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THE ERRORS MADE IN THE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE WERE NOT MADE IN BAD FAITH AND DID NOT PREJUDICE THE MUNICIPAL DEFENDANT; THEREFORE AMENDMENT OF THE NOTICE OF CLAIM SHOULD HAVE BEEN ALLOWED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the erroneous incident-date in the notice of claim did not justify dismissal of the action in this sidewalk slip and fall case. The error was not made in bad faith and did not prejudice the municipal defendant:

The Transit defendants … moved … pursuant to CPLR 3211(a) to dismiss the complaint … on the ground that the notice of claim did not comply with General Municipal Law § 50-e(2), as it incorrectly listed the date of the accident as March 5, 2016, instead of April 5, 2016, and identified the plaintiff as “Maria Hernandez,” instead of “Maria Hernandez-Panell.” …

General Municipal Law § 50-e(2) requires that a notice of claim set forth … “the time when, the place where and the manner in which the claim arose” … . “[I]n determining compliance with the requirements of General Municipal Law § 50-e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant’s description municipal authorities can locate the place, fix the time and understand the nature of the accident” … . Pursuant to General Municipal Law § 50-e(6), a court has discretion to grant leave to serve an amended notice of claim where the error in the original notice was made in good faith and where the other party has not been prejudiced thereby … .

Here, there is no indication that the date originally listed in the notice of claim as the accident date was set forth in bad faith, and the Transit defendants did not demonstrate any prejudice as a result of the error … . Moreover, the plaintiff supplied the correct date of the accident at the hearing pursuant to General Municipal Law § 50-h and Public Authorities Law § 1212(5) … . Hernandez-Panell v City of New York, 2024 NY Slip Op 05962, Second Dept 11-27-24

Practice Point: Errors in a notice of claim against a municipality should not result in dismissal of the action if the errors were not made in bad faith and did not prejudice the municipal defendant.​

 

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THE MOTION TO AMEND THE COMPLAINT TO IDENTIFY “JOHN DOE” “JANE DOE” DEFENDANTS AS POLICE OFFICERS IN THIS CIVIL RIGHTS CASE SHOULD NOT HAVE BEEN GRANTED; THE STATUTE OF LIMITATIONS HAD EXPIRED AND THE RELATION-BACK DOCTRINE DOES NOT APPLY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to amend the complaint to identify police officers as the “John Doe, Jane Doe” defendants in this 18 USC 1983 false arrest and unlawful search case should not have been granted. The statute of limitations had expired and the relation-back doctrine did not apply—police officers are not united in interest with the city:

CPLR 1024 provides that a “party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly.” “Yet, ‘parties are not to resort to the “Jane Doe” procedure unless they exercise due diligence, prior to the running of the statute of limitations, to identify the defendant by name and, despite such efforts, are unable to do so. Any failure to exercise due diligence to ascertain the “Jane Doe’s” name subjects the complaint to dismissal as to that party'” … .

Here, the statute of limitations had expired by the time the defendants were identified in the second amended complaint. Contrary to the plaintiff’s contention, the relation-back doctrine does not apply, because the defendants are not united in interest with the City … . The City “cannot be held vicariously liable for its employees’ violations of 42 USC § 1983, and there is no unity of interest in the absence of a relationship giving rise to such vicarious liability” … . Additionally, the plaintiff failed to demonstrate that he made diligent efforts to ascertain the defendants’ identities prior to the expiration of the statute of limitations or that the City hindered any such efforts … . Contrary to the plaintiff’s contentions, the Supreme Court’s prior orders allowing the plaintiff to amend the complaint to add the then-unknown defendants by name within a certain time period are not binding on these issues. The doctrine of the law of the case does not bind an appellate court … . Agosto v Maria, 2024 NY Slip Op 05950, Second Dept 11-27-24

Practice Point: Here the motion to amend the complaint to identify “John Doe” and “Jane Doe” defendants as police officers should have been denied because the statute of limitations had expired and the relation-back doctrine did not apply because police officers are not united in interest with the city which employs them.

 

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IN A SIDEWALK SLIP AND FALL CASE, COMMUNICATION WITH THE CITY BY PHONE DOES NOT SATISFY THE WRITTEN NOTICE REQUIREMENT, EVEN IF THE COMMUNICATION WAS REDUCED TO WRITING; PLAINTIFF DID NOT DEMONSTRATE AN EXCEPTION TO THE WRITTEN NOTICE REQUIREMENT APPLIED (FIRST DEPT).

