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ALTHOUGH THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE ICE AND SNOW CONDITION IN THE AREA WHERE PLAINTIFF FELL, IT FAILED TO DEMONSTRATE IT DID NOT CREATE THE CONDITION BY PILING SNOW IN THE AREA, VILLAGE’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant village’s motion for summary judgment in this parking lot ice and snow slip and fall case was properly denied. The village demonstrated that it did not have written notice of the dangerous condition, but did not demonstrate it did not created the dangerous condition, which plaintiff alleged resulted from the piling of snow in the area:

In the complaint and bill of particulars, the plaintiffs alleged that the Village created the ice condition on which Seegers fell by plowing snow into large piles directly adjacent to parking areas and walkways, thereby blocking drains and allowing the snow to thaw and refreeze, and by failing to properly salt or sand the area … . Accordingly, the Village was required to demonstrate both that it did not have prior written notice of the ice condition in the subject parking lot and that it did not create that condition… .

Although the Village demonstrated that it did not receive written notice of an ice condition in the subject parking lot prior to the accident, it failed to demonstrate, prima facie, that it did not create the ice condition that allegedly caused Seegers to fall … . Seegers v Village of Mineola, 2018 NY Slip Op 03387, Second Dept 5-9-18

​NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, ALTHOUGH THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE ICE AND SNOW CONDITION IN THE AREA WHERE PLAINTIFF FELL, IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION BY PILING SNOW IN THE AREA, VILLAGE’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, SLIP AND FALL, ALTHOUGH THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE ICE AND SNOW CONDITION IN THE AREA WHERE PLAINTIFF FELL, IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION BY PILING SNOW IN THE AREA, VILLAGE’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT)/SLIP AND FALL (MUNICIPAL LAW,  ALTHOUGH THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE ICE AND SNOW CONDITION IN THE AREA WHERE PLAINTIFF FELL, IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION BY PILING SNOW IN THE AREA, VILLAGE’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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CITY WAS NOTIFIED OF THE ESSENTIAL FACTS OF PETITIONER’S CLAIM BY A TIMELY NOTICE OF CLAIM FILED BY THE OTHER PARTY IN THIS TRAFFIC ACCIDENT CASE, PETITIONER’S REQUEST TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s request for leave to file a late notice of claim should have been granted. Petitioner’s car collided with a car, driven by Cedeno, when Cedeno crossed into on-coming traffic after running over a half-open manhole and losing control. Cedeno had served a timely notice of claim upon the city. The Second Department determined the city had timely notice of the essential facts of the petitioner’s claim:

While the presence or the absence of any one of the factors is not necessarily determinative … , whether the public corporation had actual knowledge of the essential facts constituting the claim is of great importance … . The public corporation must have “knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim,” and not merely some general knowledge that a wrong has been committed … . A petitioner’s lack of a reasonable excuse for the delay in serving a timely notice of claim is not necessarily fatal when weighed against other relevant factors … .

The petitioner … demonstrated that the City acquired timely, actual knowledge of the essential facts constituting her claim by way of the timely notice of claim served upon it by Cedeno … . Cedeno’s notice of claim specifically described the nature of the accident between Cedeno and the petitioner. Inasmuch as the City acquired timely, actual knowledge of the essential facts of the petitioner’s claim, the petitioner made an initial showing that the City was not prejudiced by her delay in serving a notice of claim … . Matter of Tejada v City of New York, 2018 NY Slip Op 03370, Second Dept 5-9-18

​MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, CITY WAS NOTIFIED OF THE ESSENTIAL FACTS OF PETITIONER’S CLAIM BY A TIMELY NOTICE OF CLAIM FILED BY THE OTHER PARTY IN THIS TRAFFIC ACCIDENT CASE, PETITIONER’S REQUEST TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, CITY WAS NOTIFIED OF THE ESSENTIAL FACTS OF PETITIONER’S CLAIM BY A TIMELY NOTICE OF CLAIM FILED BY THE OTHER PARTY IN THIS TRAFFIC ACCIDENT CASE, PETITIONER’S REQUEST TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (NEGLIGENCE, MUNICIPAL LAW, CITY WAS NOTIFIED OF THE ESSENTIAL FACTS OF PETITIONER’S CLAIM BY A TIMELY NOTICE OF CLAIM FILED BY THE OTHER PARTY IN THIS TRAFFIC ACCIDENT CASE, PETITIONER’S REQUEST TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, NOTICE OF CLAIM, CITY WAS NOTIFIED OF THE ESSENTIAL FACTS OF PETITIONER’S CLAIM BY A TIMELY NOTICE OF CLAIM FILED BY THE OTHER PARTY IN THIS TRAFFIC ACCIDENT CASE, PETITIONER’S REQUEST TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the city’s decision to layoff firefighters was not arbitrable under a collective bargaining agreement. The Civil Service Law vests nondelegable discretion to hire and fire in the public corporation:

… [A] dispute is nonarbitrable if a court can conclude, without engaging in any extended factfinding or legal analysis, that a law prohibits, in an absolute sense, the particular matters to be decided by arbitration … . Put differently, a court must stay arbitration where it can conclude, upon the examination of the parties’ contract and any implicated statute on their face, “that the granting of any relief would violate public policy” … .

Addressing the union’s claim regarding the layoffs of the firefighters, Civil Service Law § 80(1) provides that a public employer has the nondelegable discretion to determine—for reasons of economy, among others—what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public … . In the absence of bad faith, fraud, or collusion, that discretion “is an undisputed management prerogative” for the public’s benefit, and cannot be altered or modified by agreement or otherwise… . Thus, arbitration of the claim regarding the layoffs of the firefighters would violate public policy. Matter of City of Long Beach v Long Beach Professional Fire Fighters Assn., Local 287, 2018 NY Slip Op 03356, Second Dept 5-9-18

​EMPLOYMENT LAW (CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))/MUNICIPAL LAW (FIREFIGHTERS, CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))/CIVIL SERVICE LAW (FIREFIGHTERS, CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))/ARBITRATION (MUNICIPAL LAW, CIVIL SERVICE LAW, FIREFIGHTERS, CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))/UNIONS (MUNICIPAL LAW, FIREFIGHTERS, CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))/COLLECTIVE BARGAINING AGREEMENTS (MUNICIPAL LAW, CIVIL SERVICE LAW, FIREFIGHTERS, CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))/FIREFIGHTERS (EMPLOYMENT LAW, COLLECTIVE BARGAINING AGREEMENT, ARBITRATION, CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))/PUBLIC POLICY (MUNICIPAL LAW, ARBITRATION, CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))

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LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, EVEN IF THE EXCUSE FOR FAILURE TO TIMELY FILE WAS NOT REASONABLE, THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY (SECOND DEPT).

The Second Department determined that the petition for leave to file a late notice of claim against the school (District) was properly granted. Petitioner had timely filed a notice of claim against the village, and the school was aware of the essential facts of the claim within the 90-day filing period. Petitioner alleged her son, who had broken his arm, was not supervised or assisted by the school at the time he tripped, fell and further injured his arm:

Here, the District had actual knowledge of the facts constituting the claim within the statutory period … . Furthermore, the petitioners made an initial showing that the District would not suffer any substantial prejudice by the delay, and the District failed to rebut the petitioners’ showing with particularized indicia of prejudice … . Even if the petitioners’ reason for failing to timely serve the District was not reasonable, the absence of a reasonable excuse is not fatal to the petition where, as here, there was actual notice and the absence of prejudice … . Matter of D.D. v Village of Great Neck, 2018 NY Slip Op 03358, Second Dept 5-9-18

EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, EVEN IF THE EXCUSE FOR FAILURE TO TIMELY FILE WAS NOT REASONABLE, THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW,  LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, EVEN IF THE EXCUSE FOR FAILURE TO TIMELY FILE WAS NOT REASONABLE, THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, EVEN IF THE EXCUSE FOR FAILURE TO TIMELY FILE WAS NOT REASONABLE, THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY (SECOND DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, EVEN IF THE EXCUSE FOR FAILURE TO TIMELY FILE WAS NOT REASONABLE, THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, EVEN IF THE EXCUSE FOR FAILURE TO TIMELY FILE WAS NOT REASONABLE, THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY (SECOND DEPT))/STUDENTS (EDUCATION-SCHOOL LAW, NEGLIGENCE, NOTICE OF CLAIM, LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, EVEN IF THE EXCUSE FOR FAILURE TO TIMELY FILE WAS NOT REASONABLE, THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY (SECOND DEPT))

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RECKLESS DISREGARD STANDARD APPLIED TO DRIVER OF TOWN SNOWPLOW AND THE DRIVER DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the town’s motion for summary judgment in this snowplow-car accident case should have been granted. Even though the plow was up at the time of the accident, the Vehicle and Traffic Law “reckless disregard” standard applied, and the snowplow driver’s (Hanssen’s) actions did not amount to “reckless disregard:”

… [D]efendants established as a matter of law that the reckless disregard standard of care, and not negligence, is applicable to this case pursuant to Vehicle and Traffic Law § 1103 (b), and plaintiffs failed to raise a triable issue of fact. Defendants submitted the deposition testimony of Hanssen, who testified that he was plowing snow and salting the roads on his assigned route at the time of the accident, and section 1103 (b) applies where, as here, a snowplow truck is “actually engaged in work on a highway” … . Contrary to plaintiffs’ contention, although defendants also submitted the deposition testimony of plaintiffs that the plow blade was up at the time of the accident, that is not enough to raise an issue of fact inasmuch as it was uncontroverted that Hanssen was salting the road and was “working his run’ or beat’ at the time of the accident” … . …

Hanssen testified at his deposition that he slowed down as he approached the stop sign and was moving at a speed of five miles per hour just prior to the intersection. He looked both ways for traffic, but did not see plaintiffs’ approaching vehicle. That evidence, which was not controverted by the deposition testimony of plaintiffs, established that Hanssen did not act with reckless disregard for the safety of others … . Harris v Hanssen, 2018 NY Slip Op 03257, Fourth Dept 5-4-18

​NEGLIGENCE (TRAFFIC ACCIDENTS, RECKLESS DISREGARD STANDARD APPLIED TO DRIVER OF TOWN SNOWPLOW AND THE DRIVER DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/MUNICIPAL LAW (TRAFFIC ACCIDENTS, RECKLESS DISREGARD STANDARD APPLIED TO DRIVER OF TOWN SNOWPLOW AND THE DRIVER DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW RECKLESS DISREGARD STANDARD APPLIED TO DRIVER OF TOWN SNOWPLOW AND THE DRIVER DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, RECKLESS DISREGARD STANDARD APPLIED TO DRIVER OF TOWN SNOWPLOW AND THE DRIVER DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/RECKLESS DISREGARD (TRAFFIC ACCIDENTS, MUNICIPAL LAW, RECKLESS DISREGARD STANDARD APPLIED TO DRIVER OF TOWN SNOWPLOW AND THE DRIVER DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SNOWPLOWS (TRAFFIC ACCIDENTS, RECKLESS DISREGARD STANDARD APPLIED TO DRIVER OF TOWN SNOWPLOW AND THE DRIVER DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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DEFENDANT CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the defendant city’s motion for summary judgment in this car-pedestrian injury case should not have been granted. The city had paved a driveway which connected a road to a pave walking path in a park. Defendant driver, who was intoxicated, drove his car to the park path where plaintiffs had been walking their dogs. There were no barriers or warning signs. The city was not immune because maintenance of a park is a proprietary, not a governmental function:

… [W]e note that, while the City has a duty to maintain its roads in a reasonably safe condition … , plaintiffs’ claims also implicate the City’s “duty to maintain its park and playground facilities in a reasonably safe condition”… . We thus reject the City’s contention that it is immune from liability because plaintiffs’ claims arise from its performance of a governmental function. “It is well settled that regardless of whether or not it is a source of income the operation of a public park by a municipality is a quasi-private or corporate and not a governmental function” … . Furthermore, a “municipality may not ignore the foreseeable dangers [it created], continue to extend an invitation to the public to use the area and not be held accountable for resultant injuries” … . Similarly, where, as here, it is undisputed that the City did not consider and render a determination regarding any potential danger prior to paving the driveway, the City’s maintenance of the intersection in question is also a proprietary function … . …

The City never disputed in its motion papers that it paved the driveway during its development of the park, thereby creating the condition of which plaintiffs now complain, but it instead argued that “[p]laintiffs have offered no evidence” that the City failed to adhere to applicable design standards or that the driveway created or enhanced a risk to park patrons. It is well established that “a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent’s proof” … . Similarly, because the City relied exclusively on its argument, unsupported by any evidence, that a defective or dangerous condition did not exist for which a warning was required, it also failed to establish as a matter of law that it had no duty to warn of the foreseeable danger of collision created by this driveway access … . Brady v City of N. Tonawanda, 2018 NY Slip Op 03253, Fourth Dept 5-4-18

​NEGLIGENCE DEFENDANT (CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))/MUNICIPAL LAW (NEGLIGENCE, IMMUNITY, CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))/IMMUNITY (CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))/PARKS (NEGLIGENCE, MUNICIPAL LAW, IMMUNITY, CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))/PROPRIETARY FUNCTION (NEGLIGENCE, MUNICIPAL LAW, CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))/SUMMARY JUDGMENT (GAPS IN PROOF, CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))

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DEFENDANT COUNTY CORONER TOOK PLAINTIFF’S SON’S BRAIN MATTER FOR USE IN TRAINING CADAVER DOGS AND FATHER SUED, QUESTION OF FACT WHETHER COUNTY OBLIGATED UNDER THE PUBLIC OFFICERS LAW TO DEFEND AND INDEMNIFY THE CORONER (I.E., WAS THE CORONER ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT?) (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment on his cross claim against the county (seeking a determination that the county is obligated to defend and indemnify him) should not have been granted. Plaintiff’s son was killed in a car accident. Defendant, who was then a county coroner, without permission, took plaintiff’s son’s brain matter for use in training cadaver dogs. There was a question of fact whether the county was obligated to defend the coroner pursuant to the Public Officers Law, which applies to actions within the scope of employment:

A county’s duty to defend an employee “turns on whether [the employee was] acting within the scope of [his or her] employment,” and whether the obligation to defend the employee “was formally adopted by a local governing body” … . In order to establish its prima facie entitlement to judgment as a matter of law under Public Officers Law § 18, it was incumbent on defendant to establish the applicability of that section … . Here, the court erred in granting summary judgment to defendant while still finding that there are issues of fact that bear on the applicability of Public Officers Law § 18 to defendant’s claims … . Dunn v County of Niagara, 2018 NY Slip Op 03271, Fourth Dept 5-4-18

​MUNICIPAL LAW (PUBLIC OFFICERS LAW, DEFENDANT COUNTY CORONER TOOK PLAINTIFF’S SON’S BRAIN MATTER FOR USE IN TRAINING CADAVER DOGS, QUESTION OF FACT WHETHER COUNTY OBLIGATED UNDER THE PUBLIC OFFICERS LAW TO DEFEND AND INDEMNIFY THE CORONER (I.E., WAS THE CORONER ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT?) (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, PUBLIC OFFICERS LAW, DEFENDANT COUNTY CORONER TOOK PLAINTIFF’S SON’S BRAIN MATTER FOR USE IN TRAINING CADAVER DOGS, QUESTION OF FACT WHETHER COUNTY OBLIGATED UNDER THE PUBLIC OFFICERS LAW TO DEFEND AND INDEMNIFY THE CORONER (I.E., WAS THE CORONER ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT?) (FOURTH DEPT))/PUBLIC OFFICERS LAW (DEFEND AND INDEMNIFY, DEFENDANT COUNTY CORONER TOOK PLAINTIFF’S SON’S BRAIN MATTER FOR USE IN TRAINING CADAVER DOGS, QUESTION OF FACT WHETHER COUNTY OBLIGATED UNDER THE PUBLIC OFFICERS LAW TO DEFEND AND INDEMNIFY THE CORONER (I.E., WAS THE CORONER ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT?) (FOURTH DEPT))

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INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT).

The Third Department determined that the inmate-petitioner’s motion for leave to file a late notice of claim, based upon an incident in the county jail, could not relate back to petitioner’s first (pro se) attempt to file a late notice of claim. Petitioner’s first attempt was sent to the court clerk as opposed to the county clerk. The court clerk returned the papers and instructed the petitioner to send them to the county clerk. Nothing further was done by the petitioner until an attorney was assigned and the statute of limitations had passed. The relation-back doctrine could not be applied because the failure to file the original papers with the county clerk was a jurisdictional defect:

… [W]here an action to enforce a claim has not yet been commenced, a party seeking to make an application for leave to serve a late notice of claim should commence a special proceeding in the Supreme Court or the County Court in a county where the action may be properly brought to trial (see General Municipal Law § 50-e [7]…). A special proceeding is commenced by the filing of initiatory papers with the County Clerk in the county in which the special proceeding is brought or with any other person designated by the County Clerk to accept filing… . While the Supreme Court or the County Court may convert an improperly brought motion for leave to serve a late notice of claim into a special proceeding … , the failure to file the application with the appropriate clerk — the County Clerk — is a fatal defect that may not be overlooked or corrected by the court pursuant to CPLR 2001… . Indeed, the filing of initiatory papers with the Clerk of the Supreme and County Courts, rather than the County Clerk, “has been equated to a nonfiling and, thus, ‘a nonwaivable jurisdictional defect rendering the proceeding a nullity'” … . Matter of Dougherty v County of Greene, 2018 NY Slip Op 03192, Third Dept 5-3-18

​MUNICIPAL LAW (NOTICE OF CLAIM, INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW,  INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT))/CIVIL PROCEDURE (NOTICE OF CLAIM, RELATION BACK, INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT))/STATUTE OF LIMITATIONS (NOTICE OF CLAIM, INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT))/COUNTY CLERK (FILING LATE NOTICE OF CLAIM, INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT))

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VILLAGE BOARD DID NOT TAKE THE ‘HARD LOOK’ REQUIRED BY THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), REVIEW WAS UNDERTAKEN TO FACILITATE THE CONDEMNATION OF LAND FOR THE CONSTRUCTION OF A PARKING GARAGE, VILLAGE DID NOT ADEQUATELY CONSIDER ADVERSE TRAFFIC IMPLICATIONS (THIRD DEPT).

The Third Department vacated the village board’s State Environmental Quality Review Act (SEQRA) findings that the construction of a parking garage would not result in a substantial increase in traffic. The board conducted a SEQRA review in preparation for a condemnation proceeding to acquire the land:

… [T]he record fails to establish that the Village Board took the requisite hard look at potential traffic implications associated with the construction of a parking garage on the subject property or to set forth a reasoned elaboration of the basis for its determination that the development of the property would not result in any substantial increase in traffic. Upon review of an eminent domain proceeding, courts are required to determine whether the condemnor’s findings and determinations comply with ECL article 8, which is incorporated as part of the required procedures under EDPL [Eminent Domain Procedure Law] article 2 … . In assessing compliance with the substantive mandates of SEQRA, we are tasked with reviewing the record to determine whether the Village Board, as the lead agency, “identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination” … . “Literal compliance with both the letter and spirit of SEQRA is required and substantial compliance will not suffice” … .

… An adverse change in traffic levels is … a potential area of environmental concern … .

During both the public hearing and the written comment period, concerns regarding increased traffic congestion and other potential traffic impacts associated with the proposed condemnation were repeatedly voiced. Yet, the record is bereft of any evidence that the Village Board took the requisite hard look at these potential traffic implications. Matter of Adirondack Historical Assn. v Village of Lake Placid/lake Placid Vil., Inc.,2018 NY Slip Op 03194, Third Dept 5-3-18

​ENVIRONMENTAL LAW (STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA). VILLAGE BOARD DID NOT TAKE THE ‘HARD LOOK’ REQUIRED BY THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), REVIEW WAS UNDERTAKEN TO FACILITATE THE CONDEMNATION OF LAND FOR THE CONSTRUCTION OF A PARKING GARAGE, VILLAGE DID NOT ADEQUATELY CONSIDER ADVERSE TRAFFIC IMPLICATIONS (THIRD DEPT))/MUNICIPAL LAW (STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA). VILLAGE BOARD DID NOT TAKE THE ‘HARD LOOK’ REQUIRED BY THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), REVIEW WAS UNDERTAKEN TO FACILITATE THE CONDEMNATION OF LAND FOR THE CONSTRUCTION OF A PARKING GARAGE, VILLAGE DID NOT ADEQUATELY CONSIDER ADVERSE TRAFFIC IMPLICATIONS (THIRD DEPT))/TRAFFIC (STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA). VILLAGE BOARD DID NOT TAKE THE ‘HARD LOOK’ REQUIRED BY THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), REVIEW WAS UNDERTAKEN TO FACILITATE THE CONDEMNATION OF LAND FOR THE CONSTRUCTION OF A PARKING GARAGE, VILLAGE DID NOT ADEQUATELY CONSIDER ADVERSE TRAFFIC IMPLICATIONS (THIRD DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (TRAFFIC, VILLAGE BOARD DID NOT TAKE THE ‘HARD LOOK’ REQUIRED BY THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), REVIEW WAS UNDERTAKEN TO FACILITATE THE CONDEMNATION OF LAND FOR THE CONSTRUCTION OF A PARKING GARAGE, VILLAGE DID NOT ADEQUATELY CONSIDER ADVERSE TRAFFIC IMPLICATIONS (THIRD DEPT))/CONDEMNATION (MUNICIPAL LAW, STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA). VILLAGE BOARD DID NOT TAKE THE ‘HARD LOOK’ REQUIRED BY THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), REVIEW WAS UNDERTAKEN TO FACILITATE THE CONDEMNATION OF LAND FOR THE CONSTRUCTION OF A PARKING GARAGE, VILLAGE DID NOT ADEQUATELY CONSIDER ADVERSE TRAFFIC IMPLICATIONS (THIRD DEPT))/EMINENT DOMAIN (MUNICIPAL LAW, STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA). VILLAGE BOARD DID NOT TAKE THE ‘HARD LOOK’ REQUIRED BY THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), REVIEW WAS UNDERTAKEN TO FACILITATE THE CONDEMNATION OF LAND FOR THE CONSTRUCTION OF A PARKING GARAGE, VILLAGE DID NOT ADEQUATELY CONSIDER ADVERSE TRAFFIC IMPLICATIONS (THIRD DEPT))

, ,

PLAINTIFF FIREFIGHTER’S MOTION FOR SUMMARY JUDGMENT IN THIS GENERAL MUNICIPAL LAW 205-a, LABOR LAW 27-a, SLIP AND FALL CASE WAS PROPERLY DENIED, PLAINTIFF’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT DEFENDANT’S NOTICE OF THE ALLEGED DANGEROUS CONDITION (SECOND DEPT).

