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POLICE DOG RELEASED TO TRACK SUSPECTS WENT OUT OF THE HANDLER’S SIGHT AND BIT PLAINTIFF, 42 USC 1983, NEGLIGENCE AND BATTERY ACTIONS SURVIVED SUMMARY JUDGMENT, QUESTION OF FACT WHETHER POLICE OFFICER ENTITLED TO QUALIFIED IMMUNITY, CITY ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE PROFESSIONAL JUDGMENT RULE (THIRD DEPT).

The Third Department determined several causes of action property survived summary judgment in this case where a police officer (Ashe) released his K-9 partner (a trained police dog named Elza) which bit plaintiff as he was walking to his car. After Elza was released she ran out of Ashe’s sight. Ashe was attempting to use Elza to track suspects who had just robbed a gas station. The Third Department held, inter aliia, that the 42 USC 1983 action properly survived summary judgment, Ashe was not entitled to qualified immunity as a matter of law, the battery action properly survived summary judgment, and the city was entitled to summary judgment on the common-law negligence action based on the professional judgment rule:

There is at least a question of fact as to whether a reasonable police officer, aware that the dog could not differentiate a suspect from an innocent bystander, would allow the dog to search off leash and out of sight of the handler. Moreover, the record contains evidence from which a jury could find that the City “fail[ed] to train its employees in a relevant respect [that] evidences a deliberate indifference to the rights of its inhabitants[, which] can . . . be properly thought of as a city policy or custom that is actionable under [42 USC] § 1983” … . …

… [P]laintiffs’ expert … opined in his affidavit that Ashe failed to comply with standard police practice, including keeping the K-9 within visual range and providing audible warnings. Based on the foregoing, there are triable issues of fact that preclude summary judgment on the issue of Ashe’s entitlement to qualified immunity … . …

… [T]he City was entitled to dismissal of the common-law negligence claims based on the professional judgment rule. ” That rule ‘insulates a municipality from liability for its employees’ performance of their duties where the . . . conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions’ … . Relf v City of Troy, 2019 NY Slip Op 01287, Third Dept 2-21-19

 

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VILLAGE CODE PROVISION WHICH REQUIRES WRITTEN NOTICE OF A SIDEWALK DEFECT BEFORE MUNICIPAL LIABILITY CAN BE IMPOSED APPLIES TO A STAIRWAY FROM A PUBLIC ROAD TO A MUNICIPAL PARKING LOT, STAIRWAY SLIP AND FALL ACTION PROPERLY DISMISSED (CT APP).

The Court of Appeals, over an extensive two-judge dissent, determined that the village code provision which requires written notice of a sidewalk defect before the village can be held liable applies to a stairway connecting a public road to a municipal parking lot. Because plaintiff did not plead or prove written notice of a stairway defect, plaintiff’s slip and fall action was properly dismissed:

In Woodson v City of New York, this Court determined that a stairway may be classified as a sidewalk for purposes of a prior written notice statute if it “functionally fulfills the same purpose that a standard sidewalk would serve” (93 NY2d 936, 937-938 [1999] …). * * *

The courts below correctly applied Woodson in holding that the stairway at issue “functionally fulfills the same purpose” as a standard sidewalk, and therefore plaintiff was required to show that the Village received prior written notice of the allegedly defective condition … . Hinton v Village of Pulaski, 2019 NY Slip Op 01261, CtApp 2-21-19

 

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LOCAL LAW WHICH HAD BEEN DECLARED VOID COULD NOT BE THE BASIS FOR DETERMINING WHETHER PETITIONER’S USE OF THE LAND FOR MINING WAS A VALID PREEXISTING NONCONFORMING USE (THIRD DEPT).

The Third Department determined that a local law which had been declared void could not be the basis for determining whether the petitioner’s use of the property for mining was a valid preexisting nonconforming use. Once the local law had been declared void the prior law went back into effect. That law was not changed until 2015. So the 2015 law is the proper basis for determining whether the property is subject to a valid preexisting nonconforming use:

Central to petitioner’s contention is the general premise that the judicial nullification and voidance of an ordinance revives, by operation of law, the prior ordinance in effect before the null and void law was adopted … . Even more fundamental, a voided law can have no lasting effect … . To that end, “a void thing is no thing. It changes nothing and does nothing. It has no power to coerce or release. It has no effect whatever. In the eye of the law it is merely a blank, the same as if the types had not reached the paper”… . Therefore, inasmuch as an annulled law can have no lingering effect, petitioner is entitled to have its nonconforming use rights evaluated as of the effective date of the 2015 ordinance, unless, of course, that ordinance is also annulled prior to any such determination … . To hold otherwise would not only give the annulled Local Law No. 2 complete effect, i.e., render mining a nonconforming use in petitioner’s zoning district as of the date of the illegally-enacted law, but it would incentivize municipalities to rush to enact local laws with any number of infirmities, including SEQRA violations. Matter of Cobleskill Stone Prods., Inc. v Town of Schoharie, 2019 NY Slip Op 01272, Third Dept 2-21-19

 

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LATE NOTICE OF CLAIM SHOULD HAVE BEEN DEEMED TIMELY SERVED, MEDICAL RECORDS PROVIDED TIMELY NOTICE OF THE NATURE OF THE MEDICAL MALPRACTICE CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion to deem a late notice of claim timely served should have been granted. The attempt to serve the notice of claim was three years late. Plaintiff, who was born in 2010, brought a medical malpractice action alleging the city hospital was negligent by sending plaintiff’s mother home when she presented at the emergency room complaining of contractions. The Second Department held that the medical records provided the defendant with timely knowledge of the nature of the claim:

The medical records demonstrated that the hospital failed to admit the plaintiff’s mother to the hospital when she presented to the emergency room on November 23, 2010, notwithstanding an order in the emergency room record from a physician that the mother “was to be admitted secondary to non-reassuring fetal heart tracing.” Inasmuch as the medical records, upon independent review, showed that the mother was not admitted to the hospital on November 23, 2010, despite a physician’s order, and that two days later, the plaintiff was delivered one hour after the mother arrived at the hospital and only after a fetal heart monitor alarm sounded four times, they provided the hospital with actual knowledge of the essential facts constituting the claim … . …

… [T]the plaintiff made an initial showing that the hospital would not suffer any prejudice by the delay in serving a notice of claim, and the hospital failed to rebut the showing with particularized indicia of prejudice… . Further, the absence of prejudice was demonstrated by virtue of the fact that the hospital had possessed timely actual knowledge of the essential facts constituting the claim … . J.H. v New York City Health & Hosps. Corp., 2019 NY Slip Op 01203, Second Dept 2-20-19

 

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FOOTAGE FROM A POLICE OFFICER’S BODY-WORN CAMERA IS NOT A PERSONNEL RECORD AND THEREFORE IS NOT PROTECTED FROM DISCLOSURE BY CIVIL RIGHTS LAW 50-a (FIRST DEPT).

The First Department determined that footage from a police officer’s body-worn camera was not a “personnel record” protected from disclosure by Civil Rights Law 50-a:

While we recognize petitioner’s valid concerns about invasion of privacy and threats to the safety of police officers, we are tasked with considering the record’s general “nature and use,” and not solely whether it may be contemplated for use in a performance evaluation. Otherwise, that could sweep into the purview of § 50-a many police records that are an expected or required part of investigations or performance evaluations, such as arrest reports, stop reports, summonses, and accident reports, which clearly are not in the nature of personnel records so as to be covered by § 50-a.

We find that given its nature and use, the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of § 50-a … . The purpose of body-worn-camera footage is for use in the service of other key objectives of the program, such as transparency, accountability, and public trust-building.

Although the body-worn-camera program was designed, in part, for performance evaluation purposes, and supervisors are required, at times, to review such footage for the purpose of evaluating performance, the footage being released here is not primarily generated for, nor used in connection with any pending disciplinary charges or promotional processes. New York Civil Liberties Union v New York City Police Department, __NY3d__, 2018 NY Slip Op 8423 [2018], which involved disciplinary matters, does not constrain this analysis. The footage, here, rather, is more akin to arrest or stop reports, and not records primarily generated for disciplinary and promotional purposes. To hold otherwise would defeat the purpose of the body-worn-camera program to promote increased transparency and public accountability. Matter of Patrolmen’s Benevolent Assn. of the City of N.Y., Inc. v De Blasio, 2019 NY Slip Op 01170, First Dept 2-19-19

 

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IN THESE MARITIME LAW ACTIONS STEMMING FROM A FATAL BOATING ACCIDENT, THE TOWN DID NOT DEMONSTRATE ITS ENTITLEMENT TO SUMMARY JUDGMENT, THE COMPLAINTS ALLEGED NEGLIGENT PLACEMENT OF BUOYS (SECOND DEPT).

