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FIBER OPTIC CABLES AND ENCLOSURES ARE TAXABLE UNDER REAL PROPERTY TAX LAW (RPTL) 102 (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the fiber optic cables and equipment at issue constitute taxable property under RPTL 102, in that the statutory exception for radio and television signals was not demonstrated to be applicable:

…  [T]ax exclusions are never presumed or preferred and before [a] petitioner may have the benefit of them, the burden rests on it to establish that the item comes within the language of the exclusion.’ Moreover, a statute authorizing a tax exemption will be construed against the taxpayer unless the taxpayer identifies a provision of law plainly creating the exemption . . . Thus, the taxpayer’s interpretation of the statute must not simply be plausible, it must be the only reasonable construction’ ” … . …

… [P]etitioners contend that their fiber optic installations are not taxable property pursuant to RPTL 102 (12) (i) (D) because, inter alia, petitioners use those properties to some unspecified extent to transmit “news or entertainment radio, television or cable television signals for immediate, delayed or ultimate exhibition to the public” … . We reject that contention. In light of petitioners’ failure to establish the percentage of their fiber optic installations that are used for those purposes, we may accept their contention only if we conclude that any such usage of fiber optic installations, no matter how slight, is sufficient to exclude the properties from the tax. That is not ” the only reasonable construction’ ” of the statute … , indeed, it is “simply [not plausible” … . If we accept that interpretation, based on the proliferation of uses of cell phones to stream video, television, and other programming, all fiber optic cables will be excluded from taxation. That, however, conflicts with the Court of Appeals’ determination in T-Mobile Northeast, LLC that such property is taxable (32 NY3d at 608). Moreover, RPTL 102 (12) (i) provides that taxable property includes all “wires, poles, supports and inclosures for electrical conductors upon, above and underground used in connection with the transmission or switching of electromagnetic voice, video and data signals between different entities.” Matter of Level 3 Communications, LLC v Erie County, 2019 NY Slip Op 05913, Fourth Dept 7-31-19

 

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PLAINTIFF BANK WAS ENTITLED TO AN ORDER REQUIRING THE COUNTY CLERK TO RECORD A MORTGAGE, THE ORIGINAL OF WHICH HAD ALLEGEDLY BEEN LOST; AN ATTORNEY AFFIDAVIT IS AN APPROPRIATE VEHICLE FOR THE SUBMISSION OF DOCUMENTS IN ADMISSIBLE FORM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank was entitled to an order requiring the county clerk to accept a copy of a mortgage for recording (the original allegedly had been lost and was never recorded). The Second Department further determined that an attorney affidavit was an appropriate vehicle for the submission of the documents to be recorded, which were in admissible form:

The plaintiff established its prima facie entitlement to judgment as a matter of law on the first cause of action, which sought an order directing the Suffolk County Clerk to accept a copy of the mortgage for recording. The County Clerk has a statutory duty that is ministerial in nature to record a written conveyance if it is duly acknowledged and accompanied by the proper fee (see Real Property Law §§ 290[3]; 291; County Law § 525[1]). “Accordingly, the Clerk does not have the authority to refuse to record a conveyance which satisfies the narrowly-drawn prerequisites set forth in the recording statute” … . Here, the copy of the mortgage submitted on the motion, which is notarized, was subject to recording … . Contrary to the Supreme Court’s determination, the complaint adequately stated a cause of action for this relief … , and the plaintiff’s failure to submit an affidavit of someone with personal knowledge of the facts was not fatal to the motion. The affidavit or affirmation of an attorney, even if he or she has no personal knowledge of the facts, may serve as the vehicle for the submission of acceptable attachments which provide evidentiary proof in admissible form, e.g., documents and transcripts … . JPMorgan Chase Bank, N.A. v Wright, 2019 NY Slip Op 05966, Second Dept 7-31-19

 

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NEGLIGENCE, BREACH OF CONTRACT AND DISCRIMINATION CLAIMS BROUGHT BY A DISABLED FORMER POLICE OFFICER CONCERNING GENERAL MUNICIPAL LAW 207-c BENEFITS PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department affirmed the grant of summary judgment to all defendants in this action by a disabled former police officer concerning claims for General Municipal Law 207-c benefits:

With respect to the City defendants, … we conclude that the court properly dismissed the negligence and gross negligence causes of action against them inasmuch as they were entitled to governmental function immunity based on the discretion they are afforded in administering payments of General Municipal Law § 207-c benefits … . Although plaintiff’s negligence and gross negligence causes of action involved the health care services that he was receiving, the City defendants were engaged in a governmental function because they were merely administering the payment of General Municipal Law § 207-c benefits, i.e., they did not actually provide plaintiff with health care services ;;; . Moreover, the City defendants were entitled to immunity inasmuch as the administration of section 207-c benefits involved the exercise of their discretion and the record establishes that the City defendants denied payment of the disputed claims for benefits after actually exercising this discretion … .

… Plaintiff was not a party to the contracts between [the remaining] defendants and City defendants, and therefore liability may be established where, inter alia, “the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launches a force or instrument of harm” (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). Here, the undisputed evidence established that the [defendants] did not have authority to deny payment of plaintiff’s claims for General Municipal Law § 207-c benefits. That authority rested, at all relevant times, with the City defendants. Thus, it cannot be said that these defendants launched any “instrument of harm” because they never made the decision to deny any of plaintiff’s claims for payment of medical care and treatment. …

… [W]e note that plaintiff, as a public employee, may not sue his employer under Title II of the ADA and the Rehabilitation Act, as plaintiff has done here … . Where, as here, plaintiff’s causes of action are “related to the terms, conditions and privileges of his employment[, i.e., his entitlement to benefits under General Municipal Law § 207-c, they] are covered by Title I” and not Title II of the ADA or the Rehabilitation Act … . Vassenelli v City of Syracuse, 2019 NY Slip Op 05878, Fourth Dept 7-31-19

 

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COUNTY’S MOTION FOR SUMMARY JUDGMENT IN ITS ACTION FOR SEIZURE AND FORFEITURE OF DEFENDANT’S VEHICLE AFTER A DWI CONVICTION SHOULD NOT HAVE BEEN GRANTED, THE COUNTY DID NOT COMPLY WITH THE NOTICE REQUIREMENTS OF THE COUNTY CODE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the county’s motion for summary judgment in its action to seize defendant’s vehicle pursuant to the Nassau County Administrative Code after a DWI conviction (Vehicle and Traffic Law 1192) should not have been granted. The county did not comply with the notice requirements of the code:

…. [T]he complaint, as amplified by the plaintiff’s submissions establishing that the defendant pleaded guilty to a violation of Vehicle and Traffic Law § 1192, stated a cause of action for civil forfeiture of the vehicle pursuant to Nassau County Administrative Code § 8-7.0(g)(4) … . Accordingly, we agree with the Supreme Court’s denial of the defendant’s motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her. However, in opposition to the plaintiff’s showing of its prima facie entitlement to judgment as a matter of law, the defendant raised a triable issue of fact by adducing evidence demonstrating that, while she was given a copy of the notice of seizure in person, the plaintiff failed to comply with the requirement of Nassau County Administrative Code § 8-7.0(g)(4)(a) that she also be served with the notice of seizure by certified mail, return receipt requested … . Accordingly, the court should have denied the plaintiff’s cross motion for summary judgment awarding civil forfeiture of the vehicle. County of Nassau v Urban, 2019 NY Slip Op 05762, Second Dept 7-24-19

 

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QUESTION OF FACT WHETHER THE BUS STOPPED IN AN UNUSUAL AND VIOLENT WAY IN THIS COMMON CARRIER INJURY CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact about whether the bus on which plaintiff was a passenger stopped in an unusual and violent way, injuring her:

To prevail on a cause of action alleging that a common carrier was negligent in stopping a bus, a plaintiff must prove that the stop was unusual and violent, rather than merely one of the sort of “jerks and jolts commonly experienced in city bus travel” … . Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent … . “However, in seeking summary judgment dismissing such a cause of action, common carriers have the burden of establishing, prima facie, that the stop was not unusual and violent” … .

… According to the plaintiff’s testimony, shortly after she paid her fare, the bus “took off” and then came to a quick stop, causing her to fall. According to the testimony of the bus driver, he was operating the bus at about 15 miles per hour when a vehicle cut in front of him, causing him to apply the brakes and stop the bus. Under the circumstances, a triable issue of fact exists as to whether the stop of the bus was unusual and violent … . Brown v New York City Tr. Auth., 2019 NY Slip Op 05759, Second Dept 7-24-19

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED RELIEF NOT REQUESTED BY A PARTY, HERE THE ABILITY FOR UNLIMITED AMENDMENT OF A NOTICE OF CLAIM WHICH HAD NOT YET BEEN FILED; SUA SPONTE ORDERS ARE NOT APPEALABLE; LEAVE TO APPEAL GRANTED AS AN EXERCISE OF DISCRETION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that Supreme Court should not, sua sponte, have granted relief which was not requested by a party. Petitioner allegedly was injured trying to board a subway train. Before filing a notice of claim petitioner commenced a CPLR 3102 (c) proceeding to obtain discovery before starting the action. The court granted the petition and, sua sponte, gave the petitioner permission to amend the notice of claim, which had not yet been filed, within 30 days of filing the note of issue. The Second Department noted that a sua sponte order is not appealable and exercised its discretion to grant leave to appeal (CPLR 5701[a][2]; [c]):

Turning to the merits, “[p]ursuant to CPLR 2214(a), an order to show cause must state the relief demanded and the grounds therefor'” . “However, the court may grant relief that is warranted by the…  facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party'” … .

Here, the Supreme Court strayed from this principle when, in addition to granting, in effect, that branch of the petition which was for an order preserving material related to the accident, it also sua sponte granted a nearly unlimited prospective right to the petitioner to amend a notice of claim that had not yet been served. This sua sponte relief was dramatically different from the pre-action discovery that was the subject of the petition … . Furthermore, the papers before the court did not support the award of such additional relief, since the absence of a notice of claim rendered it impossible to determine whether the future notice of claim or any amendments thereto would be in compliance with General Municipal Law § 50-e. We also agree with the appellants that they were prejudiced insofar as the court set a permissive timeline for amending the notice of claim that potentially could be, inter alia, beyond the statute of limitations and after the completion of discovery. Matter of Velez v City of New York, 2019 NY Slip Op 05781, Second Dept 7-24-19

 

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THE COUNTY LEGISLATURE DID NOT HAVE THE AUTHORITY TO ADOPT A RESOLUTION REQUIRING THE DISCLOSURE OF AN ASSISTANT DISTRICT ATTORNEY’S FINANCIAL INFORMATION AFTER THE COUNTY ETHICS COMMITTEE DENIED THE DISCLOSURE-REQUEST MADE BY A NEWSPAPER; THE LEGISLATURE USURPED THE POWER OF A REVIEWING COURT (SECOND DEPT).

The Second Department annulled a resolution adopted by the Suffolk County Legislature specifically allowing the publication of the financial disclosure information provided to the County Ethics Board by an assistant district attorney. A newspaper initially made the request of the Ethics Board. The request was denied and the newspaper did not seek review of the denial. The Legislature, in direct response to the denial of the newspaper’s request,  took it upon itself to adopt the resolution allowing the information to be made public. The Second Department held that the Legislature did not have the authority to essentially act as a reviewing court by passing a resolution addressed to a specific circumstance:

The County Legislature was established to determine County policies and to exercise other functions as may be assigned to it by law … . The County Legislature exercises the County’s powers of local legislation and appropriations … . The County Legislature has broad powers to enact local legislation. However, it is fundamental that legislative power does not extend so far as to apply the rules of law to particular cases, as the power to adjudicate the applicability of the law to individual situations is a judicial power … . A legislative body may not usurp a court’s power to interpret and apply the law to the particular circumstances before it … . Thus, it was beyond the authority of the County Legislature to determine that the Ethics Board’s decision to withhold the petitioner’s financial disclosure statements from public inspection was incorrect and to take it upon itself to obtain the statements and provide for their public release. Put another way, the County Legislature wrongly placed itself in the position of a reviewing court. This is particularly disturbing where the purportedly aggrieved newspaper took no steps to vindicate its rights to disclosure of the financial statements by the Ethics Board. Matter of Prudenti v Suffolk County Legislature, 2019 NY Slip Op 05779, Second Dept 7-24-19

 

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THE NYC DEPARTMENT OF SOCIAL SERVICES DOES NOT HAVE THE AUTHORITY TO RECOVER MEDICAID OVERPAYMENTS FROM PERSONAL CARE SERVICE PROVIDERS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kahn. over a two-justice dissent, determined that The City of New York Human Resources Administration Department of Social Services (HRA) does not have the authority to audit and recover overpayments of funds provided pursuant to the Health Care Reform Act (HCRA) from personal care service providers such as petitioner People Care Incorporated d/b/a Assisted Care:

The determinative issue on this appeal is not whether the HCRA funds were denominated as “Medicaid rates of payment” or “Medicaid rate adjustments” in the statute and the MOU [memorandum of understanding]. Rather, the issue presented here is whether, under the terms of the 2001 contract, Public Health Law § 2807-v(1)(bb)(i) and the MOU superseded the provisions of that contract as to the auditing and recoupment of HCRA funds. * * *

