Municipal Law – Page 73 – New York Appellate Digest

PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant general contractor’s motion to dismiss the complaint brought by plaintiff subcontractor, based upon the subcontractor’s failure to allege it was licensed to do home improvement work, should have been granted:

“Pursuant to CPLR 3015(e), a complaint that seeks to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services is subject to dismissal under CPLR 3211(a)(7) if it does not allege compliance with the licensing requirement” … . Moreover, a home improvement contractor who fails to possess and plead possession of a valid license as required by relevant laws may not commence an action to foreclose a mechanic’s lien … .

Here, the complaint did not allege that the plaintiff was duly licensed in the Town of East Hampton at the time the services were rendered … . Moreover, in opposition to the defendants’ motion, the plaintiff did not dispute that it did not possess the necessary license. The plaintiff’s contention that the work it performed was not for home improvement but, rather, was for the construction of a new home for which a home improvement contracting license was not necessary, is without merit. The Town Code defines “home improvement” as including, inter alia, “[n]ew home construction” … . Moreover, contrary to the plaintiff’s contention, the defendants are entitled to the protection of CPLR 3015(e) and the applicable licensing requirements … . Kristeel, Inc. v Seaview Dev. Corp., 2018 NY Slip Op 07296, Second Dept 10-31-18

CIVIL PROCEDURE (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/CPLR 3015 (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/HOME IMPROVEMENT CONTRACTS (PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/CONTRACT LAW (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/LIEN LAW (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/MECHANIC’S LIENS (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/MUNICIPAL LAW (LICENSES, HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/LICENSES (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

October 31, 2018

Municipal Law, Negligence

DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant property owner’s (Reda’s) motion for summary judgment in this sidewalk slip and fall case should not have been granted. There was a question of fact whether the area where plaintiff fell was in a designated bus stop, where the city would be responsible, or in an area the NYC Administrative Code requires that defendant maintain:

Plaintiff alleges that she tripped and fell over a gap between flagstones on a public sidewalk abutting property owned by Reda, and south of a bus shelter maintained by defendant City. Under Administrative Code of City of NY § 7-210, an abutting property owner has a duty to maintain the public sidewalk … , but the City continues to be responsible for maintaining any part of the sidewalk that is “within a designated bus stop location” … .

In support of her motion for summary judgment, Reda submitted evidence, including photographs showing where plaintiff fell near a bus shelter and next to a yellow-marked curb, and the City’s admission that it owns the bus stop pole shown in a photograph. However, absent any applicable statute or any evidence defining the parameters of a bus stop, a triable issue of fact exists as to whether the part of the sidewalk where plaintiff fell is within a designated bus stop that the City is required to maintain … . McCormick v City of New York, 2018 NY Slip Op 07175, First Dept 10-25-18

NEGLIGENCE (SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/MUNICIPAL LAW (SIDEWALKS, BUS STOP, SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/SLIP AND FALL (MUNICIPAL LAW, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/BUS STOPS (MUNICIPAL LAW, SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))

October 25, 2018

Municipal Law

TOWN CODE PROVISION WAS NOT AUTHORIZED BY THE TOWN LAW AND WAS THEREFORE VOID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a local town code provision (called a Holdback Provision) was not authorized by the Town Law and was therefore unenforceable. The town code provision authorized the town to hold back on issuing building permits in plaintiff builder’s subdivision until certain required infrastructure components (roads, lights, etc.) were completed:

Towns and municipal governments lack inherent power to enact zoning or land use regulations … . “They exercise such authority solely by legislative grant” … . Through the enactment of Town Law article 16, the New York State Legislature has conferred upon municipalities a wide variety of powers “to zone the town into districts to regulate its growth and development, to establish procedures for adoption and modification of local zoning regulations, to review and enforce zoning decisions and to establish an official map”… . Town Law § 277(9) is the enabling statute which authorizes the Town to obtain enumerated forms of security sufficient to cover the full cost of infrastructure and other required improvements in case a developer fails to finish work. …

Here, a plain reading of Town Law § 277 establishes that (1) it has no express provision authorizing the Lot Holdback Provision set forth Town Code § 254-18B, (2) pursuant to the rules of statutory construction, the express provisions of Town Law § 277 must be construed to exclude provisions such as those in Town Code § 254-18B which are not contained in § 277 … , and (3) it has no provision from which the Lot Holdback Provision of Town Code § 254-18B can be implied … . Thus, Town Code § 254-18B is inconsistent with the plain language of Town Law § 277(9), which expressly sets forth the manner in which a developer can be required to provide financial security to ensure the completion of the installation of required infrastructure and other mandatory improvements.

When a town or municipality acts without legislative delegation, its acts are ultra vires and void ab initio … . Joy Bldrs., Inc. v Town of Clarkstown, 2018 NY Slip Op 07110, Second Dept 10-24-18

MUNICIPAL LAW (TOWN CODE PROVISION WAS NOT AUTHORIZED BY THE TOWN LAW AND WAS THEREFORE VOID (SECOND DEPT))/TOWN CODE (TOWN CODE PROVISION WAS NOT AUTHORIZED BY THE TOWN LAW AND WAS THEREFORE VOID (SECOND DEPT))/TOWN LAW (TOWN CODE PROVISION WAS NOT AUTHORIZED BY THE TOWN LAW AND WAS THEREFORE VOID (SECOND DEPT))

October 24, 2018

Municipal Law, Negligence

UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant homeowner was entitled to summary judgment in this sidewalk slip and fall case. Defendant was exempt from liability under the NYC Administrative Code and that defendant’s fence with a gate did not constitute a special use of the sidewalk:

In this trip and fall case involving an uneven sidewalk, defendant Ortiz’s testimony that she lived in a one-family home adjacent to the sidewalk was sufficient competent evidence to make a prima facie showing that she qualified for the exemption provided at Administrative Code of City of NY § 7-210(b) … .

In opposition, plaintiff offers no evidence to the contrary, and no authority for her proposition that a party seeking to demonstrate that their home is a one-, two- or three-family home exempt from § 7-210 must produce a deed.

Nor is defendant Ortiz liable based on a theory that her fence, containing a gate, constituted a special-use. “The principle of special use, a narrow exception to the general rule, imposes an obligation on the abutting landowner, where he puts part of a public way to a special use for his own benefit and the part used is subject to his control, to maintain the part so used in a reasonably safe condition to avoid injury to others. . . . Special use cases usually involve the installation of some object in the sidewalk or street or some variance in the construction thereof” … . There is no evidence in the record that defendant’s fence is built on or in the sidewalk. That the gate, which defendant testified is “almost never” used, would permit herself and others to enter her property does not constitute a special use, as those using it would merely walk across the sidewalk, a use not “unrelated to the public use” … . Moreover, as the defect in the sidewalk is adjacent to defendant’s gate, not in front of it, it was plaintiff’s burden to demonstrate that this alleged “special use” caused or contributed to the defect … . Plaintiff offered no such evidence. Hernandez v Ortiz, 2018 NY Slip Op 07075, First Dept 10-23-18

NEGLIGENCE (SLIP AND FALL, UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))/MUNICIPAL LAW (SLIP AND FALL, UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))/SLIP AND FALL (UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))

October 23, 2018

Appeals, Civil Procedure, Judges, Municipal Law, Zoning

REVERSING SUPREME COURT THE THIRD DEPT NOTED THAT SUMMARY JUDGMENT MAY BE AWARDED ON THE BASIS OF AN UNPLEADED CAUSE OF ACTION AND DID SO IN FAVOR OF THE TOWN IN THIS ZONING AND BUILDING CODE VIOLATION CASE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the complaint in this zoning and building code violation case should not have been dismissed by the court sua sponte, and the court should not have awarded summary judgment to the defendant property owner. The Third Department noted that summary judgment may be awarded on an upleaded cause of action in the absence of prejudice and awarded summary judgment in favor of the town (plaintiff):

… [P]laintiff established the material facts through an affidavit by its Code and Zoning Enforcement Officer, who detailed the zoning and building code violations found on defendant’s property and averred that defendant had not remedied them after being served with orders to do so. The statements in the affidavit were corroborated by documentary and photographic evidence, and defendant submitted no opposition that might have raised material questions of fact. Supreme Court correctly observed that the complaint did not name a cause of action or identify the legal basis for the relief requested, and plaintiff’s motion papers suffered from the same problem. Plaintiff now points to authority for the relief sought by it (see Executive Law § 382 [3]; Village Law § 7-714 …), however, and summary judgment may be granted on an unpleaded cause of action “where the proof supports such a cause of action and the opposing party has not been misled to its prejudice” … . The evidence substantiates plaintiff’s entitlement to the relief sought — relief that plaintiff has consistently sought and was narrowed in its notice of motion for summary judgment — and there is no indication that defendant was prejudiced by the failure to identify the statutes authorizing it sooner. Thus, we grant plaintiff’s motion for summary judgment and remit so that Supreme Court may fashion an appropriate remedial order. Village of Sharon Springs v Barr, 2018 NY Slip Op 07022, Third Dept 10-18-19

October 18, 2018

Municipal Law, Negligence, Trespass

NEGLIGENCE AND TRESPASS ACTIONS AGAINST THE TOWN BASED UPON A LANDSLIDE WHICH CAUSED FLOODING OF PLAINTIFF’S LAND SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department determined the negligence and trespass action against the town in this lawsuit stemming from a landslide should have been dismissed. The town had issued a permit for the placement of fill. Plaintiff’s alleged the landslide blocked a stream and flooded plaintiff’s land:

… [T]o hold a municipality liable for negligence in the exercise of a governmental function, a plaintiff must show that the municipality owed it a special duty beyond that owed to the public at large … . As a basis for the Town’s negligence, the complaint in this action alleges … that plaintiff owned land near the … property that was affected by the landslide and resulting flooding. However, the complaint does not allege that the Town had assumed any duty to act on plaintiff’s behalf or that the Town made any representations upon which plaintiff justifiably relied. …

… “[A] trespass claim represents an injury to the right of possession, and the elements of a trespass cause of action are an intentional entry onto the land of another without permission. Regarding intent, the defendant ‘must intend the act which amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he or she willfully does, or which he or she does so negligently as to amount to willfulness'” … .

Plaintiff alleged that the Town issued the permit for the performance of work, including grading and other land disturbance activities and placement of fill, notwithstanding its knowledge that significant slope failures resulting in landslides had previously occurred in the immediate vicinity, which the complaint alleges constituted a “dangerous recurring condition.” Plaintiff further alleged that the Town failed to properly supervise the work that was conducted pursuant to the permit; however, it did not allege that the Town directly participated in placement of the fill that caused the landslide. City of Albany v Normanskill Cr., LLC, 2018 NY Slip Op 07020, Third Dept 10-18-18

MUNICIPAL LAW (NEGLIGENCE AND TRESPASS ACTIONS AGAINST THE TOWN BASED UPON A LANDSLIDE WHICH CAUSED FLOODING OF PLAINTIFF’S LAND SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/NEGLIGENCE (MUNICIPAL LAW, NEGLIGENCE AND TRESPASS ACTIONS AGAINST THE TOWN BASED UPON A LANDSLIDE WHICH CAUSED FLOODING OF PLAINTIFF’S LAND SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/TRESPASS (MUNICIPAL LAW, NEGLIGENCE AND TRESPASS ACTIONS AGAINST THE TOWN BASED UPON A LANDSLIDE WHICH CAUSED FLOODING OF PLAINTIFF’S LAND SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/LANDSLIDE (MUNICIPAL LAW, NEGLIGENCE AND TRESPASS ACTIONS AGAINST THE TOWN BASED UPON A LANDSLIDE WHICH CAUSED FLOODING OF PLAINTIFF’S LAND SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/FLOODING (MUNICIPAL LAW, NEGLIGENCE AND TRESPASS ACTIONS AGAINST THE TOWN BASED UPON A LANDSLIDE WHICH CAUSED FLOODING OF PLAINTIFF’S LAND SHOULD HAVE BEEN DISMISSED (THIRD DEPT))

October 18, 2018

Municipal Law, Workers' Compensation

INJURED POLICE OFFICER CAN RECEIVE BOTH WORKERS’ COMPENSATION AND GENERAL MUNICIPAL LAW 207-c BENEFITS (SECOND DEPT).

The Second Department determined a police officer injured trying to subdue and emotionally disturbed person can receive both Workers' Compensation and General Municipal Law 207-c benefits. The police chief denied the General Municipal Law 207-c benefits. Supreme Court annulled the police chief's denial holding that the police chief was estopped from denying the benefits because Workers' Compensation benefits had been awarded. The Second Department found that the estoppel doctrine did not apply but affirmed on different grounds:

… [T]he Workers' Compensation Board's determination in favor of the petitioner did not collaterally estop the Incorporated Village of Muttontown and the Chief of Police (hereinafter together the appellants) from denying the petitioner's application for General Municipal Law § 207-c benefits. “[A] determination by the Workers' Compensation Board that an injury is work-related” does not, “by operation of collateral estoppel, automatically entitle an injured employee to General Municipal Law § 207-c benefits” … . “General Municipal Law 207-c benefits apply to a narrower class of work-related injury, relative to the performance of law enforcement duties” … .

A determination denying an application for benefits pursuant to General Municipal Law § 207-c may be annulled only if it was arbitrary and capricious … . “An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts” … .

In order to establish entitlement to General Municipal Law § 207-c benefits, a municipal employee must prove a “direct causal relationship between job duties and the resulting illness or injury”… . Here, the appellants' denial of the petitioner's application for benefits under General Municipal Law § 207-c was arbitrary and capricious. The documentation in the record established a causal connection between the performance of the petitioner's duties and her injuries. Matter of Lavin v Incorporated Vil. of Muttontown, 2018 NY Slip Op 06909, Second Dept 10-17-18

October 17, 2018

Civil Procedure, Municipal Law, Negligence

MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT).

The Second Department determined the motion to serve an amended notice of claim as a late notice of claim in this pedestrian accident case was properly denied. The original notice of claim alleged inadequate street lighting prevented the defendant driver from seeing the infant plaintiff. The amended notice of claim purported to add theories of liability and purported to add mother’s derivative claim. Mother’s claim could not be added because the infancy toll of the statute of limitations did not apply to her:

… [T]he plaintiffs failed to proffer a reasonable excuse for the delay in serving a notice of claim that described the infant plaintiff’s injuries as arising from any negligence on the part of the Town other than that related to the nonfunctioning street lights, as described in the original notice of claim … . The plaintiffs also failed to demonstrate a causal nexus between the infancy of one of the plaintiffs and the delay … . Moreover, the plaintiffs did not demonstrate that, within 90 days after the accident or a reasonable time thereafter, the Town acquired actual knowledge of the essential facts constituting the claim that it was negligent with respect to anything other than the street lights… . The plaintiffs also failed to establish that the Town would not be substantially prejudiced by the delay … .

The proposed amended notice of claim with respect to the mother’s derivative claim is time-barred because the statute of limitations expired before the plaintiffs moved to serve a late notice of claim, and the toll for infancy pursuant to CPLR 208 does not apply to a parent’s derivative cause of action … .

We also agree with the Supreme Court’s determination denying that branch of the plaintiffs’ motion which was for leave to serve an amended notice of claim. A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability … . The proposed amendments to the notice of claim added new theories of liability related to the Town’s ownership, operation, control, design, planning, study, retention, supervision, maintenance, repair, inspection, and management of the street and sidewalks on Swalm Street. Such amendments are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . Palacios v Town of N. Hempstead, 2018 NY Slip Op 06927, Second Dept 10-17-18

NEGLIGENCE (MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT))/NOTICE OF CLAIM (MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT))/CIVIL PROCEDURE (NEGLIGENCE, MUNICIPAL LAW, STATUTE OF LIMITATIONS, MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT))/CPLR 208 (NEGLIGENCE, MUNICIPAL LAW, STATUTE OF LIMITATIONS, MOTION TO SERVE AN AMENDED NOTICE OF CLAIM AS A LATE NOTICE OF CLAIM PROPERLY DENIED, AMENDED NOTICE PURPORTED TO ADD NEW THEORIES OF LIABILITY AND A TIME-BARRED DERIVATIVE CLAIM (SECOND DEPT))

October 17, 2018

Administrative Law, Environmental Law, Municipal Law, Zoning

ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, reversing Supreme Court, over a dissent, determined that the NYC “open space” zoning resolution (ZR) requirements can not be satisfied on a building by building basis. The permit allowing the construction of a nursing home facility on a parking lot, therefore, should not have been issued. The open space on the roof of the proposed building would not be accessible to all who resided on the zoning lot. Such access is part of the definition of “open space:

The language in ZR § 12-10 is “clear and unambiguous” … . ZR § 12-10 has always defined “open space” as being “accessible to and usable by all persons occupying a #dwelling unit# or a #rooming unit# on the #zoning lot#” … . That language unambiguously requires open space to be accessible to all residents of any residential building on the zoning lot, not only the building containing the open space in question. To further bolster our finding that this language is clear and unambiguous, the 2011 amendments to ZR §§ 23-14 and 23-142 eliminated all references to “building” and replaced it with “zoning lot.” Equally dispositive is the identical change in the definition of “open space ratio” in ZR § 12-10. Of course, the impracticality of allowing the residents of one building on a zoning lot to have access to, and use of, open space located on the rooftop of another building on the zoning lot is obvious. Yet, respondents’ apparent contention concerning ZR § 12-10’s open space requirement — that any rooftop that may be considered open space for the purposes of the open space requirement shall or must be considered open space irrespective of access — gives credence to the impracticality. That is not what ZR § 12-10 says.

ZR § 12-10 unambiguously provides that “[o]pen space may be provided on the roof of . . . [a] building containing residences” and that “[a]ll such roof areas used for open space shall meet the requirements set forth in this definition.” Thus, any rooftop space that is to be considered open space for the purposes of satisfying the open space requirement under the Zoning Resolution must be accessible and usable by all residents on a zoning lot. Lest there be any doubt, we find that the 2011 amendments now preclude the use of the building-by-building methodology, which had been an exception to this clear statutory import. Matter of Peyton v New York City Bd. of Stds. & Appeals, 2018 NY Slip Op 06870, First Dept 10-16-18

ZONING (ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))/MUNICIPAL LAW (NYC OPEN SPACE, ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))/ADMINISTRATIVE LAW (NYC OPEN SPACE, ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))/OPEN SPACE (NYC ZONING, ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))

October 16, 2018

Criminal Law, Employment Law, Municipal Law, Unemployment Insurance

CLAIMANT’S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined the fact that the claimant was terminated from her employment as a city tax assessor because of two drunk-driving-related crimes did not preclude her from eligibility for unemployment insurance, The drunk driving incidents had nothing to do with her job and there was evidence she could have continued doing her job even though her license had been suspended for 90 days:

The disciplinary determination was founded, in part, upon claimant's two convictions for driving while under the influence of alcohol and her resulting license suspension. Whether this amounted to disqualifying misconduct posed a factual question for the Board, “and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct” … . …

The drunk driving incidents did not occur while claimant was working. Notably, possession of a valid driver's license was not listed among the qualifications necessary to hold the position of Sole Assessor and claimant testified that she was not advised that this was a requirement … . Claimant was not incarcerated as a result of her convictions and she testified that she was ready and able to fulfill her job duties notwithstanding the suspension of her driver's license … . Moreover, while claimant acknowledged that she occasionally did site visits, she testified that she could perform her duties while her license was temporarily suspended given that much of the data needed to compute the assessments had already been compiled and she could obtain a lot of the information online. Matter of Stack (City of Glens Falls–Commissioner of Labor), 2018 NY Slip Op 06840, Third Dept 10-11-18

UNEMPLOYMENT INSURANCE (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/EMPLOYMENT LAW (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/MUNICIPAL LAW (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/CRIMINAL LAW (UNEMPLOYMENT INSURANCE, CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

October 11, 2018