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AN ACTION FOR A DECLARATORY JUDGMENT SHOULD NOT BE DISMISSED AT THE PRE-ANSWER STAGE BASED UPON A FINDING THE PLAINTIFF MAY NOT BE ENTITLED TO THE DECLARATORY RELIEF (SECOND DEPT).

The Second Department, reversing Supreme Court, explained that an action for a declaratory judgment should not be dismissed at the pre-answer stage when the pleading standards are met:

… [T]he plaintiffs alleged that certain provisions of Nassau County Administrative Code, chapter XXI, title D-21-Drycleaners and Laundromats were unconstitutional, unconstitutionally vague, served no legitimate purpose, and lacked any substantial relationship to the legislative intent … . …

” 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'” … . “[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” … .

Here, the complaint was 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 (see CPLR 3001 …). A complaint will not be dismissed pursuant to CPLR 3211(a)(7) merely because the plaintiffs may not be entitled to a declaration in their favor … . Laundry Palace U, Inc. v Nassau County, 2020 NY Slip Op 03005, Second Dept 5-27-20

 

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CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS ACTION STEMMING FROM THE POLICE-KILLING OF AN 18-YEAR-OLD BOY AFTER HIS MOTHER CALLED 911 SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the City defendants’ motion for summary judgment in this negligence, wrongful death and civil-rights-violation action should not have been granted. Plaintiffs’ decedent, 18 years old, was shot and killed by police after his mother called 911. The Second Department noted that Supreme Court properly granted summary judgment to defendants on the cause of action based upon defendants’ alleged failure to follow the Patrol Guide for the apprehension of barricaded and emotionally disturbed persons because the relevant actions were discretionary and thus entitled to governmental immunity:

… [A] municipal defendant cannot be held liable for the negligent acts of its employee police officers where it establishes that the alleged negligent acts involved the exercise of discretionary authority … . Discretionary acts “involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … . …

… [T]he defendants submitted the deposition testimony of each of the defendant officers who fired at the decedent, as well as the deposition testimony of a nonparty civilian who observed the incident. … [T]he testimonies of these witnesses demonstrate the existence of triable issues of fact as to whether … the decedent posed a threat of imminent death or serious physical injury to the defendant officers or others sufficient to justify the officers’ use of deadly physical force against the decedent … . …  [T]he City may not rely on the defense of governmental immunity because the defendant officers’ actions, if negligent, would be in violation of the Patrol Guide’s prohibition against the use of deadly physical force, and therefore, not discretionary … . …

… [Re: 42 USC 1983] the defendants failed to demonstrate, prima facie, the absence of triable issues of fact as to whether the defendant officers’ use of deadly physical force against the decedent was objectively reasonable under the circumstances … . The defendants further failed to establish, prima facie, the absence of triable issues of fact as to whether a reasonable officer, facing the same situation, could have believed that deadly physical force was necessary to protect himself or herself or others from death or serious physical injury, and that the defendant officers are thus entitled to qualified immunity … . Owens v City of New York, 2020 NY Slip Op 03019, Second Dept 5-27-20

 

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QUESTIONS OF FACT RAISED ABOUT THE APPLICABILITY OF THE STORM IN PROGRESS RULE, WHETHER THE DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF WAS INJURED BY A CONDITION HE WAS HIRED TO REPAIR; SLIP AND FALL OCCURRED ON DEPARTMENT OF EDUCATION, NOT NYC, PROPERTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Department of Education’s (DOE’s) motion for summary judgment in this slip and fall case should not have been granted. Plaintiff slipped and fell on an exterior step of a school. Questions of fact were raised about the applicability of the storm in progress rule, whether the defect was trivial, and whether the plaintiff was injured by the condition he was hired to repair. However, the City’s motion for summary judgment was properly granted because the slip and fall occurred on DOE property, not NYC property:

… [A]lthough it is undisputed that a storm was in progress at the time of the plaintiff’s accident, the defendants failed to eliminate triable issues of fact as to whether an allegedly defective condition with the step caused or contributed to the plaintiff’s injuries … . … There may be more than one proximate cause of an accident, and here, the defendants failed to establish, prima facie, that the alleged unevenness of the step was not a proximate cause of the plaintiff’s accident … . …

… [T]he defendants submitted the DOE’s 2010-2011 building condition assessment survey for the school, which indicated that the step was in “poor” condition, described the deficiency as “stone deteriorated substrate,” and noted “replace substrate and reset” as a potential action. Although “[p]hotographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” … , the only photograph submitted by the defendants in their moving papers was a small, black-and-white photograph of the step in the building condition assessment survey for the school, which was indistinct and failed to establish that the alleged defect was trivial as a matter of law … . …

The defendants also failed to demonstrate their prima facie entitlement to judgment as a matter of law on the ground that the plaintiff was injured by the condition he was responsible for repairing … . Mejias v City of New York, 2020 NY Slip Op 03008, Second Dept 5-27-20

 

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MUNICIPAL EMERGENCY PERSONNEL WERE ENGAGED IN A GOVERNMENTAL FUNCTION RESPONDING TO PLAINTIFFS’ 911 CALL AND THERE WAS NO SPECIAL RELATIONSHIP WITH THE PLAINTIFFS; MUNICIPAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENCE, WRONGFUL DEATH ACTION PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the municipal police and ambulance defendants’ motion for summary judgment was properly granted in this negligence, wrongful death action. Plaintiff’s decedent died after his wife called 911 and the police and ambulance personnel were unable to revive him. The Second Department found that the municipal defendants were engaged in a governmental function and there was no special relationship between the plaintiffs and the municipal defendants:

… [T]he defendants were engaged in a governmental function as a provider of emergency medical services pursuant to a municipal emergency response 911 system, such that the defendants could not be held liable to the plaintiff unless they owed her a special duty … . One way to establish the existence of a special duty is by showing that the defendant assumed a “special relationship” with the plaintiff beyond the duty that is owed to the public generally … . “The plaintiff has the heavy burden of establishing the existence of a special relationship by proving all of the following elements: (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” … . Of the four factors, the “justifiable reliance” element is “critical” because it “provides the essential causative link between the special duty assumed by the municipality and the alleged injury” … . …

There is nothing in the record to suggest that Officer Kelly or any of the defendants’ agents lulled the plaintiff into a false sense of security, or induced her to forego other avenues to transport her husband to the hospital, and therefore placed the plaintiff in a worse position than she would have been had the defendants never assumed the duty … . Marks-Barcia v Village of Sleepy Hollow Ambulance Corps, 2020 NY Slip Op 03007, Second Dept 5-27-20

 

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DIFFERENT STANDARDS OF PROOF OF EMPLOYMENT DISCRIMINATION UNDER THE NY CITY HUMAN RIGHTS LAW, AS OPPOSED TO THE NY STATE HUMAN RIGHTS LAW, EXPLAINED IN SOME DEPTH; PLAINTIFF’S CAUSE OF ACTION FOR GENDER DISCRIMINATION UNDER THE NY CITY HUMAN RIGHTS LAW ON A THEORY OF A HOSTILE WORK ENVIRONMENT REINSTATED (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Brathwaite Nelson, reversing (modifying) Supreme Court, determined plaintiff’s cause of action for gender discrimination on a theory of a hostile work environment under the NY City Human Rights Law should not have been dismissed. The Second Department held that the “materially adverse” change in employment conditions, which applies to the NY State Human Rights Law, does not apply to the NY City Human Rights Law. The standard under the NY City Human Rights Law is a showing that plaintiff was subject to an unfavorable change or treated less well than other employees on the basis of a protected characteristic. The Second Department took pains to explain the different standards of proof under the State and City Human Rights Laws:

… [U]nder the City Human Rights Law, in order to demonstrate liability, a plaintiff need not establish that she or he was subjected to a “materially adverse” change to terms and conditions of employment, but only that she or he was subject to an unfavorable change or treated less well than other employees on the basis of a protected characteristic … . * * *

The alleged comment by Denesopolis [plaintiff’s boss], that he did not “like women on this job because they have babies,” plainly expresses a view of the role of women in the workplace. Considering the totality of the circumstances, which include the plaintiff’s testimony that Denesopolis expressed displeasure upon learning of her transfer to his unit as a pregnant woman, and then again at her second pregnancy, we cannot say that this is a “truly insubstantial case” as a matter of law. In addition, while it might be inferred that the incidents in which Denesopolis publicly reprimanded the plaintiff and referred to her as an “empty suit” and “Sergeant do nothing” were related to deficiencies in her performance as a sergeant, on the defendants’ motion for summary judgment, we must view the facts in the light most favorable to the plaintiff. A jury could agree with the plaintiff that the conduct was based upon her pregnancies and conclude that the plaintiff was subject to a workplace in which she was treated less well than others because of her gender. Accordingly, the cause of action alleging gender discrimination on a theory of a hostile work environment under the City Human Rights Law must be reinstated.  Golston-Green v City of New York, 2020 NY Slip Op 02768, Second Dept 5-13-20

 

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BECAUSE THE HOLDER OF A FIRST MORTGAGE WAS A DEFENDANT IN THE TAX FORECLOSURE PROCEEDINGS, THE MORTGAGE HOLDER DID NOT NEED TO FILE ITS OWN FORECLOSURE ACTION TO ENFORCE ITS LIEN ON THE SURPLUS TAX-FORECLOSURE-SALE PROCEEDS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, determined that HPD,  the holder of a first mortgage on property which was the subject of a tax foreclosure, was entitled to the surplus funds from the tax foreclosure sale. The issue was whether HPD’s action seeking the surplus was time-barred because it didn’t enforce the lien on the surplus within six years of the tax foreclosure sale. The Second Department held no further action to enforce the lien was necessary because HPD was a defendant in the tax foreclosure proceedings:

… HPD’s appearance in the tax lien foreclosure action put [the property owner] and anyone else interested in a potential surplus on notice of HPD’s claims. To require HPD to commence a separate foreclosure action, when an action to foreclose the tax lien was already pending, would serve no useful purpose. NYCTL 1997-1 Trust v Stell, 2020 NY Slip Op 02802, Second Dept 5-13-20

 

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PLAINTIFFS, THE DRIVER AND PASSENGER IN THIS TRAFFIC ACCIDENT CASE, REPRESENTED BY THE SAME ATTORNEY, REFUSED TO PARTICIPATE IN THE GENERAL MUNICIPAL LAW 50-h HEARING(S) UNLESS EACH PLAINTIFF WAS PRESENT WHEN THE OTHER TESTIFIED; THE COURT OF APPEALS AFFIRMED THE DISMISSAL OF ACTION BASED UPON PLAINTIFFS’ FAILURE TO APPEAR FOR THE 50-h HEARING(S) (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a concurring opinion, determined plaintiffs, the driver and passenger in this traffic accident case, did not have the right to observe each other’s testimony at a General Municipal Law 50-h hearing. Both plaintiffs were represented by the same attorney. The action was dismissed because plaintiffs refused to appear for the hearing(s) after plaintiffs’ counsel insisted that both plaintiffs be present during the testimony. The Court of Appeals affirmed the dismissal of the action:

As General Municipal Law § 50-h (5) makes clear on its face, compliance with a municipality’s demand for a section 50-h examination is a condition precedent to commencing an action against that municipality … . A claimant’s failure to comply with such a demand generally warrants dismissal of the action … . Requiring claimants to comply with section 50-h before commencing an action augments the statute’s purpose, which “is to afford the city an opportunity to early investigate the circumstances surrounding the accident and to explore the merits of the claim, while information is readily available, with a view towards settlement” … . Colon v Martin, 2020 NY Slip Op 02681, CtApp 5-7-20

 

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THE CITY’S AND THE ABUTTING PROPERTY OWNER’S MOTIONS FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED; THE CITY DID NOT SHOW THAT IT DID NOT CREATE THE DEFECT; THE ABUTTING PROPERTY OWNER HAS A NONDELEGABLE DUTY TO KEEP THE SIDEWALK SAFE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the city’s and the abutting property owner’s motions for summary judgment in this sidewalk slip and fall case should not have been granted. The defect was a mound of concrete with a piece of metal in the sidewalk. Although the city demonstrated it did not have written notice of the defect, the city did not demonstrate it did not create the defect. And the abutting property owner had a nondelegable duty to keep the sidewalk in a safe condition. O’Connor v Tishman Constr. Corp., 2020 NY Slip Op 02383, First Dept 4-23-20

 

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PLAINTIFF SOCIAL WORKER WAS MENACED BY A TENANT IN CITY HOUSING WIELDING A KNIFE AND SUED THE CITY; THE CITY WAS ACTING IN A GOVERNMENTAL CAPACITY; THERE WAS NO SPECIAL DUTY OWED TO PLAINTIFF BY THE CITY; THE ATTACK WAS NOT FORESEEABLE; SECURITY WAS ADEQUATE; THE COMPLAINT WAS PROPERLY DISMISSED (FIRST DEPT).

The First Department determined plaintiff social worker’s suit against the city based on a tenant’s menacing her with a knife  was properly dismissed. The incident happened at city housing for mentally ill and homeless persons:

The court correctly concluded that the City defendants were acting in a governmental capacity when they provided funding for the facility and its services. A party seeking to impose liability on a municipality acting in a governmental capacity must establish the existence of a special duty to plaintiff, which is more than the duty owed to the public generally … . Here, plaintiff presented no evidence that would provide a basis for finding that a special duty was owed to her by the City defendants.

Regarding defendants owner and managing agent of the premises, a landowner must act as a reasonable person in maintaining the property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk … . The owner and managing agent demonstrated that the incident was not reasonably foreseeable in that the tenant was a resident in the facility for nine years and had no record of violent behavior or threats of violence to others … . Plaintiff asserts that the tenant was an unsuitable tenant for the facility because of his mental illness and prior criminal conduct. However, the tenant’s criminal conduct took place 15 years before the incident.

Plaintiff argues that the facility lacked adequate security given its “high risk” population. However, surveillance cameras controlling building access and functioning locks on office doors, which were present here, have been found to be sufficient to satisfy the “minimal precautions” standard … . Furthermore, since the incident was over in less than a minute and security personnel were alerted and responded, additional security could not have prevented the incident … . Musano v City of New York, 2020 NY Slip Op 02368, First Dept 4-23-20

 

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GENERAL BUSINESS LAW 349 DECEPTIVE BUSINESS PRACTICES CAUSE OF ACTION IN THE CONTEXT OF A RENT STABILIZATION LAW (RSL) RENT-OVERCHARGE SUIT WAS PROPERLY DISMISSED (CT APP).

The Court of Appeals, over a partial dissent, determined the General Business Law 349 cause of action alleging deceptive business practices in the context of the Rent Stabilization Law (RSL) rent-overcharge suit was properly dismissed:

… General Business Law … , section 349 prohibits “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state” … . We have held that this statute “cannot fairly be understood to mean that everyone who acts unlawfully, and does not admit the transgression, is being deceptive'” within the meaning of section 349 … . For purposes of this appeal, we assume without deciding that a claim may lie under General Business Law § 349 based upon a landlord’s alleged misrepresentation to the public that an apartment was exempt from rent regulation following deregulation in violation of the Rent Stabilization Law. Here, however, plaintiffs alleged only that defendants failed to admit that they violated the Rent Stabilization Law in deregulating plaintiffs’ apartments—three of which were, in fact, never deregulated—rather than any affirmative conduct that would tend to deceive consumers. Inasmuch as plaintiffs failed to allege more than “bare legal conclusions” … regarding the existence of consumer-oriented, deceptive acts … , their General Business Law claim was properly dismissed. Collazo v Netherland Prop. Assets LLC, 2020 NY Slip Op 02128, CtApp 4-2-20

 

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