You are here: / Municipal Law
, ,

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

 

, ,

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

 

, , , , ,

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

 

, ,

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

 

, ,

THE POLICE OFFICERS’ DECIDING NOT TO ARREST PLAINTIFF’S DECEDENT’S SON AFTER AN ALTERCATION BETWEEN HER AND HER SON WAS AN EXERCISE OF DISCRETION PROTECTED BY GOVERNMENTAL IMMUNITY; THEREFORE THE CITY WAS NOT LIABLE FOR THE SUBSEQUENT ATTACK BY HER SON RESULTING IN THE DEATH OF PLAINTIFF’S DECEDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this third-party assault case, determined the city could not be held liable for the injury and death of plaintiff’s decedent at the hands of her son. The police had been called to plaintiff’s decedent’s home because of an altercation between her and her son, Matthew. The police did not arrest her son. The next day her son attacked her with a baseball bat and she died from her injuries. The Second Department held that the decision not to arrest the son was an exercise of discretion which is protected by the doctrine of governmental immunity:

The 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 … . The immunity afforded a municipality presupposes an exercise of discretion in compliance with its own procedures … . The basis for the value judgment supporting immunity and denying individual recovery for injury becomes irrelevant where the municipality violates its own internal rules and policies and exercises no judgment or discretion … . Immunity is not available unless the municipality establishes that the action taken actually resulted from discretionary decision-making, meaning the exercise of reasoned judgment which could typically produce different acceptable results … .

Here, the defendants established … that the City was entitled to judgment as a matter of law … by its submissions, which demonstrated that the police officers’ actions were discretionary, and they did not fail to follow the police department’s rules and policies in deciding not to arrest Matthew … . The evidence demonstrated that the officers determined that Matthew had committed a violation during the altercation with his mother. Since the officers determined that no crime had been committed, pursuant to CPL 140.10(4)(c) and the patrol guide mandates, the officers were not compelled to arrest Matthew. The evidence further demonstrated that the officers’ decision involved reasoned judgment and an exercise of discretion in compliance with departmental procedures. Devlin v City of New York, 2021 NY Slip Op 02275, Second Dept 4-14-21

 

, ,

REJECTING THE 2ND DEPARTMENT’S CRITICISM OF THE 1ST DEPARTMENT’S THIRD-PARTY-ASSAULT JURISPRUDENCE, THE 1ST DEPARTMENT HELD THE BROKEN DOOR THROUGH WHICH THE ASSAILANTS GAINED ACCESS TO THE BUILDING WHERE PLAINTIFF’S DECEDENT WAS SHOT AND KILLED WAS NOT A PROXIMATE CAUSE OF THE SHOOTING BECAUSE THE ASSAILANTS WOULD HAVE FOUND A WAY TO ENTER THE BUILDING EVEN IF THE DOOR LOCK WERE WORKING (FIRST DEPT).

The First Department determined the landlord, New York City Housing Authority (NYCHA), was not liable for the shooting death of plaintiff’s decedent, Murphy, despite conclusive video evidence the locking mechanism on the door the assailants used to enter plaintiff’s decedent’s building was broken. Disagreeing with the Second Department’s characterization of the First Department’s jurisprudence in similar third-party assault cases, the First Department held that the assailants were intent on shooting plaintiff’s decedent and would have gained entrance to the building even if the locking mechanism worked. Therefore the assailants’ actions constituted the sole proximate cause of plaintiff’s decedent’s death:

We disagree with the [Second Department’s] implication that under this Court’s jurisprudence the fact that a victim was targeted obviates the need for any inquiry into the security measures in place at the subject premises. Indeed, we are aware of no case in the First Department that suggests that a landowner would avoid liability even if minimal precautions would have actually prevented a determined assailant from gaining access. In reality, however, that is hardly ever the case. In Buckeridge v Broadie (5 AD3d 298, 300), … the assailants were “sophisticated” and disguised themselves to gain entry. In Cerda v 2962 Decatur Ave. Owners Corp. (306 AD2d 169, 170 [1st Dept 2003]) … the plaintiff was assaulted by a “team of assassins.” … [C]ases confirm that this Court has not abandoned the notion that more than the simple fact that a victim was targeted is necessary to shield a property owner from liability. … [T]he cases confirm that, given the minimal steps a landowner is required to take to secure premises, it has no duty to outwit or outthink those who are determined to overcome those steps.

The record establishes that Murphy’s killers were intent on gaining access to the building. … [C]onsidering that at least one other person, by all appearances oblivious to the brouhaha … , entered the building at the same time, it does not take a leap of the imagination to surmise that [the assailants] would have gained access to the building by following another person in or forcing such a person to let them in. This negates the unlocked door as a proximate cause of the harm that befell Murphy, and makes her assailants’ murderous intent the only proximate cause. Estate of Murphy v New York City Hous. Auth., 2021 NY Slip Op 02246, First Dept 4-13-21

 

, ,

AFTER THE CITY MOVED FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE ON THE GROUND IT DID NOT HAVE WRITTEN NOTICE OF THE ICY CONDITION, THE PLAINTIFFS, YEARS AFTER THE STATUTE OF LIMITATIONS HAD EXPIRED, MOVED FOR LEAVE TO AMEND THE NOTICE OF CLAIM TO ALLEGE THE CITY CREATED THE DANGEROUS CONDITION; THE PLAINTIFFS SHOULD NOT HAVE BEEN ALLOWED TO AMEND THE NOTICE OF CLAIM AND THE CITY SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs in this slip and fall case should not have been allowed to amend the notice of claim to add the allegation that the city created the icy condition in the parking garage. The city had moved for summary judgment because it did not have written notice of the condition. The plaintiffs then moved for leave to amend the notice of claim, years after the expiration of the statute of limitations. The city was entitled to summary judgment:

