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Dismissal of Slip and Fall Case at Summary Judgment Stage Was Premature Where Relevant Evidence Is Entirely Within the Control of the Defendants

The Third Department determined summary judgment granted to the village and county in a slip and fall case should have been denied.  Plaintiff tripped on patched pavement on an approach to a bridge.  There was a question of fact whether the county or the village was responsible for repairs in that area.  Because the information regarding the repairs was totally beyond the control of the plaintiff, dismissal at the summary judgment stage was premature:

…[P]laintiffs have not produced any direct evidence that either the County or the Village performed the patching that plaintiffs’ expert says caused plaintiff’s injury.  Notably, however, neither defendant produced written policies, repair logs, inspection reports or other documentation – other than the survey – to support their respective claims; both deny that any pertinent records exist and rely exclusively upon the testimony of their officials.  The pertinent facts are entirely outside plaintiffs’ knowledge and within the exclusive knowledge of the parties moving for summary judgment – a circumstance in which summary judgment is inappropriate … .  In the absence of direct evidence, plaintiffs are forced to rely solely on circumstantial evidence to oppose defendants’ summary judgment motion – that is, the inference that, given the claim of each defendant that the other bears responsibility for maintaining the bridge approach, and the dearth of evidence that any other entity has such responsibility or authority, one of them must have performed the repairs that allegedly caused plaintiff’s accident … .   In these circumstances, “[a]lthough plaintiffs clearly will bear the burden of proof on the issue at trial, they raised sufficient issues of fact in the context of [these] summary judgment motion[s] to warrant having the circumstantial evidence and defendants’ credibility concerning the [creation of the defect] tested by cross-examination and assessed by the trier of fact”… . Guimond v Village of Keeseville, 515869, 516320, 3rd Dept 1-9-13

 

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Violation of a Local Law Did Not Demonstrate a Horse Pen Constituted a Private Per Se Nuisance

The Third Department determined summary judgment was properly denied for a nuisance cause of action.  The fact that a horse pen was 100 feet from a home, and was therefore in violation of a local law requiring a distance of 500 feet, did not demonstrate per se nuisance:

The per se nuisance claim is based upon the undisputed location of plaintiffs’ horse pen about 100 feet from defendants’ home, in alleged violation of a local law that requires such pens to be separated from dwellings by at least 500 feet (see Local Law No. 1 [2010] of Village of Valley Falls § 9).  We disagree with defendants that the declaration in the local law that such a violation is a “nuisance” (see Local Law No. 1 [2010] of Village of Valley Falls § 7) is sufficient, without more, to establish their claim of nuisance per se….  A showing that the pen is unlawful excuses defendants only from proving that plaintiffs’ actions were negligent or intentional; the other elements of a nuisance cause of action must still be shown … .  A private nuisance claim requires a showing of “intentional action or inaction that substantially and unreasonably interferes with other people’s use and enjoyment of their property” … . Defendants did not prove entitlement to summary judgment on the per se nuisance claim, as they relied exclusively on the alleged local law violation and offered no proof that the horse pen’s placement caused a substantial or unreasonable interference – and notably, such determinations “ordinarily turn[] on questions of fact”… . Overocker v Madigan, 516957, 3rd Dept 1-9-14

 

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Court Does Not Have the Power to Determine Whether Arbitrator Misinterpreted Collective Bargaining Agreement/Court Can Not Review Merits of Arbitrator’s Determination

The Second Department determined Supreme Court should not have vacated the arbitrator’s award because the award was not “irrational:”

“[J]udicial review of arbitration awards is extremely limited” … . In determining any matter arising under CPLR article 75, “the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute” (CPLR 7501). Accordingly, it is ” not for the courts to interpret the substantive conditions of [a] contract or to [otherwise] determine the merits'” … . “An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached'” … .

The Court of Appeals has recognized “three narrow grounds that may form the basis for vacating an arbitrator’s award—that it violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power”… . As relevant here, an arbitrator exceeds his or her power if the award “g[ives] a completely irrational construction to the provisions in dispute and, in effect, ma[kes] a new contract for the parties” …

The petitioner’s contention that the arbitrator misinterpreted the terms of the collective bargaining agreement constitutes a challenge to the merits of the arbitrator’s determination … . Since the arbitrator’s determination was not “completely irrational” … , the petitioner’s challenge to the merits of the arbitrator’s determination does not provide a ground for vacating that determination… . Matter of Sheriff Officers Assn Inc v Nassau County, 2014 NY Slip Op 00108, 2nd Dept 1-8-14

 

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Plaintiff Did Not Raise Question of Fact About Whether Municipality Had Notice of Sidewalk Defect and Was Affirmatively Negligent

The Fourth Department, over a dissent, determined the plaintiff failed to raise a question of fact about whether the municipality created a dangerous condition by placing a piece of plywood over a hole in a sidewalk.  There was evidence the municipality had received a work order for the area in question and the area was inspected but no problem was found.  There was no evidence the municipality was responsible for placing the plywood over the hole:

Contrary to plaintiff’s contention, the court properly determined that the City’s prior written notice requirement applies inasmuch as the area where the accident occurred is part of the sidewalk … .  Because the City established in support of its motion that it did not receive prior written notice, the burden shifted to plaintiff to demonstrate the applicability of an exception to that requirement … .  We agree with defendants that the court erred in determining that plaintiff met that burden by establishing that such an exception applies, i.e., that the City was affirmatively negligent … .  Although plaintiff submitted a preaccident “work order” to the City for the location in question, she failed to adduce any evidence that the City placed the plywood over the hole in which she fell.  Further, the City established that, in response to the “work order,” it dispatched an employee who testified that he inspected the area in question, found nothing wrong with it, and performed no work. Thus, plaintiff failed to raise an issue of fact “whether the City created a defective condition within the meaning of the exception” to defeat defendants’ motion … . Pulver v City of Fulton …, 1086, 4th Dept 1-3-14

 

Imposition of a Recreation Fee on New Construction In Lieu of Land for a Park Was Proper Pursuant to Town Law 277

The Fourth Department determined Supreme Court should not have annulled the town’s imposition of a recreation fee upon each apartment and townhouse in a subdivision plat, in lieu of land for a park, pursuant to Town Law 277:

Inasmuch as the Court of Appeals has rejected the notion that section 277 (4) is a “taxing” statute …, we must decide whether respondent’s determination that the Town needs “additional funds to develop parks and recreational facilities,” not additional land, is consistent with the legislative purpose of that statute.  The Court of Appeals has recognized that section 277 (4) “ ‘represents a legislative reaction to the threatened loss of open land available for park and recreational purposes resulting from the process of development in suburban areas and the continuing demands of the growing populations in such areas for additional park and recreational facilities’ ” … .  In that vein, section 277 (4) (b) provides that a set-aside of land for a park or other recreational purposes may be required if the planning board has made a finding that a proper case for such land exists.  That section further provides that “[s]uch findings shall include an evaluation of the present and anticipated future needs for park and recreational facilities in the town based on projected population growth to which the particular subdivision plat will contribute” (id. [emphasis added]).  Section 277 (4) (c) provides that, in the event the planning board determines that a park may not be suitably located on the subdivision plat, “[a]ny monies required by the planning board in lieu of land for park, playground or other recreational purposes, pursuant to the provisions of this section, shall be deposited into a trust fund to be used by the town exclusively for park, playground or other recreational purposes, including the acquisition of property” (emphasis added).

Here, the court concluded that the assessment of recreation fees was unjustified because respondent found that the Town did not need more recreational land.  As noted, however, Town Law § 277 (4) provides that concern over population demand for additional recreational facilities and the unsuitability of the plat at issue may justify the assessment of recreation fees.  Furthermore, contrary to petitioners’ contention, the application of section 277 involves a town-based review, not a plat-based review.  We thus conclude that the court erred in determining that respondent acted irrationally in imposing the recreation fees at issue… . Matter of Legacy at Fairways LLC… v Planning Board of Town of Victor, 1063, 4th Dept 12-27-13

 

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Criteria for Review of Agency’s Condemnation of Land Explained/Failure to Consider Future Development of Land Did Not Constitute Improper Segmentation of Environmental Impact Review

The Fourth Department determined the condemnation of land by the Lockport Industrial Development Agency (LIDA) and the related State Environmental Quality Review Act (SEQRA) review were properly done. The court determined that the failure to consider future development of the land did not amount to an improper segmentation of the SEQRA review process: The court explained its review powers in this context as follows:

It is well settled that the scope of our review of LIDA’s determination is “very limited” … .  We must “ ‘either confirm or reject [LIDA’s] determination and findings,’ and [our] review is confined to whether (1) the proceeding was constitutionally sound; (2) [LIDA] had the requisite authority; (3) its determination complied with SEQRA and EDPL article 2; and (4) the acquisition will serve a public use” (id.; see EDPL 207 [C]).  “The burden is on the party challenging the condemnation to establish that the determination ‘was without foundation and baseless’ . . . Thus, ‘[i]f an adequate basis for a determination is shown and the objector cannot show that the determination was without foundation, the [condemnor’s] determination should be confirmed’… . * * *

Although LIDA considered only the impact of the acquisition and not the impact of potential development, we reject [the] contention that LIDA thereby improperly segmented the SEQRA review process (see 6 NYCRR 617.2 [ag]).  Although LIDA intends to sell the property to a potential developer, there was no identified purchaser or specific plan for development at the time the SEQRA review was conducted …, and thus we conclude that under these facts the acquisition is not a “separate part[] ‘of a set of activities or steps’ in a single action or project”… . Matter of GM Components Holdings LLC v Town of Lockport Industrial Development Agency, 1275, 4th Dept 12-27-13

 

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No Special Duty Owed to Claimant/County Clerk Cannot Be Sued For Failure to Properly Docket a Judgment

In a full-fledged opinion by Justice Angiolillo, the Second Department determined that the County Clerk could not be sued by a judgment debtor based on the clerk’s failure to properly docket a judgment.  The court held that no special duty of care was owed by the municipality to the claimant, and therefore it was unnecessary to address the “sovereign immunity” and “discretionary” versus “ministerial” issues:

A “special duty” is “a duty to exercise reasonable care toward the plaintiff,” and is “born of a special relationship between the plaintiff and the governmental entity” (Pelaez v Seide, 2 NY3d 186, 189, 198-199; see McLean v City of New York, 12 NY3d at 199).

“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” (Pelaez v Seide, 2 NY3d at 199-200; see McLean v City of New York, 12 NY3d at 199). * * *

To satisfy the first and second prerequisites, the claimant must be “one of the class for whose particular benefit the statute was enacted,” and it must be shown that “recognition of a private right of action would promote the legislative purpose” of the governing statutes … . A determination that these two prerequisites are met here would require us to conclude that the class for whose particular benefit the governing statutes were enacted comprises judgment creditors, and that the legislative purpose of the statutory scheme was to make judgment creditors whole for their losses. This is simply not the case. * * *

In any event, even if the first two prerequisites have been met, the third one has not. “[T]he most critical inquiry in determining whether to recognize a private cause of action where one is not expressly provided is whether such action would be consistent with the over-all legislative scheme” … . A private right of action for a new type of claim should not be judicially recognized by implication “where the statutes in question already contain[ ] substantial enforcement mechanisms, indicating that the Legislature considered how best to effectuate its intent and provided the avenues for relief it deemed warranted” … . The judgment lien created by CPLR 5018 and 5203 is simply one weapon in the “arsenal of enforcement mechanisms under CPLR article 52” provided to judgment creditors… .  Flagstar Bank FSB v State of New York, 2013 NY Slip Op 08592, 2nd Dept 12-26-13

 

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Administrative Decision Maker, Who Had Previously Ruled Against Petitioner/Employee in Disciplinary Proceedings, Should Have Been Disqualified from Reviewing Hearing Officer’s Recommendations Made in a Related Subsequent Proceeding

The Third Department, over a partial dissent, determined the mayor (Bertoni), who ruled against the petitioner/employee on disciplinary charges, should have been disqualified from reviewing the hearing officer’s recommendations made in a subsequent PERB hearing.  After noting petitioner could properly be punished for testifying falsely in the hearings, the Third Department explained:

Reversal is required … because Bertoni should have been disqualified from reviewing the Hearing Officer’s recommendations.  To be sure, an administrative decision maker is not deemed biased or disqualified merely on the basis that he or she reviewed a previous administrative determination and ruled against the same employee, or presided over a prior proceeding involving a similar defense or similar charges … .  However, where, as here, there is evidence indicating that the administrative decision maker may have prejudged the matter at issue, disqualification is required… . Botsford v Bertoni, 516709, 3rd Dept 12-26-13

 

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No Constitutional Issue Raised by Claim that County Is Paying Too High a “Mobility Tax” Because It Does Not Receive as Much Transit Service as Other Counties Paying the Same Amount

The Third Department affirmed the dismissal of two causes of action brought by a county challenging a “mobility tax” imposed upon counties served by the Metropolitan Transportation Authority (MTA).  The county alleged the mobility tax was disproportionately high because it did not receive as much service as other counties paying the same amount:

The gravamen of both claims is that the funding provided to the MTA by the County is disproportionately high when compared to the transit services received by it in return.  The MTA undoubtedly provides services to the County and its residents, however, and “[e]ven a ‘flagrant unevenness’ in application” of the financing scheme used to fund the MTA is constitutionally permissible … .

Without more, the fact that the County purportedly receives “fewer benefits from the [MTA] than those received by other[s] . . . is insufficient to warrant the relief requested” … .  Plaintiffs have not pointed to any constitutional or statutory provision that is violated by this alleged misallocation of resources and, as such, the sixth and seventh causes of action present nothing more than a nonjusticiable and impermissible attempt “to substitute judicial oversight for the discretionary management of public business by public officials” … .  Supreme Court thus acted properly in granting the MTA defendants’ motion for summary judgment.  Vanderhoff… v Silver, 516180, 3rd Dept 12-19-13

 

 

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Police Officer’s Actions In a Private Dispute Could Not Be Invoked Against Municipality Under Doctrine of Respondeat Superior

The Third Department determined that the doctrine of respondeat superior could not be invoked against a municipality for the actions of an off-duty police officer, even where the officer characterized his actions as an arrest.  Here the police officer injured the plaintiff in a private dispute that had nothing to do with the officer’s official duties:

“The doctrine of respondeat superior renders an employer vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment” … .  Thus, “where an employee’s actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment” … .  Notably, and as is relevant to the matter before us, “[a] municipality cannot be held vicariously liable for acts perpetrated by a member of its police force in the course of engaging in a personal dispute, without any genuine official purpose, whether or not the police officer characterizes such conduct as an arrest or incident to an arrest” … . Stevens v Kellar, 516875, 3rd Dept 12-19-13

 

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