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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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Orange County Executive Did Not Have Authority to Terminate County Employees Before County Legislature Eliminated Positions

The Second Department reversed Supreme Court and determined the Orange County Executive did not have the authority to terminate county employees before the legislature acted to removed funding for the positions:

The doctrine of “[l]egislative equivalency requires that a position created by a legislative act can only be abolished by correlative legislative act”…. Pursuant to section 2.02(1) of the Orange County Charter and Orange County Administrative Code, the Orange County Legislature possesses sole authority to “establish or abolish positions of employment and titles thereof.” Here, the County Legislature had not taken any action to abolish the subject positions at the time the County Executive terminated the subject employees’ employment. While the Orange County Charter and Orange County Administrative Code give the County Executive the authority to “supervise, direct and control and administer all departments” (Orange County Charter § 3.02[e]; Administrative Code § 3.02[e]), they do not give the County Executive the authority to terminate the employment of civil service employees without a proper abolition of the positions by the County Legislature in accordance with the doctrine of legislative equivalency…. Further, County Charter § 4.10(a) does not authorize the County Executive to undertake any “remedial action” constituting, inter alia, unilateral modification to the budget and/or abolition of legislatively created positions…. Therefore, under these circumstances, the County Executive did not have the authority to terminate the subject employees’ employment for economic reasons, effective October 29, 2010.   Matter of Civil Serv Empls Assn Inc v County of Orange, 2013 NY Slip Op 04798, 2nd Dept 6-26-13

 

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Ambulance Services Provided by Municipality Constitute a Governmental, Not Proprietary, Function

In a full-fledged opinion by Judge Graffeo, with two concurrences, the majority determined ambulance assistance rendered by first responders is a governmental, not proprietary, function.  The majority also concluded a question of fact had been raised about whether the city owed a “special duty” to the plaintiff, who suffered serious brain damage after going into anaphylactic shock.  Judges Smith and Abdus-Salaam disagreed with the majority and would have found that the ambulance service was a proprietary function.  The Court explained:

When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. If the municipality’s actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to non-governmental parties…. A government entity performs a purely proprietary role when its “activities essentially substitute for or supplement traditionally private enterprises”…. In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are “undertaken for the protection and safety of the public pursuant to the general police powers” …. * * *

If it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a “special duty” to the injured party. The core principle is that to “‘sustain liability against a municipality, the duty breached must be more than that owed the public generally'”… .  Applewhite, et al, v Accuhealth, Inc, et al, No 86, CtApp 6-25-13

 

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Town Law Applies to Fire District Election

The Second Department explained that the Town Law, not the Election Law, controls in a fire district election.  The Town Law, unlike the Election Law, does not require that a voter whose registration status cannot be immediately verified provide an affidavit he or she is duly registered to vote. The issue was important because the fire commissioner election was won by one vote and the voter whose status could not be immediately verified did not provide an affidavit:

Town Law § 175-a requires voters in fire district elections to be duly registered to vote (see Town Law § 175-a). However, Town Law § 175-a does not require a voter whose voter registration status cannot be immediately verified to provide an affidavit stating that he or she is duly registered to vote. The Election Law, in contrast, does contain such a requirement (see Election Law § 8-302[e][ii]). Specific Election Law provisions, however, do not apply to fire district elections unless the Town Law makes them specifically applicable …. The Town Law does not reference Election Law § 8-302 in its provisions governing fire district elections, and, as such, the affidavit required under that statute was not required here.  Matter of Buechele v Fairview Fire Dist, 2013 NY Slip Op 04603, 2nd Dept, 6-19-13

 

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Liability Criteria Re: Tenant for Slip and Fall on Abutting Public Sidewalk Explained

In dismissing a cause of action in a slip and fall case against a tenant based upon the alleged condition of an abutting public sidewalk (in which a pair of metal doors leading to the basement of the rented premises were set), the Second Department explained the relevant legal principles as follows:

An owner or occupier of land which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition…, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting owner or lessee “ either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the owner or lessee the obligation to maintain the sidewalk which imposes liability upon that party for injuries caused by a violation of that duty’”…. To recover from a tenant which occupies premises abutting a sidewalk under the theory that the tenant has a special use of the sidewalk, the tenant must be in exclusive possession and control of the alleged special-use area…, and the plaintiff must demonstrate that the special use caused the defective condition which proximately caused his or her injuries….  O’Toole v City of Yonkers, 2013 NY Slip Op 04585, 2nd Dept, 6-19-13

 

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Amendment to Notice of Claim to Add Second Hospital Should Have Been Allowed

In reversing Supreme Court’s denial of petitioner’s application to amend the notice of claim (to add a second hospital) in a wrongful death action against the New York City Health & Hospitals Corporation, the Second Department wrote:

The petitioner’s decedent … was severely beaten on November 10, 2010. He was taken first to Queens Center Hospital and soon thereafter transferred to Elmhurst Hospital for surgery, which took place the same day. The decedent died at Elmhurst Hospital a few days later. The petitioner alleged that the respondents’ employees either did not begin the surgery soon enough or did not perform the surgery correctly. In either event, all of the acts and omissions alleged to have been negligent took place on November 10, 2010. The petitioner’s original notice of claim did not mention Elmhurst Hospital, but the petitioner timely sought leave to amend the notice of claim to, inter alia, add allegations regarding the treatment at Elmhurst Hospital. The Supreme Court denied the relief sought by the petitioner.  All of the conduct alleged to have been negligent took place at the two named hospitals on the same day. Moreover, the respondents’ records noted the decedent’s transfer from Queens Center Hospital to Elmhurst Hospital and detailed all of the treatment rendered that day. The respondents could not have been prejudiced by the proposed amendment of the notice of claim and, under the circumstances, there was no need to treat that amendment as the assertion of a new claim (see General Municipal Law § 50-e[6];…).  Matter of Bingsen Xu v New York City Health & Hosps Corp, 2013 NY 04601, 2nd Dept, 6-19-13

 

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