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Petitioners Did Not Have Standing to Contest County’s Negative Declaration After a SEQRA Review

The Fourth Department determined petitioners did not have standing to contest the county’s negative declaration pursuant to a State Environmental Quality Review Act (SEQRA) review.  The action involved the county’s permitting the Monroe County Fair and Recreation Association, Inc. to operate a four-day agricultural festival on county land:

Where, as here, the proceeding does not involve a “zoning-related issue . . . , there is no presumption of standing to raise a SEQRA challenge” based solely on a party’s proximity … . In such a situation, parties seeking to establish standing must establish that the injury of which they complain “falls within the zone of interests,’ or concerns, sought to be promoted or protected” …, and that they “would suffer direct harm, injury that is in some way different from that of the public at large” … . Contrary to petitioners’ contention, we conclude that the court properly determined that the environmental effects relied on by each petitioner to establish his or her standing are no different in either kind or degree from that suffered by the general public … . We further conclude that the alleged environmentally related injuries are too speculative and conjectural to demonstrate an actual and specific injury-in-fact … . Thus, the court did not err in concluding that none of the petitioners has standing … . Matter of Kindred v Monroe County, 2014 NY Slip Op 05069, 4th Dept 7-3-14

 

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Pedestrian’s Action, In Violation of City Pedestrian Rules, Was the Proximate Cause of Pedestrian’s Injuries (Pedestrian Was Struck by a Car)

The Second Department determined Supreme Court properly refused to set aside the verdict in favor of the defendant.  Plaintiff, a pedestrian, had been struck by a car just as he stepped off the curb in violation of city rules for pedestrians:

Here, a fair interpretation of the evidence supported the jury’s finding that an unknown operator of a motor vehicle involved in an accident with the plaintiff, a pedestrian, was not negligent. Rules of City of New York Department of Transportation (34 RCNY) § 4-04(b)(1), entitled “Operators to yield to pedestrians in crosswalk,” provides that “[w]hen traffic control signals or pedestrian control signals are not in place or not in operation, the operator of a vehicle shall yield the right of way to a pedestrian crossing a roadway within a crosswalk when the pedestrian is in the path of the vehicle or is approaching so closely thereto as to be in danger.” Rules of City of New York Department of Transportation (34 RCNY) § 4-04(b)(2), entitled “Right of way in crosswalks,” provides that “[p]edestrians shall not cross in front of oncoming vehicles. Notwithstanding the provisions of (1) of this subdivision (b), no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the operator to yield.” Rules of City of New York Department of Transportation (34 RCNY) § 4-04(c)(2) provides that “[n]o pedestrian shall cross any roadway at an intersection except within a cross-walk.” According to the plaintiff, he stepped off a sidewalk approximately one car length away from the corner in an attempt to cross Rockaway Beach Boulevard at Beach 96th Street in Queens. The plaintiff conceded that there was no designated crosswalk at that intersection. Almost immediately after the plaintiff had stepped off the curb, his leg came into contact with the right side of the unidentified motor vehicle after he had walked approximately two feet into the roadway. Thus, there was ample evidence adduced at trial from which the jury could have reasonably found that the plaintiff violated Rules of City of New York Department of Transportation (34 RCNY) §§ 4-04(b)(2) and (c)(2), and that those violations, rather than any conduct on the part of the unknown motorist, proximately caused the accident … . Rivera v Motor Veh Acc Indem Corp, 2014 NY Slip Op 04911, 2nd Dept 7-2-14

 

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Amendment of Notice of Claim Including Substantive Changes to the Facts and New Theories of Liability Should Not Have Been Allowed—Original Notice of Claim Inadequate

The Second Department reversed Supreme Court finding that plaintiff’s motion to amend the notice of claim should have been denied and the complaint dismissed:

Amendments to notices of claim are appropriate only to correct good faith and nonprejudicial “technical mistakes, defects, or omissions, not substantive changes in the theory of liability” … . Here, the Supreme Court improvidently exercised its discretion in granting the plaintiff’s cross motion for leave to serve and file an amended notice of claim. The proposed amendments to the notice of claim included substantive changes to the facts, adding that the plaintiff was injured after he climbed a ladder to go over a fence, changing the situs of the accident, and identifying the plaintiff as a worker at the site. The proposed amendments to the notice of claim also added a theory of liability under the Labor Law. Such changes are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . Granting leave to serve and file the proposed amended notice of claim would prejudice the Housing Authority by depriving it of the opportunity to promptly and meaningfully investigate the claim … .

Moreover, the Supreme Court should have granted the Housing Authority’s motion to dismiss the complaint insofar as asserted against it on the ground that the notice of claim was inadequate. A notice of claim must provide timely notice of the essential facts and legal theories supporting the claims alleged in the complaint … . The test of the sufficiency of a notice of claim is whether it includes enough information to enable the defendant to promptly investigate the allegations at issue … . The plaintiff’s original notice of claim did not sufficiently apprise the Housing Authority of the relevant facts or legal theories supporting the plaintiff’s claims to enable the Housing Authority to promptly and adequately investigate the allegations at issue in the complaint, resulting in prejudice to the Housing Department … . Ahmed v New York City Hous Auth, 2014 NY Slip Op 04883, 2nd Dept 7-2-14

 

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Village’s Actual Notice of a Sidewalk Defect Does Not Override Written Notice Requirement

The Second Department determined that actual notice of a defect in a sidewalk does not override the requirement of written notice. The abutting landowner had notified Village personnel of the defect orally and the Village architect had indicated the defect would be repaired:

The Village established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the affidavit of its Village Clerk, who averred that her search of the Village’s records revealed no prior written notice of any hazardous condition on the sidewalk where the accident occurred … . In opposition, the plaintiff and the homeowners failed to raise a triable issue of fact. Their submissions failed to show that the Village affirmatively created the alleged hazardous condition …, or caused the alleged hazardous condition to occur by its special use of the sidewalk …. Actual notice of the alleged hazardous condition does not override the statutory requirement of prior written notice of a sidewalk defect … . Velho v Village of Sleepy Hollow, 2014 NY Slip Op 04916, 2nd Dept 7-2-14

 

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Termination Shocks One’s Sense of Fairness

The Fourth Department determined the termination of a city employee shocked one’s sense of fairness.  The court explained the relevant criteria:

“[A] result is shocking to one’s sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally” … . “Where, as here, there is no grave moral turpitude’ and no grave injury to the agency involved or to the public weal,’ courts may ameliorate harsh impositions of sanctions by administrative agencies . . . in order to accomplish what a sense of justice would dictate’ ” … . Matter of Harwood v Addison, 2014 NY Slip Op 04660, 4th Dept 6-20=14

 

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Under NYC Administrative Code, Abutting Owners Have Duty to Maintain Sidewalk in a Reasonably Safe Condition

In reversing Supreme Court, the First Department noted that, pursuant to the NYC Administrative Code, owners of abutting properties are responsible for the safe condition of the sidewalk.  Here it was alleged that defendant’s workers placed garbage bags on the sidewalk which leaked and plaintiff slipped on the slippery sidewalk:

Plaintiff alleges that she slipped on a greasy liquid leaking from garbage bags placed on the public sidewalk by defendant’s workers. Pursuant to Administrative Code of the City of New York § 7-210(b), the owner of property abutting a public sidewalk has a duty to maintain the sidewalk in a reasonably safe condition and is liable for failure to do so … .

Plaintiff’s testimony that she saw defendant’s workers placing garbage bags on the sidewalk in the morning raises issues of fact as to whether defendant is responsible for creating the alleged slippery condition … . Torres v New York City Hous Auth, 2014 NY Slip Op 04425, 1st Dept 6-17-14

 

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Suit Against City for Attempting to Resuscitate Plaintiff with an Inoperable Defibrillator Properly Dismissed—No Special Duty Owed to Plaintiff

The Fourth Department determined causes of action against the city stemming from an inoperable defibrillator which delayed the resuscitation of plaintiff (Angona) were properly dismissed.  Angona had suffered a heart attack and fire department personnel responded. The rendering of resuscitative care and treatment involved a governmental function and the city owed no special duty to the plaintiff:

All of [the] claims of negligence arise from the City’s exercise of governmental functions … . Thus, “[t]o sustain liability against [the City], the duty breached must be more than that owed the public generally” … . The City met its burden of establishing the absence of a special duty owed to Angona in these circumstances …, and plaintiff failed to raise a triable issue of fact. We reject plaintiff’s contention that the City owed a special duty to Angona by virtue of his status as an off-duty firefighter. Angona v City of Syracuse, 2014 NY Slip Op 04322, 4th Dept 6-13-14

 

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Land Owned by Power Company Which Does Not Now Produce Sewage and Garbage Properly Subject to Ad Valorem Taxes for Sewage and Garbage

The Fourth Department determined land owned by a power company was properly subject to ad valorem taxes for sewer and garbage because it was possible the land, at some point, could be used in a way that would generate sewage and garbage:

The test for determining whether real properties are benefitted, thus warranting special district assessment, is whether the properties are capable of receiving the service funded by the special ad valorem levy’ ” … . “An ad valorem tax will not be deemed invalid unless the taxpayer’s benefit received from the imposition of the tax is reduced to the point where it is, in effect, nonexistent” … .

Here, ” there is a sufficient theoretical potential of the properties to be developed in a manner that will result in the generation of garbage [and sewage]’ ” … . Unlike the plaintiff in Long Is. Water Corp. v Supervisor of Town of Hempstead (77 AD3d 795, lv denied 16 NY3d 711), plaintiff herein owns the land on which its “mass” properties sit, and we conclude that it is theoretically possible that such land, if put to a different use, could generate garbage and sewage. Matter of Niagara Mohawk Power Corp v Town of Marcy Assessor, 2014 NY Slip Op 04312, 4th Dept 6-13-14

 

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Village’s Unauthorized Use of Dedicated Park Land Prohibited by the “Public Trust Doctrine”—Village’s Use of the Land Was a “Continuing Wrong” Which Tolled the Statute of Limitations and Precluded the Application of the Laches Doctrine

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined Supreme Court properly granted a permanent injunction, pursuant to the common law “public trust doctrine,” prohibiting the village from building public works structures on dedicated park land.  The action was brought by residents who live near the park, who were later joined by the state.  Because the park land had been used without legislative authority by the village for many decades, the village argued the action was prohibited by the statute of limitations and the doctrine of laches.  The Court of Appeals determined the “continuing wrong doctrine” tolled the statute of limitations and the laches doctrine did not apply to a continuing wrong, or to actions by the state:

The harm sustained by the public when structures having “no connection with park purposes . . . encroach upon [parkland] without legislative authority plainly conferred” … cannot be traced exclusively to the day when the illegal encroachment began. “In New York, we have consistently characterized an unlawful encroachment as a continuous trespass giving rise to successive causes of action” … . Even though here, because the Village owns the parkland, the encroachment is not trespass, it clearly bears the hallmark of continuity common to the trespass cases: defendants are, continuously, in violation of the public trust doctrine and able to abate that wrong. Just as the failure of a landlord to repair a building's common elements, in violation of by-laws, “constituted a continuing wrong that is not referable exclusively to the day the original wrong was committed” … and “[t]he alleged violation of defendants' contractual obligations to comply with the law and refrain from interfering with the rights of other lessees amounts to a continuous or recurring wrong” …, so does a municipality's ongoing failure to comply with the law and seek legislative authorization for non-park use of parkland. The harm does not consist of the lingering effects of a single, discrete incursion, but rather is a continuous series of wrongs. In short, the claim here is “predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct” …  Capruso v Village of Kings Point, 2014 NY Slip Op 04228, CtApp 5-12-14

 

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Application to File Late Notice of Claim Against School District Properly Granted in Absence of Reasonable Excuse—School District Had Timely Actual Notice and Could Not Demonstrate Prejudice

The Second Department determined Supreme Court properly granted the application to file a late notice of claim against a school district, in the absence of a reasonable excuse for the lateness:

In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim to have been timely served, the court must consider whether (1) the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim and for the delay in filing the petition, and (3) the delay would substantially prejudice the public corporation in its defense on the merits … .

Here, the City School District of the City of Long Beach (hereinafter the District) acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose. … Since the District acquired timely knowledge of the essential facts constituting the petitioner’s claim, the petitioner met his initial burden of showing a lack of prejudice … . The District’s conclusory assertions of prejudice, based solely on the petitioner’s six-week delay in serving the notice of claim, were insufficient to rebut the petitioner’s showing … .

While the petitioner did not demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the further delay in commencing this proceeding … , the absence of a reasonable excuse is not fatal to a petition where, as here, there was actual notice and an absence of prejudice … . Matter of Fennell v City School Dist of city of Long Beach, 2014 NY Slip Op 04192, 2nd Dept 6-11-14

 

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