The First Department, reversing Supreme Court in this sidewalk slip and fall case, determined the “written notice” requirement for municipal liability was not met and plaintiff did not demonstrate an exception to the written notice requirement was applicable:

While walking down a sidewalk on West 26th Street in Manhattan, plaintiff tried to navigate around other pedestrians and tripped and fell on a metal fence surrounding a tree well, known as a tree guard, where there was no longer a tree. Plaintiff seeks to hold the City of New York and New York City Parks Department and Recreation liable for his fall on the theory that defendants created a hazard by leaving the tree guard after they removed the tree. Defendants’ motion for summary judgment should have been granted.

The City sustained its initial burden of demonstrating that it did not receive prior written notice of the condition that caused plaintiff’s accident. A search of Department of Transportation and Department of Parks and Recreation records revealed only two 311 calls for the accident site. The calls resulted in service reports reflecting removal of dead trees and a direction for a City employee to investigate whether replacement of the trees was appropriate. No party disputes that the trees were not replaced before the accident. However, verbal or telephonic communication to a municipal body that is reduced to writing does not satisfy the prior written notice requirement, even if the writing includes a service report, as it does here … … .

As a result, the burden shifted to plaintiff to demonstrate that one of the exceptions to the prior written notice requirement applied … . Plaintiff failed to raise a triable issue of fact concerning whether the City affirmatively created the defective condition through an act of negligence or that a special use resulted in a special benefit to it … . Plaintiff’s theory was that his accident was the result of a combination of inadequate lighting, the height and color of the tree well guard, and the removal of the tree without replacement. However, his expert failed to cite relevant industry-wide standards and practices regarding the construction or design of a tree well border from which the City may have deviated. Moreover, plaintiff did not show that the City’s failure to replace the trees was an affirmative act of negligence, rather than a negligent omission, that created an immediately apparent dangerous condition … . Carney v City of New York, 2024 NY Slip Op 05884, First Dept 11-26-24

Practice Point: Re: municipal liability for a sidewalk slip and fall, phone communications about the defect do not satisfy the written notice requirement even if the communications are reduced to writing.

 

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IN THIS CHILD VICTIM’S ACT CASE ALLEGING SEXUAL ABUSE AFTER PLACEMENT IN FOSTER CARE BY THE DEFENDANT COUNTY, THE SECOND DEPARTMENT, DISAGREEING WITH THE FIRST AND FOURTH DEPARTMENTS, DETERMINED THE COUNTY OWED PLAINTIFF A SPECIAL DUTY UPON ASSUMING CUSTODY OVER HER FOR FOSTER-CARE PLACEMENT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ventura, affirming Supreme Court’s denial of the county’s motion for summary judgment, expressly disagreeing with contrary rulings in the First and Fourth Departments, determined a municipal agency which assumes custody over a child for the purpose of placing the child in foster care owes a special duty to the child. In this Child Victims Act case, plaintiff alleged sexual abuse during the 1970’s by her foster father and, during a different foster placement, by her adult neighbor:

The Court of Appeals has long held that “an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public” … . In this case, we consider how this rule applies in the context of claims against municipalities for the negligent placement and supervision of children in foster care. In contrast to the recent holdings of the Appellate Division, First and Fourth Departments, we conclude that a municipal agency owes a special duty to a foster child upon assuming legal custody of that child. An agency that assumes custody of a foster child, and which selects and supervises that child’s foster parents, necessarily owes a duty to the child “more than that owed the public generally” … . Thus, where, as here, a plaintiff asserts causes of action to recover damages for harm suffered by a foster child due to the negligent performance of a governmental function and alleges facts sufficient to show that the defendant municipal agency assumed legal custody over that child, that plaintiff need not prove any additional facts in order to satisfy the special duty rule. Adams v Suffolk County, 2024 NY Slip Op 05428, Second Dept 11-6-24

Practice Point: A municipality’s liability for negligence in performing a governmental function is predicated upon owing the injured party a special duty, over and above that owed to the general public. Here, disagreeing with contrary holdings in the First and Fourth Departments, the Second Department held a county which assumes custody of a child for placement in foster care owes a special duty to that child.

 

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A CONTRACT BETWEEN A LANDOWNER AND A TOWN THAT PURPORTS TO BIND TOWN BOARDS ELECTED IN THE FUTURE WITH RESPECT TO A PETITION FOR REZONING VIOLATES THE TERM LIMITS RULE; A CONTRACT WHICH PURPORTS TO LIMIT A TOWN’S REZONING REVIEW PROCESS VIOLATES THE PROHIBITION AGAINST CONTRACT ZONING (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Christopher, determined the contract entered into between plaintiff property owner and the town board and town planning board violated the term limits rule and the prohibition against contract zoning. The contract purported to prohibit the town from terminating its review of the petition to rezone the land (to allow construction of multi-family residences) until the final determination on the merits. The contract purported to bind town boards elected in the future, which violates the term limits rule. And the contract purported to commit the town board to a specific course of action for review of the zoning petition, which violates the prohibition of contract zoning:

The provision of the [contract] states in relevant part that the Town Board “shall not terminate its review of the [plaintiff’s] Zoning Petition, and the Project in general, until it reaches a final determination on the merits in its legislative judgment regarding the best interests of the Town based upon empirical data and other objective factual bases.” This provision, which attempts to constrain the Town Board’s decision-making process regarding its zoning responsibilities, implicates the Town Board’s governmental and legislative powers, as enacting zoning ordinances is a significant function of local government … . * * *

The plaintiff fails to acknowledge that while [the contract] may indicate that nothing … limits the Town Board in the exercise of its legislative power, that statement is qualified by the language that states “except as otherwise provided herein,” thus eviscerating the import of the preceding language. The fact that the [contract] may not mandate a particular outcome does not mean … that it fails to violate the term limits rule. * * *

… [T]he plain language of the [contract] commits the Town Board to a review of the plaintiff’s zoning petition, and purports to forbid termination of the review process until the Town Board reaches a final determination on the merits. Such determination must be based upon “empirical data and other objective factual bases.” Such language evidences that the [contract] was clearly meant to commit the Town Board to a specific course of action with respect to the review process of the zoning petition. Hudson View Park Co. v Town of Fishkill, 2024 NY Slip Op 05332, Second Dept 10-30-24

 

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THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) DETERMINATION DID NOT TAKE INTO ACCOUNT THE ARCHAEOLOGICAL/HISTORICAL SIGNIFICANCE OF THE AREA WHERE THE APARTMENT COMPLEX WAS TO BE BUILT; DETERMINATION ANNULLED AND REZONING ORDINANCE VACATED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the “negative declaration” did not adequately take into account the historic/archaeological significance of the site where the apartment complex was to be built, and failed to include a necessary “consulting party.” The State Environmental Quality Review Act (SEQRA) determination was annulled and the rezoning ordinance was vacated:

In our view, respondent’s characterization of the archaeological impact as “moderate” unduly minimizes the historic/archaeological significance of the project site. We also find it significant that respondent’s coordination plan … excludes the Stockbridge-Munsee Community as a consulting party, notwithstanding EDP’s [Environmental Design Partnership] report including the Stockbridge-Munsee Community as a key participant. By letter dated May 3, 2022, just three days before respondent adopted the negative declaration, a representative from the Stockbridge-Munsee Community Tribal Historic Preservation Office wrote to respondent “to state the Tribe’s strong[ ] disagreement” with the proposed negative declaration resolution. … [T]he representative explained that “our office concluded there would be serious and irrevocable impacts to [i]ndigenous cultural resources including a significant site known to be eligible for the National Register of Historic Places and has yielded or may be likely to yield, information important in history or prehistory.” He further commented that “[f]or thousands of years the site was used for the extraction of resources for lithic tool making and camping along the [r]iver.” In 2021, a Stockbridge-Munsee Community Tribal Historic Preservation Officer submitted a statement to respondent explaining that the parcel “has high archaeological sensitivity and cultural significance for the Stockbridge-Munsee Band of Mohican Nation. . . . The recorded Chert Quarries Precontact Site represents immense cultural and educational significance. For thousands of years this area was used for the extraction of resources for Mohican people.” Matter of Bennett v Troy City Council, 2024 NY Slip Op 05257, Third Dept 10-24-24

Practice Point: Here the failure to take into account the historical/archaeological (“indigenous cultural”) significance of the land and the failure to include a Native American group as a consulting party warranted the annulment of the SEQRA determination (“negative declaration”) and vacation of the rezoning ordinance.

 

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THE ACTIONS TAKEN BY THE 911 DISPATCHER AND THE EMERGENCY MEDICAL TECHNICIANS CONSTITUTED THE EXERCISE OF DISCRETION IN THE PERFORMANCE A GOVERNMENT FUNCTION; THE GOVERNMENT FUNCTION IMMUNITY DEFENSE INSULATED THE MUNICIPAL DEFENDANTS FROM LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipal defendants were entitled to summary judgment dismissing the negligence action stemming from decisions made by emergency personnel in response to a 911 call. The emergency services, including the dispatch of a “Basic Life Support” (BLS), as opposed to an “Advanced Life Support” (ALS) ambulance, and the attempts to intubate the unresponsive plaintiff rather than to immediately transport her to the hospital, were deemed the exercise of discretion while performing a government function. Discretionary actions taken in performance of a government function are insulated from liability by the government-function-immunity defense:

“[W]hen both the special duty requirement and the governmental function immunity defense are asserted in a negligence case, the rule that emerges is that 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” … . In other words, in a negligence action where the municipality has raised the governmental function immunity defense, a plaintiff may only hold the municipality liable for actions taken in its governmental capacity where (1) a special duty exists and (2) the municipality’s actions were ministerial in nature and not the result of discretionary decision-making … . * * *

The defendants demonstrated that the 911 dispatcher’s decision, among other things, to send a BLS ambulance rather than an ALS ambulance “was discretionary and, therefore, protected by the doctrine of governmental immunity” … . Under the circumstances presented, the defendants also established that the EMTs exercised their discretion in declining to immediately transport [plaintiff] to the nearby hospital and to instead wait for the paramedics in the ALS ambulance to arrive. Similarly, the defendants demonstrated that the actions of the paramedics resulted from discretionary decision-making, including with regard to the type of treatment to render … . Walker-Rodriguez v City of New York, 2024 NY Slip Op 05237, Second Dept 10-23-24

Practice Point: Consult this decision for a concise but complete one-paragraph compilation of all the issues associated with municipal liability for negligence–proprietary versus government function, special duty, discretionary versus ministerial acts, etc.

 

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HERE THE SUPERINTENDENT OF HIGHWAYS WAS NOT “ENGAGED IN HIGHWAY WORK” WHEN HE COLLIDED WITH PLAINTIFF; THEREFORE THE ORDINARY NEGLIGENCE STANDARD, NOT THE HIGHER “RECKLESS” STANDARD FOR HIGHWAY WORKERS IN THE VEHICLE AND TRAFFIC LAW, APPLIED TO THIS TRAFFIC ACCIDENT (CT APP).

The Court of Appeals, reversing the Appellate Division and awarding summary judgment to plaintiff, in a full-fledged opinion by Judge Cannataro, determined the defendant, Simone, the Superintendent of Highways for the Town of Carmel, was not engaged in highway work when he failed to look to his right before pulling out of an intersection and collided with plaintiff’s car. Simone had driven to a vantage point to see how much snow had fallen on the town’s roads and had ordered the highway department employees to salt the roads. He was on his way back to his office when the accident happened:

… [T]itle VII of the Vehicle and Traffic Law sets out a uniform set of traffic regulations, or “rules of the road,” which generally “apply to drivers of all vehicles owned or operated by the United States, this state, or any county, city, town, district, or any other political subdivision of the state” … . Vehicle and Traffic Law § 1103 (b), however, provides that those rules “shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway” … . Although such parties remain liable for “the consequences of their reckless disregard for the safety of others,” they bear no liability for ordinary negligence … . * * *

… [A]ccording to Simone’s own deposition testimony, the accident occurred after he had fully completed his assessment of roadway conditions at his bellwether location and mobilized his entire team to salt the town’s roads. At the time of the accident, Simone was merely using the road to return to work. Although he testified that he saw a slushy accumulation of snow to his left shortly before the collision occurred, he took no action in response to observing that condition. Indeed, he testified that as he pulled into the intersection where the collision occurred, there was nothing keeping his attention drawn to his left and he was no longer looking at the condition.

Because the uncontested evidence demonstrates that Simone was not actually engaged in work on a highway at the time the accident occurred, defendants are not entitled to the protections of [Vehicle and Traffic Law] section 1103 (b). Orellana v Town of Carmel, 2024 NY Slip Op 05131, CtApp 10-17-24

Practice Point: Here ordinary negligence rules applied to the Superintendent of Highways when he had an accident returning to his office after assessing how much snow had fallen. At the time of the accident he had already ordered his employees to salt the roads. He therefore was not “engaged in highway work” when he collided with plaintiff.

 

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TENURED TEACHERS WERE NOT ENTITLED TO A HEARING BEFORE BEING PLACED ON LEAVE BECAUSE THEY DID NOT SUBMIT PROOF OF VACCINATION AGAINST COVID; HEARINGS ARE REQUIRED IN DISCIPLINARY PROCEEDINGS, BUT NOT WHERE, AS HERE, TEACHERS FAIL TO COMPLY WITH A CONDITION OF EMPLOYMENT (CT APP).

The Court of Appeals, affirming the dismissals of the tenured New York City teachers’ petitions, determined the teachers were properly placed on leave without pay for failing to submit proof of vaccination against COVID. The petitioners’ argument that they were entitled to a hearing pursuant to the Education Law prior to being placed on leave was rejected because the teachers were not being disciplined. Rather, they failed to comply with a condition of employment:

Petitioners were not entitled to the hearing procedures outlined in Education Law §§ 3020 and 3020-a before being placed on leave without pay. These statutory provisions establish a detailed and comprehensive system for conducting disciplinary hearings for tenured teachers. While tenured teachers have a right to these statutory hearings when faced with disciplinary proceedings, these provisions are not applicable to petitioners, who were placed on leave without pay for failure to comply with the vaccine mandate, a condition of employment.

This Court has long distinguished between disciplinary proceedings and employment conditions for employees entitled to statutory civil service protections, and has held that statutory hearings are not warranted when employment eligibility conditions are enforced … . Matter of O’Reilly v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2024 NY Slip Op 05130, CtApp 10-17-24

Practice Point: The Education Law requires hearings before tenured teachers can be disciplined. But no hearing is required before placing teachers on leave for failure to comply with a condition of employment (here the submission of proof of vaccination against COVID).

 

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PLAINTIFF’S SUIT AGAINST HIS EMPLOYER UNDER THE WHISTLEBLOWER LAW (LABOR LAW 740) SHOULD NOT HAVE BEEN DISMISSED BECAUSE THE AMENDMENTS TO THE STATUTE APPLY RETROACTIVELY TO PLAINTIFF’S ALLEGATIONS; PLAINTIFF’S AGE-DISCRIMINATION CAUSES OF ACTION UNDER THE STATE AND NYC HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined amendments to the  Whistleblower Law (Labor Law 740) applied retroactively. Therefore plaintiff could sue based upon events which preceded the amendments. In addition, the First Department held plaintiff’s age-discrimination claims pursuant to the state and NYC Human Right Law should not have been dismissed:

Plaintiff states that he made numerous complaints to management at the hotel where he was employed. He complained that the windows lacked safety bars and were left wide open, that a fire exit was blocked by flammable materials, and that the hotel lacked permits for construction work. Plaintiff was later terminated. Because plaintiff failed to prove that an actual violation had occurred, his claim for retaliation would not have withstood summary judgment under the Whistleblower Law in effect at the time … . The Whistleblower Law has since been amended in this respect. It now covers activity “that the employee reasonably believes” violates law or poses a danger to the public (Labor Law § 740 [2] [a] …). …

We now find that the Whistleblower Law has retroactive application because the amendment at issue was remedial in nature … . * * *

… [P]laintiff submitted evidence that the hotel’s general manager, who participated in the decision to terminate plaintiff, told front desk managers about a plan to fill front desk positions “with young and attractive individuals,” naming as examples two front desk agents in their twenties. The hotel’s list of front desk employees hired between 2006 and 2012 shows that plaintiff was the oldest and that the two most recent hires were decades younger.

Plaintiff’s evidence that the hotel had twice attempted to terminate him for reasons found by arbitrators to be unsubstantiated, failed to interview him about the incident giving rise to his third termination, and prohibited testimony favorable to him from being offered at his third arbitration, as well as evidence that the arbitrator found plaintiff’s grievance to be a close case, could lead a reasonable jury to conclude that defendants’ proffered reason for the termination was “false, misleading, or incomplete” … . Therefore, the evidence supports an inference of age discrimination sufficient to reach a jury … . Spiegel v 226 Realty LLC, 2024 NY Slip Op 05076, First Dept 10-15-24

Practice Point: The amendments to the Whistleblower Law (Labor Law 740) were found by the First Department to apply retroactively to plaintiff’s allegations.​

Practice Point: Plaintiff made out a prima facie case of age-discrimination under the state and city Human Rights Law.

 

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