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ALTHOUGH THE EXCUSE WAS INADEQUATE, THE CITY HAD ACTUAL NOTICE OF THE HOLE PETITIONER STEPPED IN AND DELAY IN FILING THE NOTICE OF CLAIM DID NOT PREJUDICE THE CITY, PETITIONER’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s motion for leave to file a late notice of claim in this slip and fall case should have been granted. Although the excuse was inadequate, the city had actual notice and was not prejudiced by the delay:

Petitioner’s assertion that he was unaware of the requirement that he file a notice of claim within 90 days of his accident is not a reasonable excuse for failing to file a timely notice … . His contention that his injuries prevented him from timely filing a notice of claim is not an acceptable excuse, because he failed to provide any medical documentation to support his claimed incapacity … . Notwithstanding, his failure to establish a reasonable excuse for not timely filing a notice of claim is not fatal … .

The City obtained actual notice of the accident within a reasonable time after the 90-day period expired … . It does not contest petitioner’s assertion that the condition of the hole remained unchanged at the time he sought leave … . Although petitioner does not address whether anyone saw the accident, the bare claim that the delay would make it difficult for the City to locate witnesses is insufficient to establish prejudice … . Matter of Montero v City of New York, 2019 NY Slip Op 07732, First Dept 10-29-19

 

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SPECIAL NEEDS STUDENT’S STATUTORY ACTIONS AGAINST THE NYC DEPARTMENT OF EDUCATION’S OFFICE OF PUPIL TRANSPORTATION SHOULD NOT HAVE BEEN DISMISSED; THE AUTISTIC SIX-YEAR-OLD STUDENT WAS TRANSPORTED TO SCHOOL ON A FULL-SIZED BUS, GENERATING NINE INCIDENT REPORTS IN A SIX-WEEK PERIOD, INSTEAD OF THE MINI-BUS REQUIRED BY THE INDIVIDUALIZED EDUCATION PROGRAM (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Moulton, over and extensive dissenting opinion, determined that a special needs student’s statutory actions against NYC’s Office of Pupil Transportation should not have been dismissed. The opinions are too detailed and comprehensive to fairly summarize:

[Plaintiff student, I.M., who was six at the time, is] a nonverbal diapered child with autism spectrum disorder, moderate to severe intellectual disability, and attention deficit disorder. His 2005-06 Individualized Educational Program (IEP) stated, in bold faced type, that he required a “mini-bus” to transport him to and from school … . However, due to a computer coding error he was placed on a full-sized school bus operated by defendant the Pioneer Transportation Corporation (Pioneer) from September 8, 2005 through October 19, 2005. During this period, Pioneer filed nine incident reports with I.M.’s school in connection with these trips. I.M.’s family also repeatedly complained to I.M.’s school and to the New York City Department of Education’s Office of Pupil Transportation (OPT). The problem was not rectified until October 20, 2005, when I.M. was placed on a minibus in accordance with his IEP.

Plaintiff … appeals from Supreme Court’s dismissal of his claims under section 504(a) of the Rehabilitation Act of 1973 … (the RA), Title II of the Americans with Disabilities Act of 1990 (the ADA), section 296(2)(a) of the New York State Executive Law, and section 8-107 of the Administrative Code of the City of New York (the State and City HRLs). Supreme Court dismissed these statutory claims on the basis that “[t]here is no evidence that the infant was purposefully discriminated against as a result of his disability when he was placed on the full-sized bus.” … It let stand plaintiff’s common-law negligence and gross negligence claims. The only issue on appeal is whether Supreme Court properly dismissed plaintiff’s statutory discrimination claims.

We … reverse … and reinstate these statutory discrimination claims against the Board of Education of the City of New York, its employees Lorraine Sesti and Joanne Richburg, and OPT (collectively DOE) … . We affirm Supreme Court’s dismissal of the statutory claims against Pioneer but on different grounds. Viewing the evidence, much of which is uncontested, … issues of fact exist as to whether DOE violated the discrimination statutes by acting with bad faith, gross misjudgment, or deliberate indifference to [plaintiff’s] rights to be transported by minibus, thereby depriving him of a FAPE [free appropriate public education]. A reasonable jury could conclude that a simple bureaucratic mistake was compounded by inaction into a violation of the RA, the ADA and the State and City HRLs. I.M. v City of New York, 2019 NY Slip Op 07756, First Dept 10-29-19

 

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PURSUANT TO THE NYC ADMINISTRATIVE CODE, OUT-OF-POSSESSION LANDLORDS ARE RESPONSIBLE FOR THE REMOVAL OF ICE AND SNOW FROM THE ABUTTING CITY SIDEWALKS, NOTWITHSTANDING AN AGREEMENT MAKING THE TENANT RESPONSIBLE; THE OUT-POSSESSION-LANDLORDS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED BY THE APPELLATE DIVISION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined that the NYC  Administrative Code provision which requires the abutting landowners to maintain the city sidewalks applies to out-of-possession landlords, even where the tenant is responsible for maintaining the sidewalks under the lease:

Section 7-210 of the Administrative Code of the City of New York unambiguously imposes a nondelegable duty on certain real property owners to maintain City sidewalks abutting their land in a reasonably safe condition. Under this duty of care, a subject owner is liable for personal injury claims arising from the owner’s negligent failure to remove snow and ice from the sidewalk (id. § 7-210 [b]). The Code makes no exception for out-of-possession landowners and so we hold that the duty applies with full force notwithstanding an owner’s transfer of possession to a lessee or maintenance agreement with a nonowner. Thus, defendants are not entitled to summary judgment as a matter of law due solely to the owners’ out-of-possession status. Xiang Fu He v Troon Mgt., Inc., 2019 NY Slip Op 07643, CtApp 10-24-19

 

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PLAINTIFF DID NOT HAVE STANDING TO CONTEST THE TOWN’S NEGATIVE DECLARATION PURSUANT TO SEQRA RE THE PROPOSED SEWER DISTRICT; PLAINTIFF’S ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 AND WAS THEREFORE TIME-BARRED; PLAINTIFF DID NOT HAVE A FIRST AMENDMENT RIGHT TO A RESPONSE TO HIS COMPLAINT TO THE TOWN RE THE SEWER DISTRICT (THIRD DEPT).

The Third Department determined plaintiff did not have standing to contest the negative declaration issued by the town under the State Environmental Quality Review Act (SEQRA) because the sewer construction approved by the town was 15 miles from plaintiff’s property. The Third Department further found that plaintiff’s actions should have been brought as an Article 78 and therefore was time-barred, and his First Amendment arguments, alleging the town should have responded to his “Petition for the Redress of Grievances Regarding the Proposed [sewer district].” were meritless:

Plaintiff does not have standing to raise the SEQRA claims. “In land use matters especially, [the Court of Appeals] ha[s] long imposed the limitation that the plaintiff, for standing purposes, must show that [he or she] would suffer direct harm, injury that is in some way different from that of the public at large [and] [t]his requirement applies whether the challenge to governmental action is based on a SEQRA violation, or other grounds” … .Plaintiff does not reside in the Town. Although his homestead apparently straddles the Town line such that 1.2 acres of his land is situated in the Town, his property is located outside of — and approximately 15 miles away from — the sewer district. Moreover, plaintiff’s status as a taxpayer, by itself, does not grant him standing to challenge the establishment of the sewer district … . …

Plaintiff’s SEQRA challenge is also time-barred. Regardless of how a plaintiff may label or style his or her claim, courts must look to the core of the underlying claim and the relief sought and, if the claim could have been properly addressed in the context of a CPLR article 78 proceeding, a four-month statute of limitations will apply … . * * *

… [T]he First Amendment does not “guarantee[] a citizen’s right to receive a government response to or official consideration of a petition for redress of grievances” … . Schulz v Town Bd. of the Town of Queensbury, 2019 NY Slip Op 07667, Third Dept 10-24-19

 

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ALLEGATION THAT FIREFIGHTERS TOLD PLAINTIFFS THE FIRE WAS EXTINGUISHED AND IT WAS SAFE TO REENTER WAS SUFFICIENT TO DEMONSTRATE A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE FIRE DEPARTMENT; THE COMPLAINT ALLEGED THE FIREFIGHTERS TURNED OFF THE WATER AND LEFT, AFTER WHICH THE BUILDING BURNED TO THE GROUND (SECOND DEPT).

