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A STORM DRAIN ALLEGEDLY CAUSED FLOODING ON PLAINTIFFS’ PROPERTY; THE NEGLIGENT DESIGN CAUSE OF ACTION AGAINST THE VILLAGE ACCRUED WHEN THE STORM DRAIN WAS INSTALLED, NOT WHEN THE FLOODING OCCURRED, AND WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this action stemming from flooding cause by a village storm drain, determined the negligent design cause of action against the village was time-barred because it accrued at the time the storm drain was constructed. However the trespass and negligent maintenance causes of action were timely:

General Municipal Law § 50-i provides that tort actions against municipalities “shall be commenced within one year and ninety days after the happening of the event upon which the claim is based.” Here, the plaintiffs alleged in the third cause of action that the Village’s negligent design of the storm drain system caused or contributed to the alleged property damage. Under these circumstances, “the happening of the event upon which the claim [was] based” …  was the design and installation of the storm drain system, which occurred many years prior to the commencement of this action … . Methal v Village of Ardsley, 2023 NY Slip Op 03775, Second Dept 7-12-23

Practice Point: Here a storm drain flooded plaintiffs’ property. The negligent maintenance and trespass causes of action accrued at or about the time of the flooding and were timely. But the negligent design cause of action accrued when the storm drain was installed and was time-barred.

 

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LAWYERS FOR CHILDREN, WHICH IS CONTRACTUALLY OBLIGATED TO PROVIDE ATTORNEYS IN CHILD WELFARE MATTERS, HAS STANDING TO CHALLENGE THE HOST FAMILY HOMES PROGRAM WHICH PLACES CHILDREN WITHOUT THE PARTICIPATION OF ATTORNEYS (THIRD DEPT).

​The Third Department reversing Supreme Court, determined Lawyers for Children, which provides attorneys for child welfare matters, had standing to bring a petition challenging the Host Family Homes program which facilitates temporary placement of children in foster care without an attorney. 

… [P]ursuant to Social Services Law § 358-a (6), Family Court is tasked with appointing an attorney for the children should there be a hearing before it. Petitioner Lawyers for Children had initially contracted with the Office of Court Administration (hereinafter OCA) respecting voluntary foster care placements and, since the legislative changes in 1999, has consistently represented children in New York City who have been voluntarily placed outside of the home. Similarly, petitioner Legal Aid Society contracted with OCA and receives assignments through New York City Family Court. Petitioner Legal Aid Bureau of Buffalo, Inc., likewise, has contracted with OCA and receives funding to represent children in child welfare matters.

In December 2021, respondent Office of Children and Family Services (hereinafter OCFS) promulgated regulations creating the Host Family Homes program, a system for the temporary care of children by pre-vetted volunteers without resorting to the voluntary placement process in the Social Services Law … . * * * Children cared for by a host family under this program were not entitled to assigned counsel, although they could communicate with an attorney … . * * *

… [P]etitioners sufficiently alleged an injury in fact that is not merely conjectural, as implementation of the program would, in essence, place children outside their home without the right to legal representation to which they would be entitled by Social Services Law § 358-a and that petitioners have a contractual obligation to provide … . Matter of Lawyers for Children v New York State Off. of Children & Family Servs., 2023 NY Slip Op 03747, Third Dept 7-6-23

Practice Point: Lawyers for Children is contractually obligated to provide attorneys in child welfare matters. Lawyer for Children has standing to challenge the Host Family Homes program which places children in foster care without the participation of attorneys.

 

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BECAUSE, BASED ON A LINE OF DUTY REPORT, THE CITY HAD TIMELY KNOWLEDGE OF THE CIRCUMSTANCES AND LOCATION OF PETITIONER’S SLIP AND FALL, THE CITY WAS NOT PREJUDICED BY A DELAY IN FILING THE NOTICE OF CLAIM; THE PETITION FOR LEAVE TO FILE THE LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE THE ABSENCE OF A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s application for leave to file a late notice of claim in a slip and fall case should have been granted, despite petitioner’s failure to provide a reasonable excuse for the delay. The city had timely notice of the incident based on a line of duty report, and the city, because it had timely notice, was not prejudiced by the delay:

The line-of-duty injury report prepared and filed shortly after the petitioner’s accident provided the City with timely actual knowledge of the essential facts constituting the claim. Further, its specificity regarding the location and circumstances of the incident permitted the City to readily infer that a potentially actionable wrong had been committed … .

Furthermore, as the City acquired timely knowledge of the essential facts constituting the claim, the petitioner met his initial burden of showing that the City would not be prejudiced by the late notice of claim … . In response to the petitioner’s initial showing, the City failed to come forward with particularized evidence demonstrating that the late notice of claim substantially prejudiced its ability to defend the claim on the merits … .

Since the City had actual knowledge of the essential facts underlying the claim and no substantial prejudice to the City was demonstrated, the petitioner’s failure to provide a reasonable excuse for the delay in serving the notice of claim did not serve as a bar to granting leave to serve a late notice of claim … .  Matter of Brown v City of New York, 2023 NY Slip Op 03693, Second Dept 7-5-23

Practice Point: Where the municipality, by virtue of a report, has timely and specific knowledge of a potential claim, a petition for leave to file a late notice of claim may be granted even where, as here, the petitioner does not have a reasonable excuse for the delay.

 

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IN THIS SIDEWALK/CURB SLIP AND FALL CASE, THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE CONDITION AND THE ABUTTING PROPERTY OWNER DEMONSTRATED HE DID NOT CREATE THE CONDITION OR CAUSE THE CONDITION BY SPECIAL USE (SECOND DEPT).

​The Second Department, reversing Supreme Court in this sidewalk/curb slip and fall case, determined (1) the defendant village did not have written notice of the alleged dangerous condition. and (2), the defendant abutting property owner did create the condition or cause the condition by special use. Therefore the complaint against both defendants should have been dismissed:

… [T]he Village correctly contends that, contrary to the Supreme Court’s conclusion, it was not required to establish both that it lacked prior written notice of the defect and that it had not created the defect … . Rather, upon the Village’s prima facie showing that it lacked prior written notice of the defect, the burden shifted to the plaintiff to demonstrate that an exception to the prior written notice statute applied … . As the plaintiff did not meet this burden, the court should have granted the Village’s motion, in effect, for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it.

… Scipione [defendant abutting property owner] demonstrated, prima facie, that he did not create the defect, that he did not cause the defect to occur because of a special use, and that the relevant section of the Village Charter did not make abutting landowners liable for injuries caused by sidewalk defects … . With respect to the issue of special use, Scipione’s evidence showed that the intended use of the step on which the plaintiff allegedly fell was “the normal intended use of the public way,” and that he did not “derive[ ] a special benefit from that property unrelated to the public use” … . Morales v Village of Ossining, 2023 NY Slip Op 03690, Second Dept 7-5-23

Similar “written notice” issue and result in O’Connor v City of Long Beach, 2023 NY Slip Op 03702, Second Dept 7-5-23

Practice Point: Here the village demonstrated it did not have written notice of the sidewalk/curb defect which caused plaintiffs fall. Therefore the action against the village should have been dismissed.

Practice Point: Here the abutting property owner demonstrated he did not create the sidewalk/curb defect and did not cause the defect by special use. Therefore the action against the property owner should have been dismissed.

 

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THE AFFIDAVITS AND REAL ESTATE CONTRACT SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH UTTERLY REFUTED THE ALLEGATIONS OF UNLAWFUL DISCRIMINATION IN THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint alleging unlawful discrimination in a real estate deal should not have been dismissed because the documentary evidence did not utterly refute the allegations in the complaint. After the real estate purchase offer was signed by both parties and the down payment was made, defendant’s attorney returned the down payment check with a letter saying that the defendant was no longer interested in selling to the plaintiff:

Here, neither the affidavits submitted in support of the defendant’s motion nor the purported contract between the defendant and another purchaser constituted documentary evidence within the intendment of CPLR 3211(a)(1) … , and the defendant’s evidentiary submissions were “insufficient to utterly refute the plaintiff’s factual allegations” … . Moreover, accepting the facts as alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference … , the complaint sufficiently stated a cause of action alleging unlawful discrimination pursuant to Administrative Code § 8-107(5). Jeffrey v Collins, 2023 NY Slip Op 03686, Second Dept 7-5-23

Practice Point: The affidavits and real estate contract submitted in support of the motion to dismiss did not utterly refute the allegations in the complaint and therefore did not support dismissal of the complaint based on documentary evidence.

 

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THE JUDGE SHOULD HAVE INQUIRED INTO DEFENDANT’S ALLEGATION HIS ASSIGNED COUNSEL WAS BEING PAID BY HIS FAMILY; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the judge should have, but did not, conduct an inquiry into defendant’s allegation his assigned counsel was being paid by his family:

… Supreme Court violated his right to counsel when it failed to conduct a sufficient inquiry into defendant’s complaint that his assigned counsel accepted payment from his family. … [T]rial courts have the “ongoing duty” to ” ‘carefully evaluate serious complaints about counsel’ ” … . * * *

Here, defendant sent a letter to the court alleging … that his assigned counsel was being paid by his family, which is a serious complaint involving unethical and illegal conduct (see generally County Law § 722-b [4]). Although the court began to engage defense counsel in a discussion concerning defendant’s letter, before defense counsel was able to address the concerns raised by defendant in the letter, the court interjected and said, “You are going to represent [defendant] at trial.” The court then addressed defendant directly and concluded its comments to him by stating … “You are not going to get another attorney.” At no time did the court make any inquiry into defendant’s allegation that his family had paid defense counsel to represent him. … [W]e conclude that the court violated defendant’s right to counsel by failing to make a minimal inquiry concerning his serious complaint … . People v Jackson, 2023 NY Slip Op 03609, Fourth Dept 6-30-23

Practice Point: Here defendant requested new counsel on the ground his assigned attorney was being paid by his family (apparently a violation of County Law). The judge’s failure to inquire into the complaint violated defendant’s right to counsel.

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR A VIOLATION OF THE EXECUTIVE LAW WHICH PROHIBITS DISCRIMINATION BY LANDLORDS AGAINST POTENTIAL TENANTS BASED UPON SOURCE OF INCOME; ALTHOUGH THE ISSUE WAS NOT RAISED BELOW IT PRESENTED A QUESTION OF LAW REVIEWABLE ON APPEAL (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint stated a cause of action for a violation of the Executive Law prohibiting discrimination in renting an apartment based upon source of income. Although the issue was raised for the first time on appeal, the issue presented a question of law which could not have been avoided had it been raised below:

Executive Law § 296 (5) (a) (2) provides in relevant part that it “shall be an unlawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent of, or other person having the right to sell, rent or lease a housing accommodation, constructed or to be constructed, or any agent or employee thereof . . . [t]o discriminate against any person because of . . . lawful source of income . . . in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or in the furnishing of facilities or services in connection therewith.” Plaintiff alleged in its amended complaint that it sent two testers to defendants’ properties seeking to rent the properties. The testers asked defendants if they accepted security agreements, which are issued by the Erie County Department of Social Services to landlords in the amount of one month’s rent in lieu of a cash deposit. Defendants responded that they accepted those agreements, but that they also required tenants to put down a cash deposit of one-half of a month’s rent for the security deposit.

… The allegations in the amended complaint support the inference that, for a person whose lawful source of income is public assistance … , defendants imposed a different term or condition for the rental than for a person whose lawful source of income was not public assistance. In particular, for a person on public assistance, defendants required one-half’s month rent, in cash, as a security deposit in addition to the security agreements. Housing Opportunities Made Equal v DASA Props. LLC, 2023 NY Slip Op 03607, Fourth Dept 6-30-23

Practice Point: The Executive Law prohibits landlords from discriminating against potential tenants by requiring a cash deposit in addition to security agreements issued by the county.

Practice Point: An issue not raised below will be considered on appeal if it presents a question of law which could not have been avoided if raised below.

 

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PLAINTIFF’S DECEDENT WAS SHOT IN A DARK AREA OF DEFENDANT NEW YORK CITY HOUSING AUTHORITY’S (NYCHA’S) APARTMENT COMPLEX; THE NOTICE OF CLAIM ALLEGED THE LACK OF LIGHTING CONSTITUTED NEGLIGENT SECURITY; THE ADDITIONAL ALLEGATIONS OF SECURITY-RELATED NEGLIGENCE IN THE BILL OF PARTICULARS SHOULD HAVE BEEN STRUCK (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined certain allegations of negligence in the bill of particulars should have been struck because the notice of claim did not provide notice of them. The appellate division interpreted the notice of claim to allege that the lack of security at defendant’s apartment complex stemmed from inadequate lighting. Plaintiff’s decedent was shot and killed in an area which, allegedly, was completely dark. The additional claims of negligence in the bill of particulars were struck:

… [T]he crux of the notice of claim is that [defendant] NYCHA was negligent in failing to provide adequate security by failing to provide adequate lighting at the location where the decedent was shot and killed … .

