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THE COUNTY HAD TIMELY KNOWLEDGE OF THE NATURE OF PETITIONER’S EXCESSIVE-FORCE CLAIM AGAINST THE POLICE AND DID NOT DEMONSTRATE PREJUDICE FROM THE DELAY IN FILING A NOTICE OF CLAIM; THAT PETITIONER DID NOT HAVE AN ADEQUATE EXCUSE WAS NOT DETERMINATIVE; THE APPLICATION TO SERVE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s application to file a late notice of claim in this “excessive force” action against the police should have been granted. The county had timely knowledge of the nature of the claim and the county did not demonstrate prejudice from the delay. The absence of an adequate excuse was not determinative:

… [T]he petitioner commenced this proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim upon the County of Suffolk and the SCPD, alleging, inter alia, that he had sustained personal injuries due to the use of excessive force by the arresting officers. …

In determining whether to grant an application for leave to serve a late notice of claim, the court is required to consider all relevant facts and circumstances, including whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the claimant has a reasonable excuse for the failure to timely serve a notice of claim, and whether the delay would substantially prejudice the public corporation in maintaining its defense … . …

… [T]he respondents had timely actual knowledge of the essential facts constituting the petitioner’s claim, since their employees participated in the acts giving rise to the claim and filed reports and prepared other documentation with respect to the subject incident from which it could be readily inferred that the respondents had committed a potentially actionable wrong … . Matter of Romero v County of Suffolk, 2022 NY Slip Op 04966, Second Dept 8-17-22

Practice Point: Here the county had timely knowledge of the nature of petitioner’s excessive-force claim against the police and the county could not demonstrate any prejudice from petitioner’s late filing. The absence of an adequate excuse for failure to file on time was not determinative. Petitioner’s application to file a late notice of claim should have been granted.

 

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THE INSPECTION PIT, WHICH DID NOT VIOLATE ANY STATUTE OR REGULATION, WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; PLAINTIFF’S FALL INTO THE PIT WAS NOT ACTIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the inspection pit into which plaintiff fell was open and obvious and therefore not actionable:

… “[T]here is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous” ,,, , or “where the condition on the property is inherent or incidental to the nature of the property, and could be reasonably anticipated by those using it” … .

Here, the defendants established, prima facie, that the inspection pit was an open and obvious condition that was inherent or incidental to the nature of the property and was not inherently dangerous … . In opposition, the plaintiff failed to raise a triable issue of fact. The speculative and conclusory affidavit of the plaintiff’s expert submitted in opposition to the motion did not allege that there was a violation of any applicable statute or relevant industry standard, and it was insufficient to raise a triable issue of fact … . Lebron v City of New York, 2022 NY Slip Op 04960, Second Dept 8-17-22

Practice Point: The open and obvious condition, an inspection pit, into which plaintiff fell, was open and obvious and did not violate any statute or code provision. Therefore, plaintiff’s fall was not actionable.

 

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THE CITY PROPERLY AMENDED ITS CHARTER DELETING THE PROVISIONS REQUIRING THE CITY TO ENFORCE PAYMENT OF DELINQUENT PROPERTY TAXES, IMPOSING THAT DUTY ON THE COUNTY (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the city properly amended its charter by deleting the provisions requiring the city to enforce payment of delinquent property taxes, thereby imposing that duty upon the county:

By adopting Local Law No. 2, the City amended its charter by deleting the provisions requiring the City to enforce the payment of delinquent taxes, leaving the County with that obligation under RPTL article 11. The City was statutorily authorized to do so pursuant to RPTL 1104 (2), which recognizes that a city charter “may from time to time be amended.” As a consequence of the amendment, the City is no longer a “tax district” for purposes of RPTL article 11 … and the County treasurer becomes the enforcing officer … . As such, the County treasurer is statutorily required to credit the City for unpaid delinquent taxes upon the return at the end of the fiscal year … . This outcome is neither an expansion nor impairment of the County’s powers but simply a consequence of the statutory structure outlined in RPTL articles 9 and 11. Matter of St. Lawrence County v City of Ogdensburg, 2022 NY Slip Op 04932, Third Dept 8-11-22

Practice Point: Here the city, pursuant to the Real Property Tax Law, properly amended its charter to remove the provisions requiring the city to enforce payment of delinquent property taxes, a duty which now falls upon the county.

 

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EVEN THOUGH THE CITY WAS NOT ABLE TO SHOW IT WAS PREJUDICED BY THE NINE MONTH DELAY BEFORE THE PETITION SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM, AND DESPITE THE FACT THAT A SLIP AND FALL INCIDENT REPORT WAS CREATED BY THE POLICE ON THE DAY OF THE INCIDENT, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined leave to file a late notice of claim in this slip and fall case should not have been granted. There was a nine-month delay. There was an incident report prepared on the day of the accident but the Second Department found the report did not notify the city of a potential lawsuit stemming from the accident. The attorney affirmation submitted by the city was speculative and therefore did not demonstrate the city was prejudiced by the failure to timely file the notice of claim. Petitioner did not have a reasonable excuse for failing to timely file. Despite the city’s failure to show prejudice, the petition should have been denied:

… [T]he appellants did not acquire actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter … . … [A] Yonkers Police Department incident report prepared on the day of the accident by a responding officer did not provide the appellants with actual knowledge of the essential facts constituting the claim. For reports to provide actual knowledge of the essential facts, “one must be able to readily infer from that report that a potentially actionable wrong had been committed” … . A police accident report prepared by a responding officer, establishing knowledge of the accident, generally does not, without more, provide actual knowledge to the municipal defendants of the essential facts underlying the claim against them … . Here, the Yonkers Police Department report indicated that the petitioner stated that she had slipped and fallen while exiting a ramp on the appellants’ property and turning the corner, but there is no identification of the cause of the fall from which negligence on the part of the appellants could be inferred.

The petitioner asserts that there is no prejudice to the appellants’ ability to conduct an investigation inasmuch as the transitory nature of the icy condition would be difficult to investigate whether 90 days later or months later … . In response, the appellants rely upon an attorney affirmation stating that their ability to conduct an investigation was substantially prejudiced by the delay because one of the responding officers retired and might not be available to testify, and the others could not be expected to recall the accident, given the passage of time. This affirmation, based solely on speculation and conjecture, is insufficient for the appellants to rebut the petitioner’s showing of lack of prejudice with particularized evidence in the record … .

Nevertheless, weighing the appropriate factors, the Supreme Court should have denied the petition in light of the lack of reasonable excuse, the time elapsed, and the lack of actual knowledge of the essential facts giving rise to the claim … . Matter of Ortiz v Westchester County, 2022 NY Slip Op 04807, Second Dept 8-3-22

Practice Point: Here an incident report prepared by the police on the day of the slip and fall was deemed not to have provided the city with timely notice of a potential lawsuit. And the fact that the city did not demonstrate it was prejudiced by the delay did not prevent the Second Department from finding the petition for leave to file a late notice of claim should not have been granted.

 

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THE CITY HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT FROM AN ACCIDENT REPORT AND THEREFORE WAS NOT PREJUDICED BY THE FAILURE TO FILE A NOTICE OF CLAIM; THE PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED DESPITE THE ABSENCE OF A REASONABLE EXCUSE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim should have been granted. The accident alerted the city to the potential lawsuit and the delay was minimal. The absence of a reasonable excuse for the delay was overlooked:

It was readily inferable from a police accident report, a line-of-duty injury report, and witness statements taken on the day of the subject accident “that a potentially actionable wrong had been committed by [an employee of] the public corporation” … . Thus, the defendant was not prejudiced by the petitioner’s delay, which was, in any event, minimal. Accordingly, the court should have granted the petition notwithstanding the lack of a reasonable excuse … . Matter of Dautaj v City of New York, 2022 NY Slip Op 04802, Second Dept 8-3-22

Practice Point: Where a municipal defendant has actual timely notice of a potential lawsuit from an accident report, the delay is not long, and the city suffers no prejudice from the failure to timely file, a petition for leave to file a late notice of claim should be granted even when petitioner does not have a reasonable excuse.

 

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THE TOWN BOARD OF APPEALS’ FAILURE TO ISSUE A DECISION ON PETITIONER’S APPLICATION FOR A SPECIAL EXCEPTION PERMIT AND AN AREA VARIANCE WITHIN THE 62 DAYS PRESCRIBED BY THE TOWN LAW WAS NOT A DENIAL BY DEFAULT; THEREFORE SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION AND THE MATTER WAS NOT RIPE FOR REVIEW; SUPREME COURT SHOULD NOT HAVE ANNULLED THE “DEFAULT DENIAL” AND ORDERED THE TOWN TO ISSUE THE PERMIT AND VARIANCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the town Board of Appeals’ failure to issue a decision on petitioner’s application for a special exception permit and an area variance within the 62 days prescribed by the Town Law was not a denial of the application by default; (2) Supreme Court should not have treated the failure to issue a timely decision as a denial by default. which it then annulled, ordering the town to issue the permit and the variance; and (3) Supreme Court should not have denied the Board’s motion to vacate Supreme Court’s order and judgment (ordering the issuance of the permit and variance):

Pursuant to Town Law § 267-a(8), the Board must render a decision within 62 days after the close of the hearing. The Town Law also contains a default provision which provides that if the Board, in exercising its appellate jurisdiction, fails to render a decision within 62 days of the hearing, the application is deemed denied (see id. § 267-a[13][b]). …

A proceeding to annul a determination by an administrative body “should not be concluded in the petitioner’s favor merely upon the basis of a failure to answer the petition on the return date thereof, unless it appears that such failure to plead was intentional and that the administrative body has no intention to have the controversy determined on the merits” … . Here, there was no evidence demonstrating a deliberate default by the Board … .

Contrary to the petitioner’s contention, its application for a special exception permit was not denied by default. The Board’s failure to comply with the time period prescribed by Town Law § 267-a(8) only results in a denial by default when the Board exercises its appellate jurisdiction (see id. § 267-a[13][b]). The Board exercises its original jurisdiction in special exception cases … , and thus, there was no denial by default of the petitioner’s application for a special exception permit … . With no final determination having been rendered on the application for a special exception permit, that issue was not ripe for judicial review, and the Supreme Court lacked subject matter jurisdiction over that issue … . We note that ripeness “is a matter pertaining to subject matter jurisdiction which may be raised at any time, including sua sponte” … . Matter of 999 Hempstead Turnpike, LLC v Board of Appeals of the Town of Hempstead, 2022 NY Slip Op 04721, Second Dept 7-29-22

Practice Point: A town Board of Appeals’ failure to issue a decision on an application for a permit and an area variance within the 62 days prescribed by the Town Law is not a denial of the petition by default. Supreme Court, therefore, did not have subject matter jurisdiction over he purported “denial by default” and the matter was not ripe for review.

 

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ACTIONS PURSUANT TO NEW YORK CITY’S “FREELANCE ISN’T FREE ACT” (FIFA) WHICH ALLEGED DEFENDANTS FAILED TO PAY PLAINTIFFS-FREELANCERS SURVIVED MOTIONS TO DISMISS (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Moulton, in matters of first impression, interpreted the Freelance Isn’t Free Act (FIFA) in the context of motions to dismiss. The opinion is detailed and fact-specific and cannot be fairly summarized here. The plaintiffs alleged they were hired by defendants as freelancers and defendants’ failure pay was the basis of the lawsuits pursuant to FIFA. Most of the actions survived the motions to dismiss:

Enacted November 16, 2016 and effective May 15, 2017, FIFA is the first act of its kind in this country to provide legal protections for freelance workers against nonpayment for work performed … . FIFA defines a “freelance worker” as “any natural person or any organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for compensation” … . A central issue in this case is whether plaintiffs fit within this definition. Chen v Romona Keveza Collection LLC, 2022 NY Slip Op 04702, First Dept 7-26-22

Practice Point: New York City enacted the “Freelance Isn’t Free Act” (FIFA) in 2017–the first law in the nation to specifically address the failure to pay freelancers.

 

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PLAINTIFF’S FAILURE TO SCHEDULE A 50-H HEARING AFTER ADJOURNING IT TWICE REQUIRED DISMISSAL OF THE RELEVANT CAUSES OF ACTION IN THIS DEFAMATION SUIT AGAINST A COUNTY EXECUTIVE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s failure to schedule a 50-h hearing after adjourning it twice required dismissal (without prejudice) of certain causes of action in this defamation suit against a county executive:

Supreme Court erred in denying the motion insofar as it sought to dismiss the first through fourth causes of action on the ground that plaintiff failed to comply with defendant’s demand for an oral examination pursuant to General Municipal Law § 50-h (1), and we therefore modify the order accordingly. “[A] plaintiff who has not complied with General Municipal Law § 50—h (1) is precluded from maintaining an action against a municipality” … . Here, plaintiff adjourned the examination on two separate occasions and failed to respond to defendant’s subsequent request that she choose from a list of dates when she would be available for examination. Under the circumstances, plaintiff bore the burden of rescheduling the examination … , and because plaintiff failed to reschedule, she was barred by statute from commencing an action … .

“Although compliance with General Municipal Law § 50—h (1) may be excused in ‘exceptional circumstances’ ” … , there were no such circumstances here. Contrary to defendant’s contention, however, the first through fourth causes of action should be dismissed without prejudice … .Landa v Poloncarz, 2022 NY Slip Op 04490, Fourth Dept 7-8-22

Practice Point: Here plaintiff twice adjourned the 50-h hearing and then did not respond to defendant’s attempt to schedule a third. Under those circumstances it was plaintiff’s responsibility to schedule a hearing. Failure to do so required dismissal of the relevant causes of action (without prejudice).

 

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UNDER THE NYC ADMINISTRATIVE CODE, ABUTTING PROPERTY OWNERS ARE LIABLE FOR THE CONDITION OF SIDEWALKS BUT NOT CITY OWNED TREE WELLS, UNLESS THEY AFFIRMATIVELY CREATE THE DANGEROUS CONDITION, NEGLIGENTLY REPAIR THE AREA, OR CREATE THE DANGEROUS CONDITION BY A SPECIAL USE; HERE PLAINTIFF SLIPPED AND FELL BECAUSE OF THE CONDITION OF THE TREE WELL, NOT THE SIDEWALK, AND NONE OF THE OTHER LIABILITY THEORIES APPLIED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant property owner and manager could not be held liable for the condition of a tree well within a city sidewalk. Therefore their motion for summary judgment in this slip and fall case should have been granted:

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner … . However, “section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells” … . Thus, “liability may be imposed on the abutting landowner in such instances only where she or he has ‘affirmatively created the dangerous condition, negligently made repairs to the area, [or] caused the dangerous condition to occur through a special use of that area'” … . Ivry v City of New York, 2022 NY Slip Op 04157, Second Dept 6-29-22

Practice Point: Under the NYC Administrative Code, abutting property owners can be liable for a slip and fall due to the condition of the sidewalk, but not a city-owned tree well.

 

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THE NOTICE OF CLAIM WAS SERVED ONLY FIVE DAYS LATE WHICH WAS DEEMED TIMELY NOTICE OF THE NATURE OF THE ACTION AND A SHOWING OF THE ABSENCE OF PREJUDICE; THE CITY DID NOT AFFIRMATIVELY DEMONSTRATE PREJUDICE; THE ABSENCE OF AN ADEQUATE EXCUSE WAS NOT FATAL; LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim should have been granted. The notice of claim was served five days after the expiration of the 90-day time-limit. The court deemed that to constitute timely knowledge of the claim. The city did not demonstrate prejudice. The absence of an excuse was not a fatal defect:

… [T]he petitioner served the notice of claim upon the respondents five days after the 90-day period for service had expired and commenced the instant proceeding the next day. Under such circumstances, the respondents acquired actual knowledge of the essential facts constituting the claim within a reasonable time after the expiration of the 90-day statutory period … . Since the respondents acquired timely knowledge of the essential facts constituting the petitioner’s claim, the petitioner met his initial burden of showing a lack of prejudice … .

… [T]he respondents “failed to come forward with particularized evidence showing that the late notice had substantially prejudiced [their] ability to defend the claim on the merits” … . Rather, the respondents’ counsel made only conclusory assertions that the petitioner’s five-day delay in serving the notice of claim had hindered the respondents’ ability to conduct a prompt and thorough investigation of the subject incident, which “were insufficient to rebut the petitioner’s initial showing of lack of prejudice” … .

Although the petitioner failed to offer a reasonable excuse for his failure to timely serve the notice of claim, “the absence of a reasonable excuse is not fatal to the petition where there was actual notice and absence of prejudice” … . Matter of Gabriel v City of Long Beach, 2022 NY Slip Op 04169, Second Dept 6-29-22

Practice Point: Here the notice of claim was served only five days late. The city was thereby deemed to have had timely notice of the nature of the claim and the petitioner was deemed to have demonstrated a lack of prejudice. The fact that the petitioner did not have an adequate excuse was not a fatal defect. Leave to file a late notice of claim should have been granted.

 

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