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PLAINTIFF NYC SANITATION WORKER STEPPED ON A LIVE POWER LINE AFTER HIS SUPERVISOR ALLEGEDLY TOLD HIM THE POWER WAS OFF; QUESTION OF FACT WHETHER THERE WAS A SPECIAL DUTY OWED BY THE CITY DEFENDANTS TO THE PLAINTIFF; CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the NYC and NYC Department of Sanitation’s motions for summary judgment in this electrocution case should not have been granted. Plaintiff, a NYC sanitation department employee was doing clean up after Hurricane Sandy when he stepped on a live power line. Plaintiff alleged he was told by his supervisor the power had been turned off. The court applied the usual analysis for municipal liability for negligence: (1) the city was engaged in a governmental function; (2) there may have been a special relationship between the city defendants and the plaintiff; (3) it does not appear that a discretionary act was involved such that governmental immunity would apply:

… [T]he City defendants met their prima facie burden of establishing that they were engaged in a governmental function at the time that the causes of action arose … . However, the City defendants failed to establish, prima facie, the absence of a special duty to the plaintiff.

In this case, the plaintiff had an employer-employee relationship with the New York City Department of Sanitation. Therefore, the plaintiff cannot be equated with a member of the general public. It appears from this record that there exists a triable issue of fact as to whether the City defendants voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally that generated the plaintiff’s justifiable reliance … .

This Court has applied the doctrine of governmental immunity to an employee of the New York City Department of Sanitation, but in that case, the issue was whether the City of New York engaged in discretionary governmental actions based upon reasoned judgment in selecting equipment … . On this record, it does not appear that this case involves discretionary determinations … . Lewery v City of New York, 2021 NY Slip Op 01035, Second Dept 2-17-21

 

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WHERE PLAINTIFF’S EMPLOYER IS A BUSINESS ENTITY, HERE BLOOMBERG L.P., AN OWNER OR OFFICER OF THE COMPANY, HERE MICHAEL BLOOMBERG, IS NOT AN EMPLOYER WITHIN THE MEANING OF THE NYC HUMAN RIGHTS LAW; THE EMPLOYMENT DISCRIMINATION ACTION AGAINST MICHAEL BLOOMBERG WAS PROPERLY DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive dissent, determined Michael Bloomberg, in his status as “owner” and officer of the company, Bloomberg L.P., is not an “employer” within the meaning of the NYC Human Rights Law, and therefore cannot be liable for harassment of the plaintiff (Doe) by her supervisor, Ferris. Bloomberg L.P. can be vicariously liable as the employer, but Michael Bloomberg cannot:

Plaintiff, an employee of Bloomberg L.P. using the pseudonym “Margaret Doe,” brought suit against defendants Bloomberg L.P., her supervisor Nicholas Ferris, and Michael Bloomberg, asserting several causes of action arising from alleged discrimination, sexual harassment, and sexual abuse. The question before us is whether Bloomberg, in addition to Bloomberg L.P., may be held vicariously liable as an employer under the New York City Human Rights Law (Administrative Code of City of NY, title 8 [City HRL]) based on his status as “owner” and officer of the company. We hold that Bloomberg is not an “employer” within the meaning of the City HRL and accordingly, we affirm the dismissal of plaintiff’s claims that seek to hold Bloomberg vicariously liable for Ferris’s offending conduct. * * *

The language in the City HRL … requires no external limiting principle exempting employees from individual suit as employers. … [W]here a plaintiff’s employer is a business entity, the shareholders, agents, limited partners, and employees of that entity are not employers within the meaning of the City HRL. … [T]hose individuals may incur liability only for their own discriminatory conduct, for aiding and abetting such conduct by others, or for retaliation against protected conduct (Administrative Code of City of NY § 8-107 [1], [6], [7]). This rule [is] consistent with the principles of vicarious and limited liability governing certain business structures (see e.g. Partnership Law §§ 26, 121-303; Limited Liability Company Law § 609; Business Corporation Law § 719). Doe v Bloomberg, L.P., 2021 NY Slip Op 00898, CtApp, 2-11-21

 

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THE POLICE REMOVED PLAINTIFF’S BOYFRIEND FROM PLAINTIFF’S PREMISES THREE TIMES TELLING PLAINTIFF HE WOULD NOT COME BACK AND SHE WILL BE OKAY; THEN HER BOYFRIEND THREW HER OUT A THIRD FLOOR WINDOW; THERE WAS NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND THE CITY; THE CITY WAS NOT LIABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined no special relationship had been created between the plaintiff and the city stemming from police officers’ telling plaintiff that her former boyfriend (Gaskin) would be removed from the premises and would not be back. The police responded to plaintiff’s calls when Gaskin showed up three times. On the next occasion, Gaskin threw plaintiff out of a third floor window:

“When a cause of action alleging negligence is asserted against a municipality, and the municipality is exercising a governmental function, the plaintiff must first demonstrate that the municipality owed a special duty to the injured person” … . Such a special duty can arise, as relevant here, where the plaintiff belongs to a class for whose benefit a statute was enacted, or where the municipality voluntarily assumes a duty to the plaintiff beyond what is owed to the public generally … . A municipality will be held to have voluntarily assumed a duty or special relationship with a party where there is: “(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) that party’s justifiable reliance on the municipality’s affirmative undertaking” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them by establishing that no special relationship existed between them and the plaintiff … . Specifically, the defendants established, prima facie, that the officers made no promise to arrest Gaskin, and the plaintiff could not justifiably rely on vague assurances by the officers that she would “be okay” and that Gaskin would not be returning to the building where both he and the plaintiff lived … . Howell v City of New York, 2021 NY Slip Op 00840, Second Dept 2-10-21

 

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THE NYC HOUSING STABILITY AND TENANT PROTECTION ACT OF 2019 PART I, WHICH IMPOSES RESTRICTIONS ON A LANDLORD’S RIGHT TO REFUSE TO RENEW A RENT-STABILIZED LEASE, DOES NOT APPLY TO THIS HOLDOVER PROCEEDING WHICH WAS PENDING WHEN THE LAW WAS ENACTED (FIRST DEPT).

The First Department, reversing the Appellate Term, determined the Housing Stability and Tenant Protection Act of 2019  (HSTPA) Part I did not apply to did not apply to the instant holdover proceeding which was pending when the HSTPA was enacted:

As amended by HSTPA Part I … , Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-511(c)(9)(b), which governs an owner’s right to refuse to renew a rent-stabilized lease on the ground that the owner seeks the unit for his or her own personal use and occupancy as a primary residence, limits the owner to the recovery of only one dwelling unit in a building, requires proof of “immediate and compelling necessity” for the owner’s use, and requires that the owner provide an equivalent housing accommodation for any tenant over the age of 62 and in occupancy for 15 years or more. …

… [F]our months after Appellate Term issued its decision in this proceeding, the Court of Appeals decided Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal (35 NY3d 332 [2020]), holding that HSTPA Part F, relating to rent overcharges, could not be applied to pending cases because “application of these amendments to past conduct would not comport with our retroactivity jurisprudence or the requirements of due process” … .

We conclude that the same reasoning applies with equal measure to HSTPA Part I. Matter of Harris v Israel, 2021 NY Slip Op 00796, First Dept 2-9-21

 

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THE FOUR-YEAR LOOKBACK CAN BE APPLIED TO DETERMINE WHETHER DEFENDANT ENGAGED IN A FRAUDULENT SCHEME TO DEREGULATE NYC APARTMENTS RECEIVING J-51 TAX BENEFITS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over an extensive dissenting opinion, determined the four-year lookback period can be applied to determine whether there was a fraudulent scheme to deregulate apartments which, under Roberts (12 NY3d 270 [2009]) should not have been deregulated because the landlord was receiving “J-51” tax benefits. Defendant’s motion for summary judgment was properly denied and plaintiff’s motion to certify a class was properly granted:

… [I]n pre-Roberts cases where landlords relied on DHCR [NYC Division of Housing & Community Renewal] guidance there could be no fraudulent scheme to deregulate. * * *

[W]e have not extended this rule to cases decided after Roberts … . To the contrary, our jurisprudence holds that an owner may not flout the teachings of Roberts. * * *

The hallmarks of a fraudulent scheme to deregulate are present here. … Defendant deregulated the apartment after Roberts was decided and did not re-register with DHCR, despite receiving J-51 tax benefits … . During the four-year period preceding commencement of the lawsuit, plaintiff was still not given a rent-stabilized lease. … Defendant’s actions cannot be deemed to be prompt compliance. Rather, at this stage, plaintiff has sufficiently alleged a six-year scheme to illegally deregulate 27 units or approximately 32% of the building. Montera v KMR Amsterdam LLC, 2021 NY Slip Op 00805, First Dept 2-9-21

 

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IN THE FOURTH DEPARTMENT, UNLIKE IN THE SECOND DEPARTMENT, A MUNICIPALITY MOVING FOR SUMMARY JUDGMENT IN A SLIP AND FALL CASE NEED ONLY SHOW IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION EVEN WHERE THE COMPLAINT ALLEGES THE MUNICIPALITY CREATED THE DANGEROUS CONDITION; HERE AN ONLINE COMPLAINT DID NOT SATISFY THE WRITTEN NOTICE REQUIREMENT; EVIDENCE A MUNICIPAL CONTRACTOR CREATED THE DANGEROUS CONDITION RAISED A QUESTION OF FACT ABOUT MUNICIPAL LIABILITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined: (1) disagreeing with the Second Department, a municipality moving for summary judgment in a slip and fall case need only show it did not receive written notice of the dangerous condition and need not affirmatively show it did not create the dangerous condition even if alleged in the complaint; (2) if the lack of written notice is demonstrated the burden shifts to plaintiff to show the municipality created the condition; (3) the written notice requirement is not necessarily satisfied by an online (CityLine) complaint; and (4) plaintiff raised a question of fact whether a municipal contractor created the dangerous condition. Plaintiff was injured when his bicycle went into a pavement cutout concealed by a puddle:

… [D]efendant met its initial burden by submitting the affidavit of its commissioner of public works establishing that he did not receive prior written notice of the allegedly dangerous or defective condition in the street as required by its prior notification law … . As a result, the burden shifted to plaintiff to demonstrate the existence of a triable issue of fact as to the requisite written notice or, as relevant here, the applicability of the affirmative negligence exception … . …

… [As] CityLine complaints were simply received by complaint investigators and routed through a computer system to the appropriate department, and … such complaints were stored solely in the electronic file on the computer system, there is no indication in the record that such complaints were actually given to the commissioner of public works as required by the prior notification law … . …

… [T]here is circumstantial evidence that defendant created the defect through its contractor’s actions and, thus, a triable issue of fact whether the affirmative negligence exception applies … . Horst v City of Syracuse, 2021 NY Slip Op 00708, Fourth Dept 2-5-21

 

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PLAINTIFF TRIPPED OVER A FOOTING FOR A TRAFFIC SIGNAL POLE WHICH HAD BEEN REMOVED; ALTHOUGH THE CITY APPROVED THE REMOVAL OF THE POLE IT PLAYED NO ROLE IN ITS REMOVAL; THEREFORE THE CITY DID NOT CREATE THE CONDITION AND THE LACK OF WRITTEN NOTICE RELIEVED THE CITY OF LIABILITY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined, after a plaintiff’s verdict at trial, the defendant city’s motion for summary judgment should have been granted in this slip and fall case. Plaintiff tripped over the footing of a traffic signal pole (the pole had been removed). The city demonstrated it did not have written notice of the condition. Therefore the burden shifted to the plaintiff to show that the city created the condition. The city submitted documents showing that the removal of the pole was part of a private construction project over which the city exercised no control:

The City did not receive notice of the project’s completion or when and by whom the traffic signals were removed. Trudeau [Chief Supervisor of the Traffic Engineering Division of the Albany Police Department] testified that the City did not oversee the development project because it was a private project, and he was not aware of when the traffic signals were removed or who removed them. We note that, contrary to Supreme Court’s decision, the City’s failure to inspect the sidewalk is an omission that does not constitute affirmative negligence that excuses compliance with the prior written notice requirement … . By failing to present any proof that the City received written notice of the defect or of an affirmative act taken by the City that immediately resulted in the defective condition of the sidewalk, plaintiffs failed to raise a material issue of fact as to the exception to the prior written notice requirement … . Vnuk v City of Albany, 2021 NY Slip Op 00600, Third Dept 2-4-21

 

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RARE CASE IN WHICH A SPECIAL RELATIONSHIP BETWEEN THE PLAINTIFF AND THE CITY MAY RENDER THE CITY LIABLE FOR A DELAYED RESPONSE TO A 911 CALL; BECAUSE THE DELAY MAY NOT HAVE BEEN THE RESULT OF A DELIBERATE EXERCISE OF DISCRETION, THE DOCTRINE OF GOVERNMENTAL IMMUNITY MAY NOT APPLY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had sufficiently alleged the existence of a special relationship with the city and dismissal based on the doctrine of governmental function immunity was not appropriate. Plaintiff called 911 and was told the ambulance was on its way. Plaintiff had other options for assistance but relied on the 911 operator’s statement. Apparently the ambulance response was delayed. Absent a special relationship a municipality may not be held liable for breach of a duty owed to the general public. Governmental immunity generally protects discretionary actions. Here the delayed response may not have been due to the deliberate exercise of discretion and therefore may not be protected by the immunity doctrine:

Plaintiff’s allegations are sufficient to establish a special relationship between the City and the decedent that brings her claim within the exception to the general rule that a municipality may not be held liable to a person injured by the breach of a duty that it owes to the general public — such as the duty to provide ambulance service … . The allegation that the 911 operator told plaintiff that “we are on our way” is sufficient to establish defendants’ assumption of an affirmative duty to act on the decedent’s behalf … . Plaintiff sufficiently alleged justifiable reliance on the call operator’s statement through an affidavit submitted in opposition to defendants’ motion in which she listed several additional actions she would have taken to secure help but for the operator’s assurance … .

Dismissal is also not appropriate at this stage pursuant to the doctrine of governmental function immunity, which shields public entities from liability for “discretionary” actions taken during the performance of “governmental functions” … . It is undisputed that the provision of emergency care by FDNY EMTs constitutes a governmental function … . It is also clear that determinations of whether and when to dispatch an ambulance, the type of ambulance to dispatch and from where, and the route the ambulance should take are discretionary in nature … . However, it is not clear that the delay at issue here was due to an affirmative exercise of this discretion, rather than an unintentional failure to timely dispatch an ambulance … . Xenias v City of New York, 2021 NY Slip Op 00647, First Dept 2-4-21

 

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HOMEOWNERS’ ASSOCIATIONS IN THE HAMPTONS DEMONSTRATED OWNERSHIP OF THE BEACH TO THE HIGH WATER MARK; THE TOWNS THEREFORE COULD NOT ISSUE PERMITS ALLOWING VEHICLES ON THE BEACH (SECOND DEPT).

The Second Department, reversing Supreme Court in this action to quiet title pursuant to RPAPL Article 15,, determined the homeowners’ associations demonstrated ownership of about 4000 feet of beach in the Hamptons on Long Island. Therefore the towns could not allow vehicles to park on the beach:

In an action pursuant to RPAPL article 15, the plaintiff bears the burden of demonstrating, inter alia, the boundaries of the subject property with “common certainty” (see RPAPL 1515[2] … ). Here, contrary to the Supreme Court’s determination, we find that Seaview, Dunes, Tides, and Whalers established their title claims by a preponderance of the evidence, and that Ocean established its title claim by a preponderance of the evidence with respect to the westernmost portion of its property. At trial, the plaintiffs produced a land title expert who testified to the homeowners associations’ chains of title to their respective properties. Specifically, that expert testified, based on documentary evidence, that Seaview, Dunes, Tides, and Whalers owned fee simple title to their respective properties, extending to the mean high-water mark of the Atlantic Ocean. The expert also testified, in relevant part, that Ocean owned fee simple title extending to the mean high-water mark of the Atlantic Ocean, as to the westernmost 400 linear feet of its property. The plaintiffs produced all of the deeds in those respective chains of title, beginning with the Benson Deed, which is common to all of the homeowners associations’ chains of title. Based on the foregoing evidence, the homeowners associations established, to the extent previously indicated, that they owned title in fee simple absolute to the disputed portion of their respective properties (see RPAPL 1515[2] … ). Seaview at Amagansett, Ltd. v Trustees of Freeholders & Commonalty of Town of E. Hampton, 2021 NY Slip Op 00584, Second Dept 2-3-21

 

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EVICTION WAS TOO SEVERE A PENALTY FOR PETITIONER’S MOMENTARY LOSS OF CONTROL DURING WHICH SHE STRUCK A NYC HOUSING AUTHORITY EMPLOYEE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Housing Authority (NYCHA) should not have penalized petitioner for striking a NYCHA employee by evicting her:

The termination of the tenancy of petitioner, a now 64-year-old woman who has been a NYCHA tenant without incident for more than 40 years and will be evicted from her home along with her adult daughter because she suffered a momentary loss of control when she struck respondent’s employee, whom she believed to be in a relationship with her former partner, is “so disproportionate to [her] offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness” … .

Given the facts presented as well as the lack of any evidence presented by NYCHA that petitioner’s continued occupancy presents a concern to the safety of NYCHA employees or a risk to the other NYCHA tenants, this Court finds that a lesser penalty is warranted … . Matter of Bryant v Garcia, 2021 NY Slip Op 00521, First Dept 2-2-21

 

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