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COMPLAINT IN PUTATIVE CLASS ACTION ALLEGING DISCRIMINATION AGAINST PERSONS WHO CANNOT USE STAIRS PROPERLY SURVIVED MOTIONS TO DISMISS; 360 OF 427 NYC SUBWAY STATIONS ARE ACCESSIBLE ONLY BY STAIRS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, determined that the transit authority’s and the city’s motions to dismsiss the complaint in this putative class action were properly denied. The complaint, brought pursuant to the NYC Human Rights Law (NYCHRL), alleged discrimination against persons with disabilities which prevent them from using stairs. 360 of the 427 subway stations in NYC are accessible only by stairs. The First Department held: (1) the action was not time-barred because the continuous violation doctrine applied; (2) the action was not preempted by either Transportation Law 15-b or Public Authorities Law 1266 (8); (3) the controversy is justiciable; and (4) the city, which owns the stations, was not entitled to pre-discovery dismissal. With respect to the continuous violation doctrine, the court wrote:

… [T]he reach of the continuous violation doctrine under NYCHRL is broader than under either federal or state law. A broad interpretation is consistent with a “rule that neither penalizes workers who hesitate to bring an action at the first sign of what they suspect could be discriminatory trouble, nor rewards covered entities that discriminate by insulating them[selves] from challenges to their unlawful conduct that continues into the limitation period” … . Thus, defendants’ claimed failure to provide an accessible subway system is a continuous wrong for purposes of tolling the statute of limitations under the NYCHRL Center for Independence of the Disabled v Metropolitan Transp. Auth., 2020 NY Slip Op 03203, First Dept 6-4-20

 

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THE TOWN’S SEQRA NEGATIVE DECLARATION REGARDING THE EXPANSION OF A CAMPGROUND WAS ARBITRARY AND CAPRICIOUS; THE DEVELOPMENT AGREEMENT BETWEEN THE TOWN AND THE CAMPGROUND CONSTITUTED ILLEGAL CONTRACT ZONING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the town planning board’s adoption of negative declaration pursuant to the State Environmental Quality Review Act (SEQRA) with respect to the expansion of a campground (BBFC) was arbitrary and capricious. The Second Department further found that the development contract between the town and BBFC constituted illegal contract zoning:

The Planning Board failed to adequately assess and consider the potential environmental impacts of the construction and expansion of the campground from 74 campsites to 154 campsites, and adopted the negative declaration based largely upon its finding that the campground had been operating 154 campsites—albeit illegally—for many years. Under the circumstances, the Planning Board’s adoption of the negative declaration was arbitrary and capricious.

… [T]he development agreement entered into between the Town Board and BBFC constituted illegal contract zoning. “[N]o municipal government has the power to make contracts that control or limit it in the exercise of its legislative powers and duties” … . The test is whether the development agreement committed the Town to a specific course of action with respect to a zoning amendment … . The Town Board agreed to amend the zoning code to permit 210-day occupancy limit, a change from the current 120-day occupancy limit, in exchange for BBFC’s agreement that the 210-day occupancy limit would apply to all of the campsites, including the original 74 approved campsites. This was an agreement binding on BBFC to give a form of consideration in exchange for legislative action and to limit the Town Board’s authority to change the bulk requirements in the zoning code until such time as BBFC would not be negatively affected by such change … . Matter of Neeman v Town of Warwick, 2020 NY Slip Op 03112, Second Dept 6-3-20

In the same matter, the Second Department determined the granting of an area variance for the campground, based upon the nonconforming campsites which had already been constructed, was arbitrary and capricious. Matter of Neeman v Town of Warwick, 2020 NY Slip Op 03113, Second Dept 6-3-20

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HUMAN RESOURCES ADMINISTRATION SECURITY DEPOSIT VOUCHERS MUST BE ACCEPTED IN LIEU OF CASH DEPOSITS; TO REFUSE TO ACCEPT THE VOUCHERS VIOLATES THE NYC HUMAN RIGHTS LAW; THE VOUCHER PROGRAM DOES NOT VIOLATE THE SOCIAL SERVICES LAW OR THE URSTADT LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined plaintiff Estates, a leasing agent for multi-family apartment buildings in New York City, must accept a Human Resources Administration (HRA) security deposit voucher for an apartment. When the potential tenant, Walters, applied for an apartment, plaintiff’s employee told her the security deposit must be cash:

We find that the court correctly concluded that HRA’s security deposit vouchers are a “lawful source of income” under the City HRL [Human Rights Law] (Administrative Code § 8-102) and are therefore included in the HRL’s prohibition against discrimination by a landlord against a prospective tenant because of “any lawful source of income” (Administrative Code § 8-107[5][a][1]). “The term lawful source of income’ includes income derived from social security, or any form of federal, state or local public assistance or housing assistance including section 8 vouchers” … .

