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Restrictive Covenants in Homeowners’ Association’s Declaration Do Not Apply to Land Along a Road Which Had Been Dedicated by the Association to the Town

The Third Department determined a homeowners’ association (HPHA) could not restrict the placement of a political sign on property along a road which had been dedicated to the town.  Because there was no evidence the HPHA reserved the right to regulate signs on the strip of land transferred to the town, the HPHA had no authority to prohibit the placement of a sign on the land:

Respondents contend that, although Hudson Pointe, Inc. dedicated land to the Town for the purpose of maintaining the roads within the development, such dedication was subject to the restrictive covenants contained in HPHA’s Declaration. Thus, according to respondents, although petitioners’ political signs were located on Town property, HPHA maintained the authority to enforce its sign restriction on this public land. Generally, the process of dedication is “of the nature of a gift by a private owner to the public” …, and dedication requires, among other things, “absolute relinquishment to public use by the owner” …. Thus, a town may acquire a road in fee through dedication “when there has been a complete surrender to public use of the land by the owners, acceptance by the town, and some formal act [by public authorities] adopting the highway . . . coupled with a showing that the road was kept in repair or taken in charge by public authorities” (…see Highway Law § 171///).

While the record is devoid of evidence of the Town’s acceptance of ownership of the roads within the development, the parties do not dispute that the land in question is owned by the Town through dedication. The 1997 deed conveying certain property within the development from Hudson Pointe, Inc. to the Town, contained in the record, does not explicitly reserve to HPHA or Hudson Pointe, Inc. any interest in the conveyed property. In the absence of such reservation, respondents lack the authority to enforce HPHA’s sign restriction on Town land as a matter of law … . Matter of Jasinski v Hudson Pointe Homeowners Assn Inc, 2015 NY Slip OP 00274, 3rd Dept 1-8-15

 

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Tenant In “Adjacent Property” May Be Responsible for Maintenance of a Sidewalk Where the Sidewalk is Subject to Special Use by the Tenant as Part of a Driveway

In perhaps the most thorough treatment of the theories of liability for a dangerous condition on a city sidewalk ever written, the Fourth Department explained the potential liability of the various abutting and “adjacent” property owners/tenants of the area where plaintiff slipped and fell.  Only the discussion of the “special use” by tenants (Bison) of “adjacent property” is excerpted here:

“Where a sidewalk is adjacent to but not part of the area used as a driveway, the plaintiff bears the burden of proof on a motion for summary judgment of showing that the special use of the sidewalk contributed to the defect . . . However, if the defect is in the portion of the sidewalk used as a driveway, the abutting landowner, on a motion for summary judgment, bears the burden of establishing that he or she did nothing to either create the defective condition or cause the condition through the special use of the property as a driveway” … . The same principle applies to a commercial tenant of property where the driveway constitutes a special use by the tenant … .

While the area of the dangerous condition is in a City right-of-way that falls within the extended lot line boundaries of the property owned by Seneca One, we conclude that the Bison defendants, as lessors of the “adjacent property,” may nevertheless still be liable if there is evidence that they had “access to and ability to exercise control over the special use [driveway]” … . We conclude that the Bison defendants failed to establish as a matter of law that they lacked access to and the ability to control that special use driveway … and, further, failed to establish as a matter of law “that they did not affirmatively create the defect by any alleged special use of the sidewalk as a driveway” … . Indeed, based on the evidence submitted by the Bison defendants in support of their motion, it is reasonable to conclude that the “driveway apron was constructed and exclusively used for the benefit of [the Bison defendants’ leased] property” … . The only places that could be accessed by the driveway were the stadium and the surface parking lot, both of which were located on the property leased by Bison Baseball. We thus conclude that the court properly denied their motion seeking to dismiss the negligence claims asserted against the Bison defendants insofar as those claims were based on their special use of the driveway … . Capretto v City of Buffalo, 2015 NY Slip Op 00055, 4th Dept 1-2-15

 

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Supreme Court Should Determine Only the Threshold Issue of Whether a Matter Is Arbitrable as Encompassed by the General Subject Matter of the Collective Bargaining Agreement Without Considering the Merits of the Underlying Claim (Which Should Be Left to the Arbitrator)

The Fourth Department determined Supreme Court erred when it held that the parties had not agreed to arbitrate the issue (concerning a promotion).  The Fourth Department explained the criteria, noting that Supreme Court should not have been concerned with the merits of the underlying claim, but rather only the threshold issue of arbitrability:

The issue is governed by the Court of Appeals’ two-prong test to determine “whether a grievance is arbitrable” … . In the first prong of the test, known as “the may-they-arbitrate’ prong,” we “ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … . If arbitration is not prohibited, we then in the second prong “examine the CBA [collective bargaining agreement] to determine if the parties have agreed to arbitrate the dispute at issue,” which is known as “the did-they-agree-to-arbitrate’ prong” … .

…Supreme Court erred in concluding that the parties did not agree to arbitrate this issue. “It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim” … . …  “Where, as here, there is a broad arbitration clause and a reasonable relationship’ between the subject matter of the dispute and the general subject matter of the parties’ collective bargaining agreement, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [collective bargaining agreement], and whether the subject matter of the dispute fits within them’ ” … . Matter of County of Herkimer v Civil Serv Employees Assn Inc, 2015 NY Slip Op 00125, 4th Dept 1-2-15

 

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At Least Some of the Information In a Report Prepared for the Town by Outside Counsel May Be Subject to Disclosure Because the Attorney-Client Privilege Was Waived to the Extent the Contents of the Report Were Described at a Public Hearing

The Third Department determined that a report prepared for the town by outside counsel was protected from disclosure by the attorney-client privilege.  However that privilege may have been waived to the extent the contents of the report were described at a public hearing:

“Under FOIL, an agency need not disclose documents 'specifically exempted from disclosure by state or federal statute,'” such as those protected by attorney-client privilege (…Public Officers Law § 87 [2] [a]; see CPLR 3101 [b], [c]; 4503 [a] [1]…). Petitioners do not, in fact, dispute that the report was privileged when it was prepared. They instead contend that the privilege was waived when the contents of the report were later disclosed at various Town Board meetings. Accordingly, it was incumbent upon respondents to demonstrate that the privilege had not been waived and that the report remained exempt from disclosure … .

…”[A] client who voluntarily testifies to a privileged matter, who publicly discloses such matter or who permits his [or her] attorney to testify regarding the matter is deemed to have impliedly waived the attorney-client privilege” … . In that regard, outside counsel appeared at a … public meeting and made an extensive oral presentation — apparently at the Town Board's behest — in which counsel set forth his legal analysis of the zoning issues involved. To the extent that the oral presentation parrots the analysis set forth in the report, it may well constitute a waiver of the privilege protecting the contents of the report. … Matter of Loudon House LLC v Town of Colonie, 2014 NY Slip OP 09082, 3rd Dept 12-31-14


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Procedure Under Civil Rights Law for Disclosure of Police Personnel Records Described

The Second Department determined plaintiff was entitled to the audiotapes of interviews of police officers which were attached to a report about a high-speed chase that resulted in the death of plaintiff's decedent.  Plaintiff's decedent was killed when the vehicle the police were chasing crashed into plaintiff's decedent's house:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution . . . of an action.” However, Civil Rights Law § 50-a, which codifies the standards for the disclosure of police personnel records …, provides that a police officer's “personnel records, used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review . . . except as may be mandated by lawful court order” (Civil Rights Law § 50-a[1]). Prior to issuing such an order, the court is obligated to conduct an in camera review of the requested file, “and make a determination as to whether the records are relevant and material in the action before” it, and, upon such a finding “the court shall make those parts of the record found to be relevant and material available to the persons so requesting” (Civil Rights Law § 50-a[3]).

Here, the order dated March 22, 2013, indicated that the Supreme Court had reviewed “the reports sought . . . and all documentation annexed thereto” before concluding that there was “relevant and material” information contained therein (emphasis added). Accordingly, the plaintiff met his burden for compelling disclosure pursuant to Civil Rights Law § 50-a, and the court properly directed the County to disclose the IAB report. However, we perceive no reason why the plaintiff should have been denied access to the audiotapes of the interviews which were identified in the attachments to the IAB report … . The plaintiff should be permitted to hear the actual interviews of the officers regarding the accident, and not only read the IAB report's summaries thereof, since the interviews were the main source material for the IAB report and were incorporated by reference therein … .

“The party opposing disclosure carries the burden of demonstrating that the requested information falls squarely within the exemption'” … . The County has not offered any explanation as to why the audiotapes should not be discoverable, especially since it has already disclosed all of the other source material identified in the attachments to the IAB report. Calhoun v County of Suffolk, 2014 NY Slip Op 09095, 2nd Dept 12-31-14


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Summary Judgment Properly Granted in Labor Law 241 (6) Cause of Action/Although Not Demonstrated Here, the Court Noted that Comparative Negligence Is a Valid Defense to a Labor Law 241 (6) Action

The Second Department determined summary judgment was properly awarded to plaintiff in his Labor Law 241(6) cause of action. Plaintiff was impaled on an uncapped piece of vertical rebar.  (Although not the case here, the court noted that plaintiff's comparative negligence is a valid defense in a Labor Law 241 (6) action.):

Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed … . The provision requires owners and contractors to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor … . The particular safety rule or regulation relied upon by a plaintiff must mandate compliance with concrete specifications, and not simply set forth general safety standards … . Comparative negligence is a valid defense to a Labor Law § 241(6) cause of action … .

