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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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THE TOWN HAD THE AUTHORITY TO BRING DISCIPLINARY CHARGES AGAINST THE PLAINTIFF POLICE OFFICER AND THE PLAINTIFF WAS NOT ENTITLED TO RETIREE BENEFITS SET FORTH IN THE COLLECTIVE BARGAINING AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Miller which is far too comprehensive to fairly summarize here. determined plaintiff police officer was properly subjected to disciplinary charges brought by the town and was not entitled to all the retiree benefits set forth in the collective bargaining agreement:

We are called upon in this case to navigate the interplay between various forms of equitable relief grounded in common law doctrine, principles of modern practice under CPLR article 78 and the Municipal Home Rule Law, and certain state-level policies regarding the right to collective bargaining and the authority of public officials over law enforcement. These issues have been raised as a result of the plaintiff’s complaint, the central aim of which is to prevent the plaintiff’s employer from holding him accountable for the serious disciplinary infractions that he allegedly committed in the course of his official duties as a police officer.

Contrary to the plaintiff’s contentions, the equitable powers and legal doctrines that he seeks to invoke in this litigation do not shield him from the consequences of his actions. Murray v Town of N. Castle, 2022 NY Slip Op 00675, Second Dept 2-2-22

 

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PLAINTIFF FAILED TO RAISE A QUESTION OF FACT WHETHER AN ALLEGED DEFECT IN THE ROAD WAS CAUSED BY DEFENDANT’S SPECIAL USE OF THE ROAD; TWO DISSENTERS DISAGREED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant demonstrated it did not create a dangerous condition in the street by a special use. Plaintiff alleged defendant created the dangerous condition by storing heavy materials in the street. Plaintiff alleged a steel beam fell on his foot from a forklift when the forklift struck a defect in the road (Simmons Avenue):

“Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk or street is placed on the municipality, and not on the owner or lessee of abutting property, unless the landowner or lessee has either affirmatively created the dangerous condition, voluntarily but negligently made repairs, caused the condition to occur through a special use, or violated a statute or ordinance expressly imposing liability on the landowner or lessee for a failure to maintain the abutting street” … . Defendant met its initial burden on the motion by establishing, as relevant here, that “[it] neither owned nor made special use of [Simmons Avenue], and that [it] had no connection to the condition” that caused the accident … .

From the dissent:

In our view, defendant failed to establish as a matter of law that it did not make special use of Simmons Avenue or affirmatively create the defective condition on Simmons Avenue that allegedly caused plaintiff’s injuries. Beck v City of Niagara Falls, 2022 NY Slip Op 00563, Fourth Dept 1-28-22

 

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THE TOWN CODE PROVISION WHICH REQUIRES A PROPERTY INSPECTION BEFORE ISSUANCE OF A RENTAL PERMIT DOES NOT VIOLATE THE CONSTITUTIONAL PROTECTION AGAINST UNREASONABLE SEARCHES AND SEIZURES BECAUSE THE PROVISION ALLOWS THE LANDLORD TO HAVE THE INSPECTION DONE BY A STATE-LICENSED ENGINEER, AS OPPOSED TO THE TOWN BUILDING INSPECTOR (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town code provision which required a property inspection before issuance of a rental permit is not unconstitutional. Although the provision would be unconstitutional if an inspection by the town building inspector was required (a mandatory warrantless search), the provision also allows the landlord to have the property inspected by a state-licensed engineer:

It is well-settled that “the imposition of a penalty upon a landlord for renting his [or her] premises without first consenting to a warrantless search violates the property owner’s Fourth Amendment rights” … . Here, however, the Town’s rental permit law does not “expressly require . . . an inspection before the issuance or renewal of a permit” … , since a property owner who is applying for a rental permit has the option of obtaining a certification from a state-licensed professional engineer in lieu of submitting to an inspection by a Town building inspector … . Accordingly, the provisions did not violate constitutional provisions against unreasonable searches and seizures … . Infinite Green, Inc. v Town of Babylon, 2022 NY Slip Op 00407, Second Dept 1-26-22

 

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EVEN THOUGH PARTY DEPOSITIONS HAD NOT YET BEEN TAKEN IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WAS NOT PREMATURE AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT; DEFENDANT’S OPPOSITION PAPERS DID NOT RAISE A QUESTION OF FACT BECAUSE NO EXPLANATION OF THE ACCIDENT WAS OFFERED; PLAINTIFF ALLEGED DEFENDANT’S BUS CROSSED A DOUBLE YELLOW LINE AND STRUCK HIS TAXI CAB (SECOND DEPT).

The Second Department, reversing Supreme Court determined; (1) the motion for summary judgment in this traffic accident case was not premature; and (2) plaintiff was entitled to summary judgment on liability. Plaintiff alleged his taxi cab was struck by defendant’s bus which crossed the double yellow line. Party depositions had not yet been taken:

“Pursuant to CPLR 3212(f), where facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant, summary judgment may be denied” … . “[M]ere hope that some evidence might be uncovered during further discovery is insufficient to deny summary judgment” … . Here, the defendants’ opposition to the plaintiff’s motion consisted solely of legal argument that the motion was premature. However, the defendants did not explain why the bus operator offered no affidavit in opposition countering the plaintiff’s testimony as to how the alleged incident occurred. Moreover, the defendants offered nothing beyond mere speculation and bald conjecture concerning what relevant evidence they hoped to uncover during discovery which would bear on their liability for the alleged incident. …

“To be entitled to partial summary judgment a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault” … ; instead, “[a] violation of the Vehicle and Traffic Law constitutes negligence as a matter of law” … . Shah v MTA Bus Co., 2022 NY Slip Op 00327, Second Dept 1-19-22

 

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THE NUMBER OF FIREFIGHTERS WHICH MUST BE ON DUTY DURING A SHIFT IS A HEALTH AND SAFETY ISSUE, WHICH IS ARBITRABLE PURSUANT TO THE COLLECTIVE BARGANING AGREEMENT, NOT A JOB SECURITY ISSUE (WHICH IS NOT ARBITRABLE) (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the number of firefighters which must be on duty during a shift is not a job-security issue and is therefore arbitrable pursuant to the collective bargaining agreement (CBA):

Respondent contends that Supreme Court erred in concluding that its grievance concerned nonarbitrable job security clauses as the clauses relate only to minimum shift staffing requirements and do not guarantee employment to bargaining unit members during the life of the CBA, a hallmark of a no-layoff job security clause. Respondent further asserts that minimum staffing requirements set forth in … the CBA pertain to health and safety concerns and are properly the subject of arbitration.

… [T]he CBA “does not purport to guarantee a[n] [officer] his or her employment while the CBA is in effect, nor does it prohibit layoffs” … . “It also does not protect officers ‘from abolition of their positions due to budget stringencies'” … . … [T]he CBA only sets forth “minimum staffing on particular shifts” … . Matter of City of Ogdensburg (Ogdensburg Firefighters Assn. Local 1799, A.F.L., C.I.O., I.A.F.F), 2022 NY Slip Op 00237, Third Dept 1-13-22

 

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PLAINTIFF’S VERDICT IN THIS SUBWAY ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE; PLAINTIFF WAS STRUCK BY A TRAIN AND ALLEGED THE ALLOWED SPEED FOR ENTERING A STATION WAS TOO HIGH; DEFENDANT TRANSIT AUTHORITY SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE THAT SPEED STUDIES HAD BEEN CONDUCTED IN SUPPORT OF THE QUALIFIED IMMUNITY DEFENSE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mazzarelli, determined the NYC Transit Authority’s (TA’s) motion to aside the plaintiff’s verdict in this subway accident case should have been granted. Plaintiff was on the tracks when he was struck by a train. Plaintiff argued the speed regulations allowed the train to enter the station at an unsafe speed. The trial judge prohibited the TA from introducing evidence demonstrating it was entitled to qualified immunity because it had conducted studies to determine the appropriate train speed:

The evidence that the TA proffered, and that the trial court precluded, suggested that it may have been entitled to qualified immunity. … Korach’s (the TA’s expert’s] testimony indicated that the TA’s speed policy was consistent with “universally accepted rapid transit system operating practice” … . Accordingly, Korach should have been permitted to testify about the policies that other rapid transit systems have in place with respect to speed restrictions in subway and train stations, including in cases where those stations are situated on curved sections of track. Further, … the testimony that the TA’s own witnesses would have given was designed to demonstrate that the speed policy enabled the “efficient running of a transportation system which serves millions of passengers every year” … . This language suggests that the trial court’s decision to limit evidence of speed policy decisions to their effects on a particular subway line was too restrictive, since the cases applying qualified immunity in subway speed cases take into account the effects that slower speeds would have on the entire subway system. Pedraza v New York City Tr. Auth., 2022 NY Slip Op 00255, First Dept 1-13-22

Similar issues in a case involving a similar accident in which the Pedraza (supra) trial-level evidentiary rulings on qualified immunity were applied under the doctrine of collateral estoppel. Because Pedraza was reversed, this case was reversed as well. Martinez v New York City Tr. Auth., 2022 NY Slip Op 00252, First Dept 1-11-22

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A ZONING BOARD OF APPEALS IS WITHOUT JURISDICTION ABSENT AN APPEAL FROM AN ORDER OR OTHER DETERMINATION BY AN ADMINISTRATIVE OFFICIAL CHARGED WITH ENFORCING THE ZONING CODE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, noted that a Zoning Board of Appeals has no jurisdiction unless there is an appeal from an order or decision or determination made by an administrative official charged with enforcement of zoning ordinances:

Pursuant to the Code of the Town of Webster, absent an “order, requirement, decision or determination by any administrative official of the Town” charged with the enforcement of the Town’s local zoning ordinance, the ZBA is without jurisdiction to hear an appeal … . * * *

…[W]e conclude on this record that there was no determination … affording jurisdiction to the ZBA to hear petitioner’s appeal … . Matter of Webster Citizens for Appropriate Land Use, Inc. v Town of Webster, 2021 NY Slip Op 07370, Fourth Dept 12-23-21

 

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PLAINTIFF-STUDENT ALLEGED INJURY IN AN AFTERSCHOOL PROGRAM RUN BY TWO TEACHERS; THE DEPARTMENT OF EDUCATION IS IMMUNE FROM SUIT UNDER THE DOCTRINE OF GOVERNMENTAL IMMUNITY; THE PRINCIPAL’S APPROVAL OF THE AFTERSCHOOL PROGRAM WAS DISCRETIONARY AND NO SPECIAL DUTY WAS OWED PLAINTIFF (FIRST DEPT).

The First Department determined the NYC Department of Education (DOE) was immune from suit by a student who alleged injury in an afterschool program run two teachers (Polanish and Gallagher) called “Mind, Body & Sport” (MBS). The school principal’s approval of the program was a discretionary act and no special duty was owned plaintiff:

The school principal’s granting of a permit for MBS to operate on school grounds was a discretionary action taken during the performance of a governmental function, and thus, the DOE was shielded from liability by the doctrine of governmental immunity … . Plaintiffs have failed to establish that the DOE owed the infant plaintiff a special duty that would render the DOE liable to plaintiffs for negligent acts … . Likewise, as to the MBS flyer, the DOE cannot be held liable through the doctrine of apparent authority for issuance of the flyer without the required disclaimer. As with the approval of the permit, the school principal’s approval of the MBS flyer involved the exercise of her reasoned judgment and discretionary authority, thus entitling DOE to governmental function immunity … .

The DOE also cannot be held liable for negligently supervising Polanish and Gallagher’s conduct during the MBS program. That the DOE permitted MBS to run as an afterschool program on school grounds does not provide a basis for holding the DOE liable, since “[a] defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control” … . R.K. v City of New York, 2021 NY Slip Op 07092, First Dept 12-21-21

 

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THE OWNER OF THE OLD BRONX COURTHOUSE HAS A VALID CAUSE OF ACTION SEEKING AN EASEMENT BY NECESSITY OVER THE SIDEWALK/STREET ABUTTING THE COURTHOUSE, DESPITE THE “DEMAPPING” OF THE ABUTTING STREET AND THE CONVEYANCE OF THE “DEMAPPED” STREET TO THE DEFENDANT; THE ACTION IS NOT PRECLUDED BY THE STATUTE OF LIMITATIONS BECAUSE IT SEEKS TO QUIET TITLE TO THE OWNER’S LAND (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Renwick, determined the plaintiff’s action claiming ownership of, or an easement over, the sidewalk/street area abutting plaintiff’s property (the old Bronx courthouse) was properly dismissed, with exception of the claim of an easement by necessity. The street abutting the courthouse had been “demapped” by the city and conveyed to defendants before plaintiff purchased the courthouse property. The deed description of the courthouse property was unambiguous and was not altered by a hand-drawn circle around the property on the recorded tax map. The action was not precluded by the statute of limitations because it is an action to quiet title to the plaintiff’s land:

… [W]here, like here, the owner is in possession, the right of action to remove a cloud on title is a continuous one accruing from day to day, and this right is not barred by the statute of limitations until the cloud is continued without interruption for a length of time sufficient to effect a change of title as a matter of law … . “The reason for this rule is that while the owner in fee continues subject to an action, proceeding, or suit on the adverse claim, he or she has a continuing right to the aid of a court of equity to ascertain and determine the nature of such claim and its effect on his or her title, or to assert any superior equity in his or her favor”… . Accordingly, the owner may wait until his or her possession is disturbed, or his or her title is attacked, before taking steps to vindicate his or her right … . “The requirement of prompt action is imposed as a policy matter upon persons who would challenge title to property rather than those persons who seek to quiet title to their land” … . * * *

… [T]he deed contains no reference to the altered Tax Map, with the hand-drawn circle, purportedly intended to change the boundaries of the property. Nor is there any indication on the altered Tax Map of the circle’s purpose. If the parties wanted to change the boundaries of the property described in the deed and Current Tax Map to include a surrounding demapped street, they could easily have done so by making such notation on the deed and altered Tax Map. Liberty Sq. Realty Corp. v The Doe Fund, Inc., 2021 NY Slip Op 07082, First Dept 12-21-21

 

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