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PETITIONER POLICE OFFICER’S FALL GETTING OUT OF A POLICE CAR WAS NOT AN UNEXPECTED ACCIDENT OR DUE TO A RISK INHERENT IN THE JOB; PETITIONER WAS NOT ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner police officer was not entitled to accidental disability retirement stemming from a fall. Petitioner was getting out of a police car in response to a family disturbance call when his firearm caught on the seatbelt causing him to fall to the ground:\

Supreme Court erred in granting the petition and annulling the board’s determination that petitioner’s injury did not arise from an unexpected accident or from a risk inherent in the job of being a police officer. The board correctly determined that petitioner’s injury was not caused by an accident as defined in the NYC Administrative Code and applicable case law.

“[N]ot every line-of-duty injury will support an award of accidental disability retirement . . . an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties . . . is not an accidental injury” … . Matter of Galluccio v O’Neill, 2020 NY Slip Op 05136, First Dept 9-29-20

 

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TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT IN THIS BUS-PASSENGER INJURY CASE SHOULD HAVE BEEN GRANTED; THE BUS DRIVER REACTED APPROPRIATELY TO A CAR SUDDENLY PULLING OUT IN FRONT OF THE BUS TO MAKE A U-TURN (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant transit authority’s motion for summary judgment in this bus-passenger injury case should have been granted. The driver of a double-parked car pulled out in front of the bus to make a u-turn and the driver properly slammed on the brakes:

… [D]efendants established their prima facie entitlement to judgment as a matter of law by showing that their bus driver was presented with an emergency situation that was not of his own making when a vehicle that was double-parked on the right side of the roadway suddenly made a U-turn in front of him, and that he took reasonable and prudent action to avoid a collision … . They also met their initial burden of showing that their bus driver’s actions before the accident did not cause or contribute to the emergency, because the bus driver testified at his deposition that he was traveling no more than 15 miles per hour, warned the double-parked car before he attempted to pass by sounding his horn, and had his foot hovering over the brakes when the sedan suddenly made a U-turn in front of his bus when it was approximately five feet away. What is more, the driver had no duty to anticipate that another driver would make a sudden, illegal maneuver … .

… [T]he record shows that the driver was obliged to take immediate action when the car suddenly cut in front of the bus to make a U-turn, and stepping on the brakes to avoid a collision was a reasonable response to a situation not of defendants’ own making … . Santana-Lizardo v New York City Tr. Auth., 2020 NY Slip Op 05164, First Dept 9-29-20

 

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THE STATE HAS NOT PREEMPTED A MUNICIPALITY’S ABILITY TO REGULATE THE PROCESSING OF WASTE; THEREFORE, EVEN THOUGH THE STATE HAD ISSUED A PERMIT ALLOWING THE PROCESSING OF 500 TONS OF WASTE PER DAY, THE VILLAGE’S ACTION FOR A PERMANENT INJUNCTION REDUCING THE ALLOWED AMOUNT OF WASTE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village’s request for a preliminary injunction limiting the amount of waste that could be processed by defendant recycling company was properly denied, but the action seeking a permanent injunction should not have been dismissed. The Department of Environmental Conservation (DEC) had issued a temporary emergency permit allowing the defendant to process 1100 tons of waste per day and the defendant applied to make 1100 tons per day permanent. The village sought an injunction imposing the 2008 limit of 370 tons per day. While the preliminary injunction was pending, the DEC issued a permit imposing a daily waste limit of 500 tons per day, which obviated the need for the preliminary injunction. But, because the state has not preempted the ability of a municipality to regulate the amount of waste, the permanent injunction action should not have been dismissed:

… [T]he Supreme Court erred in determining, in effect, that it did not have the authority to issue declaratory or injunctive relief limiting the maximum amount of waste that could be processed at the facility in an amount less than that permitted by the DEC. Indeed, “the State has not preempted local legislation of issues related to municipal solid waste management” … . Thus, the DEC’s issuance of the 2016 renewal permit did not per se preclude the court from considering the merits of the causes of action asserted in the Village’s complaint. * * *

… [A]s a practical matter, the DEC’s issuance of the [500 ton per day] permit largely obviated the need for an order preliminarily enjoining the defendants … . … However, the Supreme Court had an insufficient legal or factual basis, at this preliminary stage, to deny the Village’s request for permanent injunctive relief precluding [defendant] from exceeding the 2008 limits. Indeed, if the Village is ultimately able to establish, at trial, that the defendants breached the terms of a prior agreement entered into between the Village and [defendant], or that the facility’s operation in excess of the 2008 limits constitutes a nuisance, or that the facility is operating in violation of the Village’s zoning code, then the Village may well be entitled to permanent injunctive relief as an appropriate remedy … . Incorporated Vil. of Lindenhurst v One World Recycling, LLC, 2020 NY Slip Op 05037, Second Dept 9-23-20

 

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AS A MATTER OF PUBLIC POLICY AN INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION CANNOT BE BROUGHT AGAINST A GOVERNMENTAL ENTITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant city’s motion for summary judgment in this false arrest and imprisonment, malicious prosecution, civil rights violation, negligent hiring and retention and intentional infliction of emotional distress action should have been granted, in large part because there was probable cause for defendant’s arrest. The court noted that an intentional infliction of emotional distress cause of action cannot be brought against a municipality:

… [T]he defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for intentional infliction of emotional distress, since “[i]t is well settled that public policy bars claims sounding in intentional infliction of emotional distress against a governmental entity” … . Rapuzzi v City of New York, 2020 NY Slip Op 05067, Second Dept 9-23-30

 

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OWNER OF OWNER-OCCUPIED TWO-FAMILY RESIDENCE IS EXEMPT FROM LIABILITY FOR A SIDEWALK SLIP AND FALL PURSUANT TO THE NYC ADMINISTRATIVE CODE AND WAS NOT LIABLE UNDER THE COMMON LAW; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this sidewalk slip and fall case, determined defendant property owner was exempt from liability under the administrative code and common law:

“Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner, except for sidewalks abutting one-, two-, or three-family residential properties that are owner occupied and used exclusively for residential purposes” ( … see Administrative Code of City of NY § 7-210[b]). Here, the defendants established, prima facie, that the subject property abutting the public sidewalk was a two-family, owner-occupied residence, and thus, that they are entitled to the exemption from liability for owner-occupied residential property … .

The defendants also established that they could not be held liable for the plaintiff’s alleged injuries under common-law principles. “Absent the liability imposed by statute or ordinance, an abutting landowner is not liable to a passerby on a public sidewalk for injuries resulting from defects in the sidewalk unless the landowner either created the defect or caused it to occur by special use” … . The defendants established, prima facie, that they did not create the defective condition that allegedly caused the plaintiff’s fall or make a special use of that area of the sidewalk … . Osipova v London, 2020 NY Slip Op 05053, Second Dept 9-23-30

 

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MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION FOR FAILURE TO STATE A CAUSE OF ACTION SHOULD BE TREATED AS A MOTION FOR A DECLARATORY JUDGMENT IN DEFENDANT’S FAVOR; TWO CAUSES OF ACTION NOT INCLUDED IN THE NOTICE OF CLAIM PROPERLY DISMISSED ON THAT GROUND (SECOND DEPT).

The Second Department determined the motion to dismiss the declaratory judgment action should have been treated as a motion for a declaration in the defendant’s favor. The action concerned fines imposed on plaintiff home-owner by NYC for the alleged failure to have the in-home elevator inspected once a year. Plaintiff alleged the relevant regulations were unconstitutional. Plaintiff also included causes of action for breach of contract and promissory estoppel. The contract and estoppel causes of action were dismissed because they were not included in plaintiff’s notice of claim. The regulations were deemed constitutional. With regard to the declaratory judgment cause of action and the notice of claim, the court wrote:

“‘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 declaration'” … . “[W]here a cause of action is sufficient to invoke the court’s power to ‘render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy’ (CPLR 3001; see CPLR 3017[b]), a motion to dismiss that cause of action should be denied” … . However, upon a motion to dismiss for failure to state a cause of action, a court may reach the merits of a properly pleaded cause of action for a declaratory judgment where “‘no questions of fact are presented [by the controversy]'” … . Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action “should be treated as one seeking a declaration in [the] defendant’s favor and treated accordingly” … . * * *

A timely notice of claim is a condition precedent to maintaining an action against the City of New York (see Administrative Code § 7-201 … ). Here, the notice of claim attached to the complaint fails to include any allegations relating to the plaintiff’s causes of action to recover damages for breach of contract and promissory estoppel … . Neuman v City of New York, 2020 NY Slip Op 05052, Second Dept 9-23-30

 

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INSTEAD OF DISMISSING THE PETITION FOR FAILURE TO INCLUDE A NECESSARY PARTY, SUPREME COURT SHOULD HAVE ORDERED THE PARTY SUMMONED PURSUANT TO CPLR 1001 (b) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking review of the village planning board’s decision re: petitioner’s application for approval of a subdivision should not have been dismissed. Because the planning board’s decision affected another landowner (160 South Ocean, LLC) Supreme Court dismissed the petition for failure to include a necessary party. The Second Department held Supreme Court should have ordered the party summoned pursuant to CPLR 1001 (b):

160 South Ocean, LLC, is a necessary party to this proceeding (see CPLR 1001[a]) subject to the jurisdiction of the court, and therefore, the Supreme Court should have “order[ed] [it] summoned,” rather than denying the petition and dismissing the proceeding for failure to join a necessary … party (CPLR 1001[b] …). Accordingly, we reinstate the petition and remit the matter to the Supreme Court, Suffolk County, for further proceedings, including a determination on the merits of the respondents’ motion, inter alia, to dismiss the petition … . Matter of Mulford Bay, LLC v Rocco, 2020 NY Slip Op 05050, Second Dept 9-23-30

 

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PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE CITY OF NEW YORK SHOULD NOT HAVE BEEN GRANTED IN THIS LEAD-PAINT EXPOSURE CASE; THE PLAINTIFF WAS EXPOSED TO LEAD IN AN APARTMENT OWNED BY THE NEW YORK CITY HOUSING AUTHORITY (NYCHA), AN ENTITY SEPARATE FROM THE CITY; THEREFORE THE UNDERLYING CLAIM WAS PATENTLY MERITLESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for leave to file a late notice of claim in this lead-paint exposure case should not have been granted with respect to the defendant City of New York. Plaintiff alleged exposure to lead in an apartment owned by the New York City Housing Authority (NYCHA) which is a entity separate from the city:

” Ordinarily, the courts will not delve into the merits of an action on an application for leave to serve and file a late notice of claim’ … . However, permission to file a late notice of claim is properly denied where the underlying claim is patently meritless’ …”.

Here, the Supreme Court should have denied the petition on the ground that the claim, insofar as asserted against the City, is patently meritless. “Liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property” … . It is undisputed that the apartment building in which the infant petitioner resided at the time of his injury was owned and operated by NYCHA, an entity which is separate from the City … . Furthermore, there is no basis for finding that the City owed the infant petitioner a duty based upon a special relationship between them … . Matter of K.G. v City of New York, 2020 NY Slip Op 04943, Second Dept 9-16-20

 

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DEFENDANTS’ MOTION TO DISMISS CLAIMS NOT INCLUDED IN THE NOTICE OF CLAIM PROPERLY GRANTED; MOTION TO AMEND THE NOTICE OF CLAIM AND MOTION FOR LEAVE TO FILE A LATE NOTICE PROPERLY DENIED; JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE CLAIM FOR LOSS OF SERVICES BECAUSE THAT RELIEF WAS NOT REQUESTED (SECOND DEPT).

The Second Department determined defendants’ motion to dismiss claims that were not in the notice of claim was properly granted, and plaintiffs’ motions to amend the notice of claim and for leave to file a late notice of claim were properly denied. The Second Department noted that the loss of services claim should not have been dismissed (sua sponte) because that relief was not requested. The action alleged negligent supervision by the school. Plaintiff student was allegedly pushed into a wall during gym class by another student who had been bullying her for some time:

The plaintiffs’ new claims of other purported bullying incidents and Dupper’s [plaintiff-student’s father’s] claim that he suffered stress, anxiety, and depression as a result of the … incident constitute new theories of liability which were not included in the notice of claim and should be dismissed … . …

The plaintiffs’ proposed amendments to the notice of claim add substantive new facts and new theories of liability not set forth in the original notice of claim and which are not permitted as late filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . …

… [T]he plaintiffs’ failure to include a proposed notice of claim with their cross motion alone was a sufficient basis for denying that branch of the cross motion … . C.D. v Goshen Cent. Sch. Dist., 2020 NY Slip Op 04916, Second Dept 9-16-20

 

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A COUNTY SHERIFF WAS INVOLVED IN THE TRAFFIC ACCIDENT FOR WHICH PETITIONER SOUGHT LEAVE TO FILE A LATE NOTICE OF CLAIM; BECAUSE THE COUNTY WAS AWARE OF THE POTENTIAL ACTION FROM THE OUTSET, LEAVE WAS PROPERLY GRANTED (SECOND DEPT).

Petitioner state trooper was involved in a traffic accident with a county sheriff and sought to file a late notice of claim against the county. The county was aware of the potential claim from the outset, because a county employee was involved. Therefore leave to file a late notice of claim was properly granted:

Although a police report regarding an automobile accident does not, in and of itself, constitute notice of a claim to a municipality, where the municipality’s employee was involved in the accident and the report or investigation reflects that the municipality had knowledge that its employee committed a potentially actionable wrong, the municipality can be found to have actual notice … . In this case, the subject motor vehicle accident involved an Orange County Sheriff’s vehicle and employee. Numerous officers from the Orange County Sheriff’s office responded to the scene of the accident. Further, the police accident report prepared by a state police officer who responded to the scene contained the injured petitioner’s account of how the accident occurred. Specifically, the police report indicated that the County committed a potentially actionable wrong when its employee allegedly failed to yield the right of way to the injured petitioner’s vehicle even though the injured petitioner’s vehicle’s lights and sirens were activated. The police accident report also indicated that the injured petitioner was allegedly injured in the accident. Moreover, upon submitting a request to the County pursuant to the Freedom of Information Law for documents related to this accident, the County produced the police accident report, photographs taken of the vehicles and the accident scene, unit activity logs for the vehicles, and the Orange County Sheriff’s report regarding the accident. Thus, the County acquired timely actual knowledge of the essential facts constituting the petitioners’ claim … .

Moreover, as the County acquired timely knowledge of the essential facts constituting the petitioners’ claim, the petitioners met their initial burden of showing that the County would not be prejudiced by the late notice of claim … . Matter of McVea v County of Orange, 2020 NY Slip Op 04840, Second Dept 9-2-20

 

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