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Denial of Application for Renewal of General Contractor’s Registration Based Upon a Conviction Which Preceded a Prior Renewal Was Arbitrary and Capricious

The First Department determined the denial of petitioner’s application for renewal of his general contractor’s registration, based upon a conviction which preceded a prior renewal, was arbitrary and capricious.  The court noted that the presumption derived from petitioner’s certificate of relief from disabilities was not rebutted:

Respondent’s determination lacked a rational basis (see CPLR 7803[3]…). Respondent arbitrarily concluded that petitioner’s prior conviction for filing false documents bore a direct relationship to the duties and responsibilities attendant to the general contractor registration, the license for which he sought renewal (see Correction Law §§ 752[1], 750[3]…). * * *

Respondent’s failure to rebut the presumption of rehabilitation deriving from petitioner’s certificate of relief from disabilities also renders its determination arbitrary and capricious … . Matter of Jakubiak v New York City Dept. of Bldgs., 2015 NY Slip Op 02858, 1st Dept 4-2-15

 

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Summary Judgment Properly Granted to Hospital—Criteria for Hospital Liability for Treatment by a Non-Employee Explained

The Third Department determined summary judgment was properly granted to the hospital (AOMC) because plaintiff (Hoad) was treated by her private physician (Dolkart) and there was no indication hospital staff was negligent in following the doctor’s orders:

…[G]enerally, a hospital is not liable for the negligence of independent physicians except on a theory of ostensible or apparent agency … . Put differently, a hospital may be liable “where the hospital’s words or conduct communicated to a third-party patient give rise to the appearance and belief that the agent-independent physician possesses authority to act on behalf of the hospital” … . As the proponent of summary judgment, AOMC “bore the initial burden of establishing that [Hoad] sought care from a specific physician rather than from [AOMC] generally” … . Here, AOMC’s Vice President of Medical Affairs submitted an affidavit wherein he explained that Dolkart was not an employee, but a tenant with admitting privileges at AOMC. The record confirms that when Hoad was transferred from the emergency room, she consented to a transfer into Dolkart’s care at AOMC, not to AOMC generally. In response, no facts or admissible evidence were presented to establish that Hoad reasonably believed that Dolkart was AOMC’s employee. We therefore discern no basis for imposing liability based upon a theory of ostensible agency … .

We further find no basis for the infant’s claims against AOMC based on the actions of its professional staff. Generally, a hospital is insulated from liability “when its professional staff follows the orders of private physicians selected by the patient” … . An exception to this general rule exists “where the hospital staff knows that the doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders” … . Here, AOMC met its burden through the submission of an affirmation by … an obstetrician. Hoad v Dolkart, 2015 NY Slip Op 02831, 3rd Dept 4-2-15

 

Mayor Removed from Office for Unscrupulous Conduct

The Third Department affirmed the referee’s report recommending the removal of the respondent-mayor from office.  It was alleged the mayor used the authority of his office to attempt to prevent his prosecution in a criminal matter:

Public Officers Law § 36 provides a means by which a public officer for a town or village may be removed for “unscrupulous conduct or gross dereliction of duty or conduct that . . . connotes a pattern of misconduct and abuse of authority” … . To warrant removal, an official’s misconduct must amount to more than minor violations and must consist of “self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust” … . When this matter was previously before this Court, we found that certain allegations against respondent, if proven, would demonstrate a sufficiently serious pattern of abuse of authority and misbehavior to warrant his removal … . In a detailed report, the Referee determined that respondent had committed a number of acts of misconduct that were sufficient to warrant his removal. Although the Referee’s findings are not binding upon this Court, they serve “to inform [our] conscience” … and, upon our independent review, we find that removal is warranted.

