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THE BIG APPLE MAP RAISED A QUESTION OF FACT ABOUT WHETHER THE CITY HAD WRITTEN NOTICE OF THE SIDEWALK DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; PLAINTIFF’S COMPLAINT WAS AMENDED TO FIX A DEFICIENCY IN PLEADING THAT THE CITY HAD WRITTEN NOTICE OF THE DEFECT (FIRST DEPT).

​The First Department, reversing Supreme Court, determined: (1) there was a question of fact whether the Big Apple map provided the city with written notice of the sidewalk defect alleged to have caused plaintiff’s slip and fall; (2) the city’s evidence to the contrary was improperly first submitted in reply; (3) the plaintiff was entitled to amend the complaint to correct the deficiency in pleading the city had written notice of the sidewalk defect:

In support of its summary judgment motion, the City submitted evidence, including the most recent Big Apple Map received by the City prior to plaintiff’s accident, and argued that the Map did not depict the type of sidewalk defect that plaintiff testified caused her accident.

Based on all the evidence submitted, including the Big Apple Map and photographs of the sidewalk defect, plaintiff raised a triable issue of fact as to whether the City had prior written notice of the alleged dangerous condition … . The City’s contention that the Big Apple Map had been rendered inapplicable by subsequent sidewalk repairs is unavailing. Aside from the fact that this argument was improperly raised for the first time on reply, the City’s submissions indicated that the defect remained unchanged. Further, the issue of whether the Big Apple Map was sufficiently close in time to provide prior written notice, and whether the area had remained unchanged, was a question for the jury … . Bchakjan v City of New York, 2022 NY Slip Op 06543, First Dept 11-17-22

Practice Point: In NYC, a Big Apple map may provide the city with written notice of a sidewalk defect.

 

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WHETHER THE VILLAGE POLICE WERE ENTITLED TO ADDITIONAL COMPENSATION FOR WORK DURING THE EARLY DAYS OF THE COVID-19 PANDEMIC IS ARBITRABLE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the issue whether the village police were entitled to additional compensation for work during the early days of the COVID-19 pandemic is arbitrable:

Where the relevant arbitration provision is broad, a court “should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA [collective bargaining agreement]” … . If such a relationship exists, “the court should rule the matter arbitrable, and the arbitrator will then 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” … .

… [T]he Village’s petition was grounded on its contention that the dispute in this case is not arbitrable because article V, § 4 of the CBA provides for additional compensation when the mayor of the Village declares “a holiday for Village employees due to an emergency,” and no such declaration was made by the mayor here. The petition further asserted that arbitration would be against public policy because the “members of the PBA are seeking to extract a benefit to which they clearly are not entitled and which is not contained in their contract.” These contentions are without merit, since the applicability of article V, § 4 of the CBA does not affect the arbitrability of the dispute, but only the merits of the dispute, and the merits are to be determined by the arbitrator and not by the courts … . Matter of Incorporated Vil. of Floral Park v Floral Park Police Benevolent Assn., 2022 NY Slip Op 06481, Second Dept 11-16-22

Practice Point: Whether a matter is arbitrable is separate and distinct from whether the dispute has merit, which is determined by the arbitrator.

 

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PLAINTIFF PEDESTRIAN ALLEGED THE NEGLIGENCE OF A TRAFFIC OFFICER IN DIRECTING TRAFFIC CAUSED THE ACCIDENT; PLAINTIFF DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP BETWEEN THE CITY AND PLAINTIFF, A PREREQUISITE FOR MUNICIPAL LIABILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff-pedestrian’s complaint against the city in this traffic accident case should have been dismissed. Plaintiff alleged the traffic officer’s negligence in directing traffic caused the accident. The First Department found there was no demonstration of a “special relationship” between plaintiff and the city, a prerequisite for municipal liability:

Neither the notice of claim nor the complaint alleges the factual predicate for the special relationship theory between plaintiff and the City, as required to hold the City liable for plaintiff’s injuries based on a traffic officer’s alleged negligence in directing traffic and pedestrians at an intersection where plaintiff was crossing the street … . Plaintiff also did not sufficiently allege that the officer, in directing traffic, took control of “a known and dangerous safety condition” so as to set forth the existence of a special duty … . Plaintiff alleged only that the traffic officer negligently directed a vehicle at the intersection, causing the vehicle to hit her, thereby creating a dangerous condition; however, the dangerous condition must exist prior to the traffic officer’s assumption of any duty … . Plaintiff did not assert that the intersection was inherently dangerous or that the drivers of the cars at the intersection were violating any safety laws before the officer was directing pedestrians. Polito v Escorcia, 2022 NY Slip Op 06447, First Dept 11-15-22

Practice Point: In this pedestrian accident case, the plaintiff alleged the negligence of the traffic officer in directing traffic caused the accident. The plaintiff failed to demonstrate a special relationship between the city and plaintiff, a prerequisite for municipal liability.

 

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PETITIONER NYC FIREFIGHTER WAS DENIED ACCIDENTAL DISABILITY RETIREMENT (ADR) BENEFITS WITHOUT ANY EXPLANATION IN THE MEDICAL BOARD’S FINDINGS; THE MATTER WAS REMITTED FOR A NEW DETERMINATION BASED ON A RECORD ADEQUATE FOR REVIEW (FIRST DEPT).

The First Department, annulling the denial of accidental disability retirement (ADR) benefits in this firefighter-disability case, determined that the Medical Board’s failure to explain the reasons for its conclusion there was no accident and the injuries were not debilitating required remittal to the Medical Board and a new determination by the Board of Trustees with a record adequate for review:

… [T]he Medical Board found petitioner to be disabled on account of the left shoulder injuries he sustained on March 22, 2018. However, citing “inconsistencies” and a “lack of witnessed accounts . . . that would suggest . . . an accident,” the Board denied petitioner an ADR benefit. When the insufficient explanation was raised before the Board of Trustees, they acknowledged that a witness statement was not necessary, and stated that they did not understand what the Medical Board was referring to with regard to inconsistencies in the manner of petitioner’s injuries. Nevertheless, when the Board of Trustees reconsidered the matter, it simply took a vote on petitioner’s application without any deliberation or indication as to why he had been denied an ADR benefit, issuing a conclusory denial without any explanation as to why they had adopted the Medical Board’s unsupported statements about alleged inconsistencies concerning the nature of petitioner’s injuries.

The Medical Board failed to provide any factual basis concerning the alleged inconsistencies and why it did not believe petitioner’s injuries to be accidental. Further, the determination of the Medical Board was devoid of any articulated basis for its conclusion that the limitations of petitioner’s cervical and lumbar spine were not a debilitating or incapacitating condition for performing the duties of a firefighter. The failure to set forth an adequate statement of the factual basis for the determination forecloses the possibility of fair judicial review … . Matter of Reynolds v New York City Fire Pension Fund, 2022 NY Slip Op 06330, First Dept 11-10-22

Practice Point: Here the injured NYC firefighter was denied accidental disability retirement (ADR) but the Medical Board did not give any reasons for its conclusion. The findings were annulled and the matter remitted for a new determination and the creation of an adequate record for review.

 

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IN THIS SIDEWALK SLIP AND FALL CASE, THE TOWN DID NOT HAVE WRITTEN NOTICE OF THE DEFECT AND THE TOWN DEMONSTRATED THE “CREATION OF THE DEFECT” EXCEPTION TO THE WRITTEN-NOTICE REQUIREMENT DID NOT APPLY; THE DEFECT WAS THE RESULT OF DETERIORATION OF THE REPAIRED AREA OVER A 10-YEAR PERIOD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the town demonstrated it did not create the sidewalk condition which allegedly caused plaintiff’s slip and fall. Rather the sidewalk repair was done by the town 10 years ago and the current deteriorated condition had developed over time:

The Court of Appeals “has recognized only two exceptions to the statutory rule requiring prior written notice, namely, where the locality created the defect or hazard through an affirmative act of negligence and where a ‘special use’ confers a special benefit upon the locality” Only the affirmative negligence exception is implicated in this case, and it “‘is limited to work [done] by [a municipality] that immediately results in the existence of a dangerous condition'” … . The defendant was not required to eliminate all triable issues of fact with respect to the affirmative negligence exception to the prior written notice rule in order to satisfy its prima facie burden … . Nevertheless, the defendant did eliminate all triable issues of fact with respect to that exception. In particular, the defendant submitted an affidavit of its employee, John Carroll, who averred that the asphalt patch would have been “rolled smooth and level to remove any existing tripping hazard between the two existing concrete slabs,” but now, “the tar was eroded from the patch” and “[p]ortions of the asphalt patch . . . appear to be missing.” Based on Carroll’s “observation of the asphalt repair as it exist[ed] in 2019,” he believed that the repair was “[more than] 10 years old” and that its separation from the concrete slabs “would be caused by natural erosion, wear and tear over time, and/or in this case tree roots causing the concrete slabs to uplift, not by the method of its installation.” Parthesius v Town of Huntington, 2022 NY Slip Op 06254, Second Dept 11-9-22

Practice Point: A municipality will be responsible for a sidewalk slip and fall only when the town was notified of the defect in writing. There are two exceptions. Plaintiff argued the negligent-repair exception applied here. But that exception only applies to defects immediately resulting from a repair. Here the town demonstrated the repair was not properly 10 years ago and the defect developed over time.

 

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PETITIONER SHOULD NOT HAVE BEEN GRANTED LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE COUNTY IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner in this slip and fall case should not have been allowed file a late notice of claim. The fact that county personnel responded to the scene of her injuries did not demonstrate the county had timely knowledge of the potential lawsuit. The late notice was served 50 days after the expiration of the 90 time-limit and therefore did not provide notice within a reasonable time. The petitioner’s injuries did not constitute an adequate excuse. And the petitioner did not provide any evidence the county would not be prejudiced by the late notice:

… [T]he fact that members of the Nassau County Police Department and a County ambulance responded to the scene and tended to her injuries, without more, cannot be considered actual knowledge of the essential facts constituting the claim against the County … . The petitioner failed to present any evidence to demonstrate that the County had knowledge of the circumstances of the accident from which it could “readily infer” that a “potentially actionable wrong had been committed” by it … .  Moreover, the late notice of claim, served upon the County without leave of court 50 days after the 90-day statutory period had expired, was served too late to provide the County with actual knowledge of the essential facts constituting the claim within a reasonable time after the 90-day statutory period expired … .

The petitioner also failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim. The petitioner’s conclusory assertion that her injuries prevented her from making timely service, without any supporting medical documentation or evidence, was insufficient to constitute a reasonable excuse … .

… [T]he petitioner failed to come forward with “some evidence or plausible argument” that the County will not be substantially prejudiced in maintaining a defense on the merits as a result of the delay in commencing this proceeding and the lack of timely, actual knowledge of the essential facts constituting the claim … . Matter of Lang v County of Nassau, 2022 NY Slip Op 06245, Second Dept 11-9-22

Practice Point: In this slip and fall case: (1) the fact that county personnel responded to the scene when petitioner slipped and fall did not demonstrate the county had timely knowledge of the potential lawsuit; (2) the late notice served 50 days after the 90-day time-limit did not provide notice within a reasonable time; (3) the petitioner’s injuries did not constitute an excuse; and (4) the petitioner did not present evidence the county would not be prejudiced by the delay.

 

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IN THIS SLIP AND FALL CASE, THE LESSEE OF THE PROPERTY ABUTTING THE ALLEGEDLY DEFECTIVE SIDEWALK WAS NOT LIABLE FOR PLAINTIFF’S SLIP AND FALL; THERE WAS NO EVIDENCE THE CONDITION WAS CREATED BY THE LESSEE AND NO EVIDENCE OF AN AGREEMENT CREATING A DUTY ON THE PART OF THE LESSEE TO MAINTAIN THE SIDEWALK (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this slip and fall case, determined 7-Eleven. the lessee of the property abutting the sidewalk where plaintiff allegedly fell, could not be held liable for the allegedly dangerous condition of the sidewalk:

Administrative Code of the City of New York § 7-210(a) imposes a duty upon “the owner of real property abutting any sidewalk . . . to maintain such sidewalk in a reasonably safe condition.” “[A] lessee of property which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the lessee the obligation to maintain the sidewalk which imposes liability upon the lessee for injuries caused by a violation of that duty” … . Additionally, “[a]s a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party” … . Only “where a lease agreement is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner’s duty to maintain the sidewalk, [may] the tenant . . . be liable to a third party” … . Here, the plaintiff failed to establish, prima facie, that 7-Eleven had any duty to maintain the sidewalk abutting the property it leased. Brady v 2247 Utica Ave. Realty Corp., 2022 NY Slip Op 06100, Second Dept 11-2-22

Practice Point: Under the NYC Administrative Code, the lessee of property abutting a sidewalk is not liable for a slip and fall caused by the condition of the sidewalk if the lessee did not create the condition and did not agree to maintain the sidewalk.

 

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IN THIS SLIP AND FALL CASE, PLAINTIFF’S 50-H EXAMINATION TESTIMONY DIRECTLY CONTRADICTED HIS AFFIDAVIT OPPOSING THE CITY’S SUMMARY JUDGMENT MOTION; THE “FEIGNED ISSUE OF FACT” DID NOT RAISE A QUESTION OF FACT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the city’s motion for summary judgment in this slip and fall case should have been granted. Plaintiff’s affidavit in opposition directly contradicted his testimony at the General Municipal Law 50-h examination:

“[A] defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing, inter alia, that it did not create the alleged hazardous condition” … . Here, the defendant made a prima facie showing that it did not engage in any snow removal activity within the subject triangular area, and therefore was not responsible for creating the icy condition that caused the plaintiff to fall. In opposition to the defendant’s motion, the plaintiff submitted an affidavit in which he averred that, in the afternoon of the day before his accident, he “observed City personnel shoveling the snow from the [subject triangular area] and making piles of snow upon the perimeters.” Yet, at his examination pursuant to General Municipal Law § 50-h, the plaintiff had been asked “At any point between the snowfall and the morning before the accident happened, had you seen anyone clearing snow from that [triangular area],” and he had responded “No, no.” Since the assertion made for the first time in the plaintiff’s affidavit directly contradicted the testimony he had given at his General Municipal Law § 50-h examination, and he has not provided a plausible explanation for the inconsistency between the two statements, the assertion made in his affidavit must be viewed as presenting a feigned factual issue designed to avoid the consequences of his earlier testimony, and it is insufficient to raise a triable issue of fact … . Nass v City of New York, 2022 NY Slip Op 06132, Second Dept 11-2-22

Practice Point: Here the plaintiff’s 50-h examination testimony directly contradicted his affidavit opposing defendant’s motion for summary judgment. The “feigned issue of fact” did not raise a question of fact.

 

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THE CITY’S COMPLAINT ALLEGED A CAUSE OF ACTION FOR PUBLIC NUISANCE BASED UPON DEFENDANT’S SALE OF UNSTAMPED, UNTAXED CIGARETTES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff-city’s complaint stated a cause of action for public nuisance against defendant City Tobacco House for selling unstamped, untaxed cigarettes:

… [T]he complaint alleged that City Tobacco House was a commercial establishment where several violations of Tax Law § 1814(b) and Administrative Code § 11-4012(b) had occurred during the six-month period preceding the commencement of this action. On one occasion, law enforcement officers allegedly recovered 8.4 cartons of untaxed cigarettes at the subject premises, and one person was arrested and charged with violating Tax Law § 1814. On another occasion, 28 packs of untaxed cigarettes allegedly were recovered from the subject premises, and one person was arrested and charged with violating Tax Law § 1814. On two other occasions, an undercover police officer allegedly purchased one pack of untaxed cigarettes from an employee in the subject premises. On another occasion, the execution of a search warrant at the subject premises allegedly resulted in the seizure of 64 packs of untaxed cigarettes and the arrest of one person. * * *

The allegations of unlawful conduct … , along with the allegation in the complaint that City Tobacco House knowingly conducted or maintained the subject premises as a place where persons gathered for purposes of engaging in conduct that violated Tax Law § 1814 and Administrative Code § 11-4012(b), were sufficient to allege the commission of criminal nuisance in the second degree, as defined in Penal Law § 240.45. Thus, having alleged facts supporting the proposition that City Tobacco House was a place “wherein there is occurring a criminal nuisance as defined in section 240.45 of the penal law” (Administrative Code § 7-703[l]), the complaint validly alleged the existence of a public nuisance at the subject premises. City of New York v Land & Bldg. Known as 4802 4th Ave., 2022 NY Slip Op 05988, Second Dept 10-26-22

Practice Point: Here the city’s allegation defendant sold unstamped, untaxed cigarettes stated a cause of action for public nuisance.

 

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CIVIL SERVICE LAW SECTION 71 ALLOWS THE CITY TO TERMINATE AN EMPLOYEE WHO WAS INJURED ON THE JOB AND IS UNABLE TO RETURN TO WORK AFTER A YEAR; THE PROCEDURE FOR TERMINATING SUCH AN EMPLOYEE IS SUBJECT TO THE COLLECTIVE BARGAINING REQUIREMENT OF THE TAYLOR LAW (CIVIL SERVICE LAW SECTION 200 ET SEQ) (CT APP).

The Court of Appeals, in a full-fledged opinion by Justice Troutman, reversing the Second Department, determined the city was required to engage in collective bargaining with the union to agree on the procedure for terminating an employee (here a firefighter) who was injured on the job and has not returned to work after a year:

Does the Taylor Law (Civil Service Law § 200 et seq.) require a municipality to engage in collective bargaining over the procedures for terminating municipal employees after they have been absent from work for more than a year due to an injury sustained in the line of duty? We hold that collective bargaining is required. * * *

“[W]here an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the work[ers’] compensation law, [the employee] shall be entitled to a leave of absence for at least one year . . . ” (Civil Service Law § 71). * * *

Section 71 [grants] an employee with a work-related disability a leave of absence of up to one year and conditional reinstatement—even after that year has passed—while allowing the employer to fill the position if it chooses to terminate the employee.

… “[T]here is no ‘plain’ and ‘clear’ evidence that the Legislature intended” to foreclose from mandatory bargaining the procedures for terminating employees covered by the statute … . Both the language and legislative history of the section are silent on the issue of collective bargaining … . …

… [I]nasmuch as section 71 does not reference pretermination procedures at all, the statute plainly leaves room for the City and the Union to negotiate those procedures. Matter of City of Long Beach v New York State Pub. Empl. Relations Bd., 2022 NY Slip Op 05939, CtApp 10-25-22

Practice Point: The procedure for terminating (pursuant to Civil Service Law 71) a firefighter who was injured on the job and was not able to return to work after a year is subject to the collective bargaining requirement of the Taylor Law (Civil Service Law Section 200 et seq).

 

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