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IN THIS HOSTILE-WORK-ENVIRONMENT ACTION UNDER 42 USC 1983 AND THE NYS HUMAN RIGHTS LAW, SOME OF THE DEFENDANTS, ALL CITY EMPLOYEES, WERE DEEMED PROTECTED FROM SUIT BY QUALIFIED IMMUNITY AS A MATTER OF LAW; WITH RESPECT TO THE EMPLOYEE WHO ALLEGEDLY MADE SEXUALLY INAPPROPRIATE COMMENTS TO PLAINTIFF, THERE WERE QUESTIONS OF FACT WHETHER QUALIFIED IMMUNITY WAS APPLICABLE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined qualified immunity protected plaintiff’s supervisors in this hostile-work-environment action under 42 USC 1983 and the NYS Human Rights Law against the City of Albany and individual city employees. Plaintiff alleged a co-worker named Tierney made sexually inappropriate comments to her over a period of two years. The allegations against Tierney properly survived summary judgment, but the allegations against the defendants who played no role in the harassment, alleging supervisory inaction, should have been dismissed. Plaintiff had worked as a civilian dispatcher in the police department:

In the 42 USC § 1983 context, liability of an individual defendant is based on his or her “personal involvement in the alleged constitutional deprivation” … . Individual defendant liability only attaches when his or her own conduct is sufficiently severe and pervasive to create the hostile work environment; otherwise, that defendant is protected by qualified immunity … . * * *

Under state law, public officials are protected by qualified immunity for discretionary acts that are unlawful under the Human Rights Law unless “they are undertaken in bad faith or without reasonable basis” … . Hostile work environment claims under the Human Rights Law are evaluated under the same severe-or-pervasive standard as a claim brought pursuant to 42 USC § 1983 … .* * *

Although individual liability under 42 USC § 1983 may flow from a supervisor’s inaction in the face of known harassment … , the alleged individual inaction … did not suffice to create the hostile work environment … .

We reach the same conclusion … under the Human Rights Law, pursuant to which supervisors may be held individually liable to the extent that they aided and abetted conduct creating a hostile work environment (see Executive Law § 296 [6]). … [D]efendants[] … did not actively participate in the conduct creating the hostile work environment as required under the aiding-and-abetting provision … .

Even if plaintiff’s Human Rights Law claim against them could proceed under a supervisory inaction theory, we would conclude that they are shielded by qualified immunity. … . Mahoney v City of Albany, 2022 NY Slip Op 07288, Third Dept 12-22-22

Practice Point: Here plaintiff and defendants were city employees. Plaintiff alleged one employee made sexually inappropriate comments to her over a two year period. Supervisory inaction was the basis for the action against other defendants. The Third Department held the “supervisory-inaction” defendants were protected from suit by qualified immunity as a matter of law under both 42 USC 1983 and the NYS Human Rights Law. There were questions of fact about whether the employee who made the comments was protected by qualified immunity.

 

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THE SO-ORDERED STIPULATION BETWEEN THE PARTIES RENDERED THE RELATED CAUSE OF ACTION IN THE COMPLAINT MOOT; THE OTHER CAUSE OF ACTION RELIED ON SPECULATION ABOUT FUTURE EVENTS AND THEREFORE WAS NOT RIPE FOR JUDICIAL REVIEW (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined; (1) the stipulation between the two parties rendered the related cause of action in the complaint moot’ and (2) the other cause of action in the complaint was based on speculation about future events and therefore was not ripe for judicial review:

… [P]ursuant to the mootness doctrine, courts are precluded “from considering questions which, although once live, have become moot by passage of time or change in circumstances” … . By contrast, if an “anticipated harm is insignificant, remote or contingent the controversy is not ripe” for judicial review … . “To determine whether a matter is ripe for judicial review, it is necessary first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied” … .

… [T]he first cause of action was resolved by the parties’ so-ordered stipulation. … [T]hat cause of action was rendered academic pursuant to the mootness doctrine … . … [T]he second cause of action relied on speculation about what the County and its various departments might do in response to future audits, and therefore the contemplated harm was both remote and contingent and the controversy was not ripe for judicial review … . Kennedy v Suffolk County, 2022 NY Slip Op 07226, Second Dept 12-21-22

Practice Point: If a cause of action has already been addressed by a so-ordered stipulation, the cause of action is precluded by the mootness doctrine. If a cause of action is based on speculation about future events, it is not ripe for judicial review.

 

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DEFENDANT DID NOT UPDATE ITS ADDRESS FILED WITH THE SECRETARY OF STATE FOR SERVICE OF PROCESS AND DID NOT HAVE A REASONABLE EXCUSE FOR DEFAULT IN THIS SLIP AND FALL CASE; HOWEVER, NO REASONABLE EXCUSE NEED BE SHOWN IN A MOTION TO VACATE A DEFAULT PURSUANT TO CPLR 317; DEFAULT VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant property-owner’s (St. Andrews’) motion to vacate the default judgment in this slip and fall case should have been granted. St. Andrews had not updated its address with the Secretary of State and did not have a reasonable excuse. However a reasonable excuse is not required by CPLR 317:

St. Andrews’s principal demonstrated that he had received a letter notification of plaintiff’s accident before commencement of the action which he forwarded to his insurance broker, but that he never received any further notice until he received the information subpoena. The principal of DP Realty [designated by St. Andrews to receive service of process] also averred that he was unaware of the summons and complaint ever having been received, and therefore it would not have forwarded any papers to St. Andrews. That evidence was sufficient under CPLR 317 to establish St. Andrews’s lack of personal notice of the summons in time to defend. St. Andrews also demonstrated a meritorious defense in that the Yonkers City Code “does not expressly make the landowner liable for failure to perform” the duty to clean snow and ice from the sidewalk, and an abutting landowner is not liable in the absence of such a statute for failure to clear snow, ice and dirt … .

… [P]laintiff demonstrated that St. Andrews never updated its address with the Secretary of State, and thus could not show a reasonable excuse for its default under CPLR 5015(a)(1). However, no showing of a reasonable excuse is required under CPLR 317 … , and it cannot be inferred solely from the failure to update defendant’s address with the Secretary of State that defendant was deliberately avoiding receiving notice … . In light of the strong public policy favoring resolution of cases on their merits … , we find that St. Andrews demonstrated entitlement to vacatur under CPLR 317… . Gomez v Karyes Realty Corp., 2022 NY Slip Op 07187, First Dept 12-20-22

Practice Point: No reasonable excuse for a default need be shown in a motion the vacate the default pursuant to CPLR 317, Here the defendant’s failure to update its address for the service of process with the Secretary of State was not an attempt to avoid service. The motion to vacate the default should have been granted.

 

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YESHIVA UNIVERSITY NO LONGER HAS THE REQUISITE CONNECTION TO RELIGION AND THEREFORE IS NOT EXEMPT FROM THE DISCRIMINATION PROHIBITIONS IN THE NYC HUMAN RIGHTS LAW; THE PRIDE ALLIANCE WAS ENTITLED TO RECOGNITION AS AN OFFICIAL STUDENT ORGANIZATION (FIRST DEPT).

The First Department determined a student group (Pride Alliance) at Yeshiva University was entitled to summary judgment pursuant to the NYC Human Rights Law (City HRL)on its claims asserting gender, sexual orientation, and association discrimination. In addition Pride Alliance was entitled to a permanent injunction requiring Yeshiva to recognize the group as an official student organization. Essentially, Yeshiva argued the university was exempt from the requirements of the City HRL as a religious corporation or institution, but the university no longer had the requisite connection to religion: Yeshiva’s constitutional arguments (free exercise of religion, freedom of expression and association) were rejected:

Yeshiva was originally chartered in 1897 under the Membership Corporations Law as the Rabbi Isaac Elchanan Theological Seminary Association (RIETS), with the stated purpose to “promote the study of Talmud” and prepare Orthodox Jewish rabbis for ministry. Over several decades, the charter was amended to allow numerous secular degrees to be awarded and to change the name of the institution, while RIETS remained part of Yeshiva. In 1967, Yeshiva amended its charter to become incorporated under the Education Law. Two years later it amended the charter to drop Hebrew Literature and Religious Education degrees, since RIETS was being spun off as its own corporation offering those degrees, and to “clarify the corporate status of the University as a non-denominational institution of higher learning.” While Yeshiva is now comprised of three undergraduate colleges and seven graduate schools, RIETS remains a separate corporate entity housed on one of Yeshiva’s campuses. YU Pride Alliance v Yeshiva Univ., 2022 NY Slip Op 07175, First Dept 12-13-22

Practice Point: Yeshiva University was not entitled to exemption from the discrimination prohibitions in the NYC Human Rights Law because the university no longer has the requisite connection to religion. Therefore the “Pride Alliance” was entitled to recognition as an official student group.

 

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THE AMOUNT OF GENERAL MUNICIPAL LAW 207-A COMPENSATION TO WHICH RETIRED PERMANENTLY DISABLED YONKERS FIREFIGHTERS ARE ENTITLED UNTIL RETIREMENT AGE IS SUBJECT TO ARBITRATION UNDER THE COLLECTIVE BARGAINING AGREEMENT (CBA) (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the amount of General Municipal Law 207-a compensation to which retired permanently disable Yonkers firefighters are entitled until reaching retirement age is subject to arbitration under the terms of the collective bargaining agreement (CBA):

If there is a “reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA,” the matter is arbitrable, leaving the arbitrator to “make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them” … . Here, the Union argues that both Appendix C and Article 31 of the CBA demonstrate that the parties agreed to arbitrate the present grievance.

Appendix C, which is entitled, “General Municipal Law Section 207-a Procedure,” contains six pages of detailed terms to which Yonkers and the Union agreed, including very broad provisions granting the arbitrator “authority to decide, de novo, the claim of entitlement [and continued entitlement] to [section] 207-a benefits.” It further provides that when “the matter presents a termination of [section] 207-a benefits, the Fire Department shall have the burden of proof by a preponderance of the evidence that the member is no longer eligible for [section] 207-a benefits.” The Union’s grievance reasonably relates to these provisions because they provide for the arbitration of disputes over General Municipal Law § 207-a benefits, and the Union contends that Yonkers is attempting to terminate such benefits by withholding special pays. Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2022 NY Slip Op 07095, CtApp 12-15-22

Practice Point: The Court of Appeals applied black-letter law to conclude the amount of General Municipal Law 207-a compensation to which retired permanently disabled Yonkers firefighters are entitled until retirement age is subject to arbitration under the collective bargaining agreement.

 

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RETIRED PERMANENTLY DISABLED YONKERS FIREFIGHTERS ARE ENTITLED TO HAVE HOLIDAY PAY AND CHECK-IN PAY INCLUDED IN THE AMOUNT OF COMPENSATION TO WHICH THEY ARE ENTITLED UNTIL RETIREMENT AGE; NIGHT DIFFERENTIAL PAY, HOWEVER, SHOULD NOT BE INCLUDED (CT APP). ​

​The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a two-judge dissent, determined retired Yonkers firefighters (Retirees) , who are permanently disabled, are entitled to have holiday pay and check-in pay included in the amount of compensation they receive until reaching retirement age. The retired, disabled firefighters are not entitled to have “night differential” pay included, however:

General Municipal Law § 207-a (2) provides that, for firefighters who are permanently disabled due to work-related injuries and receiving certain benefits from the state, a municipality must make up the difference between those benefits and the firefighter’s “regular salary or wages” until the firefighter reaches the mandatory retirement age. Since at least 1995, the CBAs have provided for holiday pay, check-in pay, and night differential, which collectively the parties refer to as “special pays.” … Until 2015, Yonkers included all three of these payments when calculating the Retirees’ section 207-a (2) supplements. * * *

Unlike check-in and holiday pay, the Retirees have not established whether all firefighters are contractually entitled to receive night differential pay … . Night differential contains two express conditions: it is earned only by “firefighters who are regularly scheduled to work rotating tours that include the 6:00 p.m. to 8:00 a.m. night tour, and only to firefighters actually working that night tour.” The restriction of this payment to those firefighters who “actually work[] the night tour” strongly suggests that night differential must be specially earned, not paid to all, rendering it distinct from “regular salary or wages,” and the Retirees have not demonstrated that the CBAs [collective bargaining agreements] require all firefighters to work the night tour. Thus, the Retirees have not demonstrated that all firefighters are entitled to earn the night differential such that it should be included in the section 207-a (2) calculation. Matter of Borelli v City of Yonkers, 2022 NY Slip Op 07094, CtApp 12-15-22

Practice Point: Permanently disabled Yonkers firefighters are entitled to have holiday pay and check-in pay, but not night differential pay, included in the compensation they are to receive until retirement age.

 

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ALTHOUGH THE RAISED PORTION OF THE SIDEWALK FLAG OVER WHICH PLAINTIFF TRIPPED DID NOT ABUT DEFENDANTS’ PROPERTY SEVERAL FEET OF THE FLAG EXTENDED IN FRONT OF DEFENDANTS’ PROPERTY; THE VILLAGE CODE MANDATES THAT ABUTTING PROPERTY OWNER’S MAINTAIN SIDEWALKS IN A SAFE CONDITION; DEFENDANTS DID NOT SUBMIT ANY EVIDENCE THAT THEY MAINTAINED THE ABUTTING PORTION OF THE SIDEWALK IN A SAFE CONDITION OR THAT ANY FAILURE TO DO SO WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant homeowners were not entitled to summary judgment in this sidewalk slip and fall case. Apparently the raised part of a sidewalk flag over which plaintiff tripped was not in front of defendants’ property, but much of that same flag abutted defendants’ property. Because the village code placed responsibility on the homeowners to keep the sidewalk in a safe condition, in order to warrant summary judgment, the defendants were required to demonstrate they maintained the portion of the sidewalk in front of their property in a reasonable safe condition or that the failure to do so was not a proximate cause of plaintiff’s fall. Defendants offered no evidence on that issue:

While the homeowners demonstrated that the section of the sidewalk containing the defect on which the plaintiff allegedly tripped did not abut their property, their submissions in support of their motion also included evidence that the sidewalk flag on one side of the defect—which was not level with the adjacent flag, resulting in the height differential on which the plaintiff tripped—extended several feet onto their side of the property line. To meet their prima facie burden, the homeowners were “required to do more than simply demonstrate that the alleged defect was on another landowner’s property” … . They were required to make a prima facie showing that they maintained the portion of the sidewalk abutting their own property in a reasonably safe condition, or that any failure to do so was not a proximate cause of the plaintiff’s injuries … . Kuritsky v Meshenberg, 2022 NY Slip Op 07066, Second Dept 12-14-22

Practice Point: Here the village code placed responsibility for maintaining sidewalks in a reasonably safe condition on the abutting property owners. The raised portion of a sidewalk flag over which plaintiff tripped was not in front of defendants’ property. But several feet of that same sidewalk flag extended in front of defendants’ property. To warrant summary the defendants were required to show either that they maintained the portion of the sidewalk which abutted their property in a reasonably safe condition, or that the failure to do so was not the proximate cause of plaintiff’s fall. The defendants presented no evidence on the issue.

 

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THE CITY WAS NOT ENTITLED TO QUALIFIED IMMUNITY IN THIS “UNSAFE INTERSECTION DESIGN” CASE BECAUSE NO STUDIES OF THE INTERSECTON HAD BEEN UNDERTAKEN AND NO HIGHWAY-PLANNING DECISIONS HAD BEEN MADE; THE FACTS THAT THE CITY HAD NO NOTICE OF THE CONDITION AND NO PRIOR ACCIDENTS HAD BEEN REPORTED DID NOT WARRANT SUMMARY JUDGMENT ON WHETHER THE CITY HAD CREATED A DANGEROUS CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the “unsafe intersection design” cause of action against the city in this traffic accident case should not have been dismissed. The city was not entitled to qualified immunity because there was no evidence any studies of the intersection had been undertaken or any highway-planning decision concerning the intersection had been made. The court noted the fact that the city had no notice the intersection was unsafe and no accidents had been reported did not warrant summary judgment on whether the city had created a dangerous condition:

… [W]here the initial traffic design is challenged, the municipality must show that there was a reasonable basis for the traffic plan in the first instance … . As the City defendants failed to establish that the original design of the subject intersection was based on a deliberative decision-making process which entertained and passed on the very same question of risk that the plaintiff would put to a jury, the City defendants did not sustain their prima facie burden on the issue of qualified immunity … .

… [T]he lack of prior similar accidents or notice did not establish the City defendants’ prima facie entitlement to judgment as a matter of law under ordinary negligence principles. Since the City defendants created the alleged dangerous condition with their design of the intersection, “the ‘usual questions of notice of the condition are irrelevant'” … . … [T]he lack of prior similar accidents within the five years preceding the plaintiff’s accident did not establish, by itself, that the intersection was reasonably safe. Whether a dangerous or defective condition exists “depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” … . A lack of prior accidents “is some evidence that a condition is not dangerous or unsafe” … . However, it is only a factor to be considered and does not negate the possibility of negligence … . Petronic v City of New York, 2022 NY Slip Op 07085, Second Dept 12-14-22

Practice Point: In an “unsafe intersection design” case, the municipality is not entitled to qualified immunity unless a study of the intersection had been undertaken and a highway-planning decision concerning the intersection had been made.

Practice Point: Because it was alleged the city created the dangerous intersection, the lack of notice and prior accidents did not warrant summary judgment dismissing the negligent-design cause of action.

 

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PLAINTIFF-TENANT’S COMPLAINT ALLEGED DEFENDANT-LANDLORD’S STIPULATION WITH THE PRIOR TENANT IN 2000 ILLEGALLY DECONTROLLED THE APARTMENT; THE MAJORITY DISMISSED THE COMPLAINT; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff’s complaint should have been dismissed. “Plaintiff, the current tenant of the subject apartment, commenced this action seeking a declaration that her tenancy is subject to the Rent Stabilization Law (RSL) and that the premises were illegally decontrolled in 2000 when defendant owner and nonparty Edward McKinney reached a ‘private agreement’ circumventing initial rent registration procedures for decontrolling the apartment.” The decision and the dissent are detailed and fact-specific and cannot be fairly summarized here:

An agreement by a tenant to waive the benefit of any provision of the rent control law is expressly prohibited and void (9 NYCRR 2200.15 …). However, when McKinney and defendant settled their dispute over McKinney’s status, McKinney was not a tenant … . He was not on the lease and had no evident rights, other than being an occupant of the apartment who claimed that he had succession rights when Brown died. … Defendant, on the other hand, denied that McKinney was anything other than a squatter/licensee or possible roommate of the deceased. By entering into the 2000 stipulation, both sides, represented by counsel, resolved their dispute as to whether McKinney had any statutory right to the apartment. By doing so, McKinney and defendant chose the certainty of settlement, rather than the uncertainty of a judicial declaration about McKinney’s status … .

From the dissent:

… I would find that plaintiff has sufficiently pleaded that the stipulation that McKinney and defendant executed in 2000 (the 2000 stipulation) was void under applicable statutes, as interpreted by our Court and the Court of Appeals. Accordingly, I would vote to affirm the portion of the motion court’s decision that denied defendant’s motion to dismiss the first, third and fourth causes of action. Liggett v Lew Realty LLC, 2022 NY Slip Op 07000, First Dept 12-8-22

Practice Point: Plaintiff-tenant alleged defendant-landlord illegally decontrolled the apartment in 2000 by entering an agreement (a stipulation) with the prior tenant. The majority held the complaint did not state a cause of action. The two dissenters disagreed.

 

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THERE IS A QUESTION OF FACT WHETHER DEFENDANT POLICE OFFICER VIOLATED THE RECKLESS-DISREGARD-FOR-THE-SAFETY-OF-OTHERS STANDARD OF CARE FOR POLICE VEHICLES IN PURSUIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant police officer, Benbow, violated the reckless disregard standard of care in this traffic accident case. Plaintiff was the driver’s partner in the police car which collided with another car in an intersection when the driver was pursuing a car with excessively tinted windows:

… [There is] a triable issue of fact as to whether Benbow acted with reckless disregard for the safety of others. In contrast to Benbow’s deposition testimony that he stopped at the red light and looked in both directions before slowly proceeding into the intersection against the red light, the plaintiff testified at her deposition that she and Benbow were responding to a call of a security alarm at a school, that Benbow did not stop before entering the intersection, that he was going to turn right and looked only to the left, that after he had entered the intersection he said that he “saw something” and suddenly accelerated and turned to the left, without ever looking to the right, that the plaintiff saw Ilyaich’s vehicle and said “watch out,” and that in response, Benbow then looked to the right, but did not attempt to move the police vehicle away from the collision … . Thompson v City of New York, 2022 NY Slip Op 06733, Second Dept 11-23-22

Practice Point: In this case there was no dispute that the reckless disregard standard applied to the police officer driving the police car in which plaintiff, his partner, was a passenger. There was a question of fact whether the driver violated the reckless disregard standard leading to a collision in an intersection.

 

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