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Town Board Is Not a Necessary Party In an Action Against the Town—Acts of the Town Board Under Statutory Authority Are the Acts of the Town—Court’s Power to Join a Necessary Party Sua Sponte Noted (Not Properly Exercised Here)

The Second Department explained that, in a declaratory judgment action against a town challenging a local law, the town board is not a necessary party:

A “court may at any stage of a case and on its own motion determine whether there is a nonjoinder of necessary parties” … . “In a matter seeking a declaratory judgment challenging a legislative act, the legislative body that enacted the challenged law or ordinance is a necessary party” … .

In this declaratory judgment action against the Town of Huntington, challenging a Local Law enacted by the Town Board of the Town of Huntington (hereinafter the Town Board), the Supreme Court, sua sponte, directed the joinder of the Town Board as a defendant on the ground that it is a necessary party without which the action cannot proceed. However, a town board “shall be vested with all the powers of such a town” (Town Law § 60[1]) and “cannot and does not exist separately and independently from the town of which it is the governing body . . . [T]he acts of a town board when performed under statutory authority are the acts of the town” … . Accordingly, as the Town is a party defendant in this action, it was unnecessary for the court to have directed the joinder of the Town Board as a defendant … . Dish Realty LLC v Town of Huntington, 2014 NY Slip Op 07616, 2nd Dept 11-12-14

 

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Work Performed by Plaintiff Was Not “Home Improvement”—No License Required

The Second Department affirmed Supreme Court’s finding that the installation of motorized window shades did not constitute “home improvement” and therefore plaintiff was not required to be licensed to perform the work.  If a license had been required by the Administrative Code of the City of New York, plaintiff would not have been able to recover under contract or quantum meruit:

“Where a home improvement contractor is not properly licensed in the municipality where the work is performed at the time the work is performed, the contractor forfeits the right to recover for the work performed both under the contract and on a quantum meruit basis” … . Here, contrary to the defendants’ contention, the Supreme Court properly determined that the plaintiff’s installation of motorized window shades in their condominium did not constitute “home improvement” work within the meaning of Administrative Code of the City of New York § 20-386(2)…). Rather, the plaintiff’s installation of motorized window shades constituted decorative work, which was not “incidental or related to” the separate home improvement renovations being performed by other contractors at the defendant’s condominium (Administrative Code of City of NY § 20-386[2]…). Schimko v Haley, 2014 NY Slip Op 07644, 2nd Dept 11-12-14

 

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Provision of County Charter Requiring a Referendum to Amend the Drinking Water Protection Program Is Valid and Enforceable—Amendment Enacted Without the Referendum Is Null and Void—Both Individual and Organizational Plaintiffs Had Standing to Contest the Amendment

The Second Department reversed Supreme Court findng that: (1) the plaintiffs had standing to contest the amendment of the Suffolk County Drinking Water Protection Program (DWPP) on the ground that the referendum required by the county charter was not held; and (2) the resolution enacted in the absence of a referendum was null and void.  The court noted the fact that the pleadings were not included in plaintiffs’ motion for summary judgment, the reason Supreme Court denied the motion, was not fatal to the motion:

The Supreme Court erred in granting that branch of the defendants’ cross motion which was for summary judgment dismissing the complaint on the ground that the plaintiffs lacked standing. An action commenced by natural persons pursuant to General Municipal Law § 51 “may take the form of [an] action for a declaratory judgment” … . To have standing based upon their status as taxpayers, the individual plaintiffs were required to allege that the challenged act constituted a waste of or injury to public funds or, alternatively, that the challenged act was both illegal and “imperil[ed] the public interests or [was] calculated to work public injury or produce some public mischief” … . Here, the plaintiffs alleged, in detail, that the defendants violated the Suffolk County Charter by enacting the Amendment in the absence of approval pursuant to a public referendum, and that this enactment threatened public funds expressly dedicated to protecting the drinking water supply in the County and lands in the Pine Barrens. Under the circumstances presented here, we conclude that the plaintiffs adequately alleged that the enactment of the challenged amendment without a public referendum is illegal insofar as it violates the Suffolk County Charter, and that this enactment imperiled the public interest or was calculated to work public injury or produce some public mischief… . …

