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TIER 3 NYC POLICE OFFICERS CANNOT COUNT YEARS OF NON-POLICE SERVICE TOWARD THE 22 YEARS OF POLICE SERVICE REQUIRED FOR RETIREMENT ELIGIBILITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the appellate division, determined tier 3 police officers may not count prior “non-police” service in computing the 22 years of service required for eligibility for retirement benefits:

… [T]ier 3 officers are eligible for retirement after 22 years of service without regard to their age … . The issue before us is whether a tier 3 police officer’s prior non-police service “qualifies to be counted as credited service pursuant to [Retirement and Social Security Law § 513]” … .

… [W]e conclude that the legislature intended tier 3 officers to receive the same service credit as their tier 2 counterparts, but restricted to the credit available prior to July 1, 1976.

Before July 1, 1976, the Administrative Code provided that a tier 2 officer would not be eligible for retirement until he or she “served in the police force for” the then-minimum period of 20 or 25 years … . This language plainly demonstrates that, prior to July 1, 1976, tier 2 officers could count only prior police service toward their retirement eligibility. Accordingly, tier 3 officers may receive retirement credit only for prior police service. Matter of Lynch v City of New York, 2023 NY Slip Op 02753, CtApp 5-23-23

Practice Point: Tier 3 NYC police officers cannot count years of non-police service toward retirement eligibility.

 

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ALTHOUGH THERE IS MERIT TO THE DEFENDANTS’ ARGUMENT THEY WERE DEPRIVED OF THEIR PROPERTY WITHOUT JUST COMPENSATION IN THESE TAX FORECLOSURE PROCEEDINGS WHERE THEIR PROPERTIES WERE TRANSFERRED TO NEIGHBORHOOD RESTORE UNDER NYC’S THIRD PARTY TRANSFER PROGRAM, THE DEFENDANTS’ FAILURE TO ANSWER IN THE TAX FORECLOSURE ACTIONS AND THEIR FAILURE TO REDEEM WITHIN FOUR MONTHS PRECLUDED ANY RECOVERY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, determined the tax foreclosures on defendants’ properties were valid and the transfer of the properties under New York City’s Third Party Transfer Program (TPT program) was proper. The court noted that, under the current procedure, property worth $2 million could be lost for nonpayment of a small water bill and the owner would receive no compensation. Here the city demonstrated it fulfilled the tax-foreclosure notification requirements and defendants did not answer and did not attempt to redeem the property within the four-month redemption period:

… [T]he defendants’ motions were time-barred due to their failure to move to vacate the judgment of foreclosure or to take any action to redeem the subject properties within the four-month redemption period … . In light of the presumption of regularity created by the entry of the judgment of foreclosure against the subject properties (see Administrative Code § 11-411), which became conclusive four months after the entry of the judgment …, there is no basis to consider the defendants’ contentions that the subject properties were not distressed … . Further, this Court has held that where, as here, the defendant property owners failed to interpose a timely answer or to redeem the property during the four-month period following the entry of the judgment of foreclosure, they are not entitled to “compensation” for any “surplus money as a result of the foreclosure and transfer of the property” under the TPT program … . Thus, while we emphasize that there is potential merit to the defendants’ contentions that they were deprived of their properties without just compensation, and that the transfer of a property which was not distressed under the TPT program was improper, we are constrained to conclude that those issues are not reviewable by this Court under the circumstances presented. Matter of Tax Foreclosure Action No. 53, 2023 NY Slip Op 02711, Second Dept 5-17-23

Practice Point: The court acknowledged that the city’s transfer of defendants’ properties to Neighborhood Restore under NYC’s Third Party Transfer program may have deprived defendants of just compensation for the taking of their properties, the fact that defendants did not answer in the tax foreclosure proceedings and did not attempt to redeem the properties within the four-month redemption period precluded any recovery.

 

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THE HOSTILE WORK ENVIRONMENT AND SEX DISCRIMINATION CLAIMS WERE NOT UNTIMELY BECAUSE A CONTINUING COURSE OF CONDUCT LEADING UP TO THE FILING OF THE COMPLAINT WAS ALLEGED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s hostile work environment and sex discrimination claims should not have been dismissed as untimely because a continuing pattern was sufficiently alleged:

The allegations supporting plaintiff’s hostile work environment and sex discrimination claims are timely, as she has sufficiently alleged facts comprising “a single continuing pattern of unlawful conduct extending into the [limitations] period immediately preceding the filing of the complaint” … . The complaint alleges that, following Corn’s sexual assault on plaintiff in February 2015, he continued to stare at her, lurked by her desk, made inappropriate, flirtatious comments toward her, disclosed intimate details about his marriage, and frequently pressured her to go out drinking, within the limitations period. It cannot be said that, as a matter of law, these acts were not part of a single continuing pattern of unlawful conduct supporting her hostile work environment and discrimination claims … .