The Second Department determined that plaintiff firefighter’s motion for summary judgment in this General Municipal Law 205-a, Labor Law 27-a slip and fall case was properly denied. Plaintiff alleged he was injured when he fell because of a gap in a grate at the Homeport Pier. The court noted that the plaintiff’s own submissions raised triable issues of fact about whether the gap was the result of defendant’s (the city’s) negligence:

General Municipal Law § 205-a(1) provides a right of action for firefighters who are injured “as a result of any neglect, omission, willful or culpable negligence” of a defendant “in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments.” To make out a valid claim under General Municipal Law § 205-a, a plaintiff must ” [1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the firefighter was injured, and [3] set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm to the firefighter'” … .

… [T]he only statute, ordinance, or rule identified by the plaintiff which could support the imposition of liability pursuant to General Municipal Law § 205-a under the facts of this case was Labor Law § 27-a  …. Labor Law § 27-a(3)(a)(1) provides that every employer shall furnish employment and a place of employment that are “free from recognized hazards” that cause or are likely to cause death or serious physical harm to employees. This statute may serve as a predicate for a cause of action alleging a violation of General Municipal Law § 205-a … . …

… [T]he plaintiff’s submissions failed to establish, prima facie, that the gap in the grates was a result of negligence by the City. His submissions included evidence that (1) the Homeport Pier was inspected regularly, (2) gaps in the grates were sometimes caused by expansion and contraction of the metal and shifting due to vehicles driving over them, (3) any gaps over an inch were rectified when discovered during regular inspections, and (4) the Homeport Pier and the grates were inspected within two days prior to the plaintiff’s accident. Shea v New York City Economic Dev. Corp., 2018 NY Slip Op 03164, Second Dept 5-2-18

​NEGLIGENCE (PLAINTIFF FIREFIGHTER’S MOTION FOR SUMMARY JUDGMENT IN THIS GENERAL MUNICIPAL LAW 205-a, LABOR LAW 27-a, SLIP AND FALL CASE WAS PROPERLY DENIED, PLAINTIFF’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT DEFENDANT’S NOTICE OF THE ALLEGED DANGEROUS CONDITION (SECOND DEPT))/MUNICIPAL LAW (PLAINTIFF FIREFIGHTER’S MOTION FOR SUMMARY JUDGMENT IN THIS GENERAL MUNICIPAL LAW 205-a, LABOR LAW 27-a, SLIP AND FALL CASE WAS PROPERLY DENIED, PLAINTIFF’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT DEFENDANT’S NOTICE OF THE ALLEGED DANGEROUS CONDITION (SECOND DEPT))/LABOR LAW  (PLAINTIFF FIREFIGHTER’S MOTION FOR SUMMARY JUDGMENT IN THIS GENERAL MUNICIPAL LAW 205-a, LABOR LAW 27-a, SLIP AND FALL CASE WAS PROPERLY DENIED, PLAINTIFF’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT DEFENDANT’S NOTICE OF THE ALLEGED DANGEROUS CONDITION (SECOND DEPT))/FIREFIGHTERS (GENERAL MUNICIPAL LAW 205-a, PLAINTIFF FIREFIGHTER’S MOTION FOR SUMMARY JUDGMENT IN THIS GENERAL MUNICIPAL LAW 205-a, LABOR LAW 27-a, SLIP AND FALL CASE WAS PROPERLY DENIED, PLAINTIFF’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT DEFENDANT’S NOTICE OF THE ALLEGED DANGEROUS CONDITION (SECOND DEPT))/SLIP AND FALL (GENERAL MUNICIPAL LAW 205-a, PLAINTIFF FIREFIGHTER’S MOTION FOR SUMMARY JUDGMENT IN THIS GENERAL MUNICIPAL LAW 205-a, LABOR LAW 27-a, SLIP AND FALL CASE WAS PROPERLY DENIED, PLAINTIFF’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT DEFENDANT’S NOTICE OF THE ALLEGED DANGEROUS CONDITION (SECOND DEPT))

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