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NOTICE OF CLAIM REQUIREMENT FOR LABOR LAW ACTION AGAINST CITY NOT PREEMPTED BY LONGSHOREMAN’S AND HARBOR WORKERS’ COMPENSATION ACT.

The Second Department determined plaintiff was required to file a notice of claim in his Labor Law action against the city. The notice of claim requirement was not preempted by the Longshoreman’s and Harbor Workers’ Compensation Act (LHWCA). Plaintiff was injured while doing overhaul work in a the Brooklyn Navy Yard:

The LHWCA provides nonseaman maritime workers with the right to bring no-fault workers’ compensation claims against their employer, pursuant to 33 USC § 904(b), and negligence claims against the vessel, pursuant to 33 USC § 905(b). As to those two categories of defendants, 33 USC § 905(a) and (b) expressly preempt all other claims, but 33 USC § 933(a) expressly preserves all claims against third parties … . “Importantly, § 933 recognizes that a covered employee may have tort remedies against third parties under federal or state law. Section 933 preserves and codifies a maritime worker’s common law right to pursue a negligence claim against a third party that is not the employer or a coworker; it does not create a cause of action nor establish a third party’s liability for negligence” … . Fernandez v City of New York, 2017 NY Slip Op 02022, 2nd Dept 3-22-17

LABOR LAW-CONSTRUCTION LAW (NOTICE OF CLAIM REQUIREMENT FOR LABOR LAW ACTION AGAINST CITY NOT PREEMPTED BY LONGSHOREMAN’S AND HARBOR WORKERS’ COMPENSATION ACT)/MUNICIPAL LAW (NOTICE OF CLAIM REQUIREMENT FOR LABOR LAW ACTION AGAINST CITY NOT PREEMPTED BY LONGSHOREMAN’S AND HARBOR WORKERS’ COMPENSATION ACT)/NOTICE OF CLAIM (MUNCIPAL LAW, NOTICE OF CLAIM REQUIREMENT FOR LABOR LAW ACTION AGAINST CITY NOT PREEMPTED BY LONGSHOREMAN’S AND HARBOR WORKERS’ COMPENSATION ACT)/LONGSHOREMAN’S AND HARBOR WORKERS’ COMPENSATION ACT (NOTICE OF CLAIM REQUIREMENT FOR LABOR LAW ACTION AGAINST CITY NOT PREEMPTED BY LONGSHOREMAN’S AND HARBOR WORKERS’ COMPENSATION ACT)

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NEW YORK CITY HOUSING AUTHORITY NOT ENTITLED TO PRESUMPTION BUILDING CONSTRUCTED IN 1974 DID NOT HAVE LEAD PAINT, SUMMARY JUDGMENT PROPERLY DENIED.

The First Department determined the New York City Housing Authority’s (NYCHA’s) motion for summary judgment in this lead-paint poisoning case was properly denied. The NYCHA argued that the building was constructed in 1974 and lead paint was banned in 1960:

Although NYCHA relies on its own testing that was negative for lead paint, DOH’s [Department of Health’s] lead testing came back positive. NYCHA’s arguments that these were false positives due to the manner in which, and location from where, the samples were taken is insufficient to disregard them as a matter of law. * * *

Nor did NYCHA prove as a matter of law, that it had no actual or constructive notice of the existence of lead paint in the building. Pursuant to the City’s Childhood Lead Poisoning Prevention Act (Local Law 1 of 2004), lead-based paint is presumed to exist in a multiple dwelling unit if the building was built before 1960. Where, as here, the building is built between 1960 and 1978, the presumption will apply only if the owner knows that there is lead-based paint, and a child under the age of six lives in the apartment. Although in a pre-1960 building, paint is presumed to contain lead, the opposite is not true; there is no presumption that paint in a building constructed after 1960 is not lead-based. Given plaintiff’s claim, that NYCHA maintains the premises and assumed the duty to have the apartments painted, the absence of any evidence concerning the history of painting in the subject apartments is insufficient for the court to rule out, as a matter of law, notice. Dakota Jade T. v New York City Hous. Auth., 2017 NY Slip Op 01987, 1st Dept 3-21-17

 

NEGLIGENCE (LEAD PAINT, NEW YORK CITY HOUSING AUTHORITY NOT ENTITLED TO PRESUMPTION BUILDING CONSTRUCTED IN 1974 DID NOT HAVE LEAD PAINT, SUMMARY JUDGMENT PROPERLY DENIED)/MUNICIPAL LAW  (LEAD PAINT, NEW YORK CITY HOUSING AUTHORITY NOT ENTITLED TO PRESUMPTION BUILDING CONSTRUCTED IN 1974 DID NOT HAVE LEAD PAINT, SUMMARY JUDGMENT PROPERLY DENIED)/LEAD PAINT (NEW YORK CITY HOUSING AUTHORITY NOT ENTITLED TO PRESUMPTION BUILDING CONSTRUCTED IN 1974 DID NOT HAVE LEAD PAINT, SUMMARY JUDGMENT PROPERLY DENIED)

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LATE NOTICE OF CLAIM SHOULD HAVE BEEN ALLOWED DESPITE LACK OF A REASONABLE EXCUSE AND DEFENDANT’S LACK OF KNOWLEDGE OF THE INJURY.

The First Department determined plaintiff’s motion for leave to file a late notice of claim against the NYC Housing Authority should have been granted, despite the lack of a reasonable excuse and defendant’s lack of knowledge of the injury. The infant plaintiff was nine months old when he was burned by an exposed water pipe.  The infancy and the lack of prejudice to the defendant warranted allowing the claim to be filed after a 10-month delay:

The infant plaintiff was approximately nine months old at the time that he allegedly sustained injuries as a result of an exposed hot water pipe in his family’s apartment, in a building owned and operated by defendant. This infancy weighs in favor of granting leave to serve a late notice of claim, regardless of the lack of a nexus between the delay and infancy … . In addition, defendant failed to address plaintiff’s showing that defendant would not be substantially prejudiced by the 10-month delay in seeking leave since the condition of the exposed pipes remained unchanged from the time of the accident … . Given these factors, which the motion court failed to address, and given the remedial nature of the statute, the motion court improvidently exercised its discretion in dismissing the infant plaintiff’s claim … . Eboni B. v New York City Hous. Auth., 2017 NY Slip Op 01816, 1st De[t 3-15-17

MUNICIPAL LAW (LATE NOTICE OF CLAIM SHOULD HAVE BEEN ALLOWED DESPITE LACK OF A REASONABLE EXCUSE AND DEFENDANT’S LACK OF KNOWLEDGE OF THE INJURY)/NOTICE OF CLAIM (LATE NOTICE OF CLAIM SHOULD HAVE BEEN ALLOWED DESPITE LACK OF A REASONABLE EXCUSE AND DEFENDANT’S LACK OF KNOWLEDGE OF THE INJURY)/NEGLIGENCE (MUNICIPAL LAW, LATE NOTICE OF CLAIM SHOULD HAVE BEEN ALLOWED DESPITE LACK OF A REASONABLE EXCUSE AND DEFENDANT’S LACK OF KNOWLEDGE OF THE INJURY)

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TERMINATION OF TEACHER BASED ON HER SUBMISSION OF INACCURATE TIME SHEETS, UNDER THE CIRCUMSTANCES, SHOCKS THE CONSCIENCE.

The First Department, over a two-justice dissent, determined the termination of a teacher for submitting inaccurate time sheets was not warranted. The teacher had an unblemished record and the misconduct was precipitated by Hurricane Sandy, which flooded her home and the home of her disabled student:

Petitioner filled out the time sheets in question in advance of the dates to which those time sheets pertained. Although she did not, in fact, proceed to provide instruction to the disabled student on the days set forth in those time sheets, she submitted the time sheets without correction on a subsequent date. Because petitioner instructed other students on each of the dates in question, she would have received the same salary regardless of how many students she had instructed or how many hours she had spent with them, and thus derived no benefit from her actions. Petitioner’s misconduct is more a matter of lax bookkeeping than implementation of any venal scheme. There was no scheme to defraud or theft of services on petitioner’s part, and the harm to the public and to the DOE was mitigated. * * *

At the hearing, petitioner admitted that she was guilty of submitting reports stating that she had provided instruction to the disabled student on certain dates when she had not done so and that she had reported to various schools and libraries on certain dates when she had not done so. As petitioner acknowledges, her misconduct warrants punishment, since the disabled student was deprived of the services of a teacher for two months. Petitioner does not seek to set aside the findings of misconduct contained in the hearing officer’s opinion, but only to modify the penalty imposed on her. She has acknowledged her error in judgment and has pledged to change her practices and never to repeat the error. There is no evidence that “petitioner could not remedy her behavior” … . Matter of Beatty v City of New York, 2017 NY Slip Op 01628, 1st Dept 3-2-17

