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County (Nassau) Must Indemnify Special Districts for Ad Valorem Tax Refunds Paid by the Special Districts

The Second Department determined that special districts (sanitation and garbage) which were obligated to refund ad valorem taxes wrongly collected from the New York Water Service Corporation were entitled to be reimbursed by the county:

… “[P]ursuant to the County Guaranty, the County is liable for refunds of tax payments made in connection with levies for special ad valorem taxes” … . We have also held that “special ad valorem levies are not assessments for benefit’ within the meaning of former Nassau County Administrative Code § 6-26.0(b)(3)(a)-(b) and, thus, they cannot be charged back to the special districts in the following tax year” … . …[T]he County entities must indemnify the special districts for any refunds paid by the special districts … . New York Water Serv Corp v Supervisor of Town of Oyster Bay, 2015 NY Slip Op 01431, 2nd Dept 2-18-15

 

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Local Law Imposing Residency Restrictions Upon a Level One Sex Offender Who Was No Longer Subject to State Sex-Offender Residency Restrictions Preempted by Implication—The Body of State Law Regulating Sex Offenders Evinced the State’s Intent to “Occupy the Field”

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a Nassau County Local Law which prohibited registered sex offenders from residing within 1000 feet of a school was preempted by the body of state law regulating the residency of sex offenders.  In this case, the defendant was adjudicated a level one sex offender (the lowest level of “danger” to the community) and had been discharged from parole.  The state sex-offender residency restrictions no longer applied to him. The Court of Appeals held that the body of law enacted by the state in this area, by implication, evinced an intent to “occupy the field” and therefore local governments did not have the power to enact their own sex-offender residency laws:

Although a local government is constitutionally empowered to enact local laws relating to the welfare of its citizens through its police power, it is prohibited from exercising that power through the adoption of local laws that are inconsistent with the New York State Constitution or any general law of the State (see NY Const, art IX, § 2 [c]; Municipal Home Rule Law § 10 [1] [i]; [ii] [1] [a] [12]). This doctrine of preemption is a significant restriction on a local government’s home rule powers because although localities are “invested with substantial powers both by affirmative grant and by restriction on State powers in matters of local concern, the overriding limitation of the preemption doctrine embodies ‘the untrammeled primacy of the Legislature to act . . . with respect to matters of State concern'” … . * * *

The doctrine of field preemption prohibits a municipality from exercising a police power “when the Legislature has restricted such an exercise by preempting the area of regulation” … . Although field preemption may be “express” as evidenced by the Legislature’s stated directive, it may also “be implied from a declaration of State policy by the Legislature . . . or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area” … . Intent to preempt the field may “be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area” … . * * *

The defendant in this appeal is a designated level one sex offender, is not on probation or parole, nor is he subject to conditional release or PRS. None of the [state] provisions that even touch upon residency or placement apply to him. …[T]hat does not mean that the State has delegated to local governments the duty of enacting residency laws concerning registered sex offenders. Nor does it mean … that “the Legislature has chosen to limit its regulations over sex offenders and not to enact a comprehensive legislative scheme in the area concerning the residency restrictions of sex offenders who are not on parole, probation, subject to conditional discharge or seeking public assistance” … . Rather, it is clear that the State has been continuously active in this field and, as such, it is evident that the State has chosen to occupy it. People v Diack, 2015 NY Slip Op 01376, CtApp 2-17-15

 

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No Notice of Claim Requirement for Human Rights Law Action Against City/Questions of Fact About City’s Motivation for Allowing Firefighter Promotion Eligibility Lists to Expire Precluded Summary Judgment in Favor of White Firefighters Alleging Reverse, Disparate Treatment Racial Discrimination

The Court of Appeals, in a full-fledged opinion by Judge Lippman, with concurring and concurring/dissenting opinions, determined that summary judgment should not have been granted to white firefighters who sued the city alleging the promotion eligibility lists were improperly allowed to expire resulting in reverse, disparate treatment racial discrimination. The court first held that the notice of claim requirement for actions against a municipality (General Municipal Law 50-i) does not apply to actions brought under the Human Rights Law.  The court went on to hold that questions of fact about the city’s motivation for allowing the promotion eligibility lists to expire precluded summary judgment:

…[W]e reject the City’s argument for dismissal on the basis of plaintiffs’ failure to file a notice of claim prior to commencement of this action. General Municipal Law § 50-e (1) (a) requires service of a notice of claim within 90 days after the claim arises “[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation.” General Municipal Law § 50-i (1) precludes commencement of an action against a city “for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city,” unless a notice of claim has been served in compliance with section 50-e. The Appellate Division departments addressing the issue have determined that the General Municipal Law does not encompass a cause of action based on the Human Rights Law and “[s]ervice of a notice of claim is therefore not a condition precedent to commencement of an action based on the Human Rights Law in a jurisdiction where General Municipal Law §§ 50-e and 50-i provide the only notice of claim criteria” … . Human rights claims are not tort actions under 50-e and are not personal injury, wrongful death, or damage to personal property claims under 50-i. Nor do we perceive any reason to encumber the filing of discrimination claims. Accordingly, we conclude that there is no notice of claim requirement here. * * *

In this case, the issue of liability turns on the factual circumstances behind the City’s actions, the strength of its justifications and its motivations. It is undisputed that the plaintiffs here made out a prima facie case of discrimination, as the City chose not to promote white candidates from the eligibility list. The burden then shifted to the City to prove that it had “a strong basis in evidence to justify its race conscious action” … . * * *

Based on the record before us, we conclude that whether the City had “a strong basis in evidence to believe it [would] be subject to disparate-impact liability” at the time that it terminated the promotion eligibility lists … raises issues of fact that cannot be determined on motions for summary judgment.  Margerum v City of Buffalo, 2015 NY Slip Op 01378, CtApp 2-17-15

 

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First Responder, a NYC Police Officer, Was Entitled to the World Trade Center Presumption that Her Illness, Fibromyalgia, Was Caused by Environmental Exposure at the Site of the 2001 Collapse of the World Trade Center

The First Department, in a full-fledged opinion by Justice Acosta, determined a NYC police officer was entitled to the World Trade Center (WTC) presumption that her illness, fibromyalgia, was caused by her exposure at the site of the World Trade Center collapse in 2001.  The officer was therefore eligible for accidental disability retirement (ADR):

Administrative Code § 13-252.1 provides that “any condition or impairment of health … caused by a qualifying World Trade Center condition” as defined in the Retirement and Social Security Law “shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident … unless the contrary be proved by competent evidence” (§ 13-252.1[1][a]…). “Qualifying World Trade Center condition” is defined to include, among other conditions, “[n]ew onset diseases resulting from exposure as such diseases occur in the future including cancer, asbestos-related disease, heavy metal poisoning, and musculoskeletal disease” (§ 2 [36][c][v] [emphasis added]). * * *

Here, the evidence shows that petitioner did not have fibromyalgia before September 11, 2001, and that she developed disabling fibromyalgia and chronic fatigue syndrome in the wake of her WTC exposure.

Because it was “caused by a qualifying [WTC] condition,” petitioner’s fibromyalgia is presumed to have been “incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by [her] own willful negligence, unless the contrary be proved by competent evidence” (Administrative Code § 13-252.1[1][a]). Respondents bear the burden of showing that petitioner’s qualifying injury was not incurred in the line of duty … . The Board of Trustees’ determination must be supported by credible evidence in the record … .

The significance of the presumption is that, “unlike ordinary ADR claimants, first responders need not submit any evidence — credible or otherwise — of causation to obtain the enhanced benefits” … Thus, the Board “cannot deny ADR benefits by relying solely on the absence of evidence tying the disability to the exposure” … . * * *

…[R]espondents have failed to rebut the presumption that petitioner’s qualifying condition, fibromyalgia, was caused by hazards encountered at the WTC site.  Matter of Sheldon v Kelly, 2015 NY Slip Op 01404, 1st Dept 2-17-15

 

 

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Town Board and Police Commission Members Entitled to Immunity and Qualified Privilege Re: Defamation Causes of Action—Criteria Described/Power to Terminate Probationary Police Officer Described

The Fourth Department determined statements attributed to members of the town board and police commission with respect to the reasons for plaintiff’s termination as a probationary police officer were protected by governmental immunity and qualified privilege (explaining the relevant criteria).  In addition, the court explained the power to terminate a probationary police officer:

There is complete immunity from liability for defamation for ” an official [who] is a principal executive of State or local government who is entrusted by law with administrative or executive policy-making responsibilities of considerable dimension’ . . . , with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties” … . Here, the Town Board has the statutory authority to “make, adopt and enforce rules, orders and regulations for the government, discipline, administration and disposition of the police department and of the members thereof” (Town Law § 154) and, as members of the Police Commission, [defendants] were delegated “all the powers relative to police matters conferred upon the town board” (§ 150 [2]). We therefore conclude that Brooks, Sullivan, and Ulinski were entitled to absolute immunity because “members of the Town Board enjoy an absolute privilege against a claim of defamation where . . . the defamatory statements are made in the discharge of their responsibilities about matters within the ambit of their duties” …, and “[t]he privilege of absolute immunity . . . extends to those of subordinate rank who exercise delegated powers’ ” … . …

A qualified privilege arises when a person makes a good[ ]faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest’ ” … . Here, defendants submitted evidence that, at the time of the alleged slanderous communications, Ulinski was a member of the Police Commission and, therefore, had an interest in plaintiff’s performance as a probationary police officer, and that Ulinski made the communications to persons with a corresponding interest in plaintiff’s performance, namely to a member of the Town Board, and to the president of the union that represented plaintiff … . We further conclude that plaintiffs “failed to raise a triable issue of fact whether the statements were motivated solely by malice” … . * * *

As a probationary police officer, plaintiff could be ” dismissed for almost any reason, or for no reason at all[,]’ . . . [and he] had no right to challenge the termination by way of a hearing or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason” … . Fiore v Town of Whitestown, 2015 NY Slip Op 01361, 4th Dept 2-13-15

 

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“Local Authority,” Within the Meaning of the Public Authorities Law, Defined

The Fourth Department determined petitioner, Operation Oswego County, was a “local authority” subject to reporting and oversight requirements of respondent, the New York Authorities Budget Office.  The court defined what a “local authority” is:

A “local authority” under the Public Authorities Law includes “a not-for-profit corporation affiliated with, sponsored by, or created by a county, city, town or village government” (§ 2 [2] [b]). Petitioner is a not-for-profit corporation that acts as a local development corporation by establishing and implementing economic development strategies for Oswego County (County). We agree with respondent that petitioner is a local authority inasmuch as it is affiliated with and/or sponsored by the County … . The record establishes that the County regularly gives grants to petitioner, which comprise the majority of its budget. …[T]he term “sponsor” means, inter alia, ” a person or an organization that pays for or plans and carries out a project or activity’ ” (id. at 1404, quoting Merriam-Webster On-line Dictionary [emphasis added]). The County has also given interest-free loans to petitioner. Furthermore, a County official serves as a voting member of petitioner’s board, and several County officials serve as ex-officio, non-voting members of petitioner’s board. Considering the totality of the circumstances …, we conclude that petitioner is a local authority as defined in the Public Authorities Law. Matter of Operation Oswego County Inc v State of New York Auths Budget Off, 2015 NY Slip Op 01358, 4th Dept 2-13-15

 

The Procedure for Holding an Executive Session Does Not Apply to Proceedings Which Are Exempt from the Open Meetings Law

The Fourth Department determined that the town board need not follow the procedure in the Public Officers Law (Open Meetings Law) for holding an executive session (where the public is excluded) for matters which are exempt from the open meetings requirement. In this case a consultation between the town board and town counsel was exempt from the open meetings requirement pursuant to a provision of the Public Officers Law.  Therefore, the town board could not be faulted for keeping that consultation private without following the formal procedure for holding an executive session:

It is well settled that “[e]very meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [section 105]” (Public Officers Law § 103 [a]…). While an executive session may be called to discuss, inter alia, “proposed, pending or current litigation” (§ 105 [1] [d]), the public body may do so only upon a majority vote of its membership and after “identifying the general area or areas of the subject or subjects to be considered” (§ 105 [1]). There is no dispute that section 105 (1) does not extend to communications between a town board and its counsel, but section 108 (3) provides in relevant part that “[n]othing contained in [the Open Meetings Law] shall be construed as extending the provisions hereof to . . . any matter made confidential by federal or state law.” “[S]ince communications made pursuant to an attorney-client relationship are considered confidential under the [CPLR] . . . , communications between a . . . board . . . and its counsel, in which counsel advises the board of the legal issues involved in the determination of a[n] . . . application, are exempt from the provisions of the Open Meetings Law” … . “When an exemption [under section 108] applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect. Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by § 105 (1) that relates to entry into an executive session” … . Matter of Brown v Feehan, 2015 NY Slip Op 01339, 4th Dept 2-13-15

 

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Action Challenging a City Resolution to Sell City Property to an Identified Purchaser Is a Challenge to an Administrative Act and Is Therefore Governed by the Four-Month “Article 78” Statute of Limitations

The Fourth Department determined the four-month “Article 78” statute of limitations applied to a challenge to a city resolution allowing the sale of city property to a particular, named purchaser  (which was an administrative act).  The action, therefore, was properly dismissed as time-barred. The court explained how an action is analyzed to determine the nature of it for purposes of applying the correct statute of limitations:

