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DEFENDANTS DID NOT DEMONSTRATE AS A MATTER OF LAW THAT THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST FOR THE CHARGED CRIMES OR FOR ANY UNCHARGED CRIMES; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this false arrest, false imprisonment, malicious prosecution, assault and battery action should not have been granted because defendants did not demonstrate as a matter of law that there was probable cause for plaintiff’s arrest. When plaintiff flagged down the police he told the police he had been shot and had the drug dealer’s weapon on his person which he immediately surrendered:

… [D]efendants failed to establish prima facie that they had probable cause to arrest plaintiff for criminal possession of a weapon or firearm … , which is the lynchpin to plaintiff’s claims for false arrest, false imprisonment, malicious prosecution, assault and battery … , as well as the arresting officer’s entitlement to qualified immunity … . While “the police are not obligated to pursue every lead that may yield evidence beneficial to the accused, even though they had knowledge of the lead and the capacity to investigate it” … , plaintiff’s claim that he temporarily lawfully possessed the gun at issue after an alleged altercation with a drug dealer who attempted to rob him was not merely a lead. Rather, as soon as plaintiff flagged down the officers, he told them that he had been shot and volunteered that he had the drug dealer’s gun on his person, which he immediately surrendered.

Assuming, without deciding, that defendants could meet their prima facie burden by identifying probable cause to arrest plaintiff for an uncharged crime or offense … , they failed to do so. Specifically, defendants have not established probable cause to arrest plaintiff for trespass … , since there is no evidence that plaintiff knowingly entered or remained unlawfully in the basement where his altercation with the drug dealer took place. Nor did they establish probable cause to arrest plaintiff for attempted criminal possession of marijuana … or attempted unlawful possession of marijuana in the first degree … , since there is no evidence as to the quantity of marijuana that plaintiff allegedly attempted to possess. Finally, defendants failed to establish prima facie probable cause to arrest and detain plaintiff to the extent that they did for attempted unlawful possession of marijuana in the second degree … , since, had they so charged him, they only would have been permitted to issue a desk appearance ticket … . Idelfonso v City of New York, 2020 NY Slip Op 05854, First Dept 10-20-20

 

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RES IPSA LOQUITUR NEEDN’T BE ALLEGED IN THE NOTICE OF CLAIM OR THE COMPLAINT BECAUSE IT IS NOT A THEORY OF LIABILITY, IT IS AN EVIDENTIARY RULE; NOTICE OF A DANGEROUS CONDITION CAN BE INFERRED UNDER THE RES IPSA LOQUITUR DOCTRINE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff properly raised res ipsa loquitur in opposition to defendant’s motion for summary judgment even though the notice of claim and the complaint did not allege it. Res ipsa loquitur is not a theory of liability, it is a rule of evidence:

Plaintiff investigated a hissing sound coming from the electrical circuit box in her apartment and as she drew close to the circuit box, it suddenly burst into flame, burning her right arm. Plaintiff may raise res ipsa loquitur in opposition to defendant’s motion without having alleged the doctrine in her notice of claim or complaint, as it is not a separate theory of liability, but rather, an evidentiary rule that involves “‘a common sense application of the probative value of circumstantial evidence'” … . Plaintiff’s evidence raised triable issues as to application of the doctrine, as it showed that she had resided in the apartment for nearly 19 years, she would contact defendant’s employees to remedy any issues with the circuit box, and defendant’s employees handled the inspection, maintenance, and repair of the circuit box … . To the extent defendant argues its lack of notice of the alleged dangerous condition, a triable issue of fact exists here regarding the applicability of the res ipsa doctrine, and proof of notice of a dangerous condition may be inferred under the doctrine … . Townsend v New York City Hous. Auth., 2020 NY Slip Op 05874, First Dept 10-20-20

 

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NYC POLICE OFFICERS IN THE TIER 3 RETIREMENT SYSTEM ARE ENTITLED TO CREDIT FOR PERIODS OF UNPAID CHILDCARE LEAVE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, over a two-judge dissent, determined that retiring police officers are entitled to credit for the unpaid leave for child care. The appeal raised a question of statutory interpretation. The Court of Appeals found that the relevant provision of the NYC Administrative Code was not preempted by the Retirement and Social Security Law (RSSL):

The Appellate Division order should be reversed and Supreme Court’s judgment declaring that defendants violated the second subdivision (h) of Administrative Code of the City of New York § 13-218 by excluding police officers in tier 3 of the state retirement system from the retirement benefits conferred by that subdivision reinstated. Applying longstanding, basic rules of statutory interpretation, we conclude that the relevant part of Administrative Code § 13-218 renders officers of the New York City Police Department (NYPD) who are members of the tier 3 retirement system eligible for credit for certain periods of unpaid childcare leave, and that the grant of such benefits for those officers is consistent with the Retirement and Social Security Law (RSSL). Lynch v City of New York, 2020 NY Slip Op 05841, Ct App 10-20-20

 

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THE CURB AND TREE WELL ARE NOT AREAS OF A SIDEWALK WHICH ARE THE RESPONSIBILITY OF THE ABUTTING PROPERTY OWNER; THE PROPERTY OWNER’S/MANAGER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the areas near the sidewalk where plaintiff slipped and fell were the curb and a tree well. Both the curb and the tree well, according to the NYC Administrative Code, are not the responsibility of the abutting property owner (Gore/UA):

The owner of premises abutting the public sidewalk has a nondelegable duty to maintain and repair the sidewalk abutting the premises (Administrative Code of the City of New York § 7—210 …). The sidewalk includes “the intersection quadrant for corner property” (Admin Code § 7-210[a]). “Although section 7-210 does not define the term ‘sidewalk,’ Administrative Code § 19-101 (d) defines sidewalk as ‘that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians'” … . In the absence of a definition in section 7-210, this Court has held that the definition in section 19-101(d) should govern … .

We find that Gore/UA’s motion for summary judgment should have been granted. Review of the photographs clearly show that the area where plaintiff fell is a curb, intended for the use of pedestrians. Therefore, the definition of the term sidewalk in section 19-101(d) shows that Gore and UA did not have a duty to maintain or repair the area where plaintiff fell. Further, to the extent that plaintiff’s injuries were caused by the tree well, Administrative Code § 7-210 “does not impose civil liability on property owners for injuries that occur in city-owned tree wells” … . Brown v New York City Dept. of Transp., 2020 NY Slip Op 05807, First Dept 10-15-20

 

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THE MUNICIPALITY DID NOT OWE A SPECIAL DUTY TO PLAINTIFF’S DECEDENT WHO CALLED 911 DURING A SNOW STORM AFTER HIS CAR HAD BECOME STUCK AND WAS FOUND DEAD IN HIS CAR THREE DAYS LATER (FOURTH DEPT).

The Fourth Department determined the municipality was entitled to summary judgment in this wrongful death action. Plaintiff’s decedent’s car was stuck in snow during a snow storm. He called 911 three times over the course of seven hours and was found dead in his car three days later:

Preliminarily, we conclude that, during the events that led to decedent’s unfortunate death, defendants were acting in a governmental capacity … . “Under the public duty rule, although a municipality owes a general duty to the public at large to furnish police protection, this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created” … . … According to plaintiff, a special relationship was formed in this case by … the voluntary assumption of a duty of care by defendants. That method requires plaintiff to establish “(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, only the first and fourth elements are at issue. We conclude that defendants met their burden on the motion by establishing as a matter of law that there was no voluntary assumption of a duty of care, and plaintiff failed to raise a triable issue of fact whether defendants assumed, through promise or action, any duty to act on decedent’s behalf … . … [D]efendants also met their initial burden by establishing that any alleged reliance upon representations made by defendants or their agents was not justifiable, and plaintiff failed to raise a triable issue of fact in that regard … . Bauer v County of Erie, 2020 NY Slip Op 05623, Fourth Dept 10-9-20

 

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PLAINTIFF DID NOT RAISE A QUESTION OF FACT WHETHER THE COUNTY WAS AFFIRMATIVELY NEGLIGENT IN THIS ICE AND SNOW SLIP AND FALL CASE; THEREFORE THE COUNTY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the county’s motion for summary judgment in this slip and fall case should have been granted. The county demonstrated it did not have written notice of the condition and was not affirmatively negligent:

The complaint alleged that a dangerous or defective condition existed as a result of defendant’s negligent snow and ice removal operations and procedures, and its failure to provide “a means of ingress/egress with a handrail.” …

Defendant established its entitlement to judgment as a matter of law by submitting evidence that it did not receive prior written notice of the allegedly dangerous or defective condition as required by Chautauqua County Local Law No. 4-09 … . In opposition, plaintiff failed to raise a triable issue of fact whether such prior written notice was given … . Further, plaintiff failed to raise an issue of fact regarding the applicability of an exception to the prior written notice requirement, i.e., as relevant here, that defendant “affirmatively created the defect through an act of negligence” … . A municipality” ‘may not be held liable for the mere passive failure to remove all snow and ice’ ” or to install a handrail because “[s]uch acts are acts of omission rather than affirmative acts of negligence” … . Here, plaintiff’s submissions establish only defendant’s alleged “nonfeasance, as opposed to affirmative negligence,” and the exception to the prior written notice requirement for affirmative acts of negligence therefore does not apply … . Brockway v County of Chautauqua, 2020 NY Slip Op 05659, Fourth Dept 10-9-20

 

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THE CIVIL SERVICE LAW, NOT THE COLLECTIVE BARGAINING AGREEMENT, CONTROLS THE TERMINATION OF AN INJURED FIREFIGHTER ABSENT FOR MORE THAN A YEAR DUE TO THE INJURY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the Civil Service Law, not the collective bargaining agreement, controlled the termination of an injured firefighter who had been absent for more than a year due to the injury:

Civil Service Law § 71 provides that where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the worker’s compensation law, “he or she shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.” The legislature provided that the state civil service commission shall “prescribe and amend suitable rules and regulations for carrying into effect the provisions of this chapter,” including “rules for . . . leaves of absence” (Civil Service Law § 6[1]). The Department of Civil Service has promulgated implementing regulations for Civil Service Law § 71, including detailed procedures for notifying an employee of the right to a one-year leave of absence during continued disability, and notifying an employee of an impending termination following the expiration of that one-year period and the right to a hearing and to apply for a return to duty (see 4 NYCRR 5.9). Here, the specific directives of Civil Service Law § 71 and 4 NYCRR 5.9 leave no room for negotiation of the procedures to be followed prior to the termination of an employee’s employment upon the exhaustion of the one-year period of leave. Therefore the presumption in favor of collective bargaining is overcome … . Matter of City of Long Beach v New York State Pub. Empl. Relations Bd., 2020 NY Slip Op 05504, Second Dept 10-7-20

 

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ALTHOUGH COUNSEL’S FAILURE TO IDENTIFY THE PROPER PARTY TO SUE WAS ARGUABLY NOT EXCUSABLE, THE DEFENDANT HAD TIMELY KNOWLEDGE OF THE NATURE OF THE ACTION AND WAS NOT PREJUDICED BY THE DELAY; THE APPLICATION TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s application to file a late notice of claim in this slip and fall case should have been granted. Although the excuse for not filing on time was not a good one, counsel’s failure to identify the proper party to sue, the defendant had timely knowledge of the nature of the action:

Although counsel’s error in identifying the proper party was arguably not excusable, the error was not due to any fault or delay on the part of petitioner, and “[t]he failure to set forth a reasonable excuse is not, by itself, fatal to the application” … . This is particularly true where, as here, the record shows that respondents received timely and actual notice of the essential facts underlying plaintiff’s claim … .

Here, the incident report gave respondents actual knowledge of the pertinent facts constituting the claim. The report makes clear that petitioner fell on the sidewalk, and the photographs contained in the report show that the sidewalk is cracked and raised, presenting a tripping hazard … . Furthermore, according to petitioner’s 50-h testimony, her fall was notable enough that a security guard immediately called his supervisor to the scene, and there is no indication that respondents are prejudiced by the delay … . English v Board of Trustees of the Fashion Inst. of Tech., 2020 NY Slip Op 05450, First Dept 10-6-20

 

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THE VILLAGE DID NOT DEMONSTRATE INFANT PLAINTIFF ASSUMED THE RISK OF INJURY FROM A TIRE SWING IN THE VILLAGE PLAYGROUND; THE VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village did not demonstrate infant plaintiff assumed the risk of injury from a tire swing in a village playground. Apparently the swing struck a railing causing infant plaintiff’s leg to slip out from under him and his leg struck a support post:

… [T]he Village failed to demonstrate its entitlement to judgment as a matter of law based on the doctrine of primary assumption of risk. Although the locations of the railing and support post were open and obvious, the submissions of the Village failed to establish, prima facie, that the structure was not negligently designed so as to permit the tire to come into contact with the railing and support post, thereby unreasonably increasing the risks over and above the usual dangers that are inherent in playing on a tire swing … . In addition, in light of the infant plaintiff’s age and limited experience with this tire swing, it cannot presently be determined as a matter of law that he was aware of and fully appreciated the risks involved with the tire being able to come into contact with the railing and support post … .

Further, the Village failed to establish, prima facie, that it neither created the allegedly dangerous condition nor had actual or constructive notice of the condition … , or that the infant plaintiff’s accident was not foreseeable … . Berrin v Incorporated Vil. of Babylon, 2020 NY Slip Op 05177, Second Dept 9-30-20

 

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THE COMPLAINT STATED CAUSES OF ACTION FOR ASSAULT, BATTERY AND VIOLATION OF 42 USC 1983 AGAINST POLICE OFFICERS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated causes of action against police officers for assault, battery and violation of 42 USC 1983:

The allegations in the complaint, as amplified by the notice of claim, which must be liberally construed when determining a CPLR 3211(a)(7) motion … sufficiently set forth a claim for assault and battery. Plaintiff alleged that he was assaulted and battered by police during his arrest and suffered injuries that required hospital treatment. Plaintiff specified the location of the assault and stated that defendants committed the assault and battery knowingly, that the arrest was without probable cause and that he was not ultimately charged with a crime. Moreover, in the notice of claim, plaintiff alleged that he was “grabbed, had his arms twisted and forcefully handcuffed,” that he was physically abused and that he did not resist arrest.

“To plead a cause of action to recover damages for assault, a plaintiff must allege intentional physical conduct placing the plaintiff in imminent apprehension of harmful contact” … . “A valid claim for battery exists where a person intentionally touches another without that person’s consent” … .

… [A] party may allege assault and battery as the basis for a suit under 42 USC § 1983 … . Corcoran v City of New York, 2020 NY Slip Op 05133, First Dept 9-29-20

 

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