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THE TREBLE DAMAGES PROVISION IN RPAPL 861 FOR THE IMPROPER TRIMMING OR REMOVAL OF TREES FROM ANOTHER’S PROPERTY IS PUNITIVE IN NATURE; HERE THE TOWN TRIMMED AND REMOVED TREES FROM PLAINTIFF’S LAND; BECAUSE A MUNICIPALITY CANNOT BE ASSESSED PUNITIVE DAMAGES, THE TREBLE DAMAGES AWARD WAS REVERSED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the treble damages provision in RPAPL 861 is punitive in nature and therefore cannot be imposed upon a municipality. Here the town removed and trimmed trees along a roadway. Plaintiff, the owner of the land abutting the road, sued and was awarded treble damages. The Appellate Division had concluded the treble damages provision was compensatory, not punitive:

RPAPL 861 provides that “[i]f any person, without the consent of the owner thereof, cuts, removes, injures or destroys . . . tree[s] or timber on the land of another . . . an action may be maintained against such person for treble the stumpage value of the tree or timber or two hundred fifty dollars per tree, or both and for any permanent and substantial damage caused to the land or the improvements thereon . . . .” … .

* * * Treble damages are the default measure for any recovery, but the statute also provides that “if the defendant establishes by clear and convincing evidence, that when the defendant committed the violation, he or she had cause to believe the land was his or her own, or that he or she had an easement or right of way across such land which permitted such action, or he or she had a legal right to harvest such land, then he or she shall be liable for the stumpage value or two hundred fifty dollars per tree, or both . . . .” …

In other words, the defendant’s good faith “does not insulate that person from the imposition of statutory damages, but merely saves him or her from having to pay the plaintiff treble damages” .. . * * *

The “good faith” provision in RPAPL 861 demonstrates the punitive nature of the treble damages available under the statute. Matter of Rosbaugh v Town of Lodi, 2025 NY Slip Op 01406, CtApp 3-13-25

Practice Point: Here the statute allowed treble damages for the removal of trees only if the removal was not in good faith. Therefore the treble damages provision was punitive in nature. Punitive damages cannot be assessed against a municipality, here the town which removed the trees.​

 

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THE RECORD DOES NOT DEMONSTRATE THAT THE TOWN PLANNING BOARD TOOK THE REQUIRED “HARD LOOK” AT THE EFFECTS OF THE EMISSION OF HAZARDOUS AIR POLLUTANTS [HAPS] FROM THE PROPOSED “BIOSOLIDS REMEDIATION AND FERTILIZER PROCESSING FACILITY;” THE NEGATIVE DECLARATION WAS THEREFORE DEEMED ARBITRARY AND CAPRICIOUS (THIRD DEPT). ​

The Third Department, reversing Supreme Court’s dismissal of the Article 78 petition contesting the town planning board’s “negative declaration” regarding a proposed “biosolids remediation and fertilizer processing facility.” The record did not demonstrate that the planning board took the required “hard look” at the effects of the emissions from the facility. Instead the board relied on proposed mitigation measures overseen by the Department of Environmental Conservation (DEC):

… [T]he planning board failed to take a hard look at the project’s potential adverse impacts on air, resulting in an arbitrary and capricious negative declaration (see CPLR 7803 [3]). The voluminous record includes the planning board’s meeting minutes, recordings and other documents, all of which are devoid of evidence that the planning board “thoroughly analyze[d]” the project’s generation of 12.7 tons of designated HAPs [hazardous air pollutants] before it issued a negative declaration … . Instead, the planning board appears to have determined that, because the project’s HAP emissions were “mitigated” to fall below the 25-ton threshold for a major source, then emissions at 50% of that rate were also mitigated … . Not only is this conclusion “without sound basis in reason” — it is not clear why the planning board decided that mitigating the impact of 25 tons of HAPs would do the same for 12.7 tons of HAPs — but also “without . . . regard to the facts,” as the record confirms that the planning board never considered the potential impacts of the project’s HAP emissions at al … . * * *

… [T]he planning board’s unexplained deference to DEC’s permitting standards and periodic monitoring with respect to the impacts of the project’s emissions on air quality does not satisfy its SEQRA obligations, resulting in an arbitrary and capricious negative declaration (see CPLR 7803 [3] …). Matter of Clean Air Action Network of Glens Falls, Inc. v Town of Moreau Planning Bd., 2025 NY Slip Op 01020, Third Dept 2-20-25

Practice Point: The lead agency for a State Environmental Quality Review Act (SEQRA) declaration cannot avoid a “hard look” at the potential hazardous air pollutants (HAPS} which will be produced by a proposed facility by simply deferring to the Department of Environmental Conservation’s (DEC’s) permitting and monitoring of the facility.

 

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A MUNICIPALITY OWES A CHILD IT PLACES IN FOSTER CARE A SPECIAL DUTY SUCH THAT THE MUNICIPALITY CAN BE LIABLE FOR A NEGLIGENT PLACEMENT WHICH LEADS TO FORESEEABLE HARM TO THE CHILD (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, over a two-judge dissenting opinion, determined a municipality owes a child placed in foster care a special duty, such that the municipality, although performing a governmental function, can be liable for negligent placement of a child:

Today we hold that municipalities owe a duty of care to the children the municipalities place in foster homes because the municipalities have assumed custody of those children. As a result, we reverse the decision of the Appellate Division.

Plaintiff, formerly a child in foster care, commenced this action pursuant to the Child Victims Act (see CPLR 214-g) against defendant Cayuga County and “Does 1-10,” who she alleged were “persons or entities with responsibilities for [p]laintiff’s safety, supervision and/or placement in foster care.” According to the complaint, the County placed plaintiff in foster care in 1974, when she was three months old. While in the foster home selected by the County, plaintiff allegedly suffered horrific abuse. Plaintiff alleged that her foster parent sexually abused her over the course of approximately seven years, beginning when she was 18 months old and continuing until she was eight years old. The foster parent allegedly coerced plaintiff’s compliance with the sexual abuse by inflicting severe physical abuse, resulting in plaintiff sustaining broken bones and a head wound. * * *

By assuming legal custody over the foster child, the applicable government official steps in as the sole legal authority responsible for determining who has daily control over the child’s life … . We thus hold that a municipality owes a duty to a foster child over whom it has assumed legal custody to guard the child from “foreseeable risks of harm” arising from the child’s placement with the municipality’s choice of foster parent … . Weisbrod-Moore v Cayuga County, 2025 NY Slip Op 00903, CtApp 2-18-25

Practice Point: A municipality generally is not liable for injury resulting from the exercise of a governmental function absent a special duty owed to the injured party. Resolving a split of authority, here the Court of Appeals held a municipality owes a special duty to a child it places in foster care.

 

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THE 2024 AMENDMENTS WHICH SET A STANDARD FOR DETERMINING CLAIMS ALLEGING A FRAUDULENT SCHEME TO DEREGULATE A RENT-STABILIZED APARTMENT APPLY TO CLAIMS PENDING AT THE TIME OF ENACTMENT AND ARE CONSTITUTIONAL (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Connolly, determined the 2024 amendments (the “chapter amendments”), which set forth a standard for determining claims alleging a fraudulent scheme to deregulate a rent-stabilized apartment, applied retroactively to claims pending when the amendments were enacted and are constitutional:

First, we must determine whether so much of the chapter amendments as set forth the standard for determining a fraudulent scheme to deregulate a rent-stabilized apartment unit applies to actions such as this one, which were commenced before the effective date of the chapter amendments but were pending before a court on the effective date. We hold that it does.

Next, we must determine whether the defendant established that so much of the chapter amendments as set forth the standard for determining a fraudulent scheme to deregulate an apartment unit is unconstitutional on its face or whether it would be unconstitutional to apply that portion of the chapter amendments to this action. We hold that the defendant did not establish that the relevant portion of the chapter amendments is unconstitutional, either on its face or as applied in this action.

Finally, applying the standard set forth in the chapter amendments, we must determine whether the plaintiffs met their prima facie burden of demonstrating that the defendant engaged in a fraudulent scheme to deregulate the subject apartment units such that the formula set forth in Rent Stabilization Code (9 NYCRR) §§ 2522.6(b)(3) and 2526.1(g) (hereinafter the default formula) should be used to calculate the legal regulated rent and any rent overcharges. We hold that the plaintiffs did not meet their prima facie burden. Gomes v Vermyck, LLC, 2025 NY Slip Op 00849, Second Dept 2-13-25

 

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NYPD PROPERLY REQUIRED TO RELEASE DOCUMENTS RELATING TO ITS USE OF SURVEILLANCE TECHNOLOGIES INCLUDING FACIAL RECOGNITION, IRIS RECOGNITION AND MOBILE X-RAY TECHNOLOGIES (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, rejected the New York City Police Department’s (NYPD’s) argument that the FOIL request for documents relating to the NYPD’s use of surveillance technologies (such as facial recognition, iris recognition and mobile x-ray technology) was unduly burdensome:

An overarching problem with the NYPD’s evidence of burdensomeness, which consisted entirely of [NYPD attorney] Murtagh’s testimony, is that it is nonspecific. To begin, Murtagh did not set forth the number of SPEX [special expense purchase] Contracts that are encompassed by the request. He also did not set out an approximate number of pages that contain potentially exempt information. * * *

The NYPD’s assertion of the burdensomeness exemption also rests on the necessity of reviewing approximately 165,000 pages of hard-copy documents. While this is a considerable task, it is eased by Supreme Court’s determination that the production could go forward quarterly, on a rolling basis. Additionally, the review is facilitated by the fact that the relevant documents are all in one place, and there is no need to search the NYPD’s precincts and departments. While Murtagh stated that only he and one colleague were qualified to review this universe of documents, he failed to explain why other NYPD employees could not be trained to do so. Finally, Public Officers Law § 89(3)(a) provides that an agency may use an “outside professional service to provide copying, programming or other services required to provide the copy.” Murtagh stated that the documents are too sensitive to be shown to an outside contractor. Again, he did not grapple with the POST Act’s [Public Oversight of Surveillance Technology (POST) Act’s] effect on the documents’ sensitivity. Assuming that some portions of the contract documents fall within FOIL’s exemptions, Murtagh did not explain why a nondisclosure agreement would be insufficient to protect the exempt portions of the documents. Matter of Legal Aid Socy. v Records Access Officer, 2025 NY Slip Op 00723, First Dept 2-6-25

Practice Point: Here the NYPD’s argument that the FOIL request for documents relating to the use of surveillance technologies was unduly burdensome was rejected.​

 

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HERE THE DEFENDANT TOWN DID NOT DEMONSTRATE AS A MATTER OF LAW THAT COMPLIANCE WITH THE NEW YORK VOTING RIGHTS ACT (NYVRA) WOULD FORCE THE TOWN TO VIOLATE THE EQUAL PROTECTION CLAUSE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Lasalle, reversing Supreme Court, determined the defendant town did not demonstrate as a matter of law that compliance with the New York Voting Rights Act (NYVRA) would force the town to violate the Equal Protection Clause of the 14th Amendment to the US Constitution:

On this appeal we are asked to decide whether the vote dilution provisions of the John R. Lewis Voting Rights Act of New York (L 2022, ch 226; hereinafter NYVRA), intended to ensure that a numerical minority’s voice is not removed from local government, facially violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (hereinafter the Equal Protection Clause) … . The defendants in this case, the Town of Newburgh and the Town Board of the Town of Newburgh (hereinafter the Town Board), lack the capacity to challenge the constitutionality of the NYVRA except to the extent that it forces them to violate the Equal Protection Clause. Since, on this record, the defendants failed to show as a matter of law that compliance with the NYVRA would force them to violate the Equal Protection Clause, we reverse the order of the Supreme Court. * * *

Here, the defendants contend that any change of its at-large electoral system to comply with the NYVRA would violate the Equal Protection Clause because it would be done with the express purpose of giving citizens statutorily grouped together by race greater electoral success than its at-large system, and that the NYVRA, unlike the FVRA, is not narrowly tailored to achieve a compelling governmental interest. * * *

However, race-based districting is only one of the possible remedies under the NYVRA; the NYVRA also contemplates remedies that do not sort voters based on race, such as such as ranked-choice voting, cumulative voting, limited voting, and the elimination of staggered terms (see Election Law §§ 17-204[3]; 17-206[5][a][ii],[iv] …). Clarke v Town of Newburgh, 2025 NY Slip Op 00518, Second Dept 1-30-25

Practice Point: Consult this decision for an in-depth analysis of whether the New York Voting Rights Act forces a political subdivision the violate the Equal Protection Clause in fashioning a remedy for an alleged violation of the NYVRA.

 

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THE DEFENDANT TOWN DID NOT MEET THE REQUIREMENTS OF THE NEW YORK VOTING RIGHTS ACT (NYVRA) AND WAS THEREFORE INELIGIBLE FOR THE 90-DAY “SAFE HARBOR” EXTENSION TO ADDRESS THE VIOLATION OF THE NYVRA ALLEGED BY PLAINTIFF-CITIZENS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers, determined that the defendant Town of Newburgh’s motion to dismiss the complaint alleging a violation of the New York Voting Rights Act (NYVRA) was properly denied. The so-called “safe harbor” provision of the NYVRA extends the time allowed for a town to address an alleged violation for 90 days. Here the Second Department held that the actions taken by the town were not sufficient to trigger the 90-day extension:

In a case of first impression, the central issue stated broadly is whether the contents of a resolution passed by a political subdivision pursuant to the New York Voting Rights Act (see Election Law § 17-206[7][b]), in which the political subdivision purported to affirm its intent to enact and implement a remedy to a potential voting rights violation, were sufficient to trigger the 90-day safe harbor provision of that statute. * * *

On January 26, 2024, a law firm representing the plaintiffs sent the Town a NYVRA notification letter, alleging that the Town’s use of an at-large method for electing the members of the Town Board violated the NYVRA by diluting the votes of Hispanic and African-American voters. * * *

… [T]he defendants’ interpretation of the NYVRA seems to prioritize prolonging the process, potentially to strategize their position, over the underlying intent and purpose of the statute. They interpret the NYVRA as requiring a political subdivision to do nothing more than pass a resolution reciting some of the language from the statute after spending 50 days deciding whether it is worthwhile to do so. Then, after passage of a contentless resolution that commits a political subdivision to do nothing unless it unilaterally decides that a NYVRA violation “may” exist, a political subdivision enjoys a 90-day immunity from suit, regardless of whether it does anything further and even when it has conclusively decided to take no further action. These positions are irreconcilable with both the text and the purpose of the NYVRA. For all of the foregoing reasons, the Supreme Court properly determined that the defendants failed to satisfy the safe harbor provision of Election Law § 17-206(7) … . Clarke v Town of Newburgh, 2025 NY Slip Op 00517, Second Dept 1-30-25

Practice Point: Consult this decision for a discussion of the criteria for a 90-day “safe harbor” extension to allow a town to address a complaint by citizens alleging violation of the New York Voting Rights Act.

 

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THERE IS A QUESTION OF FACT WHETHER THE “INSANITY” TOLL OF THE STATUTE OF LIMITATIONS APPLIES TO THIS ASSAULT AND FALSE ARREST ACTION AGAINST THE CITY AND POLICE OFFICERS; THE TOLL APPLIES WHEN PERSONS ARE UNABLE TO PROTECT THEIR LEGAL RIGHTS BECAUSE OF AN INABILITY TO FUNCTION IN SOCIETY (SECOND DEPT).

The Second Department remitted the matter for a determination whether the statute of limitations was tolled because of petitioner’s “insanity” in this assault and false arrest action against the city and police officers:

Pursuant to CPLR 208(a) “[i]f a person entitled to commence an action is under a disability because of . . . insanity at the time the cause of action accrues, and . . . the time otherwise limited [for commencing the action] is less than three years, the time shall be extended by the period of disability.” A toll pursuant to CPLR 208(a) does not toll the necessity of filing a timely notice of claim; rather, it tolls only the time in which to apply for leave to serve a late notice of claim … .

CPLR 208(a) provides no definition of the term “insanity” … . However, the Court of Appeals has concluded that the insanity tolling provision should be narrowly construed and is available “only [to] those individuals who are unable to protect their legal rights because of an over-all inability to function in society” … . “[T]he condition of an individual’s mental capabilities is largely a factual question” … . “The task of determining whether the tolling provision [of CPLR 208] applies ‘is a pragmatic one, which necessarily involves consideration of all surrounding facts and circumstances relevant to the claimant’s ability to safeguard his or her legal rights'” … .

Here, the record before us presents a question of fact as to whether the petitioner was “unable to protect [his] legal rights because of an over-all inability to function in society” during the relevant period, as well as the duration of the alleged insanity … . Matter of Sinclair v City of New York, 2025 NY Slip Op 00453, Second Dept 1-29-25

Practice Point: CPLR 208(a) provides an “insanity toll” of the statute of limitations for persons unable to protect their legal rights because of an inability to function in society.

 

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DESPITE THE COURT OF APPEALS RULING THAT THE INSURANCE LAW PROVISION REQUIRING UNINSURED MOTORIST COVERAGE DOES NOT APPLY TO POLICE VEHICLES, PLAINTIFF POLICE OFFICER, INJURED IN AN ACCIDENT WITH AN UNINSURED MOTORIST WHILE DRIVING HIS POLICE VEHICLE, WAS ENTITLED TO UNINSURED MOTORIST COVERAGE UNDER HIS OWN PERSONAL INSURANCE POLICY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dowling, determined that a police officer driving a police vehicle involved in an accident with an uninsured driver can seek uninsured motorist (UM/SUM) coverage under the officer’s personal insurance policy, notwithstanding the Court of Appeals ruling that “Insurance Law § 3420(f)—providing that all ‘motor vehicle’ insurance policies must contain uninsured motorist coverage— has no application to police vehicles” … :

In Matter of State Farm Mut. Auto. Ins. Co. v Fitzgerald (25 NY3d 799), the Court of Appeals held that “a police vehicle is not a ‘motor vehicle’ covered by a [supplementary uninsured/underinsured (hereinafter SUM) motorist] endorsement under Insurance Law § 3420(f)(2)(A)” (id. at 801). This appeal requires us to address, for the first time, whether Fitzgerald and Insurance Law § 3420(f)(2)(A) preclude the principal named insured under an automobile insurance liability policy that includes a SUM endorsement from receiving SUM coverage where he or she is injured in an automobile accident with an uninsured motor vehicle while occupying a police vehicle. We conclude that the named insured is not precluded from receiving SUM coverage under those circumstances, and reverse the order appealed from. * * *

… [T]he exclusion of police vehicles from the definition of “motor vehicle” under Insurance Law § 3240(f)(1) and (2) is not determinative of this particular proceeding. Matter of Esurance Ins. Co. v Burdeynyy, 2025 NY Slip Op 00445, Second Dept 1-29-25

Practice Point: Here a police officer driving his police vehicle was involved in an accident with an uninsured motorist. Although insurers of police vehicles are not required to include uninsured motorist coverage, that did not preclude the officer from uninsured motorist coverage under his own personal policy.

 

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A POLICE OFFICER DIRECTING TRAFFIC IS PERFORMING A GOVERNMENTAL FUNCTION REQUIRING THE EXERCISE OF DISCRETION; THE OFFICER AND THE CITY ARE THEREFORE IMMUNE FROM LIABLITY FOR A RELATED ACCIDENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the city defendants and defendant police officer (McMillan) were entitled to summary judgment in this traffic accident case. It was alleged that McMillan negligently directed the vehicle which struck plaintiff to enter the intersection. Because directing traffic is a governmental function requiring the exercise of discretion, the governmental function immunity doctrine controls:

… [T]he City defendants and McMillan established their prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action insofar as asserted against them irrespective of the conflicting evidence as to whether McMillan directed the driver of the vehicle into the intersection. Under the facts as alleged, if McMillan directed the driver of the vehicle into the intersection, McMillan’s action was discretionary and he and the City defendants are thus immune from liability under governmental function immunity … . If, on the other hand, McMillan was standing on the side of the road not directing any traffic, there was no negligent act and no basis for liability for him or the City defendants … . In opposition, the plaintiff failed to raise a triable issue of fact. Hershkovitz v Brown, 2025 NY Slip Op 00436, Second Dept 1-29-25

Practice Point: A police officer directing traffic is performing a governmental function requiring the exercise of discretion. The officer and the city are therefore immune from liability for a related traffic accident.

 

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