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PETITIONER’S RENT SUBSIDY SHOULD NOT HAVE BEEN TERMINATED BASED UPON THE UNWANTED PRESENCE IN THE HOME OF A FORMER INTIMATE PARTNER, TERMINATION OF BENEFITS VIOLATED THE VIOLENCE AGAINST WOMEN ACT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Brathwaite Nelson, determined petitioner’s rent subsidy benefits under the Section 8 Housing Choice Voucher Program should not have been terminated. The termination was based upon the presence of petitioner’s former intimate partner, McGill, in the home. Petitioner demonstrated that McGill, who was abusive and whose presence was unwanted, was staying in the home without her permission. Termination of the rent subsidy benefits was deemed to violate the Violence Against Women Act (VAWA):

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After an administrative hearing, the determination to terminate [petitioner’s] benefits was confirmed based upon the finding that she was obligated, but failed, to request permission to add … McGill as an occupant to her subsidized apartment. … [T]he petitioner was entitled to the housing protections of the Violence Against Women Act … based upon uncontested hearing evidence establishing that she was subjected to an escalating pattern of stalking and abusive behavior and domestic violence by McGill, … whose course of abusive and violent conduct against her included his unwanted presence in her apartment. … [W]e conclude that [petitioner] was entitled to the housing protections of the VAWA, which prohibited her termination from the program on this ground … . Matter of Johnson v Palumbo, 2017 NY Slip Op 06534, 2nd Dept 9-20-17

LANDLORD-TENANT (PETITIONER’S RENT SUBSIDY SHOULD NOT HAVE BEEN TERMINATED BASED UPON THE UNWANTED PRESENCE IN THE HOME OF A FORMER INTIMATE PARTNER, TERMINATION OF BENEFITS VIOLATED THE VIOLENCE AGAINST WOMEN ACT (SECOND DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, RENT SUBSIDY, PETITIONER’S RENT SUBSIDY SHOULD NOT HAVE BEEN TERMINATED BASED UPON THE UNWANTED PRESENCE IN THE HOME OF A FORMER INTIMATE PARTNER, TERMINATION OF BENEFITS VIOLATED THE VIOLENCE AGAINST WOMEN ACT (SECOND DEPT))/RENT SUBSIDY (PETITIONER’S RENT SUBSIDY SHOULD NOT HAVE BEEN TERMINATED BASED UPON THE UNWANTED PRESENCE IN THE HOME OF A FORMER INTIMATE PARTNER, TERMINATION OF BENEFITS VIOLATED THE VIOLENCE AGAINST WOMEN ACT (SECOND DEPT))/SECTION 8  (PETITIONER’S RENT SUBSIDY SHOULD NOT HAVE BEEN TERMINATED BASED UPON THE UNWANTED PRESENCE IN THE HOME OF A FORMER INTIMATE PARTNER, TERMINATION OF BENEFITS VIOLATED THE VIOLENCE AGAINST WOMEN ACT (SECOND DEPT))

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EXCESSIVE FORCE ALLEGATIONS AGAINST POLICE AND 42 USC 1983 CAUSE OF ACTION AGAINST THE MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined plaintiffs’ 42 USC 1983 causes of action against the police and the municipality were properly dismissed. Placing handcuffs on the plaintiffs during the execution of a search warrant did not constitute excessive force. Plaintiffs did not demonstrate the municipality was implementing an unconstitutional policy:

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… [T]he officers’ use of force while executing the search warrant was reasonable. Handcuffing the plaintiff and her two teenaged sons for the duration of the search was reasonable under the circumstances, given that the officers did not know who they might encounter or whether any occupants of the house might have weapons … . The fact that the plaintiff was not named as a subject of the warrant did not render the conduct of the police objectively unreasonable … . In opposition, the plaintiff failed to raise a triable issue of fact regarding the propriety of the level of force used by the police in executing the search warrant. Additionally, “a plaintiff must have sustained some injury to maintain a claim of excessive force, although that injury need not be severe” … . Here, the plaintiff failed to raise a triable issue of fact as to whether she or any of her children sustained an injury as a result of being handcuffed or detained during the search … . …

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” [A] 42 USC § 1983 action may lie against a municipality if the plaintiff shows that the action that is alleged to be unconstitutional either implement[s] or execute[s] a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers or has occurred pursuant to a practice so permanent and well settled as to constitute a custom or usage with the force of law'” … . However, a municipality “cannot be held liable pursuant to 42 USC § 1983 based solely upon the doctrine of respondeat superior or vicarious liability”… . Here, in opposition to the defendants’ prima facie showing, the plaintiff’s conclusory assertions failed to raise a triable issue of fact as to whether the alleged unconstitutional actions resulted from a policy, regulation, or custom of the City … . Harris v City of New York, 2017 NY Slip Op 06527, 2nd Dept 9-20-17

 

CIVIL RIGHTS LAW (42 USC 1983, EXCESSIVE FORCE ALLEGATIONS AGAINST POLICE AND 42 USC 1983 CAUSE OF ACTION AGAINST THE MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT))/MUNICIPAL LAW (42 USC 1983, EXCESSIVE FORCE ALLEGATIONS AGAINST POLICE AND 42 USC 1983 CAUSE OF ACTION AGAINST THE MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT))/POLICE (42 USC 1983, EXCESSIVE FORCE ALLEGATIONS AGAINST POLICE AND 42 USC 1983 CAUSE OF ACTION AGAINST THE MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT))/EXCESSIVE FORCE (42 USC 1983, EXCESSIVE FORCE ALLEGATIONS AGAINST POLICE AND 42 USC 1983 CAUSE OF ACTION AGAINST THE MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT))

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PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE PROVISION RE LIABILITY FOR EXCAVATION DAMAGE WERE MET, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether plaintiff had complied with the relevant regulations such that summary judgment was warranted in this excavation-damage action:

New York City Building Code … § BC 3309.4 provides that “[w]henever soil or foundation work occurs, regardless of the depth of such, the person who causes such to be made shall, at all times during the course of such work and at his or her own expense, preserve and protect from damage any adjoining structures, including but not limited to footings and foundations, provided such person is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining buildings and property, and to perform such work thereon as may be necessary for such purpose. If the person who causes the soil or foundation work is not afforded a license, such duty to preserve and protect the adjacent property shall devolve to the owner of such adjoining property, who shall be afforded a similar license with respect to the property where the soil or foundation work is to be made.”

We have held that section 3309.4 imposes strict or absolute liability upon a ” person who causes’ an excavation to be made” … . Nonetheless, on this record, the Supreme Court erred in granting that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against [defendant], as the plaintiff failed to submit any evidence demonstrating that she granted [the defendant] the requisite license under section 3309.4 … or, in the absence of a license, what, if any, actions the plaintiff took to satisfy her duty under section 3309.4 to protect and preserve her property … . Chan v Begum, 2017 NY Slip Op 06425, Second Dept 9-13-17

 

REAL PROPERTY (NYC, EXCAVATION DAMAGE, PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE PROVISION RE LIABILITY FOR EXCAVATION DAMAGE WERE MET, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NYC, EXCAVATION PROPERTY DAMAGE, PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE PROVISION RE LIABILITY FOR EXCAVATION DAMAGE WERE MET, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT)/EXCAVATION DAMAGE (REAL PROPERTY, NYC, PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE PROVISION RE LIABILITY FOR EXCAVATION DAMAGE WERE MET, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s request for permission to serve a late notice of claim should have been granted. Plaintiff alleged medical malpractice in the treatment of cervical cancer. The Second Department found that the medical records themselves timely alerted the defendant municipal hospital (NHCC) to the nature of the malpractice claim. Therefore the hospital was not prejudiced by the delay in filing the notice of claim:

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“Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury” … . “Where the alleged malpractice is apparent from an independent review of the medical records, those records constitute actual knowledge of the facts constituting the claim'” … .

Here, in support of the petition, the decedent submitted medical records and an affidavit of a physician who reviewed the records and concluded that there had been a departure from accepted medical practice … . Inasmuch as the medical records, upon independent review, suggested injury attributable to malpractice, they provided NHCC with actual knowledge of the essential facts constituting the claim … . Furthermore, the petitioner made an initial showing that NHCC would not suffer any prejudice by the delay in serving a notice of claim, and NHCC failed to rebut the petitioner’s showing with particularized indicia of prejudice … . … [T]he lack of a reasonable excuse is not dispositive where there is actual notice and absence of prejudice …. . Matter of Breslin v Nassau Health Care Corp., 2017 NY Slip Op 06440, Second Dept 9-13-17

 

NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT))/MUNICIPAL LAW (NOTICE OF CLAIM, MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT)/MEDICAL MALPRACTICE (MUNICIPAL LAW, NOTICE OF CLAIM, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT))

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NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined summary judgment should not have been granted to the NYC Transit Authority in this slip and fall case. The Transit Authority is responsible for the maintenance of manhole covers in city sidewalks. The evidence raised a question of fact whether the defect in the sidewalk was within the area around the manhole for which the Transit Authority is responsible:

