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FORMER AND CURRENT SECTION 413 OF THE SOCIAL SERVICES LAW REQUIRES THE REPORTING OF ANY SUSPECTED INTENTIONAL INFLICTION OF SERIOUS PHYSICAL INJURY UPON A CHILD, WHICH INCLUDES SEXUAL ABUSE, EVEN WHEN THE PERSON SUSPECTED OF THE ABUSE IS NOT LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined former section 413 of Social Services Law, as the current section mandates, requires that all instances of suspected intentionally inflicted serious injury upon a child be reported, regardless of who is suspected of inflicting it. In other words, the suspected intentional infliction of serious injury upon a child must be reported, even if the person suspected of inflicting it is not a person legally responsible for the child. Despite this finding, the Fourth Department held that the cause of action based upon former section 413 should have been dismissed because the complaint does not allege the defendant town had received information that its employee, plaintiff’s youth baseball coach, was sexually assaulting plaintiff:

… [W]e conclude that Social Services Law former § 413 mandated, as the current version mandates, the reporting of every instance of suspected intentionally inflicted serious physical injury upon a child, regardless of who is suspected to have inflicted it, thereby triggering an investigation of the child’s parent or other legally responsible person—as a “subject of the report”—to determine whether, inter alia, that person inflicted or allowed the harm to be inflicted upon the child. “[T]he purpose of [the child protective services provisions under Social Services Law article 6, title 6, is] to encourage more complete reporting of suspected child abuse and maltreatment,” not less (Social Services Law § 411), and the former and current versions of sections 412 (2) (b) and 413 apply equally to children who have had a serious physical injury intentionally inflicted by, inter alia, a coach, a classroom teacher, a neighbor, another child or a distant relative who is not legally responsible for the child’s care.

From the dissent:

We write separately only to express our disagreement with the conclusion of the majority that … a mandated reporter is statutorily required to report any person who inflicted serious physical injury upon a child regardless of whether there is a parental or guardianship relationship, even where that same mandated reporter would not be required to report conduct constituting abuse. LG 70 Doe v Town of Amherst, 2024 NY Slip Op 02651, Fourth Deppt 5-10-24

Practice Point: Even where a person who is not legally responsible for the care of child is suspected of sexually abusing the child, the abuse must be reported pursuant to Social Services Law section 413.

 

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THE RULING OF THE TOWN PLANNING BOARD ENGINEER RE: A PROPOSED INDUSTRIAL PARK MUST BE CHALLENGED BEFORE THE TOWN ZONING BOARD OF APPEALS, NOT SUPREME COURT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petitioners’ challenge to a ruling by the town’s planning board engineer must first be brought in front of the town’s zoning board of appeals before a court can hear it:

“It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law” … . “This doctrine . . . reliev[es] the courts of the burden of deciding questions entrusted to an agency, prevent[s] premature judicial interference with the administrators’ efforts to develop[ ] . . . a co-ordinated, consistent and legally enforceable scheme of regulation,” and allows the agency “to prepare a record reflective of its expertise and judgment” … . “Planning boards are without power to interpret the local zoning law, as that power is vested exclusively in local code enforcement officials and the zoning board of appeals” … .

As required by Code of the Town of New Windsor § 300-86(D)(3), the Planning Board Engineer reported to the Planning Board that the proposed site plan met all applicable zoning laws. Since the Town’s Zoning Board of Appeals had the authority to review determinations of administrative officials with respect to local zoning laws … , the petitioners were required to challenge the determination of the Planning Board Engineer before the Zoning Board of Appeals … . Matter of O’Malley v Town of New Windsor Planning Bd., 2024 NY Slip Op 02537, Second Dept 5-8-24

Practice Point: Here the petitioners did not exhaust their administrative remedies before bringing a petition in Supreme Court. The town planning board engineer’s ruling on an application for approval of an industrial park must first be challenged in front of the town zoning board of appeals before an Article 78 petition is an available remedy.

 

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COMPLAINT ALLEGING THE NEW YORK CITY PUBLIC SCHOOL SYSTEM DISCRIMINATES AGAINST STUDENTS OF COLOR AND SEEKING INJUNCTIVE RELIEF SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, reversing Supreme Court, determined the complaint alleging the New York City public school system discriminates against Black and Latinx students and seeking injunctive relief was justiciable and stated valid causes of action. Therefore the complaint, which had been dismissed, is now reinstated. The opinion is comprehensive and far too detailed to fairly summarize here:

Plaintiffs allege that State and City policies create a “racialized” admission pipeline. According to plaintiffs, the pipeline begins with a single standardized test for the City’s Gifted & Talented (G&T) programs taken by children as young as four-years-old. The G&T test, plaintiffs assert, disproportionately benefits “privileged” white students and their “in-the-know” parents, who have the “navigational capital” to understand the admissions process and the economic capital to pay for expensive test preparation. The G&T programs, plaintiffs allege, provide superior academic preparation, which allows primarily white and Asian students to continue through the pipeline to academically screened middle and high schools, relegating Black and Latinx students to unscreened schools, often in poorly maintained buildings with limited extracurricular programs. The end of the pipeline, or “zenith” as plaintiffs describe it, is admission to one of eight New York City specialized high schools based on the results of the Special High School Admissions Test (the SHSAT).* * *

The pipeline, plaintiffs claim, is designed to exclude Black and Latinx students from the City’s prime educational opportunities. According to plaintiffs, the State and the City “intentionally adopted” and “for decades have intentionally retained—with no pedagogical basis—testing-based sorting that they know excludes students of color from equal educational opportunities.” This knowledge was acquired, plaintiffs allege, “through decades of experience and reflected in [defendants] own admissions” including the knowledge of the public school system’s “racist character and outcomes.” Despite this knowledge, plaintiffs allege that the State and the City “intentionally refuse to dismantle . . . its racialized channeling system.” IntegrateNYC, Inc. v State of New York, 2024 NY Slip Op 02369, First Dept 5-2-24

Practice Point: Here Supreme Court’s conclusion that the suit seeking injunctive relief from discriminatory education policies and procedures in the New York City public school system was not “justiciable” was rejected.

 

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DEFENDANT NYC DEPARTMENT OF EDUCATION DID NOT OWE A DUTY TO A SCHOOL ADMINISTRATOR WHO WAS ATTACKED BY A STUDENT IN A SCHOOL HALLWAY; THERE WAS NO “SPECIAL RELATIONSHIP” BETWEEN DEFENDANTS AND PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the absence of a special relationship between plaintiff high school administrator and defendant NYC Department of Education precluded recovery for an attack on the administrator by a student in the school’s hallway:

“Absent the existence of a special relationship between the defendants and the . . . plaintiff, liability may not be imposed on the defendants for a breach of a duty owed generally to persons in the school system and members of the public” … . To succeed on a cause of action sounding in negligence, the plaintiff must establish that the defendants owed her a special duty of care … .

A plaintiff may demonstrate that a special relationship exists by showing, among other things, that the municipality “voluntarily assume[d] a duty that generate[d] justifiable reliance by the person who benefits from the duty,” or that “the municipality assume[d] positive direction and control in the face of a known, blatant and dangerous safety violation” … . A special relationship based upon a duty voluntarily assumed by the municipality requires proof of the following: “‘(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'” … .

… The defendants’ submissions demonstrated that they did not voluntarily assume a duty toward the plaintiff. The defendants did not make any promises to the plaintiff or take any actions regarding security protocols in the school that amounted to an affirmative undertaking of protection by them on her behalf, nor could the plaintiff have justifiably relied on any such actions … . Notably, the plaintiff testified at her deposition that she had no reason to fear the student who allegedly assaulted her. The plaintiff also testified that, prior to the incident, the student had never made any threats toward her and she never asked the school to provide her with protection from the student. Moreover, the defendants did not take positive direction and control in the face of a known, blatant, and dangerous safety violation … . Villa-Lefler v Department of Educ. of the City of N.Y., 2024 NY Slip Op 02343, Second Dept 5-1-24

Practice Point: Absent a “special relationship’ between plaintiff school administrator and defendant NYC Department of Education, defendant is not liable for an attack on the administrator by a student in a school hallway.

 

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A NOTICE OF VIOLATION FROM THE CITY TO THE ABUTTING PROPERTY OWNER REGARDING THE DETERIORATED CONDITION OF THE SIDEWALK RAISED A QUESTION OF FACT WHETHER THE CITY HAD WRITTEN NOTICE OF THE SIDEWALK DEFECT (A PROTRUDING METAL BAR) WHICH CAUSED PLAINTIFF’S SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact whether the city had notice of the condition of the sidewalk which allegedly caused her slip and fall; Plaintiff demonstrated a notice of violation had been issued to the abutting property owner concerning the deterioration of the sidewalk. Plaintiff had alleged she tripped over a metal bar protruding from the sidewalk. The notice of violation raised a question of fact whether that specific defect was encompassed by the notice:

The plaintiff submitted … a Notice of Violation from the Department of Public Works, Office of the Commissioner, to the purported owner of the property abutting the sidewalk on which the plaintiff fell. The Notice of Violation was issued by the Commissioner of the Department of Public Works, the very individual who was statutorily designated to receive written notice of sidewalk defects. The Notice of Violation stated that an inspection, which … found … that “deteriorated and hazardous conditions” existed on the abutting sidewalk. Under the circumstances, the plaintiff raised a triable issue of fact as to whether the City did, in fact, have prior written notice of the alleged defect … . Whether the Notice of Violation “encompassed the particular condition which allegedly caused the subject accident is an issue of fact which should await resolution at trial” … . Douglas v City of Mount Vernon, N.Y., 2024 NY Slip Op 02173, Second Dept 4-24-24

Practice Point: Here a notice of violation issued by the city to the abutting property owner concerning the deteriorated condition of the sidewalk raised a question of fact whether the city had prior written notice of the specific defect, a protruding metal bar, which caused plaintiff’s fall.

 

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CHARTER SCHOOLS ARE NOT SUBJECT TO THE NOTICE OF CLAIM REQUIREMENTS IN THE EDUCATION LAW AND GENERAL MUNICIPAL LAW; PLAINTIFF-STUDENT, WHO HAD BEEN BULLIED AND WAS PUSHED TO THE FLOOR BY ANOTHER STUDENT, RAISED QUESTIONS OF FACT SUPPORTING THE NEGLIGENT SUPERVISION CAUSE OF ACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Iannacci, determined (1) charter schools are not subject to the notice of claim requirements of the Education Law and the General Municipal Law, and (2) plaintiff student, who allegedly had been bullied and was pushed to the floor by another student when the hallway was unsupervised, raised questions of fact supporting the negligent supervision cause of action:

Since charter schools are independent from school districts with respect to civil liability, financial obligations, and liability insurance coverage, it stands to reason that the extraordinary safeguards of prelitigation notification of claims applicable to school districts, municipalities and other wholly public entities would not apply to charter schools. * * *

The evidence presented triable issues of fact as to whether there were monitors present in the hallway at the time of the incident as required by the School’s policies and procedures and whether the presence of such monitors could have prevented the alleged pushing incident … . A. P. v John W. Lavelle Preparatory Charter Sch., 2024 NY Slip Op 02205, Second Dept 4-24-24

Practice Point: Charter schools are not subject to the notice-of-claim requirement in the Education Law and General Municipal Law; i.e., a plaintiff suing a charter school for negligence need not file or serve a notice of claim as a condition precedent.

 

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BECAUSE A CONTEMPORARY REPORT PROVIDED THE CITY WITH NOTICE OF THE NATURE OF THE SLIP AND FALL, THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DESPITE THE LACK OF A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim in this slip and fall case should have been granted. The line-of-duty report provided the city with timely knowledge of the nature of the claim and demonstrate the city would not be prejudiced by the delay in filing the notice. Where a defendant has timely knowledge of the incident, the lack of a reasonable explanation for failing to timely file is often overlooked:

The line-of-duty injury report’s specificity regarding the location and circumstances of the incident, permitted the City to readily infer that a potentially actionable wrong had been committed … .

Further, as the petitioner has shown the City’s actual knowledge of the essential facts underlying the claim, the petitioner’s failure to provide a reasonable excuse for the delay in serving the notice of claim was not fatal to her claim … .

… [A]s the City acquired timely knowledge of the essential facts constituting the claim, the petitioner met her initial burden of showing that the City would not be prejudiced by the late notice of claim … . In response …, the City has failed to provide particularized evidence establishing that the late notice substantially prejudiced its ability to defend the claim on the merits … . Matter of Steward v City of New York, 2024 NY Slip Op 02058, Second Dept 4-17-24

Practice Point: If the municipal defendant has timely notice of the nature of the incident (here by virtue of a contemporary report) and the city cannot demonstrate prejudice, a petition for leave to file a late notice of claim should be granted, even in the absence of a reasonable excuse for failing to timely file.

 

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THE ELECTRICAL-CONTRACTOR CORP WAS NOT LICENSED TO DO ELECTRICAL WORK IN NYC; THE FACT THAT THE CORPORATION’S VICE PRESIDENT WAS LICENSED AND THE VICE PRESIDENT’S COMPANY, WHICH DID THE ELECTRICAL WORK AS A SUBCONTRACTOR, WAS LICENSED DOESN’T MATTER; THE CORPORATION CAN NOT SUE FOR BREACH OF CONTRACT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff electrical-contractor corporation could not sue for breach of contract because the corporation was not licensed in NYC to do electrical work, even though plaintiff’s vice president was licensed and the vice president’s company (QNCC) which did the work as plaintiff corporation’s subcontractor was licensed:

Administrative Code § 27-3017(a) states that it shall be unlawful for any person to, inter alia, perform electrical work in the City of New York unless that person is a licensed master electrician or special electrician. Licensing statutes are to be strictly construed … . …

The plaintiff’s contention that recovery should not be denied because QNCC was a duly licensed subcontractor which performed the electrical work is without merit. This Court has previously held that such a relationship is insufficient to permit an unlicensed contractor to recover for work performed in the City … . “‘So strict has been judicial construction of the statutory requirement through concern for the public health and welfare that the requirement may not be satisfied by employing or subletting’ the work to an appropriately licensed person” … . Moreover, that the plaintiff’s vice president had a master electrician’s license, and that the defendant’s architect knew that the electrical work permits were issued to an entity other than the plaintiff, does not bar the application of the above rule … . Electrical Contr. Solutions Corp. v Trump Vil. Section 4, Inc., 2024 NY Slip Op 01907, Second Dept 4-10-24

Practice Point: The NYC Administrative Code requirement that electrical work must be done by licensed entities or persons is strictly construed. Here the electrical-contractor corporation’s vice president was licensed and the vice president’s company which did the work as a subcontractor was licensed, but the corporation was not. The corporation could not sue for breach of contract.

 

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THE TRANSFER OF DEFENDANT’S CASE TO A SPECIAL PROSECUTOR WAS JUSTIFIED BY THE EXPLANATION OF A CONFLICT WITHIN THE DA’S OFFICE; HOWEVER, THE TRANSFER BACK TO THE DA’S OFFICE WAS NOT BASED ON AN EXPLANATION WHY THE CONFLICT WAS NO LONGER A PROBLEM; THE TRANSFER BACK TO THE DA’S OFFICE WAS REVERSIBLE ERROR (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Pritzker, reversing County Court, determined the prosecution of defendant’s case should not have been transferred from the special prosecutor, appointed two months before because of a conflict within the DA’s office, back to the DA’s office. The Third Department noted that the initial decision to appoint a special prosecutor based on a conflict was supported by the application, but there was no explanation why that conflict no longer existed such that the DA’s office could ultimately handle the case:

County Law § 701 does not specifically detail the procedure to be followed when a special prosecutor is relieved of his or her appointment, and there is little case law relevant to this issue …; however, it is apparent that the only options are to either appoint another special prosecutor or to return the matter, if appropriate, to the DA’s office. Indeed, certain policy considerations weigh in favor of allowing the DA’s office to prosecute the case, namely, a “public interest in having prosecutorial duties performed, where possible, by the constitutional officer chosen by the electorate” … . Here, however, the DA’s office had, less than two months prior, sought appointment of a special prosecutor based upon a conflict. Based upon this sworn assertion of a conflict, County Court (Lambert, J.) entered an order disqualifying the DA’s office and appointing the special prosecutor. Then, when subsequently returning the matter to the disqualified DA’s office, no record was made as to why disqualification was no longer necessary. From the scant record of what occurred here, it is clear that defendant’s concerns regarding the DA’s office’s prior disqualification and possible conflict fell on deaf ears. Thus, because on this record we cannot determine why County Court (Burns, J.) deemed it appropriate to no longer disqualify the DA’s office, we find that the court committed reversible error in returning the matter to the DA’s office … . People v Faison, 2024 NY Slip Op 01836, Third Dept 4-4-24

Practice Point: Just as the transfer of a criminal prosecution from the DA’s office to a special prosecutor based upon a conflict within the DA’s office requires a valid explanation, the transfer of the criminal prosecution from the special prosecutor back to the DA’s office requires a valid explanation why the conflict is no longer a problem. Here the absence of an explanation rendered the transfer back to the DA’s office reversible error.

 

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THE POLICE OFFICER WHO STRUCK PLAINTIFF’S CAR WAS ENGAGED IN AN “EMERGENCY OPERATION” AND DID NOT ACT IN “RECKLESS DISREGARD” OF THE SAFETY OF OTHERS; COMPLAINT DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the city demonstrated the police officer who struck plaintiff’s car was engaged in an “emergency operation” at the time of the accident and did not act in “reckless disregard” for the safety of others:

Defendants demonstrated that defendant police officer was engaged in an “emergency operation” within the meaning of Vehicle and Traffic Law § 1104 by submitting evidence that the officer was responding to a radio call about a man with a gun when his police vehicle struck plaintiff’s car … . Accordingly, defendants demonstrated that the officer’s conduct is to be assessed under the statute’s “reckless disregard” standard (Vehicle and Traffic Law § 1104 [e] …).

Defendants further demonstrated that the officer did not operate the police vehicle in reckless disregard for the safety of others (see Vehicle and Traffic Law § 1104 [e] …). The officer testified that he approached a red light with a vehicle stopped at the intersection, so he had to cross the double yellow lines to avoid it. He also testified that he reduced his speed and looked both ways when approaching the red light at the intersection. The officer attempted to avoid colliding with plaintiff by braking hard and swerving upon realizing that plaintiff’s car had entered the intersection. Seo v City of New York, 2024 NY Slip Op 01785, First Dept 4-2-24

Practice Point: When a police officer engaged in an emergency operation takes steps to avoid colliding with other vehicles the “reckless disregard for the safety of others” standard has not been met.

Similar issues and result in a suit against a private ambulance company in Alonso v Crest Transp. Serv., Inc., 2024 NY Slip Op 01788, Second Dept 4-3-24

 

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