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PETITIONERS SHOULD HAVE BEEN ALLOWED TO FILE LATE NOTICES OF CLAIM AGAINST THE COUNTY IN THIS GROUNDWATER CONTAMINATION CASE; THE COUNTY HAD TIMELY KNOWLEDGE OF THE ESSENTIAL FACTS AND THE COUNTY DID NOT DEMONSTRATE ANY PREJUDICE RESULTING FROM THE THREE-MONTH DELAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking leave to file late notices of claim should have been granted. The claims arise from groundwater contamination linked to chemicals (PFOS and PFOA) used at a county airport. The Second Department noted that the county had timely notice of the essential facts of the claims, the petition was brought three months after the notices of claim were due, and the county did not demonstrate and prejudice resulting from the delay:

… [T]he County’s alleged negligent ownership and operation of the Gabreski Airport site, resulting in contamination of the petitioners’ water supply with toxic chemicals, constitute the essential facts of the claims, which are common to all the petitioners and were made known to the County by the prior notices of claim … .

Inasmuch as the County acquired timely, actual knowledge of the essential facts of the petitioners’ claims, the petitioners made an initial showing that the County was not prejudiced by their delay in serving the notices of claim … . Moreover, the petitioners sought leave to serve late notices of claim only a little more than three months after the statutory period had expired … . In opposition, the County failed to rebut the petitioners’ showing that the County was not prejudiced by their delay with any particularized evidence … . The County did no more than assert that the petitioners failed to meet their burden to show that the late notice would not substantially prejudice the County … .

“A petitioner’s lack of a reasonable excuse for the delay in serving a timely notice of claim is not necessarily fatal when weighed against other relevant factors” … .  While the petitioners’ assertions that they were not aware of the County’s involvement in the cause of the incident does not constitute a reasonable excuse for their failure to file a timely notice of claim, the absence of a reasonable excuse “is not in and of itself fatal to the petition where, as here, there was actual notice and the absence of prejudice” … . Matter of Brooks v County of Suffolk, 2019 NY Slip Op 08561, Second Dept 11-27-19

 

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CITY’S DETERMINATION IT WOULD NOT DEFEND A POLICE OFFICER IN A SUIT ALLEGING THE OFFICER’S USE OF EXCESSIVE FORCE WAS NOT ARBITRARY AND CAPRICIOUS; HIS CONDUCT CONSTITUTED “INTENTIONAL WRONGDOING” WHICH WAS NOT WITHIN THE SCOPE OF HIS EMPLOYMENT (CT APP).

The Court of Appeals, in a brief memorandum decision, over a two-judge dissenting opinion, determined the City of Buffalo’s ruling that petitioner police officer was not entitled to defense and indemnification by the City in an action against the officer alleging use of excessive force. The facts were described in the dissent as follows: “Numerous Buffalo police officers, including Officer Corey Krug, were deployed to keep order at Chippewa Street, a popular location for late-night drunken revelry. In the course of doing his job, a 30-second excerpt of a video filmed by a local TV station crew shows Officer Krug performing his duties with what appears to be excessive force: asking an unarmed young man, Devin Ford, why he returned to the area, throwing him onto the hood of a car, striking him in the leg several times with a baton and stopping only when another officer saw the incident and told him to stop. Criminal charges were filed against Officer Krug for the use of excessive force, and Mr. Ford filed a civil suit against him.” The Court of Appeals upheld the determination that Officer Krug was not acting within the scope of his employment when he dealt with Mr. Ford:

Given the narrow question before us and under the circumstances presented here, we cannot say that the City’s determination was “irrational or arbitrary and capricious”… . Insofar as the record supports the City’s conclusion that petitioner was not “acting within the scope of his public employment” under Buffalo City Code § 35-28 because his conduct constituted “intentional wrongdoing” and violated the City’s rules regarding the use of force, the City’s determination was not “taken without regard to the facts” … . Matter of Krug v City of Buffalo, 2019 NY Slip Op 08546, CtApp 11-26-19

 

