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HAIL Act Regulating Taxi Cabs and Livery Vehicles in New York City Does Not Violate Home Rule Section of State Constitution

The Court of Appeals, in a full-fledged opinion by Judge Piggot, held that the so-called HAIL Act, which regulates taxi cabs and livery vehicles in New York City, was not an unconstitutional special law in violation of the Home Rule Clause of the New York State Constitution because the statute benefits all New Yorkers, not just New York City residents:

At issue on this appeal is the constitutionality of chapter 602 of the Laws of 2011, as amended by chapter 9 of the Laws of 2012 (“HAIL Act”), which regulates medallion taxicabs (or “yellow cabs”) and livery vehicles, vital parts of New York City’s transportation system. The Act’s stated aim is to address certain mobility deficiencies in the City of New York, namely: the lack of accessible vehicles for residents and non-residents with disabilities; the dearth of available yellow cabs in the four boroughs outside Manhattan (“outer boroughs”), where residents and non-residents must instead rely on livery vehicles; and the sparse availability of yellow cab service outside Manhattan’s central business district. * * *

We conclude that the HAIL Act addresses a matter of substantial State concern. This is not a purely local issue. Millions of people from within and without the State visit the City annually. Some of these visitors are disabled, and will undoubtably benefit from the increase in accessible vehicles in the Manhattan central business district and in the outer boroughs. The Act is for the benefit of all New Yorkers, and not merely those residing within the City. Efficient transportation services in the State’s largest City and international center of commerce is important to the entire State. The Act plainly furthers all of these significant goals. Greater New York Taxi Association v State of New York…, Nos 98, 99, 100, CtApp, 6-6-13

 

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Different Monetary Standards in Wicks Law (Re: Bids for Construction Contracts) for Different Regions of State Did Not Violate Home Rule Section of State Constitution

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that the Wicks Law, as amended, did not violate the Home Rule section of the State Constitution.  The Wicks Law “requires public entities seeking bids on construction contracts to obtain ‘separate specification’ for three ‘subdivisions of the work to be performed’—generally, plumbing, electrical and HVAC…”.  Until 2008 the Wicks Law applied to all contracts which exceeded $50,000.  The 2008 amendment raised the contract-amounts and imposed different thresholds for New York City, Nassau, Suffolk and Westchester Counties, and the 54 remaining counties.  The Home Rule section provides: “(b) Subject to the bill of rights of local governments and other applicable provisions of this constitution, the legislature:  . . .  (2) Shall have the power to act in relation to the property, affairs or government of any local government only by general law, or by special law… .”  There was no attempt to comply with the “special law” requirements.  The Court of Appeals determined that the proper test for determining whether the Home Rule section has been complied with is whether the statute relates primarily to a “matter of State concern:”

“The test is . . . that if the subject be in a substantial degree a matter of State concern, the Legislature may act, though intermingled with it are concerns of the locality… .” * * * This principle controls this case. It can hardly be disputed, and plaintiffs here do not dispute, that the manner of bidding on public construction contracts is a matter of substantial State concern. The existence of the Wicks Law itself for the last century, and of much other legislation governing public contracting (e.g., General Municipal Law § 100-a, [requiring competitive bidding]) attests to this. The very amendments of which plaintiffs complain, though they do not treat all counties alike, unquestionably affect the State as a whole.  Empire State Chapter of Associated Builders and Contractors, Inc…v Smith…, No 101, CtApp, 6-6-13

 

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Lane Abutting Properties Was Not Owned by Property-Owners

The Third Department upheld Supreme Court’s determination that the owners of property which abutted a street or lane did not privately own the lane, because no map was referenced in the relevant deeds, and because of the public use of the lane for more than ten years and maintenance of the street by the village:

Fiebelkorn [a leading case] and its progeny stand for the general proposition that “[w]hen an owner of property sells a lot with reference to a map, and the map shows that the lot abuts upon a street, the conveyance presumptively conveys fee ownership to the center of the street on which the lot abuts, subject to the rights of other lot owners and their invitees to use the entire area of the street for highway purposes”….    This general proposition of law is of no aid to plaintiffs, however, in view of the fact that, among other things, plaintiffs’ deeds contain no reference to a map. * * *

Here, plaintiffs argue that the lane cannot be deemed a village street because (a) it does not qualify as a public street by dedication (see Village Law § 6-610), (b) it does not appear on the state Department of Transportation’s inventory of local roads lying within the Village’s jurisdiction, and (c) the  Village  “has  never  maintained”  it.  Plaintiffs’ dedication argument is misplaced because…dedication is not the sole means by which a village street may be created (see Village Law  § 6-626). …  Kingsley v Village of Cooperstown, 515535, 3rd Dept, 6-6-13

 

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“Hose Company” Not Entitled to Payment of Tax Monies to Fire Department

The Third Department determined that a “hose company” was not part of the fire department and thus was not entitled to the payment of tax monies slated for the fire department:

The members of Citizens Hose are not trained to perform interior or exterior firefighting and, on the rare occasions when they are paged to assist the fire department, the few members who respond are limited to performing auxiliary services such as coiling hoses, directing traffic and  cleaning equipment. The evidence at trial established that whenever  the fire department  requires assistance in actually fighting a fire, it makes  a mutual aid call to volunteer fire companies in surrounding communities. Citizens Hose is not part of the mutual aid call system.  Krol … v Porter, 516002, 3rd Dept, 5-30-13

 

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Emergency Doctrine Did Not Apply to Police Officer’s Striking Plaintiff with Patrol Car​

In reversing Supreme Court, the Second Department determined the emergency doctrine did not apply to a police officer’s striking the plaintiff with his patrol car and ordinary negligence principles applied:

In the instant case, Officer DeMarco acknowledged that he did not see the plaintiff until after he struck him with his car. His conduct – the failure to see that which was there to be seen – was not conduct specified in Vehicle and Traffic Law § 1104(b) as exempt from the rules of the road …. Accordingly, his conduct was governed by the principles of ordinary negligence …. In any event, since Officer DeMarco acknowledged at his deposition that, at the time he struck the plaintiff, he was “not aware of any emergency situation that needed to be addressed,” the common-law emergency doctrine is not applicable to this case. Accordingly, the fifth affirmative defense, which is based upon Vehicle and Traffic Law § 1104, and the sixth affirmative defense, which is based upon the common-law emergency doctrine, must be dismissed.

Under the principles of ordinary negligence, Officer DeMarco’s failure to see what was there to be seen established the plaintiff’s entitlement to judgment as a matter of law on the issue of liability… . Starkman v City of Long Beach, 2013 NY Slip Op 03829, 2nd Dept, 5-29-13

TRAFFIC ACCIDENTS

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Town Failed to Demonstrate It Conducted a Sufficient Search for Written Notice of Defect in Slip and Fall Case

The Second Department determined a slip and fall case could go ahead because the town failed to submit sufficient proof in its summary judgment motion that town records were searched for the notice:

Here, the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law on the ground that it had no prior written notice of the alleged defect in the parking lot…. In support of its motion, the defendant submitted the deposition testimony of its deputy director of the Department of General Services and an affidavit from its deputy comptroller. However, neither of those individuals averred that they had specifically searched the records maintained by the Town Clerk and the Town Superintendent of Highways to determine whether the defendant had prior written notice of the defect at issue. Accordingly, the burden never shifted to the plaintiff to raise a triable issue of fact, and this Court need not review the sufficiency of the plaintiff’s opposition papers ….  Betz v Town of Huntington, 2013 NY Slip Op 03809, 2nd Dept, 5-29-13

 

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Intentional Infliction of Emotional Distress Action Against Governmental Entity Barred by Public Policy

