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HERE PLAINTIFF’S PROPOSED CONSTRUCTION OF APARTMENTS WAS PROHIBITED BY A LOCAL LAW; PLAINTIFF ALLEGED THE BIAS OF THE CHAIRPERSON OF THE PLANNING BOARD INFECTED THE PLANNING BOARD’S RECOMMENDATION TO THE TOWN BOARD (WHICH ENACTED THE LAW); THOSE ALLEGATIONS RAISED A QUESTION OF FACT PRECLUDING SUMMARY JUDGMENT FINDING THE LOCAL LAW VALID (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Judge Garry, determined questions of fact precluded summary judgment in favor of the town in this dispute over the approval of the construction of apartments. Plaintiffs alleged that the chairperson of the planning board, who owned adjacent property, was biased against the proposed construction and his bias infected the planning board’s recommendation:

As Supreme Court correctly noted, the enactment that plaintiffs seek to invalidate in this action was a product of the Town Board, not the Planning Board … . We further note that it is expressly within the power of the Planning Board to submit advisory opinions to the Town Board for proposed amendment to the zoning law … . For these reasons, it is possible that the connection of the alleged bias to the action of the Town Board may ultimately be insufficiently direct. Supreme Court’s decision apparently rejected plaintiffs’ allegations on this ground. Nonetheless, accepting plaintiffs’ allegations as true, the extent to which the long-term Chairperson’s alleged bias infected the Planning Board’s recommendation to the Town Board that multifamily dwelling development be reconsidered, the Town’s subsequent investigation thereof, and the Town Board’s ultimate adoption of the challenged local law limiting same is not amenable to resolution as a matter of law at this procedural stage … . Thus, any declaration regarding the validity of Local Law No. 2022-08 was premature, and Supreme Court’s order must be reversed in full so that the action may proceed through the ordinary course. PF Dev. Group, LLC v Town of Brunswick, 2025 NY Slip Op 03671, Third Dept 6-18-25

Practice Point: Here allegations that the passage of a local law was influenced by bias on the part of the chairperson of the planning board raised a question of fact precluding summary judgment finding the local law valid.​

 

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HERE THE HOSPITAL DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT ON THE DISABILITY DISCRIMINATION CAUSE OF ACTION UNDER THE NEW YORK CITY HUMAN RIGHTS LAW (NYCHRL) BUT WERE ENTITLED TO SUMMARY JUDGMENT ON THE DISABILITY DISCRIMINATION CAUSE OF ACTION UNDER THE NEW YORK STATE HUMAN RIGHTS LAW (NYSHRL) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the defendant hospital was not entitled to summary judgment in this disability discrimination case under the New York City Human Rights Law (NYCHRL) but was entitled to summary judgment under the New York State Human Rights Law (NYSHRL):

In order to prevail on a claim of disability discrimination under the NYCHRL, “an employer must demonstrate that it engage[d] in a good faith interactive process that assesse[d] the needs of the disabled individual and the reasonableness of the accommodation requested” … . Here, the hospital defendants failed to show that they engaged in an interactive process and reasonable accommodation analysis prior to terminating the plaintiff’s employment … .

However, the Supreme Court should have granted those branches of the hospital defendants’ motion which were for summary judgment dismissing the causes of action alleging disability discrimination under the NYSHRL insofar as asserted against them. “To establish a prima facie case of disability discrimination under the Executive Law, a plaintiff must establish, inter alia, that he or she was otherwise qualified to perform the essential functions of the position, with or without a reasonable accommodation” … . Here, the hospital defendants established, prima facie, that the plaintiff could not perform the essential functions of her job with or without a reasonable accommodation … . In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, under the NYSHRL, the hospital defendants cannot be held liable for failing to engage in an interactive process where the employee has failed to provide evidence to the employer that he or she could perform the essential functions of the job with or without a reasonable accommodation … . Makharadze v Ognibene, 2025 NY Slip Op 03713, Second Dept 6-18-25

Practice Point: Consult this decision for an example of a disability discrimination case where the defendants were entitled to summary judgment under the New York State Human Rights Law but not under the New York City Human Rights Law.

 

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THE ABSENCE OF A REASONABLE EXCUSE FOR FAILING TO FILE A TIMELY NOTICE OF CLAIM IS NOT NECESSARILY FATAL TO A PETITION FOR LEAVE TO FILE A LATE NOTICE WHERE, AS HERE, THE MUNICIPALITY HAD ACTUAL TIMELY NOTICE OF THE FACTS UNDERLYING THE CLAIM AND IS NOT PREJUDICED BY THE DELAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioners’ motion for leave to file a late notice of claim in this traffic accident case involving a city bus should have been granted. Although the excuse for failure to time file (petitioners’ infancy) was not reasonable, that flaw was not fatal because the city had timely actual knowledge of the essential facts underlying the claim and was not prejudiced by the delay:​

Here, the respondents acquired timely, actual knowledge of the essential facts constituting the petitioners’ claim. Although a police report regarding an automobile accident does not, in and of itself, constitute notice of a claim to a municipality or public corporation, where the report reflects that an employee of the municipality or public corporation committed a potentially actionable wrong, such entity can be found to have actual knowledge … . In this case, the police report, which the petitioners sent to the NYCTA [NYC Transit Authority] on or about July 2, 2021, indicated that the multivehicle collision was set in motion by Robinson, who caused the bus to come into contact with the rear of another vehicle. The police report also indicated that several bus passengers reported injuries and named the injured petitioners, among others. In addition, the respondents were in possession of the injured petitioners’ medical records. Under these circumstances, the respondents acquired timely, actual knowledge of the essential facts constituting the petitioners’ claim … .

Moreover, since the respondents acquired timely, actual knowledge of the essential facts constituting the petitioners’ claim, the petitioners met their initial burden of showing a lack of prejudice to the respondents’ ability to maintain a defense … . Matter of Arvizu v New York City Tr. Auth., 2025 NY Slip Op 03323, Second Dept 6-4-25

Practice Point: A municipality will be deemed to have timely actual notice of a claim where, as here, the police report reflects that an employee of the municipality committed a potentially actionable wrong.​​​​​​​​​​​

 

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HERE IN THIS BUS-PASSENGER-INJURY ACTION AGAINST THE CITY TRANSIT AUTHORITY, PLAINTIFF STATED THE WRONG ACCIDENT-DATE IN THE NOTICE OF CLAIM; BECAUSE THE WRONG DATE WAS NOT USED IN BAD FAITH AND THE CITY WAS NOT PREJUDICED, PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE NOTICE OF CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the wrong accident-date in the notice of claim did not warrant dismissal of the action. The wrong date was not willful and the municipality was not prejudiced. The plaintiff alleged she was injured when the driver of the defendant NYC Transit Authority’s bus stopped short:

“‘To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim'” … . General Municipal Law § 50-e(2) requires that the notice of claim set forth, among other things, “the time when, the place where and the manner in which the claim arose” … . “‘[I]n determining compliance with the requirements of General Municipal Law § 50-e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant’s description municipal authorities can locate the place, fix the time and understand the nature of the accident'” … . “Pursuant to General Municipal Law § 50-e(6), a court has discretion to grant leave to serve an amended notice of claim where the error in the original notice was made in good faith and where the other party has not been prejudiced thereby” … .

Here, there is no indication in the record that the accident date listed in the notice of claim and the complaint was set forth in bad faith … . Rather, the plaintiff’s mistake was based upon her reliance on a police report that incorrectly listed the accident date … . Moreover, contrary to the Supreme Court’s determination, the proposed amendment to the accident date was purely technical in nature and did not substantively change the nature of the claim … .

Furthermore, the record does not reflect that the defendants will be prejudiced by the plaintiff’s delay in moving for leave to amend the notice of claim. Under the circumstances of this case, including that the plaintiff received medical assistance at the accident site, that specific details regarding the circumstances of the accident, including the accident location and bus route, were set forth in a police report and the notice of claim, and that the plaintiff’s error in listing an accident date several days prior to the actual date of the accident was minimal, the defendants could have ascertained the date of the accident “with a modicum of effort” … . Hernandez v City of New York, 2025 NY Slip Op 03312, Second Dept 5-4-25

Practice Point: Here the wrong accident-date was included in the notice of claim and the plaintiff moved to amend the notice. Because the wrong date was not used in bad faith (the date was taken from the police report) and because the city was not prejudiced by the error, plaintiff’s motion to amend the notice of claim should have been granted.

 

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PLAINTIFF’S DECEDENT WAS KILLED WHEN DEFENDANT DRIVER, WHO WAS BEING CHASED BY THE POLICE DEFENDANTS, COLLIDED WITH PLAINTIFF’S DECEDENT’S VEHICLE; THE DEFENSE VERDICT IN THE “RECKLESS DISREGARD” ACTION AGAINST THE POLICE WAS REVERSED BECAUSE OF THE OMISSION OF RELEVANT EVIDENCE AND THE ADMISSION OF PREJUDICIAL EVIDENCE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defense verdict and ordering a new trial in this “reckless disregard” action against the Nassau County Police Department stemming from a fatal traffic accident during a police chase, determined several evidentiary errors deprived plaintiff’s decedent of a fair trial. The vehicle which the police were chasing, driven by defendant Daley, collided with plaintiff’s decedent’s vehicle:

Supreme Court erred in declining to admit the Nassau County Police Department Rules and Regulations (hereinafter the rules) into evidence. An officer’s alleged violation of internal guidelines, although not dispositive, may be some evidence of whether an officer acted with reckless disregard … . The court compounded this error when it charged the jury pursuant to PJI 2:79A, specifically charging the jury that it may consider the rules when determining whether the police officers acted with reckless disregard for the safety of others. To the extent necessary, the rules could have been admitted with a limiting instruction that they may considered only as some evidence of recklessness, along with other factors … .

Further, the Supreme Court erred in admitting the full decision from a Dunaway/Huntley/Mapp hearing in the defendant driver’s criminal proceeding, as its subject matter was collateral and merely served to bolster the testimony of the police officers … and was therefore prejudicial. The court also erred in entirely precluding cross-examination of Detective Peter Ellison with respect to prior bad acts. Under the circumstances of this case, these errors were not harmless (see CPLR 2002), as the evidence related directly to issues to be determined by the jury … , i.e., the officers’ credibility, the nature of the police stop, and the question of when the officers activated their emergency lights. Yun v Daley, 2025 NY Slip Op 03224, Second Dept 5-28-25

Practice Point: In the “reckless disregard” action against the police stemming from a high-speed chase, the police department rules should have been admitted in evidence because a violation of the rules is some evidence of negligence.

Practice Point: Here the defendant driver who collided with plaintiff’s decedent during the police chase was charged criminally. It was prejudicial error to allow a decision in the criminal matter in evidence in this “reckless disregard” action against the police. It was also error to preclude the cross-examination of a detective about prior bad acts.

 

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ALTHOUGH THE SCHOOL DISTRICT HAD TIMELY KNOWLEDGE OF THE INCIDENT AND THE PETITIONER’S INJURIES, IT DID NOT HAVE TIMELY KNOWLEDGE OF THE FACTS THAT UNDERLIE THE LEGAL THEORIES OF LIABILITY; THEREFORE THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner, a nurse hired to care for M.C., an infant, was not entitled to leave to file a late notice of claim against the school district for injuries allegedly suffered when M.C. struck her in a stairway at M.C.’s elementary school. Although there was an incident report and a police report, the school district’s timely actual knowledge of the incident and the injuries did not demonstrate knowledge of the essential facts constituting the claim:

… [T]he petition failed to establish that the District acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter. “Actual knowledge of the essential facts underlying the claim means knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the [proposed] notice of claim; the public corporation need not have specific notice of the theory or theories themselves” … . “[K]nowledge of the accident itself and the seriousness of the injury does not satisfy this enumerated factor where those facts do not also provide the public corporation with knowledge of the essential facts constituting the claim” … .

Here, while an employee incident report, a police incident report, and the involvement of an employee of the District in the incident may have established the District’s actual knowledge of the incident, they did not provide the District with actual knowledge of all of the essential facts underlying the claim … . Among other things, although the District was presumably aware that M. C.’s individualized education program (hereinafter IEP) allegedly required him to have an aide with him at all times due to aggression, and that no such aide had been assigned to him at the time of the incident, neither the IEP nor the incident reports described the incident while making a connection between [petitioner’s] injuries and negligent conduct on the part of the District … . Matter of Cooke v Mamaroneck Union Free Sch. Dist., 2025 NY Slip Op 03062, Second Dept 5-21-25

Practice Point: One of the criteria for leave to file a late notice of claim against a school district is that the district have had timely knowledge of the facts underlying the claim. Timely knowledge of the incident and injuries is not sufficient. The district must have had timely knowledge of the facts underlying the theory or theories of liability.

 

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THE 90-DAY TIME-LIMIT FOR FILING AND SERVING A NOTICE OF CLAIM AGAINST THE CITY FOR WRONGFUL DEATH RUNS FROM THE APPOINTMENT OF AN ADMINISTRATOR; HERE THE NOTICE OF CLAIM WAS TIMELY FOR THE WRONGFUL DEATH CAUSE OF ACTION; HOWEVER THE 90-DAY TIME-LIMIT FOR THE CAUSES OF ACTION FOR CONSCIOUS PAIN AND SUFFERING AND PREIMPACT TERROR RUNS FROM THE DATE OF THE ACCIDENT; THE NOTICE OF CLAIM SHOULD HAVE BEEN REJECTED AS UNTIMELY FOR THOSE TWO CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the application to deem a notice of claim timely served for the conscious pain and suffering and preimpact terror causes of action in this pedestrian-bus-accident wrongful-death case should not have been granted. General Municipal Law 50-e provides that a notice of claim alleging wrongful death is timely filed and served within 90 days of the appointment of an administrator; that requirement was met here. The notice of claim was therefore timely for the wrongful death cause of action. However the wrongful-death notice-of-claim provision in General Municipal Law 50-e does not apply to the conscious pain and suffering and preimpact terror causes of action. The Second Department held that the notice of claim should have been rejected as untimely for those two causes of action:

Here, [defendant] NYCTA [New York City Transit Authority] did not acquire actual knowledge of the essential facts constituting the claims of conscious pain and suffering or preimpact terror within a reasonable time after the expiration of the 90-day statutory period … . “As a general rule, knowledge of an accident or occurrence by a municipality’s police or fire department cannot be imputed to another public or municipal corporation” … . Furthermore, the case file did not indicate that anyone associated with NYCTA acquired actual knowledge of essential facts constituting the subject claims.

As to the other relevant factors, the petitioner failed to demonstrate a reasonable excuse for her failure to timely serve a notice of claim … . The petitioner also failed to meet her initial burden of presenting “some evidence or plausible argument” … to support a finding that NYCTA will not be substantially prejudiced by the approximate six-month delay from the expiration of the 90-day statutory period until the commencement of this proceeding … . Matter of Egalite v New York City Tr. Auth., 2025 NY Slip Op 02773, Second Dept 5-7-25

Practice Point: A notice of claim for wrongful death is timely filed and served within 90 days of the appointment of an administrator pursuant to General Municipal Law 50-e (a) (1). However, that statutory provision does not apply to causes of action for conscious pain and suffering and preimpact terror. Notices of claim for those causes of action must be filed and served within 90 days of the accident.

 

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THE “EVEN YEAR ELECTION LAW” (EYEL) IS CONSTITUTIONAL, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the Even Year Election Law (EYEL) does not violate the New York Constitution or the United States Constitution. The decision is complex and cannot be fairly summarized here:

The EYEL amended provisions of County Law § 400, Town Law § 80, Village Law § 17-1703-a (4), and Municipal Home Rule Law § 34 (3) such that elections for most county, town, and village officials would be held on even-numbered years, and would no longer be held on odd-numbered years, effective January 1, 2025 … . Exceptions were made for the offices of town justice, sheriff, county clerk, district attorney, family court judge, county court judge, and surrogate court judge — each of which has a term of office provided in the New York Constitution … — as well as town and county offices with preexisting three-year terms, all offices in towns coterminous with villages, and all offices in counties located in New York City … . Additionally, a new subsection (h) was added to Municipal Home Rule Law § 34 (3) to preclude county charters from superseding the newly enacted County Law § 400 (8).

The EYEL purports to encourage an increased voter turnout in local elections now scheduled in odd-numbered years, which are years without federal or state-wide elections on the ballot, consistent with the State’s public policy of “[e]ncourag[ing] participation in the elective franchise by all eligible voters to the maximum extent” … , and the mandate of the New York Board of Elections to “take all appropriate steps to encourage the broadest possible voter participation in elections” … .  County of Onondaga v State of New York, 2025 NY Slip Op 02818, Fourth Dept 5-7-25

 

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THE PORT AUTHORITY DEMONSTRATED IT WAS NOT LIABLE FOR PLAINTIFF’S DECEDENT’S DEATH BY SUICIDE; PLAINTIFF’S DECEDENT CLIMBED OVER A FOUR-FOOT-TALL PEDESTRIAN RAILING AND JUMPED OFF THE GEORGE WASHINGTON BRIDGE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt-Burke, over a dissent, affirming summary judgment dismissing the complaint, determined the Port Authority was not liable for the plaintiff’s decedent’s death by suicide.  Plaintiff’s decedent climbed over the four-foot-tall pedestrian railing and jumped off the George Washington Bridge (GWB). Plaintiff alleged the Port Authority was negligent in failing to install suicide prevention barriers along the pedestrian walkways:

In this action to recover damages for wrongful death, plaintiff seeks to hold defendant the Port Authority of New York and New Jersey liable for the death of the decedent, who died by suicide after jumping off the George Washington Bridge (GWB). To fully capture the nature of this appeal, however, it is pertinent to first discuss that the issue here is not whether the Port Authority’s alleged negligence arose out of the performance of a governmental rather than a proprietary function; this Court has already determined that the Port Authority, as owner of the GWB, was acting in a proprietary capacity at the time this claim arose and therefore that the ordinary rules of negligence apply. In the appeal now presented to us, the Port Authority’s expert engineer opines that the engineering concerns associated with modifying the 100-year-old bridge justified the steps taken and the interim measures implemented, but also opines that reasonable engineering judgment delayed the implementation of the safety mechanism that plaintiff contends would have ultimately prevented the decedent’s death by suicide. We therefore consider whether, given the record presented, the Port Authority has established its prima facie burden under ordinary rules of negligence. For the reasons that follow, we find that the Port Authority established that the pedestrian walkways on the bridge were safe for the public at large, and the steps taken, including additional interim measures implemented prior to this incident to help individuals who, like the decedent, were suffering from suicidal ideations, were reasonable in light of the complexity and size of the bridge. Donaldson v Port Auth. of N.Y. & N.J., 2025 NY Slip Op 02719, First Dept 5-6-25

 

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THERE WERE QUESTIONS OF FACT WHETHER A RAISED MANHOLE COVER, EXPOSED WHEN THE ROAD SURFACE AROUND THE MANHOLE WAS MILLED IN PREPARATION FOR REPAVING, CONSTITUTED A DANGEROUS CONDITION CREATED BY THE CITY AND WHETHER THE CONDITION WAS OPEN AND OBVIOUS (FIRST DEPT).

The First Department, reversing Supreme Court and reinstating the complaint, determined there were questions of fact whether the raised manhole cover constituted a dangerous condition, and whether the condition was open and obvious. Plaintiff was a passenger in a car which struck a raised manhole cover. In preparation for repaving, the existing road surface was milled or scarified such that the manhole covers extended above the surface of the road. Although asphalt was placed around the manhole (called ramping) so that the wheels on one side of a vehicle could pass over it, here the wheels on both sides of the manhole were on the milled surface and undercarriage of the car apparently struck it, causing the windshield to crack and the air bags to deploy:

[Defendant’s witness] could not say whether that ramping made it safe [for a vehicle to traverse directly over the manhole, with the wheels completely to the side of the entire width of the manhole’s ramping. It is this condition that plaintiff alleges was dangerous and defective, and the City adduced no evidence to refute that allegation. Accordingly, whether the City’s work — the ramping of the manhole — “immediately resulted in the existence of a dangerous condition,” thus rendering the City liable to plaintiff for her injuries, is a question of fact for the jury … . …

The City’s argument that the court erred in rejecting its argument sub silentio that it is nonetheless entitled to summary judgment dismissing the complaint as against it on the ground that the condition was open and obvious is unavailing. Whether a dangerous or defective condition is open and obvious relates to the duty to warn of the hazard, not the duty to neutralize it … . Summary judgment may only be granted on an open-and-obvious defense “when the established facts compel that conclusion . . . on the basis of clear and undisputed evidence”; otherwise, the inquiry “is generally fact-specific and thus usually a jury question” … . Timmons v Praylow, 2025 NY Slip Op 02744, First Dept 5-6-25

Practice Point: The question whether a condition, here a raised manhole cover, is open and obvious applies to the duty to warn, not the duty to neutralize a hazard, and is rarely appropriate as a basis for summary judgment.

Practice Point: The written-notice requirement, which is often a condition precedent for a negligence action against a municipality stemming from a road-condition, does not apply where, as here, it is alleged the municipality created the dangerous condition (a raised manhole cover).

 

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