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‘LABOR CLASS’ EMPLOYEES ARE NOT ENTITLED TO REINSTATEMENT AFTER A YEAR’S ABSENCE DUE TO ON THE JOB INJURY, CIVIL SERVICE LAW 71 DOES NOT APPLY TO ‘LABOR CLASS’ EMPLOYEES (CT APP).

The Court of Appeals, reversing the Appellate Division, determined section 71 of the Civil Service Law, which provides for the reinstatement of an employee after a one-year absence from work due to an injury, did not apply to petitioner (Jordan), a so-called “labor class” employee of the New York City Housing Authority (NYCHA):

Petitioners argue, as they did below, that “employee” is unqualified in the statute and so we should apply that term broadly, consistent with its plain meaning. NYCHA counters that, although “employee” is undefined in the Civil Service Law, section 71 uses terms of art normally not associated with the labor class, including “preferred eligible list” and “grade.” Both are fair points, and therefore to resolve any ambiguity, we turn to the history and the purpose of the statute in resolving this issue.

Our task here is made easier by the fact that we have already articulated section 71’s purpose. Twenty-five years ago, in Allen v Howe, we said that section 71 “w[as] adopted to address the difficult situation created by the prolonged absence of a civil service employee” due to injury (84 NY2d 665, 671 [1994]). Under Civil Service Law § 75, delineated groups of employees “shall not be removed . . . except for incompetency or misconduct after a hearing.” This section left a governmental employer unable to fill a vacancy created by an extended absence due to injury without a “resignation” or the “institut[ion] of disciplinary hearings” (id.). Section 71 was designed to remove the procedural hurdle imposed by section 75 by allowing a “State governmental employer” to terminate an employee without “resort to a disciplinary proceeding” and providing the injured employee a mechanism for later reinstatement (id.).

Including Jordan within the coverage of section 71 would not serve that legislative purpose. As a labor class employee, Jordan was not entitled to a disciplinary hearing before she was terminated and NYCHA did not face the dilemma that led to passage of section 71. Moreover, even if NYCHA was forced to rehire Jordan, she could have been lawfully terminated the next day—”an absurd result that would frustrate the statutory purpose” … . Therefore, we hold that NYCHA did not violate Section 71 when it refused to reinstate Jordan. Matter of Jordan v New York City Hous. Auth., 2019 NY Slip Op 04756, CtApp 5-13-19

 

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THE PLAINTIFF WAS PROPERLY ALLOWED TO FILE A LATE NOTICE OF CLAIM ASSERTING A NEW CAUSE OF ACTION, ALTHOUGH THE ORIGINAL NOTICE OF CLAIM DID NOT MENTION AN ALLEGEDLY MISSING STOP SIGN AS A BASIS FOR LIABILITY, THE MISSING STOP SIGN WAS MENTIONED IN THE POLICE REPORT WHICH WAS ATTACHED TO THE ORIGINAL NOTICE OF CLAIM (SECOND DEPT).

The Second Department determined plaintiff student was properly allowed file a late notice of claim, which added a cause of action. The infant plaintiff was injured when his school bus was involved in a traffic accident. The initial notice of claim alleged negligence on the of the city and the Department of Education (DOE) in connection with the ownership of the school bus. The late notice of claim alleged a cause of action against the city and the NYC Department of Transportation based upon an alleged missing stop sign. A police report was attached to the original notice of claim and the missing stop sign was mentioned in the report:

… [T]he Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s motion which was for leave to serve a late notice of claim (see General Municipal Law § 50-e[5]). Although the plaintiff failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim containing the allegation regarding the missing stop sign, the absence of a reasonable excuse is not determinative, as the City defendants acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose and were not substantially prejudiced by the late notice … . M.L. v City of New York, 2019 NY Slip Op 04686, Second Dept 6-12-19

 

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THE FEDERAL FAIR HOUSING AMENDMENTS ACT AND THE NEW YORK CITY HOUSING AUTHORITY’S RULES REQUIRED THAT THE HEARING OFFICER CONSIDER PETITIONER-TENANT’S ACCOMMODATION REQUEST TO KEEP AN EMOTIONAL SUPPORT DOG IN HIS APARTMENT, THE HEARING OFFICER HAD RULED THE DOG WAS VICIOUS AND MUST BE REMOVED WITHOUT CONSIDERING THE ACCOMMODATION REQUEST, THE MATTER WAS SENT BACK (FIRST DEPT).