 

EDUCATION-SCHOOL LAW (TERMINATION OF TEACHER BASED ON HER SUBMISSION OF INACCURATE TIME SHEETS, UNDER THE CIRCUMSTANCES, SHOCKS THE CONSCIENCE)/EMPLOYMENT LAW (EDCUATION-SCHOOL LAW, TERMINATION OF TEACHER BASED ON HER SUBMISSION OF INACCURATE TIME SHEETS, UNDER THE CIRCUMSTANCES, SHOCKS THE CONSCIENCE)/MUNICIPAL LAW (EDCUATION-SCHOOL LAW, TERMINATION OF TEACHER BASED ON HER SUBMISSION OF INACCURATE TIME SHEETS, UNDER THE CIRCUMSTANCES, SHOCKS THE CONSCIENCE)

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COMMON CARRIERS DO NOT HAVE A DUTY TO KEEP BUS STEPS FREE OF SNOW TRACKED IN DUE TO A RECENT STORM.

The First Department, reversing Supreme Court, determined defendant transit authority’s motion for summary judgment should have been granted. Plaintiff slipped on snow on a step as she got off a bus:

Plaintiff testified that she slipped and fell as she was exiting a bus owned and operated by defendants because the step was covered with a slushy condition. She and the bus driver both stated that there was snow all over the ground from a storm that had ended earlier that day, and certified meteorological records submitted by defendants demonstrated that a snow storm that started the previous night and ended earlier in the day of the accident had left about six inches of snow on the ground. The bus driver also testified that passengers tracked snow onto the bus on their shoes and boots as they boarded.

Common carriers are not obligated to provide a “constant remedy” for the tracking of water onto a bus during an ongoing storm or for a reasonable time thereafter … . Similarly, when the ground is covered with snow left by a recent storm, “it would be unreasonable to expect the [defendants] to constantly clean the front steps of the subject bus” … . Plaintiff’s argument that defendants failed to show lack of notice of the slushy condition is irrelevant, since they did not breach any duty of care under the existing weather conditions. Harbison v New York City Tr. Auth., 2017 NY Slip Op 01503, 1st Dept 2-28-17

 

NEGLIGENCE (COMMON CARRIERS DO NOT HAVE A DUTY TO KEEP BUS STEPS FREE OF SNOW TRACKED IN DUE TO A RECENT STORM)/BUSES (SLIP AND FALL, COMMON CARRIERS DO NOT HAVE A DUTY TO KEEP BUS STEPS FREE OF SNOW TRACKED IN DUE TO A RECENT STORM)/SLIP AND FALL (BUSES, COMMON CARRIERS DO NOT HAVE A DUTY TO KEEP BUS STEPS FREE OF SNOW TRACKED IN DUE TO A RECENT STORM)

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PROPERTY OWNERS’ FRAUD AND OFFICIAL MISCONDUCT COUNTERCLAIM SHOULD HAVE BEEN DISMISSED IN THIS ACTION BY THE TOWN ALLEGING ZONING VIOLATIONS.

The Third Department, reversing Supreme Court, determined defendant property owners’ counterclaim should have been dismissed. Defendants, in the context of a zoning-violation action by the town, alleged fraud and a violation of civil rights by the town. With respect to municipal liability for civil rights violations in the zoning context, the court explained:

A government official may face civil liability if a party can prove that he or she was “depriv[ed] of any rights, privileges, or immunities secured by the Constitution and laws” (42 USC § 1983). With respect to zoning issues, “42 USC § 1983 protects against municipal actions that violate a property owner’s rights to due process, equal protection of the laws and just compensation for the taking of property under the Fifth and Fourteenth Amendments to the United States Constitution” … . To state a cause of action, defendants must “allege that, without legal justification, they were deprived of a vested property interest, consisting of more than a mere expectation or hope of obtaining a permit or a variance” … . Further, a municipal body may face liability pursuant to 42 USC § 1983 only where the constitutional deprivation stems from an official municipal policy or custom … .