Administrative Code § 8-107(5) prohibits a landlord from refusing to accept a Section 8 voucher from an existing tenant or refusing a lease to a prospective tenant who seeks to pay rent with a Section 8 voucher … . …

Supreme Court correctly found that HRA’s security deposit voucher program does not violate Social Services Law § 143-c. * * *

Finally, we find that the voucher program does not violate the Urstadt Law (McKinney’s Uncons Laws of NY § 8605). “The Urstadt Law was intended to check City attempts, whether by local law or regulation, to expand the set of buildings subject to rent control or stabilization'” … . Here, a landlord’s acceptance of such security deposit vouchers “will have no impact in expanding the buildings subject to the rent stabilization law or expanding regulation under the rent laws” … . Estates NY Real Estate Servs. LLC v City of New York, 2020 NY Slip Op 03093, First Dept 5-28-20

 

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MISNOMER DID NOT PREJUDICE THE CITY; CITY’S MOTION TO DISMISS SHOULD HAVE BEEN DENIED AND PLAINTIFF’S CROSS MOTION TO AMEND THE SUMMONS AND COMPLAINT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the mis-description of the defendant in the summons and complaint did not prejudice the city, which was notice of the plaintiff’s suit:

The summons and complaint were served on Corporation Counsel for the City of New York, which answered on behalf of the City of New York. Defendant’s motion to dismiss the complaint should have been denied and plaintiff’s cross motion to amend the summons and complaint to correct the misnomer granted. The City was not prejudiced by the mis-description and was on notice that plaintiff intended to seek a judgment against it (see CPLR 305[c] … ). Rivera v New York City Dept. of Sanitation, 2020 NY Slip Op 03085, First Dept 5-28-20

 

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MOTIONS IN LIMINE WHICH AFFECT THE SCOPE OF THE TRIAL ARE APPEALABLE; TWO-YEAR WRONGFUL DEATH STATUTE OF LIMITATIONS APPLIED TO THE MUNICIPALITIES; PRECLUDING EXPERT TESTIMONY BASED UPON DISCLOSURE DEFICIENCIES WAS AN ABUSE OF DISCRETION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined: (1) plaintiff did not allege separate claims for personal injury and wrongful death, therefore the two-year wrongful-death statute of limitations in EPTL 5-4.1, not the one-year-ninety-days statute of limitations for negligence, applied to the actions against the municipalities; (2) motions in limine which limit the scope of the trial are appealable; and (3) preclusion of plaintiff’s expert’s testimony, based upon deficient disclosure pursuant to CPLR 3101 (d)(1), was an abuse of discretion. The action arose from a gas explosion at the great grandfather’s house which killed plaintiff’s 15-month-old son. Plaintiff sued the village, the town, the county and the New York State Electric & Gss Corporation (NYSEG). With regard to the motions in limine, the Third Department wrote:

“An order ruling on a motion in limine is generally not appealable as of right or by permission since an order made in advance of trial which merely determined the admissibility of evidence is an unappealable advisory ruling. However, an order that limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party, is appealable” … . As to plaintiff’s objection to that part of the order as allowed evidence of the great grandfather’s negligence as a defense to the claim of res ipsa loquiter does not limit the scope of issues or impact a substantial right, such issue is not appealable … . Plaintiff also contends that Supreme Court erred in partially granting NYSEG’s motion to preclude the testimony of Reiber, plaintiff’s economist. Finding that the expert disclosure lacked reasonable detail as to how the value that Reiber assigned to plaintiff’s lost services and support would be calculated, Supreme Court precluded his testimony with regard to said damages. … However, because this ruling restricted plaintiff’s ability to prove and recover damages, this issue is appealable … . Reed v New York State Elec. & Gas Corp., 2020 NY Slip Op 03054, 5-28-20

 

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THERE WAS A QUESTION OF FACT WHETHER WATER ON THE FLOOR RESULTED FROM A RECURRING LEAK WHICH SHOULD HAVE BEEN NOTICED BY THE NYC HOUSING AUTHORITY; THERE WAS NO EVIDENCE THE ROOF-REPAIR CONTRACTORS HIRED BY THE HOUSING AUTHORITY LAUNCHED AN INSTRUMENT OF HARM; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE HOUSING AUTHORITY IN THIS SLIP AND FALL CASE BUT WAS PROPERLY AWARDED TO THE CONTRACTORS (FIRST DEPT).

The First Department, reversing Supreme Court, determined summary judgment should not have been granted to defendant NYC Housing Authority (NYCHA) in this slip and fall case. However, summary judgment was properly granted to the roof-repair contractors hired by the NYCHA to ensure the roof was watertight. There was no evidence the contractors launched an instrument of harm causing the accumulation of water on the floor which allegedly caused plaintiff’s fall. But there was evidence the water on the floor was caused by a recurring leak which should have been noticed by the NYCHA:

… [T]he Ruiz [eyewitness] affidavit established that leaks had existed in the ceiling for a long period of time before the accident, and that water from the ceiling had caused the accident. The photographs of the ceiling show discoloration and peeling paint that could be suggestive of a longstanding, “visible and apparent” condition — dripping water – that NYCHA’s practices and procedures unreasonably failed to observe … . May’s testimony that had he seen a leak he would have placed a bucket underneath it and notified his supervisor fails to account for why he or anybody at NYCHA did not notice the obvious condition of the ceiling, nor does the evidence that there were no complaints regarding leaks on the 20th floor explain why NYCHA’s maintenance staff did not notice it.

… [T]he fact that NYCHA completed the roof replacement before the accident does not absolve it of liability as a landowner. NYCHA failed to establish, through an expert affidavit or otherwise, that any condition that may have caused the leaks discussed in the Ruiz affidavit was actually addressed by the project. However, because [defendants] Liro and Corbex are not landowners but rather mere contractors hired by NYCHA to replace the roofs, they owed no direct duty to plaintiff, but could only be liable to the extent that they launched an instrument of harm, that plaintiff detrimentally relied on their performance of their respective contracts with NYCHA, or that they entirely replaced NYCHA’s obligation to maintain the premises in a safe condition (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). There is no evidence to suggest that either of those three conditions existed here. Williams v New York City Hous. Auth., 2020 NY Slip Op 03063, First Dept 5-28-20

 

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NEW RULE ALLOWING THE NYC CIVILIAN COMPLAINT REVIEW BOARD TO INVESTIGATE SEXUAL MISCONDUCT ALLEGATIONS AGAINST POLICE OFFICERS IS INVALID; PUBLIC VETTING PROCESS WAS NOT FOLLOWED (FIRST DEPT).

The First Department, over a dissent, in a comprehensive decision too detailed to fairly summarize, reversing (modifying) Supreme Court, determined certain Rules of City of New York Civilian Complaint Review Board adopted in 2018 were valid, but the 2018 resolution to begin investigating sexual misconduct allegations against police officers was invalid:

Defendant-respondent The New York City Civilian Complaint Review Board (the CCRB) investigates allegations of police misconduct toward members of the public (NY City Charter § 440[a]). It is empowered to receive, investigate, hear, make findings, and recommend action upon complaints that allege misconduct involving excessive use of force, abuse of authority, discourtesy or use of offensive language … . At issue in this appeal are certain amended rules adopted by the CCRB in 2018 … and a resolution, also adopted in 2018, to begin investigating sexual misconduct, which previously had been referred to the New York City Police Department (NYPD) Internal Affairs Bureau (IAB). * * *

By declaring that the CCRB would assert jurisdiction over an entire category of misconduct that it had historically referred as a matter of policy, the resolution announced a sweeping policy change that materially affected the rights of all alleged victims of sexual misconduct and allegedly offending police officers “equally and without exception,” and thus amounted to the adoption of a new “rule” … . However, because the CCRB undisputedly did not follow the public vetting process required … for adopting a new rule, the sexual misconduct resolution is a nullity … . Matter of Lynch v New York City Civilian Complaint Review Bd., 2020 NY Slip Op 03062, First Dept 5-28-20

 

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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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