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Damages in Firefighters’ Discrimination Suit Modified

The Fourth Department modified the Supreme Court’s damages assessment in a case brought by firefighters against the City of Buffalo (and named individuals) “alleging that [the City] discriminated against them by allowing promotional eligibility lists created pursuant to the Civil Service Law to expire solely on the ground that plaintiffs, who were next in line for promotion, were Caucasian.” The order finding the City liable was issued based upon the US Supreme Court’s ruling in Ricci v DeStefano (557 US 557) which held “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious discriminatory action”… .In affirming that order (in a prior appeal), the Fourth Department determined the City “did not have a strong basis in evidence to believe that they would be subject to disparate-impact liability if they failed to take the race-conscious action, i.e., allowing the eligibility lists to expire” … .  The case came before the Fourth Department this time with respect to damages-issues only.  The Fourth Department affirmed the damages for emotional distress, but modified the economic damages finding that Supreme Court had erred in placing the burden of proof on the defendants to establish plaintiffs’ economic damages, and noting that damages for loss of future earnings should be based on the difference between what he or she is now able to earn and what he or she could have earned in the absence of discrimination. The Fourth Department determined some of the expert-findings were too speculative.   Margerum, et al v City of Buffalo, et al, 421, 4th Dept 7-5-13

 

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Exception to Written Notice of Defect Prerequisite Did Not Apply; Question of Fact Whether Municipality Created Dangerous Condition (Gap in Bridge-Roadway)

The Fourth Department, over a dissent, determined the exception to the written notice requirement (notice to a municipality re: a dangerous condition) did not apply, but there was a question of fact whether the municipality created the dangerous condition, a gap in the roadway on a bridge, which caused the infant plaintiff to fall off his bicycle.  The Fourth Department wrote:

Where the municipality establishes that it lacked prior written notice, the burden shifts to the plaintiff to demonstrate the applicability of an exception to the rule, i.e., that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the municipality …. The affirmative negligence exception is “limited to work by the [municipality] that immediately results in the existence of a dangerous condition” ….    An omission on the part of the municipality “does not constitute affirmative negligence excusing noncompliance with the prior written notice requirement”…. We conclude that defendant met its initial burden of establishing as a matter of law that it did not receive prior written notice of any defective or dangerous condition on or near the bridge as required by Local Law No. 1 …. Viewing the evidence in the light most favorable to plaintiff, as we must …, we conclude, however, that plaintiff raised an issue of fact whether defendant created a dangerous condition that caused the accident ….  Hawley v Town of Ovid, 450, 4th Dept 7-5-13

 

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Complaint Against Town for Sewage Backup in Home Dismissed

The Fourth Department affirmed the dismissal of a negligence complaint against a town arising from the backup of sewage in plaintiffs’ house.  The decision includes a concise but complete explanation of the issues relevant to municipal liability for negligence:

In an action against a municipality such as defendant, 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 plaintiffs’ 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’ ” … ..  Middleton v Town of Salina, 604, 4th Dept 7-5-13

 

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Wage Parity Law Which Conditions Medicaid Reimbursement Upon Paying Home Health Services Workers a Minimum Wage Is Constitutional

In a full-fledged opinion by Justice McCarthy, the Third Department determined the Wage Parity Law (Public Health Law section 3614-c), which conditions Medicaid reimbursement upon paying home health services providers a minimum wage as set in New York City’s Living Wage Law, was constitutional. The court rejected arguments that: (1) the Legislature improperly delegated its authority to New York City; (2) the law improperly incorporated the Living Wage Law by reference; (3) extending the New York City law violated the home rule provision of the NY Constitution; and (5) the statute violated the substantive due process requirements.  Matter of Concerned Home Care Providers, Inc v State of New York, 515737, 3rd Dept 7-3-13

 

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Solid Waste Facility Operating Agreement Not a Lease—No Permissive Referendum Required

The Third Department determined that a Solid Waste Facility Operating Agreement between the Town of Colonie and Capital Region Landfills, Inc (CRL) was not a lease, and therefore a permissive referendum was not a pre-requisite to the agreement.  The Third Department wrote:

Town  Law  § 64 (2) provides that, upon adopting a resolution, a town board may “convey or lease real property in the name  of the town, which resolution shall be subject to a permissive referendum.” The petition and amended petition  allege  that, as  the  agreement  is “the  functional equivalent of a lease,” the Town violated Town Law § 64 (2) by adopting  the resolution and  entering into the agreement  without first conducting  a  permissive referendum … . * * *

In view of the significant restrictions on CRL’s authority and control of the landfill and the rights and powers retained by the Town, the agreement does not convey “absolute control and possession” to CRL and is not a lease as a matter of law….

Accordingly, petitioners’ claim  that a  permissive referendum was required by Town Law § 64 (2) is without merit. Matter of Connors v Town of Colonie, 516058, 3rd Dept 7-3-13

 

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Standard for Liability of Members of Volunteer Fire Company

In affirming the denial of plaintiff’s motion for summary judgment, the Second Department explained the standard for finding liability on the part of members of volunteer fire companies:

Members of volunteer fire companies may not be held liable for acts done in the performance of their duties in the absence of “willful negligence or malfeasance” (General Municipal Law § 205-b;…. Here, the plaintiff failed to establish, prima facie, that the manner in which [defendant]. operated the vehicle at the time of the accident constituted willful negligence or malfeasance….  Schleger v Jurcsak, 2013 NY Slip Op 05056, 2nd Dept 7-3-13

 

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Garbage on Sidewalk May Create Liability

The Second Department determined that defendant’s motion for summary judgment should have been denied.  The plaintiff was injured when his bicycle struck garbage and debris on a sidewalk abutting a building owned by defendants.

New York City Administrative Code § 7-210 imposes a duty upon property owners to maintain the sidewalk adjacent to their property. That duty includes the duty to remove “dirt or other material from the sidewalk,” which includes debris on the sidewalk which came from garbage bags placed on the sidewalk by the property owner (New York City Administrative Code § 7-210 [b];…). On their motion for summary judgment, the defendants bore the burden of establishing that they neither created the hazardous condition nor had actual or constructive notice of its existence…. The defendants failed to establish their entitlement to judgment as a matter of law. They failed to demonstrate that they did not create a dangerous condition, nor did they establish that they properly maintained the sidewalk as required by Administrative Code of the City of NY § 7-210… .  Weinberg v 2345 Ocean Assoc, LLC, 2013 NY Slip Op 05060, 2nd  Dept 7-3-13

 

 

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Malicious Prosecution Action Against County, Medical Examiner and District Attorney Survived Motion to Dismiss/Prosecutorial and Governmental Immunity Doctrines Explained

The Fourth Department affirmed Supreme Court’s denial of a motion to dismiss a malicious prosecution (intentional tort) action against two counties, a district attorney and a medical examiner.  The action was commenced after plaintiff was arrested and indicted for the death of his seven-month-old daughter (the indictment was subsequently dismissed).  In explaining the nature of the action, the Fourth Department wrote:

Once a suspect has been indicted, the grand jury action creates a presumption of probable cause….  “If plaintiff is to succeed in his malicious prosecution action after he has been indicted, he must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith” … .  Here, the complaint sufficiently alleges fraud, perjury, and conduct undertaken in bad faith. Plaintiff alleged that the police concluded in their initial investigation, based upon statements by [the medical examiner], that the infant’s death was accidental, and the case was closed. However, after plaintiff’s wife spoke with [the district attorney], [the district attorney] allegedly began a campaign to bring charges against plaintiff despite knowing that plaintiff’s wife was giving inconsistent information. Plaintiff alleged that [the district attorney] encouraged or coached [the medical examiner] to provide false information to the police and false testimony to the grand jury regarding the infant’s cause of death and time of death. Plaintiff further alleged that [the district attorney] and [the medical examiner] were aware that the information was not mentioned in the autopsy report, was not supported by any document, and had no scientific basis.

In concluding the prosecutorial and governmental-function immunity doctrines did not require the dismissal of the complaint, the Fourth Department described the elements of both as follows:

Prosecutorial immunity provides absolute immunity “for conduct of prosecutors that was ‘intimately associated with the judicial phase of the criminal process’ ” …, i.e., conduct that involves “ ‘initiating a prosecution and in presenting the State’s case’ ” ….  Thus, a prosecutor’s conduct in preparing for those functions may be absolutely immune, but acts of investigation are not ….  Prosecutors are afforded only qualified immunity when acting in an investigative capacity…   The focus is on the conduct for which immunity is claimed … .It is therefore the case that, where the prosecutor advises the police … or performs investigative work in order to decide whether a suspect should be arrested …, the prosecutor is not entitled to absolute immunity.  * * *The governmental function immunity defense “shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions” …. This limitation on liability “ ‘reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second- guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury’ ”….

“Whether an action of a governmental employee or official is cloaked with any governmental immunity requires an analysis of the functions and duties of the actor’s particular position and whether they inherently entail the exercise of some discretion and judgment . … If these functions and duties are essentially clerical or routine, no immunity will attach” …. Discretionary acts “involve 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” …. If a functional analysis shows that the employee’s position is sufficiently discretionary, then the municipal defendant must also show “that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated” )….

“[G]overnmental immunity does not attach to every action of an official having discretionary duties but [attaches] only to those involving an exercise of that discretion” …. .

Here, the functions and duties of…the Medical Examiner include conducting an autopsy, reporting his findings to the police, and testifying before a grand jury.  The functions and duties of …an assistant district attorney include evaluating the evidence assembled by police officers. Those functions and duties are discretionary …..

Based on plaintiff’s allegations, however, it cannot be said that the conduct of [the medical examiner] and [the district attorney] was related to an exercise of their discretionary duties. Plaintiff alleged that [the medical examiner] fabricated findings and gave testimony that was not included in his autopsy report, and that [the district attorney] coached [the medical examiner] to lie. That alleged conduct plainly did not involve the exercise of “reasoned judgment which could typically produce different acceptable results” …..  Kirchner v County of Niagara …, 561, 4th Dept 6-28-13

 

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THOSE WHO WORK ON MUNICIPAL VESSELS ARE ENTITLED TO THE PREVAILING WAGE PURSUANT TO LABOR LAW 220 (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Piggot, determined a municipal vessel is public work entitling those who work on a municipal vessel to the prevailing wage pursuant to Labor Law 220:

We hold that a municipal vessel is a public work within the meaning of Labor Law § 220 and article I, § 17 of the State Constitution—so that workers involved in its construction, maintenance or repair must be paid prevailing wages—if the vessel’s primary objective is to benefit the general public. * * *

We …. conclude that a three-prong test should be applied to determine whether a particular project is subject to the prevailing wage requirements of Labor Law § 220 and article I, § 17 of the State Constitution. First, a public agency must be a party to a contract involving the employment of laborers, workers, or mechanics. Second, the contract must concern a project that primarily involves construction-like labor and is paid for by public funds. Third, the primary objective or function of the work product must be the use or other benefit of the general public. …

… Plaintiffs worked on such vessels as the Staten Island Ferry boats, city fireboats, and municipal garbage barges. A ferry boat is, of course, made for the use of the general public, as is a bus or train. While we recognize that a fireboat, tug or barge is not made to be used by the public, there is no doubt that its function is to serve the general public. For example, a New York City fireboat is used by firefighters for the … benefit of the entire City’s public. There is no justification for making fine distinctions between vessels according to whether or not members of the public have access to them. We have not differentiated buildings used by public employees according to whether there is public access … . The dispositive question is whether their primary function is to serve the general public. De La Cruz v Caddell Dry Dock & Repair Co., Inc., 2013 NY Slip Op 04842 [21 NY3d 530], CtApp 6-27-13

 

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Finding that No Environmental Impact Statement (EIS) Needed for Proposed Wind Turbines Reinstated; But Denial of Special Use Permit Upheld

The Third Department reversed Supreme Court’s annulment of a negative declaration with respect to the need for an environmental impact statement (EIS) for a proposed wind turbine installation, but upheld Supreme Court’s denial of a special use permit based on violations of the Town Law’s public hearing and notice requirements (among other grounds).  In describing the review standards for the respondent planning board’s determination an EIS was not required, the Third Department wrote:

….[W]e begin our analysis by noting that an environmental impact statement (hereinafter EIS) is required “‘on any action . . . which may have a significant effect on the environment'”….   A  type I action, such as the project here, “carries with it the presumption that it is likely to have a significant adverse impact on  the environment” (6  NYCRR  617.4 [a] [1];…).   However,  when  a lead agency  “‘determine[s] either that there will be no adverse environmental impacts or that the identified adverse environmental impacts will not be significant,'” it may  issue a negative declaration and, in such instance, no  EIS is required…. “Although the threshold triggering an EIS is relatively low”…, judicial review of a negative declaration is limited to whether “the [lead] agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination”….  In this regard, “[i]t is not the province of the courts to second-guess thoughtful agency decision making and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence”…. Matter of Frigault v Town of Richfield Planning Board, et al, 515528, 3rd Dept 6-27-13

 

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