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THE NYPD OFFICER WHO EMPLOYED A PROHIBITED CHOKEHOLD ON ERIC GARNER, WHICH CONTRIBUTED TO ERIC’S DEATH, WAS PROPERLY DISMISSED FROM THE NYPD (FIRST DEPT).

The First Department determined the police officer who employed a prohibited chokehold on Eric Garner, which contributed to Eric’s death, was properly dismissed from employment by the New York Police Department (NYPD):

Substantial evidence supports respondents’ conclusion that petitioner recklessly caused injury to Eric Garner by maintaining a prohibited chokehold for 9 to 10 seconds after exigent circumstances were no longer present, thereby disregarding the risk of injury (Penal Law §§ 15.05[3]; 120.00[2] …).

We do not find the penalty “so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness” … . Conduct far less serious than petitioner’s has been found by the Court of Appeals to have a “destructive impact . . . on the confidence which it is so important for the public to have in its police officers” … . Matter of Pantaleo v O’Neill, 2021 NY Slip Op 01857, First Dept 3-25-21

 

PLAINTIFF LANDLORD, PURSUANT TO THE VILLAGE WATER DEPARTMENT’S RULES, CAN NOT BE HELD PERSONALLY LIABLE FOR THE TENANT’S UNPAID WATER BILLS (CT APP).

The Court of Appeals, reversing Supreme Court, determined plaintiff landlord was not personally responsible for the tenant’s unpaid water bills. The village water department’s rules provided only a lien on the property and cutting off water as remedies:

The Water Department Rules and Regulations of the Village of Herkimer, on which the Village relies, do not authorize a claim against plaintiff for personal liability upon nonpayment of water rents. To the extent the Rules and Regulations determine the Village’s remedies for unpaid water bills, they refer to “a lien on the premises where the water is used” (Rule No. 8; see also Village Law § 11-1118 [providing that unpaid water rents constitute a lien on real property]) and to shutting off water supply, upon notice (see Rule No. 9; see also Village Law § 11-1116 [providing that a village may enforce observance of its water use rules and regulations by cutting off water supply]). Herkimer County Indus. Dev. Agency v Village of Herkimer, 2021 NY Slip Op 01835, CtApp 3-25-21

 

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THERE IS NO NEED TO FILE AN AFFIDAVIT OF SERVICE AFTER SERVICE OF A WARRANT AND NOTICE OF EVICTION; THE MATTER WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined that the failure file an affidavit of service after serving the warrant and notice of eviction did not affect the validity of the service of the warrant of eviction which triggers the 14-day waiting period before execution of the warrant. The court noted that the matter was moot because the petitioner was subsequently evicted based on a different warrant, but the matter should be heard on appeal because the circumstance is likely to recur. The two dissenters argued the mootness of the matter precluded appeal:

… [T]he issuance of a warrant is the court’s last act in a summary proceeding, as denoted by the phrase, “Upon rendering a final judgment for [the owner], the court shall issue a warrant” (RPAPL 749 [1]). The execution of the warrant terminates the lease … . Likewise, the execution of the warrant terminates the summary proceeding and the jurisdiction of the court …  Because the court no longer has jurisdiction, the filing of the affidavit of service is superfluous. This stands in stark contrast to the purpose of the affidavit of service at the commencement of the summary proceeding, where it suffices as proof that the party was properly served pursuant to law, as proper service is required to bring a respondent within the jurisdiction of the court … .

… [W]e find that filing the affidavit of service at the conclusion of service of a warrant of eviction is not required, and the 14-day notice begins the day following the date of service, posting or mailing, whichever is later … . Matter of Dixon v County of Albany, 2021 NY Slip Op 01819, Third Dept 3-25-21

 

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THE COMMERCIAL LEASE GUARANTEE MET THE DEFINITION OF AN INSTRUMENT FOR THE PAYMENT OF MONEY; THE COVID-19 RESTRICTIONS ON ENFORCEMENT OF COMMERCIAL LEASE GUARANTEES DO NOT APPLY; THE WARRANTY OF HABITABILITY DEFENSE IS NOT AVAILABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined: (1) although guarantees generally are not instruments for the payment of money within the meaning of CPLR 3213, the language of the guarantee was unconditional and therefore met the criteria of such an instrument; (2) the COVID-19-related provision of the NYC Administrative Code and executive orders, prohibiting enforcement of commercial lease guarantees, do not apply where the business were not required to cease operations; (3) the warranty of habitability was not available as a defense because of the language of the guarantee; and (4) a commercial tenant cannot assert the warranty of habitability:

While a guarantee of both payment and performance does not qualify as an instrument for the payment of money only under CPLR 3213 … , paragraph 1 of the guaranty signed by defendants includes an unconditional obligation to pay all rent and additional rent owed under the sublease, and therefore does so qualify … ; “it required no additional performance by plaintiff[] as a condition precedent to payment or otherwise made defendant[s’] promise to pay something other than unconditional” … .

While the prohibition on the enforcement of commercial lease guaranties against natural persons under Administrative Code of City of NY § 22-1005 applies to businesses that were required to “cease operation” or “close to members of the public” under executive orders 202.3, 202.6, or 202.7, issued in connection with the COVID-19 pandemic, defendants never asserted that the nonparty subtenant ceased operations or closed to the public as a result of those orders.

Defendants’ claim that they properly raised warranty of habitability defenses under the sublease is without merit. Such defenses are not available to defendants because all defenses under the guaranty, with the exception of prior payment, were waived. Moreover, a commercial tenant cannot avail itself of the statutory warranty of habitability (see Real Property Law § 235-b …). iPayment, Inc. v Silverman, 2021 NY Slip Op 01846, First Dept 3-25-21

 

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THE NYPD IS A DEPARTMENT OF THE CITY AND CANNOT BE SEPARATELY SUED; THE 42 USC 1983 CIVIL RIGHTS VIOLATION CAUSE OF ACTION WAS NOT SUPPORTED BY SUFFICIENT ALLEGATIONS OF AN UNCONSTITUTIONAL CITY CUSTOM OR POLICY; THE OTHER CAUSES OF ACTION AGAINST THE CITY FALL BECAUSE THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST AND THE FORCE USED BY THE POLICE WAS NOT EXCESSIVE UNDER THE CIRCUMSTANCES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the 42 USC 1983 violation-of-civil rights, negligence, assault and battery, excessive force, false arrest and false imprisonment causes of action against the New York Police Department (NYPD) and New York City (City) should have been dismissed. Plaintiff was shot when, in the midst of a psychotic episode, she approached the police with a knife. She was indicted, tried and found not responsible by reason of mental disease or defect. The court noted that the NYPD is a department of the City and cannot be sued separately. The court also noted the 1983 action against the City failed to state a cause action because no city policy or custom was identified as violating plaintiff’s constitutional rights:

To hold a municipality liable under 42 USC § 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy … . Here, “[a]lthough the complaint alleged as a legal conclusion that the defendants engaged in conduct pursuant to a policy or custom which deprived the plaintiff of certain constitutional rights, it was wholly unsupported by any allegations of fact identifying the nature of that conduct or the policy or custom which the conduct purportedly advanced” … . * * *

The Supreme Court also should have granted that branch of the defendants’ motion which was for summary judgment dismissing the false arrest and false imprisonment causes of action insofar as asserted against the City. The existence of probable cause constitutes a complete defense to a cause of action alleging false arrest and false imprisonment … , including causes of action asserted pursuant to 42 USC § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law … . Brown v City of New York, 2021 NY Slip Op 01743, Second Dept 3-24-21

 

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THE COMPLAINT STATED A CAUSE OF ACTION AGAINST PORT AUTHORITY FOR FAILING TO INSTALL FENCING TO PREVENT PLAINTIFFS’ DECEDENTS FROM COMMITTING SUICIDE BY JUMPING FROM THE GEORGE WASHINGTON BRIDGE (FIRST DEPT). ​

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Webber, determined the complaint alleging defendant Port Authority was negligent in failing to install fencing to prevent plaintiffs’ decedents from jumping from the George Washington Bridge (GWB) to commit suicide should not have been dismissed:

… [P]laintiffs allege that the GWB was unreasonably dangerous because the low four-foot railing on the south walkway facilitated suicides and that the Port Authority had long been aware that the bridge had become a “suicide magnet” based upon hundreds of deaths that had occurred at the bridge over the decades preceding these cases. The complaints allege that suicide attempts at the GWB have occurred at the rate of approximately 1 every 3 1/2 days, and that about 93 deaths occurred from 2009 up to 2016. The complaints assert that the Port Authority, as the owner of the GWB, “owed a duty to the public,” including to “protect the public from foreseeable harm,” “take reasonable steps to protect public safety,” “take reasonable steps to prevent suicide,” “not increase the risk of suicide by inaction,” and “protect human life.” Additionally, plaintiffs allege that the Port Authority “failed to exercise reasonable care in constructing, operating, and maintaining the [GWB]” and were negligent “in falling to provide for the safety and protection for vulnerable or impulsive individuals.” …

Viewing the allegations of the complaint in the light most favorable to plaintiff, we find that plaintiffs have set forth sufficient facts which, if true, show that the Port Authority, as owner of the GWB, was acting in a proprietary capacity in the design and maintenance of the bridge, and, therefore was subject to suit under the ordinary rules of negligence applicable to nongovernmental parties. …

We find that the complaints sufficiently allege that the low railing of the bridge, and Port Authority’s awareness of the frequent suicide attempts on the bridge over previous decades, give rise to a duty to install fencing to protect against foreseeable harm to withstand a motion to dismiss … . Feldman v Port Auth. of N.Y. & N.J., 2021 NY Slip Op 01719, First Dept 3-23-21

 

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THE COUNTY POLICE OFFICER’S STATEMENT TO PLAINTIFF’S DECEDENT TO THE EFFECT SHE HAD NO REASON TO FEEL UNSAFE DID NOT CREATE A SPECIAL RELATIONSHIP; THEREFORE THE COUNTY WAS NOT LIABLE FOR THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT AT THE HANDS OF THE FATHER OF HER YOUNG CHILD (SECOND DEPT).

The Second Department determined the complaint failed to state a cause of action against the county stemming from the shooting death of plaintiff’s decedent at the hands of the father of her child (Jenkins). Plaintiff’s decedent had repeatedly requested of the county police that Jenkins be arrested and allegedly was told there was no reason for her to feel unsafe. The officer’s statement did not create a special relationship with the county such that the county could be held liable:

“Generally, a municipality may not be held liable for the failure to provide police protection because the duty to provide such protection is owed to the public at large, rather than to any particular individual” … . “A narrow exception to the rule exists where a special relationship exists between the municipality and the injured parties” … . The elements of a special relationship are (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured, (2) knowledge on the part of the municipality’s agents that inaction could lead to harm, (3) some form of direct contact between the municipality’s agents and the injured party, and (4) the injured party’s justifiable reliance on the municipality’s affirmative undertaking … .

Contrary to the plaintiff’s contentions, the complaint fails to allege facts that could establish an affirmative undertaking or justifiable reliance on any such undertaking by the defendants … . The complaint alleged that the decedent was told by an officer, weeks before the killing, that the officer “did not see any reason why Mr. Jenkins would hurt [the decedent or her sister] and that there was no reason for them to feel unsafe.” This statement, or statements to that effect, which could not be construed as conveying any promise or intention to protect the decedent, are not a basis on which a special duty may be premised … . Coleman v County of Suffolk, 2021 NY Slip Op 08219, Second Dept 3-17-21

 

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TWO ZONING VIOLATION SUMMONSES ADDRESSING THE SAME USE OF THE PROPERTY WERE NOT DUPLICATIVE; THEREFORE THE NYC DEPARTMENT OF BUILDINGS’ FAILURE TO APPEAL THE DISMISSAL OF THE FIRST SUMMONS DID NOT PRECLUDE THE SECOND (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, determined that two actions brought by the NYC Department of Buildings (DOB) seeking the removal of four large industrial shipping containers from petitioner’s auto-repair-shop premises were not duplicative. Therefore the DOB’s failure to appeal the dismissal of the first summons did not preclude the second summons. The second summons was dismissed by the hearing officer but was reinstated by the OATH [NYC Office of Trials and Hearings] Appeals Unit. The First Department upheld the reversal by the Appeals Unit. [The decision covers several substantive issues not summarized here]:

Petitioners argue primarily that although the summonses cite to two different provisions of the law — a Zoning Resolution violation and a certificate of occupancy violation pursuant to Administrative Code § 28-118.3.2 — the same proof and arguments were presented at the hearings for both summonses, namely, the certificate of occupancy, photographs depicting storage of the shipping containers on the property, the argument that the shipping containers would be transformed into trucks, and the counterargument that the storage was not a permitted use. They contend that this analysis is sufficient to demonstrate the duplicative nature of the summonses. The argument is unavailing. * * *

Here … the same body of evidence is used to prove two different violations, a violation of the Zoning Resolution, which covers the permitted uses and businesses within a specific area, and a violation of the certificate of occupancy, which applies specifically to the property, and describes the legal occupancy and use of that property. Moreover, the remedy for the two summonses is not the same. The first summons demanded that petitioners discontinue the illegal use, while the second summons provided for alternative remedies — discontinue illegal use or amend the certificate of occupancy. Accordingly, the OATH Appeals Unit’s finding that the second summons was not duplicative of the first summons was not arbitrary and capricious. Matter of Karakash v Del Valle, 2021 NY Slip Op 01484, First Dept 3-11-21

 

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THE CITY DID NOT HAVE WRITTEN NOTICE OF THE SIDEWALK/CURB DEFECT IN THIS SLIP AND FALL CASE BECAUSE THE DEFECT DID NOT APPEAR ON THE BIG APPLE MAP WHICH HAD BEEN SERVED ON THE CITY, DESPITE THE APPARENT EXISTENCE OF ANOTHER BIG APPLE MAP WHICH SHOWED THE DEFECT BUT WAS NOT SHOWN TO HAVE BEEN SERVED ON THE CITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Big Apple map demonstrated the city did not have prior written notice of the sidewalk/curb defect where plaintiff allegedly slipped and fell, despite the apparent existence of another Big Apple map which showed the defect but was not shown to have been served on the city (NYC):

Maps prepared by Big Apple Pothole and Sidewalk Protection Committee, Inc. (hereinafter Big Apple), and filed with the Department of Transportation serve as prior written notice of defective conditions depicted thereon … . Where a plaintiff relies on a Big Apple map, the map served on the City closest in time prior to the subject accident is controlling … .

Here, the City met its prima facie burden by proffering evidence that the most recent Big Apple map served on it did not show the defect and that it had not received any other prior written notice of the allegedly defective condition … . Although the plaintiff produced a competing Big Apple map which purportedly showed the defect, that map was not accompanied by any evidence showing when it had been served on the City. Abdullah v City of New York, 2021 NY Slip Op 01377, Second Dept 3-10-21

 

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ALTHOUGH THIS NON-TORT ACTION AGAINST THE NYC DISTRICT ATTORNEY DID NOT TRIGGER THE NOTICE OF CLAIM REQUIREMENT OF THE GENERAL MUNICIPAL LAW, IT DID TRIGGER THE NOTICE OF CLAIM REQUIREMENT OF THE COUNTY LAW (FIRST DEPT).

The First Department determined County Law 52, not General Municipal Law (GML) 50, applied to a “money had and received” lawsuit against the district attorney of New York County. Although the district attorney is considered a city employee for purposes the General Municipal Law, the district attorney is elected by the citizens of New York County and is subject to the provisions of the County Law. The General Municipal Law notice of claim requirement applies only to tort actions. However, the County Law notice of claim requirement applies to this action for money had and received. No notice of claim was filed:

Defendant falls back on the position that, even if no notice of claim was required under GML section 50-k, one was required under County Law section 52. …

Although this section also refers to GML sections 50-e and 50-i, the Court of Appeals has expressly held that it applies to non-tort claims … . Further, County Law section 52 applies to county employees … . Nevertheless, plaintiffs assert that in arguing for application of the County Law, the District Attorney is trying to have it both ways, since he claims to be a city employee for purposes of the General Municipal Law, but a county employee for purposes of the County Law. It is true that New York City law considers the District Attorney to be a city employee … . However, this is no reason not to apply County Law section 52, since there is no county-level government organization in the City of New York that could be considered the District Attorney’s employer for administrative purposes such as paying his or her salary. Moreover, the District Attorney is elected by the voters of New York County, not New York City. Finally, this Court has cited County Law section 52 in holding that a notice of claim is required before filing an action against the office of a District Attorney in the City of New York … . Slemish Corp. S.A. v Morgenthau, 2021 NY Slip Op 01370, First Dept 3-9-21

 

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