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THE NYC LOFT BOARD PROPERLY REMITTED THE MATTER FOR FURTHER PROCEEDINGS IN THIS ACTION CONCERNING A SETTLEMENT AGREEMENT IN WHICH THE TENANTS PURPORTED TO WITHDRAW THEIR APPLICATION FOR LOFT LAW COVERAGE (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the NYC Loft Board properly remitted the matter for further proceedings in this proceeding involving a settlement agreement in which the tenants purported to withdraw their application for Loft Law coverage:

… [T]he matter [is] remitted to the Appellate Division with directions to remand to the New York City Loft Board for further proceedings in accordance with this memorandum.

In accordance with its regulations (see 29 RCNY § 1-06 [j] [5]), the Loft Board reviewed and rejected the parties’ proposed settlement agreement as perpetuating an illegal living arrangement. The rationality of that determination is not before us … . Under these limited circumstances, it was not irrational for the Board to remand for further proceedings, thereby declining to give effect to a provision of the settlement agreement in which tenants purported to withdraw their application for Loft Law coverage. Matter of Callen v New York City Loft Bd., 2022 NY Slip Op 00957, Ct App 2-15-22

 

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THE TOWN LAW STATUTE WHICH AUTHORIZES A TOWN TO REGULATE THE DISCHARGE OF “FIREARMS” DOES NOT AUTHORIZE A TOWN TO REGULATE THE DISCHARGE OF “BOWS” (CT APP).

The Court of Appeals, affirming the Appellate Division, determined the Town Law does not authorize the Town of Smithtown to regulate the discharge of “bows” pursuant to its authority to regulate “firearms:”

Town Law § 130 (27) specifically authorizes certain towns to prohibit the discharge of “firearms” through ordinances that may be more restrictive than other laws where such discharge may be hazardous to the general public, and requires that notice be provided to the Department of Environmental Conservation of any ordinance “changing the five hundred foot [setback] rule” (Town Law § 130 [27]; see Environmental Conservation Law § 11-0931 [4] [a] [2]). While the term “firearm” is undefined in the Town Law, construing it in accordance with its “usual and commonly understood meaning” … , the term “firearm” does not encompass a “bow” … and we are unpersuaded that the Legislature intended otherwise when it used the term in the Town Law. Accordingly, Town Law § 130 (27) does not authorize Smithtown to regulate the discharge of bows. Hunters for Deer, Inc. v Town of Smithtown, 2022 NY Slip Op 00907, CtApp 2-10-22

 

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ALLOWING DRIVING AND PARKING ON A LONG ISLAND BEACH MAY CONSTITUTE A PRIVATE AND PUBLIC NUISANCE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action for private and public nuisance against the town and village, based upon the code provisions and rules allowing vehicles to drive and park on the beach, should not have been dismissed:

… [P]hotographs of the subject beach area as well as the affidavits of [plaintiff] and her family describing the conditions on the beach raised triable issues of fact as to whether driving and parking in the subject beach area, in the manner and at the intensity allegedly occurring at the time of this action, was of an unreasonable character. …

“A public nuisance exists for conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons” … . Here, contrary to the court’s conclusion, triable issues of fact existed as to whether summer daytime beach driving and parking in the subject beach area, in the manner and at the intensity allegedly occurring at the time of this action, endangered the health and safety of members of the public who use that portion of the beach as well as the beach itself, including the lands seaward of the high-water line, which are held in trust for the public. Thomas v Trustees of the Freeholders & Commonalty of the Town of Southampton, 2022 NY Slip Op 00894, Second Dept 2-9-22

 

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PETITIONER SOUGHT RECORDS FROM THE NYC TAXI AND LIMOUSINE COMMISSION (TLC) TO DETERMINE HOW THE COMMISSION WAS HANDLING LICENSE APPLICANTS WITH CRIMINAL CONVICTIONS; THE REQUEST SHOULD NOT HAVE BEEN DENIED; MATTER REMITTED FOR IN CAMERA REVIEW (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s request for records from the NYC Taxi and Limousine Commission (TLC), including fitness interview decisions (FID”s) should not have been denied. The matter was remitted to Supreme Court for an in camera review of the records:

The Driver’s Privacy Protection Act (DPPA) (18 USC § 2721 et seq.) does not impose a blanket prohibition on disclosure of all motor vehicle records. Instead, the law restricts disclosure of “personal information,” which includes personal identifiers of the type that petitioner agrees should be redacted. Moreover, even as to such personal information, the DPPA still expressly provides for disclosure in various circumstances, such as for research purposes, where the personal information will not be further disclosed … . Motor vehicle records under the DPPA are thus not the kind of records as to which production is absolutely prohibited, as long as they are redacted … .

The record is not clear as to what extent it is possible to anonymize production of the TLC fitness interview decisions (FIDs), which petitioner seeks in order to assess whether the TLC has been applying fair standards in its decision making on licensing determinations with respect to people with one or more criminal convictions … . Matter of Brooklyn Legal Servs. v New York City Taxi & Limousine Commn., 2022 NY Slip Op 00809, First Dept 2-8-22

 

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PLAINTIFF’S EMPLOYMENT DISCRIMINATION ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were triable issues of fact in this employment discrimination case:

Plaintiff, an African American female, raises triable issues of fact whether her October 2017 termination (adverse employment action) was in retaliation for her verbal complaints (protected activity) concerning racist comments defendant Annie Liu allegedly uttered at work … . A question of fact exists as to whether plaintiff complained in July or August 2017. If plaintiff’s testimony is credited, the time frame between the discriminatory comments, plaintiff’s complaints, and her firing is evidence of a causal connection between the protected activity and her termination two months later … . Contrary to defendants’ argument, it is unclear from the record whether an intervening event occurred to dispel an inference of a causal relationship. Moreover, issues of fact also exist as to whether defendants’ proffered explanation for terminating plaintiff’s employment was pretextual … . Cancel v Global Fertility & Genetics, Inc., 2022 NY Slip Op 00811, First Dept 2-8-22

 

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CLASS CERTIFICATION SHOULD NOT HAVE DENIED THE TENANTS IN THIS RENT-OVERCHARGE ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined class certification in this rent overcharge action should not have been denied. The tenants alleged the landlord unlawfully deregulated apartments while receiving J-51 tax benefits:

Class certification was improperly denied. The determination of whether plaintiffs have a cause that may be asserted as a class action turns on the application of CPLR 901. That section provides that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all” where five factors — sometimes characterized “as numerosity, commonality, typicality, adequacy of representation and superiority” … . The party seeking class certification has the burden of establishing the prerequisites of CPLR 901(a) and thus establishing entitlement to certification … .

Here, plaintiffs met their burden of demonstrating the prerequisites for class action certification under CPLR 901 and 902. Contrary to the motion court’s determination, plaintiffs established numerosity and typicality in their initial motion for class certification. The allegations in the amended complaint taken with the DOF tax bills showed that by June 2017, only 8 of 100 apartments were registered as rent-stabilized. … [T]his Court [has] held that similar bills were sufficient to establish numerosity, i.e., the number of deregulated units. As to typicality, the predominant legal question involves one that applies to the entire class—whether defendant unlawfully deregulated rent-stabilized apartments while receiving J-51 real estate tax abatement benefits. Cupka v Remik Holdings LLC, 2022 NY Slip Op 00812, First Dept 2-8-22

 

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THE FACT THAT THE CITY BUILDING CODE DID NOT REQUIRE DISABLED-ACCESS TO THE THIRD FLOOR OF DEFENDANT RESTAURANT DID NOT CONFLICT WITH THE FACT THAT THE HUMAN RIGHTS LAW MAY REQUIRE SUCH ACCESS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff, a disabled wheelchair user, had standing to bring a discrimination action against defendant restaurant alleging the third floor of the restaurant was not accessible. The fact that the NYC Building Code did not require disabled-access to the third floor based on the square-footage did not conflict with the Human Rights Law which may require access:

The Building Code and disability discrimination laws serve different purposes and can easily be enforced and harmonized. The Building Code serves foremost to ensure safety in construction and maintenance of structures. The accessibility provision at issue simply states that no disabled access is required for building areas which measure less than 2,500 square feet. The provision does not prohibit building owners from providing such access — it simply provides that, for purposes of the Building Code, no such access is required.

The disability discrimination laws are designed, as pertinent here, to ensure that disabled persons have reasonable access to public accommodations. While the Building Code might not require disabled access under the circumstances present here, this does not mean that more may not be required under the State and City Human Rights Laws’ (HRLs) disability discrimination provisions. In this, there is no conflict. To the extent there is any tension between the Building Code’s provisions and the HRLs, such tension may be remedied by the rule of reasonableness which is an integral component of the HRLs’ requirement that disabled persons be reasonably accommodated (see Executive Law § 296[c][i]; Administrative Code of City of NY § 8-107[15][b]). Jones v McDonald’s Corp., 2022 NY Slip Op 00814, First Dept 2-8-22

 

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CLAIMANTS’ APPLICATION TO FILE A LATE NOTICE OF CLAIM AGAINST THE COUNTY IN THIS TRAFFIC ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimants’ application to file a late notice of claim against the county in this traffic accident case should not have been granted. Claimants alleged ice and snow had been allowed to accumulate on the road causing the driver to lose control and strike a tree. Claimants’ eight-year-old son was injured. The Fourth Department, in a comprehensive discussion, went through each “late-notice-of-claim” factor and found only one (county not prejudiced by the delay) favored the claimants:

… [O]f all the relevant circumstances evaluated—infancy, reasonable excuse, actual knowledge, and substantial prejudice—only one, lack of substantial prejudice, favored granting claimants’ application. Despite the well-settled principle that “actual knowledge of the claim is the factor that is accorded ‘great weight’ in determining whether to grant leave to serve a late notice of claim” … and instead “weigh[ed] heavily” the lack of substantial prejudice, even though claimants’ showing in that regard, while adequate, was not particularly strong. Under these circumstances—which include the nearly 22-month period between the accident and claimants’ application for leave to serve a late notice of claim, the improper weighing of the substantial prejudice factor at the expense of the actual knowledge factor, and claimants’ failure to demonstrate a nexus between the son’s infancy and the delay or to otherwise proffer a reasonable excuse for the delay—we conclude that the court abused its discretion in granting that part of the application seeking leave to serve a late notice of claim on the County … . Matter of Antoinette C. v County of Erie, 2022 NY Slip Op 00776, Fourth Dept 2-4-22

 

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THE SCHOOL BOARD DID NOT VIOLATE THE OPEN MEETINGS LAW WHEN IT CONSULTED WITH ITS ATTORNEY IN A CLOSED SESSION BEFORE DECIDING NOT TO RENEW PLAINTIFF FOOTBALL COACH’S EMPLOYMENT; THERE IS AN EXCEPTION TO THE OPEN MEETINGS LAW FOR LEGAL ADVICE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff high school football coach was not entitled to summary judgment on the cause of action alleging the school board violated the Open Meetings Law by deciding not to renew plaintiff’s employment after a closed meeting. The Open Meetings Law did not apply to the board’s closed-door consultation with its attorney:

It is well settled that “[e]very meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [section 105]” (Public Officers Law § 103 [a] … ). While an executive session may be called to discuss, inter alia, “matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person” (§ 105 [1] [f]), the public body may do so only upon a majority vote of its membership and after “identifying the general area or areas of the subject or subjects to be considered” (§ 105 [1]). However, section 108 (3) clarifies that “[n]othing contained in [the Open Meetings Law] shall be construed as extending the provisions hereof to . . . any matter made confidential by federal or state law.” Because “communications made pursuant to an attorney-client relationship are considered confidential under the [CPLR] . . . , communications between a . . . board . . . and its counsel, in which counsel advises the board of the legal issues involved in [a] determination . . . , are exempt from the provisions of the Open Meetings Law” … .

There is no dispute that, during the closed session … , the Board and the District superintendent met with the District’s counsel seeking legal advice “regarding the [p]laintiff’s legal employment status, employment rights, [and] the process for appointing school employees.” We thus agree with defendants that the attorney-client exemption applies and that the court erred in determining that there was a violation of the Open Meetings Law … . Sindoni v Board of Educ. of Skaneateles Cent. Sch. Dist., 2022 NY Slip Op 00772, Fourth Dept 2-4-22

 

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE STEPS ON WHICH SHE SLIPPED AND FELL, ALTHOUGH ON A PUBLIC RIGHT-OF-WAY, WERE SUBJECT TO A SPECIAL USE BY THE ABUTTING PROPERTY OWNER (POTENTIALLY RENDERING THE ABUTTING PROPERTY OWNER LIABLE) (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff in this slip and fall case should have been allowed to present evidence of defendant synagogue’s special use of steps which were part of the public right-of-way but which lead to the synagogue entrance. Plaintiff slipped on ice on the “public right-of-way” portion of the steps and broke her ankle:

… [D]efendant proffered evidence in support of its motion for summary judgment that plaintiff’s fall occurred on public property, thereby shifting the burden to plaintiff to raise an issue of fact as to defendant’s liability as an abutter … . With respect to its special use theory of recovery, plaintiff points to the deposition testimony of defendant’s secretary and bookkeeper, who testified that she was unaware of who initially built the subject set of steps, or when, but that defendant rebuilt them prior to plaintiff’s fall. Photographs submitted by both parties make clear that the subject steps are not only directly in line with the synagogue’s main entrance, but match that entrance’s width with near exactitude, the entrance notably being wide enough to encompass two sets of double doors. There is proof that congregants attending Sabbath services and holiday services would access the synagogue via this entrance only. In addition, photographic evidence reveals that the portion of the raised sidewalk between the two sets of steps is constructed of more decorative pavers or cobblestones, laid by defendant, setting that area apart from the otherwise concrete sidewalk, arguably improving the overall appearance of the main entrance and visually linking the two sets of steps up to the synagogue.

Viewing the evidence in the light most favorable to plaintiff and affording her the benefit of every available inference, as we must, the foregoing was adequate to raise a triable issue of fact as to whether the subject steps were constructed or altered for defendant’s benefit. Podhurst v Village of Monticello, 2022 NY Slip Op 00707, Third Dept 2-3-22

 

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