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SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined (1) the court should not have searched the record and awarded summary judgment to the plaintiff in this sidewalk slip and fall case based upon a theory raised for the first time in reply papers, (2) the city defendants did not demonstrate that they did not have written notice of the condition or that they did not create the condition, and (3) evidence submitted by the city defendants for the first time in reply papers could not be considered with respect to a prima facie showing of entitlement to summary judgment:

The plaintiff alleged, for the first time in opposition to the motion and cross motion for summary judgment, that the defendants were strictly liable under an absolute nuisance theory. However, a plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting, for the first time in opposition to the motion, a new theory of liability that was not pleaded in the complaint or bill of particulars … . …

… [T]he City defendants’ … “failed to demonstrate their prima facie entitlement to judgment as a matter of law on the ground that they had no prior written notice as they failed to submit proof of such lack of notice from the proper municipal official”…, or that they did not create the alleged dangerous condition through an affirmative act of negligence… . The evidence submitted by the City defendants for the first time in their reply papers cannot be considered for the purpose of determining whether they met their prima facie burden … . Troia v City of New York, 2018 NY Slip Op 04770, Second Dept 6-27-18

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/REPLY PAPERS (SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/SUMMARY JUDGMENT (REPLY PAPERS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/SLIP AND FALL (SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, MUNICIPAL LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))

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COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT).

The Second Department, in a comprehensive and informative analysis, determined plaintiff had stated a negligence cause of against the town for the shooting death of plaintiff’s decedent, Nigro. The town police had responded to Nigro’s residence where she told the police her live-in companion, Groesbeck, had assaulted her. She also told the police Groesbeck, a former New Jersey police officer, had an unlicensed handgun. The police did not arrest Groesbeck, but took possession of the handgun. The police later returned the handgun to Groesbeck who subsequently shot and killed Nigro with it. The Second Department found that the complaint adequately alleged a special relationship between Nigro and the town, and further found that the town did not demonstrate the doctrine of governmental immunity applied as matter of law:

… [C]onstruing the complaint liberally and according the plaintiff the benefit of every possible favorable inference, it was sufficient to allege the existence of a special relationship between the Town and Nigro. The complaint adequately alleged “direct contact” between the agents of the Town and Nigro … , and that the Town police department undertook “through promises or actions” an affirmative duty, on behalf of Nigro, to safeguard Groesbeck’s handgun … . In addition, the complaint adequately alleged circumstances indicating that the Town, through its agents, knew that the return of the handgun to Groesbeck “could lead to harm” … . The Town’s evidentiary submissions failed to “utterly refute” these factual allegations as a matter of law … .

… [T]he complaint was also sufficient to allege Nigro’s “justifiable reliance” on the Town’s affirmative undertaking to safeguard Groesbeck’s handgun … .  * * *

… [A] factfinder could reasonably conclude that Groesbeck’s use of the allegedly illegal handgun to harm Nigro was a “foreseeable consequence of the situation created by the [Town’s] negligence” … . * * *

The issue of whether a defendant is entitled to governmental immunity is distinct from the issue of whether a special duty exists in a particular case… . The doctrine of governmental immunity refers to “an affirmative defense on which [a defendant] bears the burden of proof” … . * * *

Even assuming that the allegedly negligent act of returning the handgun was discretionary in nature, it cannot be said, as a matter of law, that “the discretion possessed by [the Town] was in fact exercised” … , or that any such exercise of discretion was “in compliance with the municipality’s procedures” … . Santaiti v Town of Ramapo, 2018 NY Slip Op 04584, Second Dept 6-20-18

​MUNICIPAL LAW (NEGLIGENCE, COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/GOVERNMENTAL IMMUNITY (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/POLICE (NEGLIGENCE, COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))/THIRD PARTY ASSAULT, LIABILITY FOR (MUNICIPAL LAW, NEGLIGENCE,  COMPLAINT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT BY HER LIVE-IN COMPANION, THE COMPLAINT ALLEGED A SPECIAL RELATIONSHIP BETWEEN THE TOWN AND PLAINTIFF’S DECEDENT AND THE TOWN DID NOT DEMONSTRATE THAT GOVERNMENTAL IMMUNITY APPLIED AS A MATTER OF LAW (SECOND DEPT))

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APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, ALTHOUGH THE EXCUSE WAS NOT REASONABLE, THE NOTICE WAS ONLY TWO WEEKS LATE AND THERE WAS NO SHOWING DEFENDANT WAS PREJUDICED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s application for leave to file a late notice of claim in this sidewalk slip and fall case should have been granted. Petitioner’s counsel served a timely notice on the city but the abutting owner was the NYC Housing Authority (NYCHA). The notice was served on the NYCHA two weeks after the expiration of the 90-day period:

… [W]hile the petitioner’s counsel’s error concerning the identity of the responsible public corporation does not provide a reasonable excuse for the delay in giving notice … , the absence of a reasonable excuse is not, standing alone, fatal to the petitioner’s application …. Notably, considering that the petitioner’s application was made approximately two weeks after the expiration of the 90-day period, NYCHA acquired actual knowledge of the essential facts constituting the claim within a “reasonable time” after the expiration of the 90-day period (General Municipal Law § 50-e[5]…).

Moreover, the petitioner met her initial burden of showing that the late notice will not substantially prejudice NYCHA, thereby requiring NYCHA “to rebut that showing with particularized evidence” … . NYCHA’s conclusory assertion of substantial prejudice was insufficient to rebut the petitioner’s showing. Matter of Ramos v New York City Hous. Auth., 2018 NY Slip Op 04547, Second Dept 6-20-18

​MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, ALTHOUGH THE EXCUSE WAS NOT REASONABLE, THE NOTICE WAS ONLY TWO WEEKS LATE AND THERE WAS NO SHOWING DEFENDANT WAS PREJUDICED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, ALTHOUGH THE EXCUSE WAS NOT REASONABLE, THE NOTICE WAS ONLY TWO WEEKS LATE AND THERE WAS NO SHOWING DEFENDANT WAS PREJUDICED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NEGLIGENCE, APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, ALTHOUGH THE EXCUSE WAS NOT REASONABLE, THE NOTICE WAS ONLY TWO WEEKS LATE AND THERE WAS NO SHOWING DEFENDANT WAS PREJUDICED (SECOND DEPT))

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PETITIONER WAS REQUIRED TO FILE A NOTICE OF CLAIM PURSUANT TO CPLR 9802 IN AN ACTION SEEKING A DECLARATORY JUDGMENT THAT A LOCAL LAW WAS INVALID, DECLARATORY JUDGMENT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s (BT Holdings’) cause of action for a declaratory judgment declaring a local law invalid should have been dismissed because petitioner did not file a notice of claim as required by CPLR 9802:

Contrary to BT Holdings’ contention, the notice of claim requirements of CPLR 9802 apply to the causes of action for declaratory relief … . Matter of BT Holdings, LLC v Village of Chester, 2018 NY Slip Op 04544, Second Dept 6-20-18

​MUNICIPAL LAW (NOTICE OF CLAIM, PETITIONER WAS REQUIRED TO FILE A NOTICE OF CLAIM PURSUANT TO CPLR 9802 IN AN ACTION SEEKING A DECLARATORY JUDGMENT THAT A LOCAL LAW WAS INVALID, DECLARATORY JUDGMENT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, CIVIL PROCEDURE, PETITIONER WAS REQUIRED TO FILE A NOTICE OF CLAIM PURSUANT TO CPLR 9802 IN AN ACTION SEEKING A DECLARATORY JUDGMENT THAT A LOCAL LAW WAS INVALID, DECLARATORY JUDGMENT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/CIVIL PROCEDURE (MUNICIPAL LAW, NOTICE OF CLAIM, PETITIONER WAS REQUIRED TO FILE A NOTICE OF CLAIM PURSUANT TO CPLR 9802 IN AN ACTION SEEKING A DECLARATORY JUDGMENT THAT A LOCAL LAW WAS INVALID, DECLARATORY JUDGMENT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/DECLARATORY JUDGMENT (MUNICIPAL LAW, CIVIL PROCEDURE, NOTICE OF CLAIM,  PETITIONER WAS REQUIRED TO FILE A NOTICE OF CLAIM PURSUANT TO CPLR 9802 IN AN ACTION SEEKING A DECLARATORY JUDGMENT THAT A LOCAL LAW WAS INVALID, DECLARATORY JUDGMENT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

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MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST A PUBLIC CORPORATION SHOULD NOT HAVE BEEN GRANTED FOR ONE OF TWO ACCIDENTS, CLAIMANT FAILED TO SHOW DEFENDANT HAD TIMELY ACTUAL KNOWLEDGE OF THE FIRST OF TWO ACCIDENTS (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined that claimant’s motion for leave to file a late notice of claim against defendant public corporation was properly granted for only one of two accidents. The Fourth Department held that the defendant did not have timely actual knowledge of the first accident because there was no evidence defendant was provided with the relevant accident report:

While we agree with respondent that claimant failed to establish a reasonable excuse for the delay … , “[t]he failure to offer an excuse for the delay is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [respondent]” … . …

… [W]e agree with claimant that he established that respondent would not be substantially prejudiced by any delay in serving the notice of claim. “[B]ecause the injur[ies] allegedly resulted from . . . fall[s] at a construction site, it is highly unlikely that the conditions existing at the time of the accident[s] would [still] have existed’ ” had the notice of claim been timely filed … . …

… [C]laimant failed to meet his burden of demonstrating that respondent had timely actual knowledge of the first accident. Despite having engaged in pre-action discovery, claimant is unable to provide any evidence that the incident report related to the first accident was ever transmitted to respondent, and there was no mention of the first accident in the construction closeout report submitted to respondent. Inasmuch as there is no evidence that respondent received timely actual knowledge of the occurrence of the first accident, respondent could not have received timely actual knowledge of ” the injuries or damages’ ” resulting therefrom … . Matter of Szymkowiak v New York Power Auth., 2018 NY Slip Op 04482, Fourth Dept 6-15-18

​NEGLIGENCE (MUNICIPAL LAW, LATE NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST A PUBLIC CORPORATION SHOULD NOT HAVE BEEN GRANTED FOR ONE OF TWO ACCIDENTS, CLAIMANT FAILED TO SHOW DEFENDANT HAD TIMELY ACTUAL KNOWLEDGE OF THE FIRST OF TWO ACCIDENTS (FOURTH DEPT))/MUNICIPAL LAW (MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST A PUBLIC CORPORATION SHOULD NOT HAVE BEEN GRANTED FOR ONE OF TWO ACCIDENTS, CLAIMANT FAILED TO SHOW DEFENDANT HAD TIMELY ACTUAL KNOWLEDGE OF THE FIRST OF TWO ACCIDENTS (FOURTH DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, LATE NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST A PUBLIC CORPORATION SHOULD NOT HAVE BEEN GRANTED FOR ONE OF TWO ACCIDENTS, CLAIMANT FAILED TO SHOW DEFENDANT HAD TIMELY ACTUAL KNOWLEDGE OF THE FIRST OF TWO ACCIDENTS (FOURTH DEPT))/PUBLIC CORPORATION (NOTICE OF CLAIM,  MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST A PUBLIC CORPORATION SHOULD NOT HAVE BEEN GRANTED FOR ONE OF TWO ACCIDENTS, CLAIMANT FAILED TO SHOW DEFENDANT HAD TIMELY ACTUAL KNOWLEDGE OF THE FIRST OF TWO ACCIDENTS (FOURTH DEPT))

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NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that Nassau County did not act arbitrarily and capriciously when it decided petitioner police officer was not entitled to indemnification for civil damages stemming from a law suit by an arrestee (Crews) who was allowed to remain incarcerated despite the police officer’s knowledge Crews could not have committed the offense:

General Municipal Law § 50-l, the statute at issue here, authorizes Nassau County to defend and indemnify police officers named as defendants in civil actions or proceedings, providing indemnification from “any judgment . . . for damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of [the officer’s] duties and within the scope of [the officer’s] employment” … . The statute declares that “[s]uch proper discharge and scope shall be determined by a majority vote of a panel . . . appointed by” various Nassau County officials — respondent Indemnification Board. The legislature, thus, left the determination of whether the statutory prerequisites are met to the discretion of the Board.

In this case, we are essentially asked to determine the meaning of the word “proper” in the phrase: “proper discharge of [the officer’s] duties.” Petitioner argues that the phrases “proper discharge of [ ] duties” and “scope of [ ] employment” are interchangeable in this statute, requiring only that the officer be engaged in police work to be entitled to indemnification. However, such an interpretation reads the word “proper” out of the statute. The legislature’s inclusion of this modifier indicates an intent to hold officers to a higher standard than mere performance of duty. Read literally, the statute permits the Board to consider the propriety of the officer’s actions in determining whether defense and indemnification is appropriate, as it did here when it revisited its determination after learning petitioner concealed information that extended the pretrial detention of an innocent person. Matter of Lemma v Nassau County Police Officer Indem. Bd., 2018 NY Slip Op 04382, CtApp 6-14-18

MUNICIPAL LAW (POLICE OFFICERS, NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP))/ADMINISTRATIVE LAW (MUNICIPAL LAW, POLICE OFFICERS, NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP))/POLICE OFFICERS (MUNICIPAL LAW, INDEMNIFICATION, NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP))/INDEMNIFICATION (CIVIL DAMAGES, MUNICIPAL LAW, POLICE OFFICERS, NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP))/POLICE OFFICERS  (CIVIL DAMAGES, MUNICIPAL LAW, POLICE OFFICERS, NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP))

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NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT).

The Second Department determined no special relationship had been formed between the police department and plaintiff’s decedent, who was killed by her husband after she alerted the police he had contacted her in violation of an order of protection. The husband had previously taken plaintiff’s decedent and their two teenage daughters hostage and threatened them with knives and a shotgun. The police department was immune from suit:

Generally, “a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection” … . When a cause of action alleging negligence is asserted against a municipality, and the municipality is exercising a governmental function, the plaintiff must first demonstrate that the municipality owed a special duty to the injured person … . The elements required to establish such a duty are: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (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) that party’s justifiable reliance on the municipality’s affirmative undertaking” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that, while the police endeavored to contact the husband in order to instruct him not to further communicate with the decedent, the police did not promise to arrest the husband and the decedent could not have justifiably relied upon assurances of police protection … . Axt v Hyde Park Police Dept., 2018 NY Slip Op 04298, Second Dept 6-13-18

​NEGLIGENCE (MUNICIPAL LAW, POLICE, NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, POLICE, NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, POLICE, NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, POLICE, NEGLIGENCE, IMMUNITY, NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT))

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MOTION TO AMEND NOTICE OF CLAIM TO CORRECT THE ADDRESS OF THE ACCIDENT TWO YEARS AFTER THE CLAIM ACCRUED PROPERLY DENIED, PLAINTIFF DID NOT SHOW DEFENDANT WAS NOT PREJUDICED BY THE WRONG ADDRESS (SECOND DEPT).

The Second Department determined plaintiff’s motion to amend the notice of claim, two years after the claim accrued, to add the correct address of the accident was properly denied. Plaintiff did not demonstrate the failure to provide the correct address did not prejudice the NYC Housing Authority (defendant):

A motion for leave to amend a notice of claim may be granted provided that the error in the original notice of claim was made in good faith and the municipality has not been prejudiced thereby … .

Here, the plaintiff failed to meet her initial burden of demonstrating the absence of prejudice to the defendant arising from the plaintiff’s incorrect description of the accident location… . The plaintiff relied solely on the transient nature of the condition that allegedly caused her to fall to support her contention that the defendant did not suffer prejudice. The plaintiff did not allege that there were any witnesses to the incident or to the condition complained of, that the plaintiff received any medical assistance at the site, or that the accident was reported to anyone so as to give the defendant actual knowledge of the essential facts constituting the claim within the statutory period or a reasonable time thereafter … . Jenkins v New York City Hous. Auth., 2018 NY Slip Op 04313, Second Dept 6-13-18

​NEGLIGENCE (MUNICIPAL LAW, MOTION TO AMEND NOTICE OF CLAIM TO CORRECT THE ADDRESS OF THE ACCIDENT TWO YEARS AFTER THE CLAIM ACCRUED PROPERLY DENIED, PLAINTIFF DID NOT SHOW DEFENDANT WAS NOT PREJUDICED BY THE WRONG ADDRESS (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, MOTION TO AMEND NOTICE OF CLAIM TO CORRECT THE ADDRESS OF THE ACCIDENT TWO YEARS AFTER THE CLAIM ACCRUED PROPERLY DENIED, PLAINTIFF DID NOT SHOW DEFENDANT WAS NOT PREJUDICED BY THE WRONG ADDRESS (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, MOTION TO AMEND NOTICE OF CLAIM TO CORRECT THE ADDRESS OF THE ACCIDENT TWO YEARS AFTER THE CLAIM ACCRUED PROPERLY DENIED, PLAINTIFF DID NOT SHOW DEFENDANT WAS NOT PREJUDICED BY THE WRONG ADDRESS (SECOND DEPT))

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BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT).

The Second Department, reversing a bench trial verdict in Supreme Court, determined defendant transit authority was not liable for plaintiff’s slip and fall on black ice upon exiting defendant’s bus:

The defendant, as a common carrier, “owe[d] a duty to alighting passenger[s] to stop at a place where [they] may safely disembark and leave the area” … , and towards that end “to exercise reasonable and commensurate care in view of the dangers to be apprehended” … . However, whether the defendant has breached its duty to provide a passenger a safe place to alight from the bus will depend on whether the bus driver could have observed the dangerous condition from the driver’s vantage point… . Here, there was no evidence that the bus driver was aware of or reasonably should have been aware of the ice in the roadway. The fact that it was cold and there was a pile of snow near the rear exit does not create a basis to conclude that the bus driver should have known of the dangerous condition … . Guzman v New York City Tr. Auth., 2018 NY Slip Op 04310, Second Dept 6-13-18

​NEGLIGENCE (MUNICIPAL LAW, BUSES, BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT))/MUNICIPAL LAW (BUSES, BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT))/BUSES (NEGLIGENCE, MUNICIPAL LAW, BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT))/SLIP AND FALL (NEGLIGENCE, MUNICIPAL LAW, BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT))

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BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT).

The First Department determined the driver of a bus, Garcia, was not liable for suddenly applying the brakes pursuant to the emergency doctrine. A taxi had suddenly swerved into the bus’s lane:

The motion court properly invoked the emergency doctrine in finding that no issues of fact exist as to defendants’ negligence given plaintiff’s failure in opposition to adduce any evidence tending to show that the bus operator, defendant Garcia, created the emergency or could have avoided a collision with the nonparty livery taxi by taking some action other than applying his brakes … . The sudden unexpected swerving of the livery taxi into the bus’s lane required Garcia to take immediate action … . Garcia’s reaction of pressing the brakes with enough force to prevent an impact between his bus and the taxi and swerving the bus to the right was a reasonable response to the emergency that was not of his own making … . That Garcia was aware that taxis often cut buses off does not require a different result. Jones v New York City Tr. Auth., 2018 NY Slip Op 04281, First Dept 6-12-18

​NEGLIGENCE (BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT))/BUSES (BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT))/EMERGENCY DOCTRINE (BUSES, BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT))/MUNICIPAL LAW (BUSES, (BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT))/BRAKES (BUSES, BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT))

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