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A COUNTY RECYCLING TRUCK IS NOT ENGAGED IN ROAD WORK AND THEREFORE IS NOT EXEMPT FROM THE RULES OF THE ROAD UNDER THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT).

The Fourth Department, reversing County Court in this traffic accident case, determined a county recycling truck was not engaged in the type of road work which is exempted from the rules of the road under the Vehicle and Traffic Law. The related affirmative defense should have been dismissed:

Vehicle and Traffic Law § 1103 (b) provides that the rules of the road do not apply to “persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway” … . “[T]he law was intended to exempt from the rules of the road all teams and vehicles that ‘build highways, repair or maintain them, paint the pavement markings, remove the snow, sand the pavement and do similar work’ . . . Thus, the exemption turns on the nature of the work being performed (construction, repair, maintenance or similar work)—not on the nature of the vehicle performing the work” … .

Inasmuch as municipal refuse collection does not involve building, repairing, or maintaining highways, painting pavement markings, removing snow, sanding the pavement, or doing other similar work (see id.) and is “a task which one would anticipate could be accomplished while obeying the rules of the road”…, we conclude that Vehicle and Traffic Law § 1103 does not apply to the facts presented here … . In reaching that conclusion, we note that the 2016 amendment to Vehicle and Traffic Law § 117-a (L 2016, ch 293, § 1)—which broadened the definition of “hazard vehicle” to include sani-vans and waste collection vehicles—did not broaden the scope of work that would constitute “engag[ing] in work on a highway” … .

Vehicle and Traffic Law § 1103 (b) further provides that section 1202 (a)—which regulates stopping, standing, and parking—does not apply to “hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway” … . That provision, however, does not shield defendants from the allegations of negligence raised by plaintiff, i.e., violations of the right-of-way provisions of Article 26 of the Vehicle and Traffic Law, including, inter alia, sections 1140, 1142 (a), and 1146 (b). Rouse v City of Syracuse Dept. of Pub. Works, 2024 NY Slip Op 03938, Fourth Dept 7-26-24

Practice Point: A county recycling truck is not engaged in road work and therefore is not exempt from the rules of the road under the Vehicle and Traffic Law.

 

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PLAINTIFF ASSUMED THE RISK OF AN ACCIDENT INVOLVING HER GOLF CART AND A MOTOR VEHICLE IN THE COUNTY GOLF COURSE PARKING LOT; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the assumption of the risk doctrine applied to the operation of a golf cart in the parking lot of a golf course. Defendant county, the owner of the golf course, was therefore not liable for an accident involving a motor vehicle in the parking lot:

… [T]he County defendants met their burden of establishing that the risk of being injured while driving a golf cart is “inherent in the sport” of golf and that plaintiff was aware of the risk and assumed it … , and that plaintiff failed to raise an issue of fact with respect thereto … . At the time of the accident, plaintiff was an experienced golfer who played the golf course regularly throughout the season … . Moreover, the County defendants demonstrated that plaintiff had routinely driven a golf cart into the parking lot to retrieve her clubs from her vehicle, and that she was aware of the fact that other people would be operating motor vehicles in the parking lot. The County defendants therefore established as a matter of law that being injured while driving a golf cart in the parking lot of the golf course before a round of golf is “within the known, apparent and foreseeable dangers of the sport” of golf … . Galante v Karlis, 2024 NY Slip Op 04001, Fourth Dept 7-26-24

Practice Point: Here, over a two-justice dissent, plaintiff was deemed to have assumed the risk of a golf-cart/motor vehicle accident in the golf course parking lot.

 

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A MUNICIPALITY CANNOT BE SUED FOR NEGLIGENT HIRING, RETENTION, TRAINING AND SUPERVISION BASED UPON EMPLOYEES’ ACTIONS ALLEGED TO HAVE BEEN WITHIN THE SCOPE OF THEIR EMPLOYMENT; THE PROPER THEORY IS RESPONDEAT SUPERIOR (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that a municipality cannot be sued for negligent hiring, retention, training and supervision based upon actions taken by employees within the scope of their employment. In that case, the municipality can only be sued under a respondeat superior theory. Here plaintiff sued the City of Buffalo and police officers for actions relating to plaintiff’s arrest:

We agree with defendants that the court erred in denying their motion with respect to the … causes of action against the City of Buffalo, sounding in negligent hiring, negligent retention, and negligent training and supervision … . … [I]n those causes of action plaintiff alleges that the City of Buffalo was negligent in the hiring, retention and training and supervision of [officers] Moriarity and Bridgett, and plaintiff further alleges that Moriarity and Bridgett were acting in their capacities as employees of the City of Buffalo. It is well settled … that “where an employee is acting within the scope of [their] employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision, or training” … . Taylor, 2024 NY Slip Op 03632, Fourth Dept 7-3-24

Practice Point: A municipality cannot be sued for negligent hiring, retention, training and supervision when the employees’ actions are alleged to have been within the scope of their employment. The municipality should be sued under a respondeat superior theory.

