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Land Owned by Power Company Which Does Not Now Produce Sewage and Garbage Properly Subject to Ad Valorem Taxes for Sewage and Garbage

The Fourth Department determined land owned by a power company was properly subject to ad valorem taxes for sewer and garbage because it was possible the land, at some point, could be used in a way that would generate sewage and garbage:

The test for determining whether real properties are benefitted, thus warranting special district assessment, is whether the properties are capable of receiving the service funded by the special ad valorem levy’ ” … . “An ad valorem tax will not be deemed invalid unless the taxpayer’s benefit received from the imposition of the tax is reduced to the point where it is, in effect, nonexistent” … .

Here, ” there is a sufficient theoretical potential of the properties to be developed in a manner that will result in the generation of garbage [and sewage]’ ” … . Unlike the plaintiff in Long Is. Water Corp. v Supervisor of Town of Hempstead (77 AD3d 795, lv denied 16 NY3d 711), plaintiff herein owns the land on which its “mass” properties sit, and we conclude that it is theoretically possible that such land, if put to a different use, could generate garbage and sewage. Matter of Niagara Mohawk Power Corp v Town of Marcy Assessor, 2014 NY Slip Op 04312, 4th Dept 6-13-14

 

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Low-Income Families’ Challenges to Child Care Copayment Regulation Rejected

The Fourth Department rejected challenges to a copayment regulation by low-income families who are eligible for child care assistance but who are required to pay more than 10% of their gross incomes for the care.  The families alleged that the co-payment regulation, 18 NYCRR 415.3 (e), violated Social Services Law 410-x because it did not provide for a single sliding fee scale, the existing sliding fee scales are not based upon the family’s ability to pay, and the regulation failed to provide equitable access to child care as required by statute.  The families further alleged the copayment regulation violated the families’ right to travel within the state and their right to equal protection of the law.  With respect to the sliding scale aspect of the argument, the court wrote:

Plaintiffs …contend that the copayment regulation violates Social Services Law § 410-x (6) because it does not provide for a single sliding fee scale, as required by statute, and instead allows each of the 58 social services districts to set its own sliding fee scale. We reject that contention as well. “It is well settled that the Legislature may authorize an administrative agency to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation’ ” … . “In so doing, an agency can adopt regulations that go beyond the text of that legislation, provided they are not inconsistent with the statutory language or its underlying purposes” … . An agency’s interpretation of a governing statute will not be disturbed unless it is unreasonable or irrational … .

Here, section 410-x (6) delegates regulatory authority to the Office of Children and Family Services, of which defendant is Commissioner, by providing that, “[p]ursuant to department regulations, child care assistance shall be provided on a sliding fee basis based on the family’s ability to pay.” The statute does not expressly require defendant to adopt a single state-wide sliding fee scale, and we do not consider it unreasonable or irrational for defendant to adopt a regulation that gives flexibility to social services districts to choose a multiplier between 10% and 35% to use in calculating an eligible family’s share of child care costs. Williams v Carrion, 2014 NY Slip Op 03044, 4th Dept 5-2-14

 

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Corporate Integrity Documents Privileged Under Education Law 6527 (3)

The Fourth Department determined corporate integrity documents sought by plaintiffs in a fraud and dental malpractice action were privileged under the Education Law and did not have to be disclosed:

We conclude that the court erred in determining that the requested corporate integrity documents were not privileged under Education Law § 6527 (3). [Defendant] met its burden of establishing that the corporate integrity documents sought by plaintiffs were related to the “performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program” … . Specifically, [defendant] established that the corporate integrity documents were prepared pursuant to state and federal corporate integrity agreements, which set forth procedures for the review and monitoring of the quality of care of the dental clinics. Thus, [defendant] established” that it has a review procedure and that the [corporate integrity documents] for which the [privilege] is claimed [were] obtained or maintained in accordance with that review procedure’ ” … . Contrary to plaintiffs’ contention, there is nothing in the language of section 6527 (3) limiting applicability of the privilege to agencies located in New York or records prepared in the state… . Matter of Small Smiles Litig, 2014 NY Slip Op 03080, 4th Dept 5-2-14

 

Surrogate’s Court Should Have Held a Hearing to Determine the Validity of a Handwritten Will Supported by the Affidavits of Two Attesting Witnesses—If Valid, the 2012 Handwritten Will Would Have Revoked the 2002 Will

The Fourth Department reversed Surrogate’s Court and ordered that a hearing be held to determine whether a 2012 will revoked a 2002 will.  The 2012 will was handwritten and included some confusing language, but it was supported by the affidavits of two attesting witnesses.  There was sufficient evidence of the validity of the 2012 will to warrant a hearing:

We conclude that petitioner demonstrated a substantial basis for contesting the 2002 will. Execution of a subsequent will revokes a former will if the subsequent will is “so inconsistent with the former will that the two cannot stand together,” even in the absence of an express revocation clause in the subsequent will … . Here, the 2002 will named respondent as the sole beneficiary, but the 2012 will named petitioner as the sole beneficiary and purported to dispose of all of decedent’s property. We therefore conclude that the provisions of the 2002 will are so inconsistent with those of the 2012 will that, if the Surrogate were “satisfied with the genuineness of the [2012] will and the validity of its execution” (SCPA 1408 [1]), the 2012 will would revoke the 2002 will. Thus, in this case, whether petitioner had a reasonable probability of successfully vacating probate of the 2002 will was dependent upon whether he could prove, through competent evidence, that the 2012 will was genuine and duly executed and attested …. Matter of Gehr, 2014 NY Slip Op 03049, 4th Dept 5-2-14

 

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Police Officer Struck by Plaintiffs’ Decedents When the Officer Was Making a U-Turn to Follow a Car Was Entitled to Summary Judgment Under the Statutory “Reckless Disregard” Standard

The Fourth Department determined summary judgment should have been granted in favor of a police officer (Bluman) who was struck by plaintiffs' decedents when the officer was attempting to make a u-turn to follow a vehicle.  The court determined the reckless disregard standard of Vehicle and Traffic Law 1104 applied and that the officer's “momentary judgment lapse” did not rise to the level of reckless disregard as a matter of law:

At the time of the accident, Bluman was operating an “authorized emergency vehicle” (Vehicle and Traffic Law § 1104 [a]) and was engaged in an emergency operation by virtue of the fact that he was attempting a U-turn in order to “pursu[e] an actual or suspected violator of the law” (§ 114-b). As the Court of Appeals recognized …, “the reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.” We conclude that, by attempting to execute a U-turn, Bluman's conduct was exempted from the rules of the road by section 1104 (b) (4). As a result, his conduct is governed by the reckless disregard standard of care in section 1104 (e).

It is well settled that a ” momentary judgment lapse' does not alone rise to the level of recklessness required of the driver of an emergency vehicle in order for liability to attach” (Szczerbiak v Pilat, 90 NY2d 553, 557). Here, Bluman acted under the mistaken belief that the other southbound vehicles were sufficiently behind him and that it was, at that moment, safe to execute a U-turn. This “constituted a momentary lapse in judgment not rising to the level of reckless disregard for the safety of others' “… . Dodds v Town of Hamburg, 2014 NY Slip Op 03060, 4th Dept 5-2-14

 

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Emotional Injury Can Constitute “Serious Injury” Within the Meaning of the Insurance Law/On-coming Car Crossed Into Plaintiffs’ Lane—Plaintiffs Entitled to Summary Judgment (Re: On-coming Driver’s Negligence Cause of Action) Under the Emergency Doctrine

The Fourth Department noted a question of fact had been raised about whether post-traumatic-stress disorder constituted a serious injury within the meaning of Insurance Law 5102 (d).  Plaintiffs, husband and wife, were struck head-on when an on-coming car crossed into plaintiff’s lane.  The driver of the on-coming car was trying to avoid a deer which ran into the road. The court also determined plaintiffs were entitled to summary judgment dismissing the other driver’s negligence action based upon the emergency doctrine, even in the absence of expert evidence:

“[A] causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury” …, and posttraumatic stress disorder (PTSD) “may constitute such an injury when it is causally related to a motor vehicle accident and demonstrated by objective medical evidence” … . Moreover, “PTSD may be demonstrated without diagnostic testing for purposes of Insurance Law § 5102 (d) by symptoms objectively observed by treating physicians and established by the testimony of the injured plaintiff and others who observe the injured plaintiff” … .

