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IN A SIDEWALK SLIP AND FALL CASE AGAINST A MUNICIPALITY, VERBAL NOTICE OF THE DEFECT, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE REQUIREMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this sidewalk slip and fall case, determined the defendant city demonstrated it did not have written notice of the sidewalk defect and rejected the allegation that the city had verbal notice that may have been reduced to writing:

… [P]laintiff and the cross-claim defendants never contested the City’s “proof that it had not received prior written notice of the defect, asserting, instead, that such notice was unnecessary” because the City had actual notice … . However, “it is well settled that verbal or telephonic communications to a municipal body, even if reduced to writing, do not satisfy a prior written notice requirement” … . Runge v City of N. Tonawanda, 2023 NY Slip Op 03123, Fourth Dept 6-9-23

Practice Point: In a sidewalk slip and fall case against a municipality, verbal notice of the defect, even if reduced to writing, does not satisfy the written notice requirement.

 

​ A SUBCONTRACTOR’S DAMAGES FOR CONSTRUCTION DELAY CANNOT BE PROVEN BY COMPARING ACTUAL COSTS TO THE BID PRICE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the subcontractor (Frey) did not submit sufficient proof of damages caused by construction delays:

… [W]here a subcontractor is claiming delay damages, the subcontractor “must establish the extent to which its costs were increased by the improper acts because its recovery will be limited to damages actually sustained” … . “[I]t has repeatedly been held improper to prove excess labor costs by comparing the total labor costs for the project with the bid estimate for the labor, because of[, among other things,] the inherent unreliability of the price elements of a bid” … . LPCiminelli, Inc. v JPW Structural Contr., Inc., 2023 NY Slip Op 03112, Fourth Dept 6-9-23

Practice Point: A subcontractor’s damages for construction delay cannot be proven by comparing actual costs to the bid price.

 

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AN ORAL STIPULATION IS INVALID PURSUANT TO DOMESTIC RELATIONS LAW SECION 236(B)(3) AND CANNOT BE RATIFIED; THERE IS NOW AN EVEN SPLIT AMONG THE APPELLATE DIVISION DEPARTMENTS ON THIS ISSUE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, noting a split among the appellate-division departments, determined an oral stipulation was invalid pursuant to Domestic Relations Law 236(B)(3):

… [T]he parties’ oral stipulation is not enforceable because, although it was entered in open court, it was not reduced to writing, subscribed, or acknowledged by the parties, as required by Domestic Relations Law § 236 (B) (3). Although plaintiff’s attorney stated at the time of the oral stipulation that she “would prefer just to do the oral stipulation,” the statute unambiguously provides that, in order for an agreement regarding maintenance or a distributive award “made before or during the marriage” to be valid and enforceable in a matrimonial action, the agreement must be “in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded” … . We have repeatedly held that oral stipulations do not comply with the statute … . …

… Supreme Court erred in denying the motion on the ground that plaintiff ratified the oral stipulation. The proposition that an agreement that fails to comply with Domestic Relations Law § 236 (B) (3) could be upheld if ratified by the parties was implicitly rejected by the Court of Appeals in Matisoff.[90 NY2d 135-136] … . Cole v Hoover, 2023 NY Slip Op 03103, Fourth Dept 6-9-23

Practice Point: An oral stipulation is invalid pursuant to Domestic Relations Law 236(B)(3) and cannot be ratified. There is now an even split among the appellate division departments on this issue.

 

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THE CAUSES OF ACTION FOR A STIGMA-PLUS 43 USC 1983 VIOLATION AND DEFAMATION SHOULD HAVE BEEN DISMISSED; THE CAUSES OF ACTION WERE BASED UPON A STATEMENT BY THE SCHOOL DISTRICT ACCUSING PLAINTIFF OF DISREGARDING COVID POLICY AND ENDANGERING STUDENTS; PLAINTIFF DID NOT SUFFER ECONOMIC HARM AND THE STATEMENT WAS PRIVILEGED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the stigma-plus 42 USC 1983 cause of action and the defamation cause of action should have been dismissed. The action was brought by plaintiff, a school football coach, based upon a letter circulated by the school district accusing plaintiff of disregarding COVID precautions and recklessly exposing students to the virus. Initially the district was not going to renew plaintiff’s contract but ultimately plaintiff was not terminated:

A stigma-plus cause of action requires a plaintiff to establish “(1) the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiff’s status or rights” … . Because a defamatory statement, standing alone, does not amount to a constitutional deprivation, “the ‘plus’ imposed by the defendant[s] must be  specific and adverse action clearly restricting the plaintiff’s liberty—for example, the loss of employment” … . * * *

… [T]he complaint alleges that the District superintendent, whose role included termination of employees like plaintiff, circulated the allegedly defamatory letter. A school superintendent is a principal executive whose statements may be protected by absolute privilege … . Further, based on the allegations in the complaint, we conclude that “the [superintendent] was acting wholly within the scope of his duties” when making the relevant statements  … . Sindoni v Board of Educ. of Skaneateles Cent. Sch. Dist., 2023 NY Slip Op 03102, Fourth Dept 6-9-23

Practice Point: Here a statement that plaintiff school football coach disregarded COVID policy and endangered students did not support the stigma-plus 42 USC 1983 cause of action because plaintiff did not suffer economic harm and did not support the defamation cause of action because the statement was privileged.

 

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THERE IS A QUESTION OF FACT WHETHER DEFENDANT POLICE OFFICER ACTED WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS IN THIS EMERGENCY-VEHICLE TRAFFIC ACCIDENT CASE; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined there was a question of fact whether defendant police officer acted with reckless disregard for the safety of others in this emergency-vehicle traffic accident case. Defendant police officer was responding to a call concerning a burglar alarm and was driving without emergency lights at 70 mph on a sparsely populated rural two-lane road with a 55 mph speed-limit when plaintiff attempted a left turn and the collision occurred:

… [D]fendant submitted the deposition testimony of plaintiff, who testified that as plaintiff approached the intersection from the two-lane, hilly, wet road, he did not see any other vehicles when he activated his left turn signal. Plaintiff testified that he began his left turn and was already in the process thereof when he first noticed defendant’s vehicle approaching his vehicle. Contrary to the dissent’s position, plaintiff maintains that defendant failed to yield to plaintiff’s right-of-way and did not concede the issue. Plaintiff further testified that defendant’s vehicle was coming toward his vehicle at a “high rate of speed” and did not have on any headlights, siren or flashing lights. While there was evidence that defendant attempted to brake before colliding with plaintiff’s vehicle, there was undisputed evidence that defendant’s vehicle was traveling 70 miles per hour in a 55 mile per hour zone just prior to the collision and that defendant was still traveling 47 miles per hour at the time of impact with plaintiff’s vehicle. Defendant submitted his own deposition testimony which established that at the time of the accident defendant was responding to a police dispatch call of a “possible burglar alarm.” Defendant further testified that he was not sure whether he was responding to an emergency situation and only knew at the time that he was responding to “an alarm” at an address. 

From the dissent:

… [T]he evidence submitted by defendant established that he was traveling no more than 70 miles per hour when responding to the emergency, and that the posted speed limit in the area is 55 miles per hour. Data retrieved from the “black box” in the police vehicle showed that defendant started slowing down five seconds before the collision, decreasing his speed to 47 miles per hour by the time of impact. It is well settled that speeding by a police officer while operating an emergency vehicle during an emergency operation “certainly cannot alone constitute a predicate for liability, since it is expressly privileged under Vehicle and Traffic Law § 1104 (b) (3)” … and the record here reveals no other conduct allegedly engaged in by defendant that made it ” ‘highly probable that harm would follow’ ” … . Gernatt v Gregoire, 2023 NY Slip Op 03094, Fourth Dept 6-9-23

Practice Point: Even though plaintiff was convicted of failing to yield the right-of-way, the majority held there was a question of fact whether defendant police officer acted with reckless disregard for the safety of others. The officer was driving 70 mph on a sparsely populated rural road with a 55 mph speed limit, without emergency lights, when plaintiff attempted a left turn. The two-justice dissent argued the officer’s speeding was not enough to raise a question of fact.

 

THE TAKING BY EMINENT DOMAIN OF PETITIONER’S DECOMMISSIONED ELECTRIC GENERATING STATION AND WATER INTAKE STRUCTURES ON THE NIAGARA RIVER SERVED A PUBLIC PURPOSE; THE DISSENT ARGUED THE TOWN SHOULD NOT BE ALLOWED TO TAKE PROPERTY AND THEN USE IT FOR EXACTLY THE SAME PURPOSE FOR WHICH THE PETITIONER IS NOW USING IT, I.E., ALLOWING BUSINESSES ACCESS TO INEXPENSIVE RAW WATER (FOURTH DEPT).

The Fourth Department, over a dissent, confirmed the taking by eminent domain of petitioner’s property, a decommissioned coal-fired electric generating station and water intake structures on the Niagara River. Petitioner had been allowing businesses to use the water intake structures for access to inexpensive raw water. The dissent argued the town should not be able to take property and then use the property in exactly the same way petitioner is using it now:

We reject petitioner’s contention that the condemnation will not serve a public use, benefit, or purpose (see EDPL 207 [C] [4]). “What qualifies as a public purpose or public use is broadly defined as encompassing virtually any project that may confer upon the public a benefit, utility, or advantage” … . Here, the Town’s condemnation of the property serves the public uses of, inter alia, revitalizing and redeveloping the former industrial property, which was a blight on the Town, and maintaining the critical raw water supply to significant industrial employers in the Town … . 

From the dissent:

In my view, the takings clauses of the Federal and State Constitutions do not permit the government to take land through eminent domain and use it for the exact same purpose for which the landowner is already using it. Matter of Huntley Power, LLC v Town of Tonawanda, 2023 NY Slip Op 03089, Fourth Dept 6-9-23

Practice Point: The taking by eminent domain of the water intake structures for a decommissioned electric generating station on the Niagara River served a public purpose, i.e., providing businesses with access to inexpensive raw water. The dissent argued petitioner is using the property for exactly that purpose now, rendering the taking invalid.

 

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DEFENDANT PHYSICIAN’S AFFIDAVIT DID NOT PROVE PLAINTIFF’S DECEDENT WAS INFORMED OF THE PRESENCE OF A FOREIGN BODY IN HIS PELVIS; THE AFFIDAVIT RELIED ON INSUFFICIENT EVIDENCE OF THE DEFENDANT’S CUSTOM OR HABIT; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff’s decedent’s primary care physician (PCP) did not prove whether or when the decedent was informed of the foreign object (a sponge) which was left in decedent’s pelvis after surgery. The PCP’s affidavit relied on custom or habit evidence, which was not sufficient. Therefore defendants did not prove whether or when decedent was informed of the foreign object. The complaint should not have been dismissed as time-barred:

“[E]vidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions because one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again” … . “The applicability of this doctrine is limited to cases where the proof demonstrates a deliberate and repetitive practice by a person in complete control of the circumstances . . . as opposed to conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances” … .

In order to establish the admissibility of the PCP’s habit evidence, defendants were required to establish that the PCP engaged in a routine practice of informing patients of the results of their diagnostic procedures and that his practice did not vary from patient to patient … . We conclude that defendants failed to do so. The affidavit of decedent’s PCP, submitted in support of the motions, explicitly concedes that the manner in which he informs patients of the results of diagnostic procedures varies. * * *

Inasmuch as defendants failed to establish that decedent was or should have been aware of the presence of the foreign body more than one year prior to commencing this action, the burden never shifted to plaintiff to aver evidentiary facts establishing that the limitations period had not expired, that it was tolled, or that an exception to the statute of limitations applied … . Baker v Eastern Niagara Hosp., Inc., 2023 NY Slip Op 03090, Fourth Dept 6-9-23

Practice Point: The evidence of defendant physician’s custom or habit of informing patients of the presence of a foreign object was insufficient. Therefore this medical malpractice action should not have been dismissed as time-barred. Defendant did not prove whether or when decedent was informed of the foreign object.

 

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THE STATUTE ALLOWING ONLY MEMBERS OF THE RELEVANT PARTY TO SUBMIT WRITE-IN BALLOTS IN A PRIMARY ELECTION IS CONSTITUTIONAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the statute allowing only members of the relevant party to submit write-in ballots in a primary election is constitutional:

The statute, which became effective on October 8, 2021, amended three sections of the Election Law to limit the universe of permissible write-in primary votes to enrolled members of the relevant party. Election Law § 6-164 was amended to specify that the opportunity to ballot process could be carried out on behalf of only candidates enrolled in the relevant party (see L 2021, ch 480, § 1). Section 6-166 (2) was amended to change the language required on the opportunity to ballot petition correspondingly (see L 2021, ch 480,§ 2). Finally, section 8-308 was amended to state: “A write-in ballot cast in a party primary for a candidate not enrolled in such party shall be void and not counted” (Election Law § 8-308 [4]; see L 2021, ch 480, § 3). * * *

… [T]he intended effect of the statute is to limit the universe of permissible write-in candidates in a party primary election to individuals who are members of that party. Political parties have protected associational rights, which include the right to identify their own members and to select candidates who best represent their ideals and preferences … and the “right to exclude non-members from their candidate nomination process” … . We conclude that the restrictions imposed by the statute were intended to protect those rights, and that petitioners have no associational right to involve non-members in the nomination process of their parties … .  Matter of Kowal v Mohr, 2023 NY Slip Op 02480, Fourth Dept 5-9-23

Practice Point: The statute allowing only members of the relevant party to submit write-in ballots in a primary election is constitutional.

 

DEFENDANT IN THIS MANSLAUGHTER CASE WAS THE VICTIM OF DOMESTIC VIOLENCE AND SHOULD HAVE BEEN SENTENCED UNDER THE ALTERNATIVE SENTENCING SCHEME IN THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (FOURTH DEPT). ​

The Fourth Department determined defendant should have been sentenced in accordance with the Domestic Violence Survivors Justice Act (DVSJA) in this manslaughter prosecution and reduced her incarceration to four years:

Penal Law § 60.12 (1) … provides an alternative sentencing scheme that the sentencing court may apply where it determines that “(a) at the time of the instant offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the defendant as such term is defined in .. ; (b) such abuse was a significant contributing factor to the defendant’s criminal behavior; [and] (c) having regard for the nature and circumstances of the crime and the history, character and condition of the defendant, that a sentence of imprisonment pursuant to [Penal Law §§ 70.00, 70.02, 70.06 or 70.71 (2) or (3)] would be unduly harsh.”

Here, we conclude that a preponderance of the evidence supports both a finding that defendant was a victim of domestic violence during her relationship with the victim and was subjected to “substantial physical, sexual or psychological abuse” and a finding that “such abuse was a significant contributing factor to the defendant’s criminal behavior” … . We further conclude that sentencing defendant pursuant to the normal sentencing guidelines would be “unduly harsh” in light of the “nature and circumstances of the crime and the history, character and condition of the defendant” … . People v Partlow, 2023 NY Slip Op 02479, Fourth Dept 5-9-23

Practice Point: The defendant in this manslaughter prosecution was a victim of domestic violence. She met the criteria for a reduced sentence pursuant to the Domestic Violence Survivors Justice Act.

 

THE ZONING BOARD OF APPEALS’ INTERPRETATION OF THE CODE RE: THE PARKING OF A CAMPER TRAILER ON THE PETITIONER’S PROPERTY WAS IRRATIONAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the zoning board of appeals’ (ZBA’s) interpretation of the zoning code was irrational. Petitioner was ordered to remedy the violation which was alleged to be his parking his camper trailer on his property within 250 feet of the property line. But the code provisions did not support the alleged violation:

The interpretation by a zoning board of its governing code is generally entitled to great deference by the courts” … . In the end, “[s]o long as its interpretation is neither ‘irrational, unreasonable nor inconsistent with the governing statute,’ it will be upheld” … . “Where, however, the question is one of pure legal interpretation of [a zoning code’s] terms, deference to the zoning board is not required” … . “[T]he ultimate responsibility of interpreting the law is with the court” … .

… [W]e agree with petitioner that respondents’ interpretation of the Zoning Code is irrational and unreasonable … . The “order to remedy violation” stated that petitioner violated the setback requirement set forth in section 110-3 of the Town’s Zoning Code, which limits “[t]he number of tents, trailers, houseboats, recreational vehicles, or other portable shelters in a camp” … . The Zoning Code, however, defines a “[c]amp” as “[a]ny temporary or portable shelter, such as a tent, recreational vehicle, or trailer” … . Respondents do not explain how a trailer or recreational vehicle can constitute both a “[c]amp” as defined in section 103-2 as well as a shelter “in a camp,” as defined in section 110-3, and the Zoning Code does not have additional provisions that clarify the issue. Matter of Lemmon v Town of Scipio, 2023 NY Slip Op 02446, Fpurth Dept 5-5-23

Practice Point: Here the zoning code was self-contradictory and the zoning board of appeals applied the code irrationally with respect to petitioner’s parking a camper trailer on his property.

 

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