 

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A COUNTY MAY BE LIABLE FOR NEGLIGENT SUPERVSION OF A VISIT BETWEEN MOTHER AND CHILD BY A COUNTY SOCIAL SERVICES CASEWORKER AT A PUBLIC PARK; HERE THE CHILD FELL WALKING UP A SLIDE; THE CASEWORKER DID NOT OBSERVE THE ACCIDENT BUT MOTHER WAS NEXT TO THE SLIDE AT THE TIME (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, determined the county’s motion for summary judgment in this negligent supervision case was properly denied. Plaintiff father alleged the county social services caseworker (Byrne) who supervised a visit between mother and the infant plaintiff at a public playground was negligent in allowing the child to walk up a slide where the infant plaintiff fell. Byrne did not observe the accident. The Second Department held Byrne was performing a governmental function, the county owed infant plaintiff a special duty, Byrne’s actions were not demonstrated to be discretionary, and the county did not demonstrate Byrne’s acts or omissions were not a proximate cause of the accident. The opinion provides a clear explanation of the complex issues associated with governmental liability in this “negligent supervision” context:

“Once it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a duty to the injured party” … . “In order to sustain liability against a municipality engaged in a governmental function, ‘the duty breached must be more than that owed the public generally'” … . * * *

… “[U]nder the doctrine of governmental function immunity, 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” … . * * *

… [T]he County may assume a special duty to a foster child during the course of visitation supervised by a DSS caseworker. * * *

Since Byrne acknowledged that he did not observe the infant plaintiff walking up the portion of the slide intended for children to slide down prior to the accident, it cannot be said that he made a discretionary decision whether or not the infant plaintiff’s behavior warranted his intervention. Thus, any exercise of discretion by Byrne during visitation bore no relation to the conduct on which liability is predicated. P.D. v County of Suffolk, 2024 NY Slip Op 03405, Second Dept 6-20-24

Practice Point: The complex criteria for government liability in a negligent-supervision-of-a-child case are clearly and comprehensively explained.

 

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THE NYC DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT TOOK THE “HARD LOOK” REQUIRED BY THE STATE ENVIRONMENTAL QUALITY REVIEW ACT BEFORE APPROVING THE CONSTRUCTION OF SENIOR HOUSING ON GREEN SPACE (CT APP). ​

The Court of Appeals, over an extensive dissenting opinion, determined the NYC Department of Housing Preservation and Development (HPD) took the “hard look” required under the State Environmental Quality Review Act (SEQRA) before approving the construction of a seven-story senior housing unit on land previously used by a tenant as a green space/sculpture garden which was open to the public:

This CPLR article 78 proceeding challenges a negative declaration issued by respondent New York City Department of Housing Preservation and Development (HPD) relating to development of affordable housing on a lot in the Nolita neighborhood of Manhattan. The property is owned by the City of New York and leased on a month-to-month basis since 1991 to a corporation owned by the late petitioner Allan Reiver … . Beginning in 2005, Reiver used the lot as a green space/sculpture garden accessible through his adjacent art gallery. After the City identified the lot as a potential site for affordable senior housing in 2013, Reiver opened the space to the public directly through a gate on Elizabeth Street. The garden is currently open for a limited number of hours per week and is operated and maintained by volunteers.

* * * The Court’s role is not “to weigh the desirability of any action or choose among alternatives,” but to ensure that “agencies will honor their mandate regarding environmental protection by complying strictly with prescribed procedures and giving reasoned consideration to all pertinent issues revealed in the process” … . In other words, “[w]hile judicial review must be meaningful, the courts may not substitute their judgment for that of the agency” … .

Here, HPD identified appropriate areas of concern, took the necessary “hard look,” and rationally determined that the project would not have a significant adverse impact on the environment. Matter of Elizabeth St. Garden, Inc. v City of New York, 2024 NY Slip Op 03321, Ct App 6-18-24

Practice Point: A court’s role under SEQRA is limited to determining whether the agency took a “hard look” at the adverse environmental effects of a construction project before approving it.

 

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IN THIS CROSSWALK SLIP AND FALL CASE, THE FACT THAT THE MUNICIPALITY REPAIRED THE AREA FIVE MONTHS BEFORE DID NOT CONSTITUTE AN EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the fact that the municipality repaired the crosswalk where plaintiff slipped and fell five months before did not constitute an exception to the prior written notice requirement:

Prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City, in the absence of a recognized exception … . The only recognized exceptions to the prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence or where a special use confers a benefit upon the municipality … . The affirmative negligence exception is limited to work which immediately results in the existence of a dangerous condition … . In support of her motion, plaintiff submitted evidence that the most recent repair work was performed five months prior to the accident in the general area of the subject defect. This does not raise an issue of fact as to whether defendants created the defect that caused plaintiff’s fall through an affirmative act of negligence at the location where the injury occurred, which immediately resulted in the existence of a dangerous condition … . Smith v City of New York, 2024 NY Slip Op 03150, First Dept 6-11-24

Practice Point: Unless the plaintiff can allege the dangerous condition which caused the slip and fall was created by the municipality at the time the repair was made, prior written notice of the defect is a condition precedent for the lawsuit. Here the allegation the area was repaired five months before the slip and fall was not sufficient.

 

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THE ORDER IMPLEMENTING THE PLAINTIFFS’ PLAN FOR THE SEALING OF NYPD’S RECORDS OF FAVORABLY TERMINATED CRIMINAL PROCEEDINGS AMOUNTED TO A PERMANENT INJUNCTION WITHOUT A DETERMINATION ON THE MERITS; MATTER REMITTED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Kern, over a dissenting opinion, determined the order by Supreme Court implementing plaintiffs’ plan for sealing the New York City Police Department’s (NYPD’s) records of criminal prosecutions which are favorably terminated amounted to a permanent injunction issued without a determination on the merits, either by way of a summary judgment motion or a trial:

The New York sealing statutes at issue here, enacted in 1976, require that upon the favorable termination of a criminal proceeding or a noncriminal conviction, unless the government demonstrates to the satisfaction of the court that the interests of justice require otherwise, “arrest information,” including photos, palm and fingerprints of arrestees, and official records and papers relating to an arrest or prosecution, will be “sealed and not made available” to any person or public or private agency, subject to six statutorily enumerated exceptions (Criminal Procedure Law §§ 160.50, 160.55 [Sealing Statutes]). * * *

We find that Supreme Court erred by prematurely issuing an overbroad permanent injunction without first making a final determination on the merits of the claim after a trial or summary judgment motion. Contrary to plaintiffs’ argument, the Implementing Order is a permanent injunction rather than a preliminary injunction. The purpose of a preliminary injunction “is not to determine the ultimate rights of the parties, but to maintain the status quo until there can be a full hearing on the merits” … . Conversely, a permanent injunction is a type of final judgment that is issued on the merits of the claims asserted … . R.C. v City of New York, 2024 NY Slip Op 03017, First Dept 6-4-24

Practice Point: An order which includes no indication it is temporary is a permanent, not a preliminary, injunction which should not issue without a determination on the merits by summary judgment motion or trial.

 

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PHYSICAL INCAPACITY CAN BE A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM, BUT THE PERIOD OF DISABILITY DOES NOT TOLL THE ONE YEAR AND 90 DAY PERIOD FOR FILING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion for leave to file a late notice claim against the NYC Transit Authority should not have been granted because the motion was made more than one year and 90 days after the cause of action accrued. Although physical incapacity can be a reasonable excuse for failing to file a notice of claim withing 90 days, it does not toll the period for making a timely motion for leave to file a late notice of claim:

The court erred … in concluding that plaintiff’s hospitalization from the February 12, 2020 accident until April 11, 2020 rendered timely plaintiff’s January 25, 2021 notice of claim upon defendant NYC Transit Authority … . Although physical incapacity may be properly considered as a reasonable excuse under General Municipal Law § 50-e (5) for the failure to timely file a notice of claim … , it is relevant only upon timely motion for leave to file a late notice of claim “made before or after the commencement of the action but not more than one year and 90 days after the cause of action accrued” … . Melgarejo v City of New York, 2024 NY Slip Op 02892, First Dept 5-28-24

Practice Point: A period of physical incapacity may be a reasonable excuse for failing to file a timely notice of claim, but it does not toll the one year and 90 day statute of limitations for filing a motion for leave to file a late notice of claim.

 

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CITY RETIREES THREATENED WITH ELIMINATION OF THEIR EXISTING HEALTH INSURANCE AND AUTOMATIC ENROLLMENT IN A MEDICARE ADVANTAGE PLAN ENTITLED TO RELIEF UNDER THEIR PROMISSORY ESTOPPEL CAUSE OF ACTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined the doctrine of promissory estoppel justified a permanent injunction prohibiting the city from “eliminating … retirees’ existing health insurance, automatically enrolling them in a new Aetna Medicare Advantage Plan, enforcing a June 30, 2023 deadline for retirees to opt out of the new plan, and implementing any other aspect of the City’s new retiree healthcare policy:”

… [T]he record shows a clear and unambiguous promise, made for more than 50 years, that upon an employee’s retirement, Medicare would provide the first level of hospital and medical insurance benefits and the City’s benefits program would provide the second level to fill in the gaps. * * *

… [T]he record shows detrimental reliance on the promise. * * *

… [P]etitioners have demonstrated injury. Many City retirees stated that their chosen providers and hospitals, like many healthcare providers, do not accept the MAPs [Medicare Advantage Plans]. The City’s plan to automatically enroll petitioners in the Aetna MAP and terminate their current Medigap coverage would result in injury to retirees whose medical providers do not accept the Aetna MAP. * * *

The particular manner in which the parties chose to litigate this action before Supreme Court resulted in a record with significant evidentiary support for petitioners’ position and very little support for respondents’ position. That record and the arguments the parties chose to make on appeal lead to the conclusion that petitioners are entitled to relief under their promissory estoppel cause of action. Matter of Bentkowski v City of New York, 2024 NY Slip Op 02771, First Dept 5-21-24

Practice Point: Here the promissory estoppel doctrine was applied to permanently enjoin the city from eliminating city retirees’ health insurance and automatically enrolling them in a Medicare Advantage Plan.

 

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THE REPORT OF THE INCIDENT IN WHICH PETITIONER WAS INJURED DID NOT PROVIDE THE CITY DEFENDANTS WITH NOTICE OF A CONNECTION BETWEEN THE INJURIES AND ANY NEGLIGENCE ON THE PART OF THE DEFENDANTS; THEREFORE THE CITY DEFENDANTS DID NOT HAVE NOTICE OF THE CLAIM WITHIN 90 DAYS; IN ADDITION, IGNORANCE OF THE LAW IS NOT A VALID EXCUSE FOR FAILURE TO TIMELY FILE A NOTICE OF CLAIM; THE PETITION FOR LEAVE TO FILE AND SERVE LATE NOTICES OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition for leave to file and serve late notices of claim in this construction accident case should not have been granted. Although there was a report about the incident, nothing in the report made a connection between petitioner’s injuries and negligence on the part of the city defendants.  Another incident report made by one municipal entity (MTA Capital Construction) cannot be imputed to other municipal entities:

The evidence submitted in support of the petition failed to establish that the City, NYC Department of Design and Construction, NYC Department of Transportation, and New York City Transit Authority (hereinafter collectively the City appellants) or the MTA [Metropolitan Transportation Authority] acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter. “‘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 incident report upon which the petitioner relied did not connect his injuries to negligent conduct on the part of the City appellants or the MTA, and the incident report, prepared by MTA Capital Construction, cannot be imputed to other municipal entities … . Moreover, the petitioner testified at a hearing pursuant to General Municipal Law § 50-h that only his employer’s personnel were present at the construction site when the accident occurred.

The petitioner also failed to provide a reasonable excuse for failing to timely serve the notices of claim. The petitioner’s ignorance of the law does not constitute a reasonable excuse … . Furthermore, the petitioner did not adduce sufficient evidence to support his claim that he was unable to timely serve the notices of claim because he was seeking medical treatment and recovering from medical procedures, as he provided evidence only that he was unable to work for intermittent periods during the eight-month interval between the date of the accident and the service of the notices of claim … . Matter of Almeida v City of New York, 2024 NY Slip Op 02699, Second Dept 5-15-24

Practice Point: In order for an incident report to provide notice of a potential lawsuit against a municipality such that a late notice of claim will be excused, the report must connect the injuries to negligence on the part of the municipal defendants (not the case here).

Practice Point: In the context of a petition for leave to file a late notice of a claim against a municipality, an incident report created by one municipal entity will not be deemed to have provided notice of the incident to other municipal entities.

 

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