The Second Department noted that the Town Board is not a proper party to an action seeking review of a determination by the town’s Zoning Board. The Zoning Board “is an independent, quasi-judicial, administrative arm of the Town … . The Town Board … had no jurisdiction to hear or determine the subject application and, in fact, neither heard nor determined it.” Matter of TAC Peek Equities, Ltd. v Town of Putnam Val. Zoning Bd. of Appeals, 2015 NY Slip Op 03547, 2nd Dept 4-29-15
The Second Department determined the building owners failed to demonstrate they did not have constructive notice of the defect in the elevator door which caused plaintiff’s injury. The denial of the owners’ motion for summary judgment was therefore proper. Supreme Court erred, however, when it denied defendants’ motion for summary judgment on the owners’ contractual-indemnification cross claim. The contract with the elevator maintenance company, Dunwell, provided the company would indemnify the building owners for damages that did not arise solely and directly out of the owners’ negligence. Dunwell failed to raise a question of fact about whether the owners had actual knowledge of the defect and whether the injury arose “solely and directly” from the owners’ negligence. With regard to indemnification, the court wrote:
A party’s right to contractual indemnification depends upon the specific language of the relevant contract … . The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances … . Under the full-service elevator maintenance contract at issue here, Dunwell assumed responsibility for the maintenance, repair, inspection, and servicing of the elevators, including the electrical systems or devices that operated the opening and closing of the elevator doors. Dunwell also agreed to indemnify the building defendants for any claim arising out of the performance of its work, regardless of whether it was negligent in its performance, unless the claim arose “solely and directly out of” the building defendants’ negligence. Goodlow v 724 Fifth Ave. Realty, LLC, 2015 NY Slip Op 03501, 1st Dept 4-29-15
In finding that plaintiff’s motion to file a late notice of claim should not have been granted (inadequate excuse for delay, misrepresentations made to the court), the First Department explained that Supreme Court should not have considered matters raised for the first time in petitioner’s reply papers. The court noted that special proceedings are subject to the same standards and rules as those applied to summary judgment motions:
As a matter of procedure, the motion court erred in entertaining arguments advanced for the first time in petitioners’ reply papers and in accepting their offer of new proof, unnecessarily protracting summary proceedings. As succinctly stated by this Court:
“It is settled that a special proceeding is subject to the same standards and rules of decision as apply on a motion for summary judgment, requiring the court to decide the matter upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised'” … .
We further held that where, as here, a petition is unsupported by sufficient evidentiary proof, the petitioning party will not be entitled to remedy those deficiencies …, thereby extending a procedure providing for summary disposition through “unnecessary and unauthorized elaboration” … . We have consistently stated that in proceedings subject to summary determination, no consideration is to be accorded to novel arguments raised in reply papers … . That this Court may, in the exercise of discretion, entertain such arguments upon review … does not endorse the unnecessary extension of summary proceedings. Under these circumstances, it was improvident to excuse petitioners’ deceit and grant their application to serve a late notice of claim. Matter of Gonzalez v City of New York, 2015 NY Slip Op 03467, 1st Dept 4-28-15
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
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
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
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
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
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
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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