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THE PROPOSED DEVELOPMENT OF THE OLD PARKING LOT FOR SHEA STADIUM, ON PARKLAND, IS SUBJECT TO THE PUBLIC TRUST DOCTRINE AND REQUIRES SPECIFIC ENABLING LEGISLATION, THE LEGISLATION FOR THE CONSTRUCTION OF SHEA STADIUM IS NOT APPLICABLE.

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a dissenting opinion by Judge DiFiore, determined the development of the old Shea Stadium parking lot, which is on parkland (Flushing Meadows Park), was subject to the public trust doctrine, requiring specific legislation. The court held that the existing provisions of the administrative code, which approved and described the construction of Shea Stadium, could not be interpreted to allow the proposed development (Willets West) which includes the construction of a hotel, mall and residential housing:

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The statutory language and legislative history demonstrate that the legislation did not authorize further developments on the tract of parkland but, rather, ensured that the City was authorized to accommodate other public uses of the stadium and appurtenant facilities.

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… [T]he text of the statute and its legislative history flatly refute the proposition that the legislature granted the City the authority to construct a development such as Willets West in Flushing Meadows Park.

We acknowledge that the remediation of Willets Point is a laudable goal. Defendants and various amici dedicate substantial portions of their briefs to the propositions that the Willets West development would immensely benefit the people of New York City, by transforming the area into a new, vibrant community, and that the present plan might be the only means to accomplish that transformation. Those contentions, however, have no place in our consideration of whether the legislature granted authorization for the development of Willets West on land held in the public trust. Of course, the legislature remains free to alienate all or part of the parkland for whatever purposes it sees fit, but it must do so through direct and specific legislation that expressly confers the desired alienation. Matter of Avella v City of New York , 2017 NY Slip Op 04383, CtApp  6-6-17

 

MUNICIPAL LAW (PUBLIC TRUST DOCTRINE, THE PROPOSED DEVELOPMENT OF THE OLD PARKING LOT FOR SHEA STADIUM, ON PARKLAND, IS SUBJECT TO THE PUBLIC TRUST DOCTRINE AND REQUIRES SPECIFIC ENABLING LEGISLATION, THE LEGISLATION FOR THE CONSTRUCTION OF SHEA STADIUM IS NOT APPLICABLE)/PUBLIC TRUST DOCTRINE (PARKLAND DEVELOPMENT, THE PROPOSED DEVELOPMENT OF THE OLD PARKING LOT FOR SHEA STADIUM, ON PARKLAND, IS SUBJECT TO THE PUBLIC TRUST DOCTRINE AND REQUIRES SPECIFIC ENABLING LEGISLATION, THE LEGISLATION FOR THE CONSTRUCTION OF SHEA STADIUM IS NOT APPLICABLE)/PARKS (PUBLIC TRUST DOCTRINE, THE PROPOSED DEVELOPMENT OF THE OLD PARKING LOT FOR SHEA STADIUM, ON PARKLAND, IS SUBJECT TO THE PUBLIC TRUST DOCTRINE AND REQUIRES SPECIFIC ENABLING LEGISLATION, THE LEGISLATION FOR THE CONSTRUCTION OF SHEA STADIUM IS NOT APPLICABLE)

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NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD.

The Third Department, in a full-fledged opinion by Justice Garry, determined a village nuisance law was facially unconstitutional and could not be enforced against the owner of several properties which rented out single rooms. Apparently, criminal activity, including domestic abuse, at these properties was a concern for the village. The local village nuisance law assigned points for certain conditions or incidents at the properties. Points were assessed even when police were called to the properties by crime victims. Once a certain number of points are accumulated, the village can take certain enumerated actions against the property owner, including ordering the eviction of tenants. The reach of the nuisance statute therefore encroached on the tenant’s first amendment right to report crimes to the police (to petition the government for redress of grievances):

The Nuisance Law’s provisions pertaining to remedies demonstrate that the loss of a tenant’s home may result directly from the designation of a property as a public nuisance. As previously noted, the Nuisance Law expressly permits owners to include the eviction of tenants in the required plans to abate public nuisances — again, with no exception for tenants who may have caused points to be assessed against a property by summoning police because they were victimized by criminal activity, or who otherwise exercised their constitutionally-protected right to request police assistance. Further, as the relief permitted by article II of the Nuisance Law includes the property’s temporary closure, all tenants and occupants of a property where illegal activity occurs — not just those who actually commit a violation — are at risk of losing their homes upon a declaration that the property is a public nuisance. The plain language of the law therefore tends to discourage tenants from seeking help from police. As the amici curiae assert, this discouragement may have a particularly severe impact upon victims of domestic violence … . If a tenant who has an order of protection against an individual because of prior domestic violence calls police for assistance in enforcing the order, points may be assessed against the property. Further, if a tenant summons police because he or she has been the victim of a crime of domestic violence involving assault or one of the other offenses worth 12 points, the Nuisance Law automatically deems the property to be a public nuisance, placing the tenant at risk of losing his or her home solely because of this victimization. Board of Trustees of The Vil. of Groton v Pirro, 2017 NY Slip Op 04938, 3rd Dept 6-5-17

MUNICIPAL LAW (NUISANCE LAW, LANDLORD-TENANT, CONSTITUTIONAL LAW, NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)/CONSTITUTIONAL LAW (MUNICIPAL LAW, LANDLORD-TENANT, NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)/LANDLORD-TENANT (MUNICIPAL LAW, CONSTITUTIONAL LAW, NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)/NUISANCE LAW (MUNICIPAL LAW, CONSTITUTIONAL LAW,  NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)

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AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED.

The First Department determined plaintiff’s motion to amend the notice of claim in this slip and fall case was properly denied. The original notice of claim and the complaint alleged the protruding manhole cover over which plaintiff tripped was the result of improper maintenance. The proposed amendment sought to allege the defendant city created the dangerous condition:

The allegations of negligent maintenance in the notice of claim did not provide notice of plaintiff’s new theory of affirmative negligence … . Thus, General Municipal Law § 50-e(6), which “authorizes the correction of good faith, nonprejudicial, technical defects or omissions, not substantive changes in the theory of liability” … , does not apply. Further, General Municipal Law § 50-e(5) does not authorize amendment of the notice of claim to assert a new theory of liability where, as here, the limitations period has expired … .

Even assuming that the “special use” theory is not a new theory of liability, leave to amend to add it would be futile, since the City’s ownership of the manhole cover does not constitute a “special use” of the sidewalk … . Aleksandrova v City of New York, 2017 NY Slip Op 04379, 1st Dept 6-1-17

 

NEGLIGENCE (MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/MUNICIPAL LAW (NOTICE OF CLAIM, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/NOTICE OF CLAIM, (MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/SLIP AND FALL (MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/SIDEWALKS (SLIP AND FALL, MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)

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EVEN THOUGH THE ALLEGEDLY DEFECTIVE SIDEWALK ABUTTED AN UNDEVELOPED LOT, DEFENDANT WAS ENTITLED TO THE SMALL-PROPERTY EXEMPTION FROM TORT LIABILITY.

The Second Department determined defendant was entitled to the small-property exemption for liability for sidewalk defects in this slip and fall case. Although the sidewalk where plaintiff fell abutted an undeveloped lot, defendant (Manley) demonstrated the lot was part of the residential premises:

In 2003, the New York City Council enacted the Sidewalk Law to shift tort liability for injuries resulting from defective sidewalks from the City to abutting property owners … . This liability-shifting provision, however, does not apply to “one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes” (Administrative Code of City of NY § 7-210[b]). The exemption was provided in recognition that it was inappropriate to expose “small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair”… .

Here, in support of her motion, Manley established her prima facie entitlement to the small-property owner exemption. Manley established, prima facie, that the lot abutting the sidewalk where the plaintiff allegedly was injured was part of her residential premises for all practical purposes and that her use of her property qualified in all other respects for the small-property owner exemption. As we have recognized, this exemption is concerned with the ownership and use of the relevant property, not its technical designation … . Manley additionally established, prima facie, that she did not create the alleged sidewalk defect or make special use of the sidewalk and thus could not be held liable under common-law principles … . Johnson v Manley, 2017 NY Slip Op 04259, 2nd Dept 5-31-17

 

NEGLIGENCE (EVEN THOUGH THE ALLEGEDLY DEFECTIVE SIDEWALK ABUTTED AN UNDEVELOPED LOT, DEFENDANT WAS ENTITLED TO THE SMALL-PROPERTY EXEMPTION FROM TORT LIABILITY)/MUNICIPAL LAW (NYC) (EVEN THOUGH THE ALLEGEDLY DEFECTIVE SIDEWALK ABUTTED AN UNDEVELOPED LOT, DEFENDANT WAS ENTITLED TO THE SMALL-PROPERTY EXEMPTION FROM TORT LIABILITY)/SIDEWALKS (MUNICIPAL LAW, NEGLIGENCE, EVEN THOUGH THE ALLEGEDLY DEFECTIVE SIDEWALK ABUTTED AN UNDEVELOPED LOT, DEFENDANT WAS ENTITLED TO THE SMALL-PROPERTY EXEMPTION FROM TORT LIABILITY)/SLIP AND FALL (MUNICIPAL LAW, SIDEWALKS, EVEN THOUGH THE ALLEGEDLY DEFECTIVE SIDEWALK ABUTTED AN UNDEVELOPED LOT, DEFENDANT WAS ENTITLED TO THE SMALL-PROPERTY EXEMPTION FROM TORT LIABILITY)

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MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED.

The Second Department, reversing (modifying) Supreme Court, determined petitioner’s motion to renew the petition for leave to file a late notice of claim was erroneously deemed a motion to reargue (by Supreme Court) and was erroneously denied. Leave to file a late notice of claim should have been granted. The wrongful death action was brought on behalf of a county worker who was killed when he fell off the back of a dump truck after the truck allegedly struck a bump in the road. The Second Department noted: (1) the 90-day period for filing a notice of claim runs from the appointment of the administrator of decedent’s estate; (2) the motion presented new evidence which was not previously available and was therefore a motion to renew, not reargue; (3) the county had notice of the facts of the action within the 90-day period; (4) the county did not demonstrate prejudice related to the delay in filing the notice of claim (even though the road defect had been repaired):

The County acquired actual knowledge of the essential facts constituting the claim before a representative of the estate was appointed. The [police department] conducted an investigation, took photographs of, inter alia, the subject roadway condition, obtained a statement from the driver of the truck, and prepared a case report that detailed the nature and the alleged cause of the accident. In addition, … Inasmuch as the County acquired timely, actual knowledge of the essential facts of the claim and actually conducted an investigation, the petitioner made an initial showing that the County was not prejudiced by his delay in serving a notice of claim … . The County claims that it will nonetheless be prejudiced by the delay because the roadway where the accident occurred has been repaved and because it will be unable to locate witnesses. The County, however, had recognized the need for repairs of the roadway before the petitioner was appointed as administrator, and it issued work orders to repair the roadway only a few days after the petitioner was appointed. Thus, any prejudice resulting from the changed condition of the road was not caused by the petitioner’s delay in serving a notice of claim … . In any event, the County took photographs of the defect and inspected the location after the accident … . The County also failed to make a showing that any of the witnesses are unavailable. Thus, the County failed to respond to the petitioner’s initial showing as to lack of prejudice with a particularized showing that the petitioner’s delay in serving a notice of claim will prejudice it in its defense on the merits … . Matter of Kerner v County of Nassau, 2017 NY Slip Op 04277, 2nd Dept 5-31-17

MUNICIPAL LAW (MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/TRUSTS AND ESTATES (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (MOTION TO RENEW, MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/TRAFFIC ACCIDENTS  (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)

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PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE, COMPLAINT PROPERLY DISMISSED.

The First Department determined plaintiff’s action against the city in this slip and fall case was properly dismissed. Plaintiff did not allege the city had prior written notice of the sign post stump in the sidewalk, and the 15-day grace period for the notice which the city did receive had not expired at the time of plaintiff’s fall:

Plaintiff alleges that, as she was exiting a bus, she tripped and fell over the stump of a pole sign protruding about three to four inches from the sidewalk near the bus stop. The City met its prima facie burden by showing that plaintiff did not plead that the City received prior written notice of the sidewalk defect as required by Administrative Code of City of NY § 7-201(c)(2) … .

The City also submitted evidence showing the absence of prior written notice; that the sign was in good condition two years before the accident; that the City received a citizen complaint through 311 less than 15 days before plaintiff’s accident; and that it repaired the condition a few days after her accident. The complaint received before the accident, even if it were in writing, could not constitute prior written notice for purposes of the statute, since it was received within the 15-day grace period provided by the statute for the City to make repairs after receiving notice … .

… Plaintiff failed to demonstrate either that she pled prior written notice or that the 311 complaint received by the City within the 15-day grace period constitutes such notice. Plaintiff’s contention that the City affirmatively created the condition by removing the sign from the sleeve is unsupported by any evidence. Brown v City of New York, 2017 NY Slip Op 04221, 1st Dept 5-30-17

MUNICIPAL LAW (SLIP AND FALL, WRITTEN NOTICE OF DEFECT, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)/NEGLIGENCE (MUNICIPAL LAW, SLIP AND FALL, WRITTEN NOTICE OF DEFECT, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)/SIDEWALKS (MUNICIPAL LAW, SLIP AND FALL, WRITTEN NOTICE OF DEFECT, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)/WRITTEN NOTICE REQUIREMENT (MUNICIPAL LAW, SLIP AND FALL, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)

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CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT.

The Second Department determined the last occupant of a campsite (Reinoso), as well as the county which owned the campgrounds, were not entitled to summary judgment in and action brought by an eight-year-old boy who was burned when he stepped into a pit of hot coals:

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… [T]he plaintiffs raised a triable issue of fact as to whether Reinoso was the party who left the hot embers on the ground … .

Further, it has long been the rule in New York that “[l]andowners in general have a duty to act in a reasonable manner to prevent harm to those on their property” … . “In particular, they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control”… . Here, the evidence submitted by the County defendants in support of their motion for summary judgment failed to eliminate all triable issues of fact as to whether they exercised “ordinary and reasonable care in maintaining the campgrounds in a reasonably safe condition so as to prevent foreseeable injury” … . Holohan v County of Suffolk, 2017 NY Slip Op 04104, 2nd Dept 5-24-17

 

NEGLIGENCE (CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT)/MUNICIPAL LAW (COUNTY-OWNED CAMPGROUNDS, CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT)/CAMPGROUNDS (CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT)

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LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED.

The First Department, over a two-justice dissent, determined Supreme Court should not have granted leave to file a late notice of claim. “Petitioner was injured on July 15, 2015, while working as a bricklayer … at a job site located at an intermediate school in the Bronx. Petitioner alleges that while lifting 60 to 70 pound buckets, he tripped and fell due to an uneven floor on a makeshift scaffold. He filed a workers’ compensation claim on July 29, 2015, but did not file a notice of claim until July 15, 2016, a year later. In the intervening year, he underwent a shoulder and a hip surgery:”

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The motion court improvidently exercised its discretion in granting the motion. Petitioner failed to establish any of the relevant statutory factors that would warrant leave to serve a late notice of claim … . Petitioner’s alleged failure to realize the severity of his injuries within 90 days after his accident did not constitute a reasonable excuse for his delay in serving a notice of claim, especially since petitioner filed a workers’ compensation claim just weeks after the accident… . Nor did petitioner show that respondents acquired actual knowledge of the essential facts constituting the claim within the statutory period, or a reasonable time thereafter (see General Municipal Law § 50-e[5]). There is no evidence that respondents received petitioner’s workers’ compensation claim form, which, in any event, makes no mention of the allegations against respondents … . Absent any knowledge of even a potential Labor Law claim, respondents certainly had no basis to conduct their own investigations … .

