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WHEN CONFRONTED WITH AN ARMED SUSPECT, DEFENDANT POLICE OFFICER FIRED HER WEAPON AND STRUCK PLAINTIFF, ANOTHER POLICE OFFICER; THE TWO POLICE OFFICERS, WHO WORKED FOR DIFFERENT MUNICIPALITIES, WERE DEEMED CO-EMPLOYEES PURSUANT TO A POLICE MUTUAL AID AGREEMENT; THEREFORE PLAINTIFF’S NEGLIGENCE ACTION WAS PRECLUDED BY GENERAL OBLIGATONS LAW 11-106 (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined that plaintiff police officer and defendant police were co-employees pursuant a Police Mutual Aid Agreement between two municipalities, the Town of Glenville and the Village of Scotia. Plaintiff, a Glenville police officer, alleged defendant , a Scotia police officer, was negligent in firing her weapon at a suspect, thereby causing a bullet to strike plaintiff. Because the plaintiff and defendant were deemed co-employees pursuant to the agreement, General Obligations Law 11-106 prohibited plaintiff from suing in negligence:

Pursuant to General Obligations Law § 11-106, a police officer may now assert a cause of action sounding in negligence “for injuries suffered while in the line of duty against entities other than municipal employers and fellow workers” … . The issue thus boils down to whether plaintiff and Peck [defendant] were acting as coemployees at the time of the incident, which would bar plaintiff’s action. Based primarily upon the operative provisions of the Agreement, we find that they were coemployees on the night of the incident, thereby insulating defendants from liability. Ferretti v Village of Scotia, 2021 NY Slip Op 06895, Third Dept 12-9-21

 

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IN THIS SIDEWAIK ICE-AND-SNOW SLIP AND FALL CASE, THE MUNICIPALITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE CONDITION, AND THE ABUTTING PROPERTY OWNERS FAILED TO DEMONSTRATE THEY DID NOT CREATE THE CONDITION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this sidewalk ice-and-snow slip and fall case, determined; (1) the municipality demonstrated it did not have written notice of the ice-and-snow condition and plaintiff did not raise a question of fact about whether the municipality created the condition or benefitted from a special use; and (2), the abutting property-owner defendants did not demonstrate that they did not create the ice-and-snow condition. Summary judgment was properly granted to the municipality, but should not have been granted to the abutting property owners:

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 … . There is an exception to this general rule, however, where the landowner has affirmatively created the dangerous condition … . The [abutting property-owner defendants] failed to demonstrate, prima facie, that their snow removal efforts around the time of the injured plaintiff’s fall did not create or exacerbate the allegedly dangerous condition on the roadway … . Thompson v Nassau County, 2021 NY Slip Op 06878, Second Dept 12-8-21

 

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EVEN THOUGH THE RECONSTRUCTION OF THE EAST RIVER PARK WILL BENEFIT THE SURROUNDING COMMUNITY (FLOOD PROTECTION) AS WELL AS THE PARK, THE RECONSTRUCTION SERVES A PARK PURPOSE AND THE APPROVAL OF THE STATE LEGISLATURE IS THERFORE NOT REQUIRED UNDER THE PUBLIC TRUST DOCTRINE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, determined the planned reconstruction of the East River Park along the waterfront of the lower east side of Manhattan did not require approval by the state legislature pursuant to the public trust doctrine, even though the project benefitted the park and other community objectives (protection against neighborhood flooding):

Petitioners contend that the principal purpose of the project is construction of a coastal shore floodwall to safeguard the residential developments nearby. They argue that the conclusion of a nonpark purpose is warranted because the work proposed is disproportionate to the work required to preserve the Park. There is no dispute that the project will greatly benefit the nearby communities from the risk of coastal flooding. At its core, however, petitioners’ argument is that any project that serves a park purpose cannot serve a dual purpose. Stated differently, that a park purpose is served only if that is the sole objective of a particular project. This is too narrow a reading of the park purpose requirement.

A project that benefits a park as well as other community objectives can still be considered to serve a park purpose under the public trust doctrine. * * * … [E]ven though a coastal flooding protection project will provide communities adjacent to the Park with flood protection, it will also protect the Park from coastal flooding.

Once it is determined that there is a park purpose, the salutary goal of preventing the alienation of parkland is satisfied. Matter of East Riv. Park Action v City of New York, 2021 NY Slip Op 06652, First Dept 11-30-21

 

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ALTHOUGH THE COURT HAS THE DISCRETION TO ALLOW AMENDMENT OF A NOTICE OF CLAIM BASED UPON EVIDENCE GIVEN AT THE 50-H HEARING, THE AMENDMENT CANNOT SUBSTANTIALLY CHANGE THE FACTS AND ADD A NEW THEORY OF LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioner’s motion to amend the notice of claim in this medical malpractice action against the New York City Health and Hospitals Corporation should not have been granted. Although the court has the power to allow amendment of a notice of claim based upon evidence given at the 50-h hearing, the amendment cannot substantively change the facts and add a new theory of liability:

After a hearing was conducted pursuant to General Municipal Law § 50-h … , the petitioner served an amended notice of claim … expanding the dates of alleged malpractice from January 2, 2014, through September 6, 2018, based on the petitioner’s testimony at the hearing that the decedent had stomach pains since 2016, had been diagnosed with paralytic ileus, and had been treated for that condition by a physician affiliated with Coney Island Hospital since approximately 2016. …

“‘A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability'” … . “[W]hile a court has the discretion to permit a plaintiff to serve an amended notice of claim, amendment is permitted only where the error in the original notice of claim was made in good faith, the municipality is not prejudiced, and the amendment does not substantively change the nature of the claim” … . “A court may consider evidence adduced at a 50-h hearing to correct a good faith and nonprejudicial technical mistake, omission, irregularity, or defect in the notice of claim. However, the evidence adduced at the 50-h hearing cannot be used to substantively change the nature of the claim or the theory of liability” … . Matter of Lesaine v New York City Health & Hosps. Corp., 2021 NY Slip Op 06617, Second Dept 11-24-21

 

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THE PLAINTIFF BICYCLIST COULD NOT IDENTIFY THE CAUSE OF HIS FALL AND THE CITY DID NOT HAVE WRITTEN NOTICE OF ANY ROADWAY DEFECTS IN THE AREA; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this bicycle-fall case should have been granted. Plaintiff could not identify the cause of his fall and the city did not have written notice of any roadway defects:

“In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgement as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall” without resorting to speculation … . Here, the injured plaintiff acknowledged at the General Municipal Law § 50-h hearing that he had no recollection of what caused his accident. He testified that he remembered riding his bicycle downhill somewhere on Forest Park Drive and waking up in an ambulance—but nothing in between. Given this lack of information, “it is just as likely that the accident [was] caused by some . . . factor [other than the conditions of the road], such as a . . . loss of balance” or control … . Accordingly, a finding that the City’s negligent maintenance of the roadway, if any, was responsible for the accident would be impermissibly based on speculation … . …

… [T]he defendants established their … entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against the City by presenting evidence that the City Department of Transportation had not received prior written notice of the defective roadway condition that allegedly caused the injured plaintiff’s accident  … . Xin Zheng Zhan v City of New York, 2021 NY Slip Op 06646, Second Dept 11-24-21

 

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ALTHOUGH PLAINTIFF’S HOSTILE WORK ENVIRONMENT ALLEGATIONS DID NOT STATE A CAUSE OF ACTION UNDER THE APPLICABLE NEW YORK STATE HUMAN RIGHTS LAW PROVISIONS, THE ALLEGATIONS DID STATE A CAUSE OF ACTION UNDER THE MORE PROTECTIVE NEW YORK CITY HUMAN RIGHTS LAW (CT APP).

The First Department, reversing (modifying) Supreme Court, determined the complaint stated a hostile work environment cause of action under the more protective New York City Human Rights Law, but not under the New York State Human Rights Law:

… [A]lthough the motion court properly concluded that it does not rise to the level of “severe and pervasive” under the applicable pre-2019 State HRL, plaintiff has raised triable issues of fact regarding the hostile work environment claims under the more protective City HRL … . There was evidence that in May and September 2015, several of plaintiff’s coworkers referred to him by using the Spanish word for “monkey,” a racially humiliating and degrading term. Further, the evidence suggested that other coworkers and supervisors, if not everyone at the restaurant, knew that certain employees were using that term to refer to plaintiff … . Under these circumstances, triable issues exist as to whether this rises above the level of a “truly insubstantial” case … . The evidence also raised triable issues as to whether plaintiff was treated differently from other employees of his ethnic background because of his skin color … .

… [T]riable issues of fact exist as to whether defendant was liable for the comments of its workers, and whether defendant took “immediate and appropriate corrective action” to prevent the conduct … . Pichardo v Carmine’s Broadway Feast Inc, 2021 NY Slip Op 06565, First Dept 11-23-21

 

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THE OUT-OF-POSSESSION LANDLORD IN THIS SLIP AND FALL CASE DEMONSTRATED (1) THE LEASE DID NOT REQUIRE IT TO MAINTAIN A DRAIN WHICH PERIODICALLY BECAME CLOGGED CAUSING GARBAGE TO FLOAT TO THE SIDEWALK, AND (2) IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE PRESENCE OF THE GARBAGE ON THE SIDEWALK WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the out-of-possession landlord, SMHS, was not responsible for the fish skin on the sidewalk which allegedly caused plaintiff to slip and fall. The tenant, Lobster, a wholesale seafood company, had contracted with defendant Sanitation to remove garbage, including fish parts, from the tenant’s premises. There was a question of fact whether Sanitation was liable under a contract-based Espinal theory for launching an instrument of harm. But SMHS demonstrated the lease did not require SMHS to maintain the sidewalk or the drains which at times became clogged with garbage and that it did not have actual or constructive knowledge of the dangerous condition:

SMHS, an out-of-possession landlord, was not contractually obligated to maintain the premises … .Although its lease with Lobster did not demise to Lobster “the pipes, ducts, conduits, wires, fixtures and equipment, the structural elements which serve the Demised Premises,” SMHS and Lobster’s course of conduct establishes that Lobster was responsible for maintaining and repairing the trench drain … . Moreover, although the lease afforded SMHS a contractual right of reentry to make needed repairs, liability would not be predicated on “‘a significant structural or design defect that is contrary to a specific statutory provision'” … .

Nor can SMHS be held liable for plaintiff’s injuries under Administrative Code of City of NY § 7-210, which imposes a nondelegable duty on land owners to maintain their sidewalks in a reasonably safe condition … . SMHS established … that it neither created the hazardous condition nor had actual notice of it or constructive notice of its existence for a sufficient length of time to discover and remedy it … . Arias v Sanitation Salvage Corp., 2021 NY Slip Op 06534, First Dept 11-23-21

 

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THE 1ST DEPARTMENT, OVERRULING PRECEDENT AND JOINING THE OTHER DEPARTMENTS, DETERMINED INDIVIDUAL MUNICIPAL EMPLOYEES NEED NOT BE NAMED IN A NOTICE OF CLAIM (FIRST DEPT).

The First Department, reversing Supreme Court and overruling precedent, in a full-fledged opinion by Justice Scarpulla, determined municipal employees need not be named in a notice of claim. Plaintiff brought negligence, false arrest and false imprisonment causes of action against NYC alleging inhumane treatment by officers at Rikers Island:

The City moved to dismiss plaintiff’s complaint against the NYPD defendants, arguing that plaintiff failed to satisfy General Municipal Law § 50-e because he did not serve a notice of claim that named the NYPD defendants or John/Jane Doe placeholders … . * * *

Upon additional review of the reasoning of our own precedents, the reasoning of … relevant decisions of our sister departments, and reexamination of General Municipal Law § 50-e (2), we now join our sister departments in holding that § 50-e does not mandate the naming of individual municipal employees in a notice of claim. …

