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THE CITY COMMISSIONER ORDERED THE DEMOLITION OF A GRAIN ELEVATOR, A CITY LANDMARK, WHICH HAD BEEN DAMAGED BY WIND; SUPREME COURT PROPERLY ORDERED A HEARING ON WHETHER THE COMMISSIONER HAD A RATIONAL BASIS FOR ORDERING DEMOLITION BUT IMPROPERLY PROHIBITED THE PETITIONER FROM PRESENTING EVIDENCE THAT DEMOLITION WAS NOT NECESSARY; NEW HEARING ORDERED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and ordering another hearing, determined that the petitioner was entitled to present evidence at the hearing about the Buffalo Commissioner of the City’s Department of Permit and Inspections Services’ (Commissioner’s) ruling that a grain elevator, a City landmark, which was damaged by wind, must be demolished. Supreme Court had confined the hearing to whether the Commissioner had a rational basis for ordering demolition and did not allow the petitioner to submit evidence. Petitioner had submitted with the petition “an unsworn and unsigned expert affidavit from a licensed architect who opined that the Grain Elevator could be adequately repaired and did not need to be demolished:”

We agree with petitioner … that, while petitioner is not entitled to a de novo hearing on the Commissioner’s determination … , the court erred in refusing to consider petitioner’s proposed evidence inasmuch as it should have afforded petitioner the opportunity to submit ” ‘any competent and relevant proof . . . bearing on the triable issue here presented and showing that any of the underlying material on which the [Commissioner] based [his] determination has no basis in fact’ . . . , or that the determination was irrational or arbitrary”  … . Matter of Campaign for Buffalo History, Architecture & Culture, Inc. v City of Buffalo, 2022 NY Slip Op 02927, Fourth Dept 4-29-22

Practice Point: The City Commission ordered the demolition of a city landmark which had been damaged by wind. Petitioner opposed demolition. At the hearing to determine whether there was a rational basis for the Commissioner’s decision, the petitioner was entitled to present evidence demolition was not required. Because Supreme Court did not allow petitioner to present evidence, a new hearing was necessary.

 

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THERE WAS NO OBJECTIVE SUPPORT FOR PLAINTIFF BUS PASSENGER’S CLAIM THE MOVEMENT OF THE BUS WHICH CAUSED HER TO FALL WAS “UNUSUAL AND VIOLENT” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant bus company’s, MTA’s, motion to dismiss the complaint in this bus-passenger injury case should have been granted:

To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger as a result of the movement of the vehicle, a plaintiff must establish that the movement consisted of a jerk or lurch that was “‘unusual and violent'” … . “Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent” … . There must be “objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant” … . “In seeking summary judgment dismissing the complaint, however, common carriers have the burden of establishing, prima facie, that the movement of the vehicle was not unusual and violent” … .

… MTA established its prima facie entitlement to judgment as a matter of law. MTA demonstrated, by submitting the transcript of the plaintiff’s deposition testimony, that the movement of the bus was not unusual and violent or of a “different class than the jerks and jolts commonly experienced in city bus travel” … . The nature of the incident, according to the plaintiff’s deposition testimony, was that she was caused to fall as the bus stopped at the intersection. According to the plaintiff, who did not provide an estimate as to how fast the bus was traveling prior to stopping at the intersection, she was the only passenger on the bus who fell, although there was another passenger standing within two feet of her at the time. The plaintiff testified that she landed on the floor near where she was standing prior to falling down. This is not, in itself, sufficient to provide the objective support necessary to demonstrate that the movement of the bus was unusual and violent, and of a different class than the jerks and jolts commonly experienced in city bus travel … . Orji v MTA Bus Co., 2022 NY Slip Op 02811, Second Dept 4-27-22

Practice Point: In order to survive a motion to dismiss, a bus passenger’s allegation his or her injury was caused by an “unusual and violent” movement of the bus must have some sort of “objective support,” which was absent in this case.

 

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IN THIS TRAFFIC ACCIDENT CASE INVOLVING THE DEFENDANT NYC TRANSIT AUTHORITY’S BUS, THE AUTHORITY GAINED TIMELY KNOWLEDGE OF THE POTENTIAL CLAIM WHEN IT INVESTIGATED THE ACCIDENT AND WAS NOT PREJUDICED BY THE DELAY; THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, NOTWITHSTANDING THE ABSENCE OF A REASONABLE EXCUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking leave to file a late notice of claim in this traffic accident case should have been granted. It was alleged defendant NYC Transit Authority’s bus collided with a NYC sanitation truck which then collided with petitioner’s car. The Transit Authority investigated the accident and therefore had knowledge of the essential facts of the claim. Because the defendant had timely actual knowledge of the potential claim and did not demonstrate prejudice from the delay, petitioner did not need to present a reasonable excuse for the late notice:

… [A]s the Authority acquired timely knowledge of the essential facts constituting the petitioner’s claim, the petitioner met his initial burden of showing that the Authority would not be prejudiced by the late notice of claim … . In response to the petitioner’s initial showing, the Authority failed to come forward with particularized evidence demonstrating that the late notice of claim substantially prejudiced its ability to defend the claim on the merits … . Since the Authority had actual knowledge of the essential facts underlying the claim and no substantial prejudice to the Authority was demonstrated, the petitioner’s failure to provide a reasonable excuse for the delay in serving the notice of claim did not serve as a bar to granting leave to serve a late notice of claim … . Matter of Manbodh v New York City Tr. Auth., 2022 NY Slip Op 02544, Second Dept 4-20-22

​Practice Point: Here the defendant NYC Transit Authority investigated the traffic accident involving petitioner’s car and therefore had timely notice of the essential facts of the potential lawsuit. In that situation, in the absence of prejudice to the defendant caused by petitioner’s failure to timely file a notice of claim (none here), petitioner need not provide a reasonable excuse and leave to file a late notice should be granted.

 

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ALTHOUGH THE SECOND ORDER TO SHOW CAUSE SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM WAS FILED TWO DAYS AFTER THE ONE-YEAR-NINETY-DAY LIMITATIONS PERIOD, THE STATUTE OF LIMITATIONS WAS TOLLED FOR THREE DAYS BETWEEN THE FILING AND THE DENIAL OF THE FIRST ORDER TO SHOW CAUSE; THE MEDICAL RECORDS PROVIDED THE MUNICIPALITY WITH NOTICE OF THE ESSENTAL FACTS OF THE CLAIM; THE MOTION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion seeking leave to file a late notice of claim was timely and should have been granted. Although the second order to show cause was submitted two days beyond the one year-and-90-day deadline for suing a municipality. the statute of limitations was tolled for three days between the filing of the first order to show cause and the denial of that first motion:

Since the time to serve a notice of claim upon a public corporation cannot be extended beyond the time limited for commencement of an action against that party … , the court lacks authority to grant a motion for leave to serve a late notice of claim made more than one year and 90 days after the cause of action accrued, unless the statute of limitations has been tolled … . “CPLR 204(a) tolls the statute of limitations while a motion to serve a late notice of claim is pending” … . Where “a court declines to sign an initial order to show cause for leave to serve a late notice of claim on procedural grounds, but a subsequent application for the same relief is granted, the period of time in which the earlier application [was] pending [is also] excluded from the limitations period” … . …

… [T]he medical records provided the defendants with actual knowledge of the essential facts constituting the plaintiff’s claim. The records evinced that a stroke code was called shortly after the plaintiff’s presentation to the hospital, that, based on an assessment of her condition, it was decided that a tissue plasminogen activator was not needed, and that it was later determined that the plaintiff had suffered a stroke but that it was too late to administer that drug.

The plaintiff further made an initial showing that the defendants would not suffer any prejudice by the delay in serving the notice of claim, and the defendants failed to rebut the showing with particularized indicia of prejudice … .

Finally, where, as here, there is actual knowledge and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim … . Ahmed v New York City Health & Hosp. Corp., 2022 NY Slip Op 02521, Second Dept 4-20-22

Practice Point: The one-year-ninety-day statute of limitations for suing a municipality is tolled for the time between submitting an order to show cause seeking leave to file a late notice of claim and the judge’s refusal to sign the order to show cause. Here, although the second order to show cause seeking leave to file a late notice was submitted two days after the one-year-ninety-day statute had run, it was timely because of the three-day toll between the filing and denial of first order to show cause. Here the medical records sufficiently notified the municipality of the essential facts of the claim, the municipality did not demonstrate prejudice and there was no need for a reasonable excuse because there was actual knowledge and no prejudice.

 

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THE LOCAL LAW REQUIRING APPROVAL OF PROPOSED ALTERATIONS TO BUILDINGS IDENTIFIED AS “HISTORIC” IS NOT UNCONSTITUTIONAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a local law requiring permits for changes to buildings designated “historic” was not unconstitutional. The local law, the “Historic Building Preservation Law,” gave the town’s Historic Building Preservation Commission (HBPC) the power to approve or disapprove proposed alterations to historic buildings which were identified as such in a “Survey:”

“Legislative enactments enjoy a strong presumption of constitutionality . . . [and] parties challenging a duly enacted statute face the initial burden of demonstrating the statute’s invalidity beyond a reasonable doubt” … . “The exceedingly strong presumption of constitutionality applies . . . to ordinances of municipalities” … . The Fifth and Fourteenth Amendments to the United States Constitution guarantee due process protections for life, liberty, and property (see US Const Amends V, XIV). “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property” … .

… Here, the petitioners/plaintiffs failed to identify any constitutionally protected property interest that was implicated in the enactment of the 2017 local law and, thus, the petitioners/plaintiffs were not entitled to a hearing prior to the enactment of that law … . Contrary to the petitioners/plaintiffs’ contention, the 2017 local law did not require property owners to submit to warrantless searches of their properties in order to challenge a property’s classification or inclusion on the Survey. Matter of Santomero v Town of Bedford, 2022 NY Slip Op 02552, Second Dept 4-20-22

​Practice Point: A local law which designates certain buildings as “historic” and requires permits for alterations to the historic buildings is not unconstitutional.

 

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CLASS CERTIFICATION SHOULD NOT HAVE BEEN DENIED ON THE GROUND THE CLASS WAS TOO SMALL; PLAINTIFF-TENANTS ALLEGED THE LANDLORD DEREGULATED APARTMENTS WHILE RECEIVING J-51 TAX BENEFITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs, tenants of a 49-unit apartment building, should have been certified as a class. The complaint alleged the landlord deregulated apartments while receiving J-51 tax benefits:

Supreme Court erred in denying class certification on the ground that plaintiffs failed to show that “the class is so numerous that joinder of all members . . . is impracticable” (CPLR 901[a][1]). Borden v 400 E. 55th St. Assoc., L.P. (24 NY3d 382, 383 [2014]) and subsequent cases, such as Maddicks v Big City Props., LLC (34 NY3d 116 [2019]), make it clear that qualified plaintiffs may “utilize the class action mechanism to recover compensatory rent overcharges against landlords who decontrolled apartments in contravention of Rent Stabilization Law of 1969 (RSL) (Administrative Code of City of NY) § 26-516 (a) while accepting tax benefits under New York City’s J-51 tax abatement program.” The legislature contemplated classes involving as few as 18 members … . Here, as in Borden, plaintiffs allege defendant deregulated apartments while receiving J-51 tax benefits. Construing the class certification statute liberally … given that the asserted class consists of former and current tenants who lived in the 16 units improperly treated as deregulated after November 15, 2013, while defendant was receiving J-51 tax benefits, it is reasonable to infer that some units in this 49-unit apartment building would have had more than one tenant and several tenants would have moved away, making joinder of all members impracticable … . The identity of class members, i.e., which units were treated as deregulated and who leased them during the relevant time period, is within defendant’s knowledge. Hoffman v Fort 709 Assoc., L.P., 2022 NY Slip Op 02510, First Dept 4-19-22

​Practice Point: Here class certification should not have been denied on the ground the class was too small. The plaintiffs are tenants alleging the landlord improperly deregulated apartments while receiving tax benefits. Classes as small as 18 members were contemplated by the legislature.

 

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PLAINTIFF SUED BOTH THE COUNTY AND THE SHERIFF FOR ALLEGED EXPOSURE TO CONTAMINATED WATER IN THE SHOWER AT THE JAIL; THE ACTION AGAINST THE COUNTY WAS NOT BROUGHT UNDER A VICARIOUS LIABILITY THEORY (THE COUNTY IS NOT VICARIOUSLY LIABLE FOR THE ACTS OR OMISSIONS OF THE SHERIFF); RATHER THE CAUSE OF ACTION ALLEGED THE COUNTY WAS NEGLIGENT IN ITS OWN RIGHT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, an inmate at the Orange County Correctional Facility (OCCF), stated a cause of action against the county, as well as the county sheriff. Plaintiff alleged he was exposed to contaminated shower water at the jail. The cause of action against the county was not based on a vicarious liability theory (the county is not vicariously liable for the acts or omissions of the sheriff’s office). Rather plaintiff stated a cause of action alleging the county was negligent in failing to ensure the safety of the water at the jail. That cause of action is distinct from the sheriff’s duty to keep inmates safe. The issue was properly raised for the first time on appeal:

… [T]he complaint did not solely seek to hold the County vicariously liable for the actions and omissions of the sheriff and his deputies. The complaint alleged that the County had a duty to maintain the OCCF, including its water supply, in a safe and proper manner, and that the County’s breach of that duty caused the plaintiff to sustain personal injuries. The County’s duty to provide and maintain the jail building is distinguishable from the sheriff’s duty to receive and safely keep inmates in the jail over which the sheriff has custody … . Contrary to the defendants’ contention, the plaintiff’s argument that the County is liable for its own negligence, as opposed to being vicariously liable for the negligence of the sheriff or his deputies, is not improperly raised for the first time on appeal. Aviles v County of Orange, 2022 NY Slip Op 02384, Second Dept 4-13-22​

Practice Point: The county is not liable for the acts or omissions of the county sheriff under a vicarious liability theory. However, here the allegation that the shower water at the jail was contaminated stated a cause of action against the county for its own negligence. Therefore the action against the county should not have been dismissed.

 

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A PROBATIONARY FIREFIGHTER INJURED WHILE TRAINING TO COMPLETE A FIRE BASIC TRAINING PROGRAM WAS INJURED IN THE PERFORMANCE OF HIS DUTIES, ENTITLING HIM TO GENERAL MUNICIPAL LAW 207-A DISBILITY BENEFITS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan, determined Supreme Court properly found petitioner, a probationary firefighter, was entitled to disability benefits pursuant to General Municipal Law 207-a. The fact that petitioner was injured while training for a test required for the completion of a fire basic training program did not mean petitioner was not injured in the performance of his duties, as argued by the city:

Although petitioner’s injury did not occur in the course of his actual performance of the required test, successful completion of the candidate physical ability test was a necessary requirement of petitioner’s position, and petitioner was engaged in the expected and foreseeable task of practicing for that test during a mandatory training program that was part of his duties as a probationary firefighter … . The record further reflects that petitioner was attending the Fire Academy at the direction of the City, that the training was paid for by the City and that petitioner was receiving full pay for his attendance and participation in the program. Mindful that, as a remedial statute, General Municipal Law § 207-a “should be liberally construed in favor of the injured employees the statute was designed to protect” … , we find that the requisite causal relationship exists between petitioner’s job duties and his injury … . Matter of Smith v City of Norwich, 2022 NY Slip Op 02324, Third Dept 4-7-22

Practice Point: A probationary firefighter injured while training to complete a fire basic training program was injured in the “performance of his duties” and is therefore entitled to General Municipal Law 207-a disability benefits.

