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Class Action Mechanism Is Available Where the Relevant Statute Imposes a Non-Mandatory Penalty and the Penalty Is Waived by the Class

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined that class action suits brought by tenants pursuant to CPLR 901 (b) were properly allowed to go forward.  The suits alleged the tenants, who were in rent-stabilized apartments, were overcharged when the landlords decontrolled the apartments despite their receipt of tax benefits under the J-51 program.  The Court of Appeals, in 2009, determined that the receipt of J-51 tax benefits precluded the landlords from decontrolling the apartments.  The central issue was the availability of the class action mechanism, which is generally not available where the suit seeks the imposition of a penalty.  Here the treble damages (penalty) provision of the Rent Stabilization Law (RSL 26-516) was waived by the plaintiffs. The waiver was deemed valid, clearing the way for the class actions:

CPLR 901 (b) prohibits any claim for penalties to be brought as a class action. It states, “[u]nless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action” (CPLR 901 [b]). The language of CPLR 901 (b) itself says it is not dispositive that a statute imposes a penalty so long as the action brought pursuant to that statute does not seek to recover the penalty. * * *

From a policy standpoint, permitting plaintiffs to bring these claims as a class accomplishes the purpose of CPLR 901 (b). Preemptively responding to the argument raised by defendants here, the State Consumer Protection Board emphasized the importance of class actions: “The class action device responds to the problem of inadequate information as well as to the need for economies of scale” for “. . . a person contemplating illegal action will not be able to rely on the fact that most people will be unaware of their rights — if even one typical person files a class action, the suit will go forward and the other members of the class will be notified of the action either during the proceedings or after a judgment is rendered in their favor” (Mem of State Consumer Protection Bd, Bill Jacket, L 1975, ch 207).

Where a statute imposes a non-mandatory penalty, plaintiffs may waive the penalty in order to bring the claim as a class action … . Borden 400 E 55th St Assoc LP, 2014 NY Slip Op 08211, CtApp 11-24-14

 

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Question of Fact Whether City Had a Special Relationship with Plaintiff Such that the City Owed a Duty to the Plaintiff Over and Above the Duty Owed to the Public at Large

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a partial dissent, determined that there was a question of fact whether the city had a special relationship with the plaintiff, such that the city had a duty to protect the plaintiff from her abusive husband. After police officers assured plaintiff her husband (Coleson), who had been arrested, was going to jail, she was attacked and stabbed by him.  Plaintiff’s seven-year-old son was with her when she was attacked but did not witness the stabbing because he had been placed in a closet for protection by a bystander.  Because plaintiff’s son did not see the stabbing, the court concluded he was not in the “zone of danger” when his mother was stabbed:

Liability for a claim that a municipality negligently exercised a governmental function “turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public” … . “[A] duty to exercise reasonable care toward [a] plaintiff” is “born of a special relationship between the plaintiff and the governmental entity” … . This Court has determined that a special relationship can be formed in three ways:

“(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction in the face of a known blatant and dangerous safety violation”… .

In Cuffy v City of New York (69 NY2d 255), we listed the requisite elements for a duty voluntarily assumed:

“(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking (id. at 260). We noted that “the injured party’s reliance is . . . critical” (id. at 261).

Applying the Cuffy factors here, we conclude that plaintiffs raised a triable issue of fact as to whether a special relationship existed. With regard to the first factor, a jury could conclude that the police officers made promises to protect plaintiff. Plaintiff was notified by the police that Coleson was arrested, that he was in front of a judge to be sentenced, would be in jail for a while, and that the police would be in contact with her. As to the second factor, the police officers conceivably knew that Coleson would harm plaintiff if he was not apprehended, as evidenced by his arrest and the issuance of an order of protection to plaintiff. Given that plaintiff was told by Officer Reyes that everything was in process and she would keep in contact, there is an issue of fact as to whether the police knew that their inaction could lead to harm. The third factor is easily met, as plaintiff had direct contact with the police, by the police responding to her call about Coleson’s threats, making an arrest, escorting her to the police precinct, and plaintiff’s phone call with Officer Reyes. Finally, regarding a party’s justifiable reliance on the municipality’s affirmative undertaking, given the assurances that plaintiff received from Officer Reyes that Coleson was in jail and that he would be there for a while, a jury could find that it was reasonable for plaintiff to believe that Coleson would be jailed for the foreseeable future, and that the police would contact her if that turned out not to be the case. Coleson v City of New York, 2014 NY Slip Op 08213, CtApp 11-24-14

 

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New Notice of Claim Did Not Need to Be Filed After Plaintiff’s Decedent’s Death Due to Injuries Described in the Pre-Death Notice of Claim

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that plaintiffs, in an asbestos-exposure action against the Port Authority, did not need to file a new notice of claim after plaintiff’s decedent’s death from injuries described in the notice of claim filed when plaintiff’s decedent was alive.  After plaintiff’s decedent’s death, the original notice of claim was amended to add the administratrix and reference to the wrongful death claim:

A statute requires anyone who brings a lawsuit against the Port Authority of New York and New Jersey first to serve a notice stating the nature of the claim. We hold that under this statute a notice of a claim for personal injuries is a sufficient notice of a claim for wrongful death, where the person injured dies of his injuries between the service of the notice of claim and the beginning of the lawsuit.

The Port Authority was created in 1921 by a bi-state compact between New York and New Jersey. As an agency of two sovereign states, it cannot be sued without a waiver of sovereign immunity. Such a waiver was enacted by both states’ legislatures in 1950. The New York version of the legislation is found in sections 7101 through 7112 of the Unconsolidated Laws.

The contents of a notice of claim are specified in section 7108:

“The notice of claim required by section [7107] shall be in writing, sworn to by or on behalf of the claimant or claimants, and shall set forth (1) the name and post office address of each claimant and of his attorney, if any, (2) the nature of the claim, (3) the time when, the place where and the manner in which the claim arose, and (4) the items of damage or injuries claimed to have been sustained so far as then practicable.”

Here, the relevant statutory requirements are that a notice must specify the claimant, the time and place where the claim arose, the nature of the claim, and “so far as then practicable” the items of damage or injuries sustained (see Unconsolidated Laws § 7108 …). Those requirements were sufficiently met by the explanation in [plaintiff’s] notice of claim that he had contracted malignant mesothelioma as a result of his exposure to asbestos on the World Trade Center site in the early 1970s, and suffered physical and emotional injuries and incurred medical expenses as a result. This information was definite enough to fulfill the purpose of the notice of claim requirement: to allow the State to investigate the claim and to estimate its potential liability. It is hard to see how a later notice adding the information that the claimant had died of his disease could have been necessary to an investigation. Matter of New York City Asbestos Litig, 2014 NY Slip Op 08053, CtApp 11-20-14

 

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Plaintiff Failed to Raise a Question of Fact Concerning Whether the Driver of a Police Vehicle Exhibited “Reckless Disregard” for the Safety of Others In Responding to an Urgent Call—Defendant Police Officer Was Driving Against Traffic on a One-Way Street When the Collision Occurred

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined that plaintiff did not raise a question of fact concerning whether defendant police officer exhibited reckless disregard for the safety of others when the officer responded to an urgent call by driving against traffic on a one-way street.  While on the one-way street the officer collided with another police vehicle driven by the plaintiff (another police officer) who was responding to the same call.  The court noted that the defendant had activated his emergency lights and was travelling at 15 to 20 miles an hour when the collision occurred:

Vehicle and Traffic Law § 1104 grants the driver of an authorized emergency vehicle special driving privileges when involved in an emergency operation. Those privileges include passing through red lights and stop signs, exceeding the speed limit and disregarding regulations governing the direction of movement or turning in specified directions (see Vehicle and Traffic Law § 1104 [a], [b]). But drivers of emergency vehicles are not relieved of their duty to drive “with due regard for the safety of all persons” and section 1104 does not “protect the driver from the consequences of his reckless disregard for the safety of others” (Vehicle and Traffic Law § 1104 [e]).

This “reckless disregard” standard demands “more than a showing of a lack of ‘due care under the circumstances’—–the showing typically associated with ordinary negligence claims” … . Rather, for liability to be predicated upon a violation of Vehicle and Traffic Law § 1104, there must be evidence that “‘the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” (id., quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]). This heightened standard is grounded in the Legislature’s recognition that, although the exercise of the privileges granted in section 1104 may increase the risks to pedestrians and other drivers, emergency personnel “should be afforded a qualified privilege to disregard [certain traffic] laws where necessary to carry out their important responsibilities” … . This approach avoids “judicial ‘second-guessing’ of the many split-second decisions that are made in the field under highly pressured conditions” and mitigates the risk that possible liability could “deter emergency personnel from acting decisively and taking calculated risks in order to save life or property or to apprehend miscreants” … . Frezzell v City of New York, 2014 NY slip Op 08055, CtApp 11-20-14

 

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Measure of Damages for Taken Land Explained

In affirming Supreme Court’s acceptance of claimant’s appraisal of the land taken for public use, the Second Department explained the analytical criteria:

When private property is taken for public use, the condemning authority must “compensate the owner so that [the owner] may be put in the same relative position, insofar as this is possible, as if the taking had not occurred'” … . “The measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time” … . A property’s market value is defined as ” the amount which one desiring but not compelled to purchase will pay under ordinary conditions to a seller who desires but is not compelled to sell'” … . Moreover, “[i]t is necessary to show that there is a reasonable possibility that the property’s highest and best asserted use could or would have been made within the reasonably near future, and a use which is no more than a speculative or hypothetical arrangement may not be accepted as the basis for an award” …  Matter of Metropolitan Transp Auth, 2014 NY Slip Op 08027, 2nd Dept 11-19-14

 

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The Existence of Probable Cause Required Dismissal of Causes of Action for False Arrest, False Imprisonment, Malicious Prosecution and Violation of Civil Rights (42 USC 1983)

The Second Department, reversing Supreme Court, determined the existence of probable cause was a complete defense to the causes of action alleging false arrest, false imprisonment, malicious prosecution and violation of civil rights (42 USC 1983):

The existence of probable cause constitutes a complete defense to causes of action alleging false arrest, false imprisonment, and malicious prosecution …, including causes of action asserted pursuant to 42 USC § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law that are the federal-law equivalents of state common-law false arrest and malicious prosecution causes of action … . Generally, probable cause is established where an identified crime victim “communicates to the arresting officer information affording a credible ground for believing the offense was committed and identifies the accused as the perpetrator” … .

The appellants demonstrated their prima facie entitlement to judgment as a matter of law by establishing the existence of probable cause for the plaintiff’s arrest. Paulos v City of New York, 2014 NY Slip Op 07994, 2nd Dept 11-19=-14

 

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25 Minute Response Time by Fire Department Was Not Actionable—No Special Relationship Between Plaintiffs and Fire Department—Fire Department’s Duty Is to the Public At Large

In reversing Supreme Court, the Second Department determined a complaint against a fire department alleging a “delinquent” (25 minute) response to a 911 call should have been dismissed.  The fire department’s duty is to the public at large and there was no special relationship between the plaintiffs and the fire department:

Generally, a municipality may not be held liable for the failure to provide fire protection because the duty to provide such protection is owed to the public at large, rather than to any particular individual … . An exception to this rule exists where there is a special relationship between the municipality and the injured parties … . “The elements of this special relationship’ are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … .

Contrary to the Supreme Court’s conclusion, there was no question of fact as to whether there was “direct contact” between the defendant and the plaintiffs. * * *

Moreover, there was no question of fact as to whether the plaintiffs justifiably relied upon any affirmative undertaking by the defendant. In this respect, the plaintiffs failed to raise a triable issue of fact as to whether the defendant’s conduct “lulled [them] into a false sense of security, induced [them] either to relax [their] own vigilance or forgo other avenues of protection, and thereby placed [them] in a worse position than [they] would have been had the [defendant] never assumed the duty” … . Kirchberger v Senisi, 2014 NY Slip Op 07986, 2nd Dept 11-19-14

 

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Pursuant to the NYC Administrative Code, Abutting Property Owners Are Not Responsible for the Maintenance of Tree Wells Within the Sidewalk

The Second Department noted that the abutting property owner’s responsibility for the safety of the sidewalk (under the New York City Administrative Code) does not extend to tree wells within the sidewalk:

“Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land” … . “Administrative Code of the City of New York § 7-210, which became effective on September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner; however, a tree well is not part of the sidewalk’ for purposes of that section of Administrative Code of the City of New York”… . Avezbakiyev v Champion Commons LLC, 2014 NY Slip Op 07966, 2nd Dept 11-19-14

 

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Infant’s Injury Not Apparent for Several Months—Application to File Late Notice of Claim Properly Granted

The First Department affirmed Supreme Court’s grant of an application to file a late notice of claim.  The injury did not become apparent until several months after the infant plaintiff was born, and all the other criteria for allowing a late notice of claim were met:

…[T]he mother’s assertion that she waited to file a notice of claim because she did not know until several months after the child was born that he was injured is a reasonable excuse for the delay in moving to file a late notice of claim … . Moreover, respondent’s experts have not disputed the assertion made by claimant’s experts that periventricular leukomalacia (PVL), the injury alleged here, does not generally manifest itself until the infant fails to meet his developmental milestones, which in this case was approximately six months after the injury was inflicted, and that a layperson, such as the child’s mother, would be unable to tell that he was injured … .

Claimant has demonstrated that respondent acquired actual knowledge of the facts surrounding the instant claim within 90 days or a reasonable time thereafter, because the expert affidavits of Dr. Richman and Dr. Singh establish that the records, on their face, evinced respondent’s failure to provide the mother with proper labor and delivery care … . * * *

Respondent will not be unduly prejudiced by being compelled to defend this case, because it had actual notice of the underlying facts of the infant plaintiff’s claim within a reasonable time after his birth, and the hospital has been in possession of the records since the alleged malpractice. Matter of Kellel B v New York City Health & Hosps Corp, 2014 NY Slip Op 07963, 1st Dept 11-18-14

 

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School Not Liable for Injury to Student Crossing Street to Enter School–Student Was Not In the Custody or Control of the School When He Was Injured

The Fourth Department determined that plaintiff’s son was not yet in the custody or control of the school when he was injured. Summary judgment dismissing the complaint was therefore required.  Plaintiff had dropped her son off across the street from the school, and told him to stay there while she directed cars to a parking area for an upcoming lacrosse game (in which plaintiff’s son was to participate). A teammate told the plaintiff’s son to go to the school to check in with the coach.  He was injured crossing the street:

…[I]t is well settled that “[t]he duty of a school district to its students is strictly limited by time and space and exists only so long as a student is in its care and custody” … . We reject plaintiff’s contention that defendants owed plaintiff’s son a duty of care under the circumstances here. When plaintiff dropped off her son and told him to “stay there,” she made a parental decision to keep her son across the street because she was concerned about him “crossing over” given that there was “lots of traffic” in the intersection where the accident occurred. Thus, plaintiff had not relinquished control of her son, and defendants had not yet gained the physical custody or control of him that is a prerequisite to imposing a legal duty on them … . The fact that plaintiff’s son disobeyed plaintiff’s directive and crossed the street does not change that legal result.

We reject plaintiff’s further contention that defendants owed plaintiff’s son a duty because the defendants placed plaintiff’s son in a “for[e]seeably dangerous setting that the [defendants] had a hand in creating.” Because the child was never in the physical custody or control of the defendants, however, the defendants were “never in a position to . . . release [plaintiff’s son] into a hazardous setting … . Ritchie v Churchville-Chili Cent School Dist, 2014 NY Slip Op 07792, 4th Dept 11-14-14

 

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