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Criteria for Negligent Highway Design Explained—Qualified Immunity Is Part of the Analysis of Liability

The Third Department explained the analytical criteria associated with allegations of negligent highway design, including qualified immunity. Here it was alleged that a rock outcropping obscured on-coming traffic and the measures taken by the state to reduce the hazard were inadequate.  The case was dismissed because the plaintiff was unable to demonstrate the highway-design problems constituted the proximate cause of the collision:

“[I]n the field of traffic design engineering, [defendant] is accorded a qualified immunity from liability arising out of a highway planning decision. . . . Under this doctrine of qualified immunity, a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan. Once [defendant] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger” … . If defendant’s response to an identified hazard is unreasonably delayed, defendant must demonstrate either that the delay “was necessary in order to study and formulate a reasonable safety plan, that the delay was itself part of a considered plan of action taken on the advice of experts, or that the delay stemmed from a legitimate ordering of priorities with other projects based on the availability of funding” … .

Although the parties continue to debate whether, consistent with the foregoing principles, defendant’s response to the acknowledged hazard was adequate and, further, whether the documented delay in cutting back the offending outcropping was unreasonable, these issues need not detain us. Assuming, without deciding, that defendant’s efforts in this regard indeed were inadequate and/or unreasonably delayed, thereby establishing that defendant was negligent, claimant failed to demonstrate that such negligence was the proximate cause of decedent’s accident. Graff v State of New York, 2015 NY Slip Op 01847, 3rd Dept 3-5-15

 

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Questions of Fact Existed Re: Whether Plaintiffs Were Entitled to Rely on Defendant’s Assurances Dog Was Not Aggressive

Plaintiff was seriously injured by a dog procured from defendant after defendant had assured plaintiffs the dog (Brutus) was not aggressive. The Third Department determined plaintiffs were entitled to rely on defendant’s assurances, in spite of three minor biting incidents when the dog was in plaintiffs’ possession:

Defendants argue that because Brutus bit plaintiffs three times prior to the attack that is the subject of the complaint, plaintiffs could not have reasonably relied on defendants’ representations as to the dog’s behavior and cannot state a claim for fraudulent or negligent misrepresentation. Defendants also argue that those causes of action must fail because plaintiffs could have learned of Brutus’ aggressive nature with due diligence. We are not persuaded. In order to establish their claims for negligent and fraudulent misrepresentation, plaintiffs must demonstrate that they justifiably relied on defendants’ misrepresentations … . Here, plaintiffs allege that they would not have adopted Brutus if they had been told the truth regarding his prior owner’s reason for turning him over to the Center. Plaintiffs also allege that, after the three biting incidents, they sought the assistance of trainers to deal with what they perceived as a minor issue. Plaintiffs, who have experience owning and training animals, note that the three prior bites did not break the skin and were far different from the aggressive nature of the later attack. Plaintiffs only learned about Brutus’ prior history when they were able to track down the prior owner by posting flyers and they submitted affidavits from the prior owner and her friend regarding their experiences with Brutus and their intent to have him euthanized when they took him to the Center. Under these circumstances, issues of fact exist as to whether plaintiffs reasonably relied on defendants’ misrepresentation and whether plaintiffs could have discovered Brutus’ dangerous nature with due diligence … . Lawrence v North Country Animal Control Ctr., Inc., 2015 NY Slip Op 01846, 3rd Dept 3-5-15

 

Agreement Created Only a Temporary License to Use Land, Not an Easement

The Third Department, over a partial dissent, determined plaintiff was granted only a license to use land for agricultural purposes pending repayment of a loan, not an easement.  The two legal concepts were explained:

We recognize that “‘it is often difficult to distinguish between an easement, which is an interest in real property, and a mere license, which implies no such interest, . . . is personal to the holder, is not assignable and is of limited duration'” … . “‘To create an easement by express grant there must be a writing containing plain and direct language evincing the grantor’s intent to create a right in the nature of an easement rather than a revocable license'” … . Aside from the word “grant,” the agreement does not use language typically utilized to convey an interest in land, such as “convey” and “forever” … . Moreover, the agreement expressly speaks to a loan and includes a clause purporting to authorize plaintiff to foreclose upon the property for nonpayment. Where, as here, there is no express time limitation for the right to use the property, that right should be deemed a license, and not an easement …, particularly given that plaintiff drafted the agreement (see 22 NY Jur 2d, Contracts § 257). Both the language of the agreement and the loan context lead us to conclude, as did Supreme Court, that Buchanan merely conferred a license upon plaintiff to use the property pending repayment. Kampfer v DaCorsi, 2015 NY Slip Op 01843, 3rd Dept 3-5-15

 

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Court Should Not Have Summarily Determined Declaratory Judgment Action In Absence of a Request to Do So/The Mootness Doctrine Precluded Court Rulings on an Expired Contract/The Open Meetings Law Was Violated by the Town

The Third Department determined Supreme Court should not have summarily considered the declaratory judgment aspect of this hybrid action without a request to do so and without converting the proceeding to a summary judgment action.  The Third Department further determined the mootness doctrine precluded the Supreme Court from ruling on the provisions of an expired contract, and the town had violated the Open Meetings Law by holding closed sessions.  The action concerned the use of property for motorcycle events. Local property owners brought the action alleging that the events violated the allowed use of the land:

It is well settled that a court’s jurisdiction extends only to live controversies” …, and a matter becomes moot “unless the rights of the parties will be directly affected by the determination of the [claim] and the interest of the parties is an immediate consequence of the judgment” … . Where, as here, the passage of time or “a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy,” the claim must be dismissed … . The 2013 agreement, by its own terms, pertained solely to Safety Track’s land uses and events that occurred during the 2013 track season and expired at the end of that year, thereby rendering the challenges to the 2013 agreement moot … . Further, we do not agree with Supreme Court’s finding that the exception to the mootness doctrine was satisfied… . …

In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those which seek declaratory relief, on the other hand” … . In the absence of a formalized motion requesting the “summary determination of the causes of action which seek . . . declaratory relief, it is error for [a court] to summarily dispose of those causes of action” … .

It is undisputed that there was no pending motion for summary disposition of the declaratory judgment action when Supreme Court rendered its 2014 judgment. Nor did the court provide notice to the parties that it was considering the summary disposition of the declaratory judgment action, such that the parties would be afforded an opportunity to further develop the evidentiary record and offer competent proof supportive of their respective positions … .

… Generally, “[e]very meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [Public Officers Law § 105]” (Public Officers Law § 103 [a]). While a governing body may enter into an executive session, it may do so only for certain purposes, including, as is relevant here, the consideration of an appointment or to engage in private discussions relating to proposed or pending litigation (see Public Officers Law § 105 [1] [f]…). However, the body must “identify the subject matter to be discussed . . . with some degree of particularity”… . * * * As the Town failed to demonstrate that it comported with the relevant statutory provisions when conducting the instant executive sessions, such sessions were violative of the Public Officers Law … . Matter of Ballard v New York Safety Track LLC. 2015 NY Slip Op 01845, 3rd Dept 3-5-15

 

“Attempted Felony Assault” Charge Jurisdictionally Defective

The Third Department determined the “attempted felony assault” charge in the indictment was jurisdictionally defective because there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended:

We do find that the conviction for attempted assault in the first degree cannot stand. Defendant was charged under the theory that, during the course of the kidnapping, he attempted to cause serious physical injury when he choked the victim a second time after she made an abortive effort to get help (see Penal Law § 120.10 [4]). An attempt to commit a crime requires that a person, “with intent to commit a crime, . . . engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00). In contrast, felony assault punishes a felon for the actual consequences of his or her actions, and “there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended” … . Accordingly, notwithstanding the fact that defendant did not advance this specific issue in his appellate brief, the count of the indictment charging him with attempted felony assault is jurisdictionally defective and must be dismissed … . People v Mccann, 2015 NY Slip Op 01830, 3rd Dept 3-5-15

 

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ALTHOUGH THE STATUTE STATES THAT EMPIRE ZONE REAL PROPERTY TAX CREDITS ARE AVAILABLE WHEN THE TAX PAYER MAKES DIRECT PAYMENTS TO THE TAXING AUTHORITY, PETITIONERS WERE ENTITLED TO THE TAX CREDITS EVEN THOUGH THE PAYMENTS WERE MADE FROM A MORTGAGE TAX ESCROW ACCOUNT (THIRD DEPT).

The Third Department, reversing the Tax Appeals Tribunal, determined petitioners’ were entitled to Empire Zone real property tax credits even though the tax payment were mortgage by Wells Fargo from a mortgage tax escrow account. The Tax Law requires “direct payment” to the taxing authority:

… [A]lthough Tax Law § 15 (e) (3) contemplates a “direct payment” of real property taxes from the lessee to the taxing authority, we find that, under the particular circumstances presented here, [the lessee’s] use of a mortgage tax escrow account for the payment of real property taxes did not preclude petitioners from claiming the subject [Empire Zone] real property tax credits. Matter of Balbo v New York State Tax Appeals Trib., 2018 NY Slip Op 05540, Third Dept 7-26-18​

TAX LAW (EMPIRE ZONE, ALTHOUGH THE STATUTE STATES THAT EMPIRE ZONE REAL PROPERTY TAX CREDITS ARE AVAILABLE WHEN THE TAX PAYER MAKES DIRECT PAYMENTS TO THE TAXING AUTHORITY, PETITIONERS WERE ENTITLED TO THE TAX CREDITS EVEN THOUGH THE PAYMENTS WERE MADE FROM A MORTGAGE TAX ESCROW ACCOUNT (THIRD DEPT))/MUNICIPAL LAW (EMPIRE ZONE, ALTHOUGH THE STATUTE STATES THAT EMPIRE ZONE REAL PROPERTY TAX CREDITS ARE AVAILABLE WHEN THE TAX PAYER MAKES DIRECT PAYMENTS TO THE TAXING AUTHORITY, PETITIONERS WERE ENTITLED TO THE TAX CREDITS EVEN THOUGH THE PAYMENTS WERE MADE FROM A MORTGAGE TAX ESCROW ACCOUNT (THIRD DEPT))/REAL PROPERTY TAX LAW  (EMPIRE ZONE, ALTHOUGH THE STATUTE STATES THAT EMPIRE ZONE REAL PROPERTY TAX CREDITS ARE AVAILABLE WHEN THE TAX PAYER MAKES DIRECT PAYMENTS TO THE TAXING AUTHORITY, PETITIONERS WERE ENTITLED TO THE TAX CREDITS EVEN THOUGH THE PAYMENTS WERE MADE FROM A MORTGAGE TAX ESCROW ACCOUNT (THIRD DEPT))/EMPIRE ZONE (EMPIRE ZONE, ALTHOUGH THE STATUTE STATES THAT EMPIRE ZONE REAL PROPERTY TAX CREDITS ARE AVAILABLE WHEN THE TAX PAYER MAKES DIRECT PAYMENTS TO THE TAXING AUTHORITY, PETITIONERS WERE ENTITLED TO THE TAX CREDITS EVEN THOUGH THE PAYMENTS WERE MADE FROM A MORTGAGE TAX ESCROW ACCOUNT (THIRD DEPT))

Damage to Building Caused by Silica Dust Excluded from Coverage Under “Pollutants” and “Faulty Workmanship” Policy Exclusions

The Third Department determined the insurer was entitled to summary judgment based upon the exclusions of coverage in the policy. The insured sought coverage of damage caused by silica dust disbursed throughout the insured’s building.  The Third Department held that the “pollutants” and “faulty workmanship” exclusions in the policy precluded coverage, and the “ensuing loss exception” did not apply:

“[A]n insurer seeking to invoke a policy exclusion ‘must establish that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case'” … . To determine whether a policy provision is ambiguous, courts are guided by “the reasonable expectations of the average insured upon reading the policy” … . The meaning of any part of such a policy must be determined upon consideration of the policy as a whole … . In addition, “[a]n insurance contract should not be read so that some provisions are rendered meaningless” … . Upon applying these rules of construction, if “an insurance policy’s meaning is not clear or is subject to different reasonable interpretations,” such an ambiguity must be resolved in favor of the insured … . Because we find that both policy exclusions apply to bar coverage here, we grant defendants’ motion and dismiss the complaint.

Defendants were entitled to summary judgment based on the pollution exclusion clause. Pursuant to that exclusion in the policy, defendants will not cover loss resulting from the “[d]ischarge, dispersal, seepage, migration, release or escape of ‘pollutants.'” As defined in the policy, “‘[p]ollutants’ means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, waste and any unhealthy or hazardous building materials (including but not limited to asbestos and lead products or materials containing lead).” The record contains unrebutted evidence that silica dust can cause lung disease and respiratory problems, placing such dust within the policy definition of a pollutant as “unhealthy or hazardous building material[],” as well as a “solid . . . irritant or contaminant” … . Broome County v The Travelers Indem Co, 2015 NY Slip Op 01697, 3rd Dept 2-26-15

 

Interpreter Working for Office of Court Administration Was an Employee, Not an Independent Contractor

The Third Department determined claimant, a Spanish interpreter working for the Office of Court Administration (OCA), was an employee, not an independent contractor, but declined to extend the holding to others similarly situated:

Whether an employer-employee relationship exists “is a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence” … . “While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important” … . We find that substantial evidence supports the Board’s decision that OCA exercised sufficient supervision, direction and control over this claimant’s work activities to establish an employer-employee relationship, but decline to extend this holding to others “similarly situated.”

During the nearly 2½ years that claimant worked at the Bronx Family Court, she was required to work a set schedule from 9:30 a.m. to 4:30 p.m. … . When first assigned to that court, she was scheduled to report for a few weeks, but it was not long before claimant was scheduled monthly in advance … . Although claimant did not have to accept assignments, once she was on the schedule, she could not take time off, nor was she allowed to send someone in her place … ; if she knew she needed time off, she was expected to tell her supervisor in advance so she would not be put on the schedule … . Upon arriving at work each morning, claimant reported to the senior court interpreter, who told her where to report. OCA set claimant’s rate of pay … and, upon reporting to the court, she was paid — by direct deposit into her personal checking account — whether or not she actually provided interpreting services … . * * * Matter of Viau…, 2015 NY Slip Op 01691, 3rd Dept 2-26-16

 

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Rules of Evidence Properly Relaxed to Allow Hearsay In Proceeding to Modify Guardian’s Power to Control the Social Environment of the Incapacitated Person

In affirming the denial of a petition to modify the court-appointed guardian’s power to control the social environment of Mary WW, the incapacitated person (to compel the guardian to allow petitioner to visit Mary WW), the Third Department agreed with Supreme Court that hearsay was admissible in the proceeding:

…. [P]etitioner contends that, in denying her motion, Supreme Court improperly relied upon the hearsay statements of witnesses who had contact with Mary WW. We disagree. Although the rules of evidence are generally applicable to proceedings brought under Mental Hygiene Law article 81, Mental Hygiene Law § 81.12 (b) provides that the court may waive such rules “for good cause shown.” Here, we note that Mary WW. initially consented to the guardianship, it was recommended by the court evaluator and none of Mary WW.’s children, except for petitioner, objected. Moreover, it is undisputed that Mary WW. now suffers from severe dementia and was unable to attend the modification hearing, which occurred nearly four years after the guardianship was established. In view of this, it was necessary for other witnesses to testify concerning her interactions with petitioner. Significantly, petitioner was not prejudiced, as she was present at the hearing and denied the allegations. Under these circumstances, we find that Supreme Court had good cause for relaxing the rules of evidence and considering the hearsay statements of witnesses who had contact with Mary WW. Matter of Mary WW…, 2015 NY Slip Op 01704, 3rd Dept 2-26-15

 

Principles of Ademption Applied to Property Transferred Out of the Estate

The Third Department found the doctrine of ademption applicable to the lifetime transfer of property which divested the testator of ownership:

[The principles of ademption] are set forth in EPTL 3-4.3, which states that “[a] conveyance, settlement or other act of a testator by which an estate in his property, previously disposed of by will, is altered but not wholly divested does not revoke such disposition, but the estate in the property that remains in the testator passes to the beneficiaries pursuant to the disposition. However, any such conveyance, settlement or other act of the testator which is wholly inconsistent with such previous testamentary disposition revokes it.” Ademption will not lightly be found under EPTL 3-4.3, which is construed strictly given that its terms permit a testator to nullify dispositions without engaging in the elaborate formalities ordinarily required to revoke his or her will, either in whole or in part … . Matter of Braunstein, 2015 NY Slip Op 01703, 3rd Dept 2-26-15

 

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