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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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STATUTORY PRESUMPTION THAT THE PAINT CONTAINED LEAD DID NOT APPLY BECAUSE THERE WAS NO EVIDENCE THE INTERIOR OF THE BUILDING WAS PAINTED PRIOR TO JANUARY 1, 1960; HOWEVER QUESTIONS OF FACT WERE RAISED ABOUT THE PRESENCE OF LEAD PAINT AND THE CONNECTION BETWEEN THE PAINT AND INFANT PLAINTIFF’S LEAD POISONING, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, reversing Supreme Court, determined that questions of fact were raised about the landlord’s (New York City Housing Authority’s, NYCHA’s) responsibility for the lead poisoning of infant plaintiff (A.L.). Successive blood tests revealed increasing lead levels as the child aged, and a decrease after the apartment was repainted. The first issue the court dealt with was whether Local Law 1, which creates a presumption that the paint in the apartment contains more than .5 percent lead for buildings “erected” prior to January 1, 1960, applied. The certificate of occupancy for the building was issued in March, 1961, but there was evidence the building was under construction in 1959. “Erected” was (apparently) interpreted to mean when the apartment was painted, so the statutory presumption did not apply:

Here, A.L.’s elevated blood lead level suggests … a hazardous condition may have existed in the apartment during the relevant period. While there are other sources of lead poisoning, housing is a prime source …  The circumstantial evidence of a hazardous lead-based paint condition is also supported by an affirmation by Dr. Douglas B. Savino and an affidavit by lead paint expert William Savarese. Dr. Savino concluded that the apartment contained a hazardous level of lead-based paint, given the “chronology of the infant plaintiff’s blood lead levels,” which was “environmentally and temporally related to the infant plaintiff’s residence.” He noted that A.L.’s blood levels increased over time until he was diagnosed with 16 ug/dl on March 19, 2003, coinciding with the repainting of the apartment on March 5-6, 2003. Dr. Savino attributed the lead spike in A.L.’s blood to A.L. ingesting an excessive amount of lead dust. Dr. Savino further pointed out that A.L.’s blood lead levels declined gradually after the 2003 apartment repair and the 2004 removal of the chipped and peeling interior doors. William Savarese echoed Dr. Savino’s statements and conclusions. A.L. v New York City Hous. Auth., 2019 NY Slip Op 00702, First Dept 1-31-19

 

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CITY’S POTENTIAL LIABILITY FOR THE ACTIONS OF A CITY BUS DRIVER WAS BASED ON RESPONDEAT SUPERIOR, THEREFORE A NEGLIGENT HIRING AND RETENTION ACTION WAS NOT VIABLE AND THE DRIVER’S PERSONNEL FILE WAS NOT DISCOVERABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city’s motion to vacate the order compelling disclosure of the city bus driver’s personnel file should have been granted. Plaintiff alleged she was injured when she fell on a city bus. The city acknowledged that the driver was acting within the scope of his employment when the accident occurred. Therefore the city’s potential liability was based upon respondeat superior, and a negligent hiring and retention action was not viable. Therefore the personnel records were not discoverable:

“Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior, and a plaintiff may not proceed with a cause of action to recover damages for negligent hiring and retention”… . In light of the defendants’ formal concession that the bus driver was acting within the scope of his employment when the accident occurred, the personnel records of the bus driver are not discoverable… . Furthermore, the plaintiff failed to show any other basis to justify granting her request for the personnel records, as “any prior acts of carelessness or incompetence of the defendant’s employee would not be admissible at trial” … . Therefore, the additional discovery sought by the plaintiff is not relevant or reasonably calculated to lead to evidence relevant to the issue of the driver’s alleged negligence … . Trotman v New York City Tr. Auth., 2019 NY Slip Op 00631, Second Dept 1-30-19

 

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IN THIS HYBRID ARTICLE 78-DECLARATORY JUDGMENT ACTION, THE PORTIONS OF THE PETITION WHICH SOUGHT A DECLARATION THAT AMENDMENTS TO THE ZONING CODE ARE ILLEGAL AND RELATED DAMAGES SHOULD NOT HAVE BEEN DISMISSED, SUA SPONTE, IN THE ABSENCE OF A SPECIFIC DEMAND FOR DISMISSAL (SECOND DEPT).

The Second Department determined that the zoning code provisions enacted by the village board of trustees, which concerned the maximum floor space and coverage on residential lots, were consistent with the village’s comprehensive plan and properly enacted. The Second Department further found that the requirements of the State Environmental Quality Review Act (SEQRA) were met. However, the portions of the petition which sought declaratory relief and related damages should not have been summarily dismissed along with the portions which sought Article 78 relief because no demand for dismissal of the declaratory relief portions had been made:

… [I]n the absence of a dispositive motion addressed to the fifth, sixth, seventh, and eighth causes of action, which sought declaratory relief and damages not in the nature of CPLR article 78 relief, the Supreme Court should not have, in effect, dismissed those causes of action. “In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those to recover damages and for declaratory relief, on the other hand. The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment” … . “Thus, where no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action” … . Matter of Bonacker Prop., LLC v Village of E. Hampton Bd. of Trustees, 2019 NY Slip Op 00432, Second Dept 1-23-19

 

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ALTHOUGH THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF ON A SUBWAY FOR A TRANSIT VIOLATION, THE CONCURRENCE CALLED INTO QUESTION THE ‘TRANSIT DATABASE’ WHICH PROBABLY INCLUDES PERSONS WHOSE CRIMINAL CHARGES WERE SEALED AND DISMISSED, THE DATABASE DOES NOT PROVIDE A DISTINCT BASIS FOR ARREST (FIRST DEPT).

The First Department, over a concurrence, determined that there was probable cause to arrest the plaintiff based on the transit offense of passing between two subway cars on a moving train. Because there was probable cause, the majority did not reach the issue of the fairness or constitutionality of a so-called “transit database” which encompasses so-called “transit recidivists.” The concurrence made it clear that plaintiff’s designation as a “transit recidivist” did not provide the police with a separate basis to arrest plaintiff:

From the concurrence:

It must be said that plaintiff’s designation as a transit recidivist did not give the officers a separate basis to arrest plaintiff … . The definition of “transit recidivist” at the time of plaintiff’s arrest encompassed not only persons convicted of crimes, but those with prior arrests in the transit system or prior felony arrests within New York City … . This overbroad classification subverted the presumption of innocence and likely violated state sealing laws. …

… [T]he database was likely contaminated by sealed arrests and summons histories and, as such, ran afoul of provisions of the Criminal Procedure Law that require that the records of any criminal prosecution terminating in a person’s favor or by way of noncriminal conviction be sealed …  Statistics … indicate that in 2016 alone, over 50% of all criminal cases arraigned in New York City Criminal Court were terminated in favor of the accused, and accordingly entitled to sealing … . From 2007 through 2015 an average of 23% of all criminal summonses were dismissed for facial insufficiency … . Unless otherwise permitted by law, no one, including a private or public agency, can access a sealed record, except with a court order upon a showing that justice so requires.

The presence of arrest and summons data in the database also undercut the presumption of innocence insofar as persons were threatened with punishment on account of allegations that may have been unsubstantiated or dismissed.

…[T]his is not the first NYPD database to have included unlawfully broad data. NYPD previously recorded the name of every individual stopped and frisked as recently as 2010, until forced by a federal lawsuit to discontinue the practice.

Finally, there is little doubt that the “transit recidivist” database had a disproportionately negative effect on black and Hispanic communities, perpetuating this City’s history of overpolicing communities of color. Vargas v City of New York, 2019 NY Slip Op 00370, First Dept 1-22-19

 

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QUESTION OF FACT WHETHER CITY HAD PRIOR WRITTEN NOTICE OF THE DEFECTS IN THE SIDEWALK AND RAILING WHERE PLAINTIFF’S DECEDENT FELL INTO A GORGE, CITY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (THIRD DEPT).

The Third Department determined the city’s motion for summary judgment in this slip and fall case was properly denied. Plaintiff’s decedent fell from a paved trail into a gorge. There were questions of fact about whether the city had prior written notice of the broken sidewalk and railing:

… [P]laintiff produced a police investigation report concluding that decedent had fallen along a part of the trail with multiple defects, including broken pavement, a “bent/unsecured hand railing . . . and huge gap spaces in sidewalk edge adjacent to [the] cliff side edge.” Plaintiff also demonstrated that, by the time of the fall, the Department of Public Works had received numerous written complaints about the condition of the trail. General complaints and the subsequent efforts of department personnel to evaluate the condition of the trail did not “obviate the need for prior written notice” of the particular defects implicated in decedent’s fall … . That said, one of the written complaints was a January 2012 email forwarded to an Assistant Superintendent of Public Works that was, according to his testimony, “probably” shared with the Superintendent of Public Works, and attached to the email is a map with photographs that appear to reference the defects in the area where decedent fell. Van Wageningen v City of Ithaca, 2019 NY Slip Op 00343, Third Dept 1-17-19

 

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APPLICATION FOR LEAVE TO FILE LATE NOTICES OF CLAIM AGAINST THE VILLAGE STEMMING FROM A HAZARDOUS SUBSTANCE IN THE WATER SUPPLY PROPERLY GRANTED, ALTHOUGH THERE WAS NO ADEQUATE EXCUSE FOR THE DELAY, THE VILLAGE HAD TIMELY NOTICE OF THE FACTS UNDERLYING THE CLAIM AND WAS NOT PREJUDICED BY THE DELAY (THIRD DEPT).

The Third Department determined Supreme Court properly granted petitioners’ application to file late notices of claim against the village stemming from a hazardous substance, PFOA, in the municipal water supply. Although petitioners did not have an adequate excuse for the delay, respondents had timely knowledge of the facts underlying the claim and were not prejudiced by the the delay:

… [I]t is evident that respondent was well aware of the PFOA contamination in its municipal water system, the likelihood of increased PFOA levels in the blood of its residents as a result of exposure to PFOA and the potential negative health consequences as a result thereof. On the record before us, therefore, respondent cannot plausibly claim that it had only a “general awareness” of the presence of PFOA in its municipal water system. Accordingly, we conclude that Supreme Court properly found that respondent had actual notice of all the essential facts underlying petitioners’ claims … . …

Further, there has been no demonstration of substantial prejudice to respondent as a result of petitioners’ delay in seeking to file late notices of claim … . Respondent has been aware of the subject PFOA contamination since at least October 2014, it was apprised of the potential negative health risks to its residents from PFOA exposure and, as a result of the blood testing program commenced by DOH, it learned of the elevated levels of PFOA in its residents — despite its efforts to downplay said results. Moreover, respondent alleges that it has located the source of the PFOA contamination and petitioners, as residents of respondent, remain available for any further investigation into whether respondent’s conduct was the proximate cause of their alleged injuries. In turn, other than the passage of time, respondent has offered no particularized evidence in opposition to establish that it suffered substantial prejudice … . Matter of Holbrook v Village of Hoosick Falls, 2019 NY Slip Op 00342, Third Dept 1-17-19

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DEFAMATORY REMARKS MADE AT A MUNICIPAL PUBLIC MEETING HAD NOTHING TO DO WITH THE SUBSTANCE OF THE MEETING AND THEREFORE WERE NOT ABSOLUTELY PRIVILEGED, PLAINTIFF’S DEFAMATION ACTION PROPERLY SURVIVED A MOTION TO DISMISS (SECOND DEPT).

The Second Department determined plaintiff’s defamation action properly survived a motion to dismiss. The defendant sought permission from the Village’s Board of Historic Preservation and Architectural Review to add an exterior stairway to her house. At the public meeting plaintiff, defendant’s neighbor, objected to the stairway. Then defendant made some remarks directly to plaintiff which, in essence, accused plaintiff of setting up a camera to view defendant’s daughter’s bedroom. The Second Department noted that statements at a public meeting before a municipal body are generally absolutely privileged. But here the statements had nothing to do with the substance of the meeting:

“The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se” … .

“Absolute privilege is based upon the personal position or status of the speaker and is limited to the speaker’s official participation in the processes of government” … . “The absolute privilege generally is reserved for communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings. This protection is designed to ensure that such persons’ own personal interests—especially fear of a civil action, whether successful or otherwise—do not have an adverse impact upon the discharge of their public function” … .

Here, as a threshold matter, the challenged statements, considered in the context in which they were made, tended to expose the plaintiff to public contempt, hatred, ridicule, aversion, or disgrace.

The challenged statements, which were made in the context of a contested application before a municipal body whose determination is subject to judicial review pursuant to CPLR article 78 …, would ordinarily be subject to absolute privilege… . Nevertheless, the absolute privilege embraces only those statements that may possibly be or become material or pertinent to the matters before the Board, construed under an extremely liberal standard… . Upon our review of the papers and documentary evidence submitted by the parties, we discern “not one scintilla of evidence present upon which to base the possible pertinency of [the] defendant’s statement[s]”… . Therefore, under the circumstances of this case, the challenged statements are not subject to an absolute privilege … . Gugliotta v Wilson, 2019 NY Slip Op 00261, Second Dept 1-16-19

 

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