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BASED UPON EXECUTIVE LAW 63 AND TWO EXECUTIVE ORDERS ISSUED BY GOVERNOR CUOMO, THE ATTORNEY GENERAL HAS THE AUTHORITY TO INVESTIGATE AND CHARGE PERJURY ALLEGEDLY COMMITTED BY A DISTRICT ATTORNEY BEFORE A GRAND JURY CONVENED BY THE ATTORNEY GENERAL TO INVESTIGATE THE POLICE SHOOTING OF AN UNARMED CIVILIAN (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, reversing Supreme Court, determined that defendant, a district attorney, could be prosecuted by the Attorney General (OAG) for perjury allegedly committed by the district attorney before a grand jury convened by the Attorney General. The grand jury was convened to investigate whether the district attorney had engaged in misconduct when investigating the police shooting of an unarmed civilian. The authority of the Attorney General’s investigation and indictment is Executive Law 63 and two Executive Orders issued by Gov. Cuomo:

Executive Law § 63 (13) provides that the Attorney General “shall . . . [p]rosecute any person for perjury committed during the course of any investigation conducted by the [A]ttorney[][G]eneral pursuant to statute . . . [and] [i]n all such proceedings, the [A]ttorney[][G]eneral may appear . . . before any court or any grand jury and exercise all the powers and perform all the duties necessary or required to be exercised or performed in prosecuting any such person for such offense.” * * *

Although Executive Law § 63 (2) permits and requires the Governor to define — in the pertinent executive order — the scope of OAG’s authority regarding a particular investigation or prosecution … , the investigation is still conducted pursuant to that statute, albeit within a scope defined by the executive order. The Legislature, by enacting Executive Law § 63 (2), statutorily gave power to the Governor to call upon OAG to conduct investigations. That the statute and executive order must necessarily work in tandem does not diminish or eliminate the statute as a source of authority for OAG to conduct the investigation.

Here, as typical under these situations, OAG obtained authority to conduct the 2017 grand jury investigation through a combination of Executive Law § 63 (2) and EO163. The statute gives OAG power, but only when the Governor “require[s]” OAG to act … . Relatedly, the Governor would have no authority to give powers to the Attorney General — through an executive order or otherwise — without the Legislature having granted the Governor that ability. Indeed, the Court of Appeals has noted “that the Attorney[]General has no general authority to conduct [criminal] prosecutions and is without any prosecutorial power except when specifically authorized by statute” … . Therefore, we reject the conclusion that the phrase “pursuant to statute” excludes investigations conducted by OAG pursuant to an executive order issued by the Governor under the authority granted to him by statute, namely, Executive Law § 63 (2). OAG’s authority to investigate defendant was derived from that statute, at least indirectly through the conduit of an executive order issued thereunder. People v Abelove, 2019 NY Slip Op 08453, Third Dept 11-21-19

 

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ALTHOUGH THE TOWN DEMONSTRATED THE DEPARTMENT OF PUBLIC WORKS DID NOT HAVE NOTICE OF THE ALLEGED SIDEWALK DEFECT IN THIS SLIP AND FALL CASE, IT DID NOT DEMONSTRATE THE TOWN CLERK’S RECORDS WERE SEARCHED; TOWN’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the town did not demonstrate that it did not receive written notice of the alleged sidewalk defect in this slip and fall case. The town’s motion for summary judgment was therefore properly denied:

In support of its motion for summary judgment, the Town submitted the deposition testimony of a project supervisor for the Town’s Department of Public Works, who testified that he directed an administrative aide to perform a record search of “the Town’s complaint database.” The Town also submitted an affidavit from the administrative aide for the Department of Public Works who conducted the search. The administrative aide stated that her duties included “searching the official records of the Department of Public Works” to determine “whether the Department of Public Works ha[d] been provided with any prior written notice” of any defects in the area where the incident occurred. The administrative aide stated that her search revealed that “the Town was not in receipt of any written notice or written complaints.”

While this evidence established, prima facie, that the Town’s Department of Public Works did not have prior written notice of the alleged defect in the sidewalk, neither the deposition testimony nor the affidavit state specifically that the Town Clerk’s records were searched for prior written notice of the alleged defect … . The Town’s failure to provide specific evidence that the records of both the Department of Public Works and the Town Clerk were searched for prior written notice constitutes a failure to demonstrate its prima facie entitlement to judgment as a matter of law. Otto v Miller, 2019 NY Slip Op 08417, Second Dept 11-20-19

 

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THE LOFT BOARD PROPERLY REJECTED TENANTS’ REQUEST TO WITHDRAW THEIR APPLICATIONS FOR COVERAGE UNDER THE LOFT LAW FOLLOWING A SETTLEMENT AGREEMENT WITH THE LANDLORD; HERE THE LANDLORD HELD COMMERCIAL PROPERTY WHICH INCLUDED THE TENANTS’ RESIDENCES IN THE ABSENCE OF A CERTIFICATE OF OCCUPANCY; THE LANDLORD HAD SETTLED WITH THE TENANTS, AGREEING TO OBTAIN A CERTIFICATE OF OCCUPANCY AND CONVERT THE PROPERTY TO RENT STABILIZED RESIDENCES (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) the settlement agreement between that landlord and tenants providing that the landlord would take steps to obtain a certificate of occupancy and convert the property into rent stabilized residences should not have been annulled in its entirety; (2) the tenants’ attempt, based on the settlement, to withdraw their applications for coverage of he property under the Loft Law was properly denied. The property in question was commercial property which included residences for which no certificate of occupancy had been issued:

The Loft Law is designed to integrate “uncertain and unregulated residential units, converted from commercial use, into the rent stabilization system in a manner which ensures compliance with the Multiple Dwelling Law and various building codes” … . The Loft Law was created to regulate the conversion of industrial, manufacturing, and commercial space into residential space. It enables an owner to rent space in a building while the structure is undergoing conversion pursuant to building department, fire department, and other regulatory requirements necessary to obtain a certificate of occupancy for a residential building. The work necessary to legalize a building for residential use is subject to specifically prescribed time periods (see Multiple Dwelling Law § 284[1]), and the Loft Board is specifically charged with determining interim multiple dwelling status and other issues of coverage, including coverage applications (see Multiple Dwelling Law § 282).

Here, the Supreme Court should have confirmed the Loft Board’s determination rejecting the tenants’ proposed withdrawal of their coverage applications and remitting the coverage applications … for adjudication. Contrary to the tenants’ contentions, the Loft Board had jurisdiction over the coverage applications (see Multiple Dwelling Law § 282), and the coverage applications did not become moot upon the tenants’ proposed withdrawal with prejudice of the applications. Title 29 of the Rules of the City of New York provides that the Loft Board may review settlement agreements and exercise discretion to reject a proposed settlement and remit matters for further investigation and adjudication (see NY City Loft Board Regulations [29 RCNY] § 1-06[j][5]). There is nothing in that rule that limits the Loft Board’s review of settlement agreements or its authority to re-open and remit a coverage application. Matter of Dom Ben Realty Corp. v New York City Loft Bd., 2019 NY Slip Op 08188, Second Dept 11-13-19

 

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PETITIONERS’ EMPLOYMENT DISCRIMINATION AND RETALIATION CLAIMS UNDER THE STATE AND CITY HUMAN RIGHTS LAW AGAINST THE NYC DEPARTMENT OF TRANSPORTATION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Renwick, determined petitioners’ retaliation and discrimination claims against the NYC Department of Transportation (DOT) should not have been dismissed. The facts of the case are too complex to fairly summarize here:

It is undisputed that petitioners sufficiently stated the first two elements of an employment discrimination claim on behalf of Bharat and Kubair under both the State and City HRLs[Human Rights Law’s] — namely, that they are both members of a protected class and were well qualified for their respective positions …. Petitioners also sufficiently stated the third element — that they were adversely (State HRL) or differently treated (City HRL) …. In particular, petitioners allege that DOT’s failure to upgrade Bharat to SMME II status (a position with greater salary and pension benefits) was discriminatory conduct as a less qualified white employee received the upgrade. * * *

Bharat’s allegations are sufficient, at the pleading stage, to permit the inference that the reason he was not awarded an upgrade and the determination was issued against him was because of his involvement in the prior federal action against the DOT, which resulted in the issuance of a consent decree that subjected the DOT to significant damages … . The petition provides additional support for an inference of retaliation in the fact that an employee with less experience was upgraded over Bharat shortly after the consent decree was issued. Matter of Local 621 v New York City Dept. of Transp., 2019 NY Slip Op 08014, First Dept 11-6-19

 

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THE CITY HAD CLEARED A PATH FREE OF ICE AND SNOW ON THE SIDEWALK; PLAINTIFF SLIPPED AND FELL WHEN SHE STEPPED BACKWARDS INTO AN AREA OF THE SIDEWALK WHICH HAD NOT BEEN CLEARED TO AVOID AN UNLEASHED DOG; THE CITY’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the city’s motion for summary judgment in this sidewalk slip and fall case was properly granted. There was a clear path on the sidewalk. Plaintiff slipped and fell when she stepped backward into an area of the sidewalk which had not been cleared to avoid an unleashed dog:

” To render a municipality liable for an injury caused by the presence of snow and ice on the streets,'” it must be established that ” the condition constitutes an unusual or dangerous obstruction to travel and that either the municipality caused the condition or a sufficient time had elapsed to afford a presumption of the existence of the condition and an opportunity to effect its removal'” … . This rule applies to sidewalks … . “Generally, whether a municipality was negligent in permitting extraordinary accumulations of snow to exist for an unreasonable period of time or whether it had a reasonable opportunity to remedy the condition are questions for the jury” … .

Here, in opposition to the City’s prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether the City had constructive notice of the ice condition that allegedly caused the plaintiff to fall and whether the ice condition was unusual or dangerous. The evidence indicated that a clear path had been shoveled on the sidewalk, but that, due to repeated snow storms, snow and ice remained in the area of the sidewalk close to the street. When the plaintiff stepped backward to avoid the unleashed dog, she stepped in the area of the sidewalk closer to the street, upon which there was a two-inch thick patch of ice of unspecified size. There is no evidence that the patch of ice was unusual or dangerous. Cespedes v City of New York, 2019 NY Slip Op 07943, Second Dept 11-6-19

 

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A PARTY NEED NOT MAKE A MOTION TO SET ASIDE THE VERDICT TO BE ENTITLED TO A WEIGHT OF THE EVIDENCE REVIEW BY AN APPELLATE COURT; THE VERDICT FINDING DEFENDANT BUS DRIVER NEGLIGENT, BUT FINDING THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL, WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, overruling precedent and disagreeing with the 3rd and 4th Departments, determined (1) a party need not make a motion to set aside the verdict to be entitled to an “against the weight of the evidence” review by the appellate court, and (2) the verdict finding defendant bus driver negligent but also finding the negligence was not the proximate cause of plaintiff’s slip and fall was against the weight of the evidence. Plaintiff stepped into a pothole when getting off the bus which had stopped to let her off after she had missed her stop:

A … source of this Court’s authority to review the weight of the evidence absent a motion to set aside the verdict comes from CPLR 4404(a), the provision authorizing postverdict motions for a new trial. CPLR 4404(a) provides, in pertinent part: “After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may . . . order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence” … . Insofar as the trial court is permitted to order a new trial “on its own initiative” (CPLR 4404[a]), and “the power of the Appellate Division . . . is as broad as that of the trial court” … , this Court also possesses the power to order a new trial where the appellant made no motion for that relief in the trial court. …

… [I]t was logically impossible for the jury to conclude that [the bus driver] was negligent in failing to provide the plaintiff with a safe location to alight from the bus but that such negligence was not a proximate cause of the accident. It was uncontradicted that the plaintiff stepped directly from the bus into the pothole, and immediately fell to the ground. The unbroken chain of events was witnessed by … a neutral witness with no relationship or prior affiliation with the parties, and corroborated by photographs of the scene taken immediately after the accident occurred. Assuming, as the jury found, that [the driver]  was negligent, it is logically impossible under the circumstances to find that such negligence was not a substantial factor in causing the accident. Under these circumstances, the issues of reasonable care and proximate cause were so inextricably interwoven that the jury’s verdict could not have been reached upon any fair interpretation of the evidence … . Evans v New York City Tr. Auth., 2019 NY Slip Op 07872, Second Dept 11-6-19

 

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42 USC 1983 IS NOT SUBJECT TO THE MUNICIPAL-LAW NOTICE OF CLAIM REQUIREMENT; THE NOTICE OF THE MALICIOUS PROSECUTION ACTION WAS TIMELY; THE PETITION TO FILE LATE NOTICES OF CLAIM FOR THE REMAINING STATE LAW CLAIMS SHOULD NOT HAVE BEEN GRANTED; THE EXCUSES WERE NOT VALID AND THE VILLAGE DID NOT HAVE TIMELY NOTICE OF THE CLAIMS SIMPLY BY VIRTUE OF THE POLICE REPORT AND THE INVOLVEMENT OF A POLICE OFFICER (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, over a partial dissent, determined: (1) the 42 USC 1983 action was not subject to the notice of claim requirement of the General Municipal Law; the notice of claim for the malicious prosecution cause of action was timely because the limitations period began when the underlying charges were dismissed; and (3) the petition for leave to file late notices of claim for the state law discrimination, false arrest, abuse of process, excessive force, failure to intervene, denial of access to the courts, intimidation and intentional infliction of emotional distress actions should not have been granted:

The petitioner’s explanation that the counsel who represented him during the criminal proceeding did not advise him of the notice of claim requirement and that he did not learn of the requirement until … he retained his current attorney to represent him in a potential civil action did not constitute a reasonable excuse for his failure to timely serve the Village with a notice of claim for the remaining state law claims … . The petitioner’s ignorance of the law does not constitute a reasonable excuse … . Moreover, the petitioner’s assertion that he knowingly delayed commencing any action against the Village while the criminal charges were pending due to unsubstantiated claims of fear and intimidation does not constitute a reasonable excuse … . …

The petitioner did not establish that the Village acquired actual knowledge of the essential facts constituting the remaining state law claims within 90 days after they arose or a reasonable time thereafter. “Generally, knowledge of a police officer or of a police department cannot be considered actual knowledge of the public corporation itself regarding the essential facts of a claim” … . “[F]or a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation” … . Here, the involvement of a Village police officer in arresting the petitioner did not, without more, establish that the Village acquired actual knowledge of the essential facts constituting the petitioner’s remaining state law claims within 90 days following their accrual or a reasonable time thereafter … . Matter of Nunez v Village of Rockville Ctr., 2019 NY Slip Op 07783, Second Dept 10-30-19

 

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THERE IS A REASONABLE RELATIONSHIP BETWEEN THE GRIEVANCE AND THE COLLECTIVE BARGAINING AGREEMENT (CBA); THE CITY’S PETITION TO PERMANENTLY STAY ARBITRATION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the city-employer’s motion to permanently stay arbitration should not have been granted:

In determining whether a grievance is arbitrable, a court must “first ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance,” and if there is no prohibition against arbitration, the court must “then examine the CBA [collective bargaining agreement] to determine if the parties have agreed to arbitrate the dispute at issue” … . …

Where, as here, the relevant arbitration provision of the CBA is broad, providing for arbitration of any grievance “involving the interpretation or application of any provision of this Agreement,” a court “should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA” … . “If there is none, the issue, as a matter of law, is not arbitrable. If there is, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them” … . …

According to Local 628, the City, by offering a paramedic training course to its firefighters, violated article 33 of the CBA, which contains various provisions concerning the EMS Program, including a provision stating that the “EMS Program shall mean the level of services provided as of the date of this Agreement.” Contrary to the City’s contention, a reasonable relationship exists between Local 628’s grievance and the general subject matter of the CBA … . “[T]he question of the scope of the substantive provisions of the CBA is a matter of contract interpretation and application reserved for the arbitrator” … . Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2019 NY Slip Op 07776, Second Dept 10-30-19

 

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