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THERE WAS NO OBJECTIVE EVIDENCE TO SUPPORT PLAINTIFF’S ALLEGATION THAT THE CITY BUS STOPPED “VIOLENTLY,” CAUSING HER TO FALL; THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN SET ASIDE AS AGAINST THE WEIGHT OF THE EVICENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant Transit Authority’s motion to set aside the plaintiff’s verdict in this bus-passenger-injury case should have been granted. Plaintiff’s testimony that the bus stopped “violently,” causing her to fall, was not supported by any objective evidence:

… [V]iewing the evidence in the light most favorable to the plaintiff, there was no rational process by which the jury could have found for the plaintiff against the defendants. Although the plaintiff characterized the stop as “violent,” neither her testimony regarding the nature of her fall nor the circumstances surrounding the stop nor any other evidence she presented was sufficient to provide the objective support necessary to demonstrate that the movement of the bus was “unusual and violent” … . Stark v New York City Tr. Auth., 2022 NY Slip Op 01338, Second Dept 3-2-22

 

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DEFENDANT DID NOT DEMONSTRATE IT WAS NOT RESPONSIBLE, PURSUANT TO THE TOWN CODE, FOR MAINTENANCE OF THE AREA OF THE SIDEWALK WHERE PLAINTIFF TRIPPED OVER A PROTRUDING BOLT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Metropolitan Transit Authority (MTA), which had a station in the vicinity of where plaintiff tripped over a bolt protruding from the sidewalk, was not entitled to summary judgment in this slip and fall case. A town ordinance required abutting property owners to maintain the sidewalk and the MTA did not demonstrate the protruding bolt was not in an area of the sidewalk for which it was responsible:

… [T]he MTA defendants failed to affirmatively demonstrate that they were not tenants or occupants of a lot or building abutting the subject sidewalk or that, for any other reason, section 191-16(A) of the Town Code did not apply to them. Among other things, the evidence they submitted did not clearly show the location of the sidewalk in relation to the station house and train platform, or clearly establish the Town’s and the MTA defendants’ relative use of, and duties with respect to, the portions of the property at issue. Accordingly, the Supreme Court should have denied that branch of the MTA defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them, without regard to the sufficiency of the opposition papers … . Sanon v MTA Long Is. R.R., 2022 NY Slip Op 01337, Second Dept 3-2-22

 

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ELIMINATING THE LONGSTANDING PRACTICE OF REIMBURSING RETIREES’ MEDICARE PART B PREMIUMS IS AN ISSUE THAT MUST BE NEGOTIATED WITH CURRENT EMPLOYEES; PERB DETERMINATION ANNULLED (THIRD DEPT). ​

The Third Department, annulling the determination of the Public Employment Relations Board (PERB), determined eliminating the longstanding practice of reimbursing retirees for Medicare Part B premiums was an issue that must be negotiated with current employees:

In its decision, PERB explicitly found that there was a longstanding practice of reimbursing retirees for their Medicare Part B premiums, rendering negotiation mandatory before the City could make any changes to that past practice for active employees who sought continuation of that benefit. Despite that finding, PERB determined that the improper practice charge must be dismissed because “the City took no action against current employees” since it only notified retirees about the change in the past practice. The fact that PERB only informed retirees of such a change does not mean that it did not affect current employees. PERB’s reasoning in that respect fails to account for the actual hearing testimony, which established that many of petitioner’s witnesses — who were active employees as of January 1, 2010 — either did not receive Medicare Part B reimbursements after that date or were given reason to believe that they would not be so reimbursed in the future despite representations throughout their employment that the practice would continue … . …

Because PERB explicitly found in its decision that “the 25-year[-]long uninterrupted practice” of reimbursing Medicare Part B premiums met the standard of a past practice that was subject to negotiation for active members of petitioner, and there is no dispute that negotiation did not occur between the City and petitioner prior to implementing the change to the reimbursement policy, the matter is remitted to PERB for a final disposition consistent with these findings. Matter of Albany Police Benevolent Assn. v New York Pub. Empl. Relations Bd., 2022 NY Slip Op 01215, Third Dept 2-24-22

 

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IN THIS TENANT HARASSMENT AND PRIVATE NUISANCE ACTION BY TENANTS AGAINST THE LANDLORD, SUPREME COURT SHOULD HAVE GRANTED THE PRELIMINARY INJUNCTION ENTIRELY PROHIBITING VIDEO CAMERAS IN THE INTERIOR OF THE BUILDING (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the tenant-plaintiffs were entitled to a preliminary injunction prohibiting the landlord from maintaining video cameras in the interior of the building. Supreme Court had only prohibited video cameras outside the bathrooms. The tenants alleged the landlord was taking actions designed to force them to leave and alleged causes of action for tenant harassment and private nuisance:

Generally, the decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court … . “[A] movant must establish (1) a probability of success on the merits, (2) a danger of irreparable injury in the absence of an injunction, and (3) a balance of the equities in the movant’s favor” … . In granting, in part, those branches of the plaintiffs’ motion which were for a preliminary injunction enjoining the defendants from operating the video cameras in the interior portions of the property and from conducting inspections on the property without reasonable notice, the court properly, in effect, determined that the plaintiffs had established a probability of success on the merits, a danger of irreparable injury, and that the equities favor them. The court, however, improvidently exercised its discretion in limiting that preliminary injunction to enjoining the defendants only from operating video cameras that capture persons entering or exiting any bathrooms in the property. Under the circumstances of this case, the court should have granted that branch of the plaintiffs’ motion in its entirety, and preliminarily enjoined the defendants from operating video cameras in the interior portions of the property. Suchdev v Grunbaum, 2022 NY Slip Op 01195, Second Dept 2-23-22

 

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PLAINTIFFS-TENANTS STATED CLAIMS FOR TENANT HARASSMENT, PRIVATE NUISANCE, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND PUNITIVE DAMAGES FOR FAILURE TO PROVIDE ELECTRICITY, WATER, HEAT AND VENTILATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff-tenants stated claims for tenant (statutory) harassment, private nuisance, intentional infliction of emotional distress and punitive damages in connection with failure to provide electricity, water, heat and ventilation:

The complaint states a cause of action for harassment under Administrative Code of City of NY §§ 27-2005 (d) and 27-2115 (m) … . Namely, it sufficiently alleges that defendants failed to provide essential services, including electricity, water, heat, and ventilation, resulting in violations of the Housing Maintenance Code, and that that failure was calculated to and did cause plaintiffs to vacate their apartment … . …

Defendants do not oppose the reinstatement of the claims for private nuisance or intentional infliction of emotional distress, opting to litigate those claims on the merits. However, contrary to defendants’ contention, punitive damages may be appropriate under both causes of action if the alleged acts are shown to be intentional or malicious … . Carlson v Chelsea Hotel Owner, LLC, 2022 NY Slip Op 01117, First Dept 2-22-22

 

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WILLIAMS, THE DRIVER OF THE VEHICLE IN WHICH PLAINTIFF WAS A PASSENGER, WAS NOT NEGLIGENT IN SLOWING DOWN FOR A WORK CREW AHEAD; THE WILLIAMS CAR WAS STRUCK FROM BEHIND BY A POLICE CAR PURSUING ANOTHER VEHICLE; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this traffic accident case. A police officer pursuing another vehicle rear-ended the vehicle in which plaintiff was a passenger as the driver (Williams) was slowing down for a work crew:

Williams’s evidence in support of his motion demonstrated prima facie that he was operating his vehicle in a lawful, reasonable manner given the circumstances on the expressway at the time, and that he was not otherwise culpable in causing the police car to strike the rear of his vehicle. The burden having shifted, plaintiff and the City defendants each failed to offer evidence as would raise a factual issue regarding Williams’s comparable negligence in the cause of the accident … . The City defendants failed to proffer a nonnegligent explanation for rear-ending Williams’s vehicle, and the claim that the rear-ended vehicle stopped short, standing alone, is insufficient as a nonnegligent explanation for an accident … . Regardless of whether the actions of the police in this incident are to be considered under the reckless standard set forth in Vehicle and Traffic Law § 1104, the nonliability of Williams, given the unrefuted evidence of his nonculpable role in this accident, remains unchanged … . Grant v City of New York, 2022 NY Slip Op 01121, First Dept 2-22-22

 

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ALTHOUGH THE PETITIONER, COUNTY COMMISSIONER OF SOCIAL SERVICES, WAS PROPERLY TERMINATED FROM HER EMPLOYMENT FOR OTHER REASONS, THE FACT THAT SHE TESTIFIED IN FAMILY COURT ABOUT THE PROPER PLACEMENT OF A JUVENILE WHICH WAS NOT AS SEVERE AS THE PLACEMENT ADVOCATED BY THE COUNTY ATTORNEY AND THE PROBATION DEPARTMENT DID NOT CONSTITUTE A BREACH OF LOYALTY (THIRD DEPT).

The Third Department, in this Article 78 action, affirmed the county’s decision to terminate the employment of petitioner, who was Commissioner of Social Services for the county. The allegations of misconduct are too detailed to be summarized here. But the Third Department noted that the fact that the petitioner disagreed with the county attorney and the probation department about the appropriate placement of a juvenile, and so testified in Family Court, was not actionable misconduct:

… [P]etitioner, the Director of Probation and the County Attorney each had defined statutory roles in the Family Court proceeding … . That petitioner opted to promote a less stringent measure than her counterparts does not, as charged by respondents, constitute a breach of loyalty owed to either the County Attorney or the Director of Probation, or vice versa. … [T]o the extent that the Board relied, at all, on the Hearing Officer’s findings with respect to [the relevant] charge … , its determination is not supported by substantial evidence. It therefore follows that so much of the Board’s determination as sustained said specifications are annulled. Matter of Scuderi-Hunter v County of Del., 2022 NY Slip Op 01078, Third Dept 2-17-22

 

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PETITIONER’S NOTICE OF CLAIM DEMONSTRATED HE HAD SUFFICIENT INFORMATION TO FORMULATE A COMPLAINT IN THIS SLIP AND FALL CASE; HIS REQUEST FOR PRE-JOINDER DISCOVERY AND PRESERVATION OF THE ACCIDENT SCENE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined pre-joinder discovery and preservation of the accident site was not necessary in this slip and fall case:

The petitioner alleges … he slipped and fell due to an accumulation of water leaking from the ceiling onto the landing at the top of an escalator in a subway station. The petitioner commenced this proceeding against the New York City Transit Authority (hereinafter the Transit Authority) seeking to direct the Transit Authority to preserve and produce any surveillance videos or records prepared in the regular course of business concerning the accident, or to provide an affidavit explaining the absence of any such videos or records. The petitioner also moved pursuant to CPLR 3102(c), in effect, to compel the Transit Authority to permit an inspection of the location of the accident upon certain conditions and to refrain from performing alterations or modifications to the location pending that inspection. …

CPLR 3102(c) provides, as relevant, that “[b]efore an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.” Here, the petitioner’s notice of claim demonstrates that the petitioner possessed sufficient information to enable him to formulate his complaint and commence an action … . Therefore, under the circumstances, the only purpose of the pre-action discovery sought by the petitioner would be to “explore alternative theories of liability, which is not a proper basis for invoking CPLR 3102(c)” … . Moreover, considering, inter alia, the evidence already in the petitioner’s possession, the order directing the Transit Authority to preserve the condition of the site of the accident until completion of an inspection was unduly burdensome …”. Matter of Neham v New York City Tr. Auth., 2022 NY Slip Op 01026, Second Dept 2-16-22

 

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THE NYC HUMAN RESOURCES ADMINISTRATION (HRA) WAS NOT ENTITLED TO ANY OF THE PROCEEDS OF PLAINTIFF’S CAR-ACCIDENT SETTLEMENT BECAUSE THE SETTLEMENT DID NOT INCLUDE MEDICAL EXPENSES; PLAINTIFF WAS BARRED FROM RECOVERY OF MEDICAL COSTS BECAUSE HER BASIC ECONOMIC LOSS WAS LESS THAN $50,000 (INS LAW 5102) (FIRST DEPT).

The First Department, reversing Supreme Court, determined no part of plaintiff’s automobile accident settlement was available to satisfy a medical lien held by the NYC Human Resources Administration (HRA) because the settlement did not include medical expenses:

HRA asserted a lien on the proceeds of plaintiff’s settlement of an action arising out of an automobile accident in an amount representing the total amount of the medical bills it paid in connection with the treatment of the injuries plaintiff sustained in the accident (see Social Services Law § 104-b). However, plaintiff was barred from suing for medical expenses, because her basic economic losses were less than $50,000 (see Insurance Law § 5102[a]). Moreover, in light of the particular record before us, no portion of the proceeds of the settlement represents medical expenses, and HRA may not recover any portion of the proceeds for its medical costs … . Marmol v Mutino, 2022 NY Slip Op 00970, First Dept 2-15-22

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A STATEMENT FROM THE DEPARTMENT OF TRANSPORTATION AUTHENTICATING PHOTOGRAPHS OF PETITIONER’S CAR RUNNING A RED LIGHT NEED NOT BE NOTARIZED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the city (NYC) was not required to submit a notarized statement from the Department of Transportation authenticating photographs of petitioner’s car running a red light:

For over half a century, the legislature has consistently provided for prima facie liability for minor traffic offenses to be established by a simple, nonnotarized affirmation under penalty of perjury, using the same “sworn to or affirmed” language. Legislative history establishes the plain intent and meaning of the “sworn to or affirmed” language of Vehicle and Traffic Law § 1111-a(d): that the reviewing technician merely affirm, under penalty of perjury, the veracity of his statement. No notarization is necessary.

In the instant administrative proceeding, the notice of liability was supported by the requisite affirmation. The video images authenticated by the technician show petitioner’s car running a red light. This constitutes, as per the statute, “prima facie evidence” of the traffic violation (Vehicle and Traffic Law §1111-a[d]). Matter of Monroe St. v City of New York, 2022 NY Slip Op 00972, First Dept 2-15-22

 

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