… [I]t is well settled that a notice of claim is sufficient so long as it includes enough information to enable the municipal defendant to investigate a plaintiff’s allegations, and “[n]othing more may be required” … . Providing the municipal defendant with the statutorily required elements of the nature of the claim, the time, place and manner in which the claim arose, and the alleged injury, without additionally naming the individual municipal employees involved, does not prevent the municipal defendant from adequately investigating the claim. Armed with the statutorily required information, the municipal defendant is in at least as good a position as the plaintiff to identify and interview the individual municipal employees involved in the claim. Wiggins v City of New York, 2021 NY Slip Op 06335, First Dept 11-16-21

 

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THE STATE PROPERLY APPROVED THE CONSTRUCTION OF ELECTICITY-GENERATING WIND TURBINES IN WESTERN NEW YORK (FOURTH DEPT).

The Fourth Department, affirming the approval of the construction of wind turbines for generating electricity by the NYS Board on Electric Generation Siting and the Environment (Board), determined: (1) the correct local wind-turbine law for the Town of Freedom was considered by the Board; (2) the Board correctly refused to consider a local wind-turbine law for the Town of Farmersville enacted after the evidentiary phase of the project was complete; (3) the Board properly considered the climate-change effects of the project and the effects on wild life and the land; and (4) the coalition contesting the Board ruling did not have standing to represent the First Amendment rights of the Amish community:

… [T]he Board must determine … whether a proposed electric generating facility “is a beneficial addition to or substitution for the electric generation capacity of the state” and whether “the adverse environmental effects of the construction and operation of the facility will be minimized or avoided to the maximum extent practicable” (Public Service Law § 168 [3] [a], [c]), and the Board must consider … “the impact on community character” and any additional “social, economic, visual or other aesthetic, environmental and other conditions” deemed pertinent by the Board … . “[T]he Board was created to provide for an expeditious review process and ‘to balance, in a single proceeding, the people’s need for electricity and their environmental concerns’ ” … . Furthermore, it is settled that “[t]his [C]ourt’s scope of review is limited to whether the decision and opinion of the [B]oard, inter alia, are . . . supported by substantial evidence in the record and matters of judicial notice properly considered and applied in the opinion . . . , are made in accordance with proper procedure . . . and are not arbitrary, capricious or an abuse of discretion” … . “The task of weighing conflicting evidence . . . is properly left to the . . . Board” … . Matter of Coalition of Concerned Citizens v New York State Bd. On Elec. Generation Siting & The Envt. & Alle-Catt Wind Energy, LLC, 2021 NY Slip Op 06221, Fourth Dept 11-12-21

 

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CLAIMANT, A MEMBER OF THE CITY BOARD OF ASSESSMENT AND REVIEW (BAR) HIRED TO REVIEW THE FAIRNESS OF PROPERTY TAX ASSESSMENTS, WAS NOT AN EMPLOYEE OF THE CITY AND THEREFORE WAS NOT ELIBIBLE FOR UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant, a City Board of Assessment and Review (BAR) member, was not an employee of the city and therefore was not entitled to unemployment insurance benefits. BAR members determine the fairness of property tax assessments:

… [C]laimant acknowledged … that neither the City Assessor nor any other City entity has control over BAR’s review and determination of grievances or the means by which such determinations are reached (see RPTL 523, 525, 526). Rather, the City Assessor merely provides BAR with the necessary property information, and once BAR reaches its determination, the role of the City Assessor is limited to adjusting the tentative assessment roll — as necessary — before the assessment roll is finalized (see RPTL 526 [5]). Notably, although the City Assessor could return a determination to BAR to correct “technical” errors, the City Assessor could not alter or modify the determination reached by BAR (see RPTL 526 [5]). Finally, the record reflects that the City Assessor could neither sanction nor terminate a member of BAR.

Based upon the foregoing, the Board’s finding of an employment relationship is not supported by substantial evidence. Matter of McLaughlin (City of Albany–Commissioner of Labor), 2021 NY Slip Op 06119, Third Dept 11-10-21

 

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