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Individual Employees of Defendant Can Be Named In the Complaint Even Though They Were Not Named in the Notice of Claim

In this case a notice of claim was filed naming the Erie County Medical Center Corporation (ECMCC) as defendant. In the complaint, the individual doctors, employees of ECMCC, were named as defendants. Overruling precedent to the contrary, the Fourth Department determined it was not necessary to name the individual employees in the notice of claim in order to sue them. In a full-fledged opinion by Justice Scudder, the Fourth Department wrote:

 …[D]efendants contend that, although service of the notice of claim on the Employee Defendants was not required, plaintiff was nevertheless required to name those individual defendants in the notice of claim as a condition precedent to the commencement of an action against them. Despite precedent supporting that contention, we agree with Supreme Court that there is no such requirement. * * *

Although “[p]recedents involving statutory interpretation are entitled to great stability” …, we conclude that the courts have misapplied or misunderstood the law in creating, by judicial fiat, a requirement for notices of claim that goes beyond those requirements set forth in the statute.

If the legislature had intended that there be a requirement that the individual employees be named in the notices of claim, it could easily have created such a requirement. Goodwin, et al, v Pretorius, et al, 101, CA 12-01441, 4th Dept. 3-22-13

 

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Prior Written Notice of Defect Not Needed Where It Is Alleged Municipality Created Dangerous Condition.

In finding the plaintiff had raised a question of fact about whether the municipality affirmatively created a dangerous condition (a curved section of fence alongside a roadway), the Second Department wrote:

Where, as here, a municipality has enacted a prior written notice statute, it may not be subject to liability for personal injuries caused by a defective street or sidewalk condition absent proof of prior written notice or an exception thereto … . “The Court of Appeals has recognized two exceptions to this rule, namely, where the locality created the defect or hazard through an affirmative act of negligence [and] where a “special use” confers a special benefit upon the locality'” … .

The affirmative creation exception “[is] limited to work by the City that immediately results in the existence of a dangerous condition” … . Thus, while the eventual emergence of a dangerous condition as a result of wear and tear and environmental factors does not constitute an affirmative act of negligence …, where, as here, the allegedly dangerous condition would have been immediately apparent, the affirmative creation exception applies … . Laracuente v City of New York, 2013 NY Slip Op 01810, 2011-09475, Ind No 17543/06, Second Dept. 3-20-13

 

 

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No Notice of Defect Needed Where Municipality Affirmatively Created It.

The Second Department reversed the grant of summary judgment to the defendant village because the village did not rule out the possibility that the sidewalk defect had been affirmatively created by negligent design and construction, an exception to the requirement that the village have prior notice of a sidewalk defect before a personal injury suit will be allowed:

Here, the defendant established that it did not receive prior written notice of the alleged dangerous condition. Nonetheless, it failed to demonstrate its prima facie entitlement to judgment as a matter of law. “[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . Here, the plaintiff’s pleadings alleged that the defendant affirmatively created the dangerous condition that caused the accident through negligence in the design and construction of the sidewalk … . Under these circumstances, the defendant was required to eliminate all triable issues of fact as to whether it affirmatively created the alleged dangerous condition through negligent design and construction to sustain its prima facie burden … . The defendant failed to do so, and therefore, its motion for summary judgment should have been denied without regard to the sufficiency of the plaintiff’s opposition papers …. Carlucci v Village of Scarsdale, 2013 NY Slip Op 01798, 2012-09179, Second Dept. 3-20-13

slip and fall

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False Arrest, Malicious Prosecution, and 1983 Actions Allowed to Proceed

In reversing the trial court’s grant of summary judgment to the defendants in an action for false arrest, malicious prosecution and violation of 42 USC 1983, the Second Department wrote:

…[I]n opposition to the Allstate defendants’ prima facie showing, the plaintiff raised triable issues of fact as to whether the Allstate defendants affirmatively induced law enforcement officials to act by taking an active part in the arrest and procuring it to be made, or by engaging in active, officious, and undue zeal to the point where the law enforcement officials were not acting of their own volition … . The plaintiff’s submissions were also sufficient to raise triable issues of fact as to whether the Allstate defendants intentionally provided false information to law enforcement officials or withheld material information …, thereby permitting an inference of actual malice … . The plaintiff’s submissions additionally raised triable issues of fact as to whether the Allstate defendants “engaged in a conspiracy with state officials to deprive [plaintiff] of federal rights” … . Accordingly, the Supreme Court should have denied the Allstate defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them. Robles v City of New York, 2013 NY Slip Op 01814, 2011-11017, Index No 27364/07, 2nd Dept. 3-20-13

 

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County Executive Has Authority to Commence Lawsuit Without Resolution from County Legislature

The Fourth Department determined the Erie County Executive had the authority to bring a lawsuit alleging fraud on the part of a County Commissioner which resulted in the payment of more than $4,000,000 for goods and services that had not been provided.  The defendant contended the County could not bring the suit absent a resolution by the County Legislature.  The Fourth Department wrote:

There is no dispute that the County Legislature did not pass a resolution authorizing the commencement of this action. Contrary to defendant’s contention, however, we conclude that, notwithstanding the absence of such a resolution, the County Executive was empowered to commence this action on behalf of the County (see Matter of County of Rockland v Town of Clarkstown, 167 Misc 2d 367, 371). Under the County Charter, the County Executive is the Chief Executive Officer, the administrative head of the County government, and the Chief Budget Officer of the County.The County Charter grants the County Executive “all necessary incidental powers to perform and exercise any of the duties and functions specified . . . or lawfully delegated to him” (Erie County Charter § 302 [former (n)], now [m]).The County Executive is empowered by the County Charter to authorize the County Attorney to commence civil litigation to enforce any of the duties and functions lawfully designated to the County Executive (see § 602; see also § 302 [former (m)], now [l]; [former (n)], now [m]).Inasmuch as this action seeks to recover over $4 million dollars of the County’s funds that were allegedly improperly paid under the M/A-Com contract as a result of defendant’s alleged fraud, we conclude that the County Executive’s duties as Chief Executive Officer and Chief Budget Officer of the County clearly embrace the subject matter of this action and empower him to authorize the County Attorney to commence the litigation (see Rockland County, 167 Misc 2d at 371).  Justices Sconiers and Whalen disagreed in a substantial dissent.  County of Erie v M/A-Com, Inc., et al, 1184, CA 12-00075, 4th Dept. 3-15-13

 

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Prior Written Notice Law Protects City from Liability for Dangerous Road Condition.

“Where a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries arising from a dangerous roadway condition unless it has received prior written notice of the dangerous condition, or an exception to the prior written notice requirement applies…  .  The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality…” .  Because the City established it had not received prior written notification of the condition which caused plaintiff’s injuries it was entitled to judgment as a matter of law.  Connor v City of New York, 2012-02970, Index No 30407/05, Second Dept. 3-6-13

 

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10-Year-Old Plaintiff’s Testimony Should Have Been Considered—No Need for Hearing to Determine Testimonial Capacity

The trial court’s determination the testimony of the 10-year-old plaintiff at a 50-h hearing should not be considered because there was no hearing to determine the infant plaintiff’s testimonial capacity was reversed by the Second Department.  “None of the parties challenged the infant plaintiff’s capacity to testify.  Under the circumstances, neither the infant plaintiff’s age nor his responses to the questioning necessitated a hearing.”  Perez v City of New York, 2012-03711, Index No 3451/10, 2nd Dept. 3-6-13

 

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Court Has No Authority to Grant Application to File Late Notice of Claim After Statute of Limitations Has Expired.

Plaintiff filed a notice of claim and commenced a suit against the City of New York.  The complaint was amended to add the New York City Transit Authority as a defendant.  The First Department affirmed the dismissal of the complaint against the Transit Authority because no notice of claim against the Transit Authority had been filed and the motion to file a late notice of claim was made more than one year and 90 days after the incident. Martinez v City of New York, et al, 9428, 16403/03, First Dept. 3-5-13

 

 

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State Equal Access to Justice Act 

In a full-fledged opinion by Justice Mazzarelli, the First Department interpreted the State Equal Access to Justice Act to allow the award of attorney’s fees under the “catalyst theory.” The petitioner had brought an Article 78 proceeding to compel the City to reinstate public assistance benefits after the Office of Temporary and Disability Assistance had ordered the City to do so. Two weeks after the Article 78 proceeding was started, the City complied with the order and reinstated the benefits.  The First Department determined the Article 78 proceeding was the “catalyst” for the City’s reinstatement of the benefits and, under the State Equal Access to Justice Act, the petitioner was entitled to attorney’s fees.  In re Luz Solla v Berlin, et al, 7847 & 401178/11, 2259, 1st Dept. 3-5-13

 

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County Did Not Have the Power to Enact a Local Law to Repeal State Laws Concerning Property Tax.

The Second Department, in a full-fledged opinion by Justice Lott, determined that a local law enacted by Nassau County which purported to repeal portions of state laws concerning property tax violated the New York State Constitution and the Municipal Home Rule Law. Matter of Baldwin Union Free Sch. Dist. v County of Nassau, 2013 NY Slip Op 01265 [105 AD3d 113], Second Dept 2-27-13

 

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