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Safety Regulation Asserted to Be the Basis of the Labor Law 241 (6) Cause of Action Did Not Apply to the Defect Which Caused the Injury

The Third Department determined plaintiff’s injury from his use of a utility knife did not entitle him to recovery pursuant to Labor Law 241 (6).  The safety regulation alleged to have been violated prohibited a contractor from supplying tools with split or loose handles.  The problem with the utility knife was a loose locking mechanism.  The court refused to stretch the meaning of “loose or split handles” to include a loose locking mechanism:

Plaintiffs allege in their bill of particulars that defendant violated 12 NYCRR 23-1.10 (a), which states, in pertinent part, that unpowered hand tools with “[s]plit or loose tool handles shall not be used.” Notably, this regulatory provision does not merely impose a general duty to keep unpowered hand tools in a “safe,” “proper” or “adequate” condition …, nor does it proscribe the usage of hand tools with “unsafe” or “defective” handles, but, rather, specifically prohibits the use of hand tools with “[s]plit or loose . . . handles.”

Having determined that plaintiffs have asserted a violation of a regulatory provision that “‘sets forth a specific standard of conduct'” for general contractors and owners …, thereby providing a predicate basis for a claim under Labor Law § 241 (6), we are left to decide whether the regulation applies to the facts presented in this case [FN2]. Plaintiff explained during his examination before trial that, while he was cutting a piece of plastic with a utility knife, the locking mechanism that secures the retractable blade was loose, causing the blade to break in half and cut plaintiff’s wrist. Whether the dysfunctional locking mechanism can fairly be considered to be a “[s]plit or loose tool handle[]” is a question of law to be decided by the courts … . A fair reading of the regulation upon which plaintiffs rely, however, does not compel us to conclude that the looseness of the locking mechanism — an internal component of the knife and not a visible or functional part of the handle itself — was what the Commissioner of Labor had contemplated in his promulgation of 12 NYCRR 23-1.10 (a) … . We are well aware that the Industrial Code “should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” … . However, while the regulation sets forth a strict prohibition against using tools that have loose or split handles, it makes no mention whatsoever of the locking mechanism found within a hand tool, and we are thus constrained to determine that it is inapplicable. Boots v Bette & Cring LLC, 2015 NY Slip Op 00588, 3rd Dept 1-22-15

 

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Question of Fact Whether Out-of-Possession Landlord Created the Dangerous Condition Which Caused Gas Escaping from a Propane Tank to Ignite/Question of Fact Whether the Injured Employee’s Negligent Act (the Employee, Against the Direction of His Supervisor, Brought a Partially-Filled Propane Tank Inside the Building) Was Foreseeable

The Third Department determined a question of fact had been raised about the out-of-possession landlord’s liability for an accident which ignited gas from a propane tank.  The landlord had converted the building where the accident occurred for the operation of a propane tank refinishing business.  The business was continued by the tenant.  An expert concluded that there were several ignition sources within the building, installed by the landlord, which could have ignited the gas.  Therefore, there was a question of fact whether the out-of-possession landlord had created the dangerous condition.  In response to the argument that the negligence of injured employee (who brought a propane tank which still had gas in it into the building) was the sole proximate cause of the accident, the Third Department determined there was a question of fact about whether bringing such a partially filled tank inside the building (something employees were directed not to do) was foreseeable:

… [I]t is well established that, generally, “once possession has been transferred to a tenant, an out-of-possession landlord will not be held responsible for dangerous conditions existing upon leased premises” … . Exceptions to the general rule do exist, including situations where the landlord retains control over the leased premises, has agreed to repair or maintain the premises or “has affirmatively created the dangerous condition” … .