Although the Supreme Court denied the plaintiffs’ motion for summary judgment on the ground that they failed to submit a copy of the pleadings with their motion papers, we nonetheless exercise our discretion to reach the merits. Notwithstanding that CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, CPLR 2001 permits a court, at any stage of an action, to “disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced” … . * * *

[The] provisions of the New York Constitution and the Municipal Home Rule Law do not prevent Suffolk County from adopting a charter provision like the one at issue here, which requires approval by a public referendum in order to amend or repeal the DWPP in the future (see Municipal Home Rule Law § 11[2][a]; § 34[4]…). Although the relevant charter provision requires a public referendum that is denominated as a “mandatory” referendum, that public referendum is not mandated by State law (cf. Municipal Home Rule Law § 23). Rather, the relevant charter provision constitutes the County’s mode of granting permission to the electorate to approve or disapprove, by means of a public referendum, proposed changes to the DWPP. Hence, the public referendum countenanced by the Suffolk County Charter can properly be characterized as a “permissive” referendum within the meaning of the New York Constitution and the Municipal Home Rule Law … . Long Is Pine Barrens Socy Inc v County of Suffolk, 2014 NY Slip Op 07633, 2nd Dept 11-12-14

 

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Plaintiff Entitled to Damages from the City—Plaintiff Had a “Special Relationship” with the City and Was Injured When a City Employee, Performing Ministerial Functions, Directed Plaintiff to Perform a Dangerous Task—“Special Relationship,” Which Gave Rise to a Duty Owed by the City to the Plaintiff, Defined

The Second Department affirmed Supreme Court’s denial of a motion by defendant-city to set aside the verdict.  The city had been held responsible for plaintiff’s injury based upon the jury’s findings that there was a “special relationship” between the city and the plaintiff and the city-employee was performing ministerial, not discretionary, acts when he directed the plaintiff’s work.  Plaintiff was injured when the city’s plumbing inspector directed plaintiff to perform a dangerous air pressure test:

The Court of Appeals has recognized three situations in which a duty may arise by way of a special relationship: “(1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition” … . Of the three ways that a duty may arise out of a special relationship, only the third is at issue on this appeal—whether the appellants took positive control of a known and dangerous safety condition. Contrary to the appellants’ contention, the jury’s determination that the City and its inspector took positive control of a known and dangerous safety condition which gave rise to the plaintiff’s injuries was supported by a fair interpretation of the evidence and, thus, was not contrary to the weight of the evidence … . Delanoy v City of White Plains, 2914 NY Slip Op 07615, 2nd Dept 11-12-14

 

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“Notwithstanding Clause” in Contract Insulated Town from Liability for Bond Payments Re: a Waste Disposal Facility

The Second Department determined Supreme Court properly resolved conflicting contract provisions by reference to General Municipal Law 109-b (2) which governs installment contracts entered into by municipalities.  The contract concerned the operation of a waste disposal facility which closed before the bonds used to fund it were paid off.  The insurance company sought payment from the town’s sanitary district. The court held that the clauses in the contract which insulated the district from liability for the payments (if the funds were not appropriated) were enforecable:

Consistent with the requirements of General Municipal Law § 109-b(2)(f), which applies to installment contracts entered into by municipalities, section 24 of the lease between the District and NCIDA states that:

“Notwithstanding any other provision of this Agreement, (i) this Agreement shall be deemed executory only to the extent of the moneys budgeted and appropriated and available for the purpose of this Agreement, and no liability on account thereof shall be incurred by the District beyond the amount of such moneys, and (ii) it is understood that neither this Agreement nor any representation by any public employee or officer creates any legal or moral obligation to request, budget, appropriate or make available moneys for the purpose of this Agreement.”

Such clauses are intended to be utilized as a shield against the imprudent use of taxpayers’ dollars, and not as a sword to divorce the State, for purposes of its own convenience, from a contract fairly entered into and honestly performed … . Nevertheless, “even though a municipality may possess sufficient funds to satisfy a particular obligation, such funds cannot be deemed available’ if the expenditure thereof would be improvident” … .

Here, although in its lease with the NCIDA the District promised to seek appropriations sufficient to make the lease payments, the lease also repeatedly stated that the District’s liability for payments was conditioned upon the appropriation of funds. Indeed, the District’s promise to seek appropriations was tempered by the provision stating that it was required to do so only “subject to the provisions of Section 24 hereof.” Since “trumping language such as a notwithstanding’ provision controls over any contrary language’ in a contract,” the Supreme Court properly relied upon this section as the basis for its determination … . Frankenmuth Mut Ins v Waste Mgt of NY LLC, 2014 NY Slip Op 07624, 2nd Dept 11-12-14

 

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City Was “United in Interest” with Non-Profit Corporation Which Maintained Central Park Pursuant to a Contract with the City—Therefore Plaintiff, Who Was Allegedly Injured by a Truck Owned by the Non-Profit Corporation, Could Amend His Complaint to Include the Non-Profit Corporation After the Statute of Limitations Had Run—However the Extent to Which the City Was “United in Interest” Was Dictated by the Terms of the Contract

The First Department determined that the Conservancy, a non-profit corporation which maintains Central Park under a contract with the City of New York, was “united in interest” with the City.  Therefore, plaintiff, who allegedly had been injured by a maintenance truck owned by the Conservancy, could amend his complaint to include the Conservancy, even though the statute of limitations had run.  The ‘unity of interest” was defined by the terms of the contract.  Because the contract did not call for the City to indemnify the Conservancy for gross negligence, the complaint against the Conservancy could not include the gross negligence claim:

… [P]laintiff relied on the 2006 Central Park Agreement, a contract between the City and the Conservancy, a nonprofit organization, in which they acknowledged that they had formed an effective “public/private partnership.” Under the Agreement, the Conservancy is required to provide specified maintenance services in Central Park to the “reasonable satisfaction” of the City, and the City is broadly required to indemnify the Conservancy “from and against any and all liabilities . . . arising from all services performed and activities conducted by [the Conservancy] pursuant to this agreement in Central Park.” The City’s indemnification obligation, among other things, expressly excludes claims arising from gross negligence or intentional acts of the Conservancy or its agents or volunteers. As a result of the Agreement, the Conservancy acts, in effect, as an independent contractor fulfilling the City’s nondelegable obligation to maintain the City parks in reasonably safe condition … .

The City is vicariously liable for the Conservancy’s negligence in the course of providing maintenance in Central Park by virtue of the contractual indemnification provision, and the parties are thus united in interest … . Further, since the City has a nondelegable duty to maintain Central Park, it is vicariously liable for negligence committed by the contractor in the course of fulfilling that duty … . However, the City is correct that its interests are not united with those of the Conservancy with respect to the proposed gross negligence claim, and leave to assert that claim against the Conservancy is therefore denied. Brunero v City of New York Dept of Parks & Recreation, 2014 NY Slip Op 07444, 1st Dept 10-30-14

 

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A Retired Police Officer’s Personnel Records, Including Records of Misconduct, Are Exempt from the Freedom of Information Law

The Third Department noted that records of personnel records of a police officer, including records of misconduct, are exempt from the Freedom of Information Law pursuant to the Civil Rights Law, and the exemption extends to retired police officers:

An agency may properly deny access to records that are specifically exempted from disclosure by state statute (see Public Officers Law § 87 [2] [a]). As is relevant here, Civil Rights Law § 50-a (1) provides that “[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department . . .[,] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order.” Personnel records include documents relating to misconduct or rule violations by police officers … . Thus, if a document relating to an officer’s public employment may be used “in litigation to harass, embarrass, degrade or impeach [that] officer’s integrity,” then it is protected by Civil Rights Law § 50-a … .

Inasmuch as this Court has expressly ruled that a police officer’s personnel records continue to be exempt from disclosure after he or she departs from public service, we disagree with petitioner’s contention that Supreme Court erred by concluding that Civil Rights Law § 50-a applies to the records of [the officer] as a retired police officer … . Whether an officer “is no longer employed by [an agency] has no bearing upon the question of whether the requested records were or were not used by [that agency] to evaluate his [or her] performance” … . Matter of Columbia-Greene Beauty School Inc v City of Albany, 2014 NY Slip Op 07233, 3rd Dept 10-23-14

 

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Request for Redacted Signatures on Sheriff’s Department Overtime Records Properly Granted—-Attorney’s Fees Properly Awarded

The Second Department determined the sheriff’s department did not sufficiently justify the redaction of signatures on the requested documents (overtime records) and the petitioners were entitled to attorney’s fees:

In a proceeding pursuant to CPLR article 78 challenging denial of a Freedom of Information Law (hereinafter FOIL) request, the agency denying access has the burden of demonstrating that the information requested falls within a statutory exemption, which exemptions are to be narrowly construed (see Public Officers Law § 89[5][e], [f]…). This showing requires the entity resisting disclosure to “articulate a particularized and specific justification for denying access'” … . “Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed” … . Because FOIL is “based on a presumption of access to the records” …, “FOIL compels disclosure, not concealment'” wherever the agency fails to demonstrate that a statutory exemption applies … . * * *

The agency claimed that redaction was proper pursuant to the “unwarranted invasion of personal privacy” statutory exemption (Public Officers Law § 87[2][b]) since disclosing the captains’ signatures “would result in economic or personal hardship to the subject party” and the signatures were “not relevant to the work of the agency” (Public Officers Law § 89[2][b][iv]). However, because the agency failed to proffer more than conclusory assertions supporting these claims, the Supreme Court correctly determined that the agency failed to meet its burden of demonstrating that the information requested fell within this statutory exemption (see Public Officers Law § 89[5][e], [f]…), and thus, properly directed disclosure of the records without these redactions.  Matter of Jaronczyk v Mangano, 2014 NY Slip Op 070164, 2nd Dept 10-22-14

 

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City Provided Adequate Supervision at Beach—Drowning Action Dismissed

The Second Department determined an action against the city stemming from the drowning of plaintiff’s decedent at a protected beach was properly dismissed.  The court explained the relevant law:

Although the City is not an insurer of the safety of the users of its parks, including its beaches, it has the duty to maintain them in a “reasonably safe condition” … . This duty includes the City’s exercise of ordinary care by providing an “adequate degree of general supervision” … . In support of its motion for summary judgment, the City established its prima facie entitlement to judgment as a matter of law by submitting evidence that it had furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent …, that they were adequately trained and properly certified …, and that they reacted to the situation in accordance with proper procedure … . Johnson v City of New York, 2014 NY Slip Op 07126, 2nd Dept 10-22-14

 

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City Estopped from Denying Property Owner the Opportunity to Seek Discretionary Relief Re: the Payment and Acceptance of Tax Arrears—City’s Actions Misled Property Owner

The Second Department determined the equitable estoppel doctrine could properly be applied to a municipality in this case. A city employee had allowed the petitioner (Emporium) to enter an installment agreement to pay back real property taxes at a time when the property had already been foreclosed and transferred.  The Second Department determined Emporium was entitled to a hearing to determine whether the city is equitably estopped from denying Emporium the opportunity to seek discretionary relief re: the payment and acceptance of tax arrears:

With respect to Emporium’s equitable estoppel claim, “[a]lthough estoppel should not be invoked against governmental entities in the absence of exceptional circumstances, we have not hesitated to do so where a municipality’s misleading nonfeasance would otherwise result in a manifest injustice” … . “To establish estoppel, the misconduct of the public agency must have induced justifiable reliance by a party who then changed his position to his detriment” … . * * *

The City respondents’ failure to contact Emporium once it determined that the installment agreements would not be honored constitutes misleading conduct … . Moreover, the City respondents maintained their silence during a period of time when action could have made a difference to Emporium … . Matter of Emporium Mgt Corp v City of New York, 2014 NY Slip Op 07157, 2nd Dept 10-22-14

 

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