The Second Department determined the complaint sufficiently alleged the formation of a special relationship with plaintiffs by the Fire District of New York (FDNY):

When they arrived, FDNY personnel observed a fire on storage shelves approximately 50 feet into the building. Upon concluding that the fire was being controlled by the building’s sprinkler system, FDNY personnel wet down the debris, then turned off the main water valve that controlled the flow of water to the entire sprinkler system, rendering it inoperable. After certifying to warehouse personnel that the building was safe to re-enter, FDNY personnel left the premises. Within minutes, a warehouse employee observed an orange glow toward the center of the warehouse, and a second fire alarm was activated at 6:32 a.m. However, because the sprinkler system had been disabled by FDNY personnel, the fire spread quickly and destroyed the entire building and its contents. * * *

A municipality may not be held liable for the negligent performance of a governmental function, such as police and fire protection, absent a duty born of a special relationship between the injured plaintiff and the defendant municipality … . A special relationship may arise in three situations: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of person; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when it assumes positive direction and control in the face of a known, blatant, and dangerous safety violation … .

Here, the plaintiffs’ allegations that FDNY personnel, upon arriving at the scene and assuming control over the ongoing fire, shut off the main water supply valve to the warehouse’s sprinkler systems, then certified to warehouse employees that it was safe to reenter the building when in fact the fire was still at risk of rekindling—which it did within minutes after FDNY personnel left the premises—are sufficient to establish a special relationship … . Zurich Am. Ins. Co. v City of New York, 2019 NY Slip Op 07640, Second Dept 10-23-10

 

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THE COMPLAINT IN THIS SLIP AND FALL CASE WAS BASED UPON A THEORY NOT DESCRIBED IN THE NOTICE OF CLAIM; THE COMPLAINT WAS PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the complaint in this slip and fall case was properly dismissed. The complaint alleged a theory of liability which was not described in the notice of claim:

“A notice of claim which, inter alia, sufficiently identifies the claimant, states the nature of the claim and describes the time when, the place where, and the manner in which the claim arose, is a condition precedent to asserting a tort claim against a municipality” … . Although “the statute does not require those things to be stated with literal nicety or exactness'” … , a notice of claim must provide ” information sufficient to enable the city to investigate'” … and “must at least adequately apprise the defendant that the claimant would seek to impose liability under a cognizable theory of recovery” … . A plaintiff may not later add a new theory of liability that was not included in the notice of claim … .

Here, the City established its prima facie entitlement to summary judgment dismissing the complaint by submitting evidence that the notice of claim contained no allegation that the City caused or created the icy condition where the accident occurred by negligently maintaining a nearby sewer and failing to repair an alleged “recurring flooding condition from the sewer backup” … . Rubenstein v City of New York, 2019 NY Slip Op 07633, Second Dept 10-23-19

 

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THE ZONE OF DANGER THEORY OF LIABILITY IS AVAILABLE ONLY TO THE IMMEDIATE RELATIVES OF THE INJURED PARTY; PETITIONERS’ CHILDREN WITNESSED THE FATAL INJURY TO ANOTHER STUDENT WHO WAS NOT RELATED; PETITIONERS’ REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT ALLEGING INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against the school district should not have been granted. The petitioners are the parents of students who were participating in football training when the pole or log they were carrying dropped and fatally injured another student. The late notice of claim asserted intentional and negligent infliction of emotional distress based upon the petitioners’ children being in the “zone of danger.” However, the “zone of danger” theory can be raised only by the immediate relatives of the injured party:

“The zone-of-danger rule . . . allows one who is himself or herself threatened with bodily harm in consequence of the defendant’s negligence to recover for emotional distress resulting from viewing the death or serious physical injury of a member of his or her immediate family” … . Here, the petitioners’s children were not immediate family members of the decedent. Thus, they have no legally cognizable claim to recover damages for emotional distress they allegedly sustained from witnessing the accident … , or based upon the District’s alleged refusal to provide continued counseling and maintain the coaching staff support system, as such damages are a financial consequence of their emotional trauma … . Moreover, the District demonstrated that, under the circumstances presented, it was not authorized to pay for continued outside counseling services for the petitioners’ children, and the record reflects that the District provided ongoing counseling from mental health professionals employed by the District. Under the circumstances, the proposed claim against the District is patently meritless … . Matter of Kmiotek v Sachem Cent. Sch. Dist., 2019 NY Slip Op 07583, Second Dept 10-23-19

 

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CITY OF NEW YORK CAN SUE IN NEGLIGENCE FOR DAMAGE TO CITY SIDEWALKS (CT APP).

The Court of Appeals, reversing Supreme Court, determined that the city has the capacity to sue for the negligent destruction of city property. The city sought money damages for injury to trees caused by the sidewalk repairs performed by defendants for the adjacent property owner:

The City has the general capacity to sue for the negligent destruction of its property (see General City Law § 20 [1]; New York City Charter § 394 [c]). Moreover, the provisions upon which defendants rely do not abrogate the City’s claim for damage to its property (see generally Assured Guar. [UK] Ltd. v J.P. Morgan Inv. Mgt. Inc., 18 NY3d 341, 351 [2011]). Defendants have not established that the City lacks a cognizable common law claim. City of New York v Tri-Rail Constr., Inc., 2019 NY Slip Op 07478, CtApp 10-17-19

 

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POST-VERDICT INTEREST IN THIS ACTION AGAINST THE NEW YORK CITY TRANSIT AUTHORITY SHOULD HAVE BEEN CALCULATED AT THREE PERCENT PURSUANT TO THE PUBLIC AUTHORITIES LAW (SECOND DEPT).

The Second Department noted that the Public Authorities Law allows only three percent interest from the date of the verdict in this action against the New York City Transit Authority. Plaintiff was injured while driving when a piece of metal fell from elevated tracks through the windshield. The nearly two-million dollar verdict was affirmed:

After a trial on the issue of damages, the jury returned a verdict in favor of the plaintiff and against the defendants in the principal sums of $800,000 for past pain and suffering and $1,000,000 for future pain and suffering over a 15-year period. The defendants appeal from a judgment in favor of the plaintiff and against them in the total sum of $1,967,633.08, including interest in the sum of $64,249.90. * * *

… [T]he judgment incorrectly applied an interest rate in excess of the maximum legal rate of three percent per annum to the plaintiff’s award against the defendants (see Public Authorities Law § 1212[6] … ). We therefore remit the matter … for recalculation of interest at the rate of three percent per annum from the date of the verdict … . Rojas v New York City Tr. Auth., 2019 NY Slip Op 07430, Second Dept 10-16-19

 

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THE CITY DID NOT DEMONSTRATE THE SALARY PROMISED PLAINTIFF AT THE OUTSET WAS A MISTAKE WHICH HAD BEEN CORRECTED, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT ON HER BREACH OF CONTRACT ACTION SHOULD HAVE BEEN GRANTED; SUPREME COURT’S ANALYSIS UNDER AN “AT-WILL EMPLOYEE” THEORY WAS NOT APPLICABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city-employer’s motion for summary judgment in this salary dispute should have been denied, and plaintiff-employee’s cross motion for summary judgment should have been granted. When plaintiff applied for the job the Notice of Appointment provided by the city indicated her salary would be approximately $47,000. However plaintiff was being paid approximately $41,000. The city argued the $47,000 figure was a mistake, but the evidence submitted by the city did not support that argument. In addition the city argued that plaintiff was an at-will employ. But the Second Department noted that this is a contract action for unpaid salary to which the “at-will employee” concept was not applicable:

The elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and resulting damages … . The Supreme Court’s reliance on the body of law concerning at-will employees was error. The plaintiff’s breach of contract cause of action solely seeks to recover unpaid, agreed-to compensation for services rendered while she was actually employed by the City, and thus, the at-will doctrine does not apply … . …

At best, the City’s evidence suggests that after the plaintiff was hired at the Step 4 level, some budgeting concern caused the City to seek to readjust the plaintiff’s salary to a Step 1 level. The City, however, produced no evidence demonstrating that there was any error in the Notice of Appointment or that there was any lawful change to the plaintiff’s salary. Rather, it appears that the City simply reduced the plaintiff’s salary to the Step 1 level, even though she was appointed at the Step 4 level. The City failed to demonstrate that it had any lawful basis for unilaterally changing the plaintiff’s salary. Since the City failed to make a prima facie showing of entitlement to judgment as a matter of law, the Supreme Court should have denied its motion for summary judgment dismissing the complaint. Ayers v City of Mount Vernon, 2019 NY Slip Op 07230, Second Dept 10-9-19

 

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