The causes of action under General Municipal Law § 51 have no specific limitations period, and we must “examine the substance of th[e] action to identify the relationship out of which the claim[s] arise[] and the relief sought” … . “If the rights of the parties may be resolved in a different form of proceeding for which a specific limitations period applies, then we must use that period” … . Ultimately, “the nature of the remedy rather than the theory of liability is the salient consideration in ascertaining the applicable [s]tatute of [l]imitations” … . Here, plaintiffs are challenging the resolution authorizing defendant Mayor to execute a purchase and sale agreement for the garage. The resolution was an administrative act, rather than a legislative act, inasmuch as it applies only to the City and [the purchaser]… . It is well established that the proper vehicle for challenging an administrative act is a CPLR article 78 proceeding, and thus the four-month statute of limitations under CPLR 217 applies … . Riverview Dev LLC v City of Oswego, 2015 NY Slip Op 01105, 4th Dept 2-6-15


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Despite Mandatory Language In the Statute Requiring that an Action Against a School District Be Brought in the County Where the School District Is Located, the Court Has the Discretion to Grant a Motion for a Change of Venue Based Upon the Convenience of Material Witnesses and the Absence of Prejudice to the School District

The Second Department determined that, despite the mandatory language of CPLR 504, a change of venue based upon the convenience of witness was appropriate in an action against a school district:

CPLR 504 provides, in relevant part, that “the place of trial of all actions against . . . school districts . . . shall be . . . in the county in which such . . . school district . . . is situated” (CPLR 504[2]…). “The purpose of CPLR 504, which applies not just to school districts but also to counties, cities, towns, and villages, is to protect municipal entities and their employees from the inconvenience of an alternative venue … . “Nevertheless, and despite the seemingly unforgiving language of the statute, venue may be changed to a non-mandated county upon a showing of special circumstances” … . The decision of whether to grant a change of venue is committed to the providently exercised discretion of the trial court … .

Here, the plaintiff established that the convenience of material witnesses and the ends of justice outweigh the asserted governmental inconvenience … . The plaintiff produced the affirmations from his treating physicians, both of whom maintain a surgical practice in Kings County, and an affidavit from an eyewitness to the accident, who resides in Kings County … . Each prospective witness disclosed the facts underlying his proposed testimony and asserted that he will be inconvenienced if the trial were conducted in Suffolk County rather than in Kings County … . The defendant, however, did not assert that any of its employees witnessed the accident … . Furthermore, the defendant failed to establish that any of its trial witnesses would be inconvenienced by traveling to Kings County. Accordingly, the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 510(3) to change the venue of the action from Suffolk County to Kings County. Xhika v Rocky Point Union Free School Dist, 2015 NY Slip OP 00874,d 2nd Dept 2-4-15


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“Big Apple” Map Provided City with Written Notice of a Tree-Well Defect in a Sidewalk/Notice of Claim Was Sufficient Even Though It Did Not Specifically Mention the Tree-Well Defect

The Second Department determined summary judgment should not have been granted to the city in a tree well/sidewalk slip and fall case.  The “Big Apple map” provided the city with notice of the defect alleged to be the cause of plaintiff's fall.  The notice of claim was sufficient to notify the city of the defect in question, even though the tree well was not specifically mentioned in the notice:

“Administrative Code of the City of New York § 7-201(c) limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects . . . [of] which its officials have been actually notified exist at a specified location” … . Prior written notice of a defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City … .  * * *

Here, the Big Apple map provided the City with notice that the subject tree well was unprotected and potentially hazardous. Indeed, the key to the Big Apple map, which has been in the City's possession since 2003, is entitled, in relevant part, “Survey Of Pavement Defects Sufficient To Cause A Hazard.” Moreover, it is the failure to “fence” or place a barrier around the tree well, which is shown on the Big Apple map, that formed the basis of the plaintiff's cause of action. Therefore, the City did not meet its burden of demonstrating, prima facie, that it did not have prior written notice of the alleged defective condition … .

Moreover, the Supreme Court erred in concluding that the plaintiff's notice of claim precluded her from asserting a theory of liability based on the absence of a fence or barrier around the tree well. The purpose of the notice of claim is “[t]o enable authorities to investigate, collect evidence and evaluate the merit of a claim” … . Here, the plaintiff's notice of claim alleged a defective condition located adjacent to P.S. 146 on 98th Street, between 158th and 159th Avenues, in Queens. The City does not argue that its investigation of the claim was prejudiced based on the description provided by the plaintiff in the notice of claim … . Nor has it articulated how investigating a defective sidewalk would differ from investigating an unsecured tree well at the same location. Moreover, any discrepancy as to the cause of the plaintiff's fall was remedied by the plaintiff's hearing testimony. Bartels v City of New York, 2015 NY Slip Op 00836, 2nd Dept 2-4-15


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