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Doctrine of Res Judicata Did Not Preclude Lawsuit Against Defendant Building Inspector In His Individual Capacity After Summary Judgment (In Defendant’s Favor) In an Action Against Defendant In His Official Capacity—Transactional Approach to Res Judicata Explained

The Second Department determined that summary judgment in favor of the defendant (Maikisch) in an action brought against a town and defendant in his capacity as building inspector did not, pursuant to the doctrine of res judicata, preclude a lawsuit against the defendant in his individual capacity. The court explained the analytical criteria:

This State has adopted the transactional analysis approach in deciding the application of the doctrine of res judicata. Under this analysis, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” … . “It is not always clear whether particular claims are part of the same transaction for res judicata purposes. A pragmatic' test has been applied to make this determination–—analyzing whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage'” … . “One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between the parties has been previously brought to a final conclusion'”

…[I]n the prior action, the plaintiff made no claim against Maikisch in his capacity as an individual. Rather, the plaintiff sought relief, in the form of a declaratory judgment, against the Town and Maikisch in his capacity as Building Inspector of the Town. “It has been repeatedly held that persons suing or being sued in their official or representative capacity are, in contemplation of law, distinct persons, and strangers to any right or liability as an individual, and consequently a former judgment concludes a party only in the character in which he was sued” … .

In any event, the differences which exist between the issues raised in the prior litigation and those raised now, namely, the differences in the kind of relief sought, in the kind of facts to be proved, and in the kind of law to be applied, outweigh the similarities to such an extent as to render the doctrine of res judicata inapplicable … . In the prior action, the plaintiff sought a judgment declaring that the subject property was exempt from certain land-use and building code regulations. There, the plaintiff alleged that, for reasons stated, the relevant regulations were inapplicable the subject property. In this action, the plaintiff seeks to recover money damages from Maikisch individually, based on contract and tort theories. In this action, the plaintiff alleges, inter alia, that Maikisch breached an oral contract between the parties, breached a fiduciary duty owed to the plaintiff, and tortiously interfered with the plaintiff's business relations. Specialized Realty Servs LLC v Maickisch, 2014 NY Slip Op 08627, 2nd Dept 12-10-14

 

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Bicyclist Assumed Risk of Injury While Jumping His Bicycle Off a Dirt Mound on a Dirt Bike Trail In a Park

The Second Department determined plaintiff-bicyclist assumed the risk of injury while jumping his bicycle off a dirt mound on a dirt bike trail in a park:

Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting or recreational activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in and arise out of the nature of the activity … . Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation … . “If the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendant has performed its duty” by making the conditions as safe as they appear to be … . This includes risks associated with the construction of the playing surface and any open and obvious condition on it … .

In support of their motion, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff assumed the risk of his injuries by voluntarily jumping his bicycle from the subject dirt mound, and that the plaintiff was fully aware of the condition of the mound at the time of the accident, as he successfully jumped off the mound twice prior to the accident… . Mamati v City of New York Parks & Recreation, 2014 NY Slip Op 08406, 2nd Dept 12-3-14

 

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Condition Which Resulted in Plaintiff’s Injury Was Not the Cause of the Injury

The Second Department determined a personal injury action was properly dismissed because the condition which led to plaintiff's injury (a five-foot drop from the top of a retaining wall to the sidewalk) was not the cause of the accident.  Infant plaintiff lost control of her bicycle, left the path, and was injured when she went over the top of the retaining wall and fell to the sidewalk:

Although the issue of proximate cause is generally one for the finder of fact …, “liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes” … .

Here, the evidence submitted in support of the defendant's motion, which included a transcript of the deposition testimony of the infant plaintiff, demonstrated that the accident was proximately caused by the infant plaintiff's failure to control her bicycle and the failure of the bicycle's brakes … . The retaining wall, which was erected a considerable distance from the portion of the paved pedestrian path from which the infant plaintiff deviated, merely furnished the condition or occasion for the infant plaintiff's accident, and was not one of its causes … . Any alleged negligence in the design, maintenance, or management of the retaining wall did not proximately cause the subject accident … . Rattray v City of New York, 2014 NY Slip Op 08416, 2nd Dept 12-3-14

 

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Succinct Description of Principles of Governmental Function Immunity

The principles of governmental function immunity were succinctly stated by the Second Department:

Under the doctrine of governmental function immunity, ” [g]overnment 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'” … .

Here, the defendants Town of Clarkstown Police Department and Town of Clarkstown … established their prima facie entitlement to judgment as a matter of law by demonstrating that the allegedly negligent acts of the police officers were discretionary and not ministerial … . Rodriguez v Town of Clarkston Police Dept, 2014 NY Slip Op 08417, 2nd Dept 12-3-14

 

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The Public Administrators of Two Counties Claimed the Authority and Jurisdiction for Letters of Administration Re: the Estate of an Incapacitated Person—In Resolving the Dispute the Appellate Court Discussed the Authority of a Public Administrator As Well As Surrogate’s Court’s Jurisdiction and the Decedent’s Domicile

The Second Department dealt with many issues which resulted from the public administrators in two counties applying for letters of administration re: the estate of an incapacitated person, a resident of Kings County who had moved from a nursing home in Kings County to a nursing home in Richmond County, where she died.  The administrator to whom the letters were issued first (Stein in Kings County) prevailed.  The court was asked to resolve many questions concerning a public administrator's authority, as well as questions concerning jurisdiction and domicile (not all of which are mentioned here):

Stein has exclusive authority to administer the decedent's estate pursuant to SCPA 704. That section provides, in part, that “[a] person who applies in good faith therefor, and to whom letters are first issued from a court having jurisdiction to issue them, has exclusive authority under the letters until they are revoked” (SCPA 704 [emphasis added]). Here, letters of administration were first issued to Stein by the Surrogate's Court, Kings County, and the record supports Stein's assertion that he had applied in “good faith” for letters of administration, without notice or knowledge of the petition filed in Richmond County (SCPA 704). Further, the Surrogate's Court, Kings County, did not lack jurisdiction to issue letters of administration to Stein. Since the decedent was a domiciliary of New York State at the time of her death, the Surrogate's Court, Kings County, possessed subject-matter jurisdiction over the decedent's estate (see SCPA 205 [1]).

…[T]he Surrogate's Court, Kings County, did not lack personal jurisdiction over certain alleged distributees of the decedent. Pursuant to SCPA 1003(2), “[e]very eligible person who has a right to administration prior or equal to that of the petitioner and who has not renounced must be served with process upon an application for letters of administration” (emphasis added). However, “[w]here the right of the applicant for letters of administration is superior to the right of other persons interested in the estate, process need not issue and letters will be granted upon a proper petition and due qualification” (1-13 NY Practice Guide: Probate & Estate Admin § 13.08; see Margaret Valentine Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 58A, SCPA 1003 at 46-47). Further, SCPA 1001 mandates the issuance of letters of administration to the public administrator where the only known distributees of a decedent are “issue of grandparents, other than aunts or uncles, on only one side” (SCPA 1001[1][f][ii]). * * *

…[T]he county in which the decedent was domiciled at the time of her death is not determinative here. Since Stein had “exclusive authority” to administer the decedent's estate under the letters of administration issued by the Surrogate's Court, Kings County, “until they are revoked” (SCPA 704 [emphasis added]), improper venue would not be a valid ground for revocation of those letters of administration. “Since domicile is a waivable and nonjurisdictional concept, if a court mistakenly, without objection, exercises jurisdiction over the estate of a domiciliary of another county, its decree is not vulnerable to direct or collateral attack for lack of subject matter jurisdiction” (…1-2 Warren's Heaton on Surrogate's Court Practice § 2.12).

In any event, the Surrogate's Court, Kings County, correctly determined that the decedent was domiciled in Kings County at the time of her death. The Surrogate's Court Procedure Act defines domicile as “[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return” (SCPA 103[15]). ” The determination of an individual's domicile is ordinarily based on conduct manifesting an intent to establish a permanent home with permanent associations in a given location'” … . “The law is well settled that an existing domicile continues until a new one is acquired,” and “[i]t is incumbent upon the party seeking to prove a change of domicile to demonstrate such a change by clear and convincing evidence” … . “To meet this burden, the movant must establish the decedent's intention to effect a change of domicile from her [or his] acts, statements, and conduct” (id.), and ” [t]he element of intent is essential'” … . Thus, generally, “an incapacitated person's admission into a health-care facility does not cause a change of domicile if the incapacitated person is unable to express an intention to establish a new domicile” … . Here, [the Richmond County public administrator] failed to meet his burden of demonstrating, by clear and convincing evidence, that the decedent changed her domicile from Kings County to Richmond County, inasmuch as the record reveals that the decedent lacked the capacity to express an intention to change her domicile … . Further, the mere fact that [the guardian of decedent's person was] given the authority to choose the decedent's “place of abode,” does not warrant the conclusion that [guardian] had any authority to change the decedent's domicile … . Matter of Bonora, 2014 NY Slip Op 08425, 2nd Dept 12-3-14

 

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Employees Terminated Pursuant to Civil Service Law 73 Are, as a Matter of Due Process, Entitled to a Posttermination Hearing

The Third Department determined that petitioner, who had been terminated from his position as a state college police officer, was entitled to a posttermination hearing.  To deny his request for the hearing denied petitioner due process:

…[T]he failure to conduct a posttermination hearing was violative of his right to due process. Employees who are terminated from their positions pursuant to Civil Service Law § 73 “are entitled to a full posttermination hearing” … . Respondents speculate that it is unlikely that petitioner could produce medical evidence establishing his fitness to occupy his position as of the date of his termination from employment. If we were to accept respondents’ reasoning, it would allow an agency that is intent on terminating an employee to arbitrarily decide whether a posttermination hearing was necessary, a determination which flies in the face of existing law. The rationale for providing petitioner with a posttermination hearing is to afford him a final opportunity to present proof demonstrating how his mental condition changed, if at all, and whether he is able to perform his job duties as of the date of his termination … . To deny petitioner’s request for a posttermination hearing was constitutionally infirm and, therefore, remittal of this matter is necessary for the completion of such administrative proceedings … . Matter of Jiminez-Reyes v State of New York, 2014 NY Slip Op 08273, 3rd Dept 11-26-14

 

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Commissioner, Due to His Prior Involvement with Discipline of the Petitioner, Should Have Disqualified Himself from Review of the Hearing Officer’s Disciplinary Recommendation and from the Rendering a Final Judgment

In a detailed decision addressing many aspects of administrative law rarely mentioned in the case law (and not described here), the Third Department determined the commissioner of accounts for the city, because of his involvement in earlier related proceedings concerning the petitioner, should have disqualified himself from reviewing the hearing officer’s final determination and rendering a final judgmet in a disciplinary action against the petitioner:

We do … find merit to petitioner’s claim that the Commissioner — having investigated petitioner’s initial allegations of preferential assessment treatment, concluded that such allegations were unfounded, preferred the resulting charges of misconduct and insubordination against petitioner and testified at petitioner’s disciplinary hearing in support of such charges — should have disqualified himself from reviewing the Hearing Officer’s recommendation and rendering a final determination in this matter. Regardless of whether disciplinary charges are pursued in the judicial or administrative realm, “[t]he participation of an independent, unbiased adjudicator in the resolution of disputes is an essential element of due process of law, guaranteed by the Federal and State Constitutions” … . Although a particular individual’s involvement or participation in the disciplinary process does not automatically compel his or her recusal, the case law makes clear that “individuals who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges” … . Accordingly, “when an officer institutes charges of misconduct and testifies at [the] ensuing hearing, that officer, in the interest of fairness, must disqualify [himself or] herself from reviewing the Hearing Officer’s recommendations and rendering a final determination” … . Matter of Zlotnick v City of Saratoga Springs, 2014 NY Slip Op 08289, 3rd Dept 11-26-14

 

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Issuance of a Positive Declaration that the Requested Rezoning May Have a Significant Impact on the Environment and the Requirement that a Draft Environmental Impact Statement Be Drawn Up, Under the Facts, Did Not Constitute an “Injury” Sufficient to Make the Matter Ripe for Court Review—All the Relevant Factors Discussed in Depth

The Second Department, in a full-fledged opinion by Justice Dickerson, determined that the town board’s issuance of a positive declaration pursuant to the State Environmental Quality Review Act (SEQRA) (finding the proposed rezoning to heavy industrial may have a significant effect on the environment) and the requirement that the petitioner (landowner) prepare and circulate a draft environmental impact statement (DEIS), under all the facts, did not constitute an “injury” sufficient to make the matter ripe for judicial review.  Much of the opinion was devoted to distinguishing Matter of Gordon v Rush, 100 NY2d 236, where the Court of Appeals determined, under the facts, the positive SEQRA declaration and the DEIS requirement constituted an “injury” sufficient to make the case ripe for court review without further proceedings.  The Second Department determined that facts here did not warrant the relief granted in the Rush case:

“Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties'” … . “To determine whether a matter is ripe for judicial review, it is necessary first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied” … .

A court considering review of an agency determination “must determine whether an agency has arrived at a definitive position on the issue that inflicts an actual concrete injury and whether the resolution of the dispute requires any fact-finding, for [e]ven if an administrative action is final, however, it will still be “inappropriate” for judicial review and, hence, unripe, if the determination of the legal controversy involves the resolution of factual issues'” … . “The position taken by an agency is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party” … . * * *

“An action taken by an agency pursuant to SEQRA may be challenged only when such action is final” … . Traditionally, a “SEQRA determination [has] usually [been] considered to be a preliminary step in the decision-making process and, therefore, . . . not ripe for judicial review until the decision-making process has been completed” … . Matter of Ranco Sand & Stone Corp v Vecchio, 2014 NY Slip Op 08338, 2nd Dept 11-26-14

 

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Proper Jury Instructions in False Imprisonment Case Based Upon Detention During the Execution of a Search Warrant Explained

The Second Department set aside the verdict and ordered a new trial on liability and damages because the jury was not properly instructed.  The plaintiff was detained at gunpoint while the police executed a search warrant based upon (apparently wrong) information provided by a confidential informant. The issues which should have been presented to the jury were whether the presumption of probable cause for the search warrant was rebutted and whether the “limited authority” to detain during a search was exceeded:

The Supreme Court erred when it instructed the jury to, in effect, apply the Aguilar-Spinelli test to determine the validity of the search warrant. Under the Aguilar-Spinelli rule, as applied in a criminal prosecution, where probable cause is predicated in whole or in part upon the hearsay statements of an informant, it must be demonstrated that the informant is reliable and had a sufficient basis for his or her knowledge … . By contrast, in a trial on the issue of liability for false imprisonment, there is a presumption of probable cause for the detention which the plaintiff must rebut with evidence that the warrant was procured based upon the false or unsubstantiated statements of a police officer … .* * *

The Supreme Court should have instructed the jury to determine whether the plaintiffs rebutted the presumption of probable cause by establishing that the NYPD presented “false or unsubstantiated statements” to the Criminal Court Judge to procure the issuance of the warrant … . * * *

We further note that police officers executing a search warrant have “limited authority to detain the occupants of the premises while a proper search is conducted” …, and are “privileged to use reasonable force to effectuate the detention of the occupants of the place to be searched” … . Accordingly, if warranted by the evidence presented at the new trial, the Supreme Court should direct the jury to determine, in the context of evaluating whether [plaintiff’s] confinement was privileged, whether the police officers, even if they possessed probable cause to enter the apartment initially, exceeded the scope of their limited authority to detain the occupants of the apartment… . Ali v City of New York, 2014 NY Slip Op 08310, 2nd Dept 11-26-14

 

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The Third Dept Upheld the Statutory Amendment Cutting Off Reimbursement of Medicaid Overburden Expenses Incurred Prior to 2006—However the Court Imposed a Six-Month Grace Period Before the Amendment Kicks In [The Fourth Dept Dealt with the Same Question in a Decision Dated 11-14-14—Although the Fourth Dept Also Upheld the Amendment, It Did Not Impose a Grace Period and Did Not Use the Same Reasoning]

The Third Department, in a full-fledged opinion by Justice McCarthy, determined that a 2012 amendment to the Social Services Law (section 61) eliminated the requirement that counties be reimbursed by the state for certain medicaid expenses (so-called “Overburden expenses”) incurred prior to 2006, when the medicaid “Cap Statute” was enacted.  The 4th Department dealt with the same issues in Matter of County of Niagara v Shah, 2014 NY Slip Op 07781, 4th Dept 11-14-14.  Although the two courts came to similar, but not identical, conclusions, it is interesting to see the substantial differences in reasoning and result.  Unlike the 4th Department, the Third Department imposed a six-month grace period, starting from the date of the decision, before the prohibition against reimbursement for pre-2006 expenses kicks in. The Third Department dealt with several issues, including:  (1) whether a political subdivision of a state can make a due process claim against the state (the court deemed the issue waived); (2) the amendment of the statute essentially imposed a statute of limitations and therefore did not extinguish a vested right to reimbursement; (3) the amendment is not unconstitutional because the new statute of limitations does not retroactively affect any substantive rights; (4) the special facts exception did not apply; (5) petitioner was entitled to a writ of mandamus requiring payment of the pre-2006 expenses (because of the grace period):

Social Services Law § 368-a and the 2012 amendment can be read together and “interpreted to achieve legislative objectives that are not inherently inconsistent with each other” … . This Court has already held that, under Social Services Law § 368-a (1) (h), petitioner’s right to reimbursement of overburden expenditures accrued when petitioner made payment to the state for those expenses for which no local share was owed, i.e., prior to January 1, 2006 … . The 2012 amendment did not specifically repeal any part of Social Services Law § 368-a or affect the counties’ inherent right to reimbursement. Rather, the amendment simply imposed a statute of limitations for the payment of claims for such reimbursement. A statute of limitations does not impair an underlying substantive right, but may deprive a litigant of any remedy … . In April 2012, the Legislature could have reasonably decided that, to promote finality of claims and effectuate accurate budgeting, reimbursements from more than six years earlier could be barred. Although petitioner contends that DOH was required by statute to reimburse all counties for overburden expenditures incurred prior to 2006, and that DOH did not comply with its statutory obligations, “[a] statute of limitations may apply even when conduct inconsistent with a statute or the state constitution is alleged” … . Matter of County of St. Lawrence v Shah, 2014 NY Slip Op 08278, 3rd Dept 11-26-14

 

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