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HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED.

The Second Department determined the defendant city’s motion to set aside the verdict as a matter of law should have been granted (criteria explained). Plaintiff, a 72-year-old woman (who was not named in the search warrant) was handcuffed while the police searched her house. Plaintiff alleged she suffered anxiety-related symptoms but no physical injury. Only the excessive force cause of action went to the jury. The Second Department held that physical injury, not emotional injury, was required, and further held that qualified immunity applied to the act of placing her in handcuffs (which was deemed reasonable):

Here, although the plaintiff did not resist or attempt to flee, the actions of the officers were reasonable given that they had reason to believe that illegal drugs were being sold from the premises, and that a known drug dealer might be present. Under the circumstances, where the police were executing a search warrant to find illegal drugs and did not know who they might encounter or whether any occupants of the house might have weapons, it was reasonable for them to handcuff the plaintiff for a few minutes until they determined that she was not a threat, notwithstanding her age at the time of the incident. …

Furthermore, a plaintiff must have sustained some injury to maintain a claim of excessive force, although that injury need not be severe … . Emotional pain and suffering cannot form the basis of an excessive force claim … . Here, the plaintiff failed to establish that she sustained any injury that resulted from the act of handcuffing her … . Boyd v City of New York, 2017 NY Slip Op 02619, 2nd Dept 4-5-17

CIVIL RIGHTS LAW (18 USC 1983) (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITYS MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/MUNICIPAL LAW (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/IMMUNITY  (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE  (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/POLICE (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/EXCESSIVE FORCE (POLICE, HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)

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THE REASONABLENESS OF THE COSTS OF TEMPORARILY RELOCATING A TENANT FORCED TO VACATE AN UNINHABITABLE BUILDING MUST BE DETERMINED IN A LIEN FORECLOSURE PROCEEDING, THE LIEN CANNOT BE SUMMARILY DISCHARGED BY FINDING THE COSTS AS STATED IN THE NOTICE OF LIEN FACIALLY UNREASONABLE.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, resolving a conflict between the 1st and 2nd Departments, determined a dispute about the reasonableness of the costs of temporarily relocating a tenant forced to vacate an uninhabitable building, as stated in a Notice of Lien, is not subject to summary disposition but rather must be resolved in a foreclosure proceeding. The 1st Department had erroneously held that such a lien imposed by the NYC Department of Housing Preservation and Development (HPD) could be summarily discharged if the relocation costs stated in the Notice of Lien were deemed unreasonable:

Facial invalidity [of a Notice of Lien] occurs only in limited circumstances not present here. In both cases at issue, the notices of lien contained all required elements under Lien Law § 9 and Administrative Code § 26-305 (4) (a) and were properly filed. While summary discharge is proper when a notice of lien includes non-lienable expenses … , the notices of lien here demonstrated no such defect. The notices stated that they sought “hotel expenses,” “administration costs,” and “relocation costs,” which sufficed to meet the requirement that the notice contain a statement of “the labor performed or materials furnished.” Rather than challenge those categories of expenses as “lienable,” both [property owners] object to the amount claimed for such expenses. Such a dispute is not properly resolved through a summary discharge proceeding. Rivera v Department of Hous. Preserv. & Dev. of the City of N.Y., 2017 NY Slip Op 02587, CtApp 4-4-17

LANDLORD-TENANT (NYC, THE REASONABLENESS OF THE COSTS OF TEMPORARILY RELOCATING A TENANT FORCED TO VACATE AN UNINHABITABLE BUILDING MUST BE DETERMINED IN A LIEN FORECLOSURE PROCEEDING, THE LIEN CANNOT BE SUMMARILY DISCHARGED BY FINDING THE COSTS AS STATED IN THE NOTICE OF LIEN FACIALLY UNREASONABLE)/LIEN LAW (NYC, THE REASONABLENESS OF THE COSTS OF TEMPORARILY RELOCATING A TENANT FORCED TO VACATE AN UNINHABITABLE BUILDING MUST BE DETERMINED IN A LIEN FORECLOSURE PROCEEDING, THE LIEN CANNOT BE SUMMARILY DISCHARGED BY FINDING THE COSTS AS STATED IN THE NOTICE OF LIEN FACIALLY UNREASONABLE)/MUNICIPAL LAW (NYC, THE REASONABLENESS OF THE COSTS OF TEMPORARILY RELOCATING A TENANT FORCED TO VACATE AN UNINHABITABLE BUILDING MUST BE DETERMINED IN A LIEN FORECLOSURE PROCEEDING, THE LIEN CANNOT BE SUMMARILY DISCHARGED BY FINDING THE COSTS AS STATED IN THE NOTICE OF LIEN FACIALLY UNREASONABLE)

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19 YEAR OLD NOTICE OF CLAIM WAS NOT SUFFICIENT WRITTEN NOTICE OF SIDEWALK DEFECT.

The Second Department determined a 19-year-old notice of claim did not meet the written notice requirement for a sidewalk defect in this slip and fall case:

“Administrative Code of the City of New York § 7-201(c) limits the City’s duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location” … . Accordingly, “prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City” … .

Here, the City established its prima facie entitlement to judgment as a matter of law by submitting proof that a search of its records revealed that it had not received any prior written notice of the allegedly defective condition … . In opposition, the plaintiffs failed to raise a triable issue of fact. “To satisfy a prior written notice statute, the notice relied upon by a plaintiff must not be too remote in time” … . Here, the plaintiffs’ submission of a notice of claim, filed almost 19 years prior to the accident complained of, was insufficient to raise a triable issue of fact since it was too remote in time to constitute prior written notice within the meaning of Administrative Code of the City of New York § 7-201(c) … . Gellman v Cooke, 2017 NY Slip Op 02404, 2nd Dept 3-29-17

 

SECOND DEPARTMENT JOINS THE THIRD AND FOURTH DEPARTMENTS IN HOLDING INDIVIDUAL MUNICIPAL EMPLOYEES NEED NOT BE NAMED AS DEFENDANTS IN A NOTICE OF CLAIM.

The Second Department decided to follow the Third and Fourth Departments and did not require the naming of individual municipal employees as defendants in a notice of claim. The decision in this false arrest, malicious prosecution and civil rights violation case is substantive and deals with several issues not summarized here, including the District Attorney’s immunity from suit. With respect to the notice of claim, the court wrote:

The Appellate Division, First Department, has held that “General Municipal Law § 50-e makes unauthorized an action against individuals who have not been named in a notice of claim” … . * * * The plurality opinion in that case stated that the names of individual employees, if unknown, should still be named as John or Jane Does to enable the municipality to properly investigate the claims and to put individual defendants on notice that they will be sued. …

In contrast, the Appellate Division, Fourth Department, has held that naming individual municipal employees in a notice of claim is not a condition precedent to joining those individuals as defendants in the action … . In Goodwin, the Fourth Department noted that General Municipal Law § 50-e(2), which sets forth the requirements for a notice of claim, does not include a requirement that specific individual employees be named, and concluded that “[t]he underlying purpose of the statute may be served without requiring a plaintiff to name the individual agents, officers or employees in the notice of claim” (id. at 216). In Pierce v Hickey (129 AD3d 1287, 1289), the Appellate Division, Third Department, followed Goodwin, stating that there was no requirement that “an individual municipal employee be named in the notice of claim.”

We agree with the Third and Fourth Departments. * * * Listing the names of the individuals who allegedly committed the wrongdoing is not required … . Blake v City of New York, 2017 NY Slip Op 02399, 2nd Dept 3-29-17

 

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THREE YEAR STATUTE OF LIMITATIONS FOR A FALSE ARREST CAUSE OF ACTION UNDER 42 USC 1983 BEGAN TO RUN UPON ARRAIGNMENT.

The First Department noted that the three year statute of limitations for a false arrest cause of action under 42 USC 1983 began to run upon arraignment:

The three-year limitations period on a section 1983 claim based on false arrest begins to run “when the alleged false imprisonment ends” — that is, when the arrestee becomes subject to the legal process such as being “bound over by a magistrate or arraigned on charges” … . Here, because plaintiff was arraigned on July 16, 2011, the limitations period on his section 1983 claim based on false arrest ended on July 16, 2014, approximately three months before plaintiff filed this action. Accordingly, the claim is time-barred. Cruz v City of New York, 2017 NY Slip Op 02386, 1st Dept 3-28-17

 

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LATE NOTICE OF CLAIM PROPERLY ALLOWED DESPITE ABSENCE OF REASONABLE EXCUSE AND LACK OF TIMELY NOTICE OF THE UNDERLYING FACTS.

The Fourth Department determined the application for leave to file a late notice of claim was properly granted, despite the absence of an adequate excuse and the lack of timely notice of the underlying facts:

Here, even assuming, arguendo, that claimants failed to provide a reasonable excuse for their delay, we conclude that the remaining factors support the court’s exercise of discretion in granting their application. Although respondents did not obtain knowledge of the facts underlying the claim until approximately nine months after the expiration of the 90-day period, we conclude under the circumstances of this case that “this was a reasonable time, particularly in light of the fact that respondent[s] do[ ] not contend that there has been any subsequent change in the condition of the [premises] which might hinder the investigation or defense of this action’ ” … . Moreover, claimants made a sufficient showing that the late notice will not substantially prejudice respondents, and respondents failed to “respond with a particularized evidentiary showing that [they] will be substantially prejudiced if the late notice is allowed” … . We therefore conclude that the court “properly exercised its broad discretion in granting [claimants’] application pursuant to General Municipal Law § 50-e (5)” … . Matter of Diegelman v City of Buffalo, 2017 NY Slip Op 02316, 4th Dept 3-24-17

MUNICIPAL LAW (LATE NOTICE OF CLAIM PROPERLY ALLOWED DESPITE ABSENCE OF REASONABLE EXCUSE AND LACK OF TIMELY NOTICE OF THE UNDERLYING FACTS)/NOTICE OF CLAIM (MUNICIPAL LAW, LATE NOTICE OF CLAIM PROPERLY ALLOWED DESPITE ABSENCE OF REASONABLE EXCUSE AND LACK OF TIMELY NOTICE OF THE UNDERLYING FACTS)/NEGLIGENCE (MUNICIPAL LAW, LATE NOTICE OF CLAIM PROPERLY ALLOWED DESPITE ABSENCE OF REASONABLE EXCUSE AND LACK OF TIMELY NOTICE OF THE UNDERLYING FACTS)

CITIZEN REVIEW BOARD HAS THE CAPACITY TO SUE AND STANDING TO BRING AN ARTICLE 78-DECLARATORY JUDGMENT ACTION SEEKING THE POLICE DEPARTMENT’S COMPLIANCE WITH POLICE-ACTION-REVIEW PROCEDURES.

The Fourth Department, in a full-fledged opinion by Justice Curran, in a matter of first impression, determined the Citizen Review Board of Syracuse (CRB) had the capacity to sue and had standing to bring Article 78/declaratory judgment proceedings against the Syracuse Police Department seeking compliance with the citizen review procedures:

Here, the CRB’s enabling legislation provides that it was formed to “establish an open citizen-controlled process for reviewing grievances involving members of the Syracuse Police Department” and that “citizen complaints regarding members of the Syracuse Police Department shall be heard and reviewed fairly and impartially by the review board.” Further, the CRB is required by the ordinance to report and publish the number of cases in which sanctions were imposed. Inasmuch as the CRB cannot perform its legislative mandate without the Chief of Police’s compliance with the corresponding legislative mandate that he “advise the [CRB] in writing as to what type of actions or sanctions were imposed, and the reasons if none were imposed,” we conclude that the CRB has sustained a sufficiently particularized injury that falls squarely within the zone of interests set forth in the ordinance … . Matter of Citizen Review Bd. of The City of Syracuse v Syracuse Police Dept., 2017 NY Slip Op 02181, 4th Dept 3-24-17

MUNICIPAL LAW (CITIZEN REVIEW BOARD HAS THE CAPACITY TO SUE AND STANDING TO BRING AN ARTICLE 78-DECLARATORY JUDGMENT ACTION SEEKING THE POLICE DEPARTMENT’S COMPLIANCE WITH POLICE-ACTION-REVIEW PROCEDURES)/POLICE (CITIZEN REVIEW BOARD HAS THE CAPACITY TO SUE AND STANDING TO BRING AN ARTICLE 78-DECLARATORY JUDGMENT ACTION SEEKING THE POLICE DEPARTMENT’S COMPLIANCE WITH POLICE-ACTION-REVIEW PROCEDURES)/CITIZEN REVIEW BOARD (CITIZEN REVIEW BOARD HAS THE CAPACITY TO SUE AND STANDING TO BRING AN ARTICLE 78-DECLARATORY JUDGMENT ACTION SEEKING THE POLICE DEPARTMENT’S COMPLIANCE WITH POLICE-ACTION-REVIEW PROCEDURES)

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DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR.

In the context of a suit against the county, the Fourth Department determined the deliberative process privilege (also called the inter-agency or intra-agency materials exception) which applies to documents requested under the Freedom of Information Law does not apply to discovery request under the CPLR:

Both the CPLR and FOIL provide for disclosure of documents. The former controls discovery between litigants in court proceedings, and the latter permits disclosure of governmental records to the public even in the absence of litigation. “When a public agency is one of the litigants, this means that it has the distinct disadvantage of having to offer its adversary two routes into its records” … . The deliberative process privilege or exemption under FOIL seeks “to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers” … . While some courts have applied that privilege outside the FOIL context … , we decline to do so inasmuch as the Court of Appeals “has never created nor recognized a generalized deliberative process privilege’ ” … .

We “recognize[] the existence of some cases which all too casually mention the deliberate process privilege’ and purport to apply it outside the context of a FOIL proceeding” … . Nevertheless, it is also important to recognize that “privileges simply do not exist in the absence of either constitutional or statutory authority, or, when created as a matter of jurisprudence” … . Although the County seeks to assert “the so-called deliberative process privilege[,]’ ” in the context of a civil litigation, “neither the Court of Appeals’ case law nor that of the [Fourth] Department can be construed [as] having created a distinct deliberate process privilege’ outside the context of a FOIL proceeding” … . Mosey v County of Erie, 2017 NY Slip Op 02201, 4th Dept 3-24-17

 

CIVIL PROCEDURE (DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/FREEDOM OF INFORMATION LAW (FOIL) (DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/MUNICIPAL LAW (DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/DELIBERATIVE PROCESS PRIVILEGE (FOIL, DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/INTER OR INTRA AGENCY EXCEPTION (FOIL, DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)

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PLAINTIFF COULD NOT IDENTIFY CAUSE OF HIS FALL, COMPLAINT PROPERLY DISMISSED.

The Second Department determined plaintiff’s slip and fall complaint was properly dismissed because plaintiff could not identify the cause of his fall:

During his 50-h hearing, the injured plaintiff testified that he was walking on the sidewalk and was about to cross the street when his right foot caught on “some sort of stone,” causing him to fall. He did not see the stone before the accident, but after he fell, he looked and saw stones embedded in the earth around a tree, which caught his foot. At his deposition, however, the injured plaintiff testified that as he was about to cross the street, he was paying attention to traffic and his foot “hit something” causing him to lose his balance and fall. This time, he identified a raised portion of the sidewalk, approximately three feet away from the tree, as the cause of his fall. He distinguished this area from the cobblestones around the tree and testified that he did not make contact with the cobblestones, as he was “further down, to the side of the tree.” Contrary to the plaintiffs’ contention, the injured plaintiff’s own contradictory testimony does not create a question of fact … . Rather, it demonstrates that he is unable to identify the cause of his fall and any determination by the trier of fact as to causation would be based upon sheer speculation … . Vojvodic v City of New York, 2017 NY Slip Op 02085, 2nd Dept 3-22-17

NEGLIGENCE (PLAINTIFF COULD NOT IDENTIFY CAUSE OF HIS FALL, COMPLAINT PROPERLY DISMISSED)/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS, PLAINTIFF COULD NOT IDENTIFY CAUSE OF HIS FALL, COMPLAINT PROPERLY DISMISSED)/SLIP AND FALL (PLAINTIFF COULD NOT IDENTIFY CAUSE OF HIS FALL, COMPLAINT PROPERLY DISMISSED)/SIDEWALKS (SLIP AND FALL, PLAINTIFF COULD NOT IDENTIFY CAUSE OF HIS FALL, COMPLAINT PROPERLY DISMISSED)

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PLAINTIFF INJURED IN COLLSION WITH A POLICE CAR, POLICE REPORT PROVIDED CITY WITH NOTICE OF THE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF EXCUSE.

The Second Department determined the petition for leave to file a late notice of claim should have been granted, despite of the lack of an adequate excuse. The plaintiff was involved in an accident with a police car. The police report noted that plaintiff was injured. Therefore the city had timely notice of essential elements of the claim:

Here, the City and the NYPD acquired timely actual notice of the facts underlying the claim. The subject motor vehicle accident involved a police department vehicle and police department employee. The NYPD responded to the scene and conducted an investigation into the facts and circumstances surrounding the accident. Indeed, the police accident report specifically noted that the petitioner, as well as the driver of the vehicle in which she was a passenger, made statements alleging that [the officer] was liable. The police accident report also noted that the petitioner was injured and that a copy of the report was being provided to the Office of the Comptroller, as well as the Motor Transport Division and Personal Safety Unit of the NYPD. Thus, the overall circumstances of this matter support an inference that the City effectively received actual notice of the essential facts constituting the claim … . In light of the City’s actual knowledge of the essential facts constituting the claim, there is no substantial prejudice to the City in maintaining a defense … . “[W]here there is actual notice and an absence of prejudice, the lack of reasonable excuse will not bar the granting of leave to serve a late notice of claim” … . Matter of Jaffier v City of New York, 2017 NY Slip Op 02039, 2nd Dept 3-22-17

NEGLIGENCE (PLAINTIFF INJURED IN COLLSION WITH A POLICE CAR, POLICE REPORT PROVIDED CITY WITH NOTICE OF THE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF EXCUSE)/MUNICIPAL LAW (NOTICE OF CLAIM, PLAINTIFF INJURED IN COLLSION WITH A POLICE CAR, POLICE REPORT PROVIDED CITY WITH NOTICE OF THE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF EXCUSE)/NOTICE OF CLAIM (MUNICIPAL LAW, PLAINTIFF INJURED IN COLLSION WITH A POLICE CAR, POLICE REPORT PROVIDED CITY WITH NOTICE OF THE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF EXCUSE)

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