The first of the allegations … was a claim that respondent had refused to provide funding for the Village police department in an effort to influence the disposition of certain criminal charges against him … . * * *

Petitioners [also] allege that respondent sought “to use his position as Mayor and Village Manager to obtain ‘special treatment’ from the Village’s police department with respect to his various criminal charges and has repeatedly threatened various local law enforcement officials with termination or disciplinary action for pursuing such charges against him” … . Matter of Greco v Jenkins, 2015 NY Slip Op 02815, 3rd Dept 4-2-15

 

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Dismissal Due to People’s Failure to Timely Indict Is Not a Termination in Favor of the Accused Which Will Support a Malicious Prosecution Cause of Action

The Second Department determined that the dismissal of prosecution based upon the People’s failure to procure a timely indictment is not a termination favorable to the accused.  A malicious prosecution cause of action, therefore, does not lie:

In order to recover damages for malicious prosecution, a plaintiff must establish four elements: that a criminal proceeding was commenced or initiated by the defendant; that it was terminated in favor of the accused; that it lacked probable cause; and that the proceeding was brought out of actual malice … . “[A]ny termination of a criminal prosecution, such that the criminal charges may not be brought again, qualifies as a favorable termination, so long as the circumstances surrounding the termination are not inconsistent with the innocence of the accused” … . Here, although the underlying criminal charges were dismissed against the plaintiff based on the prosecution’s unreasonable delay in indicting him …, under the circumstances of this case, the disposition was “inconsistent with the innocence of the accused” … . Thus, the defendants showed that the plaintiff’s allegation that the criminal proceeding was terminated in his favor was “not a fact at all” …, and that there is no significant dispute regarding it. Sinagra v City of New York,2015 NY Slip Op 02752, 2nd Dept 4-1-15

 

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Town Failed to Show Routine Inspection of Sewer System—Summary Judgment in Sewer-Backup Case Properly Denied

The Second Department determined the town was not entitled to summary judgment in a case alleging the failure to maintain the town’s sewer system.  The court explained the relevant analytical criteria:

A municipality is immune from liability “arising out of claims that it negligently designed [a] sewerage system” … . However, a municipality “is not entitled to governmental immunity arising out of claims that it negligently maintained the sewerage system as these claims challenge conduct which is ministerial in nature”… . In order for a municipality to demonstrate its prima facie entitlement to judgment as a matter of law in sewer backup cases, the municipality must show that it had no ” notice of a dangerous condition,'” and that “it regularly inspected and maintained the subject sewer line” … .

Here, the defendant Town …, failed to establish, prima facie, that it regularly inspected and maintained the subject sewer lines … . The evidence submitted by the Town in support of its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it demonstrated that the subject sewer lines had not been inspected more recently than approximately 19 months prior to the date of the sewage backup into the plaintiffs’ residence … . Under these circumstances, the Town failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law. Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 2015 NY Slip Op 02719, 2nd Dept 4-1-15

 

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City Immune from Liability for Actions of Police Engaged in a Governmental Function–No Special Relationship with Plaintiff

The Second Department determined the police officers were engaged in a governmental function and there was no special relationship between the city and the plaintiff. The city was therefore immune from liability.  Plaintiff called the police when he saw someone (Moran) enter a residence.  When the police arrived plaintiff accompanied them to the residence.  Moran ran from the house and punched plaintiff. Plaintiff’s lawsuit alleged the police failed to protect him:

…[T]he officers’ conduct during the incident constituted a governmental function … . “Under the public duty rule, although a municipality owes a general duty to the public at large to furnish police protection, this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created” … . Therefore, the City cannot be held liable unless there existed a special relationship between it and the plaintiff … . “The elements of this special relationship are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … . Here, the City made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that no such special relationship existed which would give rise to a duty of care to the plaintiff individually … . The evidence submitted by the City demonstrated that the police officers were performing their general duty to the public at large by responding to a call regarding a completed crime, and in the course of the investigation, made no promises to the plaintiff, in word or action, that gave rise to an affirmative duty of care running to the plaintiff personally. In opposition, the plaintiff failed to raise a triable issue of fact. Philip v Moran, 2015 NY Slip Op 02742, 2nd Dept 4-1-15

 

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Emergency Power to Demolish a Building Properly Exercised

The Second Department determined the city properly exercised its emergency power to demolish plaintiff’s building due to exigent circumstances:

“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, contrary to the defendant’s contention, there exists a valid line of reasoning and permissible inferences by which the jury could have rationally concluded that the defendant’s determination that immediate demolition of the building was required in order to protect the public from imminent danger was arbitrary … . Rapps v City of New York, 2015 NY Slip Op 02743, 2nd Dept 4-1-15

 

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Questions of Fact Re: Whether Municipality Created the Dangerous Condition Thereby Negating the Written-Notice Requirement

The Second Department determined questions of fact existed whether the village created the dangerous sidewalk condition, thereby eliminating the written-notice prerequisite to a lawsuit:

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 … . Recognized exceptions to the prior written notice requirement exist where the municipality has created the defect through its affirmative negligence, or where a special use of the property has conferred a special benefit upon the municipality … . The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition … .

Where, as here, the plaintiffs alleged in their complaint that the Village created a defect by an affirmative act of negligence, the Village, in order to establish its prima facie entitlement to judgment as a matter of law, must demonstrate that it did not create the condition … . The Village failed to do so. Monaco v Hodosky, 2015 NY Slip Op 02735, 2nd Dept 4-1-15

 

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Written Notice Prerequisite to Suit Against County Did Not Apply to Plaintiff’s Being Struck by a Traffic Signal Cable While Walking on a Sidewalk

The Second Department determined the written notice requirement for liability did not apply.  Plaintiff alleged she felt an electric shock and was struck by an cable as a nearby traffic signal was being worked on:

…[T]he plaintiff was not required to show that they received prior written notice of the alleged condition pursuant to Nassau County Administrative Code § 12-4.0(e). This provision requires prior written notice of any defective or dangerous “sidewalk, street, highway, parking field, stairway, walkway, ramp, driveway, bridge, culvert, curb or gutter.” Here, the condition that allegedly caused the injury is an electrical condition involving a traffic signal, or a traffic signal box and related cable. The subject Nassau County Administrative Code provision does not require prior written notice of that condition … . Moreno v County of Nassau, 2015 NY Slip Op 02736, 2nd Dept 4-1-15

 

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City Properly Held Liable for Failure to Address Excessive Speeding on Road Where Infant Plaintiff Was Struck—A Proprietary, Not a Governmental, Function Was Involved—The Doctrine of Qualified Immunity Did Not Apply Under the Facts

In upholding the jury’s finding the city liable for not addressing excessive speeding on the road where infant plaintiff was struck by a car and seriously injured, the Second Department explained the city’s liability for proprietary versus governmental functions and the inapplicability of the qualified immunity doctrine:

When a negligence cause of action is asserted against a municipality, the court must first decide whether the municipal entity was engaged in a proprietary function or was acting in a governmental capacity at the time the claim arose … . If the municipality’s activities are proprietary in nature, the municipality is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties … . By contrast, if the municipality was exercising a nondiscretionary governmental function, it will not be held liable unless it owed a “special duty” to the injured party … .

Here, the plaintiffs alleged, among other things, that the City was negligent in that it received numerous complaints that vehicles were speeding and racing along the entire length of Gerritsen Avenue, but completely failed to conduct a proper and adequate study of this speeding problem, and failed to implement a reasonable plan to control or resolve the dangerous condition presented on the roadway. Since a municipality’s duty to keep its roads and highways in a reasonably safe condition is proprietary in nature …, the City’s contention that it cannot be held liable under the plaintiffs’ theory absent the existence of a “special duty” to the infant plaintiff must be rejected … .

The City’s argument that the causes of action asserted against it must be dismissed because it is entitled to immunity is also without merit. In the field of traffic design engineering, a municipality is accorded qualified immunity from liability arising out of its highway planning decisions … . The doctrine of qualified immunity, however, will only apply where the municipality has conducted a study which ” entertained and passed on the very same question of risk'” … as was alleged by the plaintiff. Indeed, a municipality may be held liable if, “after being made aware of a dangerous traffic condition, it does not undertake an adequate study to determine what reasonable measures may be necessary to alleviate the condition” … . Moreover, after a municipality implements a traffic plan, “it is under a continuing duty to review its plan in the light of its actual operation'” … . * * *

Considering the testimony and documentary evidence presented, there was a rational process by which the jury could have found that the City had notice that excessive speeding along the length of Gerritsen Avenue created a dangerous condition and that the City failed, in response to the complaints it received, to conduct a study which ” entertained and passed on [this] very same question of risk'” … posed by excessive speeding along Gerritsen Avenue. As such, the doctrine of qualified immunity does not apply … . Turturro v City of New York, 2015 NY Slip Op 02754, 2nd Dept 4-1-15

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