In affirming the dismissal of plaintiff’s complaint for false arrest, malicious prosecution, assault and battery, etc., the Second Department noted:  “ [p]ublic policy bars claims for intentional infliction of emotional distress against a governmental entity’”… .  Rodgers v City of New York, 2013 NY Slip Op 03926, 2nd Dept, 5-29-13

 

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Town Failed to Demonstrate It Did Not Create Dangerous Condition—Summary Judgment in Favor of Town Denied—Exception to Written Notice Requirement​

The Second Department determined, in a slip and fall case, the town did not demonstrate (in support of its motion for summary judgment) that it did not create the alleged dangerous condition (an allegedly inadequate cover on a catch basin):

If one of the recognized exceptions applies, written notice [of a defect] is not required…. Here, the plaintiff clearly alleged in her pleadings that the Town’s construction of the catch basin was faulty in that an inadequate cover was installed on the catch basin. Consequently, the Town was required to address that issue satisfactorily as part of its initial burden on its motion for summary judgment…. The Town failed to establish, prima facie, that it had not created the dangerous condition by placement of an inadequate cover on the catch basin; in this respect, a defendant does not establish its entitlement to summary judgment merely by pointing out gaps in the plaintiff’s case …. In the absence of the required showing, the Town’s motion was properly denied, without regard to the sufficiency of the plaintiffs’ papers submitted in opposition….  Giaquinto v Town of Hempstead, 2013 NY Slip Op 03814, 2nd Dept, 5-29-13

 

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New York City Administrative Code Imposing a $2000 Fine for Removal Recyclable Material from Curb Violated Excessive-Fines Clauses​

In a full-fledged opinion by Justice Richter, the First Department determined the New York City Administrative Code provision which imposed a $2000 fine for the removal of recyclable material from the curb violated the Eighth Amendment as applied.  The code provision was designed to prevent large scale removal of recyclable material which deprived the City of recycling income. The petitioner was an artist who used recyclable material in his work.  He picked up a television antenna which had been put out on the curb.  He was pulled over by the NYC sanitation police, given a summons mandating a $2000 fine, and his vehicle was seized.  The First Department wrote:

It is undisputed that petitioner violated the relevant Administrative Code provision—he removed and transported a recyclable object using a motor vehicle. Nevertheless, under the specific circumstances here, we conclude that the mandatory $2,000 penalty amounts to an unconstitutionally excessive fine. The Eighth Amendment of the United States Constitution forbids the imposition of “excessive fines.” The New York State Constitution contains the same prohibition (art I, § 5). The Excessive Fines Clause ” limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense””… . A fine is unconstitutionally excessive if it “notably exceeds in amount that which is reasonable, usual, proper or just” …. Thus, the Excessive Fines Clause is violated where the fine is “grossly disproportional to the gravity of [the] offense”… . Matter of Prince v City of New York, 2013 NY Slip Op 03623, 1st Dept, 5-21-1

 

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Statutorily-Mandated Venue Is Not Jurisdictional and Is Waivable

In a full-fledged opinion by Justice Dillon, the Second Department discussed, in great detail, the relevant statutes and case law concerning the venue provisions in the CPLR and venue as mandated in the New York City Health & Hospitals Corporation (NYCHHC) Act. The Second Department determined NYCHHC Act’s statutorily-mandated venue is not jurisdictional and can be waived:

In sum, since the NYCHHC chose to waive the venue provision contained in section 7401(3) of the New York City Health and Hospitals Corporation Act for actions brought against it upon the consolidation of the plaintiffs’ two actions, and absent a showing of any special circumstances demonstrating that venue be placed in Bronx County [the statutorily-mandated venue], we conclude that the Supreme Court providently exercised its discretion in placing venue in Westchester County, where the first of the related actions was commenced. Wager v Pelham Union Free Sch Dist, 2013 NY Slip Op 03475, 2nd Dept, 5-15-13

 

 

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