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CITY WAS NOT ESTOPPED FROM ASSERTING THE STATUTE OF LIMITATIONS DEFENSE TO A CHALLENGE TO CITY WATER BILLS, ALTHOUGH AN INACCURATE BILL HAD BEEN ISSUED, THE ERROR WAS CORRECTED AND THE CITY DID NOT ACT IMPROPERLY (SECOND DEPT).

The Second Department determined petitioner's challenge to the city water bills was properly deemed time-barred. Petitioner argued that the city should be estopped from taking advantage of the four-year statute because of a delay in correcting an inaccurate bill:

The petitioner's contention that DEP and the Water Board should be estopped from applying the four-year limitations period is without merit. ” The doctrine of estoppel will be applied against governmental agencies only in exceptional cases'” … , such as where there is fraud, misrepresentation, or other affirmative misconduct upon which the other party relies to its detriment… . “Generally, the doctrine of estoppel is not available against a governmental agency to prevent it from discharging its statutory duties, even when the results are harsh” … . Here, the Water Board was performing its statutory duties in, inter alia, establishing, charging, collecting, and enforcing payment for the use of the water and sewer systems (see Public Authorities Law § 1045-f[9]). Although an error had been made resulting in the petitioner being over-billed from June 2000 to April 2015, DEP corrected the error and credited the accounts of the 10 subject properties to the extent allowable under applicable law and the Water Board's rate schedule …. The petitioner failed to demonstrate any improper conduct on the part of DEP or the Water Board that would warrant the application of the doctrine of estoppel. Matter of Maimonides Med. Ctr. v New York City Water Dept., 2018 NY Slip Op 06094, Second Dept 9-19-18

MUNICIPAL LAW (CIVIL PROCEDURE, ESTOPPEL, CITY WAS NOT ESTOPPED FROM ASSERTING THE STATUTE OF LIMITATIONS DEFENSE TO A CHALLENGE TO CITY WATER BILLS, ALTHOUGH AN INACCURATE BILL HAD BEEN ISSUED, THE ERROR WAS CORRECTED AND THE CITY DID NOT ACT IMPROPERLY (SECOND DEPT))/CIVIL PROCEDURE (MUNICIPAL LAW, ESTOPPEL, CITY WAS NOT ESTOPPED FROM ASSERTING THE STATUTE OF LIMITATIONS DEFENSE TO A CHALLENGE TO CITY WATER BILLS, ALTHOUGH AN INACCURATE BILL HAD BEEN ISSUED, THE ERROR WAS CORRECTED AND THE CITY DID NOT ACT IMPROPERLY (SECOND DEPT))/ESTOPPEL (MUNICIPAL LAW, CIVIL PROCEDURE, ESTOPPEL, CITY WAS NOT ESTOPPED FROM ASSERTING THE STATUTE OF LIMITATIONS DEFENSE TO A CHALLENGE TO CITY WATER BILLS, ALTHOUGH AN INACCURATE BILL HAD BEEN ISSUED, THE ERROR WAS CORRECTED AND THE CITY DID NOT ACT IMPROPERLY (SECOND DEPT))/WATER BILLS (CIVIL PROCEDURE, ESTOPPEL, CITY WAS NOT ESTOPPED FROM ASSERTING THE STATUTE OF LIMITATIONS DEFENSE TO A CHALLENGE TO CITY WATER BILLS, ALTHOUGH AN INACCURATE BILL HAD BEEN ISSUED, THE ERROR WAS CORRECTED AND THE CITY DID NOT ACT IMPROPERLY (SECOND DEPT))

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ABUTTING PROPERTY OWNERS AND CITY NOT LIABLE FOR A LAMP POST BASE IN THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED, THERE WAS, HOWEVER, A QUESTION OF FACT WHETHER CON ED INSTALLED THE BASE AND WAS THEREFORE LIABLE (SECOND DEPT).

The Second Department determined the abutting property owners (Lomangino and Joro) and the city were entitled to summary judgment in this sidewalk slip and fall case. The raised concrete with bolts coming out of it, over which plaintiff allegedly tripped, was the base of a lamp post which was never replaced. The object was not part of the sidewalk, so the property owners were not required to maintain it. The city did not have written notice of the defect, so it was not liable. Con Ed, however, was not entitled to summary judgment because it submitted Lomangino's deposition in which he testified Con Ed had installed the object:

Lomangino and Joro established, prima facie, that the defect upon which the plaintiff tripped was not part of the sidewalk within the meaning of Administrative Code of the City of New York § 7-210… . Lomangino and Joro also established that Lomangino did not create the allegedly dangerous condition, that the condition was not the result of his negligent repair, and that Lomangino did not make any special use of the subject area … . …

The plaintiff also contends that the Supreme Court erred in granting that branch of the City defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them because (1) the prior written notice law is inapplicable, and (2) there are triable issues of fact as to whether the City defendants created the defective condition by knocking down the former lamppost during snowplow operations in the winter of 1998. “Administrative Code of the City of New York § 7-201(c) limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location”… . Contrary to the plaintiff's contention, the prior written notice rule includes “any encumbrances” or “attachments” to the sidewalk (Administrative Code § 7-201[c][2]), and thus encompasses the lamppost foundation at issue here … . Madonia v City of New York, 2018 NY Slip Op 06088, Second Dept 9-19-18

NEGLIGENCE (ABUTTING PROPERTY OWNERS AND CITY NOT LIABLE FOR A LAMP POST BASE IN THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED, THERE WAS, HOWEVER, A QUESTION OF FACT WHETHER CON ED INSTALLED THE BASE AND WAS THEREFORE LIABLE (SECOND DEPT))/SLIP AND FALL (ABUTTING PROPERTY OWNERS AND CITY NOT LIABLE FOR A LAMP POST BASE IN THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED, THERE WAS, HOWEVER, A QUESTION OF FACT WHETHER CON ED INSTALLED THE BASE AND WAS THEREFORE LIABLE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, ABUTTING PROPERTY OWNERS AND CITY NOT LIABLE FOR A LAMP POST BASE IN THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED, THERE WAS, HOWEVER, A QUESTION OF FACT WHETHER CON ED INSTALLED THE BASE AND WAS THEREFORE LIABLE (SECOND DEPT))/MUNICIPAL LAW (SIDEWALKS, SLIP AND FALL, ABUTTING PROPERTY OWNERS AND CITY NOT LIABLE FOR A LAMP POST BASE IN THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED, THERE WAS, HOWEVER, A QUESTION OF FACT WHETHER CON ED INSTALLED THE BASE AND WAS THEREFORE LIABLE (SECOND DEPT))/UTILITIES (SLIP AND FALL, SIDEWALKS, ABUTTING PROPERTY OWNERS AND CITY NOT LIABLE FOR A LAMP POST BASE IN THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED, THERE WAS, HOWEVER, A QUESTION OF FACT WHETHER CON ED INSTALLED THE BASE AND WAS THEREFORE LIABLE (SECOND DEPT))

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TOWN DID NOT OWE A DUTY TO PLAINTIFF WHO WAS STRUCK BY A CAR CROSSING A STREET AFTER ATTENDING A TOWN FIREWORKS DISPLAY (SECOND DEPT).

The Second Department determined defendant town did not owe a duty to plaintiff who was struck by a car when crossing a county road after attending a town fireworks display:

On the evening of July 17, 2012, the infant plaintiffs attended a concert and fireworks show held by the Town of Oyster Bay in a Town park. The infant plaintiffs allegedly were injured when they were struck by a car while crossing Merrick Road in the Town, at a site where there was neither a crosswalk nor any traffic control devices. The infant plaintiffs and their father commenced this action to recover damages for the personal injuries sustained by the infant plaintiffs and for loss of services on behalf of their father, against, among others, the Town. …

“In any negligence action, the threshold issue before the court is whether the defendant owed a legally recognized duty to the plaintiff” … . “The existence and scope of an alleged tortfeasor’s duty is, in the first instance, a legal question for determination by the courts” …  Under the particular circumstances of this case, the Town established, prima facie, that it owed no duty to the infant plaintiffs once they left Town property and decided to cross Merrick Road, which is owned by the County … . Janas v Town of Oyster Bay, 2018 NY Slip Op 06086, Second Dept 9-19-18

NEGLIGENCE (TOWN DID NOT OWE A DUTY TO PLAINTIFF WHO WAS STRUCK BY A CAR CROSSING A STREET AFTER ATTENDING A TOWN FIREWORKS DISPLAY (SECOND DEPT))/MUNICIPAL LAW (TOWN DID NOT OWE A DUTY TO PLAINTIFF WHO WAS STRUCK BY A CAR CROSSING A STREET AFTER ATTENDING A TOWN FIREWORKS DISPLAY (SECOND DEPT))/TRAFFIC ACCIDENTS (TOWN DID NOT OWE A DUTY TO PLAINTIFF WHO WAS STRUCK BY A CAR CROSSING A STREET AFTER ATTENDING A TOWN FIREWORKS DISPLAY (SECOND DEPT))/PEDESTRIANS  (TOWN DID NOT OWE A DUTY TO PLAINTIFF WHO WAS STRUCK BY A CAR CROSSING A STREET AFTER ATTENDING A TOWN FIREWORKS DISPLAY (SECOND DEPT))

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DEPARTMENT OF AGRICULTURE’S RULE PROHIBITING DEPARTMENT INSPECTORS FROM RUNNING FOR PUBLIC OFFICE IS NOT AN UNCONSTITUTIONAL RESTRICTION OF FREE SPEECH (CT APP).

The Court of Appeals, in a one-sentence memorandum, over a two-judge dissent, determined that the Department of Agriculture's regulation which prohibits employees responsible for inspecting agricultural facilities (like milk plants) from seeking public office (i.e., a county legislator) was not an unconstitutional restriction of free speech. Matter of Spence v New York State Dept. of Agric. & Mkts., 2018 NY Slip Op 06071, CtApp 9-18-18

CONSTITUTIONAL LAW (DEPARTMENT OF AGRICULTURE'S RULE PROHIBITING DEPARTMENT INSPECTORS FROM RUNNING FOR PUBLIC OFFICE IS NOT AN UNCONSTITUTIONAL RESTRICTION OF FREE SPEECH (CT APP))/ELECTION LAW (DEPARTMENT OF AGRICULTURE'S RULE PROHIBITING DEPARTMENT INSPECTORS FROM RUNNING FOR PUBLIC OFFICE IS NOT AN UNCONSTITUTIONAL RESTRICTION OF FREE SPEECH (CT APP))/MUNICIPAL LAW (DEPARTMENT OF AGRICULTURE'S RULE PROHIBITING DEPARTMENT INSPECTORS FROM RUNNING FOR PUBLIC OFFICE IS NOT AN UNCONSTITUTIONAL RESTRICTION OF FREE SPEECH (CT APP))/EMPLOYMENT LAW (DEPARTMENT OF AGRICULTURE'S RULE PROHIBITING DEPARTMENT INSPECTORS FROM RUNNING FOR PUBLIC OFFICE IS NOT AN UNCONSTITUTIONAL RESTRICTION OF FREE SPEECH (CT APP))/AGRICULTURE, DEPARTMENT OF (DEPARTMENT OF AGRICULTURE'S RULE PROHIBITING DEPARTMENT INSPECTORS FROM RUNNING FOR PUBLIC OFFICE IS NOT AN UNCONSTITUTIONAL RESTRICTION OF FREE SPEECH (CT APP))

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STUDENT WALKING HOME FROM SCHOOL STRUCK BY A CAR, SUIT AGAINST SCHOOL BOARD AND MUNICIPALITY PROPERLY DISMISSED, NO SPECIAL RELATIONSHIP WITH MUNICIPALITY, NO DUTY TO SUPERVISE AFTER DISMISSAL FROM SCHOOL (SECOND DEPT).

The Second Department determined plaintiff-student’s action against the school board and municipality stemming from the student’s being struck by a car crossing a street after school was properly dismissed. No crossing guard was provided for the street where the student crossed, but a crossing guard was routinely provided  for a street a block away and that guard was out sick on the day of the accident. No special relationship with the municipality was demonstrated. Because the student had been dismissed from the school, the negligent supervision cause of action was not viable:

A municipal defendant is immune from negligence claims arising from the performance of its governmental functions unless the injured person can establish a special relationship with the municipal defendant … . The elements of a special relationship based on a voluntary assumption of a duty are “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) the injured party’s justifiable reliance on the municipality’s affirmative undertaking” … . …

The municipal defendants’ duty was limited to providing a crossing guard at the intersection of 101st Street and Seaview Avenue, and did not extend to the intersection of 100th Street and Seaview Avenue, where no crossing guard was assigned … . Further, the municipal defendants established, prima facie, that the failure of having a crossing guard at the intersection of 101st Street and Seaview Avenue was not a proximate cause of the injuries allegedly sustained by the infant plaintiff in this case … . …

The municipal defendants also established their prima facie entitlement to judgment as a matter of law dismissing the negligent supervision cause of action. Their submissions demonstrated that the accident occurred after the infant plaintiff was dismissed from school … , and that they did not release the infant plaintiff into a foreseeably hazardous setting that they had a hand in creating … . Ade v City of New York, 2018 NY Slip Op 05993, Second Dept 8-12-18

EDUCATION-SCHOOL LAW (NEGLIGENCE, STUDENT WALKING HOME FROM SCHOOL STRUCK BY A CAR, SUIT AGAINST SCHOOL BOARD AND MUNICIPALITY PROPERLY DISMISSED, NO SPECIAL RELATIONSHIP WITH MUNICIPALITY, NO DUTY TO SUPERVISE AFTER DISMISSAL FROM SCHOOL (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, STUDENT WALKING HOME FROM SCHOOL STRUCK BY A CAR, SUIT AGAINST SCHOOL BOARD AND MUNICIPALITY PROPERLY DISMISSED, NO SPECIAL RELATIONSHIP WITH MUNICIPALITY, NO DUTY TO SUPERVISE AFTER DISMISSAL FROM SCHOOL (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, MUNICIPAL LAW, STUDENT WALKING HOME FROM SCHOOL STRUCK BY A CAR, SUIT AGAINST SCHOOL BOARD AND MUNICIPALITY PROPERLY DISMISSED, NO SPECIAL RELATIONSHIP WITH MUNICIPALITY, NO DUTY TO SUPERVISE AFTER DISMISSAL FROM SCHOOL (SECOND DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, STUDENT WALKING HOME FROM SCHOOL STRUCK BY A CAR, SUIT AGAINST SCHOOL BOARD AND MUNICIPALITY PROPERLY DISMISSED, NO SPECIAL RELATIONSHIP WITH MUNICIPALITY, NO DUTY TO SUPERVISE AFTER DISMISSAL FROM SCHOOL (SECOND DEPT))/TRAFFIC ACCIDENTS (NEGLIGENCE, STUDENT WALKING HOME FROM SCHOOL STRUCK BY A CAR, SUIT AGAINST SCHOOL BOARD AND MUNICIPALITY PROPERLY DISMISSED, NO SPECIAL RELATIONSHIP WITH MUNICIPALITY, NO DUTY TO SUPERVISE AFTER DISMISSAL FROM SCHOOL (SECOND DEPT))/PEDESTRIANS (NEGLIGENCE, STUDENT WALKING HOME FROM SCHOOL STRUCK BY A CAR, SUIT AGAINST SCHOOL BOARD AND MUNICIPALITY PROPERLY DISMISSED, NO SPECIAL RELATIONSHIP WITH MUNICIPALITY, NO DUTY TO SUPERVISE AFTER DISMISSAL FROM SCHOOL (SECOND DEPT))

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LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint seeking a declaration that plaintiff is the owner, by adverse possession, of land adjacent to municipal railway tracks states a cause of action. The court explained that land held by a municipality in a proprietary capacity, as opposed to a governmental capacity, is not immune from adverse possession:

Although a municipality cannot lose title through adverse possession to property which it owns in its governmental capacity, or which has been made inalienable by statute… , when a municipality holds real property in its proprietary capacity, there is no immunity against adverse possession … . Here, the [municipality] did not conclusively establish that the property is not subject to adverse possession on the basis of governmental immunity. Mazzei v Metropolitan Transp. Auth., 2018 NY Slip Op 06007, Second Dept 9-12-18

MUNICIPAL LAW (LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT))/REAL PROPERTY LAW (ADVERSE POSSESSION, MUNICIPAL LAW, (LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT))/IMMUNITY (MUNICIPAL LAW, ADVERSE POSSESSION, LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT))/ADVERSE POSSESSION (MUNICIPAL LAW, ADVERSE POSSESSION, LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT))/PROPRIETARY CAPACITY (MUNICIPAL LAW, ADVERSE POSSESSION, (LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT))

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN PLAINTIFF FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a ACTION SHOULD NOT HAVE BEEN GRANTED (CT APP).

The Court of Appeals, in a brief memorandum decision with no discussion of the facts, determined the defendant's motion for summary judgment in this General Municipal Law 205-a action by a firefighter should not have been granted:

With respect to the General Municipal Law § 205-a cause of action, defendant's submissions of a certificate of occupancy and an expert affidavit that did not sufficiently respond to plaintiffs' General Municipal Law § 205-a claim were insufficient, without more, to meet its prima facie burden as the party moving for summary judgment (see Powers v 31 E 31 LLC, 24 NY3d 84, 93 [2014]). Viselli v Riverbay Corp., 2018 NY Slip Op 05968, CtApp 9-6-18

MUNICIPAL LAW (DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN PLAINTIFF FIREFIGHTER'S GENERAL MUNICIPAL LAW 205-a ACTION SHOULD NOT HAVE BEEN GRANTED (CT APP))/NEGLIGENCE (MUNICIPAL LAW, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN PLAINTIFF FIREFIGHTER'S GENERAL MUNICIPAL LAW 205-a ACTION SHOULD NOT HAVE BEEN GRANTED (CT APP))/FIREFIGHTERS (MUNICIPAL LAW, NEGLIGENCE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN PLAINTIFF FIREFIGHTER'S GENERAL MUNICIPAL LAW 205-a ACTION SHOULD NOT HAVE BEEN GRANTED (CT APP))

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ALTHOUGH PLAINTIFF TURNED RIGHT INTO DEFENDANT DRIVER’S PATH AT AN INTERSECTION, DEFENDANT DRIVER DID NOT DEMONSTRATE FREEDOM FROM FAULT AND DEFENDANT TOWN DID NOT DEMONSTRATE FOLIAGE OBSTRUCTING A STOP SIGN DID NOT CONTRIBUTE TO THE ACCIDENT, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver and municipality's motions for summary judgment in this intersection accident case should not have been granted. Apparently plaintiff made a right turn at an intersection into the path of defendant driver, Ayers. According to Ayers, plaintiff did not stop at the stop sign before turning. Plaintiff alleged foliage obscured the stop sign:

The driver defendants failed to eliminate triable issues of fact as to whether Ayers contributed to the happening of the accident. In particular, Ayers testified at his deposition that he was traveling 40 miles per hour as he approached the intersection, and that although nothing obstructed his view of the intersection, he did not see the plaintiff's vehicle until he was one car length from the intersection. Further, Ayers could not say whether he took any evasive action to avoid the collision. Under the circumstances, it cannot be said as a matter of law that Ayers used reasonable care to avoid the accident … ….

Contrary to the Town's contention, there is evidence in the record that the foliage which allegedly obscured the stop sign was located within the right-of-way of a Town road. …

The Town further failed to eliminate triable issues of fact as to whether any such obstruction of the stop sign was a proximate cause of the accident. “Such proximate cause may be found only where it is shown that it was the very [obstruction] of the stop sign . . . which rendered the driver[ ] unaware of the need to stop before proceeding across the intersection'”… . Where the driver “had all the warning, all the notice of danger, that a stop sign would have afforded,” there is no basis for finding that the obstruction of a sign caused the driver “to do anything other than [he or] she would have done had it been present” … .

The Town failed to demonstrate, prima facie, that despite the obstructed stop sign, the plaintiff, who was lost in an unfamiliar area, “had all the warning, all the notice of danger, that a stop sign would have afforded”… . In particular, the Town presented no definitive evidence of either the plaintiff's knowledge of the need to stop at the intersection, or conditions necessitating that she bring her vehicle to a complete stop prior to entering the intersection. Viewing the record evidence in the light most favorable to the plaintiff, and resolving all reasonable inferences in her favor … , the Town failed to eliminate issues of fact as to whether the obstruction of the stop sign contributed, to some degree, to the happening of the accident. Rivera v Town of Wappinger, 2018 NY Slip Op 05953, Second Dept 8-29-18

NEGLIGENCE (ALTHOUGH PLAINTIFF TURNED RIGHT INTO DEFENDANT DRIVER'S PATH AT AN INTERSECTION, DEFENDANT DRIVER DID NOT DEMONSTRATE FREEDOM FROM FAULT AND DEFENDANT TOWN DID NOT DEMONSTRATE FOLIAGE OBSTRUCTING A STOP SIGN DID NOT CONTRIBUTE TO THE ACCIDENT, DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (ALTHOUGH PLAINTIFF TURNED RIGHT INTO DEFENDANT DRIVER'S PATH AT AN INTERSECTION, DEFENDANT DRIVER DID NOT DEMONSTRATE FREEDOM FROM FAULT AND DEFENDANT TOWN DID NOT DEMONSTRATE FOLIAGE OBSTRUCTING A STOP SIGN DID NOT CONTRIBUTE TO THE ACCIDENT, DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (TRAFFIC ACCIDENTS, ALTHOUGH PLAINTIFF TURNED RIGHT INTO DEFENDANT DRIVER'S PATH AT AN INTERSECTION, DEFENDANT DRIVER DID NOT DEMONSTRATE FREEDOM FROM FAULT AND DEFENDANT TOWN DID NOT DEMONSTRATE FOLIAGE OBSTRUCTING A STOP SIGN DID NOT CONTRIBUTE TO THE ACCIDENT, DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM ON THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, over a partial dissent, reversing Supreme Court, determined that the Real Estate Board of New York (REBNY) had standing to challenge a Local Law which placed a two-year moratorium on the conversion of hotels to condominiums or other residential uses. The court further determined that the REBNY did not have standing to challenge the statute under the State Environmental Quality Review Act (SEQRA). The REBNY alleged that 29 of its members owned hotels subject to the law:

Owners of real property who are subjected to a new zoning classification or other use restriction are “presumptively affected by the change” and “therefore technically have standing” to assert claims … .

Accepted as true for purposes of these CPLR 3211 motions, REBNY’s assertion that its member hotel owners are currently negatively affected by the moratorium is sufficient to establish standing in the plenary action and in the article 78 proceeding under ULURP [the City Charter’s Uniform Land Use Review Process] … . * * *

REBNY’s claimed environmental harm is nothing more than economic harm (i.e., the reduction in property values, the loss of business opportunities and the added expense of applying for a waiver under Local Law 50). REBNY’s own filings reflect that the organization’s constitution mentions the environment only once, and only insofar as the environment relates to economic impact. The affidavit by REBNY’s president does not salvage REBNY’s standing argument. The president claims that “SEQRA is a concern” for all REBNY members in “proximity” to the hotels due to potential impacts on traffic, noise, air quality, waste disposal and demand for public services. This argument … fails to establish injury separate and apart from injury to the general public … . Matter of Real Estate Bd. of N.Y., Inc. v City of New York, 2018 NY Slip Op 05906, First Dept 8-23-18

REAL PROPERTY LAW (THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT))/MUNICIPAL LAW  (THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT))/CIVIL PROCEDURE (STANDING, THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT))/ENVIRONMENTAL LAW  (THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT)).STATE ENVIRONMENTAL QUALITY REVIEW ACT  (THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT))/LAND USE (THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT))/HOTELS  (THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT))/CORPORATION LAW (THE REAL ESTATE BOARD OF NEW YORK, WHOSE MEMBERS OWN HOTELS, HAD STANDING TO CONTEST A LOCAL LAW PLACING A TWO-YEAR MORATORIUM OF THE CONVERSION OF HOTELS TO RESIDENTIAL UNITS, THE BOARD DID NOT HAVE STANDING TO CHALLENGE THE LAW UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, HOWEVER, BECAUSE IT DID NOT ALLEGE ENVIRONMENTAL HARM AND DID NOT ALLEGE HARM SEPARATE AND APART FROM INJURY TO THE GENERAL PUBLIC (SECOND DEPT))

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AS A MATTER OF PUBLIC POLICY, AN ACTION ALLEGING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CANNOT BE BROUGHT AGAINST A MUNICIPALITY (SECOND DEPT).

The Second Department, in an action for false arrest and related causes of action, all of which were dismissed, noted that an action for intentional infliction of emotional distress cannot, as a matter of public policy, be brought against a municipality:

… [W]e agree with the Supreme Court's determination granting that branch of the defendants' motion which was to dismiss the cause of action to recover damages for intentional infliction of emotional distress with respect to the City, as “public policy bars claims sounding in intentional infliction of emotional distress against a governmental entity”… . Moreover, the defendants established their prima facie entitlement to judgment as a matter of law dismissing that cause of action insofar as asserted against [the arresting officer] by establishing that [the officer]i did not engage in extreme or outrageous conduct … . Ball v Miller, 2018 NY Slip Op 05813, Second Dept 8-22-18

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (MUNICIPAL LAW, AS A MATTER OF PUBLIC POLICY, AN ACTION ALLEGING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CANNOT BE BROUGHT AGAINST A MUNICIPALITY (SECOND DEPT))/MUNICIPAL LAW (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AS A MATTER OF PUBLIC POLICY, AN ACTION ALLEGING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CANNOT BE BROUGHT AGAINST A MUNICIPALITY (SECOND DEPT))

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