… [N]either Public Health Law § 2807-v(1)(bb), as the governing statute, nor the MOU between DOH [NYS Department of Health] and HRA, entered into pursuant to that statute, contains any language delegating DOH’s auditing and recoupment authority to HRA or any other agency. Matter of People Care Inc. v City of New York Human Resources Admin., 2019 NY Slip Op 05756, First Dep 7-23-19

 

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STATEMENTS POSTED ON AN ELECTION-RELATED FACEBOOK PAGE ABOUT THE OPPOSING CANDIDATE ARE NOT SHIELDED BY IMMUNITY AND ARE ACTIONABLE IN THIS DEFAMATION CASE; TO APPEAL THE DENIAL OF A MOTION TO STRIKE PORTIONS OF A COMPLAINT A MOTION FOR LEAVE TO APPEAL MUST BE MADE (THIRD DEPT).

The Third Department determined statements posted on an election-related Facebook page by defendant, a Sheriff running for County Executive, concerning plaintiff, a Deputy County Executive also running for County Executive, were actionable in this defamation case. The court noted that the defendant’s appeal of the denial of his motion to strike certain paragraphs of the complaint (CPLR 3024) was not before the court because a motion for leave to appeal had not been made (CPLR 5701 [b] [3]):

… [W]e reject defendant’s contention that he is shielded from liability due to absolute immunity. This immunity protects government officials, such as defendant, “with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties” … . As such, plaintiff cannot maintain a defamation claim against defendant based upon statements “emanating from official reports and communications” … . Although defendant was commenting about an investigation being conducted by his office, as well as responding to attacks on the credibility of his office, the documentary evidence in the record establishes that the challenged statements were not posted on the official site of the Chemung County Sheriff. Rather, they were posted on defendant’s campaign Facebook page and another Internet website. Under these circumstances, defendant cannot rely on absolute immunity … .

… The statement that plaintiff was “pilfering free gas from taxpayers” is “susceptible to a defamatory meaning, inasmuch as [it] convey[s], at a minimum, serious impropriety and, at worst, criminal behavior” … . Such statement also “has a precise meaning that is capable of being proven true or false” … . …

The complaint alleged that defendant published the false statements and that they “were made in bad faith, with reckless disregard for the truth” and “tend[ed] to subject plaintiff to public contempt, ridicule, aversion, and disgrace.” In view of these allegations, as well as the specific statements at issue, we are satisfied that plaintiff sufficiently pleaded malice … . Krusen v Moss, 2019 NY Slip Op 05733, Third Dept 7-18-19

 

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THE NOTICES OF CLAIM NOTIFIED THE MUNICIPAL DEFENDANTS ONLY OF THE DAMAGES RELATING TO PLAINTIFF’S DECEDENT, PLAINTIFF’S MOTHER’S MOTION TO AMEND THE COMPLAINT TO ADD HER DERIVATIVE CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the complaint against the municipal defendants could not be amended to assert a derivative cause of action by plaintiff’s decedent’s mother:

In September 2015, the decedent commenced this action against the City, the Port Authority, and another defendant, alleging common-law negligence and violations of the Labor Law. The decedent died on August 7, 2016. Subsequently, the decedent’s mother, Marilyn Conn (hereinafter Marilyn), as administrator of the decedent’s estate and individually, moved for leave to substitute herself as the plaintiff in place of the decedent. She also moved for leave to amend the complaint to add a cause of action to recover damages for wrongful death on behalf of the decedent’s estate and, in effect, a derivative cause of action to recover damages for loss of services on her own behalf, in her individual capacity. …

… [T]he notices of claim filed against the City and the Port Authority were limited to allegations that, as a result of the accident, the decedent was caused to sustain damages related to his “personal injuries, loss of earnings, pain and suffering and medical expenses.” Marilyn was not identified as a claimant in the caption of the notices of claim, she was not mentioned in the text of the notices of claim, and there were no allegations that she, individually, sustained any damages for which compensation was sought from the City or the Port Authority … .

Accordingly, the Supreme Court should have denied that branch of Marilyn’s motion which was, in effect, for leave to amend the complaint to assert a derivative cause of action to recover damages for loss of services on her own behalf, in her individual capacity, against the City and the Port Authority. Since the City and the Port Authority were not given timely notice of Marilyn’s derivative claim, the court should not have allowed it to be asserted against them.  Conn v Tutor Perini Corp., 2019 NY Slip Op 05643, Second Dept 7-17-19

 

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