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SUPREME COURT PROPERLY REJECTED THE LANDLORD’S CALCULATION OF RENT OVERCHARGES FOR RENT-REGULATED APARTMENTS REMOVED FROM RENT STABILIZATION WHILE THE BUILDING WAS RECEIVING J-51 TAX BENEFITS (FIRST DEPT).

The First Department, over a dissent, determined Supreme Court properly refused to consider defendant landlord’s (Whitehouse’s) calculation of rent overcharges and ordered calculation by a referee. The landlord had removed rent-regulated apartments from rent stabilization while the building received J-51 tax benefits:

We find that the motion court correctly determined that plaintiffs’ legal regulated rent should be calculated according to the default formula set forth in RSC (9 NYCRR) § 2522.6(b). Although defendants may have been following the law in deregulating apartments during the period before Roberts [13 NY3d 270] was decided (see Regina, 35 NY3d at 356), their 2012 retroactive registration of the improperly deregulated apartments was an attempt to avoid the court’s adjudication of the issues and to impose their own rent calculations rather than face a determination of the legal regulated rent within the lookback period. Casey v Whitehouse Estates, Inc., 2021 NY Slip Op 04646, First Dept 8-5-21

 

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THE CITY ORDERED PLAINTIFF TO REPAIR A WATER LEAK ON PLAINTIFF’S PROPERTY WHICH THE CITY CLAIMED CAUSED A SINK HOLE IN THE ABUTTING ROAD; PLAINTIFF PAID FOR EXCAVATING THE AREA AND FIXING THE ROAD; PLAINTIFF SUED THE CITY ALLEGING THERE WAS NO WATER LEAK AND THE CITY NEGLIGENTLY ORDERED HER TO REPAIR THE ROAD; THE NEGLIGENCE CAUSE OF ACTION WAS PROPERLY DISMISSED (NO SPECIAL RELATIONSHIP WITH PLAINTIFF), BUT THE UNJUST ENRICHMENT CAUSE OF ACTION BASED ON PLAINTFF’S PAYING FOR THE REPAIR OF THE PUBLIC ROAD SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action against the city was properly dismissed, but the unjust enrichment cause of action should not have been dismissed. A sink hole developed in front of plaintiff’s proper. The city concluded there was a leak in the water connection to plaintiff’s property and issued a violation requiring repair. Plaintiff had the area excavated and repaired the sink hole but allegedly discovered no leak. Plaintiff sued the city for the related expenses. The negligence cause of action did not fly because the city was exercising a governmental function and there was no special relationship between the city and plaintiff. However the unjust enrichment cause of action should not have been dismissed:

An unjust enrichment claim is rooted in the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another” … . “To adequately plead such a cause of action, a plaintiff must allege that ‘(1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered'” … .

… [W]e find [the complaint] sufficiently alleged that the City was unjustly enriched, at the plaintiff’s expense, by the plaintiff’s excavation and repair of the public road where the sinkhole was located, and that it would be against equity and good conscience to permit the City to retain what is sought to be recovered—i.e., the repaired road—without paying for those repairs … . The City had a duty to keep its public road in a reasonably safe condition … , and it could be unjustly enriched by being spared the expense of repairing the sinkhole in the road … . Moreover, the complaint alleges that the plaintiff only incurred fees in repairing the road because the City’s agent negligently informed her that she had to excavate the road to fix an alleged leak. This alleged benefit conferred on the City through its allegedly tortious conduct sufficiently pleads that it is against equity and good conscience to permit the defendant to retain the benefit … . Trenholm-Owens v City of Yonkers, 2021 NY Slip Op 04627, Second Dept 8-4-21

 

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THERE ARE QUESTIONS OF FACT ABOUT WHETHER THE ROAD LEADING TO PETITIONER’S PROPERTY WAS PROPERLY CERTIFIED “ABANDONED” SUCH THAT THE MUNICIPALITY IS NOT RESPONSIBLE FOR ITS MAINTENANCE; AND PETITIONER STATED AN EQUAL-PROTECTION CLAIM UNDER 42 USC 1983 (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined there were questions of fact whether the road (Van Slyke Road) leading to petitioner’s property should have been certified “abandoned” such that the town did not have to maintain it. The two dissenters argued petitioner did not state an equal-protection claim alleging selective enforcement under 42 USC 1983:

Petitioners assert that there are many other roads in the Town that have no outlet — with no or few residences situated on them — that are maintained by the Town. Specifically, petitioners point to Snell Road and Hunt Road as being roughly equivalent to Van Slyke Road. Like Van Slyke Road, these roads are dead ends, are comprised of compressed dirt and gravel, and have only one residence. Unlike Van Slyke Road, the Town maintains these roads. … [V]iewing these allegations liberally, petitioners have stated an equal protection claim under 42 USC § 1983,  * * *

… [W]e find that triable issues of fact exist as to the use and condition of Van Slyke Road such that neither party is entitled to summary judgment on the abandonment claim … . Matter of Fernandez v Town of Benson, 2021 NY Slip Op 04584, Third Dept 7-29-21

 

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PLAINTIFF’S CHILD ALLEGEDLY WAS INJURED DURING SCHOOL RECESS; PLAINTIFF’S FAILURE TO PRODUCE THE CHILD FOR THE GENERAL MUNICIPAL LAW 50-H HEARING REQUIRED DISMISSAL OF THE COMPLAINT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the failure to produce the child (who allegedly was injured at school recess) for the General Municipal Law 50-h hearing required dismissal of the complaint:

“As General Municipal Law § 50-h (5) makes clear on its face, compliance with a municipality’s demand for a section 50-h examination is a condition precedent to commencing an action against that municipality” … . “A claimant’s failure to comply with such a demand generally warrants dismissal of the action”… . “Requiring claimants to comply with section 50-h before commencing an action augments the statute’s purpose, which ‘is to afford the [municipality] an opportunity to early investigate the circumstances surrounding the accident and to explore the merits of the claim, while information is readily available, with a view towards settlement’ ” … . ” ‘The failure to submit to . . . an examination [pursuant to section 50-h], however, may be excused in exceptional circumstances, such as extreme physical or psychological incapacity’ ” … .

Here, “[b]y refusing to produce for an examination under General Municipal Law § 50-h the minor child on whose behalf they are suing, plaintiffs failed to comply with a condition precedent to commencing the action . . . Nor did they demonstrate exceptional circumstances so as to excuse their noncompliance”  … . Jeffrey T.C. v Grand Is. Cent. Sch. Dist., 2021 NY Slip Op 04427, Fourth Dept 7-16-21

 

PETITION SEEKING A SUMMARY INQUIRY PURSUANT TO THE NYC CHARTER INTO THE CIRCUMSTANCES SURROUNDING ERIC GARNER’S ARREST AND DEATH PROPERLY GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined Supreme Court properly granted the petition seeking seeking a “summary inquiry pursuant to NYC Charter section 1109” into the circumstances surrounding the arrest and death of Eric Garner. The opinion is too detailed and comprehensive to fairly summarize here:

This appeal from the grant of a petition for summary inquiry pursuant to New York City Charter § 1109 has its genesis in the fatal arrest of Eric Garner and the subsequent investigations and actions that this tragedy prompted. We find that this is the rare case in which allegations of significant violations of duty, coupled with a serious lack of substantial investigation and public explanation, warrant a summary inquiry to bring transparency to a matter of profound public importance: the death of an unarmed civilian during the course of an arrest. * * *

… Petitioners seek an order convening a summary inquiry into “violations and neglect of duties” by respondents in seven areas:

(1) the stop and arrest of Garner and the force used by officers on him;

(2) the failure, after Garner’s death, to train NYPD officers adequately as to appropriate guidelines for the use of force and the prohibition on the use of chokeholds;

(3) filing false official NYPD documents concerning the arrest and making false statements in connection with NYPD’s internal investigation of Garner’s death;

(4) unlawfully leaking Garner’s alleged arrest and medical histories;

(5) incomplete and inaccurate statements to the media by the City concerning Garner’s arrest;

(6) the medical care provided to Garner; and

(7) the City’s investigation and adjudication of, and imposition of discipline for the foregoing, including false statements by NYPD officers concerning the arrest. Matter of Carr v De Blasio, 2021 NY Slip Op 04412, First Dept 7-15-21

 

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DEFENDANT PROPERTY OWNERS DID NOT DEMONSTRATE, AS A MATTER OF LAW, THE DECORATIVE FENCE IN THE GRASSY AREA BETWEEN THE CURB AND THE SIDEWALK WAS OPEN AND OBVIOUS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property-owner was not entitled to summary judgment in this slip and fall case. The plaintiff allegedly tripped over a decorative fence located in the grassy area between the curb and the sidewalk abutting defendants’ home. The defendants argued the fence was open and obvious:

“The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … .

Here, contrary to the Supreme Court’s determination, the homeowner defendants failed to establish, prima facie, that the decorative fence was open and obvious and not inherently dangerous given the circumstances at the time of the accident, including the lighting conditions and color of the fence … . Rosenman v Siwiec, 2021 NY Slip Op 04248, Second Dept 7-7-21

 

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THE CONDEMNATION OF PROPERTY WAS NOT SUPPORTED BY A DEMONSTRATION OF URBAN BLIGHT OR ANY OTHER PUBLIC PURPOSE; THE SEQRA NEGATIVE DECLARATION WAS NOT SUPPORTED (SECOND DEPT).

The Second Department, annulling the determination of the City of White Plains Urban Renewal Agency, held that the agency did not demonstrate the condemnation of the petitioners’ proper served a public purpose. The condemnation was founded on a 25-year-old study which found the area was affected by “urban blight.” The court noted that the State Environmental Quality Review Act (SEQRA) negative declaration by the agency did not identify the areas of environmental concern and the agency did not take a hard look at them:

… [T]he remediation of substandard or insanitary conditions (i.e., urban blight) is a proper basis for the exercise of the power of eminent domain … . Here, however, the agency relies only on conclusory assertions of blight based upon a 25-year-old urban renewal plan which itself lacks detail or documentation. …

Where a condemning authority does not demonstrate that property is substandard for the purpose of urban renewal, the authority must identify some public purpose other than the purported remediation of blight … . While a condemning authority may select virtually any project which “contributes to the health, safety, general welfare, convenience, or prosperity of the community” … , this broad discretion does not relieve the authority from selecting a particular project and, where demanded by the property owner, submitting that project to judicial scrutiny. Matter of Gabe Realty Corp. v City of White Plains Urban Renewal Agency, 2021 NY Slip Op 04134, Second Dept 6-30-21

 

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PETITIONER’S INCAPACITATING INJURIES EXCUSED THE DELAY IN FILING A NOTICE OF CLAIM; ALTHOUGH THE MUNICIPALITY DID NOT HAVE TIMELY NOTICE OF THE POTENTIAL LAWSUIT, IT SUFFERED NO PREJUDICE FROM THE DELAY (SECOND DEPT).

The Second Department determined the petitioner’s catastrophic injuries constituted a reasonable excuse for the delay in filing a notice of claim and, although the municipality did not have timely notice of the potential lawsuit, the municipality was not prejudiced by the delay:

As a result of the accident, the petitioner allegedly sustained a depressed skull fracture and a subdural hematoma with midline shift, and underwent an emergency craniotomy. The petitioner allegedly has been continuously hospitalized and confined to a bed and a wheelchair, cannot speak, and is fed through a feeding tube.

Due to a mistaken belief as to which municipality owned the location of the accident, the petitioner’s attorneys initially commenced a proceeding against the County of Nassau, the Village of Oyster Bay Cove, and the Town. However, in April 2019, the petitioner’s attorneys allegedly learned for the first time that the accident location was in Laurel Hollow. …

The petitioner’s incapacitating injuries constituted a reasonable excuse for the delay in serving Laurel Hollow with a notice of claim … . Although a police aided case report … did not provide Laurel Hollow with actual knowledge of the essential facts constituting the claim, the petitioner established that Laurel Hollow would not be prejudiced by the delay. Of note, the roller that the petitioner was operating at the time of the accident has been continuously preserved by the petitioner’s employer pursuant to a court order. Matter of Davis v Incorporated Vil. of Laurel Hollow, 2021 NY Slip Op 04133, Second Dept 6-30-21

 

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ALTHOUGH AN ABUTTING PROPERTY OWNER CAN BE LIABLE FOR A DANGEROUS CONDITION IN THE GRASSY STRIP BETWEEN THE SIDEWALK AND THE CURB, HERE THE PROPERTY OWNER DEMONSTRATED HE DID NOT CREATE THE CONDITION; IN ADDITION, THE VILLAGE CODE DID NOT IMPOSE TORT LIABILITY ON PROPERTY OWNERS, AN ISSUE PROPERLY CONSIDERED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property-owner’s motion for summary judgment in this sidewalk slip and fall case should have been granted. Although, pursuant to the Vehicle and Traffic Law, defendant can be responsible for a dangerous condition in the grassy strip between the sidewalk and a curb, here defendant demonstrated he did not create the condition and the village code did not impose tort liability on abutting property owners. Although the “village code” issue was not raised below, it was a purely legal issue that can be considered on appeal:

The grass strip situated between a sidewalk and a roadway is part of the sidewalk (see Vehicle and Traffic Law § 144; Code of the Village of Westbury [hereinafter Village Code] § 215-2 … ). “‘An abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk only when the owner either created the condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner and expressly makes the owner liable for injuries caused by a breach of that duty'” … .

Here, the defendant established his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him by demonstrating that he did not create the alleged dangerous condition or cause that condition through a special use of the sidewalk … . In addition, while Village Code § 215-12 imposes a duty on owners and occupants of abutting land to keep sidewalks free of obstructions, the Village Code does not specifically impose tort liability for breach of that duty … . Although the defendant did not make an argument based on the provisions of the Village Code in support of his motion before the Supreme Court, his argument in this regard is reviewable on appeal because it is a purely legal argument that appears on the face of the record and could not have been avoided had it been raised at the proper juncture … . Lamorte v Iadevaia, 2021 NY Slip Op 04126, Second Dept 6-30-21

 

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AS LONG AS BOTH THE CERTIFIED AND FIRST-CLASS-MAIL LETTERS NOTIFYING A MORTGAGEE OF A TAX FORECLOSURE SALE ARE NOT RETURNED, THE MORTGAGEE IS DEEMED TO HAVE BEEN PROPERLY SERVED PURSUANT TO REAL PROPERTY TAX LAW 1125 (THIRD DEPT).

The Third Department, over a dissent, determined that plaintiff property owner, pursuant to Real Property Tax Law (RPTL) 1125, was properly notified of the tax foreclosure proceedings, despite plaintiff’s allegation that the certified letter was delivered to a post office box, not the street address. RPTL 1125 deems service accomplished if the letters are not returned:

Defendants were required to send the notice of the tax foreclosure proceeding to plaintiff “by certified mail and ordinary first class mail” (RPTL 1125 [1] [b] [i] … ). The record contains documentary evidence demonstrating that the petition and notice of foreclosure were sent via certified mail and first class mail to plaintiff at “4153 Broadway” in Kansas City, Missouri — the address for plaintiff as listed on the mortgage … .The record also discloses that neither of these mailings was returned. Accordingly, defendants satisfied their burden of demonstrating that they complied with RPTL 1125.

In opposition thereto, plaintiff submitted, among other things, the tracking information sheet for the certified mailing sent by the County. This sheet indicated that the certified mailing was delivered to an unspecified post office box, as opposed to 4153 Broadway, in Kansas City, Missouri. To that end, plaintiff asserts that a material issue of fact exists as to whether it received notice of the tax foreclosure proceeding. The petition and notice of foreclosure sent to plaintiff, however, “shall be deemed received unless both the certified mailing and the ordinary first class mailing are returned by the United States [P]ostal [S]ervice within [45] days after being mailed” (RPTL 1125 [1] [b] [i] …). James B. Nutter & Co. v County of Saratoga, 2021 NY Slip Op 04074, Third Dept 6-24-21

 

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