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ALTHOUGH THE NOTICE OF CLAIM IN THIS SLIP AND FALL ACTION AGAINST THE CITY WAS SERVED ONE DAY LATE, AND PLAINTIFF WAS SO NOTIFIED BY THE CITY, THE CITY ALSO INDICATED IN SEVERAL COMMUNICATIONS THAT IT WAS CONSIDERING THE CLAIM; THE CITY WAS THEREFORE EQUITABLY ESTOPPED FROM ASSERTING THE NOTICE OF CLAIM WAS NOT TIMELY SERVED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case against NYC, determined the city was equitably estopped from asserting the notice of claim was untimely served. Although the notice of claim was served one day after the 90-day deadline, and the city initially notified plaintiff that service was untimely, subsequent communication from the city indicated the claim was being considered:

The plaintiff’s submissions established that although the Comptroller sent the plaintiff a letter dated March 6, 2020, indicating that a notice of claim was not timely filed within 90 days from the date of occurrence, the Comptroller sent the plaintiff another letter, also dated March 6, 2020, acknowledging receipt of the notice of claim, which was assigned a claim number, and stating that “[w]e will do our best to investigate and, if possible, settle your claim.” That letter also stated that “if we are unable to resolve your claim, any lawsuit against the City must be started within one year and ninety days from the date of the occurrence,” without any reference to the claim being untimely … . Further, the plaintiff’s attorney averred that on March 21, 2021, the City sent a letter requesting certain documents from the plaintiff “to evaluate the claim for settlement purposes” and that the plaintiff’s attorney emailed the requested documents the following day. The plaintiff also submitted an email dated March 25, 2021, from Millicent Nicholas-Richards, Negotiation and Settlement Supervisor for the New York City Law Department, acknowledging receipt of the requested documents, and stating that “[w]e are reviewing” and that the plaintiff’s attorney would be contacted if any additional documents were needed. Thus, the plaintiff demonstrated that the defendants made representations that the plaintiff’s claim was under consideration for settlement and that the plaintiff did not need to take any action other than providing documents “for settlement purposes” or to commence an action against the City within one year and 90 days if a settlement was not possible. Under these circumstances, the plaintiff, who did not move to deem the notice of claim timely served or to extend the time to serve the notice of claim within the one year and 90 day limitations period, was “lulled . . . into sleeping on [his] rights to [his] detriment” … .Guo En Tan v City of New York, 2025 NY Slip Op 04161, Second Dept 7-16-25

Practice Point: The notice of claim in this slip and fall action against the city was served one day late. Communications from the city indicated the city was considering the claim. The deadline for making a motion for leave to serve and file a late notice of claim passed. At that point, the city was equitably estopped from asserting the notice of claim was not timely served as a defense to the action.​.

 

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CLAIMANT MADE AN APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM CONCERNING INJURIES INCCURRED WHEN WORKING FOR THE CITY; CLAIMANT WAS ENTITLED TO PRE-ACTION DISCOVERY TO ESTABLISH WHEN THE CITY GAINED ACTUAL KNOWLEDGE OF THE FACTS UNDERLYING THE CLAIM (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimant was entitled to pre-action discovery to support his allegation that the city had timely notice of his accident which would warrant leave to file a late notice of claim:

In determining whether to grant an application for leave to serve a late notice of claim, “the court must consider, inter alia, whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality” … . ” ‘While the presence or absence of any single factor is not determinative, one factor that should be accorded great weight is whether the [municipality] received actual knowledge of the facts constituting the claim in a timely manner’ ” … .

… In support of his application, claimant sought, inter alia, any incident reports concerning the accident and any correspondence between respondents concerning the accident. Claimant alleged that he told his employer about the incident five days after it occurred and believed that his employer notified the City of the accident at that time.

… Supreme Court abused its discretion in denying that part of his application seeking pre-action discovery (see CPLR 3102 [c]). Under the circumstances of this case, claimant demonstrated that pre-suit discovery is needed in support of his application for leave to serve a late notice of claim for the purpose of establishing when the City had actual knowledge of the facts constituting the claim … . Matter of Wisnowski v City of Buffalo, 2025 NY Slip Op 03886, Fourth Dept 6-27-25

Practice Point: When applying for leave to file a late notice of claim, demonstrating the municipality had actual knowledge of the facts underlying the claim within 90 days of the accident is crucial. Here the claimant alleged his employer told the city about the accident five days after it occurred. Claimant was entitled to pre-action discovery on that issue.​

 

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THE NEW YORK CITY LOCAL LAWS REFORMING THE NYC FIGHTING HOMELESSNES AND EVICTION PREVENTION SUPPLEMENT ARE NOT PREEMPTED BY THE NEW YORK STATE SOCIAL SERVICES LAW (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined that the local laws passed by the City Council modifying the New York City Fighting Homelessness and Eviction Prevention Supplement (FHEPS) were not preempted by the New York State Social Services Law. The opinion is comprehensive and too detailed to fairly summarize here:

[The] FHEPS reform laws were prompted by three conditions faced by the City: the rising number of evictions of residential tenants, a dramatic increase in the rate of homelessness, and an overburdened shelter system.  These laws were designed to broaden eligibility for City-funded rental assistance, and promote quantitatively and qualitatively greater assistance. Thus, the FHEPS reform laws increased the income eligibility threshold, eliminated a 90-day shelter residency requirement, eliminated recipient work requirements, prohibited the New York City Department of Social Services (City DSS) from deducting a utility allowance from the maximum rental allowance for a FHEPS voucher, and expanded the list of individuals eligible for rental assistance (see Local Law Nos. 99-102). * * *

Several individuals who hoped to avail themselves of the benefits of the FHEPS reform laws commenced this CPLR article 78 proceeding, challenging the Mayor’s refusal to implement those laws. The individuals initiated the proceeding as a putative class action, and bring the case on behalf of themselves and others similarly situated. The City Council was granted leave to intervene in the proceeding, and sought an order directing the Mayor to implement the FHEPS reform laws or, alternatively, a declaration that those laws are valid. With respect to the principal relief sought, the City Council makes plain that it “seeks only that the Mayor be directed to take action to implement [the new local laws]. How the administration implements the [FHEPS] Reform Laws is within the administration’s discretion.”

The Mayor opposed the article 78 petition on the ground that the FHEPS reform laws are preempted by the State’s Social Services Law. Matter of Vincent v Adams, 2025 NY Slip Op 04146, First Dept 5-27-25

Practice Point: Consult this opinion for an analysis of the preemption doctrine in the context of NYC Local Laws and the NYS Social Services Law.

 

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HERE THE ASSISTANT SUPERINTENDENT WHO WAS HANDED THE SUMMONS AND COMPLAINT IN THIS PROPERTY-DAMAGE ACTION WAS AN AUTHORIZED AGENT OF THE SCHOOL DISTRICT; THEREFORE THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO COMPLETE PROPER SERVICE (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Voutsinas, reversing Supreme Court, determined the assistant superintendent who was handed the summons and complaint in this property-damage action against the school district was an authorized agent of the district. Therefore the complaint should not have been dismissed for failure to complete proper service:

It is evident, however, that the role of assistant superintendent was intended, under Education Law § 2(13), to be considered another appointive officer whose duties generally relate to the administration of affairs within a school district. An assistant superintendent … directly carries out duties that typically would be carried out by the superintendent. These duties fit closely with the statutory definition of “school officer” as contemplated by Education Law § 2(13).

Moreover, as set forth in the Education Law, the role of assistant superintendent is generally created directly by an elected board of education, such as the defendant’s Board of Education. Specifically, Education Law § 2503(5), applicable to the defendant herein, grants the Board of Education the ability to “create, abolish, maintain and consolidate such positions . . . as, in its judgment, may be necessary for the proper and efficient administration of its work” and “shall appoint properly qualified persons to fills such positions, including a superintendent of schools” and “such associate, assistant and other superintendents . . . as said board shall determine necessary for the efficient management of the schools.” Here, the defendant, in accordance with the relevant provisions of the Education Law, has given … the assistant superintendent for curriculum and instruction … authority and command to administer the affairs of the defendant and its superintendent as it pertains to the offering of the curriculum to the student body and the instruction of each student. It is evident that [the assistant superintendent], in this role, reports directly to the superintendent of schools and the Board of Education and is charged with administering functions that otherwise would be tasked to the Board of Education and/or the superintendent of schools. Aideyan v Mount Vernon City Sch. Dist., 2025 NY Slip Op 03787, Second Dept 6-25-25

Practice Point: Consult this decision if you need to know who is authorized to accept service on behalf of a school district.

 

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THE CITY OF KINGSTON PROPERLY OPTED IN TO A RENT STABILIZATION REGIME PURSUANT TO THE HOUSING STABILITY AND TENANT PROTECTION ACT (HSTPA), PROPERLY DECLARED A HOUSING EMERGENCY, AND PROPERLY PROMULGATED RELATED GUIDELINES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined the City of Kingston properly opted in to a rent stabilization regime pursuant to the Housing Stability and Tenant Protection Act (HSTPA) and properly declared a housing emergency. Petitioners, a group of private landlords and an association representing landlords in the Hudson Valley, unsuccessfuly sought to invalidate Kingston’s Emergency Tenant Protection Act (ETPA) opt-in and two guidelines subsequently promulgated by the Kingston New York Rent Guidelines Board (KRGB). The opinion is too detailed to fairly summarize here:

To enter into the ETPA’s rent-stabilization regime, a municipality’s “local legislative body” must make “[a] declaration of emergency” as to all or any class of housing accommodations within the municipality. It may do so only if the vacancy rate for those housing accommodations “is not in excess of five percent” … . Once the municipality makes such a declaration, it must recommend members to be appointed to a newly formed rent guidelines board by the State Division of Housing and Community Renewal’s (DHCR) commissioner … . Matter of Hudson Val. Prop. Owners Assn. Inc. v City of Kingston, 2025 NY Slip Op 03691, CtApp 6-18-25

 

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THE DOCUMENTS RELIED UPON BY RETIRED NEW YORK CITY EMPLOYEES TO PROVE THE CITY PROMISED TO PROVIDE THEM WITH MEDICARE SUPPLEMENTAL INSURANCE COVERAGE FOR LIFE DID NOT DEMONSTRATE A CLEAR AND UNAMBIGUOUS PROMISE; THEREFORE THE RETIREES WERE NOT ENTITLED TO JUDGMENT ON THEIR PROMISSORY ESTOPPEL CAUSE OF ACTION (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, determined the petitioners were not entitled to judgment on the promissory estoppel cause of action. Petitioners are retired New York City employees who argued the city had promised to provide them with Medicare supplemental insurance coverage for life. In 2021 the city made significant changes to its health benefits program, discontinuing its most popular program, Senior Care, and most other options, and enrolling retirees in a Medicare Advantage Plan (MAP) managed by Aetna Life Insurance Company:

To support the allegation of a clear and unambiguous promise of Medicare supplemental insurance coverage for life, petitioners submitted copies of Summary Program Descriptions (SPDs) that the City provides its employees and retirees on an annual basis to inform them of their health insurance options. * * *

The SPDs themselves contain nothing that could be construed as a clear and unambiguous promise of Medicare supplemental insurance coverage for life. To the contrary, we agree with the City that the language in the SPDs is descriptive and for informational purposes only. The language on which petitioners rely—”becomes eligible,” “is provided,” “provides,” and “supplements”—is in the present tense. The descriptive nature of the SPD is reflected in the title of the document—Summary Program Description—and its informational nature is also clear from the context of the SPD, the purpose of which is to explain benefits for the upcoming year. Indeed, annual SPDs are necessary only because benefits change from year to year, a fact petitioners do not contest. Petitioners rely heavily on the phrase “and thereafter” in the SPDs as conclusive evidence of a continuing promise, but read in context this language is used only to explain when someone is eligible for Medicare and not in reference to any promise of future benefits. To the extent that one might infer a commitment of sorts from the SPDs’ language, it does not rise to the level of a clear and unambiguous promise that the City would pay for Medigap coverage, as opposed to some other form of health insurance coverage, for the rest of every retiree’s life. Matter of Bentkowski v City of New York, 2025 NY Slip Op 03690, CtApp 6-18-25

Practice Point: Consult this opinion for insight into the proof requirements for a “clear and unambiguous promise,” in the context of promissory estoppel.

 

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THE PETITIONER, A NEW YORK CITY FIREFIGHTER, DID NOT DEMONSTRATE THE FIRE DEPARTMENT IMPROPERLY DENIED PETITIONER’S REQUEST FOR A RELIGIOUS EXEMPTION FROM THE COVID VACCINE MANDATE; SUPREME COURT REVERSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined petitioner-firefighter did not demonstrate the NYC Fire Department (FDNY) improperly denied petitioner’s request for a religious exemption from the COVID vaccine mandate:

Pursuant to the NYCHRL [New York City Human Rights Law], it is “an unlawful discriminatory practice” for an employer “to refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation” for, among other possibilities, “religious needs” (Administrative Code § 8-107[28][a][1]). Here, the petitioner failed to demonstrate that the appellants’ process for resolving requests for a reasonable accommodation from the vaccine mandate did not meet the requirements of the NYCHRL regarding cooperative dialogue … . The appellants provided information on the process for reviewing accommodation requests related to the vaccine mandate and informed employees on how to appeal request denials. The record demonstrates that the petitioner availed himself of this process. The record also shows that there were multiple communications between the petitioner, the FDNY, and the [City of New York Reasonable Accommodation Appeals Panel] regarding the petitioner’s accommodation request. The petitioner failed to establish that, under the unique circumstances present at the time of the vaccine mandate, the NYCHRL required a more robust or individualized dialogue.

The petitioner also failed to demonstrate that the determination to deny him a religious exemption from the vaccine mandate was arbitrary and capricious … . Matter of Smith v New York City Fire Dept., 2025 NY Slip Op 03728, Second Dept 6-18-25

Practice Point: Here the petitioner-firefighter had won in Supreme Court and was reinstated with back pay. But the Second Department reversed finding petitioner was not entitled to a religious exemption from the COVID vaccine mandate.

 

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HERE PLAINTIFF’S PROPOSED CONSTRUCTION OF APARTMENTS WAS PROHIBITED BY A LOCAL LAW; PLAINTIFF ALLEGED THE BIAS OF THE CHAIRPERSON OF THE PLANNING BOARD INFECTED THE PLANNING BOARD’S RECOMMENDATION TO THE TOWN BOARD (WHICH ENACTED THE LAW); THOSE ALLEGATIONS RAISED A QUESTION OF FACT PRECLUDING SUMMARY JUDGMENT FINDING THE LOCAL LAW VALID (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Judge Garry, determined questions of fact precluded summary judgment in favor of the town in this dispute over the approval of the construction of apartments. Plaintiffs alleged that the chairperson of the planning board, who owned adjacent property, was biased against the proposed construction and his bias infected the planning board’s recommendation:

As Supreme Court correctly noted, the enactment that plaintiffs seek to invalidate in this action was a product of the Town Board, not the Planning Board … . We further note that it is expressly within the power of the Planning Board to submit advisory opinions to the Town Board for proposed amendment to the zoning law … . For these reasons, it is possible that the connection of the alleged bias to the action of the Town Board may ultimately be insufficiently direct. Supreme Court’s decision apparently rejected plaintiffs’ allegations on this ground. Nonetheless, accepting plaintiffs’ allegations as true, the extent to which the long-term Chairperson’s alleged bias infected the Planning Board’s recommendation to the Town Board that multifamily dwelling development be reconsidered, the Town’s subsequent investigation thereof, and the Town Board’s ultimate adoption of the challenged local law limiting same is not amenable to resolution as a matter of law at this procedural stage … . Thus, any declaration regarding the validity of Local Law No. 2022-08 was premature, and Supreme Court’s order must be reversed in full so that the action may proceed through the ordinary course. PF Dev. Group, LLC v Town of Brunswick, 2025 NY Slip Op 03671, Third Dept 6-18-25

Practice Point: Here allegations that the passage of a local law was influenced by bias on the part of the chairperson of the planning board raised a question of fact precluding summary judgment finding the local law valid.​

 

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HERE THE HOSPITAL DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT ON THE DISABILITY DISCRIMINATION CAUSE OF ACTION UNDER THE NEW YORK CITY HUMAN RIGHTS LAW (NYCHRL) BUT WERE ENTITLED TO SUMMARY JUDGMENT ON THE DISABILITY DISCRIMINATION CAUSE OF ACTION UNDER THE NEW YORK STATE HUMAN RIGHTS LAW (NYSHRL) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the defendant hospital was not entitled to summary judgment in this disability discrimination case under the New York City Human Rights Law (NYCHRL) but was entitled to summary judgment under the New York State Human Rights Law (NYSHRL):

In order to prevail on a claim of disability discrimination under the NYCHRL, “an employer must demonstrate that it engage[d] in a good faith interactive process that assesse[d] the needs of the disabled individual and the reasonableness of the accommodation requested” … . Here, the hospital defendants failed to show that they engaged in an interactive process and reasonable accommodation analysis prior to terminating the plaintiff’s employment … .

However, the Supreme Court should have granted those branches of the hospital defendants’ motion which were for summary judgment dismissing the causes of action alleging disability discrimination under the NYSHRL insofar as asserted against them. “To establish a prima facie case of disability discrimination under the Executive Law, a plaintiff must establish, inter alia, that he or she was otherwise qualified to perform the essential functions of the position, with or without a reasonable accommodation” … . Here, the hospital defendants established, prima facie, that the plaintiff could not perform the essential functions of her job with or without a reasonable accommodation … . In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, under the NYSHRL, the hospital defendants cannot be held liable for failing to engage in an interactive process where the employee has failed to provide evidence to the employer that he or she could perform the essential functions of the job with or without a reasonable accommodation … . Makharadze v Ognibene, 2025 NY Slip Op 03713, Second Dept 6-18-25

Practice Point: Consult this decision for an example of a disability discrimination case where the defendants were entitled to summary judgment under the New York State Human Rights Law but not under the New York City Human Rights Law.

 

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THE ABSENCE OF A REASONABLE EXCUSE FOR FAILING TO FILE A TIMELY NOTICE OF CLAIM IS NOT NECESSARILY FATAL TO A PETITION FOR LEAVE TO FILE A LATE NOTICE WHERE, AS HERE, THE MUNICIPALITY HAD ACTUAL TIMELY NOTICE OF THE FACTS UNDERLYING THE CLAIM AND IS NOT PREJUDICED BY THE DELAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioners’ motion for leave to file a late notice of claim in this traffic accident case involving a city bus should have been granted. Although the excuse for failure to time file (petitioners’ infancy) was not reasonable, that flaw was not fatal because the city had timely actual knowledge of the essential facts underlying the claim and was not prejudiced by the delay:​

Here, the respondents acquired timely, actual knowledge of the essential facts constituting the petitioners’ claim. Although a police report regarding an automobile accident does not, in and of itself, constitute notice of a claim to a municipality or public corporation, where the report reflects that an employee of the municipality or public corporation committed a potentially actionable wrong, such entity can be found to have actual knowledge … . In this case, the police report, which the petitioners sent to the NYCTA [NYC Transit Authority] on or about July 2, 2021, indicated that the multivehicle collision was set in motion by Robinson, who caused the bus to come into contact with the rear of another vehicle. The police report also indicated that several bus passengers reported injuries and named the injured petitioners, among others. In addition, the respondents were in possession of the injured petitioners’ medical records. Under these circumstances, the respondents acquired timely, actual knowledge of the essential facts constituting the petitioners’ claim … .

Moreover, since the respondents acquired timely, actual knowledge of the essential facts constituting the petitioners’ claim, the petitioners met their initial burden of showing a lack of prejudice to the respondents’ ability to maintain a defense … . Matter of Arvizu v New York City Tr. Auth., 2025 NY Slip Op 03323, Second Dept 6-4-25

Practice Point: A municipality will be deemed to have timely actual notice of a claim where, as here, the police report reflects that an employee of the municipality committed a potentially actionable wrong.​​​​​​​​​​​

 

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