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THE FOIL REQUEST FOR THE EMAIL ADDRESSES OF ALL NEW YORK CITY EMPLOYEES PROPERLY DENIED UNDER THE CYBERSECURITY EXEMPTION (FIRST DEPT).

The First Department, affirming Supreme Court’s denial of petitioner’s FOIL request for the email addresses of all New York City employees, determined the information was covered by the cybersecurity exemption from disclosure under FOIL. The petitioner is a foundation which seeks to inform those city employees who are public-employee-union members of their right to opt out of union membership:

… DCAS’s [NYC Department of Citywide Administrative Services’] General Counsel “articulat[ed] a particularized and specific justification for denying access” … under the cybersecurity exemption by explaining that “disclosure would create a substantial risk to the information technology infrastructure of the City of New York, including computer hardware, software, and data.”

The City Cyber Command’s Deputy Chief Information Security Officer further explained that disclosing “all New York City employees’ email addresses would relinquish control of the City’s information technology assets and jeopardize the security of those assets and of City infrastructure” by “mak[ing] it substantially easier for threat actors to successfully attack City . . . employees” in “[p]hishing and other email-based attacks.” Phishing and other confidence-based attempts at fraud prey on a target’s trust. The other information sought herein concerning employee’s names, titles, and other employment-related information could be used in conjunction with an email address to dupe unsuspecting targets. Of course, we do not find that the Foundation has any intention of phishing or committing any other type of fraud; it seeks to advance its mission. We note these facts only to point out the risks that can ensue from mass release of public employee contact information should the information fall into the wrong hands.

For these reasons, DCAS “articulate[d] a legitimate concern covered by the exemption”— that disclosure of email addresses could “breach or compromise [the agency’s] information technology infrastructure” or enable attackers to “gain access to or manipulate information maintained by” DCAS … . Matter of Freedom Found. v New York City Dept. of Citywide Admin. Servs., 2024 NY Slip Op 04483, First Dept 9-19-24

Practice Point: Here the FOIL request for the email addresses of all NYC employees was properly denied under the cybersecurity exemption because of the possibility of “phishing and other email-based attacks.”​

 

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EVEN WHERE, AS HERE, THE REVIEWING COURT WOULD HAVE DECIDED THE MATTER DIFFERENTLY, THE COURT MUST AFFIRM AN ADMINISTRATIVE AGENCY’S RULING WHICH HAS A RATIONAL BASIS; THE TWO-JUSTICE DISSENT ARGUED THE PROOF PETITIONER RESIDED WITH HIS BROTHER IN THE MITCHELL-LAMA APARTMENT WAS SUFFICIENT AND PETITIONER WAS ENTITLED TO SUCCESSION RIGHTS (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, determined Supreme Court should not have annulled the NYC Department of Housing Preservation and Development’s (HPD) denial of petitioner’s application seeking succession rights to his brother’s Mitchell-Lama apartment. Even where, as here, the court reviewing an administrative agency’s ruling would have decided the matter differently, the ruling must be upheld if there is a rational basis for it:

A careful review of the record shows that HPD had a rational basis to affirm the denial of petitioner’s succession rights. Petitioner failed to meet his burden to produce documents that would establish his primary residence was the New York apartment. He never provided any tax returns or proof that he was not required to file, which is a necessary component of any succession rights application … . Instead, he argued for the first time in his petition that he was not required to file tax returns due to his low income. Petitioner cannot fault HPD for failing to consider an argument that was not raised before it. Matter of Mantilla v New York City Dept. of Hous. Preserv. & Dev., 2024 NY Slip Op 04484, First Dept 9-19-24

Practice Point: An administrative agency’s ruling must be affirmed by the reviewing court if there is a rational basis for it, even when the reviewing court would have decided the matter differently. Here the dissent agreed with Supreme Court and argued petitioner presented sufficient proof that he resided with his brother in a Mitchell-Lama apartment and was therefore entitled to succession rights. The majority, however, upheld the city housing agency’s denial of the petition.

 

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HERE THE CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE MOUND OF SNOW AND ICE WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL, WHICH ORDINARILY WOULD SUPPORT SUMMARY JUDGMENT IN FAVOR OF THE CITY; HOWEVER PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE CITY CREATED THE DANGEROUS CONDITION BY PLOWING, AN EXCEPTION TO THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this ice and snow slip and fall case raised a question of fact whether the city created the dangerous condition by creating a mound of ice and snow when plowing. The defendant city’s “written notice” requirement for liability in slip and fall cases did not apply because plaintiff alleged the dangerous condition was created by the city:

“When a municipality has adopted a prior written notice law, the municipality ‘cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies'” … . Where the municipality makes a prima facie showing that it lacked prior written notice of the alleged defect, “‘the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality'” … .

… [T]he City established … that it did not receive prior written notice of the snow/ice mound, thereby shifting the burden to the plaintiffs to demonstrate either that a triable issue of fact existed in that regard or that one of the … exceptions applied … . … [T]he plaintiffs’ submissions, including photos of the snow/ice mound and an affidavit of an expert, were sufficient to raise a triable issue of fact as to whether the City’s snow plowing operations affirmatively created the snow/ice mound that allegedly caused the injured plaintiff to slip and fall … . Reynolds v City of Poughkeepsie, 2024 NY Slip Op 04472, Second Dept 9-18-24

Practice Point: A city can require written notice of a dangerous condition as a condition precedent to suing the city for a slip and fall. However, where the plaintiff raises a question of fact about whether the city created the dangerous condition, here by plowing snow, the written notice requirement does not apply.​

 

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THE COVID-19 TOLLS AND THE COURT’S DELAY IN SIGNING THE ORDER TO SHOW CAUSE PROVIDED A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM IN THIS BUS ACCIDENT CASE; THE POLICE REPORT TIMELY NOTIFIED THE CITY OF THE RELEVANT FACTS; THE MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined petitioners’ motion for leave to serve a late notice of claim in this bus accident case should have been granted. The COVID-19 tolls, and the court’s delay in signing the order to show cause, provided a reasonable excuse and the police report timely notified the city of the relevant facts:

In determining whether to grant a petition for leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether “(1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits” … .

Here the petitioner demonstrated a reasonable excuse for the delay, i.e., the COVID-19 pandemic, the tolls resulting therefrom, and the delay by the Supreme Court in signing the petitioner’s order to show cause.

Further, the petitioners met their burden of providing a plausible argument supporting a finding of no substantial prejudice. The happening of the accident and relevant facts were documented in a police report, and any prejudice was the result of delays resulting from the COVID-19 pandemic, not the petitioner’s conduct. Matter of Ortiz v New York City Tr. Auth., 2024 NY Slip Op 04464, Second Dept 9-18-24

Practice Point: The COVID-19 tolls and the judge’s delay in signing the order to show cause provided a reasonable excuse for failure to timely file a notice of claim in this bus accident case.

Practice Point: The police report provided the city with timely notice of the relevant facts. Therefore the city was not prejudiced by the late notice.

 

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THE NYC DEPARTMENT OF EDUCATION PROPERLY DENIED PETITIONER-TEACHER’S REQUEST FOR AN EXTENSION OF AN EXEMPTION FROM THE COVID VACCINE MANDATE BECAUSE THE MANDATE IS NO LONGER IN EFFECT; SUPREME COURT SHOULD NOT HAVE ISSUED AN ADVISORY OPINION TO THE CONTRARY; THE AWARD OF ATTORNEY’S FEES WAS IMPROPER; THE PETITION DID NOT MEET THE CRITERIA FOR AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioner, at teacher, was not entitled to an extension of an exemption from the COVID vaccine mandate (denied by the NYC Department of Education) and the award of over $24,000 in attorney’s fees. The vaccine mandate is no longer in force, and the matter did not meet the criteria for an exception to the mootness doctrine:

Courts are prohibited from rendering advisory opinions, and a matter will be considered academic unless the rights of the parties will be directly affected by the determination of the matter and the interest of the parties is an immediate consequence of the judgment … . Here, the vaccine mandate, which was never enforced against the petitioner, was repealed on February 9, 2023. Accordingly, the petition is academic … .

Furthermore, the exception to the mootness doctrine, which permits judicial review where the case presents a significant issue that is likely to recur and evade review, is inapplicable here … . The issue is not likely to repeat, as the vaccine mandate has been repealed and the possibility that some form of vaccine mandate might be enforced against the petitioner at some unknown time in the future is entirely speculative, and the petitioner does not raise novel questions … .

Since an award of attorneys’ fees is not authorized by agreement between the parties, by statute, or by court rule, the Supreme Court improperly awarded attorneys’ fees to the petitioner … ..  Matter of Ferrera v New York City Dept. of Educ., 2024 NY Slip Op 04317, Second Dept 8-28-24

Practice Point: Because the vaccine mandate for NYC teachers is no longer in force, the petitioner-teacher’s request for an extension of an exemption from the mandate was properly denied by the NYC Department of Education. Supreme Court’s grant of the extension and award of attorney’s fees was improper because courts are prohibited from issuing advisory opinions. In addition, the criteria for an exception to the mootness doctrine were not met.

 

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ALTHOUGH THE CITY HAD TIMELY KNOWLEDGE OF THE ROAD DEFECT WHICH ALLEGEDLY CAUSED PETITIONER-BUS-DRIVER’S ACCIDENT, THERE WAS NO SHOWING THE CITY HAD TIMELY KNOWLEDGE OF PETITIONER’S ACCIDENT, INJURIES OR THE FACTS UNDERLYING HER THEORY OF LIABILITY; THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN DENIED; THERE WAS AN EXTENSIVE DISSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive dissent. determined the petition for leave to file a late notice of claim against the city should not have been granted. Although petitioner demonstrated the city had timely knowledge of the existence of the pothole which allegedly caused petitioner-bus-driver’s injury, petitioner did not demonstrate the city had timely knowledge of her accident, injuries or the facts underlying her theory of liability:

… [T]he evidence submitted in support of the petition failed to establish that the appellants acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter … . “‘Actual knowledge of the essential facts underlying the claim means knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the [proposed] notice of claim; the public corporation need not have specific notice of the theory or theories themselves'” … . “Unsubstantiated and conclusory assertions that the municipality acquired timely actual knowledge of the essential facts constituting the claim through the contents of reports and other documentation are insufficient” … .

Here, although the petitioner’s submission of photographs and evidence that the defect was repaired after the accident may have demonstrated that the appellants had actual knowledge of the defect, actual knowledge of a defect is not tantamount to actual knowledge of the facts constituting the claim where, as here, the record did not establish that the appellants were aware of the petitioner’s accident, her injuries, and the facts underlying her theory of liability … . Matter of Ippolito v City of New York, 2024 NY Slip Op 04265, Second Dept 8-21-24

Practice Point: Here petitioner’s inability to demonstrate the city had timely knowledge of her accident, injuries or the facts underlying her theory of liability supported denial of her petition for leave to file a late notice of claim. The fact that the city had timely knowledge of the road defect which allegedly caused petitioner’s accident was not enough.

 

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THE COVID TOLL OF THE STATUTE OF LIMITATIONS RENDERED THIS NEGLIGENCE ACTION AGAINST A MUNICIPALITY TIMELY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the COVID toll of the statute of limitations applied and the negligence action against defendant municipality was timely commenced:

The plaintiff alleged that he was injured on May 24, 2019, when he was seated on a swing that collapsed at a playground owned and operated by the defendants, causing him to fall to the ground. Thereafter, the defendants moved for summary judgment dismissing the complaint as time-barred, arguing that the action was not timely commenced within the applicable one-year and 90-day statute of limitations. In an order dated August 3, 2022, the Supreme Court granted the defendants’ motion. The plaintiff appeals.

Pursuant to General Municipal Law § 50-i and CPLR 217-a, an action against a municipality to recover damages for personal injuries must be commenced within one year and 90 days after the happening of the event upon which the claim is based. Here, the defendants established, prima facie, that the applicable statute of limitations started to run from January 5, 2020, the date on which the plaintiff turned 18 years old (see CPLR 208), and that the action was not timely commenced within one year and 90 days from that date by April 5, 2021 … . However, in opposition, the plaintiff established that Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), which was issued in connection with the COVID-19 public health crisis, and subsequent executive orders extending the duration thereof, tolled the applicable statute of limitations for a 228-day period from March 20, 2020, to November 3, 2020, and thus, the action was timely commenced prior to the expiration of the statute of limitations on November 19, 2021 … . Fuhrmann v Town of Riverhead, 2024 NY Slip Op 04248, Second Dept 8-21-24

Practice Point: Here the COVID toll of the statute of limitations extended the time for commencing the negligence action against the municipality by 228 days.

 

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IN THIS SLIP AND FALL CASE, THERE IS A QUESTION OF FACT WHETHER THE MUNICIPALITY OWED A DUTY TO PLAINTIFF BASED UPON THE MUNICIPALITY’S LAUNCHING AN INSTRUMENT OF HARM; IT WAS ALLEGED THAT SALT APPLIED TO MELT ICE CREATED A POOL OF WATER WHICH FROZE AND CAUSED PLAINTIFF’S FALL (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the municipality, which had contracted with the school district to provide salting services, owed plaintiff a duty based upon the municipality’s launching an instrument of harm. It was alleged the defendant municipality’s use of salt to melt ice resulted in a frozen pool of water where plaintiff slipped and fell:

… [P]laintiffs submitted the affidavit of an expert, who opined that defendants’ use of sodium chloride (rock salt) created a dangerous condition and launched a force of harm because the rock salt would have caused water to flow and pool near the area where plaintiff fell. The expert further opined that, due to the temperatures on the date of the incident, the pooled water near the area of plaintiff’s fall would have refrozen quickly, thereby creating the alleged dangerous condition … . Plaintiffs also submitted the deposition testimony of defendants’ employee, who confirmed that during wintertime, when the temperature can fluctuate above and below freezing, water could accumulate in the parking lot where plaintiff fell, and that the accumulated water could then freeze when the temperature went below freezing … . We conclude that plaintiffs’ submissions raised a triable issue of fact whether defendants assumed a duty of care to plaintiff by launching the force or instrument of harm. Kirschler v Village of N. Collins, 2024 NY Slip Op 03977, Fourth Dept 7-26-24

Practice Point: Here the municipality entered a contract with the school district to salt the parking lot and other areas. There was a question of fact whether the application of salt launched an instrument of harm (forming a pool of water which froze causing plaintiff’s fall) thereby creating a duty owed plaintiff.

 

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A COUNTY RECYCLING TRUCK IS NOT ENGAGED IN ROAD WORK AND THEREFORE IS NOT EXEMPT FROM THE RULES OF THE ROAD UNDER THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT).

The Fourth Department, reversing County Court in this traffic accident case, determined a county recycling truck was not engaged in the type of road work which is exempted from the rules of the road under the Vehicle and Traffic Law. The related affirmative defense should have been dismissed:

Vehicle and Traffic Law § 1103 (b) provides that the rules of the road do not apply to “persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway” … . “[T]he law was intended to exempt from the rules of the road all teams and vehicles that ‘build highways, repair or maintain them, paint the pavement markings, remove the snow, sand the pavement and do similar work’ . . . Thus, the exemption turns on the nature of the work being performed (construction, repair, maintenance or similar work)—not on the nature of the vehicle performing the work” … .

Inasmuch as municipal refuse collection does not involve building, repairing, or maintaining highways, painting pavement markings, removing snow, sanding the pavement, or doing other similar work (see id.) and is “a task which one would anticipate could be accomplished while obeying the rules of the road”…, we conclude that Vehicle and Traffic Law § 1103 does not apply to the facts presented here … . In reaching that conclusion, we note that the 2016 amendment to Vehicle and Traffic Law § 117-a (L 2016, ch 293, § 1)—which broadened the definition of “hazard vehicle” to include sani-vans and waste collection vehicles—did not broaden the scope of work that would constitute “engag[ing] in work on a highway” … .

Vehicle and Traffic Law § 1103 (b) further provides that section 1202 (a)—which regulates stopping, standing, and parking—does not apply to “hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway” … . That provision, however, does not shield defendants from the allegations of negligence raised by plaintiff, i.e., violations of the right-of-way provisions of Article 26 of the Vehicle and Traffic Law, including, inter alia, sections 1140, 1142 (a), and 1146 (b). Rouse v City of Syracuse Dept. of Pub. Works, 2024 NY Slip Op 03938, Fourth Dept 7-26-24

Practice Point: A county recycling truck is not engaged in road work and therefore is not exempt from the rules of the road under the Vehicle and Traffic Law.

 

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PLAINTIFF ASSUMED THE RISK OF AN ACCIDENT INVOLVING HER GOLF CART AND A MOTOR VEHICLE IN THE COUNTY GOLF COURSE PARKING LOT; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the assumption of the risk doctrine applied to the operation of a golf cart in the parking lot of a golf course. Defendant county, the owner of the golf course, was therefore not liable for an accident involving a motor vehicle in the parking lot:

… [T]he County defendants met their burden of establishing that the risk of being injured while driving a golf cart is “inherent in the sport” of golf and that plaintiff was aware of the risk and assumed it … , and that plaintiff failed to raise an issue of fact with respect thereto … . At the time of the accident, plaintiff was an experienced golfer who played the golf course regularly throughout the season … . Moreover, the County defendants demonstrated that plaintiff had routinely driven a golf cart into the parking lot to retrieve her clubs from her vehicle, and that she was aware of the fact that other people would be operating motor vehicles in the parking lot. The County defendants therefore established as a matter of law that being injured while driving a golf cart in the parking lot of the golf course before a round of golf is “within the known, apparent and foreseeable dangers of the sport” of golf … . Galante v Karlis, 2024 NY Slip Op 04001, Fourth Dept 7-26-24

Practice Point: Here, over a two-justice dissent, plaintiff was deemed to have assumed the risk of a golf-cart/motor vehicle accident in the golf course parking lot.

 

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