employee’s Defense Pursuant to Public Officers Law Section 18

The Third Department affirmed Supreme Court’s ruling that petitioner, a county employee, was entitled to attorney’s fees pursuant to Public Officers Law section 18 in connection his appearances in grand jury proceedings.  The county argued that the statute only requires payment for the defense of an employee “in [a] civil action or proceeding” and a grand jury proceeding is criminal in nature.  The Third Department noted that the district attorney would not divulge the nature of the grand jury proceedings and grand juries can be convened to consider noncriminal misconduct or neglect by public employees.  Therefore the employee was entitled to attorney’s fees for his defense:

Respondent failed to demonstrate what the object of the grand jury proceeding was, readily admitting that the District Attorney had not made his “intentions [known] in relation to the potential for criminal charges.” While grand juries may indict a person for a criminal offense (see CPL 1.20 [18]; 190.60 [1]), they are also empowered “to make presentments as to noncriminal misconduct or neglect by public officers and employees” … . Thus, because there is no indication that criminal charges are [*3]actually being contemplated, Supreme Court properly “reject[ed] respondent’s claim that because the [g]rand [j]ury proceeding[s] could have resulted in criminal charges against petitioner, the proceeding[s] [were] not civil in nature” … . “Any other holding would defeat the clear intent of the statute, which insulates public employees from litigation expenses arising out of their employment” … . Matter of Mossman v County of Columbia, 2015 NY Slip Op 03005, 3rd Dept 4-9-15

 

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City’s Possession of Property Seized Upon Arrest, But Which Was No Longer Needed by the People in Connection with the Case, Was Held by the City as a Bailee—the Bailment Did Not Originate in a Contractual Relationship—Therefore the One-Year-Ninety-Days General Municipal Law Statute of Limitations, Not the Six-Year Contract Statute of Limitations, Applied—Action Was Time-Barred

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that the City was a bailee with respect to its possession of defendant’s computers seized upon defendant’s arrest.  When the district attorney determined the computers were no longer needed in connection with defendant’s case, defendant was told he could pick them up.  When the defendant attempted to do so, he was told the computers had been destroyed.  The defendant then sued the city under a bailment theory.  The suit was timely if the six-year statute of limitations for contract actions applied, but untimely if the one-year-90-days statute of limitations in the General Municipal Law applied.  The court determined that the bailment did not result from a contractual relationship (seizure upon arrest).  Therefore the General Municipal Law statute of limitations for actions against the city alleging negligent damage to property applied and the action was time-barred:

Here, the evidence submitted by the City in support of its motion established, prima facie, that the claim between the parties did not originate by virtue of a contractual relationship. The City took control of the plaintiff’s property only in connection with his arrest. Hence, … it cannot be said that the liability alleged by the plaintiff in the complaint “had its genesis in [a] contractual relationship of the parties” … . “A contract cannot be implied in fact where the facts are inconsistent with its existence” … . While the City’s act of taking possession of the plaintiff’s personal property created a bailment, it has been recognized that a bailment does not necessarily and always arise from a contractual relationship … . Thus, as General Municipal Law § 50-i(1) applies to all causes of action against the City seeking to recover damages for injury to property because of negligence or a wrongful act, and the complaint asserts that the City destroyed the plaintiff’s property, the 1-year-and-90-day statute of limitations, not the 6-year limitations period, applies to this action. Wikiert v City of New York, 2015 NY Slip Op 02960, 2nd Dept 4-8-14

 

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