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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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Termination of Deputy Sheriff by Sheriff after Hearing Officer Recommended Suspension Upheld

In up holding the termination of petitioner, a deputy sheriff correction officer, after a disciplinary hearing officer recommended only suspension, the Third Department wrote:

Here, petitioner was found to have caused an injury to a defenseless, handcuffed inmate over whose custody petitioner was in charge. The Sheriff noted that his decision to terminate petitioner’s employment was based, in large measure, upon the fact that, as a correction officer, petitioner was required to handle the most difficult and sometimes dangerous individuals and that “[d]isrespect and brutality of prisoners cannot and will not be tolerated.” Even if there is mitigating evidence that could support a different result –  such  as petitioner’s otherwise unblemished record of service during his 10 years as a correction officer – we may not substitute our judgment for that of the Sheriff ….Considering petitioner’s position as a correction officer and a Sheriff’s Emergency Response Team member and the serious nature of petitioner’s misconduct – an assault of a handcuffed inmate who petitioner was supervising at the time – as well as petitioner’s failure to take responsibility for his actions, the decision to terminate his employment  does not shock our sense of fairness … .  Matter of Knox v VanBlarcum…, 515471, 3rd Dept, 4-11-13

 

 

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Son Entitled to Remain in Deceased Mother’s Apartment​

In annulling the ruling that petitioner (Carlos) was not entitled to “remaining family member (RFM)” status for the succession of his deceased mother’s apartment, the First Department wrote:

We annul NYCHA’s [New York Housing Authority’s] determination on the ground that it is not supported by substantial evidence. While the agency correctly asserts that Carlos’s RFM status is jeopardized by the fact that he never received written permission to be added to his mother’s lease while she was alive, the record is plain that Amparo [Carlos’ mother] took every step to have her son added to her lease, as required by 24 CFR 966.4(a)(1)(v), and it is undisputed that NYCHA violated a number of its own internal rules by determining that Carlos’s 1996 conviction precluded him from joining Amparo’s tenancy until May of 2008, without notifying Amparo or Carlos, and without giving them the opportunity to present evidence of Carlos’s rehabilitation. … .

…[W]hile estoppel is not available against a government agency engaging in the exercise of its governmental functions …, we have held that NYCHA’s knowledge that a tenant was living in an apartment for a substantial period of time can be an important component of the determination of a subsequent RFM application … . In re Gutierrez v Rhea, et al, 2013 NY Slip Op 02453, 8494 402789/10, 1st Dept, 4-11-13

 

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Failure to Allege Negligent Provision of Medical Care in Notice of Claim Required Dismissal of Negligence Cause of Action; Failure to Allege Facts Demonstrating a Custom or Practice of Providing Inadequate Medical Care Required Dismissal of 1983 Causes of Action 

After a trial awarded the plaintiff over $17,000,000, the Second Department reversed determining (1) the negligent provision of medical care cause of action should have been dismissed because it was not included in the notice of claim, and (2) the 1983 causes of action should have been dismissed because they were not adequately pled in the complaint:

Here, the notice of claim failed to set forth any allegations of negligence on the part of the defendants regarding the deprivation of medical treatment to the plaintiff when he was in police custody. Therefore, the Supreme Court should have directed dismissal of so much of the complaint as alleged negligence, due to the plaintiff’s failure to file a proper notice of claim (see General Municipal Law § 50-e[2] … .  * * *

To hold a municipality liable under § 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy …. Similarly, where claims are asserted against individual municipal employees in their official capacities, there must be proof of a municipal custom or policy in order to permit recovery, since such claims are tantamount to claims against the municipality itself …. Here, the complaint failed to allege any facts from which it could be reasonably inferred that the defendants had a policy or custom of depriving medical treatment to persons in police custody ….  Vargas v City of New York, 2013 NY Slip Op 02391, 2011-02266, 2011-08980, 2011-09609, Index No 33215/07, 2nd Dept, 4-10-13

 

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Notice of Claim Deemed Insufficient to Allege Negligent Design or Construction of Road

The Second Department dismissed a complaint against a town because the notice of claim alleged “damages for negligence arising out of the use, operation, ownership, maintenance, custody, and control of Hynes Road” but did not allege defective design or negligent construction of a road, the specific theories alleged in the complaint:

A notice of claim which, inter alia, sufficiently identifies the claimant, states the nature of the claim and describes the time when, the place where, and the manner in which the claim arose, is a condition precedent to asserting a tort claim against a municipality … . While a claimant need not state “a precise cause of action in haec verba in a notice of claim” …, “a party may not add a new theory of liability which was not included in the notice of claim”… .

Here, the Town established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting proof that the notice of claim made no allegations that the Town defectively designed or negligently constructed the roadway where the accident occurred … .  Crew v Town of Beekman, 2013 NY Slip Op 02370, 2011-10932, Index No 7540/07, 2nd Dept, 4-10-13

HIGHWAYS AND ROADS

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Late Notice of Claim Disallowed

In finding the trial court abused its discretion in granting plaintiff’s motion for leave to file a late notice of claim, the Second Department noted that (1) serving the wrong party, i.e., law office failure, was not an acceptable excuse, (2) there was no demonstration by the plaintiffs that the (potential) defendant had actual knowledge of the facts of the claim, and (3) there was no demonstration by the plaintiffs that the (potential) defendant was not prejudiced by the delay in its ability to conduct a thorough investigation.  Peters-Heenpella v Wynn, 2013 NY Slip Op 02233, 2012-02561, Inex No 19749/11, 2nd Dept 4-3-13

 

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Expired Fire Fighters’ Collective Bargaining Agreement Was Not “In Effect” Pursuant to Statute With Respect to Fire Fighters’ Mandated Contributions to Pension Plan

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a collective bargaining agreement entered into by the City of Yonkers Fire Fighters was not “in effect” within the meaning of Article 22 of the Retirement and Social Security Law.  For some purposes, the Retirement and Social Security Law deems a collective bargaining agreement to remain “in effect” after it has expired, until another agreement is reached.  If the collective bargaining agreement had been deemed to be “in effect” in this case, the firefighters would not have been required to contribute to their pensions, a requirement that was imposed only after the collective bargaining agreement expired.  Matter of City of Yonkers v Yonkers Fire Fighters …, 48, CtApp, 4-2-13

 

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Criteria for 1983 Action Against Municipality Based On Policy or Custom

In reversing the trial court’s setting aside a verdict in favor of the plaintiff in an action for false arrest, the Second Department laid out the criteria for a 1983 action against a municipality in this context:

… [A]plaintiff may prevail on a cause of action to recover damages pursuant to 42 USC § 1983 against a municipality where the plaintiff proves the existence of “(1) an official policy or custom [on the part of a municipal defendant] that (2) cause[d] the claimant to be subjected to (3) a denial of a constitutional right” … . “For a cause of action pursuant to 42 USC § 1983 to lie against a municipality, the action that is alleged to be unconstitutional must implement[ ]or execute[ ] a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers'” …, or have occurred pursuant to a practice “so permanent and well settled as to constitute a custom or usage’ with the force of law” … .

“A municipal custom or policy can be shown by establishing that an official who is a final policy maker directly committed or commanded the violation of the plaintiff’s rights” … . Liability for a violation of 42 USC § 1983 may be predicated on “a single act, as long as it is the act of an official authorized to decide policy in that area” … .  Bassett v City of Rye, 2013 NY Slip Op 02037, 2011-10149, Index No 20430/05, 2nd Dept 3-27-13

 

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