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Question of Fact Whether Risk of Slipping on a Diving Board Was Increased by Worn Traction Strips

The Second Department determined Supreme Court should not have granted defendant’s motion for summary judgment in a slip and fall case.  Although the assumption of risk doctrine could apply to a slip and fall on a diving board, here the plaintiff alleged the traction strips on the board were unreasonably worn:

Under the doctrine of primary assumption of risk, “by engaging in a sport or recreational activity a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . One “obvious” risk inherent in the recreational activity of diving is the risk of being injured from slipping on the diving board’s surface and falling off the diving board … . In moving for summary judgment dismissing the complaint on the ground that this action was barred by the doctrine of primary assumption of risk, the defendant failed to establish, prima facie, that the allegedly dangerous condition, consisting of the depleted traction strips, did not unreasonably increase the abovementioned risk … . The defendant’s submissions, which included the transcripts of a General Municipal Law § 50-h hearing and the plaintiff’s deposition, demonstrated the existence of a triable issue of fact as to whether the allegedly dangerous condition unreasonably increased that risk … . Freeman v Village of Hempstead, 2014 NY Slip Op 06298, 2nd Dept 9-24-14

 

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Motion for Leave to File Late Notice of Claim Properly Denied—Injuries to Infant Plaintiff Consistent with Premature Birth

The First Department, over an extensive dissent, determined Supreme Court properly denied a motion for leave to file a late notice of claim in a medical malpractice action which alleged injuries to an infant born prematurely:

In this action for medical malpractice, in which the infant plaintiff seeks to recover for injuries he suffered after being born at 27 weeks’ gestation, the motion court considered the pertinent statutory factors and properly exercised its discretion in denying plaintiff’s motion (General Municipal Law § 50-e[5]). The infant plaintiff’s mother’s excuses that she was unfamiliar with the requirement that she file a notice of claim, and that she was unaware that her son’s injuries were caused by defendant Health and Hospital Corporation’s (HHC) malpractice, are not reasonable. Nor is her attorney’s assertion that he waited to make the motion until approximately three years and ten months after filing the untimely notice of claim because he needed to receive the medical records from HHC … .

Further, the medical records demonstrate that the infant plaintiff’s condition and prognosis are consistent with his premature birth and do not suggest any injury attributable to the hospital staff’s malpractice … . Moreover, plaintiff failed to demonstrate that the medical records put HHC on notice that the alleged malpractice would subsequently give rise to brain damage as a result of birth trauma and hypoxia or that he would subsequently develop other deficits, delays, and disorders … . Wally G v New York City Health & Hosps Corp, 2014 NY Slip Op 06241, 1st Dept 9-18-14

 

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Governmental Immunity Re: Plaintiff Does Not Insulate Governmental Defendants from Contribution Claim by Another Defendant to Whom the Governmental Defendants Owed a Duty of Care

The Second Department affirmed the dismissal of an action against the governmental defendants (the “appellants”) based upon governmental immunity.  The appellants had referred one Smith to another defendant, the North Amityville Community Economic Council (NACEC), as a potential employee.  The appellants had agreed not to refer anyone with a criminal record to NACEC.  Smith was a sex offender who was hired by NACEC.  Smith sexually assaulted the plaintiff at the NACEC facility.  After explaining the relevant immunity criteria in depth, the Second Department determined Supreme Court properly dismissed the action against the appellants.  The Second Department also determined Supreme Court properly refused to dismiss the cross-claims against the appellants by NACEC, noting that governmental immunity did not protect the appellants from a contribution claim by a defendant to whom the appellants owed a duty of care:

Here, the appellants established, prima facie, their entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them on the ground of governmental immunity by demonstrating that they did not voluntarily assume a special duty to the plaintiff … . Furthermore, the plaintiff does not allege that the appellants violated any statutory duty, and the appellants established that they did not assume positive direction and control in the face of a known, blatant, and dangerous safety violation … .

“[A] defendant may seek contribution from a third party even if the injured plaintiff has no direct right of recovery against that party, either because of a procedural bar or because of a substantive legal rule. A contribution claim can be made even when the contributor has no duty to the injured plaintiff. In such situations, a claim of contribution may be asserted if there has been a breach of a duty that runs from the contributor to the defendant who has been held liable” … . Here, the appellants agreed not to refer anyone to NACEC who had a criminal background. Nonetheless, Smith, who was a level three sex offender, was referred to NACEC by the appellants. Under these circumstances, there is a triable issue of fact as to whether the appellants breached a duty of care to NACEC … . Tara NP v Western Suffolk Bd of Coop Educ Servs, 2014 NY Slip Op 06189, 2nd Dept 9-17-14

 

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Law Explained Re: Suit Against Municipality and Police Officers Alleging Excessive Force

The Second Department explained the law relevant to a suit against police officers, including “John Does,” and a municipality alleging the excessive use of force.  A “1983” action against a municipality cannot be based solely on the actions of an employee or on the basis of respondeat superior, but an intentional tort action can.  “John Does” must be identified and served within the applicable statute of limitations:

“Claims that law enforcement personnel used excessive force in the course of an arrest are analyzed under the Fourth Amendment and its standard of objective reasonableness” … . “The reasonableness of an officer’s use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight'” … . Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide … . If found to be objectively reasonable, the officer’s actions are privileged under the doctrine of qualified immunity … . “To recover damages for battery, a plaintiff must prove that there was bodily contact, that the contact was offensive, i.e., wrongful under all of the circumstances, and intent to make the contact without the plaintiff’s consent” … . * * *

“A municipality is not liable under 42 USC § 1983 for an injury inflicted solely by its employees or agents” …, or “solely upon the doctrine of respondeat superior or vicarious liability” … . * * *

Unlike cases commenced under 42 USC § 1983, municipalities may be liable, under the doctrine of respondeat superior, for the common law torts, such as false arrest, malicious prosecution, assault, and battery, committed by their employees … . * * *

The Town defendants demonstrated that the complaint should be dismissed insofar as asserted against the John Does by showing that the plaintiffs failed to identify the John Does and serve them with process prior to the expiration of the statutes of limitations applicable to this case. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether they exercised due diligence in attempting to identify and serve the John Does such that the applicable limitations periods had tolled or were otherwise inapplicable … . Lepore v Town of Greenburgh, 2014 NY Slip Op 06063, 2nd Dept 9-10-14

 

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General Permit for Municipal Storm Water Discharge Does Not Violate Federal or State Law

The Second Department reversed Supreme Court’s determination that a general permit issued by the NYS  Department of Environmental Conservation (DEC) to municipalities for storm water discharge violated federal and state law.  One of the principle objections to the general permit was that it did not ensure municipalities would set appropriate limits on storm water pollutants.  The decision is very detailed and cannot be briefly summarized here:

The petition organized the alleged violations of state and federal law into four general groups, asserting that:

(1) the General Permit failed to ensure that small municipalities reduced their pollutant discharges to the maximum extent practicable, in violation of 33 USC § 1342(p)(3)(B)(iii) and ECL 17-0808(3)(c);

(2) the General Permit failed to ensure that small municipalities complied with state water quality standards, in violation of ECL 17-0811(5) and ECL 17-0813;

(3) the General Permit failed to ensure that small municipalities monitored their storm water discharges, in violation of 33 USC § 1318(a) and ECL 17-0815(8); and

(4) the General Permit did not provide for public participation in the permit process, in violation of 33 USC §§ 1251(e), 1342(a)(1), and 1342(j), and ECL 17-0805(1)(a)(ix). * * *

The General Permit at issue on this appeal is consistent with the scheme for general permits envisioned by the EPA, and is designed to meet the maximum extent practicable standard prescribed by 33 USC § 1342(p)(3)(B)(iii) and ECL 17-0808(3)(c). The General Permit requires entities seeking coverage to “develop, implement and enforce” a stormwater management plan designed to address pollutants of concern and “reduce the discharge of pollutants from the small MS4” to the maximum extent practicable, so as “to protect water quality, and to satisfy the appropriate water quality requirements of the ECL and the Clean Water Act” (see General Permit at 14, 95). A stormwater management plan must, inter alia, identify and describe the chosen best management practices and include measurable goals for each such practice (see General Permit at 95). The General Permit provides applicants with resources, including examples of successful stormwater management plans, a “menu” of best management practices, and suggested measurable goals (see General Permit at 95).  Matter of Natural Resources Defense Council Inc New York State Dept of Envtl Conservation, 2014 NY Slip Op 06090, 2nd Dept 9-10-14

 

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City’s Operation of a Parking Garage is a Proprietary Not Governmental Function—City Can Be Sued For Failing to Provide Adequate Safety to Patrons

The Second Department determined a wrongful death action against the city alleging failure to provide adequate safety measures in a parking garage (owned and operated by the city) could go forward.  The court determined the operation of the garage was a proprietary function and the city could therefore be sued:

The security deficiencies alleged by the plaintiffs do not involve governmental functions or arise out of a pure “exercise of discretion . . . with respect to [overall] security measures and the deployment of limited police resources” … . The instant matter does not involve allegations of, for example, the lack of patrol cars or officers on foot patrolling the garage and the lack of general police protection …, “mobilization of police resources for the exhaustive study of the risk of terrorist attack, the policy-based planning of effective counterterrorist strategy, and the consequent allocation of such resources” …, participation by a teacher in supervising a playground as part of a school district’s overall security system strategy …, or a policy decision with respect to how the issue of homelessness should be addressed … . Rather, the gravaman of the complaint is not that the City failed to properly allocate government resources and services to the public at large, which was utilizing the garage, but that it failed in its capacity as a commercial owner of a public parking garage to meet the basic proprietary obligation of providing minimal security for its garage property via lighting, alarms, cameras, and warning signs. These measures are within the normal range of security measures necessary to satisfy the duty of care owed by any landlord or commercial property owner to its tenants or invitees. In the “continuum of responsibility to individuals and society deriving from its governmental and proprietary functions,” the lapses complained of encompass a failure to maintain the reasonable security measures expected of any landlord … .

Since the City acted in its proprietary, rather than its governmental, capacity here, we must consider the issue of whether or not the attack upon the decedent was foreseeable in light of a landlord’s duty to take minimal precautions to protect its tenants and invitees from foreseeable harm … . Here, the Supreme Court correctly determined that triable issues of fact existed as to the foreseeability of an attack upon the decedent, thus precluding the award of summary judgment to the City … . Granata v City of White Plains, 2014 NY Slip Op 06053, 2nd Dept 9-10-14

 

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County’s Failure to Demonstrate Proper Maintenance of Sewer System Precluded Summary Judgment

The Second Department determined the county was not entitled to summary judgment dismissing a complaint based upon negligent maintenance of a sewer system:

A municipality is immune from liability “arising out of claims that it negligently designed [a] sewerage system” … . However, a municipality “is not entitled to governmental immunity arising out of claims that it negligently maintained the sewerage system as these claims challenge conduct which is ministerial in nature” … . In order for a municipality to demonstrate its prima facie entitlement to judgment as a matter of law in sewer backup cases, the municipality must show that it had no ” notice of a dangerous condition,'” and that “it regularly inspected and maintained the subject sewer line” … .

Here, although there is nothing in the record to show that the defendant County of Suffolk had prior notice of a dangerous condition in the subject sewer system, the County’s proof regarding its regular inspection and maintenance of the sewer system was deficient. Gugel v County of Suffolk, 2014 NY Slip Op 06054, 2nd Dept 9-10-14

 

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County Could Seek Judicial Intervention Re: the Collection of a County Hotel Tax Without Exhausting Administrative Remedies—Constitutional Underpinning of Local Tax Laws Explained

The Second Department, in determining the plaintiff county was not required to exhaust its administrative remedies (and then commence an Article 78 proceeding) in order to seek judicial review of whether the defendant has been paying the correct amount of a county hotel and motel accommodation tax, explained the underpinning of local tax law in New York:

The appellants contend that the branch of their motion which was pursuant to CPLR 3211(a)(2) to dismiss the first cause of action seeking enforcement of the Hotel Tax against them for lack of subject matter jurisdiction should have been granted because, inter alia, the Enabling Act required the plaintiff to exhaust certain administrative remedies before judicial intervention could be obtained, and that the plaintiff failed to do so.

In New York, local governments do not have an independent power to tax. The New York Constitution vests the taxing power in the State Legislature and authorizes the Legislature to delegate that power to local governments (see NY Const, art. XVI, § 1…). The New York Constitution places fundamental limitations on such delegations. The Legislature must describe with specificity the taxes authorized by any enabling statute (see NY Const, art XVI, § 1…). In turn, local governments can only levy and collect taxes within the expressed limitations of specific enabling legislation (see NY Const, art IX, § 2[c][8]…).

As a general rule, tax statutes should be strictly construed and limited to their terms, which should not be extended by implication … . Any ambiguity in a tax law should be resolved in favor of the taxpayer and against the taxing authority … .

Applying these principles here, contrary to the appellants’ contention, the plaintiff was not required to exhaust administrative remedies before commencing this action, and judicial review is not limited to a proceeding pursuant to CPLR article 78 … . County of Nassau v Expedia Inc, 2014 NY Slip Op 06049, 2nd Dept 9-1014

 

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One Year Statute of Limitations in Labor Law 740 Trumps the One-Year-Ninety-Days Statute of Limitations in General Municipal Law 50-e(5) (Incorporated Into the Health & Hospitals Corporation Act)

The First Department, over a dissent, determined plaintiff’s action was time-barred pursuant to Labor Law 740 and was not covered by Labor Law 741. Plaintiff sued the NYC Health & Hospitals Corp (HHC) after she was terminated.  She alleged her termination was in retaliation for her objecting to the documentation submitted concerning human-subject research programs.  Plaintiff’s job entailed reviewing the documentation and did not involve caring for patients:

We turn first to the claim under Labor Law § 740. That cause of action is time-barred under the terms of the statute itself because …HHC terminated petitioner’s employment on April 6, 2009, and petitioner filed her petition for leave to file a late notice of claim on July 2, 2010, after the expiration of the one-year statute of limitations incorporated into the statute (see Labor Law § 740[4][a]). General Municipal Law § 50-e(5), made applicable to HHC by HHC Act § 20(2), permits a court to entertain a motion for leave to serve a late notice of claim only within the applicable limitations period, not, as here, after the limitations period has expired. Contrary to Supreme Court’s view, the one-year statute of limitations that is part of section 740 takes precedence over the one-year and 90-day limitations period set forth in the HHC Act … .

Although not time-barred, the claim under Labor Law § 741 is also without merit as a matter of law. Section 741 affords to a health care “employee,” as defined in the statute, a cause of action against the employer for “retaliatory action” (§ 741[2]) taken “because the employee does any of the following:

“(a) discloses or threatens to disclose to a supervisor, or to a public body an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care; or

“(b) objects to, or refuses to participate in any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care.”

Section 741 defines the term “employee,” as used in that statute, as “any person who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration” (§ 741[1][a] [emphasis added]). The Court of Appeals, describing this definition as “exactingly specific” … . Matter of Moynihan v New York City Health & Hosps Corp, 2014 NY Slip Op 06038, 1st Dept 9-4-14

 

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Police Officer’s Tripping Over a Fire Hose at the Scene of a Fire Was Not a “Service-Related Accident”

The First Department, over a dissent, determined that a police officer who tripped over a fire hose at the scene of a fire was entitled to ordinary (ODR) , as opposed to accidental (ADR), disability retirement benefits:

Not every line of duty injury will result in an award of ADR … . When the denial of ADR benefits to a police officer is the result of a tie vote by the Board of Trustees, this Court is required to uphold the denial unless “it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident” … . Thus, the issue before us is whether, reviewing the record, it can be said, as a matter of law, that petitioner’s disability was the natural and proximate result of a service-related accident.

In the context of ADR benefits, the Court of Appeals has defined an accident as a ” sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact,'” while ” an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury'” … . It is petitioner’s burden to establish that his injuries resulted from an accident as defined in the context of ADR … .

Normal risks in most jobs are not unexpected * * *.

While it is true that petitioner was a police officer, not a firefighter, it cannot be said as a matter of law that his ordinary employment duties did not include responding to a fire emergency. As the Board of Trustees had before it some credible evidence of lack of causation, it did not err as a matter of law in concluding that petitioner’s disability was not the result of an accident within the meaning of Administrative Code § 13-252 … . Finally, contrary to the dissent, we do not regard the charging of fire hoses at the scene of a fire as a sudden, fortuitous, or unexpected event. Matter of Pastalove v Kelly, 2014 NY Slip Op 05922, 1st Dept 8-21-14

 

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