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THE REAL PROPERTY TAX LAW (RPTL), NOT THE CPLR, CONTROLS THE COMMENCEMENT OF A REAL PROPERTY TAX FORECLOSURE PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city in this property tax foreclosure proceeding properly followed the procedure for commencing the action prescribed in the Real Property Tax Law (RPTL) (as opposed to the CPLR procedure):

Real Property Tax Law provides that a proceeding for the foreclosure of tax liens in rem shall be commenced in the manner provided in Real Property Tax Law article 11, title 3 (see id. § 1120). Title 3 sets forth specific requirements for public notice by publication and personal notice to owners and other persons with a right, title, or interest in affected properties (see id. §§ 1124, 1125). RPTL 1125(3)(c) provides that the service required by that section “shall be deemed to be equivalent to the service of a notice of petition pursuant to [CPLR 403]” … . Thus, the City was required to comply with the service requirements set forth in the Real Property Tax Law, rather than those set forth in the CPLR … . The City established that it satisfied the notice and service requirements set forth in the Real Property Tax Law and that it is entitled to a default judgment with respect to the parcels of real property identified in the City’s motion (see RPTL 1131, 1136[3]). Matter of Foreclosure of Tax Liens (City of Newburgh), 2023 NY Slip Op 04381, Second Dept 8-23-23

Practice Point: The procedure for commencing a real property tax foreclosure action is prescribed by the Real Property Tax Law (RPTL), not the CPLR.

 

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THE PETITIONS FOR A PERMISSIVE REFERENDUM ON THE BONDS TO BE ISSUED FOR THE CONSTRUCTION OF CERTAIN TOWN BUILDINGS WERE NOT REJECTED WITHIN THE MEANING OF THE CONTROLLING STATUTES; THEREFORE THE TOWN WAS REQUIRED TO SET UP THE PERMISSIVE REFERENDUM FOR NOVEMBER 2023 (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the Town Clerk did follow the statutory procedure for rejecting the petitions for a permissive referendum on bonds to be issued to fund the construction of certain Town road-maintenance buildings. Therefore the town was obligated to set up the permissive referendum:

We need not … decide whether the Town Clerk acted beyond the scope of her authority in rejecting the referendum petitions prior to their filing because, contrary to respondents’ contentions, the subject referendum petitions were received and accepted for filing by the Town Clerk on October 11, 2022 … . The record contains a receipt of filing stating that the Town Clerk “received from [petitioner] three petitions” which were identified by name in the receipt. The receipt issued by the Town Clerk also bears both a signature and a date stamp indicating that the petitions were received for filing … . The receipt issued and signed by the Town Clerk did not constitute a legal rejection of the petition within the contemplation of Town Law § 91 and, as a matter of fact, was not so intended by her to be a rejection since she stated in her own affidavit that she subsequently reviewed the filed petitions with both the Association of Towns of the State of New York and the town attorney and consulted with them regarding the petitions’ handling. Matter of Long v Town of Caroga, 2023 NY Slip Op 04352, Third Dept 8-17-23

Practice Point: Here the statutory requirements for the rejection of petitions for a permissive referendum on bonds to be issued for the construction of town buildings were not met. To the contrary, the Town Clerk accepted the petitions, and the town must set up the permissive referendum for November 2023.

 

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THE FACT THAT THE CONTAMINATED AREA WHERE THE NEW CONSTRUCTION WAS TO BE LOCATED HAD BEEN REMEDIATED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) WAS NOT ENOUGH TO ENSURE SAFETY WHEN THE SOIL IS DISTURBED FOR CONSTRUCTION; THE SEQRA REVIEW DID NOT TAKE THE REQUISITE HARD LOOK AT THE EFFECTS OF DISTURBING THE SOIL (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the Plattsburgh Common Council, the lead agency responsible for review of a construction project pursuant to the State Environmental Quality Review Act (SEQRA), did not take the requisite hard look at the potential danger associated with disturbing the contaminated soil which had been cleaned up and declared remediated by the Department of Environmental Conservation (DEC):

… Supreme Court correctly determined that, although the soil contamination was addressed, the ZBA (Zoning Board of Appeals) and Planning Board failed to take a hard look at this issue … . More specifically, the failure in providing mitigation measures for this environmental concern did not comply with the mandates of SEQRA … . Preliminarily, the Common Council, and thereafter the Planning Board and ZBA, properly relied on DEC correspondence in determining that the project site in its current form did not present adverse environmental impacts … . Here, however, it was inappropriate to determine that there would be no adverse environmental impacts when it was known that the contemplated site plan would necessarily disturb the contaminated soil … . * * * The fact that the brownfield remediation was successful at the time does not discharge the involved agency’s duty to take a hard look relative to the project … . Indeed, the citizens who may be impacted have the right to insist that the construction be done in an environmentally safe manner in accordance with SEQRA.  Matter of Boise v City of Plattsburgh, 2023 NY Slip Op 04338, Third Dept 8-17-23

Practice Point: Here the construction area had been contaminated and was successfully remediated by the DEC. But the SEQRA review required a hard look at the effects of disturbing the soil n the remediated area during construction. The review could not simply rely on the remediation-conclusions of the DEC.

 

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THE NEGLIGENCE AND NEGLIGENT SUPERVISION AND HIRING CAUSES OF ACTION AGAINST THE WARREN COUNTY DEFENDANTS IN THIS CHILD VICTIMS ACT CASE ALLEGING ABUSE IN FOSTER CARE SHOULD HAVE BEEN DISMISSED; THE COMPLAINT DID NOT ADEQUATELY ALLEGE THE WARREN COUNTY DEFENDANTS WERE AWARE OF THE DANGER POSED BY PLAINTIFF’S FOSTER FATHER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the negligence and negligent supervision causes of action against the Warren County defendants in this Child Victims Act case should have been dismissed. The complaint did not adequately allege the Warren County defendants were aware of the danger posed by plaintiff’s foster father:

… [W]e agree with the Warren County defendants that Supreme Court should have dismissed the negligence and negligent hiring, retention, supervision and/or direction causes of action as they relate to the conduct in Warren County. The complaint alleged that, in approximately 1979, plaintiff was placed in a foster home in Warren County, where he was sexually abused by his foster father on numerous occasions. Although we are cognizant that pleadings alleging negligent hiring, retention and supervision need not be pleaded with specificity … , the complaint merely asserts that the Warren County defendants “knew or, in the exercise of reasonable care, should have known” that the foster father “had the propensity to engage in sexual abuse of children.” Unlike in the counties of Albany and Cayuga — where plaintiff alleges that he reported the sexual abuse, thereby providing the municipal defendants with notice of the dangerous condition — the complaint fails to assert any allegations of fact that would have provided the Warren County defendants with notice that the foster father presented a foreseeable harm. Because plaintiff failed to sufficiently plead that the Warren County defendants were provided notice of a dangerous condition present in the Warren County foster home, that claim could not survive a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7) … , and Supreme Court should have dismissed those claims against the Warren County defendants. Easterbrooks v Schenectady County, 2023 NY Slip Op 03889, Third Dept 7-20-23

Practice Point: In order to adequately plead a county was negligent in placing plaintiff in a foster-care situation where plaintiff was abused, the complaint must allege facts demonstrating the county was aware of the danger posed by the foster parent.

 

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PLAINTIFF, WORKING FOR A SUBSIDIARY OF VERIZON, WAS INJURED LAYING A CABLE UNDER A CITY STREET; THE MAJORITY HELD THERE WERE QUESTIONS OF FACT WHETHER A FRANCHISE AGREEMENT BETWEEN THE CITY AND VERIZON AND/OR THE ISSUANCE OF A CITY PERMIT RENDERED THE CITY A PROPER DEFENDANT; A TWO-JUSTICE DISSENT DISAGREED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, over a two-justice dissent, determined the City was not entitled to summary judgment in this Labor Law case. Plaintiff was working for a subsidiary of Verizon (Empire City) laying a conduit in a trench in the street when a backhoe pushed a metal plate onto his foot. The City argued it was not an owner under the Labor Law, had no notice of the alleged dangerous condition, and there was no nexus between the City and and the work performed by Verizon. The majority held there were questions of fact about the existence of a franchise agreement between the City and Verizon, and whether a permit for the work had been issued by the City. Although the “lack of a nexus” argument was raised for the first time in reply, the majority held the issue raised a question of law and was properly considered by the motion court:

The witness’s lack of knowledge renders his testimony inconclusive and speculative as to whether Empire City was working without a permit on the day plaintiff was injured, warranting denial of summary judgment … . * * *

… [T]here remain triable issues of fact as to whether there existed a nexus between plaintiff and the City … . Furthermore, plaintiff sought certified copies of the franchise agreements for both Verizon and Empire City as part of discovery and defendant failed to provide them. Thus, the City’s challenge to the franchise documentation as being unauthenticated should have been rejected by the court, as copies of the documents remained in defendant’s exclusive possession and control but were not provided to plaintiff …  Powell v City of New York, 2023 NY Slip Op 03843, First Dept 7-17-23

Practice Point: The plaintiff was employed by a subsidiary of Verizon and was injured laying a conduit in a trench under a City street. The City claimed it had no nexus to the work done by Verizon. The majority held questions of fact about the existence of a franchise agreement between the City and Verizon and the issuance of a permit by the City precluded summary judgment in favor of the City. There was a two-justice dissent.

 

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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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