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7/8 INCH HEIGHT DIFFERENTIAL BETWEEN THE FLOOR AND DOORWAY THRESHOLD WAS DEEMED TRIVIAL AS A MATTER OF LAW IN THIS SLIP AND FALL CASE; THE NYC BUILDING CODE, WHICH REQUIRES A HEIGHT DIFFERENTIAL OF NO MORE THAN 1/2 INCH, DID NOT APPLY TO THE HOME PURCHASED IN 1980 (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the 7/8 height-differential between the floor and the threshold was trivial as a matter of law in thus slip and fall case. The court noted that the NYC Building Code, which requires a height-differential of no more than 1/2 inch did not apply to the home which was purchased in 1980:

The 7/8-inch height differential between defendant’s kitchen tile floor and the door saddle is readily discernible from the photographs authenticated by plaintiff, and the alleged defect had none of the characteristics of a trap or snare … . Plaintiff’s deposition testimony established that she was not distracted and could see the door saddle before the accident. Plaintiff had repeatedly walked over the saddle in the days leading up to her accident and had noticed the raised condition of the door saddle … . Defendant was not required to provide an expert’s affidavit to make a prima facie showing that the height differential was trivial … . * * *

“Existing buildings are generally exempt from the provisions of the current [New York City Building Code] unless there is substantial renovation or change in use” … . Defendant testified that the linoleum flooring adjacent to the door saddle was changed to tile in the “late” 1990s. However, plaintiff’s professional engineer made no showing that changing the flooring constituted a substantial renovation or change in use causing the 2008, 2010, and 2022 Building Codes to apply. Mejias v Basch, 2025 NY Slip Op 06137, First Dept 11-6-25

Practice Point: Here a 7/8 inch height differential between the floor and a doorway threshold was deemed trivial as a matter of law and the slip and fall case was dismissed. The Building Code, which requires a height differential of no more than 1/2 inch, did not apply because the home was purchased before that building code provision was enacted.

 

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THE CLASS HAD STANDING TO SEEK DECLARATORY, INJUNCTIVE AND MONETARY RELIEF BASED UPON ALLEGATIONS THE COUNTY REAL PROPERTY TAX SYSTEM WAS IRRATIONAL, DISCRIMINATORY AND UNCONSTITUTIONAL RESULTING IN A SHIFT OF THE TAX BURDEN FROM THE WEALTHIER PREDOMINANTLY WHITE COMMUNITIES TO THE LOWER INCOME PREDOMINANTLY NONWHITE COMMUNITIES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Barros, determined the class of property owners in Nassau County had standing to  seek declaratory, injunctive and monetary relief stemming from the “irrational, discriminatory and unconstitutional” real property tax system:

… [T]he plaintiffs allege that the County’s tax assessment policies and procedures, i.e., its freeze on reassessments from January 2010 until January 2018 and its use of a grievance procedure which was voluntary and yielded unscientific results unrelated to property values, shifted the property tax burden from wealthier, predominantly white communities in the County to lower income, predominantly nonwhite communities. The plaintiffs allege that from 2010 through 2016, property taxes on 61% of the County’s residential and commercial properties increased by only $466, or 5%, on average, whereas the average increase for the other 39% of County properties was six times that amount: $2,748, or 35.7%. They allege that most properties in predominantly nonwhite communities comprised that 39%, which amounted to an aggregate shift in the property tax burden onto the plaintiffs and those similarly situated in a sum in excess of $1.7 billion. * * *

… [T]he allegations in the complaint, if true, … establish standing, including that the plaintiffs suffered an injury-in-fact … . The plaintiffs “allege[d] that publicly-criticized systemic inequities have resulted in [more expensive] properties increasingly shouldering less of a tax burden than properties worth far less” … and alleged that they were “being treated differently from other, similarly-situated property owners, and that no rational basis exists for this allegedly disparate treatment” … . Hall v Nassau County, 2025 NY Slip Op 05796, Second Dept 10-22-25

Practice Point: Here the allegations made by the plaintiff class demonstrated an injury-in-fact stemming from the county’s property tax system, i.e., a shift in the tax burden from the wealthier predominantly white communities to the lower income predominantly nonwhite communities. Therefore the class demonstrated standing to bring the lawsuit.

 

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THE ELEVEN YEAR ELECTION LAW (EYEL), WHICH MANDATES EVEN-YEAR COUNTY ELECTIONS, DOES NOT VIOLATE THE MUNICIPAL HOME RULE PROVISIONS OF THE NEW YORK STATE CONSTITUTION; THE CHALLENGE BY COUNTIES WITH CHARTER PROVISIONS MANDATING ODD-YEAR ELECTIONS WAS REJECTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the state had the authority to pass the Even Year Election Law (EYEL) which mandates even-year local elections. Several counties with charters setting odd-year elections challenged the EYEL as violating the home rule provisions of article IX of the State Constitution:

The Municipal Home Rule Law was enacted contingent on the passage of the current form of article IX to “provide for carrying into effect provisions of article nine of the constitution . . . and to enable local governments to adopt and amend local laws for the purpose of fully and completely exercising the powers granted to them under the terms and spirit of such article” (see Municipal Home Rule Law §§ 50, 59). As relevant here, Municipal Home Rule Law § 33 (3) (b) requires that county charters must “provide for . . . the manner of election or appointment” and “terms of office” for “agencies or officers responsible for the performance of the functions, powers and duties of the county,” while Municipal Home Rule Law § 34 (3) contains a list of topics that a county charter cannot address in a manner inconsistent with enacted state legislation. * * *

Nothing in article IX limits, expressly or by implication, the otherwise plenary authority of the legislature to mandate the timing of certain elections, as the EYEL does … . Consequently, without any such constitutional limitation, the EYEL is a proper exercise of that authority. County of Onondaga v State of New York, 2025 NY Slip Op 05737, CtApp 10-16-25

 

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PLAINTIFF ALLEGED A DEFECTIVELY MAINTAINED AND/OR INSTALLED TRAFFIC SIGNAL ALLOWED A SIGNAL HEAD IN EACH DIRECTION TO SHOW A GREEN LIGHT, THEREBY CAUSING THE INTERSECTION COLLISION; ALTHOUGH THE TOWN DEMONSTRATED A LACK OF NOTICE OF THE CONDITION OF THE TRAFFIC SIGNAL, THE PLAINTIFF RAISED QUESTIONS OF FACT ON THE “FAILURE TO MAINTAIN THE INTERSECTION IN A SAFE CONDITION” AND “CREATION OF A DANGEROUS CONDITION” CAUSES OF ACTION, AND THE NEGLIGENCE CAUSE OF ACTION WAS SUFFICIENTLY ALLEGED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court and reinstating the complaint, determined the complaint and bill of particulars sufficiently alleged negligence and questions of fact were raised about whether the county failed to properly maintain a traffic signal and created a dangerous condition. The plaintiff alleged a pipe holding the traffic signal broke allowing it to rotate 90 degrees such that at least one of the signal heads in each direction showed a green light, causing the intersection collision. The fact that the county demonstrated it did not have notice of the defective traffic signal did not affect the viability of the “failure to maintain the intersection in a safe condition” and the “creation of a dangerous condition” causes of action:

“A municipality has a duty to maintain its streets in a reasonably safe condition” … . “[T]he municipality breaches such duty if it permits a dangerous or potentially dangerous condition to exist and cause injury” … . Here, to meet its burden on that part of the motion seeking summary judgment, defendant was required to “demonstrate that it maintained the intersection in a reasonably safe condition and that it neither created the alleged defective condition nor had actual or constructive notice of same” … .

… [W]e conclude that plaintiff raised triable issues of fact by submitting the affidavit of his expert … . We also agree with plaintiff that questions of fact exist with respect to whether the doctrine of res ipsa loquitur applies here … . Duncan v Town of Greece, 2025 NY Slip Op 05588, Fourth Dept 10-10-25

Practice Point: The municipality’s lack of notice of a dangerous condition, here an allegedly defective traffic signal, does not affect the viability of causes of action alleging the failure to maintain the intersection in a safe condition and/or the municipality’s creation of the dangerous condition.​

 

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IN THIS CHILD VICTIMS ACT SUIT AGAINST THE COUNTY ALLEGING NEGLIGENT PLACEMENT IN FOSTER CARE, THE COUNTY DID NOT DEMONSTRATE IT WAS ENTITLED TO GOVERNMENTAL FUNCTION IMMUNITY OR IMMUNITY PURSUANT TO THE SOCIAL SERVICES LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the county did not have immunity in this Child Victims Act lawsuit alleging negligent foster-care placement of plaintiff. Plaintiff alleged she was sexually abused by her foster father in the late 70’s:

“The governmental function immunity defense provides immunity for the exercise of discretionary authority during the performance of a governmental function” … . “[T]he governmental function immunity defense cannot attach unless the municipal defendant establishes that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated” … .

… [T]he County failed to establish, prima facie, that the relevant acts of the County’s employees relating to the alleged negligent supervision of the plaintiff’s foster care placement were discretionary and thus entitled to immunity … . … [E]ven if the acts at issue could potentially be considered discretionary, the County failed to demonstrate that the alleged discretion was in fact exercised in relation to the conduct on which liability is predicated … .

… Contrary to the County’s contention, it “was not entitled to qualified immunity pursuant to Social Services Law § 419, as qualified immunity does not bar recovery for the negligent supervision of children in foster care” … . M.W. v Nassau County, 2025 NY Slip Op 05550, Second Dept 10-8-25

Practice Point: Use this decision as a starting point for research into how governmental function immunity and immunity under the Social Services Law apply to a county foster-care placement. Here the court determined neither type of immunity applied in this Child Victims Act lawsuit.

 

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IN RESPONSE TO PETITIONER’S FOIL REQUESTS, THE TOWN DID NOT CITE ANY EXEMPTION FOR THE IDENTIFIED RECORDS WHICH WERE NOT PRODUCED AND DID NOT CERTIFY THOSE RECORDS DID NOT EXIST; IN ADDITION THE TOWN DID NOT EXPLAIN THE REASONS FOR THE REDACTIONS IN THE PRODUCED RECORDS; ALL IN VIOLATION OF THE PUBLIC OFFICERS LAW; MATTER REMITTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court and remitting the matter, determined that the respondent town did not explain its failure to produce the determinations made in 51 of the 54 appeals identified in response to the petitioner’s FOIL request and did not explain the reasons for redactions made in the records which were provided:

… Supreme Court erred in dismissing so much of the petition/complaint as sought, in effect, to compel the production of all responsive records or, in the alternative, to certify that the respondent does not possess the requested records and that they could not be located after a diligent search. The respondent does not dispute that it failed to produce the determinations made in 51 of the 54 appeals that were identified in response to the petitioner’s request. The respondent did not claim a specific exemption to disclosure in denying the petitioner’s request for those determinations. Accordingly, the respondent was required to either produce those records or certify that it does not possess the requested records and that they could not be located after a diligent search (see Public Officers Law § 89[3][a] …).

Supreme Court also erred by determining that the respondent’s redactions were permissible to prevent unwarranted invasions of personal privacy pursuant to Public Officers Law § 87(2)(b). In an administrative appeal of an agency’s denial of access to records, the agency is required to “fully explain in writing . . . the reasons for further denial” (Public Officers Law § 89[4][a]). “[J]udicial review of an administrative determination is limited to the grounds invoked by the agency and the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” … . Here, the respondent failed to respond to the petitioner’s administrative appeal, and failed to otherwise reference Public Officers Law § 87(2)(b) as a justification for the redactions. To provide the respondent the benefit of justifications it did not advance in the first instance “contravenes Court of Appeals precedent ‘as well as the spirit and purpose of FOIL'” … . Matter of Aron Law, PLLC v Town of Hempstead, 2025 NY Slip Op 05519, Second Dept 10-8-25

Practice Point: Under FOIL (Public Officers Law) identified records must be produced unless an exemption is demonstrated to apply or the respondent certifies that the records could not be found after a diligent search. In addition, the reasons for any redactions in produced records must be explained. Here Supreme Court should not have dismissed aspects of the FOIL petition in the absence of these required responses by the town.

 

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THE COMMISSIONER’S FAILURE TO REVIEW THE HEARING OFFICER’S DETAILED DECISION BEFORE TERMINATING THE PETITIONER’S EMPLOYMENT RENDERED THE COMMISSIONER’S DETERMINATION “UNAVOIDABLY ARBITRARY” (THIRD DEPT). ​

The Third Department, reversing Supreme Court in this Article 78 proceeding, determined the respondent Panunzio, Commissioner of the City of Albany’s Department of General Services, did not review the hearing officer’s detailed decision before terminating petitioner’s employment with the city. Therefore the Commissioner’s determination was “arbitrary” and the Article 78 petition should not have been dismissed:

… [F]ollowing a disciplinary hearing held pursuant to Civil Service Law § 75 (2), a hearing officer “shall make a record of such hearing which shall, with his [or her] recommendations, be referred to such officer or body [having the power to remove the employee] for review and decision” … . The resulting administrative]determinations are entitled to a presumption of regularity … and, “in the absence of a clear revelation that the administrative body made no independent appraisal and reached no independent conclusion, its decision will not be disturbed” … . …

Panunzio did not … review the Hearing Officer’s detailed and thorough decision, as such was read into the record at the hearing and the hearing transcript was not received until after the determination terminating petitioner had already been issued. As Panunzio was unable to review the Hearing Officer’s complete report and findings, respondents had “no basis upon which to act” and their determination was thus “unavoidably . . . arbitrary” … . To be sure, a reviewing officer need not review all evidence presented before the hearing officer or defer to his or her findings … . Nevertheless, to permit respondents to issue a determination without even having the availability of the Hearing Officer’s complete report and findings would render the requirements of Civil Service Law § 75 (2) meaningless … . Matter of Alexander v City of Albany, 2025 NY Slip Op 04949, Third Dept 9-11-25

Practice Point: Hear the Commissioner terminated petitioner’s employment without first reading the detailed decision by the hearing officer, which the Commissioner is required to do by statute. The Commissioner’s determination was thereby rendered “arbitrary.” Petitioner’s Article 78 petition should not have been dismissed.

 

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THERE ARE QUESTIONS OF FACT WHETHER THE FORFEITURE OF THE VEHICLE USED FOR FOOD VENDING WITHOUT A LICENSE IS “PUNITIVE” IN NATURE AND VIOLATES THE “EXCESSIVE FINES” CLAUSES OF THE NEW YORK STATE AND UNITED STATES CONSTITUTIONS; THE FINES IMPOSED FOR THE FOOD VENDING VIOLATION WERE $2600 AND THE VALUE OF THE VEHICLE IS $40,000 (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined the forfeiture of Thomas Jones’ vehicle for food vending without a license violated the Excessive Fines clauses of both the State and Federal Constitutions. The vehicle was worth $40,000, and the fine imposed for vending without a license was $2600:

The City … commenced this proceeding in Supreme Court pursuant to Administrative Code of City of NY §§ 17-321(c) and 17-322 to seize and order forfeiture of Jones’ truck. Administrative Code § 17—321(a) permits both public health officials and the police to enforce food vending codes. Section 17-321(c)(iii) permits police or public health officials to seize a food vending vehicle being used by an unlicensed vendor and any food being offered for sale. If forfeiture proceedings are not commenced, the vendor may be charged with the “reasonable costs for removal and storage payable prior to the release of such food, vehicle or pushcart.” Section 17—322(a) provides for forfeiture of “all property seized” from unlicensed food vendors “[i]n addition to any penalties imposed” pursuant to Section 17-325. Section 17-325(a) provides that vending food without a license is a misdemeanor punishable by a fine of up to $1,000, imprisonment for up to three months, or both. Section 17-325(c) provides for additional fines for unlicensed food vendors.

The motion court denied the City’s motion for summary judgment on the grounds that there are questions of fact as to: (1) whether the forfeiture provision at issue is punitive in nature; and (2) whether the value of the property seized is so disproportional to the fines imposed and any harm to society that it violates the excessive fines clauses of the New York and United States Constitutions. We now affirm. City of New York v Jones, 2025 NY Slip Op 04842, First Dept 9-4-25

Practice Point: Consult this opinion for an in-depth discussion of when forfeiture is deemed “punitive” in nature such that forfeiture violates the Excessive Fines clauses of the State and Federal Constitutions.

 

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HERE THE ARGUMENT THAT NECESSARY PARTIES HAD NOT BEEN JOINED SHOULD NOT HAVE BEEN REJECTED; THE PROPER REMEDY IS TO SUMMON THE NECESSARY PARTIES, NOT DISMISSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the proper remedy for the failure to include a necessary party is to summon the missing party, not dismiss the action:​

The nonjoinder of necessary parties may be raised at any stage of the proceedings, by any party or by the court on its own motion, including for the first time on appeal” … . “Necessary parties are defined as ‘[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action'” … . “The rule serves judicial economy by preventing a multiplicity of suits. It also insures fairness to third parties who ought not to be prejudiced or embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard” …. “Dismissal of an action or proceeding for nonjoinder of a necessary party is only a last resort” …. Therefore, “[w]hen a necessary party has not been made a party and is ‘subject to the jurisdiction’ of the court, the proper remedy is not dismissal of the complaint or the petition, but rather for the court to direct that the necessary party be summoned” … .

Supreme Court improperly rejected the respondents’ contention that the petitioners failed to join necessary parties. The petitioners sought to annul so much of the Village Board’s resolution …  as appointed Tucci to his position [with the Village Fire Department], and the court granted that request. Since Tucci was a person “who might be”—and in fact was—”inequitably affected by a judgment” in this proceeding (CPLR 1001[a]), he was a necessary party … . Similarly, as the petitioners sought relief that could result in a change to the leadership of the Fire Department, the Board of Fire Wardens was also a necessary party … .

… [D]ismissal of this proceeding is not the appropriate remedy for nonjoinder of Tucci and the Board of Fire Wardens … . Instead, “[u]nder these circumstances, the appropriate procedure is for the Supreme Court to determine whether [those parties] can be summoned and, if joinder cannot be effectuated, to determine whether the proceeding[ ] may nevertheless proceed in [their] absence, upon consideration of the factors set forth in CPLR 1001(b)” … . Matter of Riverside Hose Co., Inc. v Village of Tarrytown Vil. Bd., 2025 NY Slip Op 04793, Second Dept 8-27-25

Practice Point: Consult this decision for a definition of “necessary parties” within the meaning of CPLR 1001(b) and an explanation of the proper procedure for dealing with the failure to join a necessary party.

 

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PLAINTIFF SLIPPED AND FELL ON SNOW FIVE HOURS AFTER THE “EXTRAORDINARY SNOWSTORM” HAD ENDED; THE STORM-IN-PROGRESS RULE APPLIED AND DEFENDANT TRANSIT AUTHORITY WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant transit authority’s motion for summary judgment in this slip and fall case should have been granted pursuant to the “storm in progress” rule. :Plaintiff slipped an fell on an uncovered staircase at a subway station. The fall happened five hours after the end of “an extraordinary snowstorm:”

Under the storm in progress rule, a property owner will not be held liable for accidents caused by accumulation of snow unless “an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” … . “[T]he question of whether a reasonable time has elapsed may be decided as a matter of law by the court, based upon the circumstances of the case” … .

Here, the defendant made a prima facie showing of its entitlement to judgment as a matter of law by submitting an affidavit of a meteorologist, with attached certified climatological data, which demonstrated that at the time of the plaintiff’s accident, less than five hours had passed since the end of an extraordinary snowstorm … . In opposition, the plaintiff failed to raise a triable issue of fact … . Harris v New York City Tr. Auth., 2025 NY Slip Op 04635, Second Dept 8-13-25

Practice Point: The storm in progress rule applies for a period of time after the precipitation stops. Here the rule was applied to a slip and fall which occurred five hours after an “extraordinary snowstorm.”

 

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