The Second Department, reversing Supreme Court in this boat-accident case, determined that the town was not entitled to summary judgment. Four boat passengers were killed and others were injured. The complaints alleged the town was negligent in the placement of buoys:

Maritime law, which is applicable in this case, recognizes a general theory of liability for negligence… . “[N]egligent conduct on the navigable waters that causes loss to another constitutes a maritime tort”… . Once the Town set a channel through the use of navigational aids, it had a duty to maintain those navigational aids in a reasonable and prudent manner … .

Upon applying maritime law, we conclude that the Town failed to establish its prima facie entitlement to judgment as a matter of law. Although the Town submitted evidence suggesting that the accident may have been at least partly caused by negligence on the part of the boat’s operator, the Town failed to meet its prima facie burden of demonstrating the lack of any triable issues of fact regarding the Town’s comparative fault based on its placement and maintenance of the buoys … . Sugamele v Town of Hempstead, 2019 NY Slip Op 01118, Second Dept 2-13-19

 

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PERSONAL PROPERTY LOCATED ON REAL PROPERTY SUBJECT TO A TAX FORECLOSURE WAS NOT ABANDONED BY THE OWNER OF THE PERSONAL PROPERTY (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, reversing Supreme Court, determined respondent’s application to vacate “that portion of a judgment of [tax} foreclosure that deemed respondent’s personal property located at a foreclosed property to be abandoned to petitioner” should have been vacated. The petitioner-city foreclosed on real property which was not owned by the respondent. The respondent owned hundreds of auto parts which were on the foreclosed property:

… [W]e agree with respondent that the court lacked jurisdiction to dispose of personal property. Supreme Court may exercise in rem jurisdiction over real property in a proceeding to foreclose a tax lien (see RPTL 1120 et seq.). A proceeding of that kind “produces a judgment binding only on those who have been named as parties and duly notified—the usual understanding of what due process requires”… . ” [T]he failure to substantially comply with the requirement of providing the taxpayer with proper notice constitutes a jurisdictional defect which operates to invalidate the sale or prevent the passage of title’ “… . Here, petitioner did not provide notice to respondent with respect to respondent’s personal property and could not have done so. The notice procedures in the statute relate to real property only, not personal property (see RPTL 1122-1125). Moreover, RPTL article 11 does not contain a mechanism by which the tax district may obtain a party’s personal property upon that party’s default. In the event of a default, the tax district is awarded “possession of any parcel of real property described in the petition of foreclosure” and is entitled to a deed conveying to the tax district full and complete title to the parcel (RPTL 1136 [3] [emphasis added]). Upon the execution of the deed, any person with a right or interest “in or upon such parcel shall be barred and forever foreclosed” of that right or interest (id. [emphasis added]).

Nothing in RPTL article 11 confers upon Supreme Court in rem jurisdiction over personal property. Matter of The Foreclosure of Tax Liens By Proceeding In Rem Pursuant To Art. 11 of The Real Prop. Tax Law By The City of Utica (Suprunchik), 2019 NY Slip Op 01020, Fourth Dept 2-8-19

 

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COLLATERAL ESTOPPEL CONTROLLED THIS ARBITRATION PROCEEDING TO DETERMINE HEALTH BENEFITS FOR RETIRED FIREFIGHTERS PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined that collateral estoppel controlled this proceeding concerning firefighter health benefits as provided for in the collective bargaining agreement (CBA). The issue had been resolved in prior arbitration proceedings for firefighters who had retired before 2010. The instant proceeding was brought on behalf of firefighters who have or will retire after 2010:

Arbitration awards are entitled to collateral estoppel effect and will bar a party from relitigating a material issue or claim resolved in the arbitration proceeding after a full and fair opportunity to litigate … . It is undisputed that the arbitration award, rendered after a formal evidentiary hearing at which the parties were represented by counsel, afforded defendant a full and fair opportunity to litigate the issues therein. Accordingly, the only question is whether plaintiffs, as the parties seeking to invoke collateral estoppel, satisfied their burden of “show[ing] the identity of the issues” between those resolved in the arbitration awards and those in play here … . * * *

The 2010 and 2012 arbitration awards were never vacated — indeed, the 2012 award was confirmed — and are binding. Inasmuch as plaintiffs retired during the period that the reimbursement was provided to retirees under CBAs containing section 27.1, the finding in those awards “that [defendant] is obligated to reimburse retired firefighters for these payments under the CBA is dispositive of the claims raised here” … . Holloway v City of Albany, 2019 NY Slip Op 00940, Third Dept 2-7-19

 

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ALTHOUGH THE CITY OWED A SPECIAL DUTY TO A STUDENT WHO WAS STRUCK BY A CAR ATTEMPTING TO CROSS THE ROAD, THAT DUTY WAS FULFILLED WHEN THE CROSSING GUARD TOLD THE STUDENT TO WALK TO THE NEXT AVAILABLE CROSSWALK, THE STUDENT, HOWEVER, THEN ATTEMPTED TO CROSS WHERE THERE WAS NO CROSSWALK (SECOND DEPT).

The Second Department determined the city’s motion for summary judgment in this traffic accident case involving a student who had just left school was properly granted. The city owed a special duty to the student-plaintiff. A school crossing guard had stopped the plaintiff from crossing the street where there was no crosswalk and told her to walk to the next crosswalk. The plaintiff, however, attempted to cross where there was no crosswalk and was hit by a car. Any alleged negligent supervision was not the proximate cause of the student’s injury:

… [A] special duty existed between the City defendants’ crossing guard and the infant plaintiff … . Nevertheless, given that the crossing guard, inter alia, told the infant plaintiff to not cross 7th Avenue at an unsafe location and pointed the infant plaintiff to the crosswalk at 19th Street, the City defendants established, prima facie, that its employees did not breach their duty to the infant plaintiff. Moreover, the City defendants, while under a duty to adequately supervise the students in their charge, are not insurers of their safety … . The evidence submitted by the City defendants established, prima facie, that the infant plaintiff crossed 7th Avenue in the middle of the block where there was no intersection or crosswalk, and no traffic device affording her a right-of-way. Additionally, the infant plaintiff admitted that she attempted to cross the road “fast,” and that she did not look for oncoming traffic. Where an accident occurs so quickly that even the most intense supervision could not have prevented it, any lack of supervision is not a proximate cause of the injury … . K.A. v City of New York, 2019 NY Slip Op 00861, Second Dept 2-6-19

 

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STATEMENTS MADE BY THE COUNTY EXECUTIVE CONCERNING HER DECISION TO FIRE PLAINTIFF, THE EXECUTIVE DIRECTOR OF THE MONROE COMMUNITY HOSPITAL, WERE EITHER ABSOLUTELY OR QUALIFIEDLY PRIVILEGED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined statements made to the press by the county executive (Brooks) concerning her decision to terminate plaintiff (the executive director of the Monroe Community Hospital (MCH)) were either absolutely or qualifiedly privileged:

The absolute privilege defense affords complete immunity from liability for defamation to ” an official [who] is a principal executive of State or local government’ . . . with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties” …  “The first prong of that test . . . [requires an examination of] the personal position or status of the speaker,” and “the second prong . . . requires an examination of the subject matter of the statement and the forum in which it is made in the light of the speaker’s public duties” … . We conclude that absolute privilege applies here because Brooks was the Monroe County Executive (see id.) and her statements with respect to plaintiff’s termination concerned matters involving her official duties. Furthermore, because the investigation and the underlying actions of plaintiff became a matter of public attention and controversy, Brooks’s form of communication, i.e., statements to the press, was warranted … .

Even assuming, arguendo, that the statements were not covered by absolute privilege, we conclude that the defense of qualified privilege applies. “Generally, a statement is subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his [or her] own affairs, in a matter where his [or her] interest is concerned” … . Here, defendants satisfied their initial burden by establishing that Brooks made the relevant statements in her role as the Monroe County Executive, thereby discharging her responsibility to keep the public informed regarding a sensitive issue that had obtained extensive media attention … , and thus “the burden shifted to plaintiff[] to raise a triable issue of fact whether the statements were motivated solely by malice” … . Spring v County of Monroe, 2019 NY Slip Op 00747, Fourth Dept 2-1-19

 

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