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THERE ARE TWO STATUTORY PROCEDURES FOR APPROVING AN EXTENSION OF A SEWER DISTRICT; HERE THE REQUEST FOR AN EXTENSION WAS INITIATED UNDER ONE STATUTORY PROCEDURE, WHICH DOES NOT REQUIRE A REFERENDUM, BUT THE TOWN APPLIED THE OTHER STATUTORY PROCEDURE, WHICH DOES REQUIRE A REFERENDUM; THAT WAS ERROR (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the town failed to follow the correct statutory procedure for approval of an extension of a sewer district to include petitioner’s commercial development  There are two statutory procedures. The Town Law Article 12 procedure applies when a petition is filed by an owner of taxable property (like the petitioner in this case). The Article 12 procedure has no “referendum” requirement. The Town Law Article 12-A procedure is initiated by the town and requires a referendum. Here the town required a referendum and thereby applied the wrong statutory procedure:

… [W]ithout formally ruling on the article 12 petition, the Town Board … essentially approved the extension project under the framework of article 12-A by providing for a permissive referendum. Recognizing that these articles do not contain any mechanism for such a conversion, we find that the Town Board erred and, as a result, its resolutions must be invalidated. Matter of Glen Wild Land Co., LLC v Town of Thompson, 2025 NY Slip Op 02628, Third Dept 5-1-25

Practice Point: Where the Town Law provides two distinct statutory procedures for approval of an extension of a sewer district, the town must follow the procedure in the applicable statute. Here the applicable statute did not require a referendum but the inapplicable statute did. The town erred when it required a referendum.

 

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AT THE TIME OF THE COLLISION, THE SHERIFF’S DEPUTY WAS ENGAGED IN AN EMERGENCY OPERATION AND DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, affirming Supreme Court, over a two-justice dissent, determined the police vehicle (driven by Deputy Fong) which collided with plaintiff’s vehicle was engaged in an emergency operation and was not being operated in reckless disregard for the safety of others. The dissenters argued there was a question of fact on the “reckless disregard” issue:​

… [I]t is undisputed that the reckless disregard standard of care applies because Fong was driving an emergency vehicle and was engaged in an emergency operation at the time she proceeded through the red traffic signal (see Vehicle and Traffic Law § 1104 [b] [2]). In addition, defendants established that Fong’s conduct did not rise to a level of reckless disregard for the safety of others. Defendants’ submissions established, in particular, that Fong took several precautions before proceeding into the intersection against the red traffic signal, including bringing her vehicle to a complete stop, looking in all directions, activating her emergency lights, and proceeding slowly into the intersection … . Granath v Monroe County, 2025 NY Slip Op 02521, Fourth Dept 4-25-25

 

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IN THIS CHILD VICTIMS ACT NEGLIGENT-SUPERVISON ACTION AGAINST THE COUNTY, THE PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE COUNTY HAD NOTICE OF A SOCIAL SERVICES CASEWORKER’S SEXUAL ABUSE OR PROPENSITY FOR SEXUAL ABUSE OF CHILDREN (CT APP).

The Court of Appeals, affirming the dismissal of this Child Victims Act suit against the county, in a full-fledged opinion by Judge Wilson, over a comprehensive dissenting opinion, determined the plaintiff did not raise a question of fact about whether the county had actual or constructive notice that a Department of Social Services caseworker (Hoch) had sexually abused children or had a propensity for the sexual abuse of children. Therefore, the plaintiff did not make out a prima facie “negligent supervision” cause of action:

In the summer of 1993, the parents of 11-year-old Michael Nellenback had him designated as a person in need of supervision (PINS) and placed in the care of Madison County’s Department of Social Services. The Madison County Department of Social Services assigned caseworker Karl Hoch to the Nellenback case. According to Mr. Nellenback, over the next three years, Mr. Hoch repeatedly sexually abused and assaulted him. It turned out that Mr. Hoch had sexually abused several other children to whose cases he was assigned.

In 2019, Mr. Nellenback filed suit against Madison County under the claim-revival provision of the Child Victims Act, alleging that that the County was negligent in hiring, supervising, and retaining Mr. Hoch. The sole issue on appeal is whether Mr. Nellenback raised a triable issue of fact on his negligent supervision claim. We hold that he did not: Even viewed in the light most favorable to Mr. Nellenback, the evidence was insufficient to prove the County was on notice of the abuse and that it negligently placed Mr. Hoch in a position to cause harm. * * *

… [T]here was neither evidence that the County had any knowledge of Mr. Hoch’s abuse before the report of his abuse of another child in 1996, nor any evidence the County was aware of any conduct that could have alerted them to the potential for harm. Nellenback v Madison County, 2025 NY Slip Op 02263, CtApp 4-17-25

Practice Point: This is a fact-specific opinion which analyzes the proof necessary to raise a question of fact whether a county social services department had constructive notice of its caseworker’s propensity for the sexual abuse of children. The majority, over an extensive dissent, determined the evidence relied on by the plaintiff was not sufficient to raise a question of fact.