Even assuming, arguendo, that plaintiffs met their initial burden on the issue of serious injury, we conclude that defendants raised an issue of fact sufficient to defeat the motion by submitting the records of [plaintiff’s]  psychologist … . * * *

“Under the emergency doctrine, “when [a driver] is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes [the driver] to be reasonably so disturbed that [he or she] must make a speedy decision without weighing alternative courses of conduct, the [driver] may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the [driver] has not created the emergency” ‘ … . It is well established that a driver is not required to anticipate that [a] vehicle, traveling in the opposite direction, [will] cross over into his [or her] lane of travel’ ” … . * * * The vehicle operated by decedent entered [plaintiff’s] lane of traffic without warning, and [plaintiff]  applied his brakes and swerved to the right as soon as he saw decedent’s vehicle cross into his lane. The absence of expert evidence on this issue is of no moment inasmuch as, “[i]n a cross-over collision case, a defendant [or a plaintiff seeking dismissal of an affirmative defense] may meet the burden of establishing entitlement to summary judgment [or dismissal of the affirmative defense] under the emergency doctrine even when [t]he only evidence in the record concerning [the movant’s] conduct’ is [his or her] own [deposition] testimony” … . Hill v Cash, 2014 NY Slip Op 03058, 4th Dept 5-2-14

 

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Statutory “Reckless Disregard” Standard in Vehicle and Traffic Law 1103 (b) Applied to the Driver of a Town Truck—The Driver Was Using a Plow to Remove Water and Debris from a Road—Because the Driver Was Acting On His Own and Had Not Been Assigned to Remove the Water and Debris, the Question Raised on Appeal Was Whether the Driver Was Doing “Work” within the Meaning of Section 1103 (b) such that the Statutory Standard, as Opposed to the Ordinary Negligence Standard, Applied

The Fourth Department, over a two-justice dissent, determined the statutory “reckless disregard” standard of Vehicle and Traffic Law 1103 (b), not the ordinary negligence standard, applied to the actions of the driver of a town truck..  The driver, Grzybek,  was using a plow to remove water and debris from a service road.  The water sprayed onto the windshield of the truck, obstructing the driver’s vision and causing the driver to cross into an oncoming lane, striking plaintiffs’ vehicle. Because the driver was not assigned the task of removing water and debris from the road, the dissenters argued the driver was not engaged in “work” within the meaning of Vehicle and Traffic Law 1103 (b) and, therefore, the ordinary negligence standard, not the “reckless disregard” standard of section 1103 (b), applied:

…[T]he statute exempts “all [municipal] vehicles actually engaged in work on a highway’ . . . from the rules of the road” … . The statute does not state that it exempts only those vehicles engaged in “assigned” work. Plowing water and debris from a road is work, and that work is within the scope of Grzybek’s duties. Plaintiffs do not suggest otherwise. Rather, their contention is that the statute applies only when the vehicles are “performing their assigned work” and that Grzybek was not assigned to plow water and debris from the service road on the day of the accident. In our view, interpreting the statute as the dissent and plaintiffs suggest improperly adds language to the statute by qualifying the word “work.” It is not the function of this Court to usurp the power of the legislature and rewrite a clear and unambiguous statute. Aside from statutory exceptions not relevant herein, all municipal vehicles actually engaged in work are exempt from the rules of the road. Inasmuch as Grzybek’s vehicle was actually engaged in work, albeit unassigned work, the reckless disregard standard of care set forth in Vehicle and Traffic Law § 1103 (b) applies as a matter of law. * * *

…[W]e conclude that plaintiffs, in opposition to defendants’ cross motion, submitted evidence from which a jury could find that Grzybek “had intentionally committed an act of an unreasonable character in disregard of a known or obvious risk “that was so great as to make it highly probable that harm would follow” and [did] so with conscious indifference to the outcome’ ” … . Gawron v Town of Cheektowaga, 2014 NY Slip Op 03051, 4th Dept 5-2-14

 

No Liability for Injury to Child Who Suddenly Darted Out Into Traffic

The Fourth Department determined all causes of action arising from a child’s darting out into traffic should be dismissed. There was no evidence the driver who struck the child (Hosley) was negligent.  And there was no evidence the adults in the car from which the child darted into traffic (Ricks and Still) were negligent.  The driver parked the car intending to escort the child to her school bus:

Specifically, the evidence establishes as a matter of law that, “without looking in the direction of oncoming traffic” …, the child darted from behind the front of Still’s parked vehicle, “directly into the path of” Hosley’s vehicle, leaving Hosley “unable to avoid contact with the [child]” …, and plaintiff failed to raise an issue of fact … . Contrary to plaintiff’s contention, the record does not establish that there is an issue of fact whether Hosley operated her vehicle in a negligent manner. Rather, the record establishes as a matter of law that Hosley acted as a reasonably prudent person when she slowed her rate of speed immediately upon seeing the parked vehicle ahead, and that she proceeded with caution while attempting to pass it safely on the left … .

With respect to the motion of Ricks and Still, we note that “[t]he operator of a private passenger vehicle owes to his passengers a duty of reasonable care [in] providing a safe place to alight” … . Ricks and Still met their initial burden on their motion by establishing that Ricks did not breach that duty to the child when, intending to escort the child, he parked the vehicle against the curb on a side street. Plaintiff’s “[m]ere conclusions, expressions of hope or unsubstantiated allegations” asserted in opposition to the motion failed to raise an issue of fact … . Green v Hosley, 2014 NY Slip Op 03066, 4th Dept 5-2-14

 

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Causes of Action Against County Personnel Based Upon Negligent Hiring, Training and Supervision Should Not Have Been Dismissed–Plaintiff’s Decedent Was Killed at the Hands of Her Mother and Half-Brother—Complaint Alleged County’s Negligence in Failing to Protect Plaintiff’s Decedent

In a lawsuit alleging county personnel, including deputy sheriffs, were negligent resulting in the death of plaintiff’s decedent at the hands of her mother and half-brother, the Fourth Department determined: (1) governmental immunity could not be determined at the pleading stage because whether the government’s actions were discretionary (and therefore immune) was a question of fact; (2) absent a local law to the contrary, a sheriff can not be held vicariously responsible for the actions of deputy sheriffs under the doctrine of respondeat superior; (3) the causes of action for negligent hiring, training and supervision of county personnel should not have been dismissed; (4) the notices of claim were sufficient to notify the county of the negligent hiring, training and supervision causes of action; and (5) the notice of claim was not defective for failing to name the sheriff in his official capacity.  Mosey v County of Erie, 2014 NY Slip Op 03041, 4th Dept 5-2-14

 

Defect Not Trivial as a Matter of Law

The Fourth Department determined defendant failed to establish a defect in pavement was trivial as a matter of law:

Here, we conclude that defendant failed to meet its initial burden of establishing that the defect was trivial and nonactionable as a matter of law … . The photographs submitted in support of defendant’s motion depict a lengthy edge in the pavement that was more than two-thirds of an inch deep and spanned the width of the painted walking area adjacent to the designated handicapped parking space … . Defendant also submitted plaintiff’s deposition testimony, in which she testified that her right foot caught on “a quite high ledge” in the pavement at the rear of the parking space … . Although defendant characterizes the edge as “a small, rounded lip in the pavement,” the photographs depict crumbling asphalt, and the edge appears to be irregular, jagged and abrupt as opposed to gradual …, where the trivial defect involved ” a small area’ ” of a ” cracked and crumbly’ ” curb that “had no measurable depth,’ ” plaintiff’s deposition testimony and the photographs in this case, particularly the photographs depicting the area closest to plaintiff’s vehicle, suggest a measurable edge in the pavement that could pose a tripping hazard. Lupa v City of Oswego, 2014 NY Slip Op 03055, 4th Dept 5-2-14

 

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