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Untimely Demand for Reinstatement Warranted Dismissal of Action to Compel Reinstatement

The Fourth Department determined petitioner’s action to compel reinstatement in his job as a policeman was untimely.  Petitioner should have made a demand for reinstatement within four months of learning he was not being held responsible criminally or civilly for the acts of misconduct alleged against him:

“Where, as here, a public employee is discharged without a hearing, the four-month limitations period set forth in CPLR 217 begins to run when the employee’s demand for reinstatement is refused” … . “[T]he demand must be made within a reasonable time after the right to make the demand occurs or . . . within a reasonable time after [petitioner] becomes aware of the facts which give rise to his [or her] right of relief” … , and we note that the four-month limitations period of CPLR article 78 proceedings has been “treat[ed] . . . as a measure of permissible delay in the making of the demand” … . Here, we conclude that petitioner’s right to demand reinstatement to his position arose, at the latest, on or about December 6, 2011, when he received a letter from the District Attorney stating that he bore no civil or criminal responsibility for the acts of misconduct alleged against him, and that the matter would not be presented to the grand jury … . Nevertheless, petitioner did not demand reinstatement to his position until approximately nine months later, on August 31, 2012, well over the four-month guideline applied in Devens … . Thus, “it was [well] within the court’s discretion to determine that petitioner unreasonably delayed in making the demand” … . Matter of Norton v City of Hornell…, 256, 4th Dept 3-21-14

 

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Under the Unambiguous Terms of the Collective Bargaining Agreement, Plaintiff, a Retiree Who Was No Longer a Union Member, Was Not Subject to the Grievance-Filing Requirement and Could Sue Directly

The Fourth Department determined a retired employee was not required to go through the grievance procedure outlined in the Collective Bargaining Agreement because the unambiguous language of the CBA did not apply to retirees no longer union members:

In relevant part, the CBA defines the term “grievance” broadly as “a controversy, dispute or difference arising out of the interpretation or application of this contract.” The first step of the grievance procedure requires either the union or a “member” to present the grievance in writing. “It is well established that[,] when reviewing a contract, ‘[p]articular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties manifested thereby’ ” … . Furthermore, we“must give the words and phrases employed their plain meaning” … . Elsewhere in the CBA, the word “member” is used interchangeably with the word “employee,” and several CBA provisions that apply to “members,” such as provisions for holiday pay and annual physicals, clearly affect only active employees. In addition, the CBA provides that the Village recognizes the union “as the exclusive representative for collective negotiations with respect to salaries, wages, and other terms and conditions of employment of all full-time and part-time employees” (emphasis added).

Giving the word “member” its plain meaning, and interpreting the contract as a whole, we agree with plaintiff that the word “member” means a member of the union. It is undisputed that plaintiff ceased to be a member of the union after his retirement. Thus, according to the clear and unambiguous terms of the CBA, plaintiff, who was no longer a “member” of the union when he became aggrieved, could not file a grievance. Buff v Village of Manlius…, 37, 4th Dept 3-21-14

 

Construction Manager Not Liable Under Labor Law 241(6), Labor Law 200, or Under Common Law Negligence/No Control Over Work or Responsibility for the Premises

Over a dissent, the Fourth Department determined a construction manager was not liable as an agent of the owner under Labor Law 241(6) because the manager did not control the activity which resulted in the injury.  In addition the court determined the Labor Law 200 and common law negligence causes of action should hav been dismissed:

A construction manager may be liable as an agent of the owner if “the manager had the ability to control the activity which brought about the injury” … . “ ‘Defendant established as a matter of law that it was not an agent of the owner because the owner had not delegated to it the authority to supervise and control plaintiff’s work’ ” … . Pursuant to the express terms of the contract between defendant and the District, defendant “had no control over or responsibility for the safety of the workers at the construction site” … . The deposition testimony and affidavits submitted by defendant established that defendant acted in accordance with its authority under the contract, i.e., coordinating the schedules of the contractors and ensuring that their work complied with the requirements of the construction documents, and did nothing more. * * *

“Where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200” … . On the other hand, where the “ ‘plaintiff’s injuries stem not from the manner in which the work was being performed[ ] but, rather, from a dangerous condition on the premises, [an owner or] general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition’  … . Regardless of which theory applies here, defendant was not an agent of the owner and “was not responsible either for the performance of [plaintiff’s] work or the premises on which that work was undertaken” … . Hargrave…v LeChase Construction Services LLC, 1373, 4th Dept. 3-21-14

 

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Knowledge of the Health Issue Underlying Plaintiff’s Claim, and Knowledge of Another Similar Claim, Was Not Enough to Provide Defendant with Notice of Plaintiff’s Claim/Request to File Late Notice of Claim Should Not Have Been Granted

Over a two-justice dissent, the Fourth Department determined Supreme Court erred in granting plaintiff’s application to file a late notice of claim.  Plaintiff, a wrestler, had contracted herpes from another high school wrestler.  The school had knowledge of the issue (a Health Advisory) and of another wrestler’s claim against the school based upon the same facts.  The Fourth Department determined that knowledge of the issue and the  other wrestler’s claim was not sufficient to put the school on notice about the plaintiff’s claim:

Where a claimant does not offer a reasonable excuse for failing to serve a timely notice of claim, a court may grant leave to serve a late notice of claim only if the respondent has actual knowledge of the essential facts underlying the claim, there is no compelling showing of prejudice to the respondent …, and the claim does not “patently lack merit” … . Here, respondents asserted that, until claimant made the instant application, they had no knowledge that he had contracted herpes or otherwise had been injured at the tournament. Although claimant offered no evidence to the contrary, he essentially contended that respondents should have known of his injury because another wrestler had filed a timely notice of claim regarding an identical injury and because respondents had received Health Advisory #279a.

As we have repeatedly stated, actual knowledge of the essential facts of a claim requires “[k]nowledge of the injuries or damages claimed by a [claimant], rather than mere notice of the underlying occurrence” … . Here, claimant’s proof in support of his application establishes, at most, that respondents had constructive knowledge of his claim. In other words, there is nothing in the notice of claim filed by the other wrestler who was infected at the tournament or in Health Advisory #279a that gave respondents actual knowledge that claimant was similarly injured.Thus, even assuming, arguendo, that respondents suffered no prejudice from the delay and that the proposed claim against them does not patently lack merit, we conclude that the court abused its discretion in granting claimant’s application for leave to serve a late notice of claim … . Matter of Candino v Starpoint Central School District, 83, 4th Dept 3-21-14

 

Inadequate Effort to Provide Requested Documents and Witnesses Required Annulment of the Misbehavior Determination

The Fourth Department annulled the determination against an inmate because of inadequate assistance.  The court found that the inmate was improperly denied requested documents and witnesses:

…[W]e note that the Hearing Officer indicated that the signatures of the hall captains were illegible and thus unidentifiable, even by those officers in the block to whom the Hearing Officer had spoken, but nevertheless agreed to “try” to comply with petitioner’s request to call those witnesses. The record does not reflect any efforts made by the Hearing Officer to do so.

We further agree with petitioner that he was denied meaningful employee assistance and was prejudiced by the inadequate assistance he received. Thus, at a minimum, petitioner would have been entitled to a new hearing in any event … . Petitioner objected to the assistance provided to him, complaining that the assistant did not bring him copies of the documents being used against him and that the assistant did not want to help him. “When the inmate is unable to provide names of potential witnesses, but provides sufficient information to allow the employee [assistant] to locate the witnesses ‘without great difficulty[,’] failure to make any effort to do so constitutes a violation of the meaningful assistance requirement” … . The record fails to set forth what efforts, if any, the employee assistant made to ascertain the names of the correction officers who signed the disbursement forms and what measures, if any, the assistant took to secure their presence at the hearing. Under the circumstances, it cannot be said that “reasonable efforts were made to locate petitioner’s witnesses” … .

