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IN A TRAFFIC ACCIDENT INVOLVING A FIRE TRUCK DRIVEN BY A VOLUNTEER FIREFIGHTER, THE FIRE DISTRICT CAN BE HELD TO A NEGLIGENCE, AS OPPOSED TO A RECKLESS DISREGARD, STANDARD PURSUANT TO GENERAL MUNICIPAL LAW 205-B (SECOND DEPT). ​

The Second Department, over a dissent, determined the defendant volunteer fire district could be held liable for a traffic accident under a negligence, as opposed to reckless disregard, standard, pursuant General Municipal Law 205-b. The dissent argued the reckless disregard standard applies because General Municipal Law 205-b does not specify a particular standard of care:

Pursuant to General Municipal Law § 205-b, “fire districts created pursuant to law shall be liable for the negligence of volunteer firefighters duly appointed to serve therein in the operation of vehicles owned by the fire district upon the public streets and highways of the fire district, provided such volunteer firefighters, at the time of any accident or injury, were acting in the discharge of their duties.” Thus, contrary to the Fire District’s contention, it was not limited to liability for conduct rising to the level of “reckless disregard” under Vehicle and Traffic Law § 1104(e), and could be held liable for the ordinary negligence of a volunteer firefighter operating the Fire District’s vehicle … . Anderson v Commack Fire Dist., 2021 NY Slip Op 03821, Second Dept 6-16-21

 

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THE CITY OF ROCHESTER LOCAL LAW WHICH PURPORTED TO TRANSFER THE POWER TO DISCIPLINE POLICE OFFICERS TO THE POLICE ACCOUNTABILITY BOARD (PAB) IS INVALID AND CANNOT BE ENFORCED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, determined the City of Rochester Local Law which transferred the power to discipline police officers from the police chief to the Police Accountability Board (PAB) is invalid and cannot be enforced:

… [t]he challenged Local Law No. 2 necessarily falls insofar as it takes police discipline out of collective bargaining because, in that respect, it conflicts with the general law mandating collective bargaining over police discipline (see Civil Service Law § 204 [2] … ). As the Court of Appeals has explained, “a local law is inconsistent [with the general law] where local laws prohibit what would be permissible under State law”… , and by creating a permanent administrative apparatus for disciplining police officers that is impervious to alteration or modification at the bargaining table, Local Law No. 2 necessarily and structurally prohibits something that … is statutorily mandated for the City of Rochester: collective bargaining of police discipline. The court therefore properly invalidated Local Law No. 2 insofar as it imbues PAB with disciplinary authority over Rochester police officers without regard to collective bargaining. Matter of Rochester Police Locust Club, Inc. v City of Rochester, 2021 NY Slip Op 03787, Fourth Dept 6-11-21

 

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PLAINTIFF’S COMPLAINT ALLEGING THE LANDLORD ENGAGED IN A FRAUDULENT SCHEME TO DEREGULATE APARMTENTS WAS PROPERLY DISMISSED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Hinds-Radix, determined plaintiff’s complaint alleging the landlord engaged in a fraudulent scheme to deregulate apartments was properly dismissed. The opinion is too complex to fairly summarize here:

… [T]he deregulation of the plaintiff’s apartment was made in good faith … . Further, the late registration of the apartment as rent-stabilized, only after notification by the DHCR [Department of Housing and Community Renewal] of a change in the law several years in the making, does not indicate that [defendant landlord] was engaged in a fraudulent scheme to deregulate the apartment.

“Fraud consists of ‘evidence [of] a representation of material fact, falsity, scienter, reliance and injury'” … . The elements of fraud must be pleaded, and each element must be set forth in detail (see CPLR 3016[b] … ). That requirement was not met in this case.

There are instances in which failure to timely register an apartment as rent stabilized could constitute evidence of fraud. Prior to 2016, and the DHCR’s blanket notification to landlords of the change in the law, there were landlords involved in litigation over failure to register apartments as rent stabilized who nevertheless persisted in that practice … ; attempted to obfuscate the regulatory status of the apartment … ; pressured and misled tenants … ; or even went so far as to engage in misrepresentations as to whether improvements were in fact made … . It is clear that the plaintiff’s apartment was in fact rent stabilized, but that fact was not evidence of fraud, and allegations of fraud based upon speculation are insufficient … . Gridley v Turnbury Vil., LLC, 2021 NY Slip Op 03577, Second Dept 6-9-21

 

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PURSUANT TO NEW YORK CITY CIVIL COURT ACT 1808, COLLATERAL ESTOPPEL OR ISSUE PRECLUSION DOES NOT APPLY TO SMALL CLAIMS ACTIONS, BUT RES JUDICATA OR CLAIM PRECLUSION DOES APPLY TO SMALL CLAIMS ACTIONS (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Stein, over an extensive dissent, interpreting New York Civil Court Act section 1808, determined a judgment in a small claims action is subject to the transactional approach to claim preclusion. Plaintiff won a small claims case seeking overtime wages. Then plaintiff brought another action in federal court seeking additional damages for the failure to pay overtime wages under federal and state law. The Second Circuit asked for clarification of the meaning of section 1808, which could be interpreted to prohibit the application of both issue preclusion and claim preclusion to small claims actions. Under the statute, collateral estoppel or issue preclusion does not apply to small claims actions, but res judicata or claim preclusion does:

We now conclude that, under NY City Civ Ct Act § 1808, small claims judgments do not have collateral estoppel or issue preclusive effect (with one exception), but such judgments may have the traditional res judicata or claim preclusive effect in a subsequent action involving a claim between the same adversaries arising out of the same transaction or series of transactions at issue in a prior small claims court action. * * *

… [T]he claim preclusion rule extends beyond attempts to relitigate identical claims. We have consistently applied a “transactional analysis approach” in determining whether an earlier judgment has claim preclusive effect, such that “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” … . * * *

Collateral estoppel, or issue preclusion, is related to, but distinct from, the doctrine of res judicata. Collateral estoppel prevents “‘a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party . . . whether or not the . . . causes of action are the same'” … . Simmons v Trans Express Inc., 2021 NY Slip Op 03484, CtApp 6-3-21

 

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THE FIRST NOTICE OF CLAIM DEMANDED ONLY AN EXTENSION OF THE CONTRACTUAL TIME-LIMIT FOR COMPLETION OF THE PLUMBING CONTRACT; THE PURPORTED AMENDED NOTICE OF CLAIM DEMANDED $2.5 MILLION IN DAMAGES; THE AMENDMENT WAS NOT TECHNICAL IN NATURE AND THEREFORE THE MOTION TO AMEND WAS PROPERLY DENIED (SECOND DEPT).

The Second Department determined plaintiff’s motion for leave to amend its notice of claim was properly denied. The original demanded only an extension of time to complete the plumbing work plaintiff was hired to do by the NYC School Construction Authority. The proposed amended notice of claim included a demand for nearly $2.5 million in damages:

Public Authorities Law § 1744(2) requires the plaintiff to serve a notice of claim upon the defendant within three months after the accrual of such claim … . Under Public Authorities Law § 1744(3), a notice of claim “must set forth in detail . . . (i) the amount of the claim; (ii) a specific and detailed description of the grounds for the claim, relating the dollar amount claimed to the event purportedly giving rise to the claim and indicating how the dollar amount is arrived at; and (iii) the date of the event allegedly underlying the claim.” Here, the original notice of claim filed by the plaintiff failed to comply with Public Authorities Law § 1744(3) … .

The Supreme Court properly denied that branch of the plaintiff’s motion which was for leave to amend the original notice of claim, inter alia, to include damages in the total principal sum of $2,455,740.63. “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” . Here, the proposed amendments to the original notice of claim were not technical in nature, and thus, are not permitted as late-filed amendments to a notice of claim … . In addition, the plaintiff failed to explain the inordinate delay in seeking leave to amend the original notice of claim. BG Natl. Plumbing & Heating, Inc. v New York City Sch. Constr. Auth., 2021 NY Slip Op 03435, Second Dept 6-2-21

 

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PURSUANT TO ECL 23-2711, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DID NOT HAVE THE AUTHORITY TO ISSUE A MINING PERMIT BECAUSE THE TOWN LAW PROHIBITED MINING (THIRD DEPT).

The Third Department, reversing Supreme Court, over an extensive dissent, determined the mining permit issued by the Department of Environmental Conservation (DEC) must be annulled pursuant to Environmental Conservation Law (ECL) 23-2711 because the local law prohibiting mining. The permit purported to allow the expansion of an existing mining operation:

ECL 23-2703 (3) provides that, in the event that an application for a permit is received from an applicant whose mine falls within an area described in the statute, the agency may not process the application if the local zoning laws prohibit same. ECL 23-2703 (3) is not vague or ambiguous; it is concise and clear. Contrary to all other permit applications received by DEC, an application received from an area protected under ECL 23-2703 (3) must be put on hold until the status of the local laws is determined … . There is no qualification on what type of permit applications must be put on hold; rather, by its certain language, the statute applies to all applications. … . …

ECL 23-2703 (3) clearly recognizes that the local laws of the municipality are determinative as to whether an application can be processed. Here, where it is unchallenged that the Town’s laws prohibit zoning [SIC mining?], DEC cannot process the application, let alone issue the permit. It cannot do by fiat what is prohibited under the law. Therefore, the act of issuing the permits here, in contravention of ECL 23-2703 (3), was arbitrary and capricious. Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, 2021 NY Slip Op 03351, Third Dept 5-27-21

 

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ONCE THE APPELLATE DIVISION DECIDED THE NYC DEPARTMENT OF BUILDINGS ACTED RATIONALLY IN APPROVING THE USE OF A BUILDING AS A HOMELESS SHELTER ITS JUDICIAL REVIEW WAS DONE; THE APPELLATE DIVISION SHOULD NOT HAVE REMITTED THE MATTER FOR A HEARING ON THE SAFETY OF THE BUILDING (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the Appellate Division did not have the authority to send the matter back for a hearing after finding the NYC Department of Buildings (DOB) acted rationally when it approved the use of a building as a homeless shelter:

The Appellate Division erred in remitting to Supreme Court for a hearing on whether the building’s use as a homeless shelter was “consistent with general safety and welfare standards.” In this CPLR article 78 proceeding, the scope of judicial review does not extend past the question of whether the challenged determinations were irrational, which is a question of law (see CPLR 7803[3] …). Upon concluding that an authorized agency has reviewed a matter applying the proper legal standard and that its determination has a rational basis, a court cannot second guess that determination by granting a hearing to find additional facts or consider evidence not before the agency when it made its determination … . Accordingly, it was improper for the Appellate Division to remit for plenary judicial proceedings to address “general safety and welfare” issues, thereby contravening the applicable standard of judicial review in this context and inviting inconsistent enforcement of the Building Code. Matter of West 58th St. Coalition, Inc. v City of New York, 2021 NY Slip Op 03346, CtApp 5-27-21

 

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PLAINTIFF’S ACTION FOR PRIVATE NUISANCE ALLEGING DEFENDANTS’ AIR CONDITIONING UNIT IS TOO LOUD SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the private nuisance cause of action should not have been dismissed. Plaintiff alleged defendants’ air conditioning unit made too much noise:

The elements of a private nuisance cause of action are: “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act” … . “[E]xcept for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed” … .

Here, the plaintiff stated a cause of action to recover damages for private nuisance by alleging that the defendants’ air conditioning and condenser units generated a noise level exceeding that permitted by the Code of the Town of Hempstead … , which interfered with the plaintiff’s use and enjoyment of his bedroom, garden, and patio, and diminished his property value … . Curry v Matranga, 2021 NY Slip Op 03304, Second Dept 5-26-21

 

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ALTHOUGH THE NOTARY STAMP WAS MISSING FROM THE SCANNED MORTGAGE IN THE NYC REGISTER, PLAINTIFF BANK DEMONSTRATED THE MORTGAGE WAS PROPERLY ACKNOWLEDGED WHEN DELIVERED TO THE OFFICE OF THE REGISTER; THEREFORE DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBORDINATE TO THE MORTGAGE (FIRST DEPT).

The First Department, over an extensive concurrence, determined defendant bank demonstrated the mortgage was properly recorded in the NYC Register and, therefore, plaintiff’s interest the property was subordinate to defendant’s mortgage:

The parties do not dispute that the mortgage, as reflected in the records of the Office of the New York City Register, did not bear a notary stamp or any indication that the mortgage was properly acknowledged as required by Real Property Law §§ 291, 298, 309-a(1), and 333(2). However, the bank proffered evidence establishing that the mortgage was properly acknowledged when submitted for recording. This evidence included the original inked mortgage containing the notary public’s information; an affidavit from the notary who affixed her notary stamp at the time; an affidavit from the title company that submitted the mortgage for recording, and an expert affidavit and report by a forensic document examiner in which he concluded that the Register’s scanner could have caused the notary stamp to disappear from the imaged mortgage. Plaintiff has failed to show by clear and convincing evidence that the acknowledgment was defective … . Thus, the bank demonstrated that the mortgage was “entitled to be recorded . . . and is considered recorded from the time of [ ] delivery [to the Office of the New York City Register]” (Real Property Law § 317).

Given that the mortgage was duly acknowledged, delivered and actually recorded, plaintiff is deemed to have constructive notice of it … . 80P2L LLC v U.S. Bank Trust, N.A., 2021 NY Slip Op 03275, First Dept 5-25-21

 

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MUNICIPAL DEFENDANTS NOT LIABLE FOR INJURY CAUSED BY BICYCLE-RIDING IN PUBLIC PARK, DESPITE REGULATIONS PROHIBITING BICYCLE-RIDING; QUESTION OF FACT WHETHER THE DEFENDANT HIRED TO CARE FOR THE CHILD WHO STRUCK INFANT PLAINTIFF WAS AN EMPLOYEE OF THE CHILD’S FATHER (RESPONDEAT SUPERIOR) OR AN INDEPENDENT CONTRACTOR; QUESTIONS OF FACT WHETHER THE DEFENDANT CARE-GIVER WAS NEGLIGENT IN SUPERVISING THE CHILD (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined: (1) the municipal defendants were not liable for injuries to infant plaintiff caused when infant plaintiff was struck by another child (defendant Tully’s son) riding a bicycle in a municipal park where bicycle-riding was prohibited; (2) there was a question of fact whether defendant Bhawanie, who was employed by defendant Tully to care for Tully’s son, was defendant Tully’s employee or an independent contractor; (3) there were questions of fact whether Bhawanie was negligent:

… “[B]icycle riding in a playground . . . constitutes neither an ultrahazardous nor a criminal activity” … . … [T]he municipal defendants are not accountable to the infant plaintiff for their alleged failure to enforce their regulations prohibiting bicycle riding in the playground, since the promulgation and enforcement of such regulations do not constitute the assumption of a special relationship with the infant plaintiff such that a special duty was owed to him … . …

… [T]he evidence demonstrated that Bhawanie had worked for Tully and his wife continuously from 2007 through 2016, Tully and his wife dictated Bhawanie’s work schedule, and Bhawanie had to receive permission from Tully and his wife before engaging in certain activities with their children. Under the circumstances, a triable issue of fact exists on the issue of whether Bhawanie was an employee of Tully, such that vicarious liability may be imposed, or whether she was an independent contractor. …

“While a person caring for entrusted children is not cast in the role of an insurer, such an individual is obliged to provide adequate supervision and may be held liable for foreseeable injuries proximately resulting from the negligent failure to do so” … . C.B. v Incorporated Vil. of Garden City, 2021 NY Slip Op 03158, Second Dept 5-19-21

 

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