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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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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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