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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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CITY DEMONSTRATED IT DID NOT HAVE PRIOR WRITTEN NOTICE OF A POTHOLE WHICH PLAINTIFF BICYCLIST RAN OVER, DEFENDANTS’ SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined plaintiff bicyclist's suit against the city stemming from injury after running over a pothole should have been dismissed. The defendants established the city did not have prior written notice of the condition:

… [T]he defendants established the City's prima facie entitlement to judgment as a matter of law by demonstrating through, inter alia, DOT records, that the City did not have prior written notice of the condition alleged as required by the Administrative Code … and that the City did not affirmatively create the condition … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the City received prior written notice of the alleged condition. Although the plaintiff relied upon a map submitted by the Big Apple Pothole and Sidewalk Protection Corporation which had a straight line, indicating “[r]aised or uneven portion of sidewalk,” in the area where the plaintiff's accident occurred, the map did not give the City prior written notice of the pothole condition alleged by the plaintiff … . The plaintiff also failed to raise a triable issue of fact as to whether the City created the alleged condition through an affirmative act of negligence. Allen v City of New York, 2018 NY Slip Op 05811, Second Dept 8-22-18

NEGLIGENCE (MUNICIPAL LAW, CITY DEMONSTRATED IT DID NOT HAVE PRIOR WRITTEN NOTICE OF A POTHOLE WHICH PLAINTIFF BICYCLIST RAN OVER, DEFENDANTS' SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, CITY DEMONSTRATED IT DID NOT HAVE PRIOR WRITTEN NOTICE OF A POTHOLE WHICH PLAINTIFF BICYCLIST RAN OVER, DEFENDANTS' SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/BICYCLISTS (NEGLIGENCE, MUNICIPAL LAW, CITY DEMONSTRATED IT DID NOT HAVE PRIOR WRITTEN NOTICE OF A POTHOLE WHICH PLAINTIFF BICYCLIST RAN OVER, DEFENDANTS' SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/POTHOLES (NEGLIGENCE, MUNICIPAL LAW, CITY DEMONSTRATED IT DID NOT HAVE PRIOR WRITTEN NOTICE OF A POTHOLE WHICH PLAINTIFF BICYCLIST RAN OVER, DEFENDANTS' SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT).

The Second Department determined Supreme Court had, in effect, granted plaintiff's motion for reargument of his opposition to the city's motion for summary judgment and therefore the related order was appealable. The Second Department further determined it would hear the appeal, even though plaintiff's prior appeal of the original order had been abandoned rather than withdrawn. Plaintiff, a bicyclist, alleged he had been injured by a defect in the bicycle lane. The city demonstrated it did not have prior written notice of the defect. The Second Department rejected plaintiff's argument that the “special use” exception to the prior written notice requirement applied because the city did not derive a special benefit from the bicycle lanes unrelated to the public use:

“Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous roadway condition unless it has received prior written notice of the dangerous condition, or an exception to the prior written notice requirement applies” … . “Where the City establishes that it lacked prior written notice under [Administrative Code of City of NY § 7-201], the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality”… . The special use exception is reserved for situations where a municipality derives a special benefit from the property unrelated to the public use … .

It is undisputed that the City demonstrated, prima facie, that it lacked prior written notice of the alleged defect. It is further undisputed that the record contains no evidence that the City created the condition that allegedly caused the plaintiff's accident. The plaintiff contends that this case falls within the special use exception because bicycle lanes provide a special benefit to the City by “enhancing its status” and “attracting residents and tourists.” However, the plaintiff failed to demonstrate that the implementation of bicycle lanes on City roadways bestowed a special benefit upon the City unrelated to the public use or that it constituted a special use of the roadways … . Budoff v City of New York, 2018 NY Slip Op 05817, Second Dept 8-22-18

NEGLIGENCE (ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/CIVIL PROCEDURE (ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/APPEALS  (ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/SPECIAL USE EXCEPTION (ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT))

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LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT).

The First Department, over a dissent, determined the defendants-landlords had properly calculated a rent overcharge by going back four years from a date deemed to be when the tenants would have filed a rent overcharge complaint (none had been filed because the relevant law was unclear at the time):

Defendants chose May 1, 2010 as the date on which plaintiffs would be deemed to have filed a claim for overcharges, in the absence of any such claim having been filed, and then used these 2526.1(a) standards to fix the base date for determining the overcharge as May 1, 2006, the date four years before they undertook their review. Defendants then reduced plaintiffs' rent and forwarded payment to them for the overcharges so reflected. In June 2010 defendants filed registrations for the years 2006, 2007, 2008 and 2009 in accordance with these recalculations. Raden v W 7879, LLC, 2018 NY Slip Op 05799, First Dept 8-16-18

LANDLORD-TENANT (MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/CIVIL PROCEDURE (LANDLORD-TENANT, MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/CPLR 213-a (LANDLORD-TENANT, MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/RENT STABILIZATION LAW  (LANDLORD-TENANT, MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))

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WHERE THERE IS NO FRAUD ON THE LANDLORD’S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT).

The First Department, reversing the NYC Department of Housing and Community Renewal (DHCR), over an extensive two-justice dissent, determined the DHCR erred when it looked back more than for years from the date of the rent overcharge complaint to determine the base rent for calculating the amount of the overcharge. There was no dispute that the landlord was receiving J-51 tax benefits and was therefore subject to the Rent Stabilization Law (RSL), which had a four-year statute of limitations:

The primary question presented in this appeal is how to determine the proper rent on the base date. * * *

… [I]n the absence of evidence of fraud, this Court has declined to look back more than four years before the filing of the overcharge complaint to set the base date rent … .

In the case at bar, DHCR was not arbitrary and capricious in finding that landlord did not engage in a fraudulent scheme to evade the Rent Stabilization Law. As a consequence, DHCR was prohibited from looking at the unit's rental history before November 2, 2005 [four years before the overcharge complaint]. …

[The legislature] not only set a four-year limitations period, but it also explicitly barred any “examination of the rental history of the housing accommodation prior to the four-year period preceding the filing of a complaint” (RSL § 26-516[a][2]). The Court of Appeals has found that the purpose of the four-year limitations period is “to alleviate the burden on honest landlords to retain rent records indefinitely” … . The Court of Appeals has made what we have called a “limited exception” to the four-year limitations period in cases where landlords act fraudulently … . To expand this exception to landlords who have not engaged in fraud would create a much broader exception that would appear to negate the temporal limits contained in the Rent Stabilization Law and the CPLR. Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 2018 NY Slip Op 05797, First Dept 8-16-18

LANDLORD-TENANT (MUNICIPAL LAW, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/RENT STABILIZATION LAW  (LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/RENT OVERCHARGE  (MUNICIPAL LAW, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/CIVIL PROCEDURE (MUNICIPAL LAW, LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/CPLR 213-a (MUNICIPAL LAW, LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))

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