 

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THE FACT THAT THE SCHOOL WAS AWARE OF THE PETITIONERS’ CHILD’S INJURY AT THE TIME IT OCCURRED DOES NOT MEAN THE SCHOOL HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT; PETITIONERS’ APPLICATION TO DEEM A LATE NOTICE OF CLAIM TIMELY SERVED SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioners’ application to deem the late notice of claim timely served nunc pro tunc should not have been granted. Apparently petitioners’ child tripped and fell on a stairwell at at her school. The fact that the school was aware of the child’s injury at the time does not mean the school was aware of a potential lawsuit. The year-long delay was not adequately explained; infancy is not enough. And the petitioners did not show the school was not prejudiced by the delay:

The appellant’s “knowledge of the accident and the injury, without more, does not constitute actual knowledge of the essential facts constituting the claim, at least where the incident and the injury do not necessarily occur only as the result of fault for which it may be liable” … . The petitioner mother stated in an affidavit submitted in support of the application that the school nurse called her on the day of the accident, advising her that her daughter fell on the stairs and injured her right foot. This statement, however, did not provide the appellant with actual knowledge of the facts underlying the petitioners’ claim of negligent supervision … .. Similarly, although the petitioner mother stated in her affidavit that she spoke to an employee of the appellant about the accident approximately two months after it occurred, the mother’s affidavit indicates that the employee had no information or details to share. Moreover, letters sent by the petitioners’ attorneys to the appellant did not advise it of the essential facts underlying the negligent supervision claim. J. G. v Academy Charter Elementary Sch., 2022 NY Slip Op 02251, Second Dept 4-6-22

​Practice Point: An application to serve a late notice of claim against a school may be granted if the school had timely knowledge of the claim. But that doesn’t mean timely knowledge of the injury or the incident. It means timely knowledge of the potential lawsuit.

 

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ALTHOUGH THE RECORDS OF TRAFFIC INFRACTIONS ARE SEALED PURSUANT TO CPL 160.55, THE RECORDS OF A VIOLATION OF NYC ADMINISTRATIVE CODE 19-190(b), AN UNCLASSIFIED MISDEMEANOR WHICH CRIMINALIZES STRIKING A PEDESTRIAN WHO HAS THE RIGHT OF WAY, ARE NOT SEALED; THEREFORE PLAINTIFF IS ENTITLED TO DISCOVERY OF THOSE RECORDS IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this vehicle-pedestrian accident case was entitled to the records of the driver’s guilty plea to an unclassified misdemeanor (under the NYC Administrative Code), which criminalizes striking a pedestrian who has the right of way: The unclassified misdemeanor is not covered by the sealing statute, Criminal Procedure Law (CPL) 160.55 which seals records of Vehicle and Traffic Law infractions:

… [Defendant driver] was arrested, charged, and subsequently pled guilty to Administrative Code of City of NY § 19-190(b), an unclassified misdemeanor, and to Vehicle and Traffic Law § 1146(c)(1), a traffic violation, for failing to yield to plaintiff’s decedent and causing him injury. Plaintiff … now seeks the records pertaining to [the driver’s] unclassified misdemeanor. The City defendants argue that these records are not discoverable because they overlap with [the driver’s] traffic infraction records, which are sealed pursuant to CPL 160.55.

Under CPL 160.55, all records and papers relating to the arrest or prosecution of an individual convicted of a traffic infraction or violation, following a criminal action or proceeding, shall be sealed and not made available to any person or public or private agency … . Plaintiff is entitled to [the driver’s] records pertaining to his unclassified misdemeanor, as the records are not subject to CPL 160.55, and it does not appear that they were sealed … . To the extent these records contain references or information related solely to [the driver’s] sealed traffic violation case, the City must redact or remove it from its production. Lu-Wong v City of New York, 2022 NY Slip Op 02226, First Dept 4-5-22

Practice Point: Although the records of traffic infractions are sealed under CPL 160.55, the records of a violation of the NYC Administrative Code, which criminalizes striking a pedestrian who has the right-of-way, are not subject to that sealing statute. Therefore the plaintiff in this vehicle-pedestrian accident case was entitled to those records.

 

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