Here, defendants never had a permit to allow them to park more than four commercial vehicles on the property or to install fuel tanks to use in association with their commercial operations. Nor do they allege that they had a vested property interest in such a special use permit … . Moreover, defendants’ submissions fail to establish that the Planning Board’s discretionary determination to impose conditions on defendants’ special use permit “rose to the level of a constitutional violation, i.e., that they were so outrageously arbitrary as to constitute a gross abuse of governmental authority . . . that would support a claim pursuant to 42 USC § 1983” … . Even accepting as true that one Planning Board member stated that he wanted to “make an example” of defendants, defendants did not allege, nor does the record support a claim, that this motivation resulted from official municipal policy or custom … . Town of Tupper Lake v Sootbusters, LLC, 2017 NY Slip Op 01428, 3rd Dept 2-23-17

 

ZONING (PROPERTY OWNERS’ FRAUD AND OFFICIAL MISCONDUCT COUNTERCLAIM SHOULD HAVE BEEN DISMISSED IN THIS ACTION BY THE TOWN ALLEGING ZONING VIOLATIONS)/MUNCIPAL LAW (ZONING, (PROPERTY OWNERS’ FRAUD AND OFFICIAL MISCONDUCT COUNTERCLAIM SHOULD HAVE BEEN DISMISSED IN THIS ACTION BY THE TOWN ALLEGING ZONING VIOLATIONS)/CIVIL RIGHTS LAW (MUNICIPAL LAW, ZONING, PROPERTY OWNERS’ FRAUD AND OFFICIAL MISCONDUCT COUNTERCLAIM SHOULD HAVE BEEN DISMISSED IN THIS ACTION BY THE TOWN ALLEGING ZONING VIOLATIONS)

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TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD.

The Third Department determined the town had the right, pursuant to the Highway Law, to a pubic road easement three rods wide, even though the easement extended past the paved portion and included a plaintiffs’ fence:

After a roadway is established as a highway by use, Highway Law § 189 plainly permits a town to maintain and improve it in furtherance of the public’s right of travel, to the width of “at least three rods.” Stated differently, so long as the use at issue relates directly or indirectly to the public’s right of travel, the use of the highway may be extended past the paved portion of the road to a width of at least three rods. In our view, this interpretation of the statute is consistent with case law holding that the extent of the easement is defined by its actual use … . Inasmuch as the Town’s plowing and widening of Fox Hollow Road are uses that are “necessary to preserve the public’s right of passage,” they define the Town’s easement pursuant to Highway Law § 189 … . Further, it is undisputed that plaintiffs’ fence and the widening of the roadway were well within the three-rod width that defendants are statutorily authorized to open. Hoffman v Town of Shandaken, 2017 NY Slip Op 01430, 3rd Dept 2-23-17

MUNICIPAL LAW (TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD)/HIGHWAYS AN ROADS (TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD)/EASEMENTS (MUNICIPAL LAW, PUBLIC ROADS, TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD)

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AGREEMENT TO FOREGO APPLYING FOR A REAL PROPERTY TAX EXEMPTION IN RETURN FOR THE TRANSFER OF TWO BUILDINGS FOR ONE DOLLAR WAS ENFORCEABLE.

The Third Department determined defendant non-profit breached material terms of its contract with the city. The city transferred two buildings to the non-profit in return for promises to bring the buildings into compliance and not to seek a property tax exemption for 20 years. The buildings were not brought into compliance, and defendant sought and received property tax exemptions. Because the tax exemptions were granted, the Third Department found there was a question of fact whether the city waived that term of the contract:

… [P]laintiff demonstrated that the compliance provision was an integral and material part of the contract and that defendant’s breach substantially defeated the contract’s purpose … . Plaintiff’s proof also established that, under the circumstances presented here, rescission of the contract is the only adequate remedy … . * * *

… “[T]he Constitution and the State Legislature, in the furtherance of the general welfare, have established a clear policy that [educational] institutions are to be free, if they so choose, from local taxes” … . Contrary to defendant’s contention, we find that nothing in NY Constitution, article XVI, § 1 or RPTL 420-a prohibits an educational organization, such as defendant, from freely choosing to refrain from applying for a real property tax exemption. Rather, the prohibition set forth is to restrain municipalities from denying a real property tax exemption to a statutorily exempt organization once an application has been submitted or attempting to extort the organization’s waiver of the exemption … . Accordingly, we find that the tax exemption provision is enforceable. * * *

… [A]lthough we agree that rescission is the appropriate remedy for defendant’s established breaches of the contract, rescission would be premature at this point because issues of fact exist as to defendant’s affirmative defense of waiver. City of Schenectady v Edison Exploratorium, Inc., 2017 NY Slip Op 01427, 3rd Dept 2-23-17

 

CONTRACT LAW (MUNICIPAL LAW, AGREEMENT TO FOREGO APPLYING FOR A REAL PROPERTY TAX EXEMPTION IN RETURN FOR THE TRANSFER OF TWO BUILDINGS FOR ONE DOLLAR WAS ENFORCEABLE)/REAL PROPERTY TAX LAW (MUNICIPAL LAW, AGREEMENT TO FOREGO APPLYING FOR A REAL PROPERTY TAX EXEMPTION IN RETURN FOR THE TRANSFER OF TWO BUILDINGS FOR ONE DOLLAR WAS ENFORCEABLE)/MUNICIPAL LAW (CONTRACT LAW, AGREEMENT TO FOREGO APPLYING FOR A REAL PROPERTY TAX EXEMPTION IN RETURN FOR THE TRANSFER OF TWO BUILDINGS FOR ONE DOLLAR WAS ENFORCEABLE)

NYC WATER BOARD’S ONE-TIME CREDIT TO CLASS 1 PROPERTY OWNERS COUPLED WITH A 2.1% RATE INCREASE DID NOT HAVE A RATIONAL BASIS AND WAS PROPERLY ANNULLED AND VACATED.

The First Department, over an extensive dissent, determined the NYC Water Board’s issuance of a one-time credit of $183 to Class 1 property owners coupled with a 2.1% increase in NYC water rates was not supported by a rational basis. Class 1 property owners are owners of one, two and three family residences:

Although the Water Board claims that the credit would be more financially meaningful for class one property owners, the credit is not in any way tied to financial need. There is no rational basis for the conclusion that class one ratepayers have traditionally borne a disproportionate burden of water and sewage fees. While the Water Board argues that some members of class one rate payers experience financial hardship in paying for water, the application of the credit does not in any manner take into consideration an owner’s ability to pay or customers’ need for this benefit, solely relying on the classification of the property for tax purposes, which bears little relation to the stated objective. …

The Water Board’s justification for the increase as necessary to ensure funding for the costs of repairing or replacing existing portions of the City’s water and sewer system, while consistent with its mission statement and statutory mandate, is irreconcilable with the Water Board’s implementation of a credit if, the Water Board still needed funds to balance its books for the year. The action seems inconsistent with the Water Board’s statutory mandate to make the water system self sustaining. Matter of Prometheus Realty Corp. v New York City Water Bd., 2017 NY Slip Op 01263, 1st Dept 2-16-17

 

MUNICIPAL LAW (NYC) (NYC WATER BOARD’S ONE-TIME CREDIT TO CLASS 1 PROPERTY OWNERS COUPLED WITH A 2.1% RATE INCREASE DID NOT HAVE A RATIONAL BASIS AND WAS PROPERLY ANNULLED AND VACATED)/WATER BOARD (NYC) (NYC WATER BOARD’S ONE-TIME CREDIT TO CLASS 1 PROPERTY OWNERS COUPLED WITH A 2.1% RATE INCREASE DID NOT HAVE A RATIONAL BASIS AND WAS PROPERLY ANNULLED AND VACATED)/WATER RATES (NYC) (NYC WATER BOARD’S ONE-TIME CREDIT TO CLASS 1 PROPERTY OWNERS COUPLED WITH A 2.1% RATE INCREASE DID NOT HAVE A RATIONAL BASIS AND WAS PROPERLY ANNULLED AND VACATED)

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CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined the city’s motion for summary judgment in this bicycle accident case was properly denied. Although the city demonstrated it did not receive written notice of the alleged defective condition (a depression in the road), the city did not demonstrate it did not create the defective condition when street work was done:

Where, as here, the plaintiff has alleged that the affirmative negligence exception applies, the City was required to show, prima facie, that the exception does not apply … . Although the City established that it did not receive prior written notice of the alleged defect, it failed to establish, prima facie, that it did not create the alleged defect when its Sewer Maintenance Department opened up the street in the area of the plaintiff’s fall prior to the accident … . Since the City did not establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact. Lewak v Town of Hempstead, 2017 NY Slip Op 01189, 2nd Dept 2-15-17

NEGLIGENCE (MUNICIPAL LAW, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/MUNICIPAL LAW (NEGLIGENCE, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/BICYCLE ACCIDENT (MUNICIPAL LAW, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/HIGHWAYS AND ROADS (NEGLIGENCE, MUNICIPAL LAW, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)

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