 

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WHERE, AS HERE, PLAINTIFFS ALLEGE THE CONTESTED SALES TAX STATUTE IS “WHOLLY INAPPLICABLE” TO THEM, AND PLAINTIFFS SEEK A DECLARATORY JUDGMENT TO THAT EFFECT, THE “EXHAUSTION OF ADMINISTRATIVE REMEDIES” REQUIREMENT IS NOT RELEVANT (THRID DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined some of the plaintiffs had not failed to exhaust their administrative remedies in this action contesting the imposition of sales tax on the construction and demolition inspection services provided by plaintiffs. There is an exception to the “exhaustion of administrative remedies” requirement where, as here, plaintiffs claim the tax statute at issue is “wholly inapplicable” to them:

… [T]he remaining plaintiffs did not, as Supreme Court held, fail to exhaust their administrative remedies. Generally, a taxpayer must utilize statutory administrative remedies prior to commencing an action against the taxing entity … . That said, there is an exception to this requirement when, as relevant here, a tax statute is attacked as wholly inapplicable to the plaintiff … . “To challenge a statute as wholly inapplicable, the taxpayer must allege that the agency had no jurisdiction over it or the matter that was taxed” … . “This exception to the rule [mandating exhaustion of administrative remedies] is limited to those cases where no factual issue is raised” concerning the subject matter of the tax dispute … .

The remaining plaintiffs qualify for the “wholly inapplicable” exception, as the complaint alleges that DTF [Department of Taxation and Finance] lacks jurisdiction because Tax Law § 1105 (c) (8) does not apply to their site safety services. Further, there are no factual issues at play here. * * * … [T]he complaint simply seeks a declaration that site safety services, as specifically defined in the New York City Building Code, are exempt from sales tax … . Site Safety LLC v New York State Dept. of Taxation & Fin., 2025 NY Slip Op 02255, Third Dept 4-17-25

Practice Point: Here plaintiffs alleged the relevant sales-tax statute was wholly inapplicable to them and sought a declaratory judgment to that effect. The proceeding therefore is excepted from the “exhaustion of administrative remedies” requirement.

 

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PLAINTIFF, WHO TRIPPED AND FELL WHEN HE STEPPED INTO A LARGE CRACK, ASSUMED THE RISK OF PLAYING CRICKET ON A CITY-OWNED TENNIS COURT WITH AN IRREGULAR SURFACE; COMPLAINT PROPERLY DISMISSED; STRONG DISSENT (CT APP).

The Court of Appeals, affirming the dismissal of the complaint, determined plaintiff assumed the risk of playing cricket on a city tennis court with a cracked surface. Judge Rivera, in an extensive dissenting opinion, argued that there is a question of fact whether the city failed to maintain the tennis court in a reasonably safe condition:

Plaintiff was injured while playing cricket on a tennis court in a park owned by the City of New York when he ran to catch a batted ball and stepped into a large crack in the asphalt. The Appellate Division correctly held that the risks of tripping and falling while playing on an irregular surface are inherent in the game of cricket … . There is no evidence in the record that the irregularity in the playing field—the cracked and uneven surface of the tennis court—unreasonably enhanced the ordinary risk of playing cricket on an irregular surface … . Defendants were therefore entitled to summary judgment dismissing the complaint on the ground that the primary assumption of risk doctrine precludes liability on the part of defendants.

From the dissent:

The primary assumption of risk doctrine does not completely displace a landowner’s traditional duty of care to maintain their premises in a safe condition. Tripping on a fissure that is allegedly the result of years of neglect is not a risk inherent to cricket, or any other sport, and defendants were therefore not entitled to summary judgment on the theory that plaintiff assumed the risk of injury by playing on a deteriorated surface. The majority empowers defendants to escape all accountability for their alleged negligence, which put plaintiff and other park users at risk of serious injury. Maharaj v City of New York, 2025 NY Slip Op 02143, CtApp 4-15-25

Practice Point: Here the assumption of the risk doctrine was deemed to outweigh any obligation on the city’s part to maintain the surface of a tennis court in a safe condition.

 

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THE CITY CANNOT SEEK REIMBURSEMENT FROM WORKERS’ COMPENSATION AWARDED TO A DISABLED FIREFIGHTER WHERE THE FIREFIGHTER RECEIVED BENEFITS FROM MORE THAN ONE SOURCE WHICH, IN TOTAL, EXCEEDED THE FIREFIGHTER’S FORMER SALARY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the city (Newburgh) could not recoup payments made to a disabled firefighter (Mr. Schulze) from workers’ compensation awards. The opinion is too complex to fairly summarize here:

​Pursuant to a complicated statutory scheme, paid firefighters outside New York City who become disabled at work may receive benefits from different sources: their local governmental employer, New York State, and the Workers’ Compensation System. Adam Schulze is a retired paid firefighter who, when employed by the City of Newburgh, was disabled in the performance of duty. He received benefits from all three sources. This case concerns whether the City can compel the Workers’ Compensation Board to pay Mr. Schulze’s workers’ compensation benefits to the City, as a way to allow it to recoup an overpayment it claims to have made to Mr. Schulze. Based on the clear language of the relevant statutes, the City cannot do so. * * *

Neither Workers’ Compensation Law § 25 (4) (a) nor Workers’ Compensation Law § 30 (2) allows reimbursement from workers’ compensation awards for payments made under General Municipal Law § 207-a (2). The provision that prevents Mr. Schulze and other firefighters like him from receiving duplicative benefits is General Municipal Law § 207-a (4-a). The City of Newburgh Fire Department is therefore not entitled to reimbursement directly from Mr. Schulze’s workers’ compensation award for its prior payments to him under General Municipal Law § 207-a (2). Matter of Schulze v City of Newburgh Fire Dept., 2025 NY Slip Op 02101, CtApp 4-10-25

Practice Point: Consult this opinion for a breakdown of the sources of disability payments available to an injured firefighter who was employed outside New York City.​

 

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THE BEST EVIDENCE OF THE VALUE OF REAL PROPERTY FOR PROPERTY-TAX-ASSESSMENT PURPOSES IS A RECENT ARMS-LENGTH SALE; ASSESSMENT REDUCED (THIRD DEPT).

The Third Department, reversing Supreme Court and lowering the property tax assessment of petitioners’ property, determined the best evidence of the value of the property is an arms-length sale for an amount $750,000 less than the assessment:

“In an RPTL article 7 tax certiorari proceeding, a rebuttable presumption of validity attaches to the valuation of property made by the taxing authority” … . Therefore, on a summary judgment motion, a petitioner bears the initial burden of “presenting substantial evidence to demonstrate that the subject property was overvalued” … . In considering whether this minimal threshold has been met … , “[i]t is well settled that the best evidence of market value is a recent sale of the subject property between a seller under no compulsion to sell and a buyer under no compulsion to buy” … .

Petitioners submitted evidence that the December 20, 2020 sale for $3,495,000, occurring 18 months prior to the July 1, 2022 valuation date, was carried out at arm’s length. This was sufficient to rebut the presumption of the assessment’s validity and to satisfy petitioners’ burden on summary judgment … . …

… [R]espondents provided no support for their valuation of $4,257,000, a 22% increase in value since the sale just 18 months prior … . The assessor’s broad claim that the market for properties such as this one “rose remarkably” during that time was conclusory … , and his assertion regarding the types of approaches “[g]enerally” used to establish fair market value did not indicate whether either or both of those approaches were used in this particular instance. The fact that respondents engaged an outside appraisal firm while completing their town-wide revaluation is also of no moment, as respondents did not show how that firm evaluated this particular property or what conclusions it reached. As such, petitioners’ motion should have been granted … . Matter of Robins v Board of Assessment Review, 2025 NY Slip Op 02119, Third Dept 4-9-25

Practice Point: Here the tax assessor’s claim that property values had risen “remarkably” did not raise a question of fact in this tax certiorari proceeding seeking a reduction of the property-tax assessment. The best evidence of the value of the property was deemed to be the amount of a recent arms-length sale of the property.

 

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THE PETITIONER DID NOT DEMONSTRATE THE CITY HAD TIMELY ACTUAL NOTICE OF THE NATURE OF HER CLAIM AND HER ALLEGATION THAT HER INJURIES PREVENTED HER FROM MAKING A TIMELY CLAIM WAS NOT SUPPORTED BY MEDICAL EVIDENCE; THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against the city should not have been granted. Petitioner did not demonstrate the city had timey actual notice of the nature of the claim and did not submit medical records to support her excuse that her injuries prevented her from filing a timely notice of claim:

Petitioner failed to show that respondents had actual knowledge of the facts underlying the legal theories on which liability was predicated in the notice of claim … . Contrary to her contention, neither the police report, the NYPD complaint, nor the Department of Education occurrence report provided respondents with the facts underlying her theory of liability, as none of these documents linked the accident to any potentially actionable wrongdoing committed by them.

Although petitioner demonstrated that respondents would not suffer any prejudice by the delay in serving the notice of claim, as the alleged defect has not changed since the incident … , her assertion that the severity of her injuries precluded her from serving notice, without any supporting medical documentation or evidence, was insufficient to constitute a reasonable excuse for her delay … .

Petitioner’s submission to the motion court failed to include any medical records detailing her surgery and follow-up visits, and her petition stated that she was able to leave the apartment for her medical treatments and ultimately work remotely. Furthermore, it is not clear from the petition when she retained counsel, and a lack of due diligence in determining the identity of the parties involved is not a reasonable excuse for the failure to serve a timely notice of claim … . Matter of Kayam v City of New York, 2025 NY Slip Op 02037, First Dept 4-8-25

Practice Point: An allegation that injuries prevented the filing of a timely notice of claim should be backed up by medical records.

 

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PLAINTIFF’S WORKPLACE GENDER-DISCRIMINATION CASE SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court, in a necessarily fact-specific decision, determined plaintiff’s employment-discrimination suit should not have been dismissed:

To establish a claim for gender discrimination under the Human Rights Law, a plaintiff must “show (1) that he or she was a member of a protected class, (2) that he or she suffered an adverse employment action, (3) that he or she was qualified to hold the position for which he or she suffered the adverse employment action, and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination” … . “Verbal comments can serve as evidence of discriminatory motivation when a plaintiff shows a nexus between the discriminatory remarks and the employment action at issue” … . “Employers are . . . required to provide reasonable avenues for discrimination and harassment complaints, to respond appropriately to such complaints, and to take reasonable steps to eliminate the harmful conduct; where they fail to do so, they are subject to liability under [the Human Rights Law]” … . * * *

The gravamen of plaintiff’s allegations is that Gulnick’s [plaintiff’s immediate boss’s] sexist views toward women fostered a workplace where women’s legitimate grievances were met with dismissal and ridicule, and conflicts that would otherwise have been dealt with were instead allowed to fester. When plaintiff sought to have her valid claims of harassment addressed in-house and ultimately in an outside mediation, Gulnick’s rebuke of her efforts envenomed with discriminatory commentary turned to anger, ultimately leading to plaintiff’s demotion and decrease in wages. Mikesh v County of Ulster, 2025 NY Slip Op 01987, Third Dept 4-3-25

Practice Point: Consult this decision for a detailed fact-specific analysis of the criteria for a prima facie demonstration of gender discrimination in the workplace.​

 

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THE QUESTION WHETHER THE MUNICIPALITY TIMELY RECEIVED ACTUAL NOTICE OF THE CLAIM IS MORE IMPORTANT THAN THE QUESTION WHETHER THERE IS A REASONABLE EXCUSE FOR MISSING THE 90-DAY DEADLINE; HERE THE PETITIONER DID NOT HAVE A REASONABLE EXCUSE BUT THE MUNICIPALITY DID RECEIVE TIMELY ACTUAL NOTICE; LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, noting that the absence of a reasonable excuse is not dispositive, determined petitioner should have been granted leave to file a late notice of claim against the New York City Housing Authority (NYCHA). Petitioner, a plumber, allegedly tripped over a piece of rebar protruding from the ground at a construction site:

Here, while the petitioner concedes that his claim of clerical error does not qualify as a reasonable excuse for his delay in serving a notice of claim, “the absence of a reasonable excuse is not, standing alone, fatal to the petitioner’s application” … .

While the lack of a reasonable excuse is not dispositive on an application for leave to serve a late notice of claim, “whether the municipality acquired timely actual knowledge of the essential facts constituting the claim is of great importance” … . Here, while there is no proof that the petitioner served the notice of claim upon NYCHA on January 27, 2020, NYCHA admits to receiving the first petition on or about January 31, 2020, less than three weeks after the expiration of the 90-day notice period. NYCHA additionally admits that it was able to schedule and conduct a General Municipal Law § 50-h hearing with the petitioner on April 20, 2020. Matter of Herry v New York City Hous. Auth., 2025 NY Slip Op 01928, Second Dept 4-2-25

Practice Point: In determining a request for leave to file a late notice of claim, whether the petitioner has a reasonable excuse for failing to file the notice of claim within 90 days is less important than whether the municipality timely received actual notice of the claim. Here the excuse was not valid but the municipality received timely notice. The request for leave to file a late notice should have been granted.

 

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