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DEFENDANT DID NOT SUBMIT PROOF DEMONSTRATING WHEN THE AREA OF THE SLIP AND FALL WAS LAST INSPECTED BEFORE THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION; THE VIDEO SUBMITTED BY THE DEFENDANT WAS NOT AUTHENTICATED SO IT SHOULD NOT HAVE BEEN CONSIDERED BY THE COURT (SECOND DEPT). ​

he Second Department, reversing Supreme Court, determined defendant NYC Transit Authority was not entitled to summary judgment dismissing plaintiff’s slip and fall action. Plaintiff alleged she slipped and fell on a wet substance on the floor of defendant’s bus. The evidence of when the floor was last inspected was insufficient to show a lack of constructive notice. And the video submitted by the defendant was inadmissible because it was not authenticated:

The deposition testimony of a dispatcher employed by the defendant merely referred to general pre-trip inspection procedures performed by drivers. The defendant failed to present any evidence regarding “specific cleaning or inspection of the area in question relative to the time when the subject accident occurred” … .

Further, the defendant could not rely upon the video of the bus that it submitted on its motion so as to meet its prima facie burden, as the video was not authenticated, and thus, was not in admissible form … . Harrington v New York City Tr. Auth., 2024 NY Slip Op 00297, Second Dept 1-24-24

Practice Point: To demonstrate a lack of construction notice of the condition in a slip and fall case, the defendant must submit evidence of a specific inspection of the area close in time to the fall. Evidence of general inspection practices is never enough.

Practice Point: In order to submit a video in evidence, it must be authenticated.

 

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THE OWNER OF A COOPERATIVE BUILDING WAS PROPERLY FOUND LIABLE FOR FAILING TO REMEDIATE LEAD PAINT IN A SHAREHOLDER’S APARTMENT WHICH WAS SUBLET TO PLAINTIFF AND HER YOUNG DAUGHTER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, determined the owner of the building (Windsor) in which a cooperative shareholder, Sersch, sublet her cooperative apartment to plaintiff, had constructive knowledge plaintiff’s young daughter was living with plaintiff. Plaintiff’s daughter was diagnosed with lead poisoning and peeling lead paint was found in the apartment. Summary judgment finding Windsor liable for failing to remediate the lead paint problem was affirmed:

Windsor’s agents’ frequent and consistent interactions with plaintiff and the infant plaintiff were sufficient to provide constructive notice to Windsor … . Windsor failed to proffer an affidavit from any of the doormen stating that they did not know plaintiff and the infant plaintiff or were unaware of their residence. Under these circumstances, Windsor failed to raise a triable issue of fact as to the issue of constructive notice … . * * *

Windsor argues that section [NYC Administrative Code] 27-2056.15(c) exempts it from the duty to remediate and abate the lead paint in the apartment because Sersch “occupied” the apartment during plaintiffs’ subtenancy. Here, the terms of the sublease and the stipulation of settlement clearly indicate that the apartment was not “occupied” by Sersch during plaintiffs’ subtenancy. E.S. v Windsor Owners Corp., 2024 NY Slip Op 00267, First Dept 1-23-24

Practice Point; Here the owner of a cooperative building was deemed liable under New York City law for failure to remediate lead paint in a shareholder’s apartment which had been sublet to plaintiff and her young daughter.

 

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DEFENDANTS WERE ENTITLED TO IMMUNITY FROM THIS MEDICAL MALPRACTICE, WRONGFUL DEATH ACTION; PLAINITFF’S DECEDENT WAS ADMITTED TO THE HOSPITAL WITH COVID AND DIED FROM COVID; IMMUNITY IS PROVIDED BY THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice complaint should have been dismissed. Plaintiff’s decedent was admitted to defendants’ hospital with COVID-19 and died from COVID-19. Defendants are entitled to immunity from suit by the Emergency or Disaster Treatment Protection Act (EDTPA):

… [P]laintiff alleges that the decedent was diagnosed with COVID-19 after arriving at Elmhurst Hospital on March 30, 2020, and that he died from COVID-19 on April 9, 2020. The defendants’ submissions, including the complaint and the transcript of the plaintiff’s hearing pursuant to General Municipal Law § 50-h, conclusively established that the defendants were entitled to immunity under the EDTPA (see Public Health Law former § 3082 …). As the complaint makes no allegations that the defendants’ acts or omissions constituted willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm, none of the exceptions to the immunity provisions of EDTPA apply (see Public Health Law former § 3082[2]). Martinez v NYC Health & Hosps. Corp., 2024 NY Slip Op 00186, Second Dept 1-17-24

Practice Point: The defendants in the medical malpractice, wrongful death action are immune from suit pursuant to the Emergency or Disaster Treatment Protection Act (EDTPA). Plaintiff’s decedent was admitted to the hospital with COVID and died from COVID.

 

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THE ARBITRATION AWARD WAS “IRRATIONAL;” THE CORRECTIONS OFFICERS WERE TREATED ONLY ON THE DAY OF THEIR INJURIES, LOST NO WORK AND HAD NO OUT-OF-POCKET EXPENSES; THEY WERE NOT ENTITLED TO MEDICAL BENEFITS PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT (CBA) AND THE GENERAL MUNICIPAL LAW (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the arbitration award which found that the county corrections officers were entitled to medical benefits for work-related injuries pursuant to the collective bargaining agreement (CBA) and the General Municipal Law, was “irrational.” The officers were treated on the day of their injuries, received no further treatment, lost no work, and had no out-of-pocket expenses:

“An award is irrational only where there is no proof whatever to justify the award” … . Here, the union asserted that the County violated the CBA by improperly denying General Municipal Law § 207-c benefits to the claimants, and the parties agreed that the arbitrator would decide whether this [*3]assertion was correct. “General Municipal Law § 207-c(1) entitles corrections officers to certain enumerated benefits, including the payment of salary or wages and the cost of medical treatment and hospital care, where the officer ‘is injured in the performance of his [or her] duties or . . . is taken sick as a result of the performance of his [or her] duties'”… . By definition, an officer seeking benefits under the statute must demonstrate, among other things, that he or she requires payment of salary or wages, or payment for the cost of medical treatment, whether in the form of reimbursement for funds expended or direct payment to an unpaid provider … . Here, the claimants did not seek payment of salary or wages pursuant to the statute, since they were each paid their regular salary or wages for the time spent visiting a medical provider on the date of the occurrence and missed no time thereafter. The claimants also did not seek payment of, or reimbursement for, the cost of the medical treatment they each received on the day of their respective occurrences, conceding that they did not sustain any out-of-pocket medical expenses. The arbitrator’s decision to award the claimants a designation that their injuries or illnesses qualified for statutory benefits was therefore irrational, considering that there was no proof that any such benefits were required … . Matter of County of Nassau v Nassau County Sheriff’s Corr. Officers’ Benevolent Assn., 2024 NY Slip Op 00069, Second Dept 1-11-24

Practice Point: This case is rare example of a judicial finding that an arbitration award was “irrational.”

 

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THE GUARANTOR OF RENT DUE UNDER A LEASE FOR A BARBERSHOP FORCED TO CLOSE BY THE NYS GOVERNOR DURING COVID WAS RELIEVED OF LIABILITY FOR ONLY THE COVID-PERIOD COVERED BY NYC’S GUARANTY LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined the guarantor of a lease for a barbershop that was forced to close by the Governor of New York during COVID was relieved of liability for unpaid rent only for the period covered by NYC’s Guaranty Law:

As part of its declarations of intent and findings for the amendments extending the closing of the period of the Guaranty Law (first from September 30, 2020 to March 31, 2021, then from March 31, 2021 to June 30, 2021), the City Council made plain that the protections were “temporary,” and designed to provide businesses covered by the law with “a reasonable recovery period with a duration that is comparable to the period of time that [the] businesses were forced to close or operate with significant limitations on indoor occupancy” (New York City Local Laws 98/2020 and 50/2021, §§ 1[a][7], [9]).

In light of the language of the Guaranty Law and its legislative history, we conclude that the law “bars only those claims against guarantors seeking rent that came due within the [law’s] protection period” … . Tamar Equities Corp. v Signature Barbershop 33 Inc., 2024 NY Slip Op 00039, First Dept 1-4-24

Practice Point: New York City’s Guaranty Law relieves a guarantor of its liability for unpaid rent during a COVID-related business closure only for the “COVID” period described in the Guaranty Law.

 

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​ ALTHOUGH NOT REQUIRED UNDER THE GENERAL MUNICIPAL LAW, FILING A NOTICE OF CLAIM FOR AN EMPLOYMENT DISCRIMINATION ACTION IS REQUIRED UNDER THE TOWN LAW; BECAUSE THE TOWN HAD TIMELY KNOWELDGE OF THE FACTS UNDERLYING THE ACTION, PLAINTIFF WAS ENTITLED TO LEAVE TO FILE A LATE NOTICE OF CLAIM (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) although plaintiff would not have been required to file a notice of claim for an employment discrimination action against a city pursuant to the General Municipal Law, plaintiff is required to file a notice of claim for the instant employment discrimination action against the town pursuant to the Town Law, and (2) plaintiff was entitled to leave to file a late notice of claim. The notice of claim provisions in the Town Law are broader than those in the General Municipal Law and include “wrong to a person” which encompasses employment discrimination:

Consistent with the purpose of the Human Rights Law, unlawful discrimination and retaliation is undoubtably considered a wrong against a person (see Executive Law § 290 [3]). Thus, the plain, unambiguous text of Town Law § 67 directs that a notice of claim is required for an action alleging violations of the Human Rights Law. * * *

Although the presence or absence of any given factor is not determinative, it is well settled that “[a] factor to be accorded great weight in determining whether to grant leave to serve a late notice of claim is whether the [public corporation] had actual knowledge of the facts underlying the claim, including knowledge of the injuries or damages” … . …

… [T]here is no dispute that the Town and its officers had timely actual knowledge of the facts underlying the claim … . Arnold v Town of Camillus, 2023 NY Slip Op 06627, Fourth Dept 12-22-23

Practice Point: Unlike the General Municipal Law, the Town Law requires the filing of a notice of claim for an employment discrimination action under the Human Rights Law.

Practice Point: The most important criterium for granting leave to file a late notice of claim is the defendant’s timely knowledge of the facts underlying the action.

 

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THE RESPONDENT CITY HAD TIMELY KNOWLEDGE OF THE ESSENTIAL FACTS SURROUNDING THE BUS-VEHICLE COLLISION AND WAS NOT PREJUDICED BY THE TEN MONTH DELAY IN FILING THE NOTICE OF CLAIM; PETITIONER’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, EVEN IN THE ABSENCE OF AN ADEQUATE EXCUSE (LAW OFFICE FAILURE) (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the respondent city in this bus-vehicle accident case had timely knowledge of the essential facts of the incident and therefore was not prejudiced by the late notice of claim. The court noted that law office failure is not an adequate excuse for failing to timely file a notice of claim, but using that excuse did not mandate denial of the motion:

Supreme Court improvidently exercised its discretion in denying petitioner’s application, as petitioner established that respondents acquired actual knowledge of the essential facts within the statutorily prescribed filing period … . As the record showed, the accident involved an NYCTA-owned bus and an NYCTA driver, and was immediately investigated by an NYCTA supervisor. Therefore, petitioner sustained his burden of showing that respondents would not be substantially prejudiced in maintaining a defense on the merits if he were permitted leave to file a late notice of claim … .

In response to petitioner’s showing, respondents offered no particularized evidence suggesting that they would be prejudiced by the delay. Therefore, respondents have failed to rebut petitioner’s showing … . Clarke v New York City Tr. Auth., 2023 NY Slip Op 06591, First Dept 12-21-23

Practice Point: If the municipality has timely knowledge of the essential fact underlying a claim (here a bus-vehicle accident) and is not prejudiced by the delay, a motion for leave to file a late notice of claim may be granted even in the absence of an adequate excuse.

 

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THE COUNTY, UNDER THE EMINENT DOMAIN PROCEDURE LAW (EDPL), HAD THE POWER TO CONDEMN AN AREA ADJACENT TO AN OFFICE BULIDING FOR USE AS A PARKING LOT; THE ALLOWED PURPOSE UNDER THE EDPL WAS “COMMERCIAL:” THE ARGUMENT THAT THE PURPOSE WAS “HEALTHCARE,” NOT “COMMERCIAL,” BECAUSE THE BUILDING WOULD HOUSE DOCTORS’ OFFICES WAS REJECTED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the Oneida County Industrial Development Agency (OCIDA) properly exercised its power under the Eminent Domain Procedure Law (EDPL) to obtain property be used for as parking for an office building, as well as public parking. The the fact that the building would be used for doctor’s offices did not negate the “commercial” purpose of the building within the meaning of the EDPL. Petitioner’s argued the building served a “healthcare,” not a “commercial” purpose and therefore was not subject to the condemnation power of the OCICA:

General Municipal Law § 858 (4) grants industrial development agencies the power to “acquire by purchase, grant, lease, gift, pursuant to the provisions of the [EDPL], or otherwise and to use, real property or rights or easements therein necessary for its corporate purposes.” “The purposes of [an industrial development] agency are to promote, develop, encourage[,] and assist in the acquiring, constructing, reconstructing, improving, maintaining, equipping[,] and furnishing industrial, manufacturing, warehousing, commercial, research, renewable energy[,] and recreation facilities” … . The question here is whether OCIDA appropriately determined that taking the property was necessary for a “commercial” purpose.

As a general matter, a parking facility used by the customers of a profit-making business plainly has a “commercial” purpose. Matter of Bowers Dev., LLC v Oneida County Indus. Dev. Agency, 2023 NY Slip Op 06406. CtApp 12-14-23

Practice Point: The Eminent Domain Procedure Law (EDPL) allows land to be condemned by a county industrial development agency for “commercial” but not “healthcare” purposes. Here the county properly condemned land next to an office building for parking, despite the fact that doctors would be tenants in the office building.

 

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ALTHOUGH THE BACKHOE WHICH COLLIDED WITH PLAINTIFF’S VEHICLE HAD BEEN USED FOR ROADWORK THAT DAY, AT THE TIME OF THE ACCIDENT THE BACKHOE WAS BEING USED TO TRANSPORT GRAVEL TO THE WORK SITE; THE SECOND DEPARTMENT DETERMINED THE BACKHOE WAS NOT “ACTIVELY ENGAGED” IN ROADWORK AT THE TIME OF THE ACCIDENT AND, THEREFORE, THE HIGHER “RECKLESS DISREGARD” STANDARD FOR LIABILITY IN THE VEHICLE AND TRAFFIC LAW DID NOT APPLY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers, reversing Supreme Court, determined the county employee who rear-ended the plaintiff’s vehicle with a backhoe was not engaged in road construction work within the meaning of the Vehicle and Traffic Law at the time of the accident and, therefore, was not subject to the higher “reckless disregard” standard for liability. Although the backhoe had been used to repair a road, at the time of the accident the backhoe was transporting gravel to the work site. The Second Department determined transporting gravel was did not meet the definition of being “actively engaged” in construction work:

… [W]e conclude that the defendant driver was not actually engaged in work on a highway at the time of the accident …, because the act of transporting gravel to a highway worksite does not itself constitute construction, repair, maintenance, or similar work on a highway … . When a vehicle travels on a highway to transport equipment or materials, the road itself is not being worked on; instead, the road is being used for its intended purpose of facilitating travel. Moreover, the mere transporting of materials or equipment is different in kind from acts that have been deemed to constitute work “on” a highway, such as clearing or cleaning the road or its shoulder … , or actively assessing the conditions of the road or searching for a reported hazard on the road … . …

​… [T]he defendants do not contend that the mere transporting of construction materials on a public road will in every instance constitute being actually engaged in work on a highway. Rather, in advancing their claim, the defendants contend that the defendant driver’s transport of materials fell within the scope of the statute because the defendant driver had been repairing a roadbed on the day of the collision and had not yet completed his work for the day. We disagree. The defendants’ position is inconsistent with the statute’s use of the phrase “actually engaged” (Vehicle and Traffic Law § 1103[b]), as reflected in the plain language of the statute and its interpretation by the courts. Qosaj v Village of Sleepy Hollow, 2023 NY Slip Op 06395, Second Dept 12-13-23

Practice Point: A road-construction vehicle involved in an accident will not be subject to the higher “reckless disregard” standard of liability unless the vehicle is “actively engaged” in roadwork at the time of the accident. Transporting gravel to the work site is not considered “active engagement.”

 

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PETITIONER, A NOT-FOR-PROFIT LOCAL DEVELOPMENT CORPORATION, WAS PROPERLY FOUND TO BE SO CLOSELY AFFILIATED WITH LOCAL GOVERNMENT AS TO MEET THE DEFINITION OF A “LOCAL AUTHORITY” SUBJECT TO THE REPORTING AND OVERSIGHT REQUIREMENTS OF THE STATE OF NEW YORK AUTHORITIES BUDGET OFFICE (THIRD DEPT).

​The Third Department, reversing Supreme Court, determined that the petitioner, a non-for-profit local development corporation, was a “local authority” subject to the reporting and oversight requirements of the respondent State of New York Authorities Budget Office:

… [W]e find that respondent rationally concluded that petitioner is a local authority, in that there is a “close relationship between petitioner and local governments” and petitioner “is the type of entity that the Legislature intended to subject to the provisions of the PAAA” [Public Authorities Accountability Act]. Notably, the purposes of the PAAA and the PARA [Public Authorities Reform Act] include remedying public concerns about transparency and accountability of entities that, like petitioner, “work[ ] with public and private sector partners to spur economic development and meet public needs” … . Matter of Saratoga Economic Dev. Corp. v State of N.Y. Auths. Budget Office, 2023 NY Slip Op 06292, 11-7-23

Practice Point: The State of New York Authorities Budget Office’s administrative determination that petitioner not-for-profit development corporation was a “local authority” subject to the Budget Office’s oversight was not arbitrary and capricious. Supreme Court should not have annulled the determination.

 

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