* * * … [T]here is no evidence respondents were aware of an accident even occurring. Petitioner … does no more than refer to numerous construction records that purportedly could be examined, yet provides no names of actual witnesses nor any reference to specific information in those records. Matter of Grajko v City of New York, 2017 NY Slip Op 04203, 1st Dept 5-24-17

 

MUNICIPAL LAW (LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)/NOTICE OF CLAIM (MUNICIPAL LAW, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)

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WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT.

The Second Department determined Supreme Court properly concluded the Water District’s planned replacement of a drinking water supply tank was immune from the village code and did not trigger the State Environmental Quality Review Act (SEQRA):

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In Matter of County of Monroe (City of Rochester) (72 NY2d 338), the Court of Appeals addressed the applicability of local zoning laws where a conflict exists between two governmental entities. The Court therein articulated “a balancing of public interests” test which requires the consideration of various factors in order to determine whether an entity should be granted immunity from local zoning requirements … . These factors include “the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests” … .

Here, the Village failed to set forth any basis for its contention that the application of the Monroe balancing test is in the exclusive province of the Village, or host entity. In fact, the Court of Appeals did not specify the entity initially responsible for evaluating the competing interests … . Further, the Supreme Court properly employed the “balancing of public interests” test and correctly determined that the proposed construction plan is immune from the Village’s local laws … .

The Supreme Court also properly found, in effect, that the Water District’s determination that the proposed construction plan was for a “replacement, rehabilitation or reconstruction of a structure or facility, in kind” (6 NYCRR 617.5[c][2]) and, thus, was a Type II action under SEQRA that presumptively did not have a significant impact upon the environment and did not require the preparation and circulation of an environmental impact statement, was not irrational, arbitrary or capricious, affected by error of law, or an abuse of discretion … . Incorporated Vil. of Munsey Park v Manhasset-Lakeville Water Dist., 2017 NY Slip Op 03934, 2nd Dept 5-17-17

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ZONING (WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)/ENVIRONMENTAL LAW (REPLACEMENT WATER TANK, WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)/MONROE BALANCING TEST (REPLACEMENT WATER TANK, WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)  (REPLACEMENT WATER TANK, WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)/WATER TANKS (WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)/MUNICIPAL LAW  (WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)

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MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED.

The Second Department determined plaintiff’s motion for leave to amend the notice of claim was properly granted in this bicycle accident case. The notice of claim stated plaintiff was “lawfully traveling” on a service road when injured by a defect in the road. The amendment sought to indicate plaintiff was riding a bicycle at the time he was injured:

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A court may, in its discretion, grant an application for leave to serve an amended notice of claim if the mistake, omission, irregularity, or defect in the original notice was made in good faith, and the municipality has not been prejudiced … . In making a determination as to whether the municipality has been prejudiced, the court may consider the evidence adduced at a hearing conducted pursuant to General Municipal Law § 50-h, as well as any other evidence that is properly before the court … .

Here, the record does not show any bad faith on the part of the plaintiff, and the County failed to show that it would be prejudiced by the amendment. In particular, the County does not allege that the condition of the roadway changed prior to the service of the summons and complaint, which alleged that the plaintiff was injured while bicycling. Moreover, the record shows that Nassau County Police Department EMS personnel responded to the scene of the accident, and EMS personnel prepared a written report indicating that the plaintiff fell from a bicycle. Fast v County of Nassau, 2017 NY Slip Op 03734, 2nd Dept 5-10-17

 

MUNICIPAL LAW (MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED)/NEGLIGENCE (MUNICIPAL LAW, MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED)/NOTICE OF CLAIM (MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED)

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