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Valid Cause of Action Stated in Slip and Fall Suit Against Abutting Property Owner for Obstruction in Sidewalk (Gas Cap Cover)

The Second Department reversed Supreme Court and determined the slip and fall complaint stated a cause of action against the owner of property abutting a sidewalk.  In the sidewalk was a gas cap cover, owned by a utility, and concrete on top of the gas cap created raised area which was alleged to have caused plaintiff to fall.  A Long Beach City Ordinance imposed a duty upon abutting landowners to remove obstructions. The defendant relied heavily on cases construing New York City’s sidewalk law, which differed from the more broadly worded Long Beach ordinance:

The Charter imposes broad obligations on abutting landowners with respect to the condition of sidewalks, and also provides for tort liability on those landowners:

“The owner . . . of lands fronting or abutting on any street . . . shall make, maintain and repair the sidewalk . . . adjoining his lands and shall keep such sidewalk . . . free and clear of and from snow, ice and all other obstructions. Such owner . . . shall be liable for any injury or damage by reason of omission, failure or negligence to make, maintain or repair such sidewalk . . . or to remove snow, ice or other obstructions therefrom, or for a violation or nonobservance of the ordinances relating to making, maintaining and repairing sidewalks . . . and the removal of snow, ice and other obstructions from sidewalks” (Charter § 256 …).

The Code of Ordinances of the City of Long Beach defines “sidewalk” as “any portion of a street between the curbline and the adjacent property line, intended for the use of pedestrians, excluding parkways” (Code of Ordinances of the City of Long Beach § 1-2). Here, the gas cap was located entirely within a sidewalk flag and was level with the sidewalk, and therefore apparently was intended to be traversed by pedestrians. Thus, the plaintiff contends, the concrete above the gas cap is covered by Long Beach’s sidewalk law, at least to the extent that it may have been an “obstruction” on the sidewalk. Klau v Belair Bldg LLC, 2013 NY Slip Op 06548, 2nd Dept 10-9-13

 

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Question of Fact About Whether Village Negligent in Maintaining Sewer System

The Fourth Department reversed Supreme Court and determined plaintiffs had raised a question of fact about whether the defendant village was negligent in maintaining the sewer system resulting in sewage leaking into plaintiffs’ basement:

We conclude that issues of fact exist whether defendant “received ‘notice of a dangerous condition or ha[d] reason to believe that the [sewer] pipes ha[d] shifted or deteriorated and [were] likely to cause injury’ ” and whether defendant neglected to “ ‘make reasonable efforts to inspect and repair the defect’ ” … .  The record establishes that plaintiffs made numerous complaints to defendant for many years prior to the incident at issue and that defendant did not consistently keep written records of the complaints it received with respect to the sewer lines.  Mason v Village of Neward, 856, 4th Dept. 10-4-13

 

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City Code and Charter Not Unconstitutionally Applied Re: Searches Related to Certificates of Occupancy

The Fourth Department reversed Supreme Court’s grant of an Article 78 petition. In granting the petition, Supreme Court found that the relevant provisions of the city code and charter were unconstitutional as applied with respect to searches of petitioner’s property in connection with the issuance of certificates of occupancy.  In reversing that determination, the Fourth Department wrote:

We have previously upheld as constitutional the City’s CO requirement as well as its procedure for issuing judicial warrants for inspections of premises in cases where the City has failed to obtain the consent of the homeowners or tenants … .  Petitioner concedes that the laws at issue are valid on – their face, but contends that the determination that he violated City Code § 90-16 (A) (2) (d) is unconstitutional because, as a result of the determination, he will be required to consent to a warrantless inspection of his property or risk prosecution and fines.  That contention, however, was specifically considered and rejected by this Court in Matter of Burns v Carballada (101 AD3d 1610, 1611-1612), which involved facts nearly identical to those herein.  The petitioners in Burns commenced a CPLR article 78 proceeding seeking to annul two determinations of the Municipal Code Violations Bureau finding that they violated City Code § 90-16 (A) (2) (d), the same provision at issue here, by owning rental property that was occupied without a valid CO (id. at 1610).  In the Burns petition, like the petition in this case, petitioners asserted, inter alia, that the determinations that they failed to comply with the City Code CO provision violated the Fourth Amendment and article I, § 12 of the New York State Constitution (id.).  Specifically, petitioners contended that the City’s CO inspection and warrant system was unconstitutional as applied to them because it prevented them from obtaining a CO without first consenting to a warrantless search of their properties (id. at 1611-1612).  We rejected that contention and stated that, “[u]nder the City’s ordinance, . . . an inspection can take place either upon consent or upon the issuance of a warrant (see City Charter § 1-11).  On the record before us, petitioners have not shown that they were actually penalized for refusing to allow an inspection inasmuch as there is no evidence that they ever applied for a CO and thereafter refused to consent to the required inspection of their properties” (id. at 1612).  Matter of Capon v Carballada…, 858, 4th Dept 9-27-13

 

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Criteria for County’s Immunity from Village Ordinances Explained

In remitting the matter to create a more complete record, the Fourth Department explained the criteria for determining whether the county is immune from the requirements of village ordinances prohibiting the use of the village sanitary system for a county jail within the village limits:

We agree with the Village that the record is inadequate to make a determination, based upon a “balancing of public interests,” whether the County is immune from the requirements of those amendments with respect to its siting of the proposed Facility … .  The factors to be weighed in making that determination are “the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests[,] . . . the applicant’s legislative grant of authority, alternative locations for the facility in less restrictive zoning areas, . . . alternative methods of providing the needed improvement[,] . . . intergovernmental participation in the project development process and an opportunity to be heard” … .  Here, inasmuch as the record is inadequate to permit the appropriate balancing of those factors, we remit the matter to Supreme Court for a determination, based upon a more complete record, whether the County is immune from the requirements of the Village zoning ordinance… . Matter of County of Herkimer v Village of Herkimer, 937, 4th Dept 9-27-13.

 

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Question of Fact Whether City Had Notice of Pothole in Bicycle-Injury Case; Big Apple Pothole Map May Have Provided Notice

The Second Department affirmed the denial of defendant’s motion for summary judgment in a pothole bicycle-injury case.  The court determined that there was a question of fact about exactly where the pothole was and whether it was indicated on the Department of Transportation’s Big Apple Pothole map:

…”[W]here a municipality has enacted a prior written notice statute such as Administrative Code of the City of New York § 7-201(c)(2), it may not be subjected to liability for injuries arising from a defective roadway unless it has received timely prior written notice of the defective condition” … . A Big Apple map submitted to the Department of Transportation may serve as prior written notice of a defective condition … .

Here, the defendants failed to establish, prima facie, that they did not have prior written notice of the alleged defect. Where, as here, “there are factual disputes regarding the precise location of the defect that allegedly caused a plaintiff’s fall, and whether the alleged defect is designated on the map, the question should be resolved by the jury”… Chia v City of New York, 2013 NY slip Op 05873, 2nd Dept 9-18-13

 

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Four-Year Statute of Limitations for Rent Overcharge Claim

The Second Department explained the four-year statute of limitations for a rent overcharge claim:

“A rent overcharge claim, whether made in a judicial or administrative forum, is subject to a four-year statute of limitations” (… see CPLR 213-a; Administrative Code of City of NY § 26-516[a][2]). “[T]he Rent Regulation [*2]Reform Act of 1997 (RRRA) (L 1997, ch 116) clarified and reinforced the four-year statute of limitations applicable to rent overcharge claims (see Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-516[a])” …, “preclud[ing] a court from examining the rental history of a housing accommodation prior to the four-year period preceding the filing of the rent overcharge complaint” …, except in situations where there are substantial indicia of fraud.

Here, the DHCR [NYS Division of Housing and Community Renewal] properly determined that July 17, 2005, was the “base date” of this proceeding, that is, the date four years prior to the filing of the relevant rent overcharge complaint. The DHCR properly refused to examine the rental history of the subject apartment prior to the “base date,” since there is no merit to the petitioner’s contention that there were substantial indicia of fraud in connection with the landlord’s establishment of the amount of the initial legal registered rent… .  Matter of Watson v New York State Div of Hous & Community Renewal…, 2013 NY Slip Op 05828, 2nd Dept 9-11-13

 

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“Professional Judgment Rule” Did Not Preclude Lawsuit; Plaintiff Bitten by Police Dog While Assisting Police in a Search

The plaintiff was bitten by a police dog while assisting the police in a search.  Supreme Court denied defendants’ motion for summary judgment and the Second Department affirmed, explaining there was a question of fact about whether the “professional judgment rule” applied:

“The professional judgment rule insulates a municipality from liability for its employees’ performance of their duties where the . . . conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions” … . However, “the immunity afforded a municipality for its employee’s discretionary conduct does not extend to situations where the employee, a police officer, violates acceptable police practice” … .

Here, the defendants did not establish their prima facie entitlement to judgment as a matter of law. A question of fact with respect to whether the conduct of the dog’s handler was consistent with acceptable police practice was presented by the defendants’ evidentiary submissions … . Accordingly, summary judgment was properly denied … .  Newsome v County of Suffolk, 2013 NY Slip Op 05805, 2nd Dept 9-11-13

 

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School District Did Not Owe Special Duty to Plaintiff Injured in Fight After Hours on School Grounds; Failure to Lock Gate Not Proximate Cause of Injury

Plaintiff was assaulted on an athletic filed owned by defendant school district while in a group which was on the field without permission at 9:30 pm. The plaintiff alleged the school district was negligent in not providing security and in not locking the gates to the field. The Second Department determined the school district owed no special duty to the plaintiff and the failure to lock the gates was not the proximate cause of the injury:

The “provision of security against physical attacks by third parties . . . is a governmental function . . . and . . . no liability arises from the performance of such a function absent a special duty of protection” … . This special duty arises when a municipality assumes an affirmative duty to act on behalf of a specific party, and that party justifiably relies on the direct assurances of the municipality’s agents … .

… The mere provision of security does not give rise to a special duty of protection …. The District established that it did not make direct assurances regarding security to the infant plaintiff and that he did not rely on the provision of security in deciding to congregate with others on the field. * * *

A public entity may not escape liability for negligent acts which it performs in a proprietary capacity and which are a proximate cause of an injury which was sustained as the result of a foreseeable act by a third party … . However, the District demonstrated, prima facie, that the failure to lock the gates accessing the field was not a proximate cause of the infant plaintiff’s injuries, since the assault here was not a foreseeable act. In opposition, the plaintiffs failed to raise a triable issue of fact. Weisbecker v West Islip Union Free Sch Dist, 2013 NY slip Op 05743, 2nd Dept 8-28-13

 

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Questions of Fact Raised Whether Negligent Diversion of Water by Private Property Owner and Negligent Repair by Town Caused Dangerous Icy- Road-Condition; Defendant Driver Lost Control of Her Car on the Ice and Collided with Plaintiffs

The Second Department determined that questions of fact existed about whether defendant abutting property owner (Gromley) and the defendant town created the icy road condition that caused defendant driver to lose control of her car, thereby allegedly injuring the plaintiffs in a collision with the school bus in which plaintiffs were riding:

A private landowner may be liable for injuries sustained in a car accident that is proximately caused by an ice condition occurring on an abutting public roadway, where that ice condition was caused and created by the artificial diversion of naturally flowing water from the private landowner’s property onto the public roadway… . … [T]he plaintiffs raised a triable issue of fact as to whether the artificially diverted water from the Gormley defendants’ property contributed to the ice condition on the subject roadway that caused [defendant driver] to lose control of her car and collide with the school bus… . * * *

…[T]he plaintiffs raised a triable issue of fact as to whether the Town affirmatively created the condition through an act of its own negligence, and whether the Town’s negligence at the time the road was repaired immediately resulted in the existence of the hazardous condition … . Cebron v Tuncoglu, 2013 NY slip Op 05729, 2nd Dept 8-28-13

 

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Overriding Village Legislative Cap on Number of Taxicab Licenses Not a Proper Subject of Mandamus Action—Applicability of Mandamus Explained

In reversing Supreme Court, the Second Department determined the Article 78 proceeding which sought to override a legislative cap on the number of taxicab licenses which could be issued by the village was not a proper subject of a mandamus action:

“The extraordinary remedy of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief has been demonstrated” .. . “A discretionary act involves the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … . Thus, mandamus may be employed “to compel acts that officials are duty-bound to perform” … . However, mandamus will not lie to compel the performance of a purely legislative function … . “[T]he courts must be careful to avoid . . . the fashioning of orders or judgments that go beyond any mandatory directives of existing statutes and regulations and intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches”… .  Matter of Gonzalez v Village of Port Chester, 2013 NY slip Op 05691, 2nd Dept 8-21-13

 

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