… [Landlord and tenant-employer] assert that the reckless conduct of [tenant’s] employees was the sole proximate cause of the explosion and that defendant cannot be held liable to plaintiffs merely because it allegedly furnished the condition that allowed for the accident. In order to sever the causal connection in this matter, it must be demonstrated that the employees’ actions were “extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from … defendant’s conduct” … . Certainly, the act of the [tenant’s] new employee of bringing a tank that was not marked as empty into the building –against the direct instructions of his supervisor–was negligent. Nonetheless, defendant and third-party defendant have failed to show that such conduct was unforeseeable, thereby “sever[ing] any causal link between [defendant’s] negligence and [decedent’s] injuries” … . Miller v Genoa AG Ctr Inc, 2015 NY Slip Op 00586, 3rd Dept 1-22-15

 

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Pulling Into Traffic Without Activating Lights and Siren Did Not Constitute Reckless Disregard for the Safety of Others

The Third Department determined the vehicle accident was not the result of “reckless disregard for the safety of others” (vehicle and Traffic Law 1104) on the part of a police officer responding to an emergency.  Apparently the officer (Derkowski) had just began a pursuit and was pulling into traffic without his lights or siren activated when the collision occurred:

Derkowski intended to pursue a fleeing suspect in his patrol car, a pursuit that gained additional urgency when he spotted the suspect driving north on Lafayette Street (cf. Muniz v City of Schenectady, 38 AD3d at 991). Prior to turning onto the street in order to follow the suspect, Derkowski looked in both directions to ensure that no traffic was coming. His view of the southbound lane was obscured, however, by several illegally parked vehicles. Derkowski then turned left onto the street and collided with plaintiff. Derkowski did not activate his emergency lights or siren prior to turning, and plaintiff testified that it did not appear that Derkowski had his headlights on. Inasmuch as the pursuit had just commenced and Derkowski checked for oncoming traffic before turning, his failure to have lights and sirens on constituted nothing more than “a momentary lapse in judgment not rising to the level of ‘reckless disregard for the safety of others'” … . Rouse-Harris v City of Schenectady Police Dept, 2015 NY Slip Op 00591, 3rd Dept 1-22-15

 

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Annexation of Petitioners’ Land (Located in the Town) by the City Deemed in the Overall Public Interest

The Third Department determined the city’s annexation of petitioners’ land, located in the adjoining town, was in the overall public interest:

A municipality seeking annexation pursuant to General Municipal Law article 17 “has the burden of proving that annexation is in the overall public interest” (…see NY Const, art IX, § 1 [d]; General Municipal Law § 712 [10]). Factors to be considered include “the benefit or detriment to the annexing municipality, the territory proposed to be annexed, and the remaining governmental unit from which the territory would be taken” … . “‘Benefit and detriment are customarily defined in terms of municipal services such as police and fire protection, health regulations, sewer and water service, public utilities and public education'” … . “Another factor entering into the balance is whether the annexing municipality and the territory proposed to be annexed have the requisite unity of purpose and facilities to constitute a community” … .

Here, petitioners established that the lack of municipal water and sewer services in the Town are a major impediment to the development of the property. Mauro testified that he has marketed the property for three years, but potential developers are not interested in it because it lacks access to these services. The services would, however, be available if the property were to be annexed to the City. * * *

The City also established that it provides professional fire and police protection that is better trained and more readily available than the emergency protection services available in the Town. The City bears the expense of full-time, fully-equipped police and fire departments covering a smaller geographic area, while the Town relies on the County Sheriff and volunteer fire departments. As a result, the City’s fire insurance rating is considerably better than that of the Town. Further, any development that occurs in the City will generate more tax revenue to defray the burden on the City’s taxpayers of the expense of maintaining professional police and fire departments, based on the City’s higher tax rate of $21.41 per thousand. For its part, the Town will lose only the minimal annual tax revenue of $51.06, based upon its 2013 tax rate of $1.36 per thousand. Although the Town argues against annexation based on the potential loss of taxes should the parcel be developed, “ordinarily expected adverse tax consequence[s] . . . [are] generally insufficient to defeat an annexation which is otherwise in the over-all public interest”… . Matter of City of Gloversville v Town of Johnston, 2015 NY Slip Op 00575, 3rd Dept 1-22-15

 

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Courts Should Not Defer to Zoning Board of Appeals’ Determination of a Purely Legal Question (the Meaning of a Town Code Provision)

The Third Department determined Supreme Court erred when it deferred to the zoning board of appeals’ (ZBA’s) interpretation of the town code (because the interpretation was a purely legal issue) and the ZBA erred in its interpretation of the code. The Third Department found that the word “dwelling” was encompassed by the word “building” and, therefore, the code provision at issue allowed the construction of 74 single family dwellings on petitioner’s (Boni’s) parcel:

Supreme Court erred in deferring to the ZBA’s interpretation of the zoning ordinance, and the ZBA erred in its interpretation of the Town Code as it pertains to the Boni parcel. Although courts generally grant deference to a zoning board of appeals regarding its determination, no deference is required if the issue is one of pure legal interpretation of the zoning law … . Because zoning ordinances are in derogation of common law, they must be strictly construed against the municipality that drafted them, and any ambiguity must be resolved in favor of property owners … . The Boni parcel is located in a B-1 zoning district, which has 18 listed permitted uses, including one- and two-family dwellings (see Town Code of the Town of Clifton Park § 208-32 [A] [14]). Pursuant to § 208-33 (B) of the Town Code, in a B-1 district, “[n]o preexisting building(s) shall be rehabilitated or remodeled or new building(s) constructed on a vacant lot to a size greater than 12% of the lot size, with no single building to have a maximum square footage exceeding 4,800 square feet. Multiple buildings on a lot are allowed as long as the overall density limitations of this article are not exceeded.”

Essentially, petitioners argue that the word “buildings” in the last sentence of § 208-33 (B) of the Town Code includes one-family dwellings, leading to the conclusion that the Town Code permits them to build multiple dwellings on the Boni parcel as long as they comply with the density limitations. * * *

We agree with respondents that respondent Town of Clifton Park probably never envisioned a landowner being able to build 74 one-family dwellings on a single, unsubdivided parcel in a business district. Nevertheless, the plain language of the Town Code, strictly construed against the municipality, must be interpreted as permitting multiple buildings — including one-family dwellings — on a single lot as long as they do not exceed the density limitations … . Matter of Boni Enters LLC v Zoning Bd of Appeals of the Town of Clifton Park, 2015 NY Slip Op 00428, 3rd Dept 1-15-15

 

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Criteria for Interpreting Ambiguous Property Descriptions in Old Deeds Explained and Applied

The Third Department explained the analytical criteria for determining the location of boundary lines using old deeds which exhibit some ambiguity (thus allowing reference to extrinsic evidence).  The court explained that a hand-written, signed deed was preferred over a subsequent, unsigned type-written description of the property, and that the amount of acreage is the least reliable type of property description:

We agree with Supreme Court that as between the handwritten and typed versions of the April 1885 deed, the handwritten deed is the best evidence of the grantors’ intent, as it is the signed original instrument by which the disputed property was conveyed, while the typed version is an unsigned copy created decades later by an unknown transcriber (see Jerome Prince, Richardson on Evidence §§ 10-101, 10-102 [Farrell 11th ed 1995]). We further agree with the court that the disputed mark following the phrase “more or less” in the handwritten deed appears to be a comma; although it is oddly located on the line below the phrase “more or less” and outside the document’s left margin, it has the same shape as other commas in the deed, including a mark just before the phrase “more or less,” which the parties agree is a comma and which is represented by a comma in the typed version. Nevertheless, the questionable nature of the disputed mark creates an ambiguity that may be clarified by considering extrinsic evidence of the grantors’ intent … . * * *

Where … discrepancies exist in property descriptions, “the rules of construction require that resort be had first to natural objects, second to artificial objects, third to adjacent boundaries, fourth to courses and distances and last to quantity” … . According to these rules, a public highway or other artificial monument takes precedence over the amount of acreage specified in a deed, as “quantity is the least reliable of all descriptive particulars” … . Shattuck v Laing, 2015 NY Slip Op 00413, 3rd Dept 1-15-15

 

Claimant’s PTSD Linked to 6-Day Stint at the Site of the Collapse of the World Trade Center

The Third Department affirmed the Worker’s Compensation Board’s findings that claimant’s post-traumatic stress disorder (PTSD), for which claimant first sought treatment in 2010, was related to his 6-day stint at the site of the collapse of the World Trade Center in 2001.  The court explained the broad applicability of the relevant statutes (Workers’ Compensation Law article 8-A) and the criteria for a full Board review (newly discovered evidence or a material change in condition):

At the World Trade Center site, claimant engaged in “perimeter containment” and “transports.” He testified that he “help[ed] control who came and left the . . . site,” escorted people to the site and brought them materials, equipment and personnel. Based on this evidence, the Board reasoned that claimant’s activity constituted participation in World Trade Center rescue, recovery or cleanup operations pursuant to Workers’ Compensation Law article 8-A. Generally, the Board requires that the “claimant directly participate in or otherwise have some tangible connection to the rescue, recovery or cleanup operations”…; its reasoning here is consistent with prior Board decisions addressing this issue … . Claimant’s uncontroverted testimony indicated that he supplied direct support and assistance to first responders engaged in rescue and recovery efforts at ground zero; thus, the Board’s determination that Workers’ Compensation Law article 8-A applies is supported by substantial evidence and will not be disturbed … . Matter of Regan v City of Hornell Police Dept, 2015 NY Slip Op 00407, 3rd Dept 1-15-15

 

“Total Industrial Disability” Finding Affirmed—Partially Disabled Claimant Was Deemed Unable to Find Work Based Upon His Age, Education and Work History

The Third Department determined claimant, who had a marked permanent partial disability, was properly found to “totally industrially disabled” because his disability, coupled with his age, limited education and other factors, made it impossible for claimant to find work:

“A claimant who has a permanent partial disability may nonetheless be classified as totally industrially disabled where the limitations imposed by the work-related disability, coupled with other factors, such as limited educational background and work history, render the claimant incapable of gainful employment” … . Whether a claimant suffers from a total industrial disability is “a question of fact for the Board to resolve and its determination will not be disturbed if supported by substantial evidence” … . Matter of Rose v Roundpoint Constr, 2015 NY Slip Op 00421, 3rd Dept 1-15-15

 

Wrong Valuation Date Did Not Require Striking of Appraisal Report/Presumption of the Validity of the Town’s Assessment Rebutted by Appraisal Report

The Third Department determined Supreme Court properly considered petitioner’s appraisal, despite the wrong valuation date, and properly reduced the tax assessment. The Third Department explained the criteria for striking an appraisal (not met here) and the proof required to rebut the presumption of the validity of the town’s assessment (proof-requirement met here):

…[P]etitioner’s appraiser erred in initially using a valuation date of March 1, 2011 rather than July 1, 2010 in his report. Nevertheless, Supreme Court was not required to strike the report.

An appraisal report may be stricken for use of an incorrect valuation date if the use of the correct date would have resulted in a different estimated valuation … . In that regard, this Court has held that an appraisal report need not be stricken if the appraiser credibly testifies that the “report would not have differed” if the correct valuation date had been used … . We explained that a six-month difference was a “minor deviation in valuation dates” that caused “no prejudice to [the] respondents . . . so as to warrant striking [the] report” … . Here, petitioner’s appraiser testified that the change in the valuation date did not result in a different final value. Petitioner’s appraisal “report was supported by ascertainable and verifiable data” and, thus, “any questions regarding the propriety of [the] assessment would affect only the weight accorded to the appraisal by the court and did not undermine the validity of the entire appraisal” … .

Similarly lacking in merit is respondents’ argument that petitioner did not overcome the presumptive validity of the tax assessment. Inasmuch as “a rebuttable presumption of validity attaches to the valuation of property made by the taxing authority” …, a petitioner “[i]n an RPTL article 7 tax certiorari proceeding . . . challenging the accuracy of an assessment bears the initial burden of coming forward with substantial evidence that the property was overvalued by the assessor” … . “Substantial evidence is a minimal threshold standard that simply ‘requires that [a] petitioner demonstrate the existence of a valid and credible dispute regarding valuation . . .'” … . A taxpayer most often meets this burden through submission of “a detailed, competent appraisal based on standard, accepted appraisal techniques and prepared by a qualified appraiser” … . Matter of Gran Dev LLC v Town of Davenport Bd of Assessors, 2015 NY Slip Op 00424, 3rd Dept 1-15-15

 

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Grassy Area Where Plaintiff Fell Was Not Part of a Highway or a Sidewalk–Prior