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Criteria for Taxpayer Lawsuit Against School District for Misuse of Public Property Not Met; Failure to Serve Notice of Claim Fatal

In reversing Supreme Court, the Second Department determined that the failure to serve a notice of claim upon the school district (in a tort action) required dismissal and the criteria for a taxpayer suit against the district under General Municipal Law 51 had not been met:

Pursuant to Education Law § 3813, a plaintiff commencing a tort action against a school district must serve a notice of claim upon the school district. “Service of a notice of claim is a condition precedent to bringing an action against a school district or a board of education'”… . * * *

“A taxpayer suit under General Municipal Law § 51 lies only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes'” … .. Further, to establish “common-law taxpayer standing,” a plaintiff must demonstrate that he or she is “personally aggrieved by those actions in a manner different in kind and degree from the community generally” and that “the failure to accord [him or her] standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action”… . Fauvell v Miglino, 2013 NY Slip Op 07150, 2nd Dept 11-6-13

 

Failure to Identify Industrial Code Violation in Pleadings Not Fatal/Supervisory Criteria for Labor Law 200(1) Action Explained

In reversing Supreme Court, the Second Department determined summary judgment should not have been granted to the defendants on the Labor Law 241(6) and 200(1) causes of action.  Plaintiff was injured when he prevented himself from falling because of a missing plank on a scaffold.  The court noted that the plaintiff’s failure to identify the breach of an Industrial Code provision in the complaint and bill of particulars was not fatal to the 241(6) claim (the allegation of a specific code violation was subsequently provided). And the court explained the criteria for liability under Labor Law 200(1):

Although a plaintiff asserting a Labor Law § 241(6) cause of action must allege a violation of a specific and concrete provision of the Industrial Code …, a failure to identify the Code provision in the complaint or bill of particulars is not fatal to such a claim … . The plaintiff’s belated allegations that the defendants third-party plaintiffs violated 12 NYCRR 23-5.1(c), 23-5.1(e)(1), 23-5.1(f), and 23-5.3(f) involved no new factual allegations, raised no new theories of liability, and caused no prejudice to the defendants third-party plaintiffs …. The defendants third-party plaintiffs were put on sufficient notice that the cause of action alleging violations of Labor Law § 241(6) related to missing scaffold planks through the plaintiff’s bill of particulars and deposition testimony. Thus, they cannot reasonably claim prejudice or surprise. * * *

Where, as here, a plaintiff’s claim arises out of alleged defects or dangers in the methods or materials of the work, to prevail on a Labor Law § 200 cause of action, the plaintiff must show that the defendant “had the authority to supervise or control the performance of the work” … . “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … . “[T]he right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence”… . Klimowicz v Powell Cove Assoc, LLC, 2013 NY Slip Op 07158, 2nd Dept 11-6-13

 

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Police Officer (a Passenger in a Police Car) Who Was Injured by Underinsured Driver Was Covered By Police-Officer-Driver’s (Private) Underinsured Motorist Endorsement

In a full-fledged opinion by Justice Hall, the Second Department determined that a police car is a “motor vehicle” within the meaning of an uninsured/underinsured motorist endorsement in a [State Farm] policy held by the driver.  The plaintiff, a police officer, was injured in an automobile accident with an underinsured driver. The question was whether the State Farm policy held by the driver of the police car, another police officer, could be financially responsible under the uninsured/underinsured endorsement in the driver’s policy.  The Second Department held that the driver’s underinsured endorsement covered the injured (police-officer) passenger.  The question at issue was whether the exclusion of “police vehicle” from the definition of “motor vehicle” in Vehicle and Traffic Law 388(2) applied.  The court ruled it did not and determined the operative definition of “motor vehicle” in this context was in Vehicle and Traffic Law 125:

Contrary to State Farm’s contention, VTL § 125, instead of VTL § 388(2), should be used to define the term “motor vehicle,” as it appears in the uninsured/underinsured motorist endorsement. VTL § 125 is a general provision that defines the relevant terminology for the entire VTL. In fact, VTL § 388(2) acknowledges this by incorporating by reference the VTL § 125 definition of “motor vehicle.” Additionally, it has been recognized that uninsured motorist coverage extends to all “motor vehicles,” as defined by VTL § 125 (…Insurance Law § 5202[a]…).

Police vehicles fall within the definition of a “motor vehicle” under VTL § 125 because they constitute a “vehicle operated or driven upon a public highway which is propelled by any power other than muscular power,” and they do not fall within any of the exclusions provided in the statute. Thus, the police vehicle at issue here falls within the definition of a “motor vehicle” under the uninsured/underinsured motorist endorsement.  Matter of State Farm Mut Auto Ins Co v Fitzgerald, 2013 NY Slip Op 07186, 2nd Dept 11-6-13

 

Burden of Proof for Relocation with Child Not Met

In reversing Family Court, the Second Department determined there was not a sound and substantial basis for granting the mother’s request to return to South Africa with the couple’s child.  The court explained the analytical criteria for relocation:

A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child’s best interests … . In determining whether relocation is appropriate, the court must consider a number of factors, which include “each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements”… . In assessing these factors, “no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome” … . However, “the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern” … . “In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests” … .

… [T]he record is devoid of evidence that he has ever harmed the child or directed his anger toward her, and many of the incidents described by the mother involved the father’s suicidal ideation and infliction of harm upon himself. Significantly, the court-appointed psychologist found that the father was currently emotionally and mentally stable, and at low risk of neglectful or abusive behavior toward the child. Moreover, the record shows that the mother sought permission to relocate primarily because she feels lonely and isolated in the United States, and not to escape domestic violence … . The record also establishes that the father consistently exercises his right to visit the child twice a week, and that he desires to spend more time with her …. Further, there is no economic necessity for the proposed relocation because the mother has been steadily employed as a payroll analyst for more than six years.  Matter of Francis-Miller v Miller, 2013 NY Slip Op 07177, 2nd Dept 11-6-13

 

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Child Qualified as “Special Immigrant;” Abandoned by One Parent

In reversing Family Court, the Second Department determined the subject child, Brenda, qualified as a “special immigrant” who could apply for lawful permanent residency in the US because she had been abandoned by one (not both) of her parents:

Pursuant to 8 USC § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 US Stat 5044) and 8 CFR 204.11, a “special immigrant” is a resident alien who, inter alia, is under 21 years of age, is unmarried, and has been legally committed to, or placed under the custody of, an individual appointed by a State or juvenile court. Additionally, for a juvenile to qualify for special immigrant juvenile status, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law (see 8 USC § 1101[a][27][J][i]…), and that it would not be in the juvenile’s best interests to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101[a][27][J][ii]; 8 CFR 204.11[c][6]…).

Brenda is under the age of 21 and unmarried. Inasmuch as the Family Court placed Brenda under her mother’s custody, Brenda has been “legally committed to, or placed under the custody of . . . an individual or entity appointed by a State or juvenile court” within the meaning of 8 USC § 1101(a)(27)(J)(i)…). Based upon our independent factual review, we find that the record, which includes a detailed affidavit from Brenda, fully supports Brenda’s contention that, because her father neglected and abandoned her, reunification with her father is not a viable option … . Contrary to the Family Court’s determination, the fact that Brenda’s mother did not also neglect and abandon her does not preclude the issuance of the order requested … . Lastly, the record reflects that it would not be in Brenda’s best interests to be returned to El Salvador… .  Matter of Maria PEA v Sergio AGG, 2013 NY Slip Op 07168, 2nd Dept 11-6-13

For a similar case with the same result, see Matter of Karen C, 2013 NY Slip Op 07170, 2nd Dept 11-6-13

Plaintiff’s Failure to Replace Manhole Cover Was Sole Proximate Cause of Injury

Over a dissent, the Second Department determined plaintiff’s failure to replace a manhole cover was the sole proximate cause of his injury:

As to Labor Law § 240(1), which imposes a non-delegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks, liability would attach where a violation of that duty proximately caused injuries … . Conversely, where a plaintiff’s own actions are the sole proximate cause of the accident or injury, no liability attaches under the statute … . Where a plaintiff has an adequate safety device readily available that would have prevented the accident, and for no good reason chooses not to use it, Labor Law § 240(1) does not apply … .

Here, plaintiff was provided with the perfect safety device, namely, the manhole cover, which was nearby and readily available. He disregarded his supervisor’s explicit instruction given that day to replace the cover before dismantling the enclosure. Plaintiff has not afforded any good reason why he started taking apart the enclosure before ascertaining whether the cover was in place. Having just emerged from it, plaintiff should have known that the manhole was still open, and covering it at that time would have avoided the accident. Barreto v Metropolitan Transp Auth, 2013 NY Slip Op 07118, 1st Dept 10-31-13

 

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Seizure of Property for Construction of Firehouse Okay

The Second Department affirmed the eminent-domain seizure of petitioner’s property (under EDPL article 2) for construction of a firehouse:

“The principal purpose of EDPL article 2 is to insure that an agency does not acquire property without having made a reasoned determination that the condemnation will serve a valid public purpose” … . Judicial review of a condemnation determination is limited to whether the proceeding was constitutional, whether the proposed acquisition is within the condemnor’s statutory jurisdiction or authority, whether the determination and findings were made in accordance with the procedures set forth in EDPL article 2 and the State Environmental Quality Review Act, and whether a public use, benefit, or purpose will be served by the proposed acquisition (see EDPL 207[C]…). Here, the petitioner has failed to demonstrate any basis for setting aside the Common Council’s determination.

Contrary to the petitioner’s contention, the record shows that the determination to condemn a portion of its property is rationally related to the stated public purpose and that such public purpose is dominant … . ” [T]he fact that an intended public use confers incidental benefit to private persons or entities will not invalidate the condemnation'” … . Matter of Peekskill Hgts Inc v City of Peekskill Common Council, 2013 NY Slip Op 07046, 2nd Dept 10-30-13

 

Failure to Serve Superintendent of Schools in Accordance with RPTL Required Dismissal of Property Tax Certiorari Proceeding

The Second Department determined Supreme Court properly vacated an order which directed the school district to repay back taxes for 2006 through 2010 on the ground that the superintendent of schools was not properly served in the tax certiorari proceeding:

It is undisputed that the petitioner failed to comply with the requirements of RPTL 708(3) which provide, in pertinent part, that in a tax certiorari proceeding, within 10 days after service upon the Assessor, “one copy of the petition and notice shall be mailed . . . to the superintendent of schools of any school district within which any of part of the real property on which the assessment to be reviewed is located.” RPTL 708(3) further provides that “[f]ailure to comply with the provisions of this section shall result in the dismissal of the petition, unless excused for good cause shown.” RPTL 708(3) requires a petitioner to show good cause to excuse its failure to notify the appropriate school district, and not merely to demonstrate the absence of prejudice to that school district … . Contrary to the petitioner’s contention, it failed to establish good cause for its failure to serve the petitions on the School District … . Accordingly, the Supreme Court providently exercised its discretion in denying the petitioner’s cross motion [for leave to make late service] (see CPLR 2004, 2005; RPTL 708[3]…). Matter of Cornwall Yacht Club, Inc. v Assessor, 2013 NY Slip Op 07039 [110 AD3d 1070], 2nd Dept 10-30-13

 

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No Justification for Vacation of Arbitration Award—Strict Standard Applies

The Second Department determined Supreme Court erred in vacating an arbitration award in a case involving an uninsured motorist endorsement. Petitioner had won a $25,000 (default) civil judgment against the driver, but in the arbitration under the uninsured motorist endorsement, the arbitrator awarded $10,000:

The Supreme Court erred in vacating the arbitration award. “[J]udicial review of arbitration awards is extremely limited” … . ” An arbitration award must be upheld when the arbitrator “offer[s] even a barely colorable justification for the outcome reached”‘” … . In addition, an “arbitrator’s award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice” … . “An arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be” … . Insofar as is relevant to the instant proceeding, pursuant to CPLR 7511(b)(1)(iii), a court may only vacate an arbitration award if the rights of the party moving to vacate the award were prejudiced by the arbitrator “exceed[ing] his [or her] power or so imperfectly execut[ing] it that a final and definite award upon the subject matter submitted was not made.” “Such an excess of power occurs only where the arbitrator’s award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … .

Here, the terms of the SUM endorsement clearly provide that any sum [the insurer] was obligated to pay the petitioner, which the petitioner was legally entitled to recover, was subject to arbitration, and that the parties agreed to be bound by the arbitrator’s award.  Matter of Aftor v Geico Ins Co, 2013 NY Slip Op 07032, 2nd Dept 10-30-13

 

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No Fiduciary Duty Re: Purchase of One Shareholder’s Stock by Another in a Close Corporation

In affirming Supreme Court’s dismissal of a cause of action for breach of fiduciary duty based on one shareholder’s purchase of another shareholder’s stock in a close corporation, the Second Department noted that the status of an officer, director or shareholder of a close corporation does not, without more, create a fiduciary relationship:

“The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct” … . “A fiduciary relationship exists between two persons when one of them is under a duty to act for . . . the benefit of another upon matters within the scope of the relation” …

Contrary to the plaintiff’s contention, [the purchaser’s] status as an officer, director, or shareholder of a close corporation “does not, by itself, create a fiduciary relationship as to his individual purchase of [another shareholder’s] stock” … .  Varveris v Zacharakos, 2013 NY Slip Op 07028, 2nd Dept 10-30-13

 

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