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THE COUNTY IS DISTINCT FROM THE SHERIFF, AND THE SHERIFF IS DISTINCT FROM THE SHERIFF’S DEPARTMENT, ONLY THE SHERIFF IS RESPONSIBLE FOR THE HIRING AND TRAINING OF SHERIFF’S DEPUTIES, THEREFORE THE INJURED INMATE’S ACTION AGAINST THE COUNTY FOR NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION OF SHERIFF’S DEPUTIES WAS PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department determined the action against the county stemming from the injuries and death suffered by plaintiff’s decedent in the Erie County Holding Center was properly dismissed. The court held that the county is separate from the sheriff’s department, which in turn is separate from the sheriff. The county is not responsible for the hiring and training of sheriff’s deputies, which is only the sheriff’s responsibility. Therefore the negligent hiring, training, supervision and retention cause of action against the county was not viable:

The duty to supervise and train Sheriff’s deputies rests with the Sheriff (… County Law § 652). … [T]he County has no similar duty … . Defendants in this case therefore met their initial burden on the motion by establishing that the County was not liable under the theory stated in plaintiff’s fourth cause of action. …

We reject plaintiff’s … contention that the County’s representation that the Erie County Sheriff’s Department lacked a separate legal identity from the County estops the County from contending that it is not the employer of the Sheriff’s deputies. The County correctly stated that “the Sheriff’s Department does not have a legal identity separate from the County . . . and thus an action against the Sheriff’s Department is, in effect, an action against the County itself”… . The Sheriff, however, is distinct from both the County and the Sheriff’s Department  … and thus the County’s representation has no bearing on whether the Sheriff, as opposed to the County, bears the responsibility of hiring, training, and supervising the Sheriff’s deputies. Metcalf v County of Erie, 2019 NY Slip Op 05265, Fourth Dept 6-28-19

 

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THE CITY’S STUDIES OF THE INTERSECTION WHERE INFANT PLAINTIFF WAS STRUCK BY A CAR WERE DONE IN THE SUMMER WHEN NO SCHOOL CHILDREN USED THE INTERSECTION, THEREFORE THE CITY WAS NOT ENTITLED TO SUMMARY JUDGMENT BASED ON THE DOCTRINE OF QUALIFIED IMMUNITY, THE STUDIES HAD CONCLUDED NO TRAFFIC CONTROL DEVICE WAS NECESSARY, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the city’s motion for summary judgment in this intersection pedestrian traffic accident case should not have been granted. Infant plaintiff, the eight years old, attempted to cross the street, Avenue J, to get on his school bus when he was struck by a vehicle. The city submitted evidence that a studies of the intersection had been done which found that no traffic control device was required. Therefore, the city argued, and Supreme Court agreed, it was entitled to qualified immunity precluding suit:

… [I]n the field of traffic design engineering, the [governmental body] is accorded a qualified immunity from liability arising out of a highway planning decision” … . Under the doctrine of qualified immunity, a governmental body may not be held liable for a highway safety planning decision unless its study of the traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan . Immunity will apply only “where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury” … .

Here, the City failed to sustain its prima facie burden on the issue of qualified immunity. The City established that, in response to citizen complaints, it had conducted studies of the subject intersection in 2005 and 2007 and concluded that no traffic control device on Avenue J was warranted. However, the City did not establish that those studies, which took place in the summertime, were conducted at times when the subject schools were in session. The City also failed to establish that the studies addressed the specific concern of schoolchildren crossing Avenue J to reach awaiting buses and, thus, did not establish that it had entertained and passed on the very same question of risk that is at issue in this case … . Tyberg v City of New York, 2019 NY Slip Op 05177, Second Dept 6-26-19

 

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ABUTTING PROPERTY OWNER HAS A NON-DELEGABLE DUTY TO MAINTAIN THE SIDEWALK WHICH IS NOT DIMINISHED BY HIRING AN INDEPENDENT CONTRACTOR TO WORK ON THE SIDEWALK, PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant abutting property owner’s (Hillman’s) motion for summary judgment in this sidewalk slip and fall case was properly denied. Hillman had hired an independent contractor to do concrete work on the sidewalk, but that did not relieve Hillman of his nondelegable duty to keep the sidewalk in good repair (NYC Administrative Code):

Although the “general rule is that a party who retains an independent contractor . . . is not liable for the independent contractor’s negligent acts,” an exception arises when the hiring party “is under a specific nondelegable duty” … . Here, Hillman, as the property owner, had a nondelegable duty to maintain the sidewalk, including the sidewalk around the subject sign post stump …

Contrary to Hillman’s contention, the motion court did not conclude that Hillman is, in fact, liable for any alleged wrongs committed by the independent contractor in performing cement sidewalk resurfacing work. Rather, the motion court correctly found that under these circumstances the record raises issues of fact as to whether the cement work ordered by this defendant, the property owner, caused or exacerbated a hazardous tripping condition, and whether Hillman had actual or constructive knowledge of the metal protrusion on the sidewalk outside its building. Factual issues are also presented as to whether the condition was open and obvious, or, alternatively the defect trivial … . Vullo v Hillman Hous. Corp., 2019 NY Slip Op 05087, First Dept 6-25-19

 

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BUILDINGS RECEIVING REAL PROPERTY TAX LAW 421-g BENEFITS ARE NOT SUBJECT TO THE LUXURY DEREGULATION PROVISIONS OF THE RENT STABILIZATION LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over an extensive dissent, reversing the Appellate Division, determined that “plaintiffs’ apartments, which are located in buildings receiving tax benefits pursuant to Real Property Tax Law (RPTL) § 421-g, are [not] subject to the luxury deregulation provisions of the Rent Stabilization Law (RSL … .”:

The legislature’s intention, as reflected in the language of the statute at issue here, is clear and inescapable. During “the entire period for which the eligible multiple dwelling is receiving” RPTL 421-g benefits, it “shall be fully subject to control” under the RSL, “notwithstanding the provisions of” that regime or any other “local law” that would remove those dwelling units from such control, “unless exempt under such local law from control by reason of the cooperative or condominium status of the dwelling unit” (RPTL 421-g [6] …) … . The statute does not say that eligible units shall be fully subject to “the provisions of” any local law for the stabilization of rents. Put differently, the notwithstanding clause of the statute evinces the legislature’s intent that any “local law for the stabilization of rents” that would exempt the unit from “control under such local law” does not apply to buildings receiving RPTL 421-g benefits, with the sole exception being for cooperatives and condominiums … . Kuzmich v 50 Murray St. Acquisition LLC, 2019 NY Slip Op 05057, CtApp 6-25-19

 

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NO SHOWING THAT THE AMBULANCE SIREN OR EMERGENCY LIGHTS WERE IN USE WHEN THE INTERSECTION COLLISION OCCURRED, THEREFORE THERE WAS NO SHOWING THE RECKLESS DISREGARD STANDARD FOR EMERGENCY VEHICLES APPLIED, THE MUNICIPAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipal defendants’ motion for summary judgment in this ambulance traffic accident case should have been denied. The municipal defendants did not demonstrate that the reckless disregard standard for emergency vehicles applied because they did not present evidence the ambulance siren or emergency lights were in use:

… [W]hile the reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) applies to a driver of an authorized emergency vehicle involved in an emergency operation, who engages in specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b), the exemptions apply only when the authorized emergency vehicle sounded audible signals such as a siren and displayed at least one red light (see Vehicle and Traffic Law § 1104[c]). Here, the municipal defendants failed to establish, prima facie, their entitlement to judgment as a matter of law under the reckless disregard standard of care, as they did not demonstrate that the siren and lights on the ambulance were activated as required for the exemptions set forth in Vehicle and Traffic Law § 1104(b) to apply … . Wynter v City of New York, 2019 NY Slip Op 04993, Second Dept 6-19-19

 

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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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