Moreover, under the New York City Human Rights Law (Administrative Code of City of NY § 8-107) and amended New York State Human Rights Law (Executive Law § 296[h]), the allegations that Corn sexually assaulted plaintiff in 2015 and engaged in a pattern of gender-based misconduct in the workplace, demonstrate that she was subjected to inferior terms, conditions, or privileges of employment on the basis of her gender … . Crawford v American Broadcasting Co., Inc., 2023 NY Slip Op 02611, First Dept 5-16-23

Practice Point: Here the hostile work environment and sex discrimination claims should not have been dismissed as untimely because a continuing course of conduct up until the filing of the complaint was alleged.

 

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ALTHOUGH THE NYC ADMININSTRATIVE CODE MAKES TENANTS RESPONSIBLE FOR REMOVING ICE AND SNOW FROM SIDEWALKS, IT DOES NOT IMPOSE TORT LIABILITY FOR FAILURE TO DO SO; THE ADMINISTRATIVE CODE ALSO MAKES PROPERTY OWNERS RESPONSIBLE FOR SNOW AND ICE REMOVAL; THE LEASE SPECIFICALLY STATED DEFENDANT WAS NOT RESPONSIBLE FOR CLEARING SNOW AND ICE FROM THE SIDEWALK; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the tenant, 185th Operating, was not liable for a sidewalk ice and snow slip and fall. Although the NYC Administrative Code makes tenants responsible for removing ice and snow from sidewalks, it does not impose tort liability for a failure to do so. Here the lease explicitly stated the tenant is not responsible for clearing ice and snow:

Although the applicable statute requires tenants to clear snow and ice from the sidewalks around their premises, the statute does not impose tort liability for noncompliance (Administrative Code of the City of New York § 16-123[a] …). Furthermore, Administrative Code § 7-210(a), which requires property owners to maintain the sidewalk abutting their property, does not impose liability on 185 Operating, as 185 Operating is a tenant of the premises, not the owner. Not only did 185th Operating’s lease with defendant owner … specifically state that 185th Operating was not responsible for maintaining the sidewalks adjacent to the premises, but [the owner’s] lease with defendant Staples …, a tenant occupying the same building as 185th Operating, expressly made Staples responsible for clearing snow and ice from the sidewalk where the icy condition had occurred.

The record does not present any evidence that 185th Operating’s earlier voluntary snow removal created or exacerbated a hazardous condition that then caused plaintiff’s injury … . Cruz v Heights Broadway, LLC, 2023 NY Slip Op 02612, First Dept 5-16-23

Practice Point: Here the lease specifically stated the defendant tenant was not responsible for removing ice and snow from the sidewalk. The NYC Administrative Code requires tenants to remove ice and snow but does not impose tort liability for the failure to do so. The code also requires owners to remove ice and snow. The tenant’s motion for summary judgment should have been granted.

 

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A LOCAL LAW WHICH CURTAILED THE POWER OF AN ELECTED OFFICER TO ACT WAS DEEMED INVALID BECAUSE IT WAS NOT SUBJECT TO A PUBLIC REFERENDUM (SECOND DEPT).

The Second Department, over an extensive dissent, determined a Local Law which curtailed to power of an elected officer to act was invalid because it was not subject to a public referendum. The decision and the dissent are too detailed to fairly summarize here:

Chapter 263 is substantively invalid on its face because the supermajority requirement continually curtails the power of a local officer to act … . This goes to the wisdom and merit of the local law. “Unless specifically provided by statute or charter provisions, one [local] legislature may not bind the hands of its successors in areas relating to governmental matters” … . “A local law . . . which . . . has the effect of curtailing the power of such elective officers . . . becomes operative only after approval by the majority of the qualified” voters … , since it “curtail[s] each legislator’s relative ability to cast the deciding vote” … . To rule otherwise in the instant case would bind the hands of the Town Board and the public indefinitely, merely because years in the past, no one saw fit to challenge a law which would only have practical effect years in the future…. . * * *

The power of the Town Board cannot be limited indefinitely merely because there was a procedure which would have allowed for the passage of such a provision, and although that procedure was not followed, the four-month statute of limitations for challenging procedural defects had passed. This was not a mere procedural defect. Rather, the Town Board imposed a continuing illegal infringement on the rights of future members of the Town Board, and a continuing infringement upon the rights of the voters. Hoehmann v Town of Clarkstown, 2023 NY Slip Op 02606, Second Dept 5-15-23

Affirmed by the Court of Appeals: Hoehmann v Town of Clarkstown, 2023 NY Slip Op 02750, CtApp 5-19-23

Practice Point: Here, a local law which curtailed the power of elective officers was invalid because it was not subject to a public referendum.

 

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THE LEGISLATION ALLOWING PUBLIC FUNDS TO BE USED TO CONSTRUCT A $1.4 BILLION STADIUM FOR THE BUFFALO BILLS IS CONSTITUTIONAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined the statutes authorizing the use of public funds to construct a stadium for the Buffalo Bills are constitutional:

… [T]he NY Constitution establishes that “[t]he money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking” (NY Const, article VII, § 8 [1]). “[T]he appropriate standard for resolving a challenge to an appropriation, whether under article VIII, § 1 or article VII, § 8 (1),” is that “an appropriation is valid where it has a predominant public purpose and any private benefit is merely incidental” … . Moreover, “it is undisputed that article VII, § 8 (1) permits the granting of public funds to public benefit corporations for a public purpose” … and expenditures for stadiums have expressly been found to have a public purpose …  Further, “[b]ecause public benefit corporations … benefit from a status separate and apart from the State, money passed to public corporations consequently cannot be subject to the article VII, § 8 (1) prohibition against gifting or loaning state money as such money is no longer in the control of the State” … . Matter of Schulz v State of New York, 2023 NY Slip Op 02575, Third Dept 5-11-23

Practice Point: Statutes allowing public funds to be used for the construction of a stadium for the Buffalo Bills are constitutional.

 

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THE FOURTH DEPARTMENT, NOTING A SPLIT OF AUTHORITY, DETERMINED THE PLAINTIFF DID NOT SET FORTH ALLEGATIONS WHICH DEMONSTRATED A SPECIAL RELATIONSHIP BETWEEN HER AND THE COUNTY; THEREFORE THE COUNTY COULD NOT BE HELD LIABLE FOR SEXUAL ABUSE ALLEGEDLY SUFFERED BY THE PLAINTIFF WHILE IN FOSTER CARE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and noting a split of authority, determined plaintiff in this Child Victims Act action alleging sexual abuse while in foster care did not demonstrate a “special relationship” with the county. The decision includes a concise explanation of the complex intertwined issues controlling governmental tort liability:

In Mark G. v Sabol (93 NY2d 710 [1999]), the Court of Appeals analyzed provisions in the Social Services Law designed to protect foster children and to prevent child abuse generally and concluded that a private right of action was not consistent with the legislative scheme (see id. at 720-722; see also McLean, 12 NY3d at 201). Notably, in McLean, the Court of Appeals cited Mark G. approvingly … . We therefore conclude that plaintiff cannot establish a special duty based upon the County’s alleged violation of its duties under the Social Services Law. We note that, to the extent that there is case law in the First and Second Departments that would support a contrary conclusion, we decline to follow those cases … .

… [P]laintiff cannot establish the requisite special relationship between the parties based upon the County’s alleged voluntary assumption of a duty that generated justifiable reliance on her part … . To establish such a special relationship, a plaintiff must show “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” (Cuffy v City of New York, 69 NY2d 255, 260 [1987] …). ” ‘[A]ll four elements must be present for a special duty to attach’ ” … .

… “[T]he failure to perform a statutory duty, or the negligent performance of that duty, cannot be equated with the breach of a duty voluntarily assumed” … . Even assuming, arguendo, that plaintiff sufficiently alleged the existence of a duty on the part of the County apart from its statutory obligations, we … conclude that plaintiff failed to set forth allegations that, if proven, would establish each of the four elements articulated in Cuffy … . Weisbrod-Moore v Cayuga County, 2023 NY Slip Op 02445, Fourth Dept 5-5-23

Practice Point: Here the plaintiff sued the county alleging sexual abuse while in foster care. Noting a split of authority, the Fourth Department held the plaintiff did not set forth allegations demonstrating a special relationship between her and the county, a prerequisite for governmental tort liability. The decision includes a concise explanation of the confusing, intetwined issues surrounding governmental tort liability. 

 

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THE NYC BOARD OF HEALTH PROPERLY REFUSED TO ADD GENEALOGISTS TO THE LIST OF PERSONS WHO CAN ACCESS DEATH CERTIFICATES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Board of Health did not exceed the scope of its powers when it amended the NYC Health Code to add family members to the list of persons who can access death certificates but refused to add genealogists:

… New York City Board of Health did not “exceed[] the scope of its delegated powers” in amending 24 RCNY 207.11 … , by adding to the existing list of family members for whom requests for death certificates would automatically be deemed “necessary or required for a proper purpose” while declining to add genealogists … . Instead, it “balance[ed] costs and benefits according to preexisting guidelines” and did not create “its own comprehensive set of rules without benefit of legislative guidance” … .  …

The stated goal of the proposal was to allow more family members access to death certificates, and the Board of Health reasonably expressed concern with family privacy issues, due to social security numbers and causes of death being listed on death certificates, when declining to add genealogists to the expanded list … .  Matter of Reclaim the Records v New York City Dept. of Health & Mental Hygiene, 2023 NY Slip Op 02395, First Dept 5-4-23

Practice Point: The NYC Board of Health did not exceed its administrative powers when it refused to add genealogists to the list of persons who can access death certificates.

 

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CAUSES OF ACTION IN THE COMPLAINT BASED UPON ALLEGATIONS NOT INCLUDED IN THE NOTICE OF CLAIM MUST BE DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined certain causes of action against the municipality should have been dismissed because the notice of claim did not provide notice of them:

The Supreme Court should have granted that branch of the appellants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action arising from events allegedly transpiring after January 6, 2019, insofar as asserted against them, because the plaintiff failed to serve an adequate notice of claim with respect to those causes of action. “[C]auses of action or legal theories may not be raised in the complaint that were not directly or indirectly mentioned in the notice of claim and that change the nature of the claim or assert a new one” … . Here, the notice of claim was limited to the incident that allegedly transpired on January 6, 2019, and thus, the causes of action arising out of events allegedly occurring thereafter, insofar as asserted against the appellants, are foreclosed … . Curry v Town of Oyster Bay, 2023 NY Slip Op 02297, Second Dept 5-3-23

Practice Point: A complaint against a municipality cannot allege causes of action which are based on facts not included in the notice of claim.

 

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PETITIONER, A CORRECTION OFFICER WHO WAS INJURED MOVING LAUNDRY BAGS BLOCKING A HALLWAY IN THE JAIL, WAS ENTITLED TO GENERAL MUNICIPAL LAW 207-C BENEFITS; ALTHOUGH SUPREME COURT SHOULD NOT HAVE TRANSFERRED THE ARTICLE 78 TO THE APPELLATE DIVISION, THE FOURTH DEPARTMENT CONSIDERED THE MERITS (FOURTH DEPT).

The Fourth Department, reversing the denial of General Municipal Law 207-a benefits in this Article 78 proceeding, determined petitioner, a correction officer, was injured performing her duties when she attempted to move laundry bags blocking the hallway in the jail housing unit. The Fourth Department noted that Supreme Court should not have transferred the Article 78 proceeding to the appellate division because the determination was not based upon a hearing at which evidence was taken “pursuant to direction by law:”

… Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804 (g) on the ground that the petition raised a substantial evidence issue. Respondent’s determination “was not ‘made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law’ (CPLR 7803 [4]). Rather, the determination was the result of a hearing conducted pursuant to the terms of [an] agreement” between petitioner’s union and respondent … . Nevertheless, in the interest of judicial economy, we consider the merits of the petition …. …

Petitioner testified at the hearing that she thought the laundry bags outside the main entrance door were a “safety issue,” particularly because they would block other officers from moving through the hallway quickly and because persons using the hallway may get hurt. She further testified that her training and job responsibilities required her to address safety concerns. Petitioner also submitted documentary evidence that correction officers were under the duty to ensure that laundry bags are not placed on the housing unit floor at any time. Moreover, it is undisputed that there was no policy prohibiting correction officers from moving laundry bags. Although respondent submitted testimony that correction officers should order inmates to move laundry bags, that testimony did not address the location of the laundry bags and the safety hazard posed by laundry bags left in a hallway. We therefore conclude that the determination to deny petitioner’s application for section 207-c benefits was arbitrary and capricious … . Matter of Williams v County of Onondaga, 2023 NY Slip Op 02262, Fourth Dept 4-28-23

Practice Point: A correction officer injured moving laundry bags blocking a jail hallway was performing her duties and was entitled to General Municipal Law 207-c benefits.

Practice Point: An Article 78 proceeding should not be transferred to the appellate division unless evidence was taken at a hearing “pursuant to direction by law.” Here the hearing, which was held pursuant to an agreement between the respondent and petitioner’s union, did not meet that criteria.

 

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