You are here: / Municipal Law
, ,

COUNTY PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, COMPLAINT ALLEGED MOTORCYCLE ACCIDENT CAUSED BY NEGLIGENT TRAFFIC CONTROL.

The Second Department determined governmental function immunity protected the county from suit in this motorcycle accident case. Plaintiff was riding in a charity event and alleged the traffic control by the county caused his injury:

The complaint alleged, among other things, that the County defendants were negligent in failing to properly control traffic along the route of the motorcycle run, and specifically, at the location of the accident. …

[T]he County defendants established their prima facie entitlement to judgment as a matter of law pursuant to the governmental function immunity defense with evidence that the conduct complained of involved the exercise of the police officers’ professional judgment, and was therefore discretionary … . Farrago v County of Suffolk, 2nd Dept 6-21-172017 NY Slip Op 05067

MUNICIPAL LAW (NEGLIGENCE, IMMUNITY, COUNTY PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, COMPLAINT ALLEGED MOTORCYCLE ACCIDENT CAUSED BY NEGLIGENT TRAFFIC CONTROL)/IMMUNITY (MUNICIPAL LAW, COUNTY PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, COMPLAINT ALLEGED MOTORCYCLE ACCIDENT CAUSED BY NEGLIGENT TRAFFIC CONTROL)/NEGLIGENCE (MUNICIPAL LAW, IMMUNITY, COUNTY PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, COMPLAINT ALLEGED MOTORCYCLE ACCIDENT CAUSED BY NEGLIGENT TRAFFIC CONTROL)/TRAFFIC CONTROL (MUNICIPAL LAW, IMMUNITY, TRAFFIC ACCIDENTS, COUNTY PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, COMPLAINT ALLEGED MOTORCYCLE ACCIDENT CAUSED BY NEGLIGENT TRAFFIC CONTROL)/TRAFFIC ACCIDENTS (MUNICIPAL LAW, IMMUNITY, COUNTY PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, COMPLAINT ALLEGED MOTORCYCLE ACCIDENT CAUSED BY NEGLIGENT TRAFFIC CONTROL)

, ,

THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE.

The First Department, reversing Supreme Court, determined the plaintiff’s verdict against the transit authority in this slip and fall case should not have been set aside. Plaintiff regularly used the unlighted subway stairway when he returned from work without incident. The jury, therefore, could reasonably have found plaintiff’s use of the unlighted stairway was not negligent:

​

In this action for personal injuries, plaintiff alleges that he fell while descending a covered and unlit exterior subway staircase owned by defendant. The jury found that defendant was negligent in its maintenance of the lighting on the staircase, that defendant’s negligence was a substantial factor in causing plaintiff’s injuries’, and that plaintiff was not negligent.

The trial court erred in setting aside as against the weight of the evidence the jury’s finding that plaintiff was not negligent … . Although plaintiff conceded that he descended an unlighted staircase, the jury could reasonably have concluded that his decision to do so was not negligent, as plaintiff testified that he used the same staircase every night while coming home from work, and had in fact done so without incident on previous evenings when the lights were inoperative. Sanchez v New York City Tr. Auth., 2017 NY Slip Op 04899, 1st Dept 6-15-17

 

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/MUNICIPAL LAW (SLIP AND FALL, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/CIVIL PROCEDURE (SET ASIDE VERDICT, NEGLIGENCE, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/SLIP AND FALL (MUNICIPAL LAW, NEGLIGENCE, CIVIL PROCEDURE,  THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)

, ,

THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE.

The First Department, reversing Supreme Court, determined the plaintiff’s verdict against the transit authority in this slip and fall case should not have been set aside. Plaintiff regularly used the unlighted subway stairway when he returned from work without incident. The jury, therefore, could reasonably have found plaintiff’s use of the unlighted stairway was not negligent:

​

In this action for personal injuries, plaintiff alleges that he fell while descending a covered and unlit exterior subway staircase owned by defendant. The jury found that defendant was negligent in its maintenance of the lighting on the staircase, that defendant’s negligence was a substantial factor in causing plaintiff’s injuries’, and that plaintiff was not negligent.

The trial court erred in setting aside as against the weight of the evidence the jury’s finding that plaintiff was not negligent … . Although plaintiff conceded that he descended an unlighted staircase, the jury could reasonably have concluded that his decision to do so was not negligent, as plaintiff testified that he used the same staircase every night while coming home from work, and had in fact done so without incident on previous evenings when the lights were inoperative. Sanchez v New York City Tr. Auth., 2017 NY Slip Op 04899, 1st Dept 6-15-17

 

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/MUNICIPAL LAW (SLIP AND FALL, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/CIVIL PROCEDURE (SET ASIDE VERDICT, NEGLIGENCE, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/SLIP AND FALL (MUNICIPAL LAW, NEGLIGENCE, CIVIL PROCEDURE,  THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)

,

CITY DID NOT DEMONSTRATE ABSENCE OF WRITTEN NOTICE OF THE POTHOLE WHERE PLAINTIFF SLIPPED AND FELL, PROPERTY OWNER DID NOT DEMONSTRATE THE AREA WHERE PLAINTIFF FELL WAS NOT SUBJECT TO THE OWNER’S SPECIAL USE, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined the city did not demonstrate it did not have notice of the pothole which caused plaintiff to slip and fall, and the abutting property owner did not demonstrate it did not have a special use of the area. Therefore neither the city’s nor the property owner’s motion for summary judgment should have been granted:

​

The City failed to establish, prima facie, the absence of a written acknowledgment of the alleged dangerous condition. Documents produced by the City’s Department of Transportation demonstrated that the City acknowledged in writing that a pothole existed in the vicinity of the plaintiff’s accident … . Any dispute as to the precise location of the noticed pothole is a question of fact for the jury … . …

Likewise, the owner failed to meet her prima facie burden. Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk or street “is placed on the municipality and not the abutting landowner”… . However, liability may be imposed on an abutting property owner where, inter alia, the owner of the abutting property caused the condition to occur through a special use of that area… . Here, the owner failed to demonstrate, prima facie, that she did not cause the alleged condition to occur because of some special use. The record establishes that the area where the plaintiff was injured was at the dead-end of Atkins Avenue, which was bordered on each side by Arlington Village apartment buildings. Indeed, part of Atkins Avenue is used for a parking lot solely for the benefit of Arlington Village tenants. The parking lot is partitioned from Atkins Avenue by chain link fencing and a gate maintained by the owner. The garbage dumpsters maintained for use by the tenants of Arlington Village are kept in the parking lot. There are no sidewalks in the dead-end area of Atkins Avenue. Accordingly, the roadway was used by tenants and employees of Arlington Village as a walkway, as a driveway for their vehicles, and as a driveway and walkway to access the adjacent parking lot and the garbage dumpsters. Thus, the owner failed to establish, prima facie, that she did not derive a special use from the area which contained the defect. Furthermore, “[w]hether an entity is liable for creating a defect as a special user is generally a question for the jury” … . Llanos v Stark, 2017 NY Slip Op 04828, 2nd Dept 6-14-17

 

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, SPECIAL USE, CITY DID NOT DEMONSTRATE ABSENCE OF WRITTEN NOTICE OF THE POTHOLE WHERE PLAINTIFF SLIPPED AND FELL, PROPERTY OWNER DID NOT DEMONSTRATE THE AREA WHERE PLAINTIFF FELL WAS NOT SUBJECT TO THE OWNER’S SPECIAL USE, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED)/MUNICIPAL LAW (SLIP AND FALL, WRITTEN NOTICE, CITY DID NOT DEMONSTRATE ABSENCE OF WRITTEN NOTICE OF THE POTHOLE WHERE PLAINTIFF SLIPPED AND FELL, PROPERTY OWNER DID NOT DEMONSTRATE THE AREA WHERE PLAINTIFF FELL WAS NOT SUBJECT TO THE OWNER’S SPECIAL USE, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED)/WRITTEN NOTICE REQUIREMENT (SLIP AND FALL, MUNICIPAL LAW,  CITY DID NOT DEMONSTRATE ABSENCE OF WRITTEN NOTICE OF THE POTHOLE WHERE PLAINTIFF SLIPPED AND FELL, PROPERTY OWNER DID NOT DEMONSTRATE THE AREA WHERE PLAINTIFF FELL WAS NOT SUBJECT TO THE OWNER’S SPECIAL USE, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED)/SPECIAL USE (SLIP AND FALL, PROPERTY OWNER DID NOT DEMONSTRATE THE AREA WHERE PLAINTIFF FELL WAS NOT SUBJECT TO THE OWNER’S SPECIAL USE, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED)

,

VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing (modifying) Supreme Court, determined the abutting property owner (Bank of America) was not liable for this public sidewalk slip and fall. The village code placed responsibility for sidewalk maintenance on the abutting property owner, but did not explicitly impose tort liability on an abutting property owner:

​

“Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner”… . “That rule does not apply, however, if there is an ordinance or municipal charter that specifically imposes a duty on the abutting landowner to maintain and repair the public sidewalk and provides that a breach of that duty will result in liability for injuries to the users of the sidewalk; the sidewalk was constructed in a special manner for the use of the abutting landowner; the abutting landowner affirmatively created the defect; or the abutting landowner negligently constructed or repaired the sidewalk” … .

We conclude that Bank of America and Jones Lang [the property manager] met their prima facie burden of establishing their entitlement to judgment as a matter of law … . Although the Code of the Village of Williamsville (Code) imposes a duty on landowners to keep public sidewalks “in good order and repair” (Code § 89-3), it is undisputed that the Code does not “clearly subject landowners to . . . liability” for failing to comply with that duty … . It is also undisputed that the public sidewalk was not constructed in a special manner for the property owner’s benefit, and that neither Bank of America nor Jones Lang [the property manager] negligently constructed or repaired the sidewalk or otherwise created the defect. Clauss v Bank of Am., N.A., 2017 NY Slip Op 04606, 4th Dept 6-9-17

 

MUNICIPAL LAW (NEGLIGENCE, SIDEWALK SLIP AND FALLS, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (MUNICIPAL LAW, SIDEWALK SLIP AND FALLS, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SLIP AND FALL (SIDEWALK SLIP AND FALLS, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SIDEWALKS (SLIP AND FALL, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)

,

ALTHOUGH THE TOWN HIRED PLAINTIFF TO REPAIR A VACANT HOUSE, THE TOWN WAS NOT AN OWNER OR GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED FOR THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM PLAINTIFF’S FALL FROM A LADDER.

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff town’s motion for summary judgment on the Labor Law 240 (1) and 241 (6) causes of action should have been granted. Plaintiff was hired by the town to repair a vacant house. He fell from a ladder. The Fourth Department determined the town was not an “owner” or “general contractor” within the meaning of the Labor Law statutes:

​

We agree with the Town that it established as a matter of law that it is not liable for plaintiff’s injuries under Labor Law §§ 240 (1) and 241 (6) inasmuch as it was not an owner of the property or a general contractor on the project. For the purposes of the Labor Law, the term “owner” encompasses the titleholder of the property where the accident occurred, as well as “a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit”… . Here, the Town did not hold title to the property, nor did it have any interest in the property… . Furthermore, even assuming, arguendo, that the Town was an owner of the property, we conclude that the Town would be entitled to the homeowner exemption under the Labor Law … .

We further conclude that the Town established as a matter of law that it was not a general contractor on the project … . The Town submitted evidence establishing that no Town employees were on the job site, plaintiff’s employer, and not the Town, directed plaintiff to the job site, and the Town did not have the authority to direct plaintiff with respect to the method and manner in which he would perform the work. Thus, the Town established that it was not a general contractor inasmuch as it was not “responsible for coordinating and supervising the project” … , and plaintiff failed to raise a question of fact.  Berner v Town of Cheektowaga, 2017 NY Slip Op 04610, 4th Dept 6-9-17

 

MUNICIPAL LAW (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH THE TOWN HIRED PLAINTIFF TO REPAIR A VACANT HOUSE, THE TOWN WAS NOT AN OWNER OR GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED FOR THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM PLAINTIFF’S FALL FROM A LADDER)/LABOR LAW-CONSTRUCTION LAW (MUNICIPAL LAW,  ALTHOUGH THE TOWN HIRED PLAINTIFF TO REPAIR A VACANT HOUSE, THE TOWN WAS NOT AN OWNER OR GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED FOR THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM PLAINTIFF’S FALL FROM A LADDER)

AN OPINION SURVEY WAS PROPERLY CIRCULATED BY THE VILLAGE (CONCERNING THE POLICE DEPARTMENT), THE SURVEY WAS NOT A PROHIBITED ADVISORY REFERENDUM.

The Third Department, reversing Supreme Court, determined a survey submitted to the public by the village concerning the police department was not a prohibited advisory referendum. The survey was deemed to be merely a sampling of public opinion. An advisory referendum, in contrast, requires a vote during an election.  The Third Department noted that the petitioners, residents of the village, had common law taxpayer standing to bring the Article 78/declaratory judgment action because there was no other way to address the issue:

​

… [A] review of the case law dealing with an “advisory referendum” establishes that each such case involves registered voters going to a polling place during a municipal election and casting a ballot on the proposed question … . In light of this, it is our view that the proscription against an “advisory referendum” is limited to a situation where a question that is advisory in nature is placed on the ballot for a vote by the electorate.

