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THERE IS A QUESTION OF FACT WHETHER A 16-YEAR-OLD SOFTBALL PLAYER ASSUMED THE RISK OF STEPPING IN A HOLE ON THE FIELD (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether a 16-year-old softball player assumed the risk of stepping into a hole on the softball field:

Plaintiff, an experienced 16-year-old softball player was playing softball on an outdoor artificial turf field owned by defendant City of New York (the City). Plaintiff maintained that she sustained injures to her left knee when she stepped into a hole on the turf that had been placed over existing turf. The City contends that the hole was an open and obvious condition and that plaintiff assume the risk of injury. We disagree. The photographs in the record appear to depict a tear or seam in the turf that may have caused a concealed depression relative to the surrounding playing surface.

Accordingly, issues of fact exist whether the City was negligent in maintaining the field in a reasonably safe condition. Although a participant in an athletic activity is deemed to have assumed “those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation,” there remain issues of fact as to whether plaintiff’s injuries resulted from concealed or unreasonably increased risks … . A.S. v City of New York, 2021 NY Slip Op 02975, First Dept 5-11-21

 

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THE DISCIPLINARY PROCEEDINGS AGAINST A TOWN POLICE OFFICER ARE CONTROLLED BY THE TOWN LAW AND THE TOWN POLICE MANUAL, NOT THE CIVIL SERVICE LAW AND COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the disciplinary proceedings against a town police officer are controlled by the Town Law and the town police manual, not by the Civil Service Law and the collective bargaining agreement (CBA):

… [W]e agree with respondents that the disciplinary procedures set forth in the police manual are controlling, we further agree with respondents that the court erred in directing them to resolve petitioner’s disciplinary proceedings pursuant to Civil Service Law § 75 and the CBA … . To the extent that the police manual contains references to Civil Service Law § 75, it is well settled that section 75 did not repeal or modify Town Law § 155 … . Indeed, “Civil Service Law § 76 (4) states that ‘[n]othing contained in section [75] or [76] of this chapter shall be construed to repeal or modify any general, special or local’ preexisting laws” … , and Town Law § 155, which gives towns the power and authority to adopt rules regarding police discipline, was enacted prior to Civil Service Law §§ 75 and 76 … . Thus, where, as here, a town board has adopted disciplinary rules pursuant to Town Law § 155, those rules are controlling and Civil Service Law § 75 and any collective bargaining agreement are inapplicable … . Matter of Town of Tonawanda Police Club, Inc. v Town of Tonawanda, 2021 NY Slip Op 02959, Fourth Dept 5-7-21

 

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PETITIONER, WHO HAD WORKED FOR THE TOWN FOR 32 YEARS, TOOK $181 FROM PETTY CASH AND LEFT A NOTE INDICATING SHE OWED MONEY TO THE FUND; THE LARCENY AND THEFT CHARGES WERE ANNULLED; TERMINATION WAS TOO SEVERE A PUNISHMENT; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the theft and larceny charges against petitioner should be annulled and termination of petitioner’s employment with the town was too severe a penalty. Petitioner took $181 from petty cash but left a note indicating she owed money to the fund:

We agree with petitioner that the determination of guilt on charges 1 and 2, which charged her respectively with theft and larceny, is not supported by substantial evidence. A person “commits larceny when, with intent to deprive another of property or to appropriate the same to him[- or her]self or to a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law § 155.05 [1]). “Theft” is a synonym of “larceny” (Black’s Law Dictionary 1780 [11th ed 2019]). We conclude that petitioner’s actions, particularly the creation and placement of the note, are inconsistent with an intent to deprive or appropriate (see § 155.00 [3], [4] …). …

… [I]n light of petitioner’s 32 years of service to the Town, her impending retirement, and the absence of grave moral turpitude … , we conclude that the penalty of termination is ” ‘so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness’ ” … . Matter of Gray v LaFountain, 2021 NY Slip Op 02624, Fourth Dept 4-30-21

 

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A TAX FORECLOSURE PROCEEDING IS AN IN REM ACTION AGAINST THE PROPERTY, NOT THE PROPERTY OWNER; THEREFORE THE ACTION WAS NOT A NULLITY DESPITE THE DEATH OF THE OWNER (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the tax foreclosure proceeding was not a nullity and did not violate due process. The foreclosed restaurant belonged to plaintiff’s husband, who died in 2006. The treasurer of Ontario County followed all the proper procedures for notification of the tax foreclosure proceedings. Tax foreclosure is an in rem action to which there are no parties. So the argument that the action could not be brought against the deceased owner of the restaurant was rejected:

… [B]y statute, mortgagors are necessary party defendants to mortgage foreclosure actions (see RPAPL 1311 [1]). In contrast, a petition in a tax foreclosure proceeding relates only to the property and not any particular person (see RPTL 1123 [2] [a]). The distinction between in rem tax foreclosure proceedings and mortgage foreclosure actions with respect to the “parties” is critical. While an action or proceeding cannot be commenced against a dead person who, by necessity, is a named party to the action … , a tax foreclosure proceeding is not commenced against any person; it is commenced against the property itself. The owners are not necessary “parties” to the tax foreclosure proceeding; they are only “[p]arties entitled to notice” of the proceeding (RPTL 1125 [1] [a]; see RPTL 1123 [1], [2] [a]; cf. RPAPL 1131). As a result, the tax foreclosure proceeding was properly commenced even though decedent had died … , and there was no need to substitute someone for the dead owner (see CPLR 1015). Hetelekides v County of Ontario, 2021 NY Slip Op 02697, Fourth Dept 4-30-21

 

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NON-OWNER DID NOT HAVE STANDING TO MOVE TO VACATE AN ERIE COUNTY TAX FORECLOSURE SALE; THE RIGHT TO PAY THE DELINQUENT TAXES HAD BEEN EXTINGUISHED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the tax foreclosure sale of property owned by Black Rock to appellant should not have been vacated.  Respondent, Fedder, moved to vacate the sale. After County Court granted Fedder’s motion, the delinquent taxes were paid, the County issued a certificate of redemption to Black Rock, which then sold the property to Fedder:

… [T]his is not a mortgage foreclosure action, where the “equity of redemption” permits property owners “to redeem their property by tendering the full sum” owed before a valid sale is effectuated … . Here, instead, the right to pay the delinquent taxes by virtue of the equity of redemption was extinguished several months prior to Fedder’s motion by order to show cause, according to the ECTA [Erie County Tax Act], the public notice of foreclosure, and the terms of the judgment of foreclosure (see ECTA §§ 11-10.0, 11-12.0; see also RPTL art 11 … ). … [T]he purported redemption, the issuance of the certificate of redemption, and the purported sale and transfer of title from Black Rock to Fedder are nullities … . …

Fedder did not have standing to seek equitable relief in this case. Pursuant to ECTA § 7-10.0, the court could not set aside the sale to appellant “except upon a proceeding brought therefor by the owner of such real property within three months from the date of such sale.” Here, no such proceeding was brought. Instead, Fedder, a nonowner, filed a motion by order to show cause in this foreclosure action, and Black Rock, the owner, was not a party to the motion. In light of the ” ‘clear legislative intent’ ” of section 7-10.0 …, Fedder did not have standing to seek rescission of the sale.  Matter of Foreclosure of Tax Liens, 2021 NY Slip Op 02681, Fourth Dept 4-30-21

 

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THERE WAS PROBABLE CAUSE TO ARREST PLANTIFF FOR TRESPASS AFTER SHE WAS ASKED TO LEAVE THE RESTAURANT BY RESTAURANT STAFF; THEREFORE PLAINTIFF’S FALSE ARREST CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department determined plaintiff’s cause of action for false arrest should have been dismissed in this excessive-force, civil-rights-violation action against two police officers. Plaintiff got into an argument with restaurant staff and was asked to leave by the staff, who then called the police. The police broke plaintiff’s arm when attempting to handcuff her. The excessive force, civil-rights-violation causes of action properly survived defendants’ summary judgment motions. But there was probable cause to arrest plaintiff for trespass, requiring dismissal of the false arrest cause of action:

“[T]he existence of probable cause is an absolute defense to a false arrest claim” … . This is so even if probable cause exists with respect to an offense other than the one actually invoked at the time of arrest … . Here, although plaintiff lawfully entered the restaurant premises as a customer, her license to remain was revoked when she was asked to leave after she began arguing with the staff. When plaintiff refused to leave the restaurant property at the request of its staff, she committed a trespass … . Inasmuch as plaintiff committed an ongoing trespass in defendants’ presence (see CPL 140.10 [1] [a]), defendants had probable cause to arrest plaintiff for that violation … . Snow v Rochester Police Officer Christopher Schreier, 2021 NY Slip Op 02638, Fourth Dept 4-30-21

 

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THE BUILDING AND FIRE CODES DID NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST THE CITY TO CONTEST THE ANNUAL INSPECTION FEES; A NEGLIGENCE ACTION AGAINST A MUNICIPALITY BASED UPON A STATUTORY DUTY WILL NOT FLY UNLESS THE STATUTE PROVIDES A PRIVATE RIGHT OF ACTION; A PRE-ANSWER MOTION TO DISMISS A REQUEST FOR A DECLARATORY JUDGMENT MUST BE DENIED IF IT SETS FORTH A CAUSE OF ACTION, THE MERITS OF THE REQUEST CANNOT BE CONSIDERED (SECOND DEPT).

The Second Department determined the putative class action suit by two realty companies alleging the city charges annual fire and building code inspection fees but does not do the inspections was properly dismissed, with the exception of the request for a declaratory judgment. The suit alleged breach of contract, breach of fiduciary duty and negligence, and requested a declaratory judgment finding the fee violates the NYS Constitution. The Second Department held that the fire and building codes do not give rise to a private right of action. With respect to municipal liability for negligence and the request for a declaratory judgment, the court wrote:

To sustain liability against a municipality engaged in a governmental function, “the duty breached must be more than that owed the public generally” … . The Court of Appeals has recognized that a special duty can arise “when the municipality violates a statutory duty enacted for the benefit of a particular class of persons” … . “To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action” … [N]either the Uniform Code nor the Yonkers Fire Code gives rise to a private right of action. * * *

… [T]he Supreme Court should have denied that branch of the defendants’ motion which was to dismiss the sixth cause of action, which sought a declaration, inter alia, that the inspection fees were invalid as an unconstitutional tax. “‘A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable [disposition]'” … . WMC Realty Corp. v City of Yonkers, 2021 NY Slip Op 02440, Second Dept 4-21-21

 

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A VIDEO OF AN ALLEGED ASSAULT BY DEFENDANT’S EMPLOYEES WAS EITHER NEGLIGENTLY OR WILLFULLY LOST; SUPREME COURT PROPERLY RULED DEFENDANTS COULD NOT INTRODUCE ANY EVIDENCE WHICH CONTRADICTED AN AFFIDAVIT DESCRIBING WHAT THE VIDEO DEPICTED (SECOND DEPT).

The Second Department determined the sanction imposed on defendants for spoliation of evidence was appropriate. Defendants did not preserve the video of an incident in which plaintiff was allegedly assaulted by employees of the NYC Department of Homeless Services (DHS). Plaintiff’s attorney had specifically requested that the video be preserved. The day after the incident the video was reviewed by a security who described the video in an affidavit. When the video was not produced by the defendants, Supreme Court ruled the defendants could not introduce any evidence which contradicted the affidavit describing the video:

“A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” … . “A culpable state of mind for purposes of a spoliation sanction includes ordinary negligence”… . “The Supreme Court has broad discretion to determine a sanction for the spoliation of evidence”  … .

Here, contrary to the defendants’ contention, the record demonstrates that the relevant video evidence was owned and controlled by DHS, that DHS possessed an obligation to preserve the evidence at the time that it was lost or destroyed, and that DHS negligently or wilfully failed to ensure its preservation … . Furthermore, under the circumstances of this case, the sanction imposed by the Supreme Court provided “proportionate relief” to the plaintiff and was not an improvident exercise of discretion … . Oppenheimer v City of New York, 2021 NY Slip Op 02401, Second Dept 4-21-21

 

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PLAINTIFF POLICE OFFICER WAS INJURED CHANGING THE CARBON DIOXIDE CARTRIDGE FOR AN ANIMAL TRANQUILIZER GUN; THE PRODUCTS LIABILITY CAUSE OF ACTION AGAINST THE MANUFACTURER SURVIVED SUMMARY JUDGMENT; THE GENERAL MUNICIPAL LAW 205-E/LABOR LAW 27-A CAUSE OF ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence and products liability causes of action against NASCO, the manufacturer of an animal tranquilizer gun, properly survived summary judgment, but the General Municipal Law/Labor Law action against the city and the NYPD should not have been dismissed. Plaintiff, a police officer, was injured changing the carbon dioxide cartridge for the gun:

NASCO’s expert … opined in mere conclusory fashion that the tranquilizer gun was “appropriately designed.” The affidavit did not, for example, contain any explanation of the gun’s design, or any discussion of industry standards or costs. Nor did it state whether NASCO had received complaints about any of the other tranquilizer guns it had sold. The conclusory affidavit was insufficient to affirmatively demonstrate, prima facie, that the gun was reasonably safe for its intended use … .

NASCO … failed to demonstrate, prima facie, that the plaintiff’s actions were the sole proximate cause of the subject accident … . Triable issues of fact existed, among other things, as to whether the plaintiff was given specific instructions by the NYPD that he failed to follow or whether he used a tool to remove the end cap. …

NASCO, which relied primarily on an instruction sheet produced by the NYPD that the plaintiff testified was never given to him, failed to meet its burden of establishing, prime facie, that the warnings provided to the NYPD were adequate, that no warnings were necessary, or that the failure to give the aforesaid warnings was not a proximate cause of the accident … .

…The City defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing so much of the General Municipal Law § 205-e cause of action as was predicated upon Labor Law § 27-a. The City defendants failed to demonstrate, prima facie, that the tranquilizer gun, which was purchased by the NYPD in 1976, was not defective due to lack of proper maintenance, as alleged by the plaintiff … . Further “[r]ecovery under General Municipal Law § 205-e ‘does not require proof of such notice as would be necessary to a claim in common-law negligence'” … .”Rather, the plaintiff must only establish that the circumstances surrounding the violation indicate that it was a result of neglect, omission, or willful or culpable negligence on the defendant’s part” … . Morales v City of New York, 2021 NY Slip Op 02386, Second Dept 4-21-21

 

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE POLICE OFFICER WHO COLLIDED WITH HER CAR WAS ENGAGED IN AN EMERGENCY OPERATION AT THE TIME OF THE ACCIDENT; THEREFORE THE ORDINARY NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact whether defendant police officer, Breen, was in fact involved in an emergency operation at the time she collided with the car in which plaintiff was a passenger. Therefore there was a question of fact whether the ordinary negligence principles, as opposed the reckless disregard standard, applied:

“[T]he reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence” … .

Here, the defendants established, prima facie, that a negligence standard of care was inapplicable to Breen’s conduct, through the submission of evidence establishing that Breen was responding to another officer in need of assistance when she entered the intersection against a red traffic light and collided with the plaintiff’s vehicle … . In opposition, however, the plaintiff raised triable issues of fact as to whether Breen was in fact responding to the other officer’s call at the time of the accident and, therefore, whether the negligence standard should apply … . Modica v City of New York, 2021 NY Slip Op 02287, Second Dept 4-14-21

 

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