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FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT).

The Second Department determined the board of commissioners of a fire district (a municipal corporation) did not have standing to contest the negative declaration under the State Environmental Quality Review Act (SEQRA) made by the town planning board regarding a residential development. Among other things, the fire district argued that the increased number of residents would burden the fire district with increased service calls. The Second Department noted that the increase burden was an economic concern, not an environmental concern:

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“To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … . To qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature Although raising economic concerns does not foreclose standing to also raise environmental injury … , economic injury is not by itself within the zone of interests which SEQRA seeks to protect … . Here, the petitioner’s concerns that an increase in the number of residents in its district would result in an increase in the number of service calls made by it, which would result in a financial burden on it, were insufficient to establish its standing since such concerns are solely economic in nature … . Matter of Board of Fire Commr. of the Fairview Fire Dist. v Town of Poughkeepsie Planning Bd., 2017 NY Slip Op 08514, Second Dept 12-6-17

 

ENVIRONMENTAL LAW (STATE ENVIRONMENTAL QUALITY REVIEW ACT, STANDING, FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT)}/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (STANDING, FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT)}/STANDING (ENVIRONMENTAL LAW, STATE ENVIRONMENTAL QUALITY REVIEW ACT, FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT)}

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NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, over a two-justice dissent, determined the NYC Landmarks Preservation Commission’s (LPC’s) decision to allow the electrification of a landmark nineteenth century clocktower (similar in structure to Big Ben) was based upon an error of law and was irrational. The clocktower had been sold to a private party which planned to convert it to a residence. The LPC found, in effect, that the commission did not have authority over the now privately-owned clocktower:

 

We hold that the LPC has authority under the Landmarks Law to regulate the clock mechanism for two reasons.

First, this result effectuates the statutory purposes. The Landmarks Law, New York City’s first historic preservation statute, * * * declares that “the protection, enhancement, perpetuation and use of improvements . . . of special character or special historical or aesthetic interest or value is a public necessity and is required in the interest of the health, prosperity, safety and welfare of the people” (Landmarks Law § 25-301[b]). … * * *

Second, the Landmarks Law defines the term “interior architectural feature” to include the “components of an interior, including, but not limited to . . . the type and style of all . . . fixtures appurtenant to such interior” (Landmarks Law § 25-302[l]). Matter of Save America’s Clocks, Inc. v City of New York, 2017 NY Slip Op 08457, First Dept 11-30-17

 

ADMINISTRATIVE LAW (NYC LANDMARKS PRESERVATION LAW NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT))/MUNICIPAL LAW  (NYC LANDMARKS PRESERVATION LAW NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT))/ENVIRONMENTAL LAW (NYC LANDMARKS PRESERVATION LAW NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT))/LANDMARKS (NYC LANDMARKS PRESERVATION LAW NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT))/CLOCKTOWER  (NYC LANDMARKS PRESERVATION LAW NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT))

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OUT OF POSSESSION LANDLORD (NYC HOUSING AUTHORITY) DEMONSTRATED IT DID NOT HAVE NOTICE OF A DEFECTIVE WINDOW WHICH ALLEGEDLY SLAMMED SHUT SEVERING A PORTION OF PLAINTIFF’S FINGER, LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant out-of-possession landlord (NYC Housing Authority) should have been granted summary judgment in this personal injury action. Plaintiff alleged a window in his apartment failed to stay open and slammed shut, severing a portion of a finger. Apparently a window had been repaired by the landlord about a year before, but no subsequent complaints about windows were made:

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“An out-of-possession landlord that has assumed the obligation to make repairs to its property cannot be held liable for injuries caused by a defective condition at the property unless it either created the condition or had actual or constructive notice of it” … . Here, with respect to the negligent maintenance claim, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the alleged injury-producing condition or have actual or constructive notice of the condition … . The evidence showed that, more than one year prior to the incident, a window in the living room of the subject apartment had been repaired following an inspection by the defendant, and that there had been no complaints about the windows in the apartment following the repair. In opposition, the plaintiff failed to raise a triable issue of fact … .

The defendant also established its prima facie entitlement to judgment as a matter of law dismissing the remaining theories of liability by demonstrating that they had not been included in the notice of claim … . Cotto v New York City Hous. Auth., 2017 NY Slip Op 08258, Second Dept 11-22-17

 

NEGLIGENCE (OUT OF POSSESSION LANDLORD (NYC HOUSING AUTHORITY) DEMONSTRATED IT DID NOT HAVE NOTICE OF A DEFECTIVE WINDOW WHICH ALLEGEDLY SLAMMED SHUT SEVERING A PORTION OF PLAINTIFF’S FINGER, LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/LANDLORD-TENANT  (OUT OF POSSESSION LANDLORD (NYC HOUSING AUTHORITY) DEMONSTRATED IT DID NOT HAVE NOTICE OF A DEFECTIVE WINDOW WHICH ALLEGEDLY SLAMMED SHUT SEVERING A PORTION OF PLAINTIFF’S FINGER, LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, NEGLIGENCE, OUT OF POSSESSION LANDLORD (NYC HOUSING AUTHORITY) DEMONSTRATED IT DID NOT HAVE NOTICE OF A DEFECTIVE WINDOW WHICH ALLEGEDLY SLAMMED SHUT SEVERING A PORTION OF PLAINTIFF’S FINGER, LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, THEORIES NOT INCLUDED IN NOTICE OF CLAIM PROPERLY DISMISSED (SECOND DEPT))

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PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATED ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff’s motion for leave to file a late notice of claim should have been ​granted. Plaintiff alleged defendant town caused water and debris to drain onto his property causing the foundation of his house to cave in. In finding plaintiff should have been allowed to file a late notice of claim, the court explained the factors that should be considered and the flaws in Supreme Court’s analysis, which focused on the excuse for the delay and the merits of the underlying action. The most important factors are the defendant’s actual notice of the facts of the case within the statutory period and the absence of prejudice:

While a reasonable excuse for the delay is a statutory factor … , it is well settled that “‘the failure to offer a reasonable excuse for the delay in filing a notice of claim is not fatal where actual [knowledge] was had and there is no compelling showing of prejudice'” … . Similarly, although Supreme Court was permitted to consider the merits of the underlying claim, leave should only be denied on this basis when the claim is “‘patently meritless'” … , which was not established here.

Upon our consideration of all of the pertinent statutory factors, we find that, although plaintiff did not provide a reasonable excuse for his delay, he adequately set forth proof of actual knowledge and lack of substantial prejudice such that his motion should have been granted. Daprile v Town of Copake, 2017 NY Slip Op 08243, Third Dept 11-22-17

 

MUNICIPAL LAW (NOTICE OF CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/REAL PROPERTY LAW (TRESPASS, NUISANCE, MUNICIPAL LAW, NOTICE OF CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/TRESPASS (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/NUISANCE (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))

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PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over two concurring opinions, answered two certified questions from the Second Circuit. The defendant in the federal suit is Battery Park City Authority (BPCA), a public benefit corporation, which was sued by plaintiffs alleging personal injury caused by 9-11 clean-up of properties owned by BPCA. The legislature had enacted an amendment to the General Municpal Law to allow the plaintiffs to file late notices of claim. BPCA successfully argued in federal district court that the amendment extending the time to file notices of claim was unconstitutional as applied. When the matter came before the Second Circuit on appeal, the Second Circuit asked the Court of Appeals to determine whether the BPCA should be treated like the state for purposes of the capacity to challenge a statute (answer: yes) and asked for clarification of the standard for analyzing due process in this context (answer: whether the statute was enacted as a reasonable response in order to remedy an injustice):

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We … hold that, under the capacity rule, public benefit corporations have no greater stature to challenge the constitutionality of State statutes than do municipal corporations or other local governmental entities. Of course, our holding today does not mean that public benefit corporations can never raise such constitutional challenges; like municipalities, they may avail themselves of an exception to the general rule … . However, courts need not engage in a “particularized inquiry” to determine whether a public benefit corporation should first be treated like the State. Unlike in other contexts, for purposes of our capacity bar, every public benefit corporation is the State. * * *

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… [A] claim-revival statute will satisfy the Due Process Clause of the State Constitution if it was enacted as a reasonable response in order to remedy an injustice. Matter of World Trade Ctr. Lower Manhattan Disaster Site Litigation., 2017 NY Slip Op 08166, CtApp 11-21-17

 

MUNICIPAL LAW (NOTICES OF CLAIM, PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/CONSTITUTIONAL LAW (PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/9-11 (NOTICES OF CLAIM, PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/BATTER PARK CITY AUTHORITY (9-11 CLEANUP, (NOTICES OF CLAIM, PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/CAPACITY TO CHALLENGE STATUTE (PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))

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NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that he New York City charter provisions governing service of a Notice of Violation (NOV) of the building code require only one unsuccessful attempt at personal service before the affix and mail provisions kick in. The CPLR nail and mail provisions (which require due diligence in the attempts at personal service) do not apply:

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The question presented is whether, prior to use of the affix and mail procedure, the City Charter requires more than a single attempt to personally serve the NOV at the premises. * * *

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… [T]he plain language of the relevant statute speaks in the singular — “[s]uch notice may only be affixed . . . where a reasonable attempt has been made” at personal delivery — indicating that only one attempt is required … . * * *

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Moreover, the alternate service procedure authorized by the statute — a single attempt to personally deliver the NOV, coupled with affixing the NOV to the property and mailing copies to the owner at the premises and other addresses on file with related City agencies — is reasonably calculated to inform owners of violations relating to their properties. Matter of Mestecky v City of New York, 2017 NY Slip Op 08162, CtApp 11-20-17

 

MUNICIPAL LAW (NYC) (NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))/REAL PROPERTY LAW (NYC, BUILDING CODE VIOLATIONS, NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))/CIVIL PROCEDURE (NYC, BUILDING CODE VIOLATIONS, NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))/NOTICES OF VIOLATION (NYC BUILDING CODE, NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))/NAIL AND MAIL (NYC BUILDING CODE VIOLATIONS, NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))/NOTICE OF VIOLATION (NOV)  (NYC BUILDING CODE VIOLATIONS, NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))

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ALTHOUGH THE DRIVER WAS INTOXICATED AND WAS DRIVING AT HIGH SPEED, DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE THE FAILURE TO CLOSE THE PARK GATE AND THE FAILURE TO PROVIDE SPEED LIMIT AND ROAD-CURVE SIGNS DID NOT CONSTITUTE NEGLIGENCE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendant’s motion for summary judgment in this fatal car accident case should not have been granted. Plaintiffs’ decedent was killed when the car in which he was a passenger entered a park at night and crashed after failing to negotiate a curve in the road. The driver, Benedict, was intoxicated and there was evidence the car was driven at high speed. Although a sign at the park indicated it was closed at dusk, the gate was open, there were no signs indicating an upcoming  curve in the road, and there were no speed limit signs. The driver had never been on the road before:

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A municipality has a duty to maintain its roads in a reasonably safe condition “in order to guard against contemplated and foreseeable risks to motorists,” including risks related to a driver’s negligence or misconduct… . In other words, a municipality is not relieved of liability for failure to keep its roadways in a reasonably safe condition “whenever [an accident] involves driver error” … . Defendant’s duty to maintain the road was therefore not negated by Benedict’s intoxication or the fact that the park was closed when the accident occurred … , and we conclude that defendant did not establish as a matter of law that Benedict’s presence under those circumstances was unforeseeable … . Inasmuch as defendant presented no evidence that the road was reasonably safe at night in the absence of the safety measures proposed by plaintiffs, we conclude that defendant failed to establish as a matter of law that it was not negligent … .

We further agree with plaintiffs that the court erred in determining as a matter of law that Benedict’s actions were the sole proximate cause of the accident. Although defendant presented evidence that Benedict was intoxicated and driving “at high speed,” we conclude that its submissions did not establish as a matter of law that Benedict’s manner of driving “would have been the same” if the safety measures proposed by plaintiffs had been in place … . Stiggins v Town of N. Dansville, 2017 NY Slip Op 08108, Fourth Dept 11-17-17

 

NEGLIGENCE (MUNICIPAL LAW, ROAD SAFETY, ALTHOUGH THE DRIVER WAS INTOXICATED AND WAS DRIVING AT HIGH SPEED, DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE THE FAILURE TO CLOSE THE PARK GATE AND THE FAILURE TO PROVIDE SPEED LIMIT AND ROAD-CURVE SIGNS DID NOT CONSTITUTE NEGLIGENCE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/MUNICIPAL LAW (NEGLIGENCE, ROAD SAFETY, ALTHOUGH THE DRIVER WAS INTOXICATED AND WAS DRIVING AT HIGH SPEED, DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE THE FAILURE TO CLOSE THE PARK GATE AND THE FAILURE TO PROVIDE SPEED LIMIT AND ROAD-CURVE SIGNS DID NOT CONSTITUTE NEGLIGENCE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/HIGHWAYS AND ROADS (NEGLIGENCE, MUNICIPAL LAW, ROAD SAFETY, ALTHOUGH THE DRIVER WAS INTOXICATED AND WAS DRIVING AT HIGH SPEED, DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE THE FAILURE TO CLOSE THE PARK GATE AND THE FAILURE TO PROVIDE SPEED LIMIT AND ROAD-CURVE SIGNS DID NOT CONSTITUTE NEGLIGENCE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, ROAD SAFETY, ALTHOUGH THE DRIVER WAS INTOXICATED AND WAS DRIVING AT HIGH SPEED, DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE THE FAILURE TO CLOSE THE PARK GATE AND THE FAILURE TO PROVIDE SPEED LIMIT AND ROAD-CURVE SIGNS DID NOT CONSTITUTE NEGLIGENCE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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DEPUTY SHERIFF WAS COERCED INTO RESIGNING WITHOUT A HEARING, SHERIFF SHOULD HAVE ALLOWED DEPUTY TO WITHDRAW HIS RESIGNATION (FOURTH DEPT).

The Fourth Department determined Supreme Court properly found that the sheriff abused his discretion when he refused to allow petitioner, a deputy sheriff, to withdraw his resignation. The deputy resigned after the sheriff told him he would be fired if he didn’t resign:

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It is well settled that ” [a] resignation under coercion or duress is not a voluntary act and may be nullified’ ” … . Although a threat to terminate an employee does not constitute duress if the person making the threat has the legal right to terminate the employee … , such a threat does constitute duress if it is wrongful and precludes the exercise of free will … . It follows that a resignation obtained under the threat of wrongful termination is involuntary and may be withdrawn upon request, and that it is an abuse of discretion for an officer to deny such a request … .

Here, petitioner tendered his resignation under the threat of wrongful termination, and we therefore conclude that the Sheriff abused his discretion in refusing to allow petitioner to withdraw the resignation. Civil Service Law § 75 provides that a public employer may not terminate or otherwise discipline certain public employees “except for incompetency or misconduct shown after a hearing upon stated charges” … . A covered employee “against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing” … . Thereafter, a hearing must be held … . There is no dispute that petitioner was covered by the statute and that he was not provided with the requisite predisciplinary hearing. Thus, the Sheriff had no legal right to terminate him.  Matter of Ortlieb v Lewis County Sheriff’s Dept., 2017 NY Slip Op 08115, Fourth Dept 11-17-17

 

MUNICIPAL LAW (EMPLOYMENT LAW, CIVIL SERVICE LAW, DEPUTY SHERIFF WAS COERCED INTO RESIGNING WITHOUT A HEARING, SHERIFF SHOULD HAVE ALLOWED DEPUTY TO WITHDRAW HIS RESIGNATION (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, CIVIL SERVICE LAW,  DEPUTY SHERIFF WAS COERCED INTO RESIGNING WITHOUT A HEARING, SHERIFF SHOULD HAVE ALLOWED DEPUTY TO WITHDRAW HIS RESIGNATION (FOURTH DEPT))/CIVIL SERVICE LAW (EMPLOYMENT LAW,  DEPUTY SHERIFF WAS COERCED INTO RESIGNING WITHOUT A HEARING, SHERIFF SHOULD HAVE ALLOWED DEPUTY TO WITHDRAW HIS RESIGNATION (FOURTH DEPT))

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PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing in part Supreme Court, determined plaintiff’s complaint stated employment (sex and age) discrimination and retaliation causes of action pursuant to the NYC Human Rights Law, a notice of claim was required for the First Amendment violation cause of action against the city (plaintiff’s employer), and plaintiff’s motion to amend the complaint to state the First Amendment violation cause of action pursuant to 18 USC 1983 (which does not require a notice of claim) should have been granted:

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Here, the Supreme Court erred in granting those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging employment discrimination on the basis of sex and age in violation of the NYCHRL … . The allegation that a coworker repeatedly demonstrated a sex toy to the plaintiff was sufficient to state a cause of action to recover damages for sexual harassment in violation of the NYCHRL … . Further, in opposition to the defendants’ motion, the plaintiff submitted an affirmation of a separate coworker detailing detailing further allegations of sexual harassment directed toward the plaintiff. The court erred in determining that the cause of action must be dismissed because the behavior constituted no more than petty slights or trivial inconveniences. A contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense … which should be raised in the defendants’ answer and does not lend itself to a pre-answer motion to dismiss … .

Further, the allegations of disparate treatment of older employees, including the plaintiff, and that the plaintiff’s demotion was based, in part, on age discrimination, sufficiently stated a cause of action to recover damages for age discrimination in violation of the NYCHRL … . …

The Supreme Court also erred in granting dismissal of the cause of action alleging unlawful retaliation based on the plaintiff’s complaints of sexual harassment. … The allegations that, following the plaintiff’s complaint to a supervisor concerning alleged sexual harassment, the plaintiff was assigned double the normal workload, subjected to increased scrutiny of her work and reprimands for minor errors, and ultimately demoted a few months later, sufficiently stated a cause of action to recover damages for unlawful retaliation for the plaintiff’s complaints of sexual harassment in violation of the NYCHRL … . However, the complaint failed to allege that the plaintiff ever complained about the alleged age discrimination, and thus the court properly granted dismissal of the cause of action alleging unlawful retaliation based on complaints of age discrimination. Kassapian v City of New York, 2017 NY Slip Op 07985, Second Dept 11-15-17

 

EMPLOYMENT LAW (PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (EMPLOYMENT LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/HUMAN RIGHTS LAW (EMPLOYMENT LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, EMPLOYMENT LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONSTITUTIONAL LAW (FREE SPEECH, EMPLOYMENT LAW, MUNICIPAL LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/FREE SPEECH (EMPLOYMENT LAW, MUNICIPAL LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (AMEND COMPLAINT, EMPLOYMENT LAW, MUNICIPAL LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/DISCRIMINATION (EMPLOYMENT LAW, HUMAN RIGHTS LAW, MUNICIPAL LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))

, ,

OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that the condemnation of regulated wetlands can be subject to an increased valuation (increment) based upon a reasonable probability a knowledgeable buyer could successfully challenge the taking as unconstitutional. The increment represents the premium that a knowledgeable buyer would be willing to pay for a potential change to a more valuable use. Here Supreme Court found the increment to be $382,190.25. The Second Department, using the City’s appraisal, reduced the increment to about $157,000.00. The value of the regulated wetlands was deemed to be $75,000.00:

​

In light of the United States Supreme Court’s holding in Palazzolo [v Rhode Island, 533 US at 617], we conclude that a subsequent buyer of the property would not be precluded from bringing a successful regulatory takings claim. As a result, we reject the City’s argument that no knowledgeable buyer would be willing to pay a premium for the probability of a successful judicial determination that the regulations were confiscatory. We hold that the reasonable probability incremental increase rule still may be applied in valuing regulated wetlands properties taken in condemnation. Matter of New Cr. Bluebelt, Phase 3., 2017 NY Slip Op 07994, Second Dept 11-15-17

 

MUNICIPAL LAW (CONDEMNATION, REGULATED WETLANDS,OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/REAL PROPERTY LAW (CONDEMNATION, REGULATED WETLANDS , OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/CONSTITUTIONAL LAW (CONDEMNATION, REGULATED WETLANDS, OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/CONDEMNATION (REGULATED WETLANDS, OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/REGULATORY TAKING (WETLANDS, CONDEMNATION, OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/WETLANDS (CONDEMNATION, REGULATED WETLANDS, OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/EMINENT DOMAIN (CONDEMNATION, REGULATED WETLANDS,OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))

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