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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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LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION, SERVED THREE YEARS AFTER THE DEVELOPMENTALLY DELAYED CHILD’S BIRTH, SHOULD HAVE BEEN DEEMED TIMELY SERVED (SECOND DEPT).

The Second Department, reversing Supreme Court, determent the late notice of claim in this medical malpractice action should have been deemed timely served. The notice of claim was served in 2012 and the plaintiff-child was born in 2009. It became apparent in 2010 that the child was unable to bear weight on her legs and her development was delayed:

The record here indicates that the defendant was aware that the child’s condition was related to glucose levels, which were not measured at birth. Thus, the defendant acquired actual knowledge of the essential facts constituting the claim immediately after the incident, and well within the 90 day period after the claim arose … .

The delay in serving a notice of claim was also directly attributable to the child’s infancy, since it was not apparent that the child had suffered a permanent injury until after the 90-day period expired. When the child’s injuries became apparent, the plaintiff served a late notice of claim without leave of court. Although this Court has ruled that actual knowledge of the essential facts constituting the claim cannot be inferred from a late notice of claim served without leave of the court … , in this case the late notice of claim generated a hearing pursuant to General Municipal Law § 50-h, where the defendant conducted an examination of the plaintiff and the essential facts constituting the claim were explore … . Feduniak v New York City Health & Hosps. Corp. (Queens Hosp. Center), 2019 NY Slip Op 01564, Second Dept 3-6-19

 

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THE EXCLUSIONARY LANGUAGE IN THE NYC ADMINISTRATIVE CODE PROVISION WHICH CRIMINALIZES POSSESSION OF AMMUNITION IS AN EXCEPTION THAT MUST BE AFFIRMATIVELY PLED, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction of unlawful possession of ammunition pursuant to New York City Administrative Code § 10-131(i)(3), determined that the exclusionary language in the code provision is an exception which must be affirmatively pled in the accusatory instrument:

We find that the relevant language in section 10-131(i)(3), which makes it a crime to possess pistol or revolver ammunition unless authorized to possess a pistol or revolver, constitutes an exception and not a proviso. Consequently, it was the People’s burden to prove that the defendant was not authorized to possess a pistol or revolver within the City of New York. As the People failed to do so, defendant’s conviction under section 10-131(i)(3) must be vacated and that count dismissed.

In order to determine whether a statute defining a crime contains “an exception that must be affirmatively pleaded as an element in the accusatory instrument” or “a proviso that need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial,” one must look to the language of the statute itself … . Indeed, “[i]f the defining statute contains an exception, the indictment must allege that the crime is not within the exception. But when the exception is found outside the statute,” it is termed a proviso and “generally is a matter for the defendant to raise in defense” … . “Legislative intent to create an exception [whose existence must be negated by the prosecution] has generally been found when the language of exclusion is contained entirely within” the statute itself … . In contrast, where the language of the exclusion depends on a source outside the statute, courts will infer that the language functions as a proviso … . People v Tatis, 2019 NY Slip Op 01507, First Dept 2-28-19

 

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APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE ABSENCE OF A REASONABLE EXCUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s application for leave to file a late notice of claim should have been granted. Petitioner alleged he was injured by the malfunction of weightlifting equipment at a city recreation center:

Assuming that the law firm’s clerical error was not a reasonable excuse, ” [t]he absence of a reasonable excuse is not, standing alone, fatal to the application,'” where the municipal respondent had actual notice of the essential facts constituting the claim and was not prejudiced by the delay … . Here, petitioner’s affidavit stating that he signed an incident report prepared by respondent’s employee shortly after the accident, and that the weightlifting equipment was repaired a few months later, demonstrate prima facie that respondent received actual notice of the pertinent facts underlying his claim, if not the negligence claim itself, which supports a “plausible argument” that the City will not be substantially prejudiced in investigating and defending the claim … . Matter of Mercedes v City of New York, 2019 NY Slip Op 01487, First Dept 2-28-19

 

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ZONING BOARD OF APPEALS (ZBA) HAS EXCLUSIVELY APPELLATE JURISDICTION AND HAS NO AUTHORITY TO DECIDE A MATTER THAT HAS NOT FIRST BEEN THE SUBJECT OF A DECISION BY AN ADMINISTRATIVE OFFICIAL, ALTHOUGH THE OPEN MEETINGS LAW WAS VIOLATED, THE VIOLATION WAS NOT A BASIS FOR ANNULMENT OF THE ZBA DETERMINATION (SECOND DEPT).

The Second Department determined (1) the zoning board of appeals (ZBA) does not have jurisdiction absent a determination of an administrative official which is appealed; and (2) although the Open Meetings Law was violated, the violation did not warrant annulment of the ZBA’s determination on that ground. The petitioner had sought an interpretation of the local zoning law to determine whether a particular use of the land was permitted. Because no administrative official had ruled on that issue, the ZBA did not have authority to make a determination and the determination was properly annulled on that ground:

Absent a determination of the Building Inspector or other administrative official charged with the enforcement of the local zoning law, the Zoning Board of Appeals was without jurisdiction to consider Chestnut Ridge Associates’ application for an interpretation of the local zoning law to determine if the plaintiffs/petitioners’ landscaping business on certain premises was a permitted use in a laboratory office-zoned district … . Accordingly, we agree with the Supreme Court’s annulment of the determination of the Zoning Board of Appeals on that basis. …

… [T]he record supports a finding that the Zoning Board of Appeals violated the Open Meetings Law with regard to a workshop meeting held on January 17, 2012, by failing to give proper notice of the meeting … . However, the plaintiffs/petitioners failed to establish good cause to annul the Board’s determination on that ground, as the improperly noticed meeting was open to the public and the determination at issue was adopted at a publicized, public meeting, after a series of public meetings with regard thereto had previously been held … . Accordingly, the Supreme Court should not have annulled the determination of the Zoning Board of Appeals on the ground that the Open Meetings Law had been violated, and should not have awarded the plaintiffs/petitioners costs and attorneys’ fees pursuant to Public Officers Law § 107(2) based on that violation … . Chestnut Ridge Assoc., LLC v 30 Sephar Lane, Inc., 2019 NY Slip Op 01388, Second Dept 2-27-19

 

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A TAX FORECLOSURE SALE OF THE SERVIENT ESTATE SUBSEQUENT TO THE PLAINTIFFS’ PURCHASE OF TITLE INSURANCE WAS NOT A TITLE DEFECT WHICH ENTITLED THE TITLE INSURANCE COMPANY, AS A MATTER OF LAW, TO DENY PLAINTIFFS’ CLAIM, THE CLAIM STEMMED FROM THE CONSTRUCTION OF A FENCE ACROSS AN EASEMENT ON THE SERVIENT ESTATE WHICH WAS THE ONLY ACCESS TO PLAINTIFFS’ PROPERTY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant title insurance company should not have been granted summary judgment supporting its denial of plaintiffs’ title insurance claim.  A fence had been constructed across an easement on the servient estate which blocked plaintiffs’ access to their property. Years after the title insurance was purchased and before the fence was constructed, the servient was the subject of a tax foreclosure and sale. The Second Department held that the tax sale was not a title defect which justified, as a matter of law, denial of the claim by the title insurance company:

… [P]laintiffs purchased a policy of title insurance from the defendant Old Republic National Title Insurance Company (hereinafter Old Republic), dated January 17, 2007. The policy specifically insured against losses or damages sustained as a result of the plaintiffs’ “[l]ack of a right of access to and from the land.” The policy excluded from coverage “[d]efects, liens, encumbrances, adverse claims, or other matters . . . attaching or created subsequent to Date of Policy.” …

Contrary to Old Republic’s contention, if the plaintiffs acquired a valid easement appurtenant from [plaintiffs’ predecessors in title] in 2007, such easement would not have been extinguished by the 2013 tax sale … . Thus, Old Republic’s contention that the 2013 tax sale constituted a defect, lien, encumbrance, adverse claim or other matter “attaching or created subsequent to Date of Policy” within the meaning of the relevant policy exclusion is without merit, and cannot serve to establish Old Republic’s prima facie entitlement to judgment as a matter of law. Buroker v Phillips, 2019 NY Slip Op 01386, Second Dept 2-27-19

 

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CITY, AS THE OWNER OF THE MARINA WITH RIPARIAN RIGHTS, WAS ENTITLED TO EJECT DEFENDANTS WHO WERE USING AN INOPERABLE VESSEL AS A HOUSEBOAT DOCKED AT THE MARINA (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the city should have been granted summary judgment in this ejectment proceeding. The defendants were using an inoperable vessel as a houseboat docked at a city marina:

To demonstrate entitlement to judgment on a cause of action for ejectment, a plaintiff must establish “(1) it is the owner of an estate in tangible real property, (2) with a present or immediate right to possession thereof, and (3) the defendant is in present possession of the estate” … . “The owner of uplands on a tidal, navigable waterway possesses riparian rights” which include the right to build a pier, dock, or wharf … .

Here, the City established its prima facie entitlement to judgment as a matter of law with respect to its first cause of action, for ejectment, by demonstrating that it is the owner of the subject slip … , with a present or immediate right to possession thereof … , and that the defendants are in possession of that property. City of New York v Anton, 2019 NY Slip Op 01389, Second Dept 2-27-19

 

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QUESTION OF FACT WHETHER THE RECKLESS STANDARD APPLIED IN THIS PEDESTRIAN-POLICE CAR ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether the reckless standard applied in this pedestrian-police car traffic accident case. The court noted that the governmental function immunity doctrine does not apply to this scenario:

The governmental function immunity doctrine does not apply in this case where plaintiff pedestrian was injured when she was struck by a police vehicle that was allegedly pursuing a vehicle that had committed a traffic infraction … . Instead, where a plaintiff alleges that a municipality and/or its employees were negligent in the ownership or operation of an authorized emergency vehicle while engaged in one of the activities protected by Vehicle and Traffic Law § 1104(b), the “reckless disregard” standard set forth in Vehicle and Traffic Law § 1104(e) applies … .

Here, a factual issue exists as to whether defendants were engaged in a protected activity under Vehicle and Traffic Law § 1104(b), namely, proceeding past a steady red signal (see Vehicle and Traffic Law § 1104[b][2]), while pursuing a vehicle for a traffic violation so as to apply the reckless standard of care as opposed to ordinary negligence principles … . Santana v City of New York, 2019 NY Slip Op 01348, First Dept 2-26-19

 

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