… [T]he notice of claim did not directly or indirectly reference those allegations raised in … the bill of particulars that concern NYCHA’s failure to protect tenants from criminal activities and criminal intrusions, NYCHA’s failure to remove alleged known criminals from its premises in violation of its Permanent Exclusion Policy and Real Property Law § 231(2), NYCHA’s failure to install CCTV cameras, and the alleged sale of drugs on NYCHA premises. These allegations go beyond mere amplification of the inadequate lighting allegation and are instead new, distinct, and independent theories of liability that cannot be corrected pursuant to General Municipal Law § 50-e(6) … .Mosley v City of New York, 2023 NY Slip Op 03345, Second Dept 6-21-23

Practice Point: The General Municipal Law section 50-e(6) allows mistakes or omissions from a notice of claim to be overlooked where the defendant is not prejudiced. Here the appellate division interpreted the notice of claim to allege the defendant housing authority’s only negligence was the failure to provide adequate lighting in the area where plaintiff’s decedent was shot. Therefore the additional allegations of negligent security in the bill of particulars (“failure to protect tenants from criminal activities and criminal intrusions, NYCHA’s failure to remove alleged known criminals from its premises in violation of its Permanent Exclusion Policy and Real Property Law § 231(2), NYCHA’s failure to install CCTV cameras, and the alleged sale of drugs on NYCHA premises“) should have been struck.

 

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IN A SIDEWALK SLIP AND FALL CASE AGAINST A MUNICIPALITY, VERBAL NOTICE OF THE DEFECT, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE REQUIREMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this sidewalk slip and fall case, determined the defendant city demonstrated it did not have written notice of the sidewalk defect and rejected the allegation that the city had verbal notice that may have been reduced to writing:

… [P]laintiff and the cross-claim defendants never contested the City’s “proof that it had not received prior written notice of the defect, asserting, instead, that such notice was unnecessary” because the City had actual notice … . However, “it is well settled that verbal or telephonic communications to a municipal body, even if reduced to writing, do not satisfy a prior written notice requirement” … . Runge v City of N. Tonawanda, 2023 NY Slip Op 03123, Fourth Dept 6-9-23

Practice Point: In a sidewalk slip and fall case against a municipality, verbal notice of the defect, even if reduced to writing, does not satisfy the written notice requirement.

 

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THE LOCAL LAW WHICH DISQUALIFIES CANDIDATES WHO HAVE CERTAIN FELONY CONVICTIONS SHOULD NOT HAVE BEEN INTERPRETED TO APPLY ONLY TO CONVICTIONS AFTER THE ENACTMENT OF THE LOCAL LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Local Law which disqualified candidates who have certain felony convictions from running for city council and other officers should not have been interpreted to apply only to convictions after the enactment of the Local Law. Given the importance of the law, the proceeding should not have been converted to a summary judgment motion and decided on an expedited schedule because of the impending primary election:

Under the circumstances presented, where plaintiffs, without good reason, waited until shortly before the upcoming June 27, 2023 Democratic primary election to bring this action seeking a determination as to the constitutional and procedural validity of Local Law 15, enacted in February 2021, and to bring this motion seeking injunctive relief barring its enforcement, on an expedited basis that would not permit meaningful review of the important issues and that necessarily would result in electoral disruption, the court should not have converted, with limited notice to the City, the motion to one for summary judgment and resolved the merits of plaintiffs’ claims on an expedited schedule. * * *

We also find that the court, in prematurely resolving the merits of plaintiffs’ challenges, erred to the extent it construed, against the statutory reading proffered by both parties in the motion court, Local Law 15 as not disqualifying candidates based on the specified felony convictions where the convictions predated the law’s enactment in February 2021. A reading of the statutory language that the law applies to any person who “has been convicted” makes clear, on its face, that the law applies to both pre- and post-enactment convictions and, as the City shows, the legislative comments entirely support that reading, as do the subsequent practices of the Board of Elections. Martinez v City of New York, 2023 NY Slip Op 03073, First Dept 6-8-23

Practice Point: The matter should not have been converted to a summary judgment motion and determined on an expedited schedule because of the impending election. The Local Law which disqualifies candidates with certain felony convictions from running for local offices should not have been interpreted to apply only to convictions after the enactment of the local law.

 

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