Municipal Law – Page 88 – New York Appellate Digest

TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant town did not demonstrate it did not created the dangerous condition in this slip and fall case. The town’s motion for summary judgment should not have been granted:

Here, the plaintiff alleged in his bill of particulars that the Town negligently caused, permitted, and allowed the barricade to be placed in such a way that a part of the barricade extended out into the line of pedestrian traffic. Thus, to establish its prima facie entitlement to judgment as a matter of law, the Town was required to establish, prima facie, both that it did not receive prior written notice of the condition and that it did not create the condition through an affirmative act of negligence … .

Although the Town established, prima facie, that it did not have prior written notice of the allegedly negligent positioning of the barricade, it failed to establish, prima facie, that it did not create the allegedly dangerous condition through an affirmative act of negligence. Since the Town’s submissions failed to eliminate all triable issues of fact as to whether it was responsible for the allegedly negligent placement of the barricade, the motion for summary judgment should have been denied regardless of the sufficiency of the papers submitted in opposition … . Toscano v Town of Huntington, 2017 NY Slip Op 08872, Second Dept 12-20-17

NEGLIGENCE (MUNICIPAL LAW, TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

December 20, 2017

Municipal Law, Negligence

COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the county’s motion for summary judgment in this action brought by a former jail inmate for injuries related to suicide attempt (by jumping out a window) was properly denied. The defendants failed to demonstrate the attempt was not foreseeable and that the medical care provided was adequate:

The County owes a duty of care to protect its prisoners, even from self-inflicted harm… . However, the County is not an insurer of prisoner safety and negligence cannot be inferred merely because an incident occurred… . Rather, the County’s duty is limited to providing reasonable care to protect prisoners from risks of harm that are reasonably foreseeable, i.e., those that the County knew or should have known… .

Here, the defendants, as the parties seeking summary judgment, bore the burden of establishing that the injured plaintiff’s attempt to commit suicide was not foreseeable… . … The defendants’ submissions failed to eliminate triable issues of fact as to whether the defendants knew or should have known that the injured plaintiff posed a risk of harm to herself and whether the defendants “failed to use adequate supervision to prevent that which was reasonably foreseeable”… . Moreover, the defendants’ submissions failed to eliminate triable issues of fact as to whether they violated 42 USC § 1983 by depriving the injured plaintiff of her Fourteenth Amendment right to adequate medical care … , and Mr. Iannelli’s claim for loss of consortium … . Iannelli v County of Nassau, 2017 NY Slip Op 08815, Second Dept 12-20-17

NEGLIGENCE (MUNICIPAL LAW, INMATES, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/MUNICIPAL (NEGLIGENCE, INMATES, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/INMATES (NEGLIGENCE, MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/JAILS (NEGLIGENCE, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/SUICIDE (MUNICIPAL LAW, NEGLIGENCE, INMATES, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

December 20, 2017

Municipal Law, Negligence

COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the county had not met its burden and its motion for summary judgment was properly denied. Plaintiff, an inmate at the county jail, alleged he was injured in a fight involving other inmates. The complaint alleged the failure to keep the inmate safe and the failure to provide adequate medical care. The proof offered by the county did not demonstrate the altercation was not foreseeable, the protective measures were adequate, or the medical care was adequate. The failure to offer sufficient proof addressing these issues required the denial of summary judgment:

“Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the [municipality owes] a duty of care to safeguard inmates, even from attacks by fellow inmates” … . “Like other duties in tort, the scope of the . . . duty to protect inmates is limited to risks of harm that are reasonably foreseeable” … . On its motion for summary judgment, the County had the burden of establishing that the assault of the plaintiff was not foreseeable … . The County did not meet that burden, as it failed to eliminate triable issues of fact as to whether it knew or should have known of the dangerous propensity of certain inmates involved in the assault, or of prior similar incidents occurring while meals were being distributed by inmates. Evidence submitted by the County indicated that such altercations involving inmates distributing meals occurred monthly. Moreover, the County also failed to eliminate triable issues of fact as to the adequacy of the measures taken to prevent reasonably foreseeable harm … .

