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CONVERSION OF A HISTORIC LOWER MANHATTAN LANDMARK, A RARE CLOCK AND CLOCK TOWER, TO A LUXURY APARTMENT WAS PROPERLY APPROVED BY THE NYC LANDMARKS PRESERVATION COMMISSION, APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive two-judge dissenting opinion, reversing the Appellate Division, determined the NYC Landmarks Preservation Commission (LPC)  properly approved the redevelopment of 346 Broadway, a historic building in Lower Manhattan that the LPC had previously designated as a landmark. The redevelopment entailed conversion of an interior landmark (a clock) to a luxury apartment:

In its initial designation report, the LPC noted several of the building’s unique features. The exterior of the “palazzo-like tower,” constructed in “the neo-Italian Renaissance style,” was largely built with “white Tuckahoe marble.” The “interiors” were also “designed using the finest craftmanship and lavish materials” including “marble, bronze, [and] mahogany.” Among the interior spaces designated were the former “Banking Hall,” a “grand and boldly scaled neo-Classical room” with “monumental freestanding Corinthian columns, and “[t]he clock tower” which housed a “No. 4 Striking Tower Clock”—a mechanical clock driven “by a thousand pound weight” which “strikes the hours” with a hammer and a “5000 pound bell.” The clock was manufactured by E. Howard Watch & Clock Company and “was specially equipped with a double three-legged gravity escapement”—a feature, petitioners claim, is shared by only one other tower clock: the clock housed by Elizabeth Tower (also home to the bell known as Big Ben) in London. In total, the LPC landmarked 20,000 square feet out of the building’s total interior space of 420,000 square feet. * * *

… [T]the developer intended to keep the clock running electrically. …

…  [T]he LPC found that the developer’s plan would have “the main lobby, stair hall, clock tower rooms and banking hall . . . fully restored.” Additionally, it would “allow accessibility by the public to the lobby and former banking hall.” The LPC also found that “the clock mechanism and faces will be retained, thereby preserving these significant features.” In sum, the LPC found that “the proposed restorative work will return . . . the interior closer to [its] original appearance, and will aid in [its] long-term preservation.”

FROM JUDGE RIVERA’S DISSENT:

Notwithstanding the historical significance of the clock to the City, the LPC approved the building owner’s request to convert this interior landmark into a luxury apartment. The former is a rare horological masterpiece; the latter is a typical, now-commonplace, development for the wealthy by the wealthy. Although the LPC has great latitude to decide whether to approve an alteration to an interior landmark, it cannot approve an alteration that, by its very nature, amounts to a de facto rescission of a landmark designation. So, the question is, when is an interior landmark no longer an interior landmark? The answer is contained in the plain language of the Landmarks Preservation Law, which defines an interior landmark as accessible to the public for the people’s benefit and welfare. Transforming an interior landmark into a private residence such that it is completely closed off from the public, annuls its designation and is inconsistent with the purpose of the Landmarks Preservation Law. Matter of Save America’s Clocks, Inc. v City of New York, 2019 NY Slip Op 02385, CtApp 3-28-19

 

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ALTHOUGH PLAINTIFFS APPEARED FOR THE 50-h HEARING, PLAINTIFFS’ ATTORNEY REFUSED TO LET THE PLAINTIFFS TESTIFY UNLESS EACH PLAINTIFF COULD HEAR THE OTHER’S TESTIMONY, BECAUSE THE 50-h HEARING IS A CONDITION PRECEDENT TO BRINGING SUIT, PLAINTIFFS’ LAWSUIT WAS PROPERLY PRECLUDED (SECOND DEPT).

The Second Department, over a two-justice dissent, determined that plaintiffs were precluded from proceeding with the lawsuit because, although plaintiffs appeared for the 50-h hearing, plaintiffs attorney refused to participate in the 50-h hearing unless each plaintiff was present when the other testified. The majority held that the 50-h hearing is a condition precedent to any lawsuit and the statute does not create a right for plaintiff’s to be present for each other’s testimony at the hearing:

The purpose of General Municipal Law § 50-h is to enable a municipality to make a prompt investigation of the circumstances of a claim by examining the claimant about the facts of the claim … . The oral examination of a claimant pursuant to General Municipal Law § 50-h serves to supplement the notice of claim and provides an investigatory tool to the municipality, with a view toward settlement … . “Compliance with a demand for a General Municipal Law § 50-h examination is a condition precedent to the commencement of an action against a municipal defendant, and the failure to so comply warrants dismissal of the action” … . “A party who has failed to comply with a demand for examination pursuant to General Municipal Law § 50-h is precluded from commencing an action against a municipality” … . …

” [A] court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact'”  … . Moreover, “[i]n the construction of statutes, each word or phrase in the enactment must be given its appropriate meaning” … , which is in derogation of the common law, is to be strictly construed  … . In strictly construing a statute, courts “will not go beyond the clearly expressed provisions of the act” … . Colon v Martin, 2019 NY Slip Op 02312, Second Dept 3-27-19

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STUDENT ON STUDENT ASSAULT WAS NOT FORESEEABLE, THEORIES IN THE PLEADINGS WHICH WERE NOT MENTIONED IN THE NOTICE OF CLAIM PROPERLY DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school district’s motion for summary judgment should have been granted in this student-on-student assault case. The assault arose abruptly and and lasted 20 to 30 seconds and was not foreseeable. In addition, the theories of liability not mentioned in the notice of claim, but asserted in the pleadings, should have been dismissed:

… [T]he School District established, prima facie, that the alleged assault by the fellow student was an unforeseeable act and that the School District had no actual or constructive notice of prior conduct of the students involved here which was similar to the subject incident … . Moreover, the School District established, prima facie, that “the incident occurred in so short a period of time that any negligent supervision on its part was not a proximate cause of the infant plaintiff’s injuries” … . …

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . However, if the defendant is a municipality, the plaintiff may not raise in the complaint causes of action or legal theories that were not directly or indirectly mentioned in the notice of claim and that “substantially alter” the nature of the claim or add a new theory of liability … . … By submitting evidence that the notice of claim did not mention … causes of action and legal theories, the School District established its … entitlement to judgment as a matter of law dismissing all of the causes of action, other than negligent supervision, that were asserted in the complaint and bill of particulars against the School District … . Meyer v Magalios, 2019 NY Slip Op 02336, Second Dept 3-27-19

 

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UNEXCUSED FAILURE TO APPEAR AT A SCHEDULED 50-h HEARING REQUIRED DISMISSAL OF THE COMPLAINT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs’ failure to comply with defendants’ demand for a 50-h hearing required dismissal of the complaint. Defendants were sued in their capacities as municipal employees acting within the scope of their employment:

We agree with defendants that Supreme Court erred in denying the motion. “It is well settled that a plaintiff who has not complied with General Municipal Law § 50-h (1) is precluded from maintaining an action against a municipality” … . Here, plaintiffs failed to appear at the scheduled examination due to an apparent disagreement with their attorney. Under the circumstances, plaintiffs had the burden of rescheduling the examination and, because they failed to do so, they were barred by statute from commencing an action … . “Although compliance with General Municipal Law § 50-h (1) may be excused in exceptional circumstances’ “… , there were no such circumstances here. Kluczynski v Zwack, 2019 NY Slip Op 02236, Fourth Dept 3-22-19

 

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RELATED PUBLIC AUTHORITIES PROPERLY REQUIRED TO FILE SEPARATE REPORTS WITH THE NYS AUTHORITIES BUDGET OFFICE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that the NYS Authorities Budget Office (ABO) properly required the Madison County Industrial Development Agency (MCIDA) and the related Madison Grant Facilitation Corporation (MGFC) to file separate reports pursuant to the Public Authorities Accountability Act (PAAA) and the Pbblic Authorities Law. MCIDA had filed a single consolidated report and brought an Article 78 proceeding arguing the ABO’s determination that separate reports must be filed was arbitrary and capricious:

The ABO’s narrow record-keeping determination was not contrary to law. The Public Authorities Law plainly provides that a local development corporation such as MGFC, which is “affiliated” with a local IDA, is also a local authority subject to the PAAA and, as such, has reporting obligations (Public Authorities Law § 2 [2] [d]). Regardless of whether MGFC is also a subsidiary, it is clearly an “affiliate” of MCIDA within the meaning of the statute … . The PAAA does not contain a reporting exception for subsidiaries of local authorities, and petitioners have not identified any other statute or regulation that excused MGFC from its obligation to separately report. Matter of Madison County Indus. Dev. Agency v State of New York Auths. Budget Off., 2019 NY Slip Op 02150, CtApp 3-21-19

 

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PRIOR PUBLIC USE DOCTRINE PRECLUDED CONDEMNATION OF LAND ALREADY SUBJECT TO A PUBLIC USE BECAUSE THE PROPOSED USE WOULD INTERFERE WITH THE EXISTING PUBLIC USE (SECOND DEPT).

The Second Department, reversing the condemnation of a parcel of land owned by the city, determined that the proposed new use of the land would interfere with its current public use as a bus depot, a violation of the prior public use doctrine:

… [T]he proposed condemnation is prohibited under the doctrine of prior public use. Under the doctrine of prior public use, land already devoted to a public use may not be condemned absent legislative authority for the particular acquisition at issue … . However, land already devoted to a public use may be condemned without legislative authority ” where the new use would not materially interfere with the initial use'” … . The Agency does not contest that the subject parcel is devoted to a public use, or that there exists no legislative authority for the proposed condemnation … . Thus, the subject parcel may not be condemned unless the new use would not materially interfere with the existing public use … .

The Agency’s proposed condemnation of the subject parcel for the purpose of returning the parcel to productive use in furtherance of urban renewal would materially interfere with its existing public use as a bus depot. … Accordingly, the Agency’s determination to condemn the subject parcel must be rejected. Matter of City of New York v Yonkers Indus. Dev. Agency, 2019 NY Slip Op 02087, Second Dept 3-20-19

 

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SUPREME COURT SHOULD NOT HAVE SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO THE CITY IN THIS SIDEWALK SLIP AND FALL CASE, NO SUCH MOTION WAS BEFORE THE COURT (SECOND DEPT).

The Second Department determined that Supreme Court should not have searched the record and awarded summary judgment to the city in this sidewalk slip and fall case. No such motion was before the court:

… [T]he Supreme Court should not have, in effect, searched the record and awarded summary judgment to the City, which did not move for such relief. “A court may search the record and grant summary judgment in favor of a nonmoving party only with respect to a cause of action or issue that is the subject of the motions before the court” … . Since no party made any motion with respect to the plaintiff’s direct cause of action against the City contained in the amended complaint, the court should not have granted relief with respect to that cause of action … . Cerbone v Lauriano, 2019 NY Slip Op 02056, Second Dept 3-20-29

 

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ELDERLY PLAINTIFF’S HEALTH PROBLEMS EXCUSED HER FAILURE TO APPEAR FOR A 50-h HEARING, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the elderly plaintiff’s complaint, based upon a fall at defendant’s city hospital, should not have been dismissed because plaintiff failed to appear at an oral examination pursuant to General Municipal Law 50-h. Her failure to appear was due to medical problems and should have been excused:

“Compliance with a demand for a General Municipal Law § 50-h examination is a condition precedent to the commencement of an action against a municipal defendant, and the failure to so comply warrants dismissal of the action”  … . The failure to submit to such an examination, however, may be excused in exceptional circumstances, such as extreme physical or psychological incapacity … .

Under the circumstances of this case, the plaintiff’s failure to appear for the examination pursuant to General Municipal Law § 50-h should have been excused in light of the nature and extent of the plaintiff’s medical and mental conditions, as documented by her doctors’ letters … . Riabaia v New York City Health & Hosps. Corp., 2019 NY Slip Op 02136, Second Dept 3-20-19

 

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STOP AND ARREST OF PLAINTIFF PURSUANT TO NYC’S STOP AND FRISK POLICY STATED VALID CAUSES OF ACTION PURSUANT TO 42 USC 1983 AGAINST THE POLICE OFFICERS AND THE CITY (FIRST DEPT).