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Rules of City of New York Department of Transportation (34 RCNY) § 2-07(b) provides that owners of covers or gratings on a street, which includes the sidewalk, are responsible for monitoring the condition of the covers and gratings and the area extending 12 inches outward from the perimeter of the hardware, and for ensuring that the hardware is flush with the surrounding surface … . In support of its motion, the Transit Authority submitted, among other things, the plaintiff’s notice of claim with photographs depicting the accident location, her testimony at a hearing held pursuant to General Municipal Law § 50-h, and her deposition testimony, which demonstrated that the alleged defective portion of the sidewalk was in close proximity to a manhole cover. Regardless of whether the Transit Authority owned the subject sidewalk, it failed to establish the absence of any triable issues of fact as to whether it owned the subject manhole cover or whether the plaintiff fell within the manhole cover owner’s zone of responsibility … . Nyack v City of New York, 2017 NY Slip Op 06445, Second Dept 9-13-17

NEGLIGENCE (MUNICIPAL LAW, SLIP AND FALL, NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, SLIP AND FALL, NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT))/MANHOLE COVERS (SLIP AND FALL, NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT))

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FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT).

The Second Department determined Supreme Court properly refused to grant summary judgment dismissing a portion of the complaint which alleged inadequate lighting as a cause of plaintiff’s slip and fall.  Plaintiff alleged she tripped over a rolled up mat after voting at an elementary school:

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The test of the sufficiency of a notice of claim is whether it includes information sufficient to enable the municipality to investigate the claim … .

Here, the plaintiffs’ notice of claim, which set forth [plaintiff] was “caused to fall as a result of a rolled up mat” which was positioned several feet in front of the door inside Hiawatha Elementary School, included information which was sufficient to enable the defendants to investigate the claim. * * *

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Here, testimony at the hearing held pursuant to General Municipal Law § 50-h, which established the lighting conditions at the time and place of [plaintiff’s] accident, supplemented the notice of claim and provided the defendants with additional information regarding the manner in which the claim arose … . Moreover, an incident report prepared by the defendants’ employee shortly after [plaintiff’s] accident noted that the area where she fell was dark due to a power loss at the building. Contrary to the defendants’ contention, the plaintiffs’ bill of particulars, which alleged, inter alia, that the occurrence and resulting injury were caused by the defendants’ negligence in “placing a rolled up mat in the walkway in a poorly lit area in front of the exit from the school” did not substantially alter the nature of the plaintiffs’ claim. * * *

Contrary to the defendants’ contention, the power outage did not relieve them of their duty to address the allegedly dangerous condition created by the loss of power which may have obscured the mat from view … . Moreover, the defendants failed to establish, prima facie, their entitlement to summary judgment on the ground that the rolled up mat was open and obvious, and not inherently dangerous as a matter of law … . Lipani v Hiawatha Elementary Sch., 2017 NY Slip Op 06436, Second Dept 9-13-17

 

NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, NOTICE OF CLAIM, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))/LIGHTING (SLIP AND FALL, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))

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42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s 42 USC 1983 cause of action, as well as the malicious prosecution cause of action, should not have been dismissed. The court noted that the notice of claim need not name any individual police officers who are subsequently sued (acknowledging a split of authority on the issue). The court also explained the statutes of limitations as they apply to false arrest, false imprisonment, malicious prosecution and 42 USC 1983 causes of action:

The complaint alleged that the defendants arrested, detained, and prosecuted the plaintiff without probable cause and that they knew that the criminal complaint contained falsehoods. The eyewitness’s affidavit … supported these allegations by asserting that police and an ADA coerced the eyewitness to make a false identification of the plaintiff. …

Further, … the eyewitness’s affidavit did not present feigned issues of fact. The eyewitness did not give any prior testimony in this action … . … [H]is affidavit did not contradict the plaintiff’s prior testimony, including the plaintiff’s deposition testimony that the eyewitness was “scared” when the police talked to him about the shooting. …

[T]he plaintiff raised a triable issue of fact as to whether Detective Failla’s evaluation of probable cause was objectively reasonable, thus precluding an award of summary judgment in Detective Failla’s favor on the ground of qualified immunity … .

… [W]e have held that the plain language of General Municipal Law § 50-e(2) does not require a notice of claim to “[list] the names of the individuals who allegedly committed the wrongdoing” … . Williams v City of New York, 2017 NY Slip Op 06477, Second Dept 9-13-17

CIVIL RIGHTS LAW (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/42 USC 1983 (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))/MUNICIPAL LAW (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/INTENTIONAL TORTS (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, 42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, INDIVIDUAL POLICE OFFICERS NEED NOT BE NAMED IN THE NOTICE OF CLAIM (SECOND DEPT))/FALSE ARREST (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))/FALSE IMPRISONMENT (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))/MALICIOUS PROSECUTION (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))

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TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT).

The Second Department determined the defendant town’s motion for summary judgment in this ice and snow slip and fall case was properly granted. The court held that the failure to remove ice and snow is a passive in nature and is not an affirmative creation of a dangerous condition that is exempt from the written notice requirement:

Here, the Town established its prima facie entitlement to judgment as a matter of law by submitting evidence, including an affidavit from its Town Clerk, demonstrating that it did not receive prior written notice of the condition alleged, and that it did not create the alleged condition through an affirmative act of negligence. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Town created the alleged condition through an affirmative act of negligence. The plaintiff’s reliance on San Marco v Village/Town of Mount Kisco (16 NY3d 111) is misplaced. The Town’s failure to remove any snow or ice from the area where the subject accident occurred was passive in nature and does not constitute an affirmative act of negligence excepting it from prior written notice requirements … . Morreale v Town of Smithtown, 2017 NY Slip Op 06361, Second Dept 8-30-17

NEGLIGENCE (TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/SLIP AND FALL  (TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT)/WRITTEN NOTICE (SLIP AND FALL, TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, WRITTEN NOTICE, TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT))

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CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city had acquired title by adverse possession to a parcel purchased by plaintiff’s predecessors in 1948. The fact that plaintiff had continuously paid taxes on the property did not negate the proof of adverse possession:

In 1948, the plaintiff’s predecessors in interest purchased real property in Brooklyn. For at least 30 years, the subject property, which is in the middle of other lots owned by the defendant, City of New York, has been used by the New York City Department of Sanitation (hereinafter the DSNY) as a truck parking lot. During this time, the DSNY has paved the property, fenced it in, and installed lighting. * * *

Under the law before the 2008 amendments, in order to establish a claim to property by adverse possession, a claimant must prove, inter alia, that possession of the property was: (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period … .

The purpose of the hostility requirement is to provide the title owner notice of the adverse claim through the “unequivocal acts of the usurper”… . A rebuttable presumption of hostility arises from possession accompanied by the usual acts of ownership, and this presumption continues until the possession is shown to be subservient to the title of another … . “Hostility can be inferred simply from the existence of the remaining four elements, thus shifting the burden to the record owner to produce evidence rebutting the presumption of adversity” … .

… We conclude that the mere payment of taxes on the subject property is insufficient to rebut the presumption. Even assuming that knowledge of the true ownership of the property can be imputed to another municipal department in the City, such knowledge is not sufficient to defeat a claim of adverse possession … . Estate of Vertley Clanton v City of New York, 2017 NY Slip Op 06254, Second Dept 8-23-17

 

REAL PROPERTY (ADVERSE POSSESSION, CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT))/ADVERSE POSSESSION (CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT))/MUNICIPAL LAW (ADVERSE POSSESSION, CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT))

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AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS (SECOND DEPT).

The Second Department determined that residents of a condominium across the street from the proposed construction of beach-front comfort stations did not have standing to contest the construction under the State Environmental Quality Review Act (SEQRA). The court further found that the petitioners’ air, light and access easements could not be asserted against the state, which owns the public road where the construction will be located:

“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” … . The alleged harm cannot be “too speculative and conjectural to demonstrate an actual and specific injury-in-fact” … . Close proximity alone is insufficient to confer standing where there are no zoning issues involved, and general environmental concerns will not suffice … . Moreover, “[t]o 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” … . Here, the petitioners’ alleged environmentally related injuries are too speculative and conjectural to demonstrate an actual and specific injury-in-fact … .

“When lands adjoin private property an easement of light, air and access over such property does not exist, under ordinary circumstances, merely because of the proximity of the lands to the private property” … .. However, an owner of land abutting a highway or street possesses, as incident to his or her ownership, easements of light, air, and access, irrespective of whether the owner owns the fee of the highway or the street itself … . Nevertheless, “[w]hen the fee of the highway has been transferred to the State, the State may use the highway for any public purpose not inconsistent with or prejudicial to its use for highway purposes . . . [and] [t]he mere disturbance of the rights of light, air and access of abutting owners on such a highway by the imposition of a new use, consistent with its use as an open public street, must be tolerated by them and no right of action arises therefrom, although such use interferes with the enjoyment of the premises”… . For example, the maintenance of trees on a street for the purposes of ornament and shade has been determined to be a proper street use … .

Here, the proposed construction will not completely block the petitioners’ ocean view nor prevent the petitioners from using the public street. Rather, the length of the dead-end street will be shortened and several public parking spaces will be removed. The turnaround will still be intact, although moved 23 feet to the north, and access to the petitioners’ driveway and building’s entrance will not be impeded … . In addition, the disputed comfort station will be open to, and for the purpose of, serving the public … . Matter of Shapiro v Torres, 2017 NY Slip Op 06281, Second Dept 8-23-17

 

REAL PROPERTY (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/EASEMENTS (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/AIR LIGHT AND ACCESS  (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/ENVIRONMENTAL LAW (STANDING, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/STANDING (ENVIRONMENTAL LAW, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (STANDING, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/MUNICIPAL LAW (ENVIRONMENTAL LAW, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/HIGHWAYS (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY (SECOND DEPT).

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