The First Department sent the matter back for a determination by the New York City Housing Authority (NYCHA) of petitioner’s accommodation request to keep an emotional support dog in his apartment. The dog had apparently bitten a NYCHA employee and the NYCHA alleged the presence of “vicious” dog violated the lease. Before the hearing, petitioner, who suffers from schizophrenia, requested that he be permitted to register the dog, Onyx, as an emotional support dog. The Hearing Officer ruled that petitioner could not keep the dog, but did not reach the accommodation request:

Under the Fair Housing Amendments Act (FHAA), it is unlawful discrimination for a housing provider to “refus[e] to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling” (42 USC § 3604[f][3][B]). Federal regulations exempt “animals that assist, support, or provide service to persons with disabilities” from public housing authority pet rules (24 CFR § 960.705[a]). Accordingly, respondent is obligated by both federal law and its own rules to accommodate petitioner’s request to maintain his emotional support animal, Onyx, so long as petitioner meets his burden of showing that his dog assists him with aspects of his disability. …

Federal regulations provide that a housing provider can only invoke the direct threat exception after conducting an individualized and objective assessment of the relevant factors, including (1) the nature, duration, and severity of the risk; (2) the probability that the potential [*3]injury will actually occur; and (3) whether any reasonable accommodations will mitigate the risk (24 CFR § 9.131[c]). The “direct threat” analysis has been applied to cases in which a person with a disability is seeking to maintain an emotional support pet as a reasonable accommodation … . Matter of Washington v Olatoye, 2019 NY Slip Op 04644, First Dept 6-11-19

 

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THE TOWN RESOLUTION ALLOWING THE CONSTRUCTION OF A SEWER LINE ALONG A NATURE TRAIL WAS ANNULLED BY THE 4TH DEPARTMENT, THE TOWN BOARD DID NOT TAKE THE REQUIRED ‘HARD LOOK’ AT THE EFFECTS OF THE SEWER-LINE CONSTRUCTION ON CERTAIN RARE ANIMAL AND PLANT SPECIES, AS WELL AS THE EFFECTS UPON SURFACE WATERS (FOURTH DEPT).

The Fourth Department annulled the determination allowing an easement to install a sewer line along a nature trail. The Fourth Department held that the Town Board did not take the required “hard look” (required by the State Environmental Quality Review Act [SEQRA]) at the effect of the sewer line on certain endangered and rare animal and plant species, as well as the effects on surface water:

… [T]he New York State Department of Environmental Conservation (DEC) made respondent aware that its database indicated the presence of certain endangered, threatened, or rare animal and plant species on the project site. Those species included the northern long-eared bat, the imperial moth, and the northern bog violet. In addition, the database indicated the presence of inland salt marsh. The DEC recommended that respondent conduct a survey of the professional literature and determine whether the project site contains habitats favorable to such species and, if so, that respondent conduct a field survey to determine whether the species are present. The DEC instructed that, if respondent determined that such species are present, modifications should be considered to minimize impact. There is no indication that respondent conducted such a survey. [With the exception of the Indiana bat. the species’] presence was merely noted…, along with the bare conclusion that there would be no significant impact on those species. …

[R]espondent merely set forth general practices for avoiding significant adverse impacts on surface water and stream corridors without providing a reasoned elaboration that, by implementing such practices in this particular project, respondent would successfully avoid any significant adverse impacts on surface water. Matter of Frank J. Ludovico Sculpture Trail Corp. v Town of Seneca Falls, 2019 NY Slip Op 04621, Fourth Dept 6-7-19

 

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THE RECKLESS DISREGARD STANDARD APPLIED TO DEFENDANT POLICE OFFICER WHO WAS RESPONDING TO AN EMERGENCY WHEN THE TRAFFIC ACCIDENT OCCURRED, THE OFFICER TOOK PRECAUTIONARY MEASURES AND THEREFORE HIS CONDUCT DID NOT RISE TO THE LEVEL OF RECKLESS DISREGARD OF THE SAFETY OF OTHERS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined “reckless disregard” standard for the operation of a police car in an emergency situation applied to the facts, and further found that the officer’s conduct did not rise to the level of “reckless disregard:”

We agree with defendants that the court erred in determining that the defendant officer’s conduct was not measured by the “reckless disregard” standard of care under Vehicle and Traffic Law § 1104 (e) … . That standard of care “applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b)” …  and, if applicable, the driver is “shielded from liability unless [he or she] is shown to have acted with reckless disregard’ of the safety of others” … . Here, there is no dispute that the defendant officer was operating an “authorized emergency vehicle” and was “involved in an emergency operation” at the time of the accident (§ 1104 [a]). Furthermore, defendants’ submissions in support of their motion established as a matter of law that the defendant officer was performing exempted conduct when he “proceed[ed] past a steady red signal . . . , but only after slowing down as may be necessary for safe operation” … . …

Here, the defendant officer’s uncontroverted testimony established that he was responding to a disturbance call that was “[p]riority 1,” i.e., the highest priority level, and that he took several precautions before proceeding into the intersection against the red light. Specifically, he slowed his vehicle to an almost complete stop, looked to his right and left, and then slowly proceeded into the intersection at a speed of about five miles per hour. When plaintiffs’ vehicle came into the defendant officer’s peripheral vision, he “slammed” his brake and attempted to avoid colliding with plaintiffs’ vehicle. Where, as here, a defendant officer takes precautionary measures before engaging in exempted conduct under Vehicle and Traffic Law § 1104 (b), the police officer does not act with reckless disregard for the safety of others … . Levere v City of Syracuse, 2019 NY Slip Op 04613, Fourth Dept 6-7-19

 

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THE COMPLAINT ALLEGING THE COUNTY WAS VICARIOUSLY LIABLE (RESPONDEAT SUPERIOR) FOR THE NEGLIGENT ACTIONS OF A CORONER SHOULD NOT HAVE BEEN DISMISSED, THE CORONER ALLEGEDLY TRANSFERRED A PORTION OF THE REMAINS OF PLAINTIFF’S SON TO A VOLUNTEER FIRE DEPARTMENT FOR THE TRAINING OF CADAVER DOGS (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint against the county, based upon the alleged negligence of a county employee, should not have been dismissed. It was alleged that a coroner (Jackman) employed by the county transferred human remains (plaintiff’s son) to a volunteer fire company for the purpose of train cadaver dogs:

Although it is generally a question for the jury whether an employee is acting within the scope of employment … , an employer is not liable as a matter of law “if the employee was acting solely for personal motives unrelated to the furtherance of the employer’s business’ “… .

Here, there is evidence that Jackman’s decision to transfer a portion of the remains of plaintiffs’ son (decedent) to defendant Vincent Salerno, the Fire Chief of Cambria, was driven by a work-related purpose, rather than Jackman’s own personal interests … . Furthermore, there are issues of fact whether it was foreseeable that Jackman, in performing his obligations as a county coroner, might negligently remove, transport, or even transfer decedent’s remains. “[F]or an employee to be regarded as acting within the scope of his [or her] employment, the employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected” … . An employee’s “[m]ere . . . deviation from the line of . . . duty does not relieve [the] employer of responsibility” … . …

… [W]e reject plaintiffs’ contention that the court erred in granting Cambria’s motion. The unrefuted evidence showed that Cambria’s employee, Salerno, had only personal motives for requesting decedent’s remains from Jackman, i.e., to further his own interest in training dogs to locate cadavers … . Salerno had no official duties that required him to train cadaver dogs or obtain human remains to train such dogs. Dunn v County of Niagara, 2019 NY Slip Op 04530, Fourth Dept 6-7-19

 

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PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE SO HIS FALL FROM A LADDER WAS NOT ACTIONABLE PURSUANT TO LABOR LAW 240 (1), A MUNICIPALITY’S MAINTENANCE OF LIGHT POLES IS A PROPRIETARY FUNCTION TO WHICH THE DOCTRINE OF IMMUNITY DOES NOT APPLY, THE MUNICIPALITY’S ‘LACK OF WRITTEN NOTICE’ DEFENSE COULD NOT BE RAISED FOR THE FIRST TIME ON APPEAL (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff was engaged in routine maintenance when he was injured, which is not actionable pursuant to Labor Law 240 (1). The Third Department further determined that a municipality’s maintenance of light poles is a proprietary function subject to ordinary standards of negligence which is not protected by the doctrine of governmental immunity. The court further held that the “lack of written notice” defense was not a question of law which the municipality could raise for the first time on appeal. The plaintiff was repairing burned out lights which were on strands of decorative lights attached to a light pole. The strands of decorative lights were not fixtures within the meaning of the Labor Law:

… Merchants [a non-profit which had wrapped decorative lights around city light poles] hired plaintiff, as an independent contractor, to replace light strands located on 36 light poles because many of the light bulbs had become inoperable. Plaintiff was injured when he fell from a 16-foot aluminum-rung extension ladder when the pole that it was leaning on suddenly fell over. …

… [R]replacement of the light strands, which was necessary because numerous bulbs had burned out, constituted routine maintenance that is outside the protection of Labor Law § 240 (1) … . …

… [A]lthough replacement of a light fixture on a lighting pole is a repair within the protection of Labor Law § 240 (1) … , under the facts herein, the light strands cannot be considered a fixture. …

Although a municipality may enjoy qualified immunity from liability arising from highway planning and design decisions … , that doctrine does not shield a municipality from liability arising from negligent maintenance. Gutkaiss v Delaware Ave. Merchants Group, Inc., 2019 NY Slip Op 04527, Third Dept 6-6-19

 

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THE COMMISSIONER OF AGRICULTURE AND MARKETS PROPERLY ENFORCED A TOWN RESOLUTION WHICH PROHIBITED CONNECTING A WATER MAIN SERVICING AN AGRICULTURAL AREA TO A NEW RESIDENTIAL SUBDIVISION; THE DEVELOPERS WERE ‘INTERESTED PERSONS’ AND WERE PROPERLY ALLOWED TO INTERVENE IN THE COMMISSIONER’S ARTICLE 78 ACTION TO ENFORCE THE TOWN RESOLUTION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner, the Commissioner of Agriculture and Markets, had the authority to enforce a 2004 Town Board resolution which restricted the use of water provided by a water main to existing residential uses and agricultural uses. In 2016 the Town Board passed a resolution allowing a connection with the water main to service a new residential subdivision. The Commissioner brought an Article 78 proceeding to enforce the 2004 resolution and the developers of the residential subdivision were properly allowed to intervene:

Supreme Court did not abuse its discretion in permitting the developers to intervene. Petitioner may well be correct that the developers do not have standing to bring suit to challenge his determination, but “[t]he bases for permissive intervention are broader than they are for standing to originate the proceeding” … . The developers have property interests that will be impacted should petitioner succeed … and all share the view of the Town and respondent Town Supervisor that petitioner lacks authority to enforce restrictions on water main access that the Town Board later attempts to vitiate. In our view, this is sufficient to render them “interested persons” who can at least intervene with regard to that portion of the petition/complaint founded upon CPLR article 78 … . …

A local government enjoys broad autonomy under “the ‘home rule’ provision of the New York Constitution,” but that autonomy does not extend to actions “that conflict with the State Constitution or any general law” (…see NY Const, art IX, § 2 [c] [ii]; Municipal Home Rule Law § 10 [1]). Among the general laws of New York is Agriculture and Markets Law article 25-AA, which “was enacted upon a finding that many of the agricultural lands in New York state are in jeopardy of being lost for any agricultural purposes due to local land use regulations inhibiting farming, as well as various other deleterious side effects resulting from the extension of nonagricultural development into farm areas” … . …

Petitioner was … within his rights to order the Town to comply with the 2004 resolution following an investigation and, upon the Town’s failure to seek review of his determination and refusal to comply with it, commence the present enforcement litigation … . Matter of Ball v Town of Ballston, 2019 NY Slip Op 04519, Third Dept 6-6-19

 

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THE CITY ALLOWED THE LOT TO BE USED FOR COMMUNITY GARDENS BUT NEVER UNEQUIVOCALLY DEDICATED THE LOT AS PARKLAND, THEREFORE THE PUBLIC TRUST DOCTRINE DID NOT APPLY AND THE CITY CAN DEVELOP THE LAND (SECOND DEPT).

The Second Department determined land used for a community garden (Lot 142) was never unequivocally dedicated as parkland by the city. Therefore the public trust doctrine did not prohibit the city from developing the land:

Under the public trust doctrine, a land owner cannot alienate land that has been impliedly dedicated to parkland without obtaining the approval of the legislature … . A party seeking to establish such an implied dedication to parkland and thereby successfully challenging the alienation of the land must show that (1) “[t]he acts and declarations of the land owner indicating the intent to dedicate his land to the public use [are] unmistakable in their purpose and decisive in their character to have the effect of a dedication and (2) that the public has accepted the land as dedicated to a public use” … . “It remains an open question whether the second prong . . . applies to a municipal land owner”… . Regardless, “[w]hether a parcel has become a park by implication is a question of fact which must be determined by such evidence as the owner’s acts and declarations, and the circumstances surrounding the use of the land” … . “[I]f a landowner’s acts are equivocal, or do not clearly and plainly indicate the intention to permanently abandon the property to the use of the public, they are insufficient to establish a case of dedication'”… .”The burden of proof rests on the party asserting that the land has been dedicated for public use” … .

Here, the defendants submitted evidence showing that the City’s actions and declarations did not unequivocally manifest an intent to dedicate Lot 142 as parkland. Their exhibits showed that the City permitted the community garden to exist on a temporary basis as the City moved forward with its plans to develop the parcel. Their exhibits also demonstrated that any management of Lot 142 by the City’s Department of Parks and Recreation was understood to be temporary and provisional … . Matter of Coney Is. Boardwalk Community Gardens v City of New York, 2019 NY Slip Op 04162, Second Dept 5-29-19

 

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PETITIONER, WHO CONSENTED TO PROVIDING A DNA SAMPLE AFTER ARREST, MAY SEEK DISCRETIONARY EXPUNGEMENT OF THE DNA PROFILE AND UNDERLYING DOCUMENTS UPON BEING ADJUDICATED A YOUTHFUL OFFENDER, RESPONDENT JUDGE DIRECTED TO DECIDE WHETHER EXPUNGEMENT IS APPROPRIATE UNDER THE FACTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, granted a writ of mandamus directing the respondent-judge to consider whether the expungement of DNA evidence derived from a sample provided with petitioner’s consent after arrest is appropriate. The petitioner was subsequently adjudicated a youthful offender (YO) and sought expungement on that ground. The DNA evidence is maintained by the New York City Office of Chief Medical Examiner (OCME). The First Department concluded that the OCME is subject to the State Executive Law and a court has the discretionary authority to expunge the YO’s DNA profile from the SDIS (index system used for mutual exchange, use and storage of DNA records), along with the underlying DNA records:

[Re: the propriety of the Article 78 proceeding:] In the absence of an available remedy at law (see CPL 450.20), the important issues raised on this appeal will escape this Court’s review unless this petition proceeds … . Moreover, this Court has original jurisdiction over the issues raised because they concern a sitting justice (CPLR 506[b][1]; 7804[b] …). …

There is abundant support for the conclusion that OCME’s responsibilities in testing, analyzing and retaining DNA data is subject to the State Executive Law. Respondent’s arguments that the statutory reference to a “state” DNA identification index in Article 49-B necessarily excludes a local DNA laboratory like that the one operated by OCME, is unavailing. …

… [W]e hold that the same discretion afforded to a court under the Executive Law to expunge DNA profiles and related records when a conviction is vacated may also be exercised where, as here, a YO disposition replaces a criminal conviction. The motion court, in finding that, as a matter of law, it had no discretion, failed to fulfill its statutory mandate to consider whether in the exercise of discretion, expungement of petitioner’s DNA records was warranted in this case. …

Petitioner did not, either expressly or by implication, waive the privilege of nondisclosure and confidentiality by providing his DNA before the court made its determination that he was eligible for YO status. Clearly the Executive Law permits an adult who has voluntarily given his or her DNA in connection with a criminal investigation the right to seek discretionary expungement where a conviction had been reversed or vacated. A youthful offender does not have and should not be afforded fewer pre-YO adjudication protections than an adult in the equivalent circumstances. Matter of Samy F. v Fabrizio, 2019 NY Slip Op 04120, First Dep 5-28-19

 

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