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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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THERE ARE TWO STATUTORY PROCEDURES FOR APPROVING AN EXTENSION OF A SEWER DISTRICT; HERE THE REQUEST FOR AN EXTENSION WAS INITIATED UNDER ONE STATUTORY PROCEDURE, WHICH DOES NOT REQUIRE A REFERENDUM, BUT THE TOWN APPLIED THE OTHER STATUTORY PROCEDURE, WHICH DOES REQUIRE A REFERENDUM; THAT WAS ERROR (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the town failed to follow the correct statutory procedure for approval of an extension of a sewer district to include petitioner’s commercial development  There are two statutory procedures. The Town Law Article 12 procedure applies when a petition is filed by an owner of taxable property (like the petitioner in this case). The Article 12 procedure has no “referendum” requirement. The Town Law Article 12-A procedure is initiated by the town and requires a referendum. Here the town required a referendum and thereby applied the wrong statutory procedure:

… [W]ithout formally ruling on the article 12 petition, the Town Board … essentially approved the extension project under the framework of article 12-A by providing for a permissive referendum. Recognizing that these articles do not contain any mechanism for such a conversion, we find that the Town Board erred and, as a result, its resolutions must be invalidated. Matter of Glen Wild Land Co., LLC v Town of Thompson, 2025 NY Slip Op 02628, Third Dept 5-1-25

Practice Point: Where the Town Law provides two distinct statutory procedures for approval of an extension of a sewer district, the town must follow the procedure in the applicable statute. Here the applicable statute did not require a referendum but the inapplicable statute did. The town erred when it required a referendum.

 

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AT THE TIME OF THE COLLISION, THE SHERIFF’S DEPUTY WAS ENGAGED IN AN EMERGENCY OPERATION AND DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, affirming Supreme Court, over a two-justice dissent, determined the police vehicle (driven by Deputy Fong) which collided with plaintiff’s vehicle was engaged in an emergency operation and was not being operated in reckless disregard for the safety of others. The dissenters argued there was a question of fact on the “reckless disregard” issue:​

… [I]t is undisputed that the reckless disregard standard of care applies because Fong was driving an emergency vehicle and was engaged in an emergency operation at the time she proceeded through the red traffic signal (see Vehicle and Traffic Law § 1104 [b] [2]). In addition, defendants established that Fong’s conduct did not rise to a level of reckless disregard for the safety of others. Defendants’ submissions established, in particular, that Fong took several precautions before proceeding into the intersection against the red traffic signal, including bringing her vehicle to a complete stop, looking in all directions, activating her emergency lights, and proceeding slowly into the intersection … . Granath v Monroe County, 2025 NY Slip Op 02521, Fourth Dept 4-25-25

 

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IN THIS CHILD VICTIMS ACT NEGLIGENT-SUPERVISON ACTION AGAINST THE COUNTY, THE PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE COUNTY HAD NOTICE OF A SOCIAL SERVICES CASEWORKER’S SEXUAL ABUSE OR PROPENSITY FOR SEXUAL ABUSE OF CHILDREN (CT APP).

The Court of Appeals, affirming the dismissal of this Child Victims Act suit against the county, in a full-fledged opinion by Judge Wilson, over a comprehensive dissenting opinion, determined the plaintiff did not raise a question of fact about whether the county had actual or constructive notice that a Department of Social Services caseworker (Hoch) had sexually abused children or had a propensity for the sexual abuse of children. Therefore, the plaintiff did not make out a prima facie “negligent supervision” cause of action:

In the summer of 1993, the parents of 11-year-old Michael Nellenback had him designated as a person in need of supervision (PINS) and placed in the care of Madison County’s Department of Social Services. The Madison County Department of Social Services assigned caseworker Karl Hoch to the Nellenback case. According to Mr. Nellenback, over the next three years, Mr. Hoch repeatedly sexually abused and assaulted him. It turned out that Mr. Hoch had sexually abused several other children to whose cases he was assigned.

In 2019, Mr. Nellenback filed suit against Madison County under the claim-revival provision of the Child Victims Act, alleging that that the County was negligent in hiring, supervising, and retaining Mr. Hoch. The sole issue on appeal is whether Mr. Nellenback raised a triable issue of fact on his negligent supervision claim. We hold that he did not: Even viewed in the light most favorable to Mr. Nellenback, the evidence was insufficient to prove the County was on notice of the abuse and that it negligently placed Mr. Hoch in a position to cause harm. * * *

… [T]here was neither evidence that the County had any knowledge of Mr. Hoch’s abuse before the report of his abuse of another child in 1996, nor any evidence the County was aware of any conduct that could have alerted them to the potential for harm. Nellenback v Madison County, 2025 NY Slip Op 02263, CtApp 4-17-25

Practice Point: This is a fact-specific opinion which analyzes the proof necessary to raise a question of fact whether a county social services department had constructive notice of its caseworker’s propensity for the sexual abuse of children. The majority, over an extensive dissent, determined the evidence relied on by the plaintiff was not sufficient to raise a question of fact.

 

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WHERE, AS HERE, PLAINTIFFS ALLEGE THE CONTESTED SALES TAX STATUTE IS “WHOLLY INAPPLICABLE” TO THEM, AND PLAINTIFFS SEEK A DECLARATORY JUDGMENT TO THAT EFFECT, THE “EXHAUSTION OF ADMINISTRATIVE REMEDIES” REQUIREMENT IS NOT RELEVANT (THRID DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined some of the plaintiffs had not failed to exhaust their administrative remedies in this action contesting the imposition of sales tax on the construction and demolition inspection services provided by plaintiffs. There is an exception to the “exhaustion of administrative remedies” requirement where, as here, plaintiffs claim the tax statute at issue is “wholly inapplicable” to them:

… [T]he remaining plaintiffs did not, as Supreme Court held, fail to exhaust their administrative remedies. Generally, a taxpayer must utilize statutory administrative remedies prior to commencing an action against the taxing entity … . That said, there is an exception to this requirement when, as relevant here, a tax statute is attacked as wholly inapplicable to the plaintiff … . “To challenge a statute as wholly inapplicable, the taxpayer must allege that the agency had no jurisdiction over it or the matter that was taxed” … . “This exception to the rule [mandating exhaustion of administrative remedies] is limited to those cases where no factual issue is raised” concerning the subject matter of the tax dispute … .

The remaining plaintiffs qualify for the “wholly inapplicable” exception, as the complaint alleges that DTF [Department of Taxation and Finance] lacks jurisdiction because Tax Law § 1105 (c) (8) does not apply to their site safety services. Further, there are no factual issues at play here. * * * … [T]he complaint simply seeks a declaration that site safety services, as specifically defined in the New York City Building Code, are exempt from sales tax … . Site Safety LLC v New York State Dept. of Taxation & Fin., 2025 NY Slip Op 02255, Third Dept 4-17-25

Practice Point: Here plaintiffs alleged the relevant sales-tax statute was wholly inapplicable to them and sought a declaratory judgment to that effect. The proceeding therefore is excepted from the “exhaustion of administrative remedies” requirement.

 

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PLAINTIFF, WHO TRIPPED AND FELL WHEN HE STEPPED INTO A LARGE CRACK, ASSUMED THE RISK OF PLAYING CRICKET ON A CITY-OWNED TENNIS COURT WITH AN IRREGULAR SURFACE; COMPLAINT PROPERLY DISMISSED; STRONG DISSENT (CT APP).

The Court of Appeals, affirming the dismissal of the complaint, determined plaintiff assumed the risk of playing cricket on a city tennis court with a cracked surface. Judge Rivera, in an extensive dissenting opinion, argued that there is a question of fact whether the city failed to maintain the tennis court in a reasonably safe condition:

Plaintiff was injured while playing cricket on a tennis court in a park owned by the City of New York when he ran to catch a batted ball and stepped into a large crack in the asphalt. The Appellate Division correctly held that the risks of tripping and falling while playing on an irregular surface are inherent in the game of cricket … . There is no evidence in the record that the irregularity in the playing field—the cracked and uneven surface of the tennis court—unreasonably enhanced the ordinary risk of playing cricket on an irregular surface … . Defendants were therefore entitled to summary judgment dismissing the complaint on the ground that the primary assumption of risk doctrine precludes liability on the part of defendants.

From the dissent:

The primary assumption of risk doctrine does not completely displace a landowner’s traditional duty of care to maintain their premises in a safe condition. Tripping on a fissure that is allegedly the result of years of neglect is not a risk inherent to cricket, or any other sport, and defendants were therefore not entitled to summary judgment on the theory that plaintiff assumed the risk of injury by playing on a deteriorated surface. The majority empowers defendants to escape all accountability for their alleged negligence, which put plaintiff and other park users at risk of serious injury. Maharaj v City of New York, 2025 NY Slip Op 02143, CtApp 4-15-25

Practice Point: Here the assumption of the risk doctrine was deemed to outweigh any obligation on the city’s part to maintain the surface of a tennis court in a safe condition.

 

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