“‘A plaintiff seeking to recover in tort against a municipality must serve a notice of claim to enable authorities to investigate, collect evidence and evaluate the merits of the claim'” … . “‘A notice of claim must set forth, inter alia, the nature of the claim, and the time, place, and manner in which the claim arose'” … . “Under General Municipal Law § 50-e(6), ‘[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, contrary to the court’s determination, the proposed amendment to the notice of claim was not to correct a technical mistake, defect, or omission within the meaning of General Municipal Law § 50-e(6), but rather, improperly sought “to assert a new theory of affirmative negligence several years after the . . . applicable limitations period” … . Congero v City of Glen Cove, 2021 NY Slip Op 02131, Second Dept 4-7-21

 

, ,

WARREN COUNTY DID NOT HAVE “PARTICULAR EFFECT” JURISDICTION OVER CRIMINAL OFFENSES ALLEGED TO HAVE BEEN COMMITTED IN SARATOGA COUNTY (THIRD DEPT).

The Third Department determined the Article 78 prohibition petition was the appropriate vehicle for raising the issue whether Warren County had jurisdiction over offenses alleged to have been committed in Saratoga County. The Third Department held the charges could not be brought in Warren County under the so-called “particular effect” rationale (i.e., the argument that the offenses had a “particular effect” on Warren County). The petitioner, who resided in Warren County, was charged with grand larceny and other offenses alleged to have been committed when petitioner was treasurer of Lake George EMS involving bank accounts in Saratoga County:

Respondent failed to demonstrate that the evidence before the grand jury established that Warren County has particular effect jurisdiction over the instant crimes. Respondent submitted his paraphrased testimony of one witness, whose familiarity with Lake George EMS and/or source of information was not disclosed. According to respondent, the witness testified that petitioner stole money from Lake George EMS at a time when he knew the organization was having difficulty meeting payroll. Based on this testimony, respondent argued that petitioner’s conduct “was likely to create a situation where emergency medical services would be restricted or discontinued by the Lake George [EMS] thus having a materially harmful impact upon the community welfare.” In our view, such testimony fails to demonstrate a concrete and identifiable injury to the Warren County community. Matter of Gentner v Hall, 2021 NY Slip Op 02028, Third Dept 4-1-21

 

, ,

THE COURT LACKED AUTHORITY TO DEEM A NOTICE OF CLAIM TIMELY FILED MORE THAN ONE YEAR AND 90 DAYS AFTER THE CAUSE OF ACTION (SLIP AND FALL) ACCRUED, EVEN THOUGH THE SUMMONS AND COMPLAINT WAS SERVED WITHIN THAT TIME PERIOD; A NOTICE OF CLAIM FILED MORE THAN 90 DAYS AFTER THE CAUSE OF ACTION ACCRUES WITHOUT LEAVE OF COURT IS A NULLITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the notice of claim served more than 90 after the slip and fall without leave of court was a nullity. The court further determined that the request for an order deeming the notice of claim timely served made more than one year and 90 days after the slip and fall could not be authorized by the court, even where the summons and complaint was served within that time period:

It is well settled that an “application for the extension [of time within which to serve a notice of claim] may be made before or after the commencement of the action but not more than one year and 90 days after the cause of action accrued, unless the statute has been tolled” .. . Where that time expires before the application for an extension is made, “the court lack[s] the power to authorize late filing of the notice [of claim]” … .

Here, we conclude that “[p]laintiff’s service of the summons and complaint within the limitations period does not excuse the failure to serve a notice of claim within that period,” and we further conclude that “plaintiff’s earlier service of a notice of claim is a nullity inasmuch as the notice of claim was served more than 90 days after the accident but before leave to serve a late notice of claim was granted” … . Thus, because plaintiff’s cross motion seeking an order deeming her notice of claim to be timely filed “was made after the expiration of the maximum period permitted” for seeking such relief, i.e., one year and 90 days, Supreme Court should have denied plaintiff’s cross motion, granted defendant’s motion, and dismissed the complaint … . Bennett v City of Buffalo Parks & Recreation, 2021 NY Slip Op 01920, Fourth Dept 3-26-21

 

, , , , ,

FUNDS FOR PERSONAL CARE SERVICES ARE MEDICAID FUNDS SUBJECT TO THE AUDIT AND RECOUPMENT AUTHORITY OF THE CITY OF NEW YORK HUMAN RESOURCES ADMINISTRATION; APPELLATE DIVISION REVERSED (CT APP)..

The Court of Appeals, reversing the Appellate Division, determined funds paid for personal care were Medicaid funds which were subject to the audit and recoupment authority of the City of New York Human Resources Administration (HRA). The facts are explained in the Appellate Division decision:

For the reasons stated in the dissenting opinion below (Matter of People Care Inc. v City of New York, 175 AD3d 134, 147-152 [1st Dept 2020] [Richter, J.P., dissenting]), we conclude that the funds for personal care services paid to petitioner People Care, Inc. under the Health Care Reform Act (Public Health Law §§ 2807-v [1] [bb] [i], [iii]) are Medicaid funds subject to the audit and recoupment authority of the City of New York Human Resources Administration (HRA) in accordance with the parties’ 2001 contract. Matter of People Care Inc. v City of N.Y. Human Resources Admin., 2021 NY Slip Op 01834, CtApp 3-25-21

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy