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ALTHOUGH THE LEASE DID NOT IMPOSE A DUTY ON THE TENANT TO MAINTAIN THE SIDEWALK, THE VILLAGE CODE DID; THE TENANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant tenant’s (Invite Health’s) motion for summary judgment in this sidewalk slip and fall case should not have been granted. Although, under the lease, the tenant had no duty to maintain the sidewalk, the village code imposed that duty on owners and tenants:

Here, Code of the Village of New Hyde Park § 165-40.1 requires “owners, tenants or other persons occupying or entitled to the possession and control of any lands, whether vacant or improved” to, among other things, maintain the abutting public sidewalk “in a good state of repair and free and clear of any physical defects or other unsafe, hazardous or dangerous obstructions, encumbrances or conditions” and imposes joint and several liability upon them for injuries caused by their breach of that duty (see Code of the Village of New Hyde Park §§ 1-18, 165-40.1). Given the Code’s imposition of an obligation on a tenant or occupant to maintain an abutting public sidewalk, Invite Health, as a tenant and occupant of the abutting property, had a statutory duty to maintain the public sidewalk where the accident occurred (see Code of the Village of New Hyde Park §§ 1-18, 165-40.1 …) . As such, the mere fact that Invite Health had no duty under the lease agreement to maintain the abutting sidewalk was not dispositive of the issue of whether it owed the injured plaintiff a duty of care. Mule v Invite Health at New Hyde Park, Inc., 2020 NY Slip Op 00869, Second Dept 2-5-20

 

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PETITIONERS, SIMPLY BY VIRTUE OF BEING RESIDENTS OF THE VILLAGE, HAD STANDING TO CHALLENGE THE VILLAGE BOARD’S ALLEGED VIOLATION OF THE OPEN MEETINGS LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Rivera, determined petitioners, as members of the public and residents of the Village of Mamaroneck, had standing to challenge an alleged violation of the Open Meetings Law. Petitioners alleged the Village Board did not provide proper notice of the meeting, improperly entered a closed executive session and failed to accurately record the minutes of the meeting:

The purpose of the Open Meetings Law and the intent of the Legislature in enacting that law dictate that the harm or injury is the alleged unlawful exclusion of the public from a municipal meeting. The Open Meetings Law plainly confers upon the public the right to attend certain meetings of public bodies (see Public Officers Law § 100). Consistent therewith, the harm or injury of being excluded from municipal meetings that should be open to the public is sufficient to establish standing in cases based upon alleged violations of the Open Meetings Law … . If the analysis and determination of the Supreme Court were allowed to stand, a petitioner/plaintiff would have to demonstrate an additional personal damage or injury to his or her civil, personal, or property rights in order to assert a violation of the Open Meetings Law. This would, in effect, interject a counterintuitive restriction upon the general citizenry’s access and participatory freedoms to attend certain meetings of a public body. Such a requirement or condition would undermine, erode, and emasculate the stated objective of this statute, which was designed to benefit the citizens of this state and the general commonweal, assure the public’s right to be informed, and prevent secrecy by governmental bodies. Matter of McCrory v Village of Mamaroneck Bd. of Trustees, 2020 NY Slip Op 00864, Second Dept 2-5-20

 

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TOWN DID NOT DEMONSTRATE IT DID NOT RECEIVE WRITTEN NOTICE OF THE ALLEGED SIDEWALK DEFECT IN THIS SLIP AND FALL CASE; THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the town’s motion for summary judgment in this sidewalk slip and fall case should not have been granted because the town did not demonstrate it had not received written notice of the defect. The Second Department noted that Supreme Court properly rejected plaintiff’s theory that inadequate lighting was a factor because that theory was not in the notice of claim and permission to amend the notice of claim was not sought by the plaintiff:

To prevail on its motion, it was the Town’s burden to establish, prima facie, that no prior written notice of the alleged condition was given to either the Town Clerk or Town Commissioner of Highways (see Code of the Town of Hempstead § 6-3; Town Law § 65-a[2]). In support of its motion for summary judgment, the Town submitted, inter alia, the affidavit of a records access officer for the Town’s Highway Department, wherein she specifically averred that she searched the Highway Department records, but did not state that she searched the Town Clerk’s records. Thus, the Town failed to establish, prima facie, that neither the Town Clerk nor the Commissioner of Highways received prior written notice of the alleged condition … . Weinstein v County of Nassau, 2020 NY Slip Op 00890, Second Dept 2-5-20

 

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ALTHOUGH THE CITY GAVE A PERMIT TO A BUS COMPANY TO USE A PARKING LOT, THE CITY DID NOT DEMONSTRATE IT RELINQUISHED ALL CONTROL OVER THE MAINTENANCE OF THE PARKING LOT SUCH THAT IT COULD NOT BE HELD LIABLE IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the City did not demonstrate it relinquished maintenance responsibilities for a parking lot licensed to a bus company in this slip and fall case:

… [T]he City failed to meet its prima facie burden of demonstrating that it relinquished control of the premises such that it had no duty to the plaintiff to remedy the allegedly defective condition. In support of its motion, the City submitted a copy of the permit agreement, as well as the deposition testimony of several City employees. The permit agreement provided that the bus company had some responsibility for maintenance of the premises, but that the permit also was revocable at will by the City, and the City reserved “the right at all times to free and interrupted access” to any portion of the premises. Moreover, the deposition testimony submitted by the City established, prima facie, that City employees made regular visual inspections of the premises.

Viewing the evidence in the light most favorable to the plaintiff … , it cannot be said as a matter of law that the City relinquished control of the premises to the bus company such that it owed no duty to the plaintiff to remedy the allegedly defective condition… . D’Angelo v City of New York, 2020 NY Slip Op 00569, Second Dept 1-29-20

 

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BUILDING OWNER NOT LIABLE FOR ALLEGED FAILURE TO ENSURE A SMOKE DETECTOR WAS FUNCTIONAL, DESPITE THE ALLEGATION THE OWNER REGULARLY INSPECTED THE SMOKE DETECTORS (FIRST DEPT).

The First Department determined the defendant landlord could not be held liable for the failure to ensure a smoke detector was functional:

In this action where plaintiff alleges that he was injured as a result of a fire in his apartment due to defendant building owner’s negligent failure to provide an operable smoke detector, defendant demonstrated prima facie that he satisfied his statutory duty to provide a functional smoke detector in the apartment, and accordingly, the obligation to maintain the smoke detector was assumed by plaintiff (see Administrative Code of City of NY § 27-2045[a][1], [b][1], [2]).

Plaintiff’s argument that defendant voluntarily assumed a duty to ensure his smoke detector was in good working condition by regularly inspecting tenants’ smoke detectors, is unavailing. “Liability under this theory may be imposed only if defendant’s conduct placed plaintiff in a more vulnerable position than he would have been in had defendant done nothing” … . Here, however, plaintiff provided no evidence that he relied on defendant’s inspection of his smoke detector to ensure its functionality, and instead testified that he never saw the building superintendent inspect his smoke detector. Figueroa v Parkash, 2020 NY Slip Op 00525, First Dept 1-28-20

 

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CLASS ACTION AGAINST NYC HOUSING AUTHORITY FOR BREACH OF THE WARRANTY OF HABITABILITY RE: LOSS OF HEAT AND/OR HOT WATER GOES FORWARD (FIRST DEPT).

The First Department, reversing Supreme Court, determined the breach of the warranty of habitability cause of action should not have been dismissed . The plaintiff’s motion for certification of the “damages class” was granted. The class action concerned the loss of heat and/or hot water in NYC Housing Authority properties:

In order to prove a claim for breach of the warranty of habitability, plaintiffs must show the extensiveness of the breach, the manner in which it affected the health, welfare or safety of the tenants, and the measures taken by the landlord to alleviate the violation … .

NYCHA conceded that 80% of its housing units experienced heat and/or hot water outages during the relevant period, which demonstrates that the problems that affected each class member were system-wide. Thus, much of the proof will likely concern NYCHA’s overall deficiencies, rather than the breakdown of individual heating systems in individual buildings. The need to conduct individualized damages inquiries does not prevent class certification as long as common issues of liability predominate … .

In any event, the heating systems that failed served multiple housing units, and proof of NYCHA’s efforts to repair each system will be common to numerous class members. In order to address any concerns with the size or disparity of the class, the court can designate subclasses consisting of tenants of a particular NYCHA complex, development or building … .

Moreover, class action treatment is the most efficient method for adjudicating the claims of class members who lack the resources to bring individual actions for the small recovery they might obtain … . Diamond v New York City Hous. Auth., 2020 NY Slip Op 00376, First Dept 1-21-20

 

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NYC LOFT BOARD SHOULD NOT HAVE REJECTED TENANTS’ WITHDRAWAL OF THE LOFT LAW CONVERSION APPLICATION BECAUSE THERE WAS AN ALTERNATIVE WAY TO OBTAIN RENT REGULATION COVERAGE OUTSIDE THE LOFT LAW’S STATUTORY SCHEME (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Renwick, determined the tenants’ request to withdraw the conversion application under the Loft Law should have been granted by the NYC Loft Board:

This article 78 proceeding stems from an application for the legal conversion of certain lofts in New York City from commercial use to residential use pursuant to Article 7-C of the Multiple Dwelling Law (§ 283), commonly known as the Loft Law. Where owners register covered buildings and comply with the Loft Law’s requirements, the Loft Law will deem a building an “interim multiple dwelling (IMD)” (Multiple Dwelling Law § 284[1]), which would allow the owner to collect rent from residential occupants, despite the lack of a residential certificate of occupancy (Multiple Dwelling Law §§ 283, 285, 301). The Loft Law requires landlords to bring converted residences up to code and prevents them from charging tenants for improvements until the issuance of a certificate of occupancy (Multiple Dwelling Law § 284(1)). The Loft Law is administered by the New York City Loft Board (Multiple Dwelling Law § 282). * * *

Here, the petitioner tenant claims, and the Loft Board does not dispute, that there is a separate and independent track for the tenants to obtain rent regulation coverage outside the Loft Law’s statutory scheme. It is undisputed that the four residential occupancies are legal under New York City Zoning applicable to the area where the subject building is located. While the Rent Stabilization Law usually requires buildings to have six or more residential units, adjacent buildings with common facilities, ownership, and management are treated as one integrated unit, thereby constituting a horizontal multiple dwelling for purposes of rent stabilization … . In this case, the subject building is a rear building that adjoins a front building that is already subject to rent stabilization. Given that the buildings share common ownership — a sprinkler system, a plumbing system, and their respective electric meters and mailboxes are at the same location — the rear building appears to be part of a horizontal multiple dwelling that would be subject to rent stabilization once the residential certificate of occupancy is procured by the owner. Matter of Callen v New York City Loft Bd., 2020 NY Slip Op 00368, First Dept 1-16-20

 

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WASTEWATER TREATMENT COMPANY’S CONTRACT WITH THE MUNICIPALITY WAS NOT VOID; THE CONTRACT WAS IN THE PUBLIC INTEREST AND THERE WAS NO PROOF THE BID SPECIFICATIONS WERE IMPROPERLY DEVELOPED WITH THE COMPANY OR DESIGNED TO ENSURE THE COMPANY RECEIVED THE CONTRACT (THIRD DEPT).

The Third Department, over a partial dissent, determined the plaintiff municipality breached its contract with defendant sewage-treatment company. The plaintiff municipality argued that, although there was competitive bidding under General Municipal Law 103 and 120-w, the contract was void because the bid specifications were improperly developed with the defendant and were designed to ensure defendant got the contract, but that argument was rejected by both Supreme Court and the Third Department:

… [P]laintiff provided nothing to contradict the proof that [use of defendant’s technology] served the public interest because it was safer, more reliable and less likely to generate troublesome odors than other technologies.

[D]efendant produced an affidavit from plaintiff’s then-mayor, who stated that the options for sludge treatment had been thoroughly investigated and that the type of equipment offered by defendant would further the public interest by stabilizing plaintiff’s sludge disposal costs, providing an environmentally sensitive means for that disposal and decreasing odors emanating from the WWTF [wastewater treatment facility] that might affect ongoing waterfront development. The then-mayor further averred that the bid documents were prepared by municipal employees and that the specifications included nothing of peculiar benefit to defendant. … Defendant’s president, a mechanical engineer, confirmed that point and averred that “[n]early any sludge drying pelletizing system on the market” could have satisfied the bid specifications. Plaintiff accordingly failed to meet its burden of showing that the 2004 agreement was void, and defendant demonstrated its entitlement to summary judgment on claims relating to that agreement’s validity … . City of Kingston v Aslan Envtl. Servs., LLC, 2020 NY Slip Op 00192, Third Dept 1-9-20

 

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THE TIP OF PLAINTIFF THIRD-GRADER’S FINGER WAS SEVERED WHEN A DOOR IN THE SCHOOL BUILDING SLAMMED SHUT; THE DEFENDANT-SCHOOL’S (DEPARTMENT OF EDUCATION’S [DOE’S]) MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED; THE DOOR WAS NOT DEFECTIVE, THE SCHOOL HAD NO NOTICE OF A PROBLEM WITH THE DOOR, SUPERVISION COULD NOT HAVE PREVENTED THE ACCIDENT, AND NYC IS NOT LIABLE FOR AN ACCIDENT ON SCHOOL (DOE) PROPERTY (SECOND DEPT).

The Second Department determined defendant school (NYC Department of Education [DOE]) was entitled to summary judgment in this premises liability and negligent supervision action. Plaintiff third-grader alleged a door closed on his finger, severing the tip. The school demonstrated it had no notice of any problems with the door and that supervision could not have prevented the accident. The Second Department noted that the unsigned depositions were properly considered because they were submitted by the DOE and therefore were adopted as accurate, and further noted that, because the accident occurred on school property, the city (NYC) was not liable:

The unsigned deposition transcripts of the school’s custodial engineer and the injured plaintiff’s teacher, who testified on behalf of their employer, the DOE, were admissible under CPLR 3116(a) because the transcripts were submitted by the DOE and, therefore, were adopted as accurate … . …

The deposition testimony of the building’s custodial engineer established that he inspected the door at least twice per week before the accident. Moreover, the school principal provided evidence that a search of the school’s records revealed no “indication of any maintenance, repairs, work orders, or other issues reported” with respect to the door during the two-year time period prior to the accident. This evidence, together with evidence that the subject door was in regular use, including regular use by the infant plaintiff, was sufficient to establish, prima facie, that the door was not defective … . …

When an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not the proximate cause of the injury … . E.W. v City of New York, 2020 NY Slip Op 00175, Second Dept 1-8-20

 

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TENANT IN THE BUILDING ABUTTING A DEFECTIVE SIDEWALK WAS NOT LIABLE FOR A SLIP AND FALL; RELEVANT LAW CONCISELY AND COMPLETELY EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant, a tenant in the building abutting the sidewalk, could not be held liable for a sidewalk defect which allegedly caused plaintiff’s slip and fall. The Second Department concisely but completely laid out the law on the issues:

Pursuant to Administrative Code of the City of New York § 7-210(a), “the owner of real property abutting any sidewalk” has a duty “to maintain such sidewalk in a reasonably safe condition.” “Notwithstanding any other provision of law, the owner of real property abutting any sidewalk . . . shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition” … . “As a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party” … . “However, where a lease agreement is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner’s duty to maintain the sidewalk, the tenant may be liable to a third party” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the alleged defect, make special use of the sidewalk, violate any applicable statute, or have a contractual duty to maintain the sidewalk where the accident occurred … . Leitch-Henry v Doe Fund, Inc., 2020 NY Slip Op 00112, Second Dept 1-8-20

 

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