Furthermore, petitioner was denied the right to call a witness,i.e., the other inmate, as provided in the regulations … . “The hearsay report of a correction officer that a witness refuses to testify unaccompanied by any reason from the witness proffered to the [H]earing [O]fficer for such refusal is not a sufficient basis upon which an inmate’s conditional right to call witnesses can be summarily denied” … . Matter of Elder v Fischer, 90, 4th Dept 3-21-14

 

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Requirements for a Negligence Action Against a Municipality (Based Upon Personal Injuries Allegedly Caused by the Actions of Police Officers) Explained

The Fourth Department, in affirming the grant of summary judgment to the defendant municipality in a suit based upon injuries alleged to have been caused by police officers, the court explained the law relevant to negligence suits against municipalities:

With respect to the negligence cause of action, it is well settled that, in an action against a municipality, it is “the fundamental obligation of a plaintiff pursuing a negligence cause of action to prove that the putative defendant owed a duty of care. Under the public duty rule, although a municipality owes a general duty to the public at large to [perform certain governmental functions], this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created. This is an offshoot of the general proposition that[,] ‘[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally’ . . . The second principle relevant here relates not to an element of plaintiff[’s] negligence claim but to a defense that [is] potentially available to [defendant]—the governmental function immunity defense . . . [T]he common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions . . . [pursuant to which] ‘[a] public employee’s discretionary acts—meaning conduct involving the exercise of reasoned judgment—may not result in the municipality’s liability even when the conduct is negligent’ ” … .

With respect to the issue whether a special duty exists, it is well settled “that an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public . . . Such a duty, . . . [i.e.,] a duty to exercise reasonable care toward the plaintiff[,] is born of a special relationship between the plaintiff and the governmental entity” … . “A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … . According to plaintiff, a special relationship was formed in this case by the second method, i.e., the voluntary assumption of a duty of care by the municipal agency. That method requires plaintiff to establish “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking … .

We conclude that defendants met their burden on the motion by establishing as a matter of law that there was no voluntary assumption of a duty of care, and plaintiff failed to raise a triable issue of fact whether the police officers who came to the house assumed, through promise or action, any duty to act on his behalf. Even assuming, arguendo, that plaintiff raised a triable issue of fact with respect to that requirement, we conclude that he also failed to raise a triable issue of fact with respect to the fourth requirement, i.e., whether he justifiably relied on any such assumption of duty by the police officers … . Consequently, we conclude that the court erred in denying the motion with respect to the negligence cause of action.

We further conclude, in any event, that the defense of governmental function immunity constitutes a separate and independent ground for dismissal of the negligence cause of action. That defense “shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions” … . Here, defendants established that they were providing police protection and engaging in the investigation of possible criminal behavior. It is well settled that “[p]olice and fire protection are examples of long-recognized, quintessential governmental functions” … . Furthermore, “defendants established that the conduct of the police officers throughout the course of their interaction with [plaintiff] was undertaken in the exercise of reasoned professional judgment of the officers, and was not inconsistent with accepted police practice. Accordingly, such conduct cannot serve as a basis for municipal liability” … . Bower v City of Lockport…, 159, 4th Dept 3-21-14

 

Skiers Do Not Assume the Risk of Recklessness on the Part of Another Skier

The Fourth Department determined the doctrine of assumption of the risk did not rule out a novice skier’s lawsuit against a skier who ran into her. There was a question whether defendant’s conduct was reckless:

It is well established that, “by engaging in a sport orrecreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “While awareness or appreciation of such risks must be ‘assessed against the background of the skill and experience of the particular plaintiff’ . . . , ‘[t]he risk of injury caused by another skier is an inherent risk of downhill skiing’ ” … . Nevertheless, “a sporting participant ‘will not be deemed to have assumed the risks of reckless or intentional conduct’ ” … . “ ‘Generally, the issue of assumption of [the] risk is a question of fact for the jury’ ”… . Moore… v Hoffman, 138, 4th Dept 2-14-14

 

Evidence Sufficient to Demonstrate No Constructive Notice of Ice on Step

Over a dissent, the Fourth Department determined defendants had demonstrated they did not have constructive notice of ice alleged to be on a step. The proof submitted by the defendants included evidence that the step was routinely inspected every morning, although no evidence of such an inspection on the morning in question was submitted:

The facilities supervisor testified that he routinely inspects the bank’s steps and sidewalk upon his arrival at the bank between 6:30 a.m. and 7:30 a.m. He or his employees salt or shovel “first thing” in the morning, if the conditions require such action. In addition to inspecting the property upon their arrival, facilities personnel regularly monitor conditions throughout the day and “re-salt or re-shovel” as needed, and do so more frequently during inclement weather or if a customer complains. Defendants did not receive any complaints about snow, ice, or any other dangerous condition on the step prior to the accident. After the accident, which occurred at approximately 12:15 p.m., the facilities supervisor did not salt the steps or direct an employee to do so because he saw nothing to salt. Defendants also submitted the deposition testimony of their regional manager, who testified that there was no ice on the step when he arrived at the bank between 8 a.m. and 8:30 a.m. on the morning of the accident and that, after the accident, he inspected the step and the surrounding area and did not observe any snow or ice. A bank security officer testified that he photographed the step approximately two hours after the accident, at which time there was no snow or ice on the step. The security officer testified that he was “perplex[ed]” when he viewed the accident scene because he observed “nothing . . . to slip or fall on.” The postaccident photographs of the step depict what appears to be salt residue, but no ice. Austin v CDGA National Bank Trust and Canandaigua National Corporation…, 1298, 4th Dept 2-14-14

 

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Motion to Vacate Pursuant to CPLR 5015 Should Have Been Granted On “Subject Matter Jurisdiction” and “Fraud Upon the Court” Grounds

In a full-fledged opinion by Justice Centra, the Fourth Department determined Wells Fargo had either perpetrated a fraud upon the court or failed to reveal all the facts to the court which granted a nunc pro tunc order adding a second parcel to a foreclosure action. The Fourth Department noted that Wells Fargo knew the foreclosure action did not relate to the second parcel and therefore knew the nunc pro tunc order purporting merely to correct a mistake should not have been granted:

First, we agree … that the court … should have granted the motion to vacate the nunc pro tunc order because the court … was without subject matter jurisdiction to issue the nunc pro tunc order (see CPLR 5015 [a] [4]). Wells Fargo moved for the nunc pro tunc order pursuant to CPLR 2001, which provides that a “court may permit a mistake, omission, defect or irregularity . . . to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.” The court erred in granting the nunc pro tunc motion because Wells Fargo was not seeking to correct a mere ministerial or clerical mistake… . * * *

…[W]e agree … that the court … also should have granted the motion to vacate the nunc pro tunc order based on “fraud, misrepresentation, or other misconduct of an adverse party” (CPLR 5015 [a] [3]…).. In its nunc pro tunc motion, Wells Fargo asserted that the “common address” of 124-128 East Main Street contained both Parcel No. 1 and Parcel No. 2. Wells Fargo failed to advise the court …., however, that the metes and bounds descriptions of the two parcels are different. Wells Fargo does not dispute that, “when there is a discrepancy between the street address and the legal description of a piece of real property, the legal description controls” … . Wells Fargo also failed to advise the court of the second mortgage that encumbered Parcel No. 2, which, as noted earlier, was executed on the same date as the first mortgage. Further, Wells Fargo failed to advise the court that there was a two-family dwelling on Parcel No. 1 and a separate four-family dwelling on Parcel No. 2. Had Wells Fargo made the court aware of those facts, the court may have realized that there was no clerical error in omitting Parcel No. 2 from schedule A. Wells Fargo Bank NA … v Podeswik…, 81, 4th Dept 2-14-14

 

Questions of Fact About Whether Covenants Restricting Use of Land Were Violated

The Fourth Department explained the analytical criteria for covenants restricting the use of land:

The law favors the free and unrestricted use of real property, and therefore covenants restricting such use are strictly construed against those seeking to enforce them … . Plaintiffs, as the parties seeking to enforce the covenants at issue, were required to “prove, by clear and convincing evidence, the scope . . . of the restriction” … . In addition, “where the language used in a restrictive covenant is equally susceptible of two interpretations, the less restrictive interpretation must be adopted” … . Viewing the language of the covenants in light of those rules, we conclude that plaintiffs failed to establish that the structure erected by defendant violates the covenant prohibiting erection or maintenance of a fence … . We further conclude that plaintiffs failed to establish that the structure violates the covenant prohibiting the obstruction of established trails or roads or otherwise interferes with plaintiffs’ rights of access to White Lake … . Rather, triable issues of fact remain whether the covenants at issue were intended to prohibit the structure in question and thus whether defendant violated those covenants… . Halfond… v White Lake Shores Association Inc, 1380, 4th Dept 2-14-14

 

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