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THE CITY FIREFIGHTERS WHO, AS ESSENTIAL EMPLOYEES, WERE REQUIRED BY EXECUTIVE ORDER TO WORK DURING THE PANDEMIC, SOUGHT TIME-OFF OR MONETARY COMPENSATION EQUIVALENT TO THE TIME-OFF AFFORDED THE NONESSENTIAL CIVILIAN EMPLOYEES WHO WERE SENT HOME DURING THE PANDEMIC PURSUANT TO THE SAME THE EXECUTIVE ORDER; THE THIRD DEPARTMENT DETERMINED ARBITRATION OF THE ISSUE WAS PRECLUDED BY PUBLIC POLICY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the city firefighters’ claim to entitlement to time off from work or monetary compensation equivalent to the time-off afforded the civilian employees ordered to stay home (due to COVID) was prohibited by public policy. The firefighters were deemed essential employees and were required to report to work by Executive Order. The “nonessential” civilian employees were ordered to stay home by the same Executive Order:

… [W]e cannot agree that petitioner breached the CBA [collective bargaining agreement] by responsibly implementing the Governor’s directives. To hold otherwise would create an untenable result — i.e., it would sanction a finding that petitioner breached the CBA based upon its required compliance with state public policy. Based on the very nature of the pandemic, requiring extreme public health measures as implemented through the executive orders, we conclude that arbitration of the resulting impact on respondent’s members is precluded as a matter of public policy. Matter of City of Troy (Troy Uniformed Firefighters Assn., Local 86 IAFF, AFL-CIO), 2022 NY Slip Op 02174, Third Dept 3-31-22

Practice Point: Here is a rare example of the preclusion of the arbitration of an employment issue by public policy. The firefighters were ordered to work during COVID as essential employees. The nonessential civilian employees were ordered to stay home. Public policy prohibited arbitration of the question whether the firefighters were entitled to equivalent time-off or monetary compensation.

 

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ALTHOUGH THE MUNICIPALITY PROVED IT DID NOT HAVE WRITTEN NOTICE OF THE ICY SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL, IT DID NOT PROVE THAT PILING SNOW ALONG THE EDGE OF THE SIDEWALK DID NOT CREATE THE ICY CONDITION; THE MUNICIPALITY WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipality did not demonstrate it did not create the icy condition on the sidewalk where plaintiff slipped and fell by piling snow along the sidewalk which melted and froze:

“While the mere failure to remove all snow or ice from a sidewalk is an act of omission, rather than an affirmative act of negligence, a municipality’s act in piling snow as part of its snow removal efforts, which snow pile then melts and refreezes to create a dangerous icy condition, constitutes an affirmative act excepting the dangerous condition from the prior written notice requirement” … . Pirrone v Metro N. Commuter R.R., 2022 NY Slip Op 02144, Second Dept 3-30-22

Practice Point: Here the municipality did not prove it did not create the icy-sidewalk condition by piling snow removed from the sidewalk along the edge of the sidewalk where it melted and froze. Therefore, even though the municipality did not have written notice of the icy condition, there was a question of fact whether the municipality created the condition. The municipality’s motion for summary judgment should not have been granted.

 

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CIVIL SERVICE LAW 75-B SERVES THE SAME PURPOSE AS THE EMPLOYMENT ANTI-RETALIATION STATUTES IN THE NEW YORK STATE AND NEW YORK CITY HUMAN RIGHTS LAW; EVEN THOUGH PLAINTIFF HAD RESIGNED AT TIME OF THE SUIT, HIS RETALIATION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s retaliation claim pursuant to Civil Service Law 75-b should not have been dismissed. Plaintiff, an employee of the NYC Department of Buildings (DOB), alleged he was denied a job because of a poor reference allegedly made in retaliation for his reporting a conflict of interest to the City’s Department of Investigation. At the time plaintiff brought this action he had retired, but his retirement did not preclude his Civil Service Law cause of action:

… [W]e reject the motion’s court determination that Civil Service Law § 75-b does not apply to actions taken by a public employer after an employee has resigned. Civil Service Law § 75-b prohibits a public employer from dismissing or taking any “other disciplinary or other adverse personnel action against a public employee regarding the employee’s employment” because the employee discloses information of either (1) a violation of rule or law, which presents a substantial and specific danger to public health and safety, or (2) improper governmental action … . Section 75-b serves a purpose similar to that of other anti-retaliation statutes, including the New York State Human Rights Law (Executive Law § 296) and the New York City Human Rights Law (Administrative Code of City of NY § 8-107), in that they “‘remediat[e] adverse employment actions which, if allowed, would undermine important public policy'” … . Thus, an analogous reading of the term “employee” under Civil Service Law § 75-b to include former employees alleging post-employment retaliation for reports made in the course of their prior employment, is appropriate … . Moreover, blacklisting and providing negative references to an individual’s prospective employers in retaliation for prior reports of government misconduct may constitute adverse personnel action under the statute, in the same way that the State Human Rights Law has been found to cover such acts … . DaCosta v New York City Dept. of Bldgs., 2022 NY Slip Op 01963, First Dept 3-22-22

Practice Point: Civil Service Law 75-b serves the same purpose as the employment anti-retaliation statutes in the New York State and New York City Human Rights Law. The NYC employee’s Civil Service Law 75-b cause of action, alleging he was given a poor reference in retaliation for reporting a conflict of interest, should not have been dismissed, even though he had resigned at the time the suit was filed.

 

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​ THE TARGETS OF A NO-KNOCK WARRANT ARE OWED A “SPECIAL DUTY” SUCH THAT A MUNICIPALITY MAY BE LIABLE FOR THE NEGLIGENCE OF THE POLICE OFFICERS EXECUTING THE WARRANT (CT APP).

The Court of Appeals, in a comprehensive opinion by Judge Singas, over a two-judge dissent, determined the police owe a “special duty” to those targeted by a no-knock warrant such that liability may be imposed on a municipality for the negligence of the police during execution of the warrant.. Here plaintiff alleged he was shot by a police officer who entered the apartment where he was sleeping.. The certified question from the Second Circuit asked if the “special duty” requirement applies in this situation, or whether it is triggered only when the municipality fails to protect the plaintiff from injury by a third party who is not a municipal employee. The opinion lays out the confusing interplay between the “special duty” requirement and the “governmental-function immunity” affirmative defense, which can defeat a plaintiff’s action even if a “special duty” is deemed to exist. The dissent argued the “special duty” requirement itself is invalid and the “ordinary negligence” standard should apply to governmental actors:

Our precedent dictates that a plaintiff must establish a special duty when suing a municipality in negligence. However, because the underlying premise of the certified question appears to be that a special duty could not be established in a scenario like the one presented, we take this opportunity to clarify that this is not the case: a special duty may be established where the police plan and execute a no-knock search warrant on a targeted residence. Although we have not yet had an occasion to address application of the special duty rule to the execution of no-knock search warrants, that situation fits within the existing parameters of our special duty precedent.

From the dissent:

The majority’s principal error, which infects its entire analysis, is embodied in the following statement: “Consistent with our precedent and the purpose of the special duty rule, we reiterate that plaintiffs must establish that a municipality owed them a special duty when they assert a negligence claim based on actions taken by a municipality acting in a governmental capacity” … . That statement: (1) is not consistent with our precedent, in which we have repeatedly evaluated negligence claims against governmental actors by asking whether an ordinary duty exists; and (2) improperly incorporates the governmental/proprietary distinction from immunity law into negligence law … . Ferreira v City of Binghamton, 2022 NY Slip Op 01953, CtApp 3-22-22

Practice Point: This opinion lays out in detail the confusing interplay between the “special duty” requirement for a negligence suit against a municipality and the “governmental-function immunity” affirmative defense which can defeat a negligence suit even where a special duty is deemed to exist. Here the Court of Appeals determined those targeted by a no-knock warrant are owed a special duty such that a party injured in the warrant-execution may sue the municipality for the negligence of a police officer. The dissent argued the “special duty” requirement is itself invalid and an ordinary negligence standard should apply.

 

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THE JURY COULD HAVE FOUND PLAINTIFF BUS PASSENGER’S INJURIES WERE CAUSED BY THE NORMAL JERKS AND JOLTS OF BUS TRAVEL AND NOT BY ANY NEGLIGENCE ON DEFENDANTS’ PART; THE MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the defense verdict in this bus-passenger-injury case should not have been granted. The jury could have found plaintiff was injured by the normal “jerks and jolts” of bus travel without any negligence on defendants’ part:

… [G]iving due deference to the jury’s credibility findings … , it could have determined, based upon a fair interpretation of the evidence introduced at trial, including the testimony of the bus driver and a surveillance video, that the movement of the bus as it drove over the speed bump was one of the sort of “jerks and jolts commonly experienced in city bus travel” and not attributable to the negligence of the defendant … . Jones v Westchester County, 2022 NY Slip Op 01774, Second Dept 3-16-22

Practice Point: Here the testimony of the bus driver and the surveillance video allowed the jury to determine plaintiff bus-passenger’s injuries were caused by normal movements of the bus and not by the driver’s negligence. Therefore the plaintiff’s motion to set aside the defense verdict should not have been granted.

 

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TENANTS’ CAUSES OF ACTION FOR TENANT (STATUTORY) HARASSMENT, PRIVATE NUISANCE, ASSAULT, BREACH OF THE WARRANTY OF HABITABILITY, AS WELL AS THE CLAIM FOR PUNITIVE DAMAGES, REINSTATED (FIRST DEPT).

The First Department, reversing Supreme Court, reinstated plaintiffs-tenants’ causes of action for statutory harassment, private nuisance, assault, breach of the warranty of habitability, as well as the demand for punitive damages, in this action by tenants against the landlord alleging both habitability-issues and the landlord’s imminent threat to use force. With respect to the tenant (statutory) harassment cause of action, the court wrote:

Plaintiffs alleged … there were repeated interruptions of essential services such as heat, hot water, gas, and electricity, as well as disruptions in elevator service, phone, television, and internet service; large amounts of construction dust, including lead dust, in the public hallways; flooding and mold on the tenth floor; rat and vermin infestations; a lack of building security in the lobby and a lack of a fire safety system. * * *

The complaint states a cause of action for harassment under Administrative Code of City of NY §§ 27—2005(d) and 27—2115(m), as Supreme Court is “a court of competent jurisdiction” for the purposes of Administrative Code § 27—2115(m)(2) … . Contrary to the motion court’s determination, the statute expressly provides that only claims arising [from conditions in the building, that is, under subparagraphs b, c, and g of Administrative Code § 27-2004(a)(48)(ii), require the existence of a predicate violation to state a claim for harassment. Here, plaintiffs assert their first cause of action under Administrative Code § 27-2004(a)(48)(ii)(a), based on allegations that defendant Chelsea Hotel Owner, LLC’s principal, defendant Ira Drukier, was “making express or implied threats that force will be used” against plaintiffs, and therefore no predicate violation was required for this cause of action. …

On the third cause of action, for harassment arising from deprivation of services, plaintiffs state a claim under the statute by asserting that the alleged conditions were the subject of violations that, if established, would support a claim for harassment (see Robinson v Day, 103 AD3d 584, 587 [1st Dept 2013] [“A complaint need only ‘allege the misconduct complained of in sufficient detail to inform the defendants of the substance of the claims'”]). Evidence of the specific violations issued in connection with the alleged conditions may be obtained in discovery as contemplated by the statute (see Administrative Code § 27-2115[h][2][ii]). Berg v Chelsea Hotel Owner, LLC, 2022 NY Slip Op 01511. First Dept 3-10-22

Practice Point: The courts have recently been fleshing out the proof requirements for tenant (statutory) harassment under the NYC Administrative Code. Here, both the habitability issues and the landlord’s assaultive behavior (imminent threat of force) fit into the criteria for a valid tenant (statutory) harassment cause of action.

 

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THE UNION’S CLAIM THAT THE COUNTY EMPLOYEE, A SEASONAL EMPLOYEE, SHOULD BE CLASSIFIED AS FULL-TIME BECAUSE HE WORKED 40 HOURS-A-WEEK WAS NOT ARBITRABLE BECAUSE CIVIL SERVICE LAW SECTION 22 PROVIDES THAT RECLASSIFICATION OF A CIVIL SERVICE POSITION CAN ONLY BE DONE BY THE MUNICIPAL CIVIL SERVICE COMMISSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the grievance filed on behalf of a county employee was not arbitrable because the relief required reclassification of a civil service position:

The respondent Joseph W. Grzymalski began to work for the petitioner, the County of Nassau, on June 28, 2013. He was classified as a seasonal worker and allegedly worked 40 hours per week until his employment was terminated on July 3, 2018.

… [T]he respondent Civil Service Employees Association, AFSCME, Local 1000, AFL-CIO, by its Local 830 (hereinafter CSEA), on behalf of Grzymalski, filed a grievance claiming that because Grzymalski worked 40 hours per week, he was entitled to “full time benefits and status.” …

In determining whether a dispute between a public sector employer and employee is arbitrable, a court must first determine whether “there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … . …

… [T]he respondents are essentially seeking a reclassification of Grzymalski’s position from seasonal to full time. Since the reclassification of a civil service position can only be accomplished by the municipal civil service commission (see Civil Service Law § 22), the subject grievance is nonarbitrable … . Matter of County of Nassau v Civil Serv. Empls. Assn., Civ. Serv. Empls. Assn., AFSCME, Local 1000, AFL-CIO, 2022 NY Slip Op 01453, Second Dept 3-9-22

Practice Point: Civil Service Law section 22 requires that any reclassification of a public sector employee’s position be done by the municipal civil service commission. Therefore, because there was a statutory prohibition, the request to classify the “seasonal” county employee as a full-time employee was not arbitrable.

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IN THIS POLICE-CAR TRAFFIC ACCIDENT CASE, THE MUNICIPALITY DID NOT DEMONSTRATE THE POLICE OFFICER’S SPECIFIC CONDUCT WAS EXEMPT FROM THE ORDINARY RULES OF THE ROAD PURSUANT TO VEHICLE AND TRAFFIC LAW 1104, AND DID NOT DEMONSTRATE THE OFFICER WAS NOT LIABLE UNDER THE ORDINARY RULES OF NEGLIGENCE; THE MUNICIPALITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant municipality did not demonstrate that the reckless disregard standard applied or that the police officer was not negligent in this police-car traffic accident case:

“[T]he reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b)” … . Even where there is no dispute that the driver was involved in an emergency operation of an authorized vehicle, where the injury-causing conduct did not fall within any of the categories of privileged conduct set forth in Vehicle and Traffic Law § 1104(b), the plaintiff’s claim is governed by principles of ordinary negligence … .

Here, the defendants failed to eliminate triable issues of fact as to whether [officer] Giandurco engaged in specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b) and whether the reckless disregard standard of care was therefore applicable … . The defendants also failed to establish, prima facie, that under principles of ordinary negligence, Giandurco was not at fault in the happening of the accident … . Cooney v Port Chester Police Dept., 2022 NY Slip Op 01440, Second Dept 3-9-22

Practice Point: Even if a police car is engaged in an emergency operation at the time of a traffic accident, the police officer’s conduct is not automatically judged under the reckless disregard standard for emergency vehicles in Vehicle and Traffic Law 1104. The officer’s specific conduct must fall within one of the the categories of privileged conduct in the statute. Otherwise the ordinary rules of negligence apply. At the summary-judgment stage, a municipality must demonstrate either that the specific conduct was exempt from the ordinary rules of negligence, or that the specific conduct was not culpable under the ordinary rules of negligent. Here the municipality did not demonstrate either one.

 

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THE TENANT HARASSMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED; SUPREME COURT HAD SUBJECT MATTER JURISDICTION FOR THAT CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying Supreme Court, determined the tenant harassment cause of action should not have been dismissed, noting that Supreme Court had subject matter jurisdiction for that cause of action:

… Supreme Court erred in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action, which alleged harassment in violation of Local Law No. 7 (2008) of City of New York (Administrative Code of City of NY § 27-2005[d]). Contrary to the court’s determination, the plaintiffs sufficiently pleaded that cause of action. Furthermore, the court was vested with subject matter jurisdiction to make a determination on that cause of action … .Akter v Zara Realty Holding Corp., 2022 NY Slip Op 01434, Second Dept 3-9-22

​Practice Point: Supreme Court has subject matter jurisdiction over a tenant harassment cause of action pursuant to the the NYC Administrative Code.

 

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THIS ACTION WAS BROUGHT BY THE OWNERS OF RENTAL PROPERTIES IN THE DEFENDANT VILLAGE ALLEGING, AMONG OTHER CAUSES OF ACTION, VIOLATIONS OF THEIR CONSTITUTIONAL RIGHTS BY THE VILLAGE “NUISANCE LAW” WHICH WAS DECLARED UNCONSTITUTIONAL BECAUSE IT INFRINGED ON THE TENANTS’ RIGHT TO CALL THE POLICE (“NUISANCE POINTS” WERE ASSESSED FOR CALLS TO THE POLICE); THE ACTION BY THE RENTAL-PROPERTY OWNERS WAS PROPERLY DISMISSED (THIRD DEPT). ​

The Third Department affirmed the dismissal of this action brought by owners of rental properties in the defendant village asserting, among other causes of action, violations of their constitutional rights stemming from a local law (Nuisance Law) which was declared unconstitutional:

… [This court] declar[ed] that the Nuisance Law was “overbroad and facially invalid under the First Amendment” … . As to the finding of facial invalidity under the First Amendment, this Court held that, because the Nuisance Law did not prohibit the assessment of nuisance points against a property for police involvement thereat, the law violated the right of plaintiffs’ tenants to petition the government for redress of grievances by deterring them from calling the police in response to crimes committed at their properties … . * * *

… Supreme Court properly dismissed the first cause of action for malicious prosecution. * * *

As for the First Amendment claim, Supreme Court found …that plaintiffs lacked standing to assert their tenants’ constitutional rights. * * *

With respect to the selective enforcement claim, nothing in the record suggests that plaintiffs were singled out for enforcement of the Nuisance Law due to the population of tenants to which they rented — i.e., individuals whose rent was paid by the Tompkins County Department of Social Services. * * *

… [P]laintiffs’ due process claim, to the extent based upon defendants’ alleged failure to follow the procedures set forth in the Nuisance Law, is not actionable. Pirro v Board of Trustees of the Vil. of Groton, 2022 NY Slip Op 01358, Third Dept 3-3-22

 

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