Here, in contrast, the Board simply seeks to obtain a sampling of public sentiment regarding police services in the Village before the Board makes a decision to alter current police services. In the event that the Board decides to abolish the police department, such a local law would then be mandated to be placed on the ballot as a proposition to be voted on by the electorate at an upcoming election … . We reject petitioners’ contention that the surveys at issue here will somehow allow the Board to “avoid governmental responsibility and shift the burden of decision [regarding police services] to a public poll” … . Matter of Woodburn v Village of Owego, 2017 NY Slip Op 04513, 3rd Dept 6-8-17

 

MUNICIPAL LAW (AN OPINION SURVEY WAS PROPERLY CIRCULATED BY THE VILLAGE (CONCERNING THE POLICE DEPARTMENT), THE SURVEY WAS NOT A PROHIBITED ADVISORY REFERENDUM)/SURVEY (MUNICIPAL LAW, AN OPINION SURVEY WAS PROPERLY CIRCULATED BY THE VILLAGE (CONCERNING THE POLICE DEPARTMENT), THE SURVEY WAS NOT A PROHIBITED ADVISORY REFERENDUM)/ADVISORY REFERENDUM (MUNICIPAL LAW, AN OPINION SURVEY WAS PROPERLY CIRCULATED BY THE VILLAGE (CONCERNING THE POLICE DEPARTMENT), THE SURVEY WAS NOT A PROHIBITED ADVISORY REFERENDUM)

,

UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES.

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a dissenting opinion by Judge Garcia, determined two nurses facing disciplinary action for alleged time-card irregularities were entitled to some of the information upon which the charges were based. The nurses were employed by New York City’s Human Resources Administration (HRA). When the request for the information was denied, the “New York State Nurses Association (NYSNA, or the Union) filed an improper practice petition with the Board of Collective Bargaining of the City of New York (the Board), alleging that it had a right to information, under New York City Collective Bargaining Law (NYCCBL) … “. The Board found most of the requested information should be turned over to the NYSNA and the Court of Appeals agreed:

​

The Board held that section 12-306 (c) (4) [of the NYCCBL] extended to information “relevant to and reasonably necessary for the administration of the parties’ agreements, such as processing grievances, and/or for collective negotiations on mandatory subjects of bargaining,” citing several decisions of PERB [Public Employees Relations Board], the Board’s analogue for state employees … . As noted by the Board, PERB “has consistently upheld the right of a union to seek information for contract administration in the context of disciplinary grievances” … .

* * * Article VI, section 1.D. of the CBA [Collective Bargaining Agreement] defines “grievance” to include: “a claimed wrongful disciplinary action taken against an employee.” Thus, by defining “grievance” to include disciplinary action, the CBA, has, as a matter of contract, incorporated as to disciplinary actions the information requirements applicable to grievances. Matter of City of New York v New York State Nurses Assn., 2017 NY Slip Op 04492, CtApp 6-8-17

MUNICIPAL LAW (EMPLOYMENT LAW, UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES)/EMPLOYMENT LAW (MUNICIPAL EMPLOYEES, UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES)/DISCIPLINARY PROCEEDINGS (MUNICIPAL LAW, EMPLOYMENT LAW, UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES)

, , ,

WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE.

The First Department, reversing Supreme Court, over a dissent, determined the defendant City’s motion to set aside the verdict in this slip and fall case should not have been set aside. The court held that whether the Big Apple map sufficiently identified the defective curb where plaintiff fell was a jury question and the verdict should stand:

​

“Although [t]he awareness of one defect in the area is insufficient to constitute notice of a different particular defect which caused the accident,’ where there are factual issues as to the precise location of the defect that caused a plaintiff’s fall and whether the defect is designated on the map, the question should be resolved by the jury” … . The trial court improperly set aside the verdict against the City for lack of legally sufficient evidence that the City had prior written notice of the alleged defect in the curb at the corner where plaintiff indicated she fell … . A jury verdict may not be set aside for legal insufficiency unless there is “no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the conclusion reached by the jury on the basis of the evidence presented at trial” … . Here, it cannot be said that it was “utterly irrational for [the] jury to reach the result it has determined upon” … .

At trial, plaintiff testified that she tripped and fell, due to a defect at the corner of Madison Street and Rutgers Street. Plaintiff testified that she stepped off the curb with her left foot into the crosswalk on to Madison Street and that the tip of her right foot got caught on something on the ground, which caused her to fall and fracture her ankle. Plaintiff further testified that the curb where she tripped and fell was “separated from the sidewalk and raised.” Plaintiff also entered into evidence photographs of the street corner where she fell that depicted a broken, cracked and defective curb in front of 197 Madison Street. Another photograph entered into evidence showed that the address of “197 Madison St.” was clearly reflected on the H and M Deli storefront awning, located at the corner of the intersection where plaintiff fell. Counsel for the City further highlighted this point during re-cross-examination of plaintiff regarding the precise location of her fall, when counsel inquired, “In front of that H and M Deli?… The deli that is addressed 197 Madison, right?” To which plaintiff replied, “Yes.” Additionally, the Big Apple Map, which the City stipulated to receiving, denoted an “X” in front of 197-199 Madison Street, and, according to the Big Apple Map Legend, an “X” indicates a “broken, misaligned or uneven curb.”

​

… [W]hile it is true that the Big Apple Map did not have an “X” at the precise corner where plaintiff fell, the map did depict an “X” in front of the address of 197 Madison Street, which encompasses multiple storefronts within one building, stretching from the building on the corner towards the middle of the block. Foley v City of New York, 2017 NY Slip Op 04389, 1st Dept 6-6-17

 

NEGLIGENCE (WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)/CIVIL PROCEDURE (MOTION TO SET ASIDE THE VERDICT, SLIP AND FALL, WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)/MUNICIPAL LAW (SLIP AND FALL, WRITTEN NOTICE OF DEFECT, WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)/EVIDENCE (SLIP AND FALL, MUNICIPAL LAW, WRITTEN NOTICE OF DEFECT,WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)/VERDICT, MOTION TO SET ASIDE (SLIP AND FALL, MUNICIPAL LAW, WRITTEN NOTICE OF DEFECT,WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)/SLIP AND FALL (MUNICIPAL LAW, WRITTEN NOTICE, WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)

, ,

THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE.

The First Department, in a full-fledged opinion by Justice Gische, over a two justice dissenting opinion authored by Justice Gesmer, determined the city’s decision whether to enforce animal cruelty and other laws and regulations which may pertain to the public, ritual killing of chickens in an annual religious practice (Kaporos) is discretionary and therefore cannot be enforced by a mandamus proceeding:

We hold that the laws which plaintiffs seek to compel the City defendants to enforce in this action involve the judgment and discretion of those defendants. This is because the laws themselves implicate the discretion of law enforcement and do not mandate an outcome in their application. … There are disputes about whether the conduct complained of is in violation of the implicated laws and regulations. There are disputes about whether and to what extent the implicated laws can be enforced without violating constitutional rights belonging to the non-City defendants. Rituals involving animal sacrifice are present in some religions and although they may be upsetting to nonadherents of such practice, the United States Supreme Court has recognized animal sacrifice as a religious sacrament and decided that it is protected under the Free Exercise Clause of the Constitution, as applied to the states through the Fourteenth Amendment … .

Consequently, the decision whether and how to enforce these laws and regulatory provisions allegedly violated during Kaporos implicates the reasoning and discretion of the City defendants and the law enforcers. None of the laws or regulations plaintiffs rely on preclude the City defendants from deciding whether or not to enforce those laws in the context of Kaporos. Plaintiffs do not have a “clear legal right” to dictate which laws are enforced and how, or against whom. Determining which laws and regulations might be properly enforced against the non-City defendants without infringing upon their free exercise of religion involves the exercise of reasoned judgment on the part of the City defendants. The outcome cannot be dictated by the court through mandamus. Alliance to End Chickens as Kaporos v New York City Police Dept., 2017 NY Slip Op 04408, 1st Dept 6-6-17

 

MUNICIPAL LAW (ANIMAL CRUELTY, RITUAL KILLING OF CHICKENS, THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)/ANIMAL LAW (RELIGIOUS RITUAL KILLING OF CHICKENS, THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)/RELIGION (RITUAL KILLING OF CHICKENS,  THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)/KAPOROS (ANIMAL CRUELTY, RITUAL KILLING OF CHICKENS, THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy