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Dismissal as Time-Barred Is a Dismissal On the Merits for Purposes of Res Judicata

In an article 78 action challenging the prohibition (by the Buffalo Fiscal Stability Authority) of the implementation of a wage increase pursuant to a collective bargaining agreement, the Fourth Department noted that the dismissal of an action as time-barred is a determination on the merits for res judicata purposes:  “It is well established that a dismissal of a proceeding as time-barred “ ‘is equivalent to a determination on the merits for res judicata purposes’”… . Matter of Buffalo Professional Firefighters Association, Inc…, CA 12-02126, 371, 4th Dept, 4-26-13

 

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Criteria for Appellate Review of Arbitrator’s Award 

The Fourth Department explained the criteria for review of an arbitrator’s award (which involved the writing of a collective bargaining agreement) as follows:

Respondents failed to meet their “heavy burden of demonstrating that the arbitrator[s’] award is . . . totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … . Where, as here, the role of the arbitration panel is to “write collective bargaining agreements for the parties . . . , [i]t follows that such awards, on judicial review, are to be measured according to whether they are rational or arbitrary and capricious” … . “[I]t need only appear from the decision of the arbitrators that the criteria specified in the statute[, i.e., the Taylor Law,] were ‘considered’ in good faith and that the resulting award has a ‘plausible basis’ ” … . We conclude that the decision of the arbitrators meets that standard here.  Matter of Arbitration …, CA 12-02127, 377, 4th Dept, 4-26-13

 

 

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Empire Zone Status Can Be Revoked; No Vested or Actionable Right

The petitioner, the owner of a shopping mall, was certified as an empire zone business enterprise in 2002, and was thereby afforded certain tax benefits.  In 2009 the Empire Zone Designation Board revoked petitioner’s certification.  On appeal from an Article 78 proceeding, the Third Department affirmed the lower court’s determination that the respondents were not estopped from revoking the empire zone status because tax legislation is not a governmental promise:

Because “tax legislation is not a governmental promise,  [taxpayers  have]  no  vested  or  actionable right . . . to the benefit of a tax statute or regulation” … .   A claim of estoppel may only be asserted against a government agency in the rarest of situations and may not be invoked to prevent an agency from discharging its statutory duties … .  After the Legislature amended the Empire Zones Act, the Board discharged its statutory duty to review appeals of the … decisions to decertify empire zone business enterprises (see General Municipal Law §  959  [w]). Under these circumstances, where petitioner did not have  a vested right to continue receiving tax credits and  the Board  was  fulfilling its duty under the law, the court properly held that estoppel may not be invoked.  Matter of Greece Town Mall, LP v New York State, et al, 515207, Third Dept 4-25-13

 

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Even Though Length of Merging Lane Was a Factor in Accident, It Was Not the Proximate Cause of the Accident

Plaintiff’s car was side-swiped by defendant’s van when the van was in a merging lane called a taper.  The taper was 100 feet shorter than required.  In affirming summary judgment to the defendants responsible for constructing the taper, the First Department determined the van was the sole proximate cause of the accident:

The Supreme Court properly found that the alleged negligence of the DOE van’s driver was a proximate cause of the accident. Here, as the van was stopped next to plaintiff’s vehicle, the length of the taper, created by defendants Tully and Verizon, was entirely unrelated to the occurrence of the accident. As noted, the accident was caused by the alleged improper operation of the DOE vehicle. There is no evidence that the van was unable to safely merge, instead of merely trying to get to the front of the line of traffic moving through the construction zone. A jury would thus be required to speculate that the taper was a proximate cause of the accident. As a result, even assuming the taper in this case did not comply with …standards, and that it may have furnished the condition or occasion for the occurrence, it was not a proximate cause of it … . Collins v City of New York, 2013 NY Slip Op 02816, 1st Dept, 4-25-13

TRAFFIC ACCIDENTS

Criteria for Evaluating County Bidding Process Explained

Rockland County sought bids for public bus transportation. The respondent, Brega Transportation Corporation [hereinafter “Brega”], protested the county’s bid specifications as exclusionary and discriminatory and Supreme Court agreed.  The Second Department reversed Supreme Court’s determination that Rockland County’s Invitation to Bid for Transit Operations and Maintenance [hereinafter “RFB”] violated Municipal Law 103.    After explaining the criteria for evaluation of a bidding process, the Second Department wrote:

Where bid specifications are “not facially anticompetitive,” courts apply “ordinary rational basis review” …. A “’spectral appearance of impropriety’ is insufficient proof to disturb a [municipality’s] determination under the competitive bidding statutes” … . Instead, a party challenging a procurement “has the burden to demonstrate actual’ impropriety, unfair dealing or some other violation of statutory requirements”… .  Here, the Supreme Court improperly shifted the burden of proof from Brega to the county. Since Brega made only conclusory assertions and failed to demonstrate that the county’s bid specifications were irrational or exclusionary, the court erred in invalidating the RFB on that basis… .  Brega Transp Corp v Brennan, 2013 NY Slip Op 02707, 2012-03188, Index No 498/12, 2nd Dept, 4-24-13

 

 

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Late Notice of Claim Should Not Have Been Allowed

The Second Department reversed the trial court’s deeming a late notice of claim as timely served nunc pro tunc.  The claim was against the New York Health and Hospitals Corporation (HHC) which is not the same as the City of New York for purposes of a notice of claim.  The Second Department wrote:

The Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion. First, the plaintiff failed to demonstrate that the HHC had actual knowledge of the facts constituting the claim within 90 days after it arose or “within a reasonable time thereafter” (General Municipal Law s 50-e[5]). The fact that a police accident report was prepared by the New York City Police Department did not constitute notice to the HHC of the essential facts constituting the claim … .  * * *Moreover, the plaintiff’s mistake as to the identity of the public corporation against which her claim should be asserted was not excusable. … Finally, the plaintiff failed to demonstrate that her delay did not prejudice the HHC in its defense on the merits. The plaintiff did not serve a notice of claim upon the HHC until eight months after the 90-day period expired and then did not move for two more months to have that late notice of claim deemed timely … .  Platt v New York City Health & Hosps Corp, 2013 NY Slip Op 02733, 2nd Dept, 4-24-13

 

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City Failed to Affirmatively Prove It Did Not Have Notice of Dangerous Condition

The Second Department determined the city’s failure to submit proof it had not received notice of a defective condition precluded summary judgment in the city’s favor:

As the party moving for summary judgment, in order for the defendant City of New York to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint … on the ground that it had no prior written notice of the alleged defective or dangerous condition (see Administrative Code of the City of New York § 7-201[c]), it was required to submit proof that it did not receive the notice required by the statute … . The City failed to submit any affidavit from any City official or employee demonstrating that a search of the appropriate records had been done and that there was no prior written notice of the alleged dangerous condition that caused the plaintiff’s accident, and there was nothing in the deposition testimony of the three City witnesses that indicated that a search of the City records had been conducted without any success in finding any prior written notices. As such, the City failed to make a prima facie showing that no prior written notice was actually received … .   Martinez v City of New York, 2013 NY Slip Op 02723, 2nd Dept, 4-24-13

 

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No Evidence Police Officer Acted in “Reckless Disregard” for Safety

The First Department determined the plaintiff did not raise a question of fact about whether a police officer drove his vehicle (which collided with plaintiff’s) in “reckless disregard for the safety of others,” finding plaintiff’s allegations “conclusory and speculative.:”

Defendants’ proof established that defendant Steve Tompos, a police officer, did not act in “reckless disregard for the safety of others” while operating his vehicle in the wrong direction on a one-way street (see Vehicle and Traffic Law § 1104[e]). Tompos testified that his vehicle’s emergency lights and siren had been activated prior to the accident, and the evidence showed that he reduced his speed before turning onto the subject street and that he veered to his right in an attempt to avoid impact … . We note in particular that Tompos’s partner testified that Tompos reduced the vehicle’s speed to 10 miles per hour as he turned into the street where the accident occurred. Plaintiff’s testimony that Tompos was driving at a “high” rate of speed, which plaintiff was admittedly unable to estimate, is conclusory and speculative .. . We therefore disagree with the dissent’s view that issues of fact preclude summary judgment. Frezzell v City of New York, 2013 NY Slip Op 02700, 8861 116366/07, 1st Dept, 4-23-13

TRAFFIC ACCIDENTS

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Question of Fact About Whether Emergency Doctrine Excused Police Officer’s Causing a Collision

In finding that a question of fact had been raised about whether a police office, when responding to an emergency call in her vehicle, had exhibited reckless disregard for the safety of others (resulting in a collision), the Second Department wrote:

Vehicle and Traffic Law § 1104 qualifiedly exempts drivers of authorized emergency vehicles from certain traffic laws when they are involved in an emergency operation …. The emergency operation of a police vehicle includes “responding to [a] police call” (Vehicle and Traffic Law § 114-b). A radio call to an officer on patrol by a police dispatcher regarding a 911 complaint falls squarely within the plain meaning of “police call” …. When a police officer engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b), such conduct may not form the basis of civil liability to an injured third party unless the officer acts in reckless disregard for the safety of others …. The “reckless disregard” standard requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow … . * * *…[T]he respondents submitted the deposition testimony of four witnesses, which raised triable issues of fact as to whether the siren and emergency lights on the police officer’s vehicle were activated and whether that vehicle slowed down prior to entering the intersection at which the collision occurred. Miller v Suffolk County Police Dept, 2013 NY Slip Op 02549, 2012-03783, dInex No 5044/06, 2nd Dept, 4-17-13

 

 

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Resident in Hotel Under Contract to Provide Rooms to Homeless Persons Entitled to Rent Stabilization Protection

In finding that the respondent (Pitt) was a “permanent tenant” of a hotel which rented rooms to homeless persons under an agreement with the NYC Human Resources Administration (thereby entitling the respondent to the protections of the Rent Stabilization Code), the First Department explained the “exception to mootness” doctrine:”

As a threshold matter, we find that this appeal is not rendered moot by the fact that Pitt voluntarily vacated the premises before the appeal was perfected. Although, as a general principle, courts are precluded from considering questions which have become moot by a change in circumstances, an exception to the mootness doctrine exists in situations that present the following: “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” … . This matter presents an issue of substantial public interest that is likely to recur and evade review. Specifically, this Court must address the question of what constitutes a legal tenancy under the Rent Stabilization Code, and what rights are vested in a person occupying premises under the contract between a landlord and a social service agency. This is an issue that affects a large number of New Yorkers who declare permanent tenancy in a SRO [single room occupancy facility]. Thus, it presents an exception to the mootness doctrine … . Branic Intl Realty Corp v Pitt, 2013 NY Slip Op 02522, 9453 & 57024/10, 363, 1st Dept, 4-16-13

 

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