The First Department determined the allegations describing the stop and arrest of the plaintiff pursuant to NYC’s stop and frisk policy stated causes of action pursuant to 42 USC 1983 against the individual officers and the city:

The complaint, as amplified by plaintiff’s opposition papers, alleges that, on February 13, 2013, plaintiff and a friend, both black men, were driving in a luxury sports car in the Bronx. They were not driving recklessly or violating any traffic laws. Nevertheless, they were pulled over by the police, and five or six officers, including the individual defendants, removed them from the car and searched them and the car. The police found marijuana in the friend’s pocket, but recovered no other contraband, either in the car or on plaintiff’s person. Nevertheless, plaintiff was arrested and held for two days. Charges against him were dismissed in October 2013.

The complaint alleges further that, during this time period, the New York City Police Department employed a “stop and frisk” policy, pursuant to which every year the police stopped hundreds of thousands of overwhelmingly and disproportionately minority persons, including black men, and subjected them to searches, for no reason other than that they were in supposedly high-crime areas. The complaint alleges that the “stop and frisk” policy, rather than some constitutionally cognizable cause, was the reason plaintiff was detained, searched, and arrested. To prove the existence of this policy, plaintiff submitted, among other things, the New York City Bar Association’s 24-page “Report on the NYPD’s Stop-and-Frisk Policy,” dated May 2013, which examined the policy and made recommendations for its reform and the protection of city residents’ civil liberties.

The foregoing states a cause of action under 42 USC § 1983 against the individual defendants … . At this procedural juncture, it is not necessary for plaintiff to allege that any of the individual defendants did any more than participate in his unlawful arrest.

By alleging the existence of an extraconstitutional municipal “stop and frisk” policy, and that the individual defendants unlawfully arrested plaintiff pursuant to that policy, the complaint states a cause of action under 42 USC § 1983 against the City … . Smith v City of New York, 2019 NY Slip Op 01828, First Dept 3-14-19

 

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NYC CHARTER DID NOT GIVE THE PUBLIC ADVOCATE AUTHORITY FOR A SUMMARY INQUIRY INTO THE ADEQUACY OF SOFTWARE USED TO TRACK STUDENTS WITH INDIVIDUALIZED EDUCATION PROGRAMS, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, over a full-fledged, two-justice, dissenting opinion, reversing Supreme Court, determined that the NYC Charter did give the Public Advocate the power to conduct a summary inquiry into the adequacy of computer software designed to keep track of students with Individualized Education Programs (IEP’s) and to seek appropriate funding from Medicaid:

We agree with [Matter of Green v Giuliani (187 Misc 2d at 138)] that [NYC Charter] section 1109’s reach includes not only corruption, but “all forms of official misconduct.”… Arguably, in light of Green, section 1109’s reach continues to evolve over time to include areas not limited to corruption. The question that remains is whether the section 1109 phrase “any alleged violation or neglect of duty” should be broadened so as to bring within its reach all forms of conduct, including acts that amount to administrative inefficiency, deficiency, or mismanagement. We believe it should not, mindful of the admonition uttered over a century ago: “It would be intolerable if . . . all the heads of departments of the city could be haled into court and cross-examined by disaffected taxpayers, or even by some other hostile official, with no result except publicity. It is much better that proceedings of this kind should be confined to the legitimate purposes of the law” … .

Section 1109 is set forth in Chapter 49 of the Charter, entitled “Officers and Employees.” Neither that chapter, nor the Charter itself, defines “violation” or “neglect of duty.” In the absence of a clear definition, either by statute or case law, we are guided by dictionary definitions because they are “useful guideposts” in determining the meaning of a statutory word or phrase … . * * *

… .[W]e find no legal basis to expand section 1109’s reach beyond allegations that clearly fall within the plain meaning of a “violation” or a “neglect of duty…”… . … [P]etitioner’s allegations of administrative mismanagement, namely, the inefficient governmental administration of a computer software … are not sufficient bases to support the instant section 1109 judicial summary inquiry application.  Matter of James v Fariña, 2019 NY Slip Op 01729, First Dept 3-12-19

 

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