With respect to the second cause of action, which alleged a failure to provide the plaintiff with timely, adequate medical attention, a municipality owes a duty to its incarcerated citizens to provide them with adequate medical care … . The County did not submit the affidavit of an expert attesting to the adequacy of the medical care provided to the plaintiff. Its attorney’s conclusory assertion that the plaintiff received timely, adequate medical care, together with its submission of the plaintiff’s medical records, failed to establish the County’s prima facie entitlement to judgment as a matter law dismissing the second cause of action … . Adeleke v County of Suffolk, 2017 NY Slip Op 08803, Second Dept 12-20-17

NEGLIGENCE (INMATES, COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (INMATES, NEGLIGENCE, COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/INMATES (NEGLIGENCE, COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/JAILS (NEGLIGENCE, COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

December 20, 2017

Civil Commitment, Criminal Law, Evidence, Mental Hygiene Law, Municipal Law

SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT).

The Second Department determined sealed records were properly unsealed in this sex offender civil commitment hearing:

The Supreme Court properly granted the State’s motion to unseal the records kept by the Office of the Suffolk County District Attorney and the Suffolk County Police Department regarding the defendant’s 2001 arrest for rape in the first degree. Mental Hygiene Law § 10.08(c) provides, “Notwithstanding any other provision of law, the commissioner, the case review panel and the attorney general shall be entitled to request from any agency, office, department or other entity of the state, and such entity shall be authorized to provide upon request, any and all records and reports relating to the respondent’s commission or alleged commission of a sex offense, the institutional adjustment and any treatment received by such respondent, and any medical, clinical or other information relevant to a determination of whether the respondent is a sex offender requiring civil management.” “The primary goal of the court in interpreting a statute is to determine and implement the Legislature’s intent”… . Given the legislative purpose underlying Mental Hygiene Law § 10.08(c), we have construed this statute to permit authorized parties to obtain records from local government entities in addition to State entities … . Matter of State of New York v David B., 2017 NY Slip Op 08831, Second Dept 12-20-17

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL COMMITMENT, SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))/EVIDENCE (MENTAL HYGIENE LAW, SEX OFFENDERS, SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))/MUNICIPAL LAW (SEALED RECORDS, MENTAL HYGIENE LAW, SEX OFFENDERS, SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))/SEALED RECORDS SEX OFFENDERS, CIVIL COMMITMENT, SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))

December 20, 2017

Administrative Law, Municipal Law

NYC WATER BOARD’S RATE HIKE AND BILL CREDIT WERE NOT IRRATIONAL. ARBITRARY OR CAPRICIOUS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two-judge dissent, reversing the appellate division, determined the rate hike imposed by the NYC Water Board was not arbitrary and capricious. The board imposed a 2.1% rate increase, a bill credit, and assistance programs and low-consumption rate freeze. Petitioners — various landlords not eligible for the bill credit and a landlords’ not-for-profit association — … assert that the Water Board’s determinations were irrational, arbitrary and capricious, and exceeded the Board’s authority:

Our case law holds that a utility has “unfettered discretion to fix [rates] as it will so long as invidious illicit discriminations are not practiced and differentials are not utterly arbitrary and unsupported by economic or public policy goals, as it reasonably conceives them”… . A petitioner’s task in demonstrating that the rate-setting agency’s determination is unreasonable is appropriately described as a “heavy burden” … .

It is clear from the governing statutes that water and sewer rates may be determined in accordance with public policy goals, and not only economic goals. The Water Board “may take into consideration the views and policies of any elected official or body, or other person” and ultimately “appl[ies] independent judgment in the best interest of the authority, its mission and the public” … . Moreover, the statutory scheme gives the Board leeway to charge more than the bare minimum necessary for revenue recovery, by stating that the rates are to generate “revenues which, together with other revenues available to the board, if any, shall be at least sufficient at all times so that such system or systems shall be placed on a self-sustaining basis” … . In short, New York City’s “Water Board is granted broad authority to set rates for water usage” … .

Here, we cannot say that respondents’ actions were “utterly arbitrary and unsupported by economic or public policy goals, as it reasonably conceives them” … . Matter of Prometheus Realty Corp. v New York City Water Bd., 2017 NY Slip Op 08801, CtApp 12-19-17

MUNICIPAL LAW (NYC WATER BOARD’S RATE HIKE AND BILL CREDIT WERE NOT IRRATIONAL, ARBITRARY OR CAPRICIOUS (CT APP))/ADMINISTRATIVE LAW (NYC WATER BOARD’S RATE HIKE AND BILL CREDIT WERE NOT IRRATIONAL, ARBITRARY OR CAPRICIOUS (CT APP))/WATER BOARD (NYC WATER BOARD’S RATE HIKE AND BILL CREDIT WERE NOT IRRATIONAL, ARBITRARY OR CAPRICIOUS (CT APP))

December 19, 2017

Municipal Law, Negligence

WET AND MUDDY CONDITION OF A FIELD WAS OPEN AND OBVIOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the muddy, wet conditions surrounding a town baseball field constituted a non-actionable open and obvious condition:

Each of the defendants established its prima facie entitlement to judgment as a matter of law by demonstrating that the muddy condition of the field, caused by rain, was an open and obvious condition readily observable by those employing the reasonable use of their senses, and not inherently dangerous… . In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff relied on the affidavit of an expert whose opinion concerning the maintenance of the subject field was conclusory and speculative with no independent factual basis, and thus, insufficient to defeat a motion for summary judgment … . Sirianni v Town of Oyster Bay, 2017 NY Slip Op 08707, Second Dept 12-13-17

NEGLIGENCE (SLIP AND FALL, WET AND MUDDY CONDITION OF A FIELD WAS OPEN AND OBVIOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (WET AND MUDDY CONDITION OF A FIELD WAS OPEN AND OBVIOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, WET AND MUDDY CONDITION OF A FIELD WAS OPEN AND OBVIOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUDDY GROUND (SLIP AND FALL, WET AND MUDDY CONDITION OF A FIELD WAS OPEN AND OBVIOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, WET AND MUDDY CONDITION OF A FIELD WAS OPEN AND OBVIOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

December 13, 2017

Municipal Law

IN THIS CONDEMNATION PROCEEDING, VALUATION OF REAL PROPERTY BASED UPON THE ASSUMPTION A SPECIAL USE PERMIT WOULD BE GRANTED WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

The Second Department determined the valuation of land for condemnation purposes should not have been based upon the assumption a special use permit would be granted, allowing the construction of retail stores on the property:

The Supreme Court also erred in determining that the highest and best use of parcel 1 and parcel 2 on the date of the taking was retail use at the maximum allowable density. “The measure of damages in a condemnation case must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time'”… . The determination of highest and best use must be based upon evidence of a use which reasonably could or would be made of the property in the near future … . “Ordinarily potential uses the court may consider in determining value are limited to those uses permitted by the zoning regulations at the time of taking” … . However, when there is a reasonable probability of rezoning, some adjustment must be made to the value of the property to reflect that fact … .

Here, the claimants failed to establish that there was a reasonable probability that they would have been granted a special use permit … . The expert planner did not review the history of any special use permit applications to the Town Board, or reference any large-scale retail developments that were located on the vesting date in the immediate area of the subject property. Matter of Town of Oyster Bay v 55 Motor Ave. Co., LLC, 2017 NY Slip Op 08672, Second Dept 12-13-17

MUNICIPAL LAW (IN THIS CONDEMNATION PROCEEDING, VALUATION OF REAL PROPERTY BASED UPON THE ASSUMPTION A SPECIAL USE PERMIT WOULD BE GRANTED WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))/EMINENT DOMAIN (IN THIS CONDEMNATION PROCEEDING, VALUATION OF REAL PROPERTY BASED UPON THE ASSUMPTION A SPECIAL USE PERMIT WOULD BE GRANTED WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))/CONDEMNATION (EMINENT DOMAIN, IN THIS CONDEMNATION PROCEEDING, VALUATION OF REAL PROPERTY BASED UPON THE ASSUMPTION A SPECIAL USE PERMIT WOULD BE GRANTED WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))/HIGHEST AND BEST USE (IN THIS CONDEMNATION PROCEEDING, VALUATION OF REAL PROPERTY BASED UPON THE ASSUMPTION A SPECIAL USE PERMIT WOULD BE GRANTED WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))

December 13, 2017

Municipal Law, Negligence

COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT).

The Third Department determined that the defendant county’s motion for summary judgment in this road-defect action by an injured motorcyclist was properly denied. Although the county had a written notice requirement as a prerequisite for an action based upon a road defect, the Highway Law also applies and will impose liability if the county had notice of the defect:

The general rule is that if a municipality enacts a prior written notice statute, unless such notice is duly furnished, “a plaintiff may not bring a civil action against a municipality for damages as the result of an injury sustained by reason of a defective . . . highway” … . However, where Highway Law § 139 is applicable — in the case of county roads — “[e]ven if a local law exists requiring prior written notice of a defect, a civil action may be commenced absent such notice against a municipality for injuries resulting from a defect in a highway under its care if the ‘defective, unsafe, dangerous or obstructed condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence'” … . Thus, to establish entitlement to summary judgment, a county must show both that it received no prior written notice of the alleged defect and that it had no actual or constructive notice thereof … . Pasternak v Chenango, 2017 NY Slip Op 08578, Third Dept 12-7-17

MUNICIPAL LAW (TRAFFIC ACCIDENTS, ROAD DEFECTS, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, ROAD DEFECTS, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/HIGHWAYS AND ROADS (TRAFFIC ACCIDENTS, ROAD DEFECTS, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/WRITTEN NOTICE (MUNICIPAL LAW, ROAD DEFECTS, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/NEGLIGENCE (MUNICIPAL LAW, ROAD DEFECTS, WRITTEN NOTICE REQUIREMENT, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))

December 7, 2017

Municipal Law, Negligence

FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff firefighter’s General Municipal Law 205-a cause of action should not have been dismissed. It was alleged that the fire which caused plaintiff’s injury was started by a warming plate that was left on when defendant left her apartment in violation of the NYC Fire Code. Although the defendant’s act was not the proximate cause of plaintiff’s injury, the General Municipal Law 205-a cause of action requires only a connection between the injury and a code violation:

Plaintiff firefighter was injured while attempting to fight a fire that had originated in defendant’s apartment. Issues of fact exist as to whether defendant was negligent in leaving a warming tray/hot plate plugged into a timer, in the “on” position, when she left her apartment to go to a friend’s home for dinner. The Fire Marshall concluded that the fire originated in the area of the warming tray/hot plate and timer. Although the motion court correctly concluded that defendant’s alleged negligence was not a proximate cause of plaintiff’s injuries, General Municipal Law § 205-a imposes liability where there is a practical or reasonable connection between a statutory or code violation and the firefighter’s injury or death … . Plaintiff’s expert fire investigator opined that, by leaving the apartment with the electrical heating devices on, defendant delayed the discovery of the fire and allowed it to grow and spread. Accordingly, there is a sufficient connection between defendant’s alleged negligence and plaintiff’s injury … . The court also improperly found that the New York City Fire Code (Administrative Code of City of NY tit 29, ch 2) § FC 305.4 was inapplicable to the facts of this case. That section is not limited to “combustible waste,” but expressly includes “combustible material.” Moreover, while combustible waste that has economic value to a premises is considered combustible material … , combustible material is not so limited, but is any material capable of combustion. The materials in defendant’s kitchen were clearly combustible. Walsh v Michelson, 2017 NY Slip Op 08616, First Dept 12-7-17

MUNICIPAL LAW (FIREFIGHTERS, GENERAL MUNICIPAL LAW 205-a, FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))/GENERAL MUNICIPAL LAW 205-a FIREFIGHTERS (FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))/FIREFIGHTERS (GENERAL MUNICIPAL LAW 205-a, FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))/NEGLIGENCE (GENERAL MUNICIPAL LAW 205-a, FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))

December 7, 2017

Municipal Law, Negligence

EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF’S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT).

The Second Department determined the complaint against the village was properly dismissed because the village did not have written notice of the defect which caused injury. Apparently the village had abandoned a manhole in the street and the state had paved over it. An explosion beneath the manhole lifted up plaintiff’s car which came down on the opposite side of the street:

Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a defect which comes within the ambit of the law unless it has received written notice of the alleged defect or dangerous condition, or an exception to the written notice requirement applies … . “Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it”… .

Here, the Village established its prima facie entitlement to judgment as a matter of law by submitting evidence, including an affidavit from the Village Clerk, demonstrating that it did not receive prior written notice of the condition alleged. The Village further established, prima facie, that it did not create the alleged condition through an affirmative act of negligence, which was the only exception alleged in the plaintiff’s pleadings … In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Village had prior written notice or whether an exception to that requirement applied … . Dibble v Village of Sleepy Hollow, 2017 NY Slip Op 08503, Second Dept 12-6-17

MUNICIPAL LAW (NEGLIGENCE, WRITTEN NOTICE, EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF’S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, WRITTEN NOTICE, EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF’S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT))/WRITTEN NOTICE (MUNICIPAL LAW, NEGLIGENCE, EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF’S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT))

December 6, 2017

TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT).

NYC WATER BOARD’S RATE HIKE AND BILL CREDIT WERE NOT IRRATIONAL. ARBITRARY OR CAPRICIOUS (CT APP).

WET AND MUDDY CONDITION OF A FIELD WAS OPEN AND OBVIOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

IN THIS CONDEMNATION PROCEEDING, VALUATION OF REAL PROPERTY BASED UPON THE ASSUMPTION A SPECIAL USE PERMIT WOULD BE GRANTED WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT).

FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT).

EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF’S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT).

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