You are here: / Municipal Law
, ,

Criteria Re: Counties’ and Foster Care Agencies’ Liability for the Acts of Foster Parents Explained

In dismissing a complaint against a foster care agency based upon the alleged failure of the foster parent to seek medical care for the foster child, the Second Department explained the relevant law:

Counties and foster care agencies cannot be vicariously liable for the negligent acts of foster parents, who are essentially contract service providers … .

However, counties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home … . In order to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it engaged in negligent placement and supervision, the appellant had to establish, prima facie, that it did not have sufficiently specific knowledge or notice of the alleged dangerous conduct which caused the infant’s injuries … . In other words, the appellant had to show that the third-party acts could not have been reasonably anticipated … . Keizer v SCO Family of Servs, 2014 NY Slip Op 06630, 2nd Dept 8-6-14

 

,

Prejudice to County Investigation Stemming from Plaintiff’s Describing the Wrong Location of the Slip and Fall in the Notice of Claim Precluded Plaintiff from Amending the Notice

The Second Department determined that the failure to correctly describe the location of the slip and fall in the initial notice of claim prejudiced the investigation of the incident by the county.  Therefore, Supreme Court should not have granted plaintiff’s motion to amend the notice of claim:

A court may, in its discretion, grant a motion for leave to amend a notice of claim which has been served where it determines that two conditions have been met: first, the mistake, omission, irregularity, or defect must have been made in good faith; and second, it must appear that the public corporation has not been prejudiced thereby … . Since bad faith by the plaintiff was not asserted, the only issue presented here is whether service of the amended notice of claim would prejudice the County. The record indicates that the plaintiff’s incorrect information as to the accident location prejudiced the County in its ability to conduct a prompt and meaningful investigation of the accident site … . Murtha v Town of Huntington, 2014 NY Slip Op 05633, 2nd Dept 8-6-14

 

, , ,

Ordinary Negligence Standard Applied Where Ambulance (Responding to an Emergency) Struck Plaintiff Who Was Lawfully in the Crosswalk/Questions of Fact Whether There Was a “Special Relationship” Between the City’s Crossing Guard and the Plaintiff, and Whether the Crossing Guard Was Performing Ministerial, Rather than Discretionary, Functions (Such that the City Could Be Held Liable)

In a case involving a pedestrian who was lawfully crossing a street when struck by an ambulance responding to an emergency, in the presence of a city employee acting as a crossing guard, the Second Department determined that ordinary negligence standards applied to the ambulance (not the “emergence” “reckless disregard” standard of Vehicle and Traffic Law 1104) and that there were questions of fact whether the city was liable based upon a “special relationship” with the plaintiff and whether the city was liable because the crossing guard was performing ministerial, rather than discretionary, functions:

Failure to abide by the provisions set forth in Vehicle and Traffic Law §§ 1111 (duty to yield to pedestrians in crosswalk) and 1112 (pedestrian has right of way), which was the injury-causing conduct at issue here, is not privileged conduct pursuant to Vehicle and Traffic Law § 1104(b). As the injury-producing conduct was not specifically exempted from the rules of the road by Vehicle and Traffic Law § 1104(b), the principles of ordinary negligence apply … . * * *

“To impose liability [upon a municipality], there must be a duty that runs from the municipality to the plaintiff. We have recognized a narrow class of cases in which a duty is born of a special relationship between the plaintiff and the governmental entity” … . One of the ways that a special relationship arises is when the municipality “assumes a duty that generates justifiable reliance by the person who benefits from the duty” … . * * *

Further, “[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff apart from any duty to the public in general” … . Here, the City defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them on the basis that the crossing guard’s actions were discretionary. Based on their submissions in support of their cross motion, and under the circumstances here, the City defendants failed to eliminate all triable issues of fact as to whether the crossing guard’s actions constituted ministerial governmental functions … . Benn v New York Presbyt Hosp, 2014 NY Slip Op 05615, 2nd Dept 8-6-14

 

, , ,

In the Context of a Challenge to the Tax Assessment of a Home, the Town Must Obtain a Warrant Based Upon Probable Cause Before It Can Enter the Home (Over the Homeowner’s Objection) to Inspect it

The Second Department, in a full-fledged opinion by Justice Dickerson, determined that the Town did not make the requisite showing to justify an inspection of the interior of petitioner’s home.  Petitioner had challenged the tax assessment of her property.  Supreme Court had ruled the Town could enter petitioner’s home to inspect it.  The Second Department reversed, finding that Supreme Court improperly placed the burden on the petitioner to demonstrate why inspection should not be allowed.  The burden should have been placed on the Town to make a showing that a warrant allowing entry of the home was supported by probable cause:

We hold that the Town respondents bore the burden of demonstrating their entitlement to enter the petitioner’s home over her objections. The petitioner bore no burden, in the first instance, to demonstrate her right to preclude the Town respondents from entering into her home against her will. The right to be free from unreasonable searches is granted by the Fourth Amendment, and made applicable to the States and their subdivisions by virtue of the Fourteenth Amendment (see Mapp v Ohio, 367 US 643), though this right is by no means absolute. By directing the petitioner to move to preclude the Town’s appraiser from conducting an interior appraisal inspection of her home, the Supreme Court improperly shifted, from the Town respondents, the burden of demonstrating their entitlement to enter into the petitioner’s home, to the petitioner to demonstrate her right to preclude the Town respondents from sending an agent into her home. We further hold that, based on a proper balancing of the Town respondents’ interest in conducting the inspection against the petitioner’s Fourth Amendment rights, and the privacy invasion that such a “search” would entail, the Town respondents failed to satisfy their burden. * * *

Since the Town respondents sought entry into the petitioner’s home to have the Town’s appraiser conduct an inspection of the premises, the Town respondents were required to obtain a warrant upon a showing of probable cause. By directing the petitioner to move to preclude the Town respondents from conducting an interior inspection of her home, the Supreme Court improperly shifted the burden from the Town respondents to demonstrate their entitlement to entry into the petitioner’s home upon a showing of probable cause, to the petitioner to demonstrate her right to deny entry to the Town respondents … . “[B]y erroneously requiring [the] petitioner[ ] to move to preclude, the court did not properly evaluate the reasonableness of the inspections sought by respondents, i.e., the court did not conduct the necessary Fourth Amendment analysis balancing respondents’ need for interior inspections against the invasion of petitioner[‘s] privacy interests that such inspections would entail” … . Matter of Jacobowitz v Board of Assessors for the Town of Cornwall, 2014 NY Slip Op 05544, 2nd Dept 7-30-14

 

, ,

Power Company Must Pay Town’s Ad Valorem Sewer Taxes Whether Or Not It Owns the Land On Which Its Transmission Facilities Are Located and Whether or Not It Produces Sewage

The Fourth Department determined that as long as the power company owns the land on which its mass properties (transmission facilities) are located, it must pay the “ad valorem” sewer taxes, even if no sewage is generated. The court further determined that even if the power company did not own the land, it would still be liable for the tax because the town’s storm water sewer system protects the facilities from flooding:

If petitioner owns the land, it must pay the sewer taxes regardless of whether the properties currently produce sewage inasmuch as it is theoretically possible that the properties could be ” developed in a manner that will result in the generation of [sewage]’ ” …, and it is immaterial that the Town taxes the land separately from the improvements thereon and that petitioner challenges only the tax on the improvements.

We further conclude that the court properly granted respondents’ application for summary judgment based on the fact that petitioner may still benefit from the sewer district even if it does not own the land on which its mass properties are located. Respondents established that a significant amount of storm water infiltrates the Town’s sewer system and that “the sewer district encompasses storm sewers that actually or might potentially safeguard [petitioner]’s transmission and distribution facilities from flooding” … . Matter of Niagara Mohawk Power Corp v Assessor, Town of Cheektowaga, 2014 NY Slip Op 04627, 4th Dept 6-20-14

 

, ,

No Special Duty Owed by School to School Employee Injured by Students Who Collided with Her

The Second Department determined that a school’s duty to supervise students does not extend to an adult school employee injured when two students collided with her:

A school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge, at least in the absence of a special duty to the person injured … . Under the doctrine that a school district acts in loco parentis with respect to its minor students, a school district owes a “special duty” to the students themselves … . Accordingly, a school district may be held liable to a student when it breaches that duty, so long as all other necessary elements of a negligence cause of action are established … . The special duty owed to the students themselves does not, however, extend, as a general matter, to teachers, administrators, and other adults on or off of school premises … .

Here, the defendants established, prima facie, that they did not owe the plaintiff a special duty… . Ferguson v City of New York, 2014 NY Slip Op 04464, 2nd Dept 6-18-14

 

,

Application to File Late Notice of Claim (30 Days Late) Should Have Been Granted—Respondents Had Notice of the Incident and Short Delay Did Not Affect Ability to Investigate

In concluding the application to file a late notice of claim should have been granted, the First Department explained the relevant analysis.  The court noted the city had timely notice of the incident and the 30 delay in filing the notice did not prejudice the city’s ability to investigate:

General Municipal Law § 50—e(5) confers upon the court “the discretion to determine whether to grant or deny leave to serve a late notice of claim within certain parameters” (Matter of Porcaro v City of New York, 20 AD3d 357, 358 [1st Dept 2005]). The statute provides, in pertinent part, that in determining whether to grant an extension of time to serve a notice of claim, a court shall consider, in particular, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within the 90—day period specified in § 50—e(1) “or within a reasonable time thereafter” (§ 50—e[5]). Further, under the statute, the court must take into account all other relevant facts and circumstances, including, among other things, whether the petitioner offered a reasonable excuse for the late notice and whether the delay substantially prejudiced the respondent’s defense on the merits … . The presence or absence of any one factor, however, is not determinative … . Moreover, while the court has discretion in determining motions to file late notices of claim, the statute is remedial in nature, and therefore should be liberally construed … .

…[R]espondents had actual knowledge of the pertinent facts constituting the claim — … .

In addition, petitioner attempted to serve the notice of claim only 30 days after expiration of the statutory 90-day period for filing a notice of claim against a municipality. This short delay does not prejudice respondents’ ability to investigate and defend the claim, as such a short passage of time is unlikely to have affected witnesses’ memories of the relevant events. Matter of Thomas v City of New York, 2014 NY Slip Op 04423, 1st Dept 6-17-14

 

, ,

Delay In Arrival of an Ambulance During a Snow Storm Not Actionable

The causes of action against the city based upon delay in the arrival of an ambulance during a snow storm were dismissed.  The Second Department determined that both the ambulance service and the snow removal were governmental functions and, in the absence of a special relationship with the decedent, were not actionable:

A municipal emergency response system is “a classic governmental, rather than proprietary, function” … . Contrary to the plaintiffs’ contentions, the amended complaint fails to allege any facts tending to show that there was any “justifiable reliance” on any promise made to the decedent by the defendants. Accordingly, the amended complaint fails to state facts from which it could be found that there was a special relationship between the decedent and the defendants and, therefore, the amended complaint does not state a viable cause of action against the defendants based upon their alleged negligence in responding to the plaintiffs’ 911 call … . Estate of Radvin v City of New York, 2014 NY Slip Op 05302, 2nd Dept 7-16-17

 

, ,

Grievance Did Not Relate to Provisions of Collective Bargaining Agreement

In finding that one of two grievances was not arbitrable because the grievance (overtime pay for police officers privately employed as security officers at the airport) did not relate to the provisions of the collective bargaining agreement (CBA), the Fourth Department explained the operative criteria:

It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, we do not determine the merits of the grievance and instead determine only whether the subject matter of the grievance is arbitrable (see CPLR 7501…). “Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance’ . . . If no prohibition exists, we then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement. If there is a prohibition, our inquiry ends and an arbitrator cannot act” … .

“Where, as here, the [CBA] contains a broad arbitration clause, our determination of arbitrability is limited to whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA’ ” … . If such a “reasonable relationship” exists, it is the role of the arbitrator, and not the court, to “make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them” … .

Matter of City of Syracuse v Syracuse Police Benevolent Assn Inc, 2014 NY Slip Op 05251, 4th Dept 7-11-14

 

,

Matter Determined After a Public Hearing, As Opposed to a Quasi-Judicial Evidentiary Hearing, Is Reviewed Under the “Arbitrary and Capricious,” Not “Substantial Evidence,” Standard/Village’s Higher Rate for Water Delivered to Customers Outside Its Borders Was Rational

The Second Department determined that, because there was a public hearing, not a quasi-judicial evidentiary hearing, on whether the village could charge a higher rate for water supplied outside its borders, Supreme Court should have determined the matter under the arbitrary and capricious standard. In applying that standard, the Second Department found the higher rate had a rational basis:

The Supreme Court erred in characterizing the proceeding as one in the nature of certiorari in which the “substantial evidence” inquiry applied (CPLR 7804[g]). Rate-making determinations may be considered “judicial in the sense that they are reviewable by certiorari or a proceeding in the nature of certiorari” where notice and a hearing are prescribed by statute … . However, “there are different types of hearings with different legal consequences” … . Here, the Village Code required the Board to conduct a hearing in advance of changing the rates it charged for water service, and the Board held a public hearing, as opposed to a quasi-judicial evidentiary hearing (see Code of the Village of Williston Park § 225-20[A]). As such, judicial review of the determination was limited to “whether the determination was affected by an error of law, or was arbitrary and capricious or an abuse of discretion, or was irrational” … . * * *

The Board’s determination to increase rates was rational, and was not arbitrary and capricious or illegal. A municipal water supplier may charge a higher rate to customers outside its borders, including other municipalities, so long as the difference has a rational basis … . Moreover, a municipal corporation operating a public water utility is entitled to earn a “fair return” on its investment in the utility’s facilities “over and above costs of operation and necessary and proper reserves” in addition to “an amount equivalent to taxes which [the utility], if privately owned, would pay to such municipal corporation” (General Municipal Law § 94; see NY Const art IX, § 1[f]). The actual rate the Board determined to charge also was rational … . In addition, the petitioner has not made any showing that the profits earned by the Incorporated Village of Williston Park under the new rate schedule, as compared to the “value of the property used and useful in such public utility service, over and above costs of operation and necessary and proper reserves,” were in excess of a “fair return” … . Matter of Board of Trustees of Inc Vil of Williston v Board of Trustees of Inc Vil of Williston Park, 2014 NY Slip Op 05179, 2nd Dept 7-9-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy