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Where Defendant Abutting Property Owner Has Cleared a Snow-Free Path on the Abutting Sidewalk There Will Be No Liability for a Fall in “Non-Cleared” Area

The First Department determined the clearance of a snow-free path on a sidewalk by the defendant abutting property owner created a reasonably safe condition and defendant could not be held liable for plaintiff’s fall in a non-cleared area:

A property owner … has a duty to keep a sidewalk abutting its property sufficiently clear of snow and ice so that the sidewalk is maintained in a “reasonably safe condition” (see Administrative Code of City of NY § 7-210). The property owner will have discharged its duty if a snow-free path is cleared between the street and the sidewalk within a reasonable walking distance of the property, since it is not reasonably foreseeable that a person would attempt to climb over a significantly obstructive curbside mound of snow rather than walk to a nearby unobstructed path … . Since plaintiff’s accident resulted, by his own account, from his unforeseeable decision to climb over the knee-high heap of snow, it is of no moment whether he lost his footing before or after he planted his foot on the sidewalk. McKenzie v City of New York, 2014 NY Slip Op 02533, 1st Dept 4-15-14

 

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Service of a Notice of Claim on the City Did Not Constitute the Service of a Notice of Claim on the New York City Transit Authority

The First Department determined the service of a notice of claim on the City did not constituted the service of a notice of claim on the New York City Transit Authority:

It is well settled that service of a notice of claim on the City through the Comptroller’s Office is not service upon a separate public authority … . Since plaintiff did not comply with the condition precedent of service of a notice of claim upon the Transit Authority defendants, and they deny having received the notice of claim from the Comptroller’s Office, dismissal is required.  Glasheen v Valera, 2014 NY Slip Op 02512, 1st Dept 4-10-14

 

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Code Provision Requiring Issuance of Rental Certificate by City Prior to Leasing an Apartment Deemed Constitutional

The Third Department determined the code provision (Rental Certificate Ordinance or RCO) which required the issuance a rental certificate each time a vacant apartment is about to be leased is constitutional.  Entry to the apartment is accomplished either with the consent of the owner, or upon the issuance of a search warrant:

The RCO provided, in relevant part, that “[i]t shall be unlawful for any owner to permit the occupancy of any rental unit subject to [former article X of the Code of the City of Schenectady], unless such unit has a current and valid rental certificate or temporary rental certificate” (Code of City of Schenectady former § 167-59 [A]). Thus, “[w]henever a vacancy shall exist in a rental unit and a leasing is about to occur, or whenever there is a change in occupancy, the owner [must] submit a written application for a rental certificate” (Code of City of Schenectady former § 167-60 [A] [1]) and, “within five working days of receipt of [such] application, the Building Inspector [must] inspect the rental unit to determine if [it] is in compliance with” certain enumerated housing standards (Code of City of Schenectady former § 167-60 [A] [2]). If the Building Inspector is unable to perform the necessary inspection within the five-day window, the property owner may apply for a temporary rental certificate, which “is valid for 30 days or until the unit is inspected . . . , whichever is less” (Code of the City of Schenectady former § 167-60 [B]). In the event that the property owner refuses to grant access to the premises, “the Building Inspector shall apply for a search warrant or court order in an appropriate court and upon a showing that there [are] reasonable grounds to believe that a building or rental unit within [the] building is rented and occupied in violation of” the RCO (Code of the City of Schenectady former § 167-61). A property owner’s violation of the RCO may result in the imposition of a fine or other civil or criminal penalties (see Code of the City of Schenectady former § 167-67).

“It is well established that the 4th Amendment protection against unreasonable searches and seizures extends to administrative inspections of private commercial premises. [Thus,] to the extent that the challenged ordinance directly or in practical effect authorizes or requires a warrantless inspection, it will not pass constitutional muster” … . Here, however, the RCO expressly required either the consent of the property owner or the issuance of a valid search warrant in order for the Building Inspector to conduct the administrative inspection. As the inclusion of the warrant requirement is sufficient to safeguard plaintiff’s constitutional rights, his challenge to the facial validity of the RCO must fail … . Wisoff v City of Schenectady, 2014 NY Slip Op 02479, 3rd Dept 4-10-14

 

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Penalty Which Effectively Made It Impossible for an Architect to Practice His Profession Too Severe

The First Department found the punishment imposed by the Department of Buildings (DOB) on an architect for falsely representing he was licensed during a six-month suspension from practice was too severe:

…[W]e find that the penalty imposed is excessive upon considering the following factors: DOB did not place any temporal limitation on the prohibition of petitioner filing documents, nor did it explain why such a permanent penalty was imposed; petitioner is a solo practitioner for whom over ninety percent of his business is in New York City; the prohibition applies to the entire city, and would essentially end petitioner’s independent architectural business, thus depriving him of his livelihood; and respondent has never alleged, much less made any showing, that the falsehood at issue pertained to the substance or content of the building plans and thus presented potential safety risks which Administrative Code of City of NY § 28-211.1.2 was designed to address… . Matter of Benlevi v New York City Dept of Bldgs, 2014 NY Slip Op 02396, 1st Dept 4-8-14

 

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No Private Right of Action for Unequal Pay Under Civil Service Law Section 115

The Court of Appeals, over a dissent, determined Civil Service Law section 115 does not create a private right of action concerning unequal pay for the same work.  Rather, section 115 merely states a policy, unenforceable by the courts:

Civil Service Law Article VIII, “Classification and Compensation of Employees”, contains three titles, the first of which (Title A), entitled, “Classification and Allocation of Positions”, begins with section 115, “Policy of the state,” which provides:”In order to attract unusual merit and ability to the service of the state of New York, to stimulate higher efficiency among the personnel, to provide skilled leadership in administrative departments, to reward merit and to insure to the people and the taxpayers of the state of New York the highest return in services for the necessary costs of government, it is hereby declared to be the policy of the state to provide equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of equality of work demonstrated in service.”

Courts of this State have routinely interpreted section 115 and its predecessor, the nearly identically-worded former Civil Service Law § 37, as merely enunciating a policy, conferring no jurisdiction on a court to enforce what is simply that – a statement of policy… .   * * *

It is clear that Section 115 is a preamble to Civil Service Law article VIII, and no private right of action flows from it. Article 14 of the Civil Service Law (the Taylor Law) provides the mechanism for represented employees to challenge alleged wage disparities between classifications. Matter of Subway Surface Supervisors Assn v New York City Tr Auth, 2014 NY Slip Op 02380, CtApp 4-8-14

 

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No Credit for Civilian Service Under Post December 19, 1990, Tier 3 CO-20 Retirement Plan (Re: 20 Year Early Service Retirement)

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that a corrections officer, a post December 19, 1990, member of the Tier 3 CO-20 New York City Department of Corrections (DOC) retirement plan established by Retirement and Social Security Law 504-a, was not entitled to an additional pension benefit based upon his three years as a non-uniformed civilian employee of the NYC Department of Environmental Protection (DEP). Therefore, the New York City Employees’ Retirement System (NYCERS) properly did not consider the civilian service for the DEP in calculating the corrections officer’s pension benefit:

… [F]or post-December 19, 1990 Tier 3 CO-20 plan members, unlike the other participants in Tier 3 CO-20 plans established by chapter 936, only allowable correction service (i.e., uniformed service) counts towards eligibility for 20-year early service retirement … . Matter of Kaslow v City of New York, 2014 NY Slip Op 02324, 4-3-14

 

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Appraisal Report Lacking Required Supporting Data Properly Struck

The Third Department determined Supreme Court properly struck the appraisal report offered by the petitioner in an effort to reduce the assessed value of petitioner’s golf courses.  The report was struck for failure to include supporting data (required by 22 NYSRR 202.59 [g][2]):

Petitioner’s appraisal report employed the income capitalization approach …, which purported to establish value by capitalizing the anticipated net operating income from a single year by a market oriented capitalization rate. The appraisal report used as a key component income and expenses from two other golf courses, and this information formed the basis for the operating expense ratio. However, the identity of the other two courses used in compiling this information was not provided, but was listed as “confidential” since petitioner’s appraiser had ostensibly obtained the information when working for such courses. We agree with Supreme Court that this information was critical and, since undisclosed, ran afoul of 22 NYCRR 202.59 (g) (2) … . *  *  *

We further note that, even if the presumption regarding the assessor’s value is rebutted, petitioner still had the burden of establishing overvaluation by a preponderance of the evidence …, and we generally accord deference to Supreme Court’s credibility determinations in analyzing the appraisal reports, as well as its decision, so long as they are “not based upon an error of law or against the weight of the evidence” … . Here, Supreme Court set forth several deficiencies in the appraiser’s report and the appraiser’s testimony that caused it to reject petitioner’s contention regarding value. Matter of Bove v Town of Schodack, 516416, 3rd Dept 4-3-14

 

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New York City Street-Sweeping Vehicles Are Now Exempt from the Rules of the Road Pursuant to Vehicle and Traffic Law 1103 (b) (Subject to the “Reckless Disregard” as Opposed to the “Ordinary Negligence” Standard) But Were Not So Exempt in 2010 When this Accident Occurred

The First Department, over a dissent, determined street-sweeping vehicles, at the time of the accident in 2010,  were not “hazard vehicles” exempted from the rules of the road under Vehicle and Traffic Law 1103 (b) (apparently, under the Rules of City of New York Department of Transportation, street-sweeping vehicles are now so exempt:)

…Vehicle and Traffic Law § 1103(b), which exempts “hazard vehicles” from the rules of the road and limits the liability of their owners and operators to reckless disregard for the safety of others …, does not apply to the New York City street-sweeping vehicle involved in the collision with plaintiff’s vehicle that gave rise to this action. Therefore, defendants are subject to the ordinary negligence standard of liability, not the reckless disregard standard on which their motion was based. At the time of the accident, in 2010, Vehicle and Traffic Law § 1103(b) was superseded by Rules of City of New York Department of Transportation (34 RCNY) § 4-02, which excepted street sweepers, among others, from compliance with traffic rules to the limited extent of making such turns and proceeding in such directions as were necessary to perform their operations (34 RCNY 4-02[d][1][iii][A]). While subparagraph (iv) contained a broader exception, expressly invoking Vehicle and Traffic Law § 1103, we find that subparagraph (iv) did not include street sweepers because that would have rendered subparagraph (iii) redundant and meaningless. Indeed, when 34 RCNY 4-02 was amended, in 2013, the City Council explained in its “Statement of Basis and Purpose” that the effect of the adopted rule would be “that operators of DOT and New York City Department of Sanitation snow plows, sand/salt spreaders and sweepers will now be subject to the general exemption set forth in subparagraph (iv) of that same subsection” (emphasis added) — a strong indication that they were not so subject before then. Deleon v New York City Sanitation Dept, 2014 NY Slip Op 02221, 1st Dept 4-1-14

 

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Requirements for a Negligence Action Against a Municipality (Based Upon Personal Injuries Allegedly Caused by the Actions of Police Officers) Explained

The Fourth Department, in affirming the grant of summary judgment to the defendant municipality in a suit based upon injuries alleged to have been caused by police officers, the court explained the law relevant to negligence suits against municipalities:

With respect to the negligence cause of action, it is well settled that, in an action against a municipality, it is “the fundamental obligation of a plaintiff pursuing a negligence cause of action to prove that the putative defendant owed a duty of care. Under the public duty rule, although a municipality owes a general duty to the public at large to [perform certain governmental functions], this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created. This is an offshoot of the general proposition that[,] ‘[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally’ . . . The second principle relevant here relates not to an element of plaintiff[’s] negligence claim but to a defense that [is] potentially available to [defendant]—the governmental function immunity defense . . . [T]he common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions . . . [pursuant to which] ‘[a] public employee’s discretionary acts—meaning conduct involving the exercise of reasoned judgment—may not result in the municipality’s liability even when the conduct is negligent’ ” … .

With respect to the issue whether a special duty exists, it is well settled “that an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public . . . Such a duty, . . . [i.e.,] a duty to exercise reasonable care toward the plaintiff[,] is born of a special relationship between the plaintiff and the governmental entity” … . “A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … . According to plaintiff, a special relationship was formed in this case by the second method, i.e., the voluntary assumption of a duty of care by the municipal agency. That method requires plaintiff to establish “(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 … .

We conclude that defendants met their burden on the motion by establishing as a matter of law that there was no voluntary assumption of a duty of care, and plaintiff failed to raise a triable issue of fact whether the police officers who came to the house assumed, through promise or action, any duty to act on his behalf. Even assuming, arguendo, that plaintiff raised a triable issue of fact with respect to that requirement, we conclude that he also failed to raise a triable issue of fact with respect to the fourth requirement, i.e., whether he justifiably relied on any such assumption of duty by the police officers … . Consequently, we conclude that the court erred in denying the motion with respect to the negligence cause of action.

We further conclude, in any event, that the defense of governmental function immunity constitutes a separate and independent ground for dismissal of the negligence cause of action. That defense “shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions” … . Here, defendants established that they were providing police protection and engaging in the investigation of possible criminal behavior. It is well settled that “[p]olice and fire protection are examples of long-recognized, quintessential governmental functions” … . Furthermore, “defendants established that the conduct of the police officers throughout the course of their interaction with [plaintiff] was undertaken in the exercise of reasoned professional judgment of the officers, and was not inconsistent with accepted police practice. Accordingly, such conduct cannot serve as a basis for municipal liability” … . Bower v City of Lockport…, 159, 4th Dept 3-21-14

 

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Untimely Demand for Reinstatement Warranted Dismissal of Action to Compel Reinstatement

The Fourth Department determined petitioner’s action to compel reinstatement in his job as a policeman was untimely.  Petitioner should have made a demand for reinstatement within four months of learning he was not being held responsible criminally or civilly for the acts of misconduct alleged against him:

“Where, as here, a public employee is discharged without a hearing, the four-month limitations period set forth in CPLR 217 begins to run when the employee’s demand for reinstatement is refused” … . “[T]he demand must be made within a reasonable time after the right to make the demand occurs or . . . within a reasonable time after [petitioner] becomes aware of the facts which give rise to his [or her] right of relief” … , and we note that the four-month limitations period of CPLR article 78 proceedings has been “treat[ed] . . . as a measure of permissible delay in the making of the demand” … . Here, we conclude that petitioner’s right to demand reinstatement to his position arose, at the latest, on or about December 6, 2011, when he received a letter from the District Attorney stating that he bore no civil or criminal responsibility for the acts of misconduct alleged against him, and that the matter would not be presented to the grand jury … . Nevertheless, petitioner did not demand reinstatement to his position until approximately nine months later, on August 31, 2012, well over the four-month guideline applied in Devens … . Thus, “it was [well] within the court’s discretion to determine that petitioner unreasonably delayed in making the demand” … . Matter of Norton v City of Hornell…, 256, 4th Dept 3-21-14

 

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