The Second Department, in a full-fledged opinion by Justice Angiolillo, determined that where the state owns a navigable lake and the submerged land below the water, the state has the exclusive authority to regulate construction on the submerged land, absent delegation of that authority to the municipality. Town of Carmel v Melchner, 2013 NY Slip Op 01259 [105 AD3d 82], Second Dept 2-27-13
The Second Department affirmed the dismissal of a complaint because the complaint asserted theories not mentioned in the notice of claim. “A party may not add a new theory of liability which was not included in the notice of claim …”. Williams vs County of Westchester, 2011-10614, Index No. 15002/08 Second Dept. 2-20-13
The Second Department reversed the trial court’s grant of a petition to file a late notice of claim. “The petitioner did not demonstrate a reasonable excuse… . The petitioners’ assertion that they only recently discovered that they had a claim against the City is not an acceptable excuse … . * * * The fact that the … Police Department had knowledge of this accident, without more, cannot be considered actual knowledge of the essential facts underlying the claim against the City …”. Matter of Klass vs City of New York, 2012-00913, Index No. 16699/11 Second Dept. 2-20-13
The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined that the prevailing wage requirement of Labor Law 220 did not apply to construction work for the Bath Volunteer Fire Department (BVFD) which had procured its own funding for a new firehouse:
After an investigation, the Department of Labor (DOL) issued an opinion letter, concluding that the firehouse project was a public work subject to the prevailing wage law. Once the subcontractors learned of the DOL’s determination, work on the project halted. In December 2006, BVFD agreed to indemnify [the contractor] and its subcontractors against any liability resulting from their failure to pay the prevailing wages, and construction resumed and the project was completed. …
The prevailing wage law covers contracts involving each of four specific public entities: the state, a public benefit corporation, a municipal corporation or a commission appointed pursuant to law (see Labor Law § 220 [2]). It is undisputed that BVFD is a fire corporation as defined by the Not-For-Profit Corporation Law, and it is not one of the public entities named in the statute. Nevertheless, the Commissioner determined that BVFD could be deemed “the functional equivalent” of a “municipal department” within the meaning of the Labor Law. …
The “functional equivalent” test, however, was rejected by this Court in Matter of New York Charter School Assn. v Smith (15 NY3d 403 [2010]). There, the DOL deemed charter schools “public benefit corporations” because the schools serve a valuable public purpose and their existence is the result of a charter issued by a state or local municipal entity. Given those factors, the DOL determined that charter schools met the requirements established by the courts of this State for public work projects. We rejected that argument because while charter schools, like volunteer fire corporations, may be “quasi-public” in nature, they are not a specified public entity and thus, do not fit within the ambit of the statute (id. at 410).
Had the legislature intended to include volunteer fire corporations under the statute, it could easily have done so. Notably, in 2007, the legislature expanded the statute’s coverage to include contracts involving other types of entities, but only when it can be shown they were acting on behalf of the public entity … . Matter of M.G.M. Insulation, Inc. v Gardner, 2013 NY Slip Op 01017 [20 NY3d 469], CtApp 2-19-13
The Court of Appeals, in a full-fledged opinion by Judge Read, determined the requirement that employees of the School District of the City of Niagara Falls reside in the City of Niagara Falls serves a legitimate purpose and is not related to job performance. Therefore, only notice and an opportunity to respond to the allegation of a violation of the requirement are necessary to comply with due process. Matter of Beck-Nichols v Bianco, 2013 NY Slip Op 01015 [20 NY3d 540], CtApp, 2-19-13
In a full-fledged opinion by Justice Richter, the First Department determined a property owner was responsible for ensuring the safe condition of a sidewalk that did not directly abut the defendant’s property. The sidewalk was separated from the defendant’s property by a strip of land owned the City. The Court determined the terms “abutting” and “adjoining” in the ordinance making a property owner responsible for the condition of a sidewalk should be construed “to include property in close proximity to an improved sidewalk although separated from it by [the strip of land]”… . James vs 1620 Westchester Avenue, LLC, 8710A, 17396/06 First Dept. 2-7-13
In a full-fledged opinion by Justice Richter, the First Department determined a property owner was responsible for ensuring the safe condition of a sidewalk that did not directly abut the defendant’s property. The sidewalk was separated from the defendant’s property by a strip of land owned by the City. The Court determined the terms “abutting” and “adjoining” in the ordinance making a property owner responsible for the condition of a sidewalk should be construed “to include property in close proximity to an improved sidewalk although separated from it by [the strip of land]”… . James v 1620 Westchester Avenue, LLC, 8710A, 17396/06 1st Dept. 2-7-13
In a condemnation case where a portion of a sand and gravel quarry was taken, the Second Department affirmed the lower court’s valuation of the condemned property. The quarry owner argued that an income-based analysis, rather than a sales-comparison (land-value) approach, should be employed. The Second Department determined that the income-based analysis (projected profits minus projected expenses) was not appropriate. The Second Department also affirmed the lower court’s determination that the quarry should be compensated for damages related to the improvements made on the condemned property, as opposed to damages related to the taking itself. Matter of Metropolitan Transportation Authority and Washed Aggregate Resources, Inc., 2011-03-14, Index No. 2674/98 Second Dept. 1-16-13
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