Here, the cause of action alleging a violation of Labor Law § 241(6) was predicated on Industrial Code § 23-1.7(e)(2) (12 NYCRR 23-1.7[e][2]), which provides that “floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed” (12 NYCRR 23-1.7[e][2]). Industrial Code § 23-1.7(e)(2) (12 NYCRR 23.17[e][2]) is sufficiently specific to support a cause of action to recover damages pursuant to Labor Law § 241(6) … . However, it has no application where the object that caused the plaintiff's injury was an integral part of the work being performed … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 241(6) by showing that there was a violation of 12 NYCRR 23-1.7(e)(2) and that such violation was a proximate cause of his injuries … . In opposition, the defendants failed to raise a triable issue of fact as to their allegation that the uncapped rebar was an integral part of the work that was not subject to the cited regulation …, or as to whether the plaintiff's own negligence contributed to the accident … . Lopez v NYC Dept of Envtl Protection, 2014 NY Slip Op 08963, 2nd Dept 12-24-14

 

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2 1/2 Year Delay In Correcting Location of the Slip and Fall Described in the Notice of Claim Prejudiced the Defendant/Motion for Leave to File an Amended Notice Properly Denied

The Second Department determined plaintiffs' motion to amend the notice of claim to change the location of the accident (slip and fall on ice and snow) was properly denied. Although the error was not made in bad faith, the 2 1/2 year delay in correcting the error prejudiced the defendant town agency:

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, while there is no indication that the error regarding the location of the subject accident in the original notice of claim was made in bad faith, the record demonstrates prejudice to the respondent, the defendant Town of Babylon Industrial Development Agency (hereinafter the Agency), as a result of the error. The original notice of claim misidentified the location of the accident as the “walkway/pathway” in front of 595 Smith Street, East Farmingdale, rather than the correct location, the “roadway/parking lot” at 540 Smith Street, East Farmingdale. Furthermore, the subsequent complaint, bill of particulars, photographs of the purported accident location, supplemental bill of particulars, and even a second supplemental bill of particulars served almost 2½ years after the accident, all of which continued to misidentify the accident location, failed to dissipate the prejudice to the Agency in its attempt to conduct a timely and meaningful investigation … . The plaintiffs contend that the Agency's ability to conduct a physical examination of the snow and ice condition that allegedly caused the injured plaintiff's accident was not affected by the error in the notice of claim, since that condition undoubtedly had changed by the time the original notice was served. However, the record reveals that the Agency's ability to investigate other aspects of the occurrence and to interview witnesses was hampered by the plaintiffs' delay of more than 2½ years in serving a third supplemental bill of particulars identifying the correct accident location and in moving for leave to serve an amended notice of claim … . Torres v Town of Babylon, 2014 NY Slip Op 08901, 2nd Dept 12-24-14

 

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Sheriff’s Deputy’s Driving During an Emergency Operation Did Not Rise to the “Reckless Disregard” Standard for Liability

The Third Department determined summary judgment was properly granted in favor of the sheriff's department because the conduct of the sheriff's deputy (Curry) involved in the vehicle accident did not meet the “reckless disregard” standard for vehicles involved in “emergency operations.”  The accident happened when the deputy made a U-turn because he noticed a police officer who appeared to be “having trouble with” a detained suspect:

“Vehicle and Traffic Law § 1104 (a) exempts the drivers of authorized emergency vehicles from the requirements of certain traffic laws when they are 'involved in an emergency operation'” … . This statutory qualified immunity “precludes the imposition of liability for otherwise privileged conduct except where the conduct rises to the level of recklessness” … . By statute, “[e]very . . . police vehicle” is an “authorized emergency vehicle” within the meaning of Vehicle and Traffic Law § 1104 (a) and (b) (Vehicle and Traffic Law § 101 [emphasis added]), and the fact that Curry's police vehicle was unmarked does not compel a contrary conclusion (see Vehicle and Traffic Law § 101…), although it may be relevant to the inquiry into whether he acted recklessly … .

We further find that Curry was exempt from certain traffic laws because he was engaged in an “emergency operation” (Vehicle and Traffic Law §§ 114-b, 1104 [a]…). Specifically, among other privileges, Curry was entitled to “[d]isregard regulations governing directions of movement or turning in specified directions” (Vehicle and Traffic Law § 1104 [b] [4]) and to “[s]top” his vehicle regardless of other traffic laws (Vehicle and Traffic Law § 1104 [b] [1]). Thus, while U-turns were not permitted at this location, Curry was permitted to stop or slow his vehicle in traffic and to make a U-turn, provided he did not act recklessly … . The evidence is undisputed that Curry, having acted to assist an officer who appeared to be having trouble with a detained suspect, was undertaking an “emergency operation.”  Jones v Albany County Sheriff's Dept, 2014 NY Slip Op 08895, 3rd Dept 12-18-14

 

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Violation of Labor Law Can Serve as a Basis for a Damages Action by a Police Officer Against the City Re: Injuries Suffered on the Job

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissent, determined that a violation of Labor Law 27-a can serve as the basis of a damages action by a police officer injured while on the job.  Plaintiff officer was injured when she fell off a truck while loading wooden barricades:

With [the] understanding of the legislative intent to give broad application to GML § 205-e, we turn to defendants' challenge to plaintiff's cause of action for damages. To succeed on their summary judgment motion, defendants must establish “a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” … . For the reasons we discuss, defendants have failed to meet their burden.

In order to assert a claim under GML § 205-e, a plaintiff “must [1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the [police officer] was injured, and [3] set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm” … . Defendants allege plaintiff cannot satisfy the first requirement because the Labor Law may not serve as a basis for her cause of action. We disagree.

As a predicate to her GML damages cause of action plaintiff relies specifically on Labor Law § 27-a (3) (a) (1), which provides that “[e]very employer shall: (1) furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees.”

Defendants counter that because [Labor Law 27-a] lacks a private right of action plaintiff cannot base her GML § 205-e claim on section 27-a. However, that is exactly what GML § 205-e permits and what the Legislature intended. While it is true that [the Labor Law]  does not contain an express private right of action …, GML § 205-e does not require that the predicate for a police officer's action contain an existing right to sue. Gammons v City of New York, 2014 NY Slip Op 08869, CtApp 12-18-14

 

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Privatization of a Mitchell-Lama Cooperative Housing Corporation Is Not a Taxable Conveyance Subject to the Real Property Transfer Tax

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined that the reconstitution of a cooperative housing corporation [Trump Village], changing from a Mitchell-Lama corporation pursuant to the Private Housing Finance Law [PHFL] to a corporation pursuant to the Business Corporation Law, was not a conveyance of real property subject to the Real Property Transfer Tax [RPTT]. The NYC Department of Finance characterized the change as a taxable conveyance and was seeking over $21,000,000 in tax and penalties.  The Court of Appeals held that the amendment to the certificate of incorporation did not create a new corporation and that the amended certificate did not constitute a deed:

In support of their position that the privatization of Trump Village is a taxable event, defendants argue that an amendment to a certificate of incorporation is a “deed.” Defendants also assert that Trump Village is a new corporation and that there was actually a conveyance of real property to a different corporation, with Trump Village being both the grantor and grantee. However, defendants’ construction of the RPTT cannot be reconciled with the plain language of the statute. Furthermore, even if there were any ambiguities regarding the application of the RPTT to this situation, “doubts concerning [a taxing statute’s] scope and application are to be resolved in favor of the taxpayer”… . Thus, we reject defendants’ strained interpretation of section 11-2102(a) of the Administrative Code of the City of New York. …

Trump Village …, is the same corporation that was named in the original certificate of incorporation. The Business Corporation Law distinguishes between amending a certificate of incorporation (§ 801 et seq.) and formation of a corporation (§ 401 et seq.). Section 801 (14) provides that a certificate of incorporation may be amended “to strike out, change or add any provision . . . relating to the business of the corporation, its affairs, its right or powers . . . .”…

The PHFL provides that a Mitchell-Lama corporation “may be voluntarily dissolved” and “[t]hat upon dissolution, title to the project may be conveyed in fee to the owner or owners of its capital stock or to any corporation designated by it or them for that purpose, or the company may be reconstituted pursuant to appropriate laws relating to the formation and conduct of corporations”(PHFL § 35 [3][emphasis added]). Accordingly, there are two options for the process of privatization, and plaintiff chose the second option – – reconstitution through amendment of its certificate of incorporation [FN1]. Defendants posit that the legislature intended the word “reconstitute” to mean the same thing as “reincorporate.” However, as long ago as 1857, it was recognized that reincorporation “cannot be deemed the formation of a new corporation, but should be regarded as the continuation of the existing one”… . Trump Vil Section 3 v City of New York, 2014 NY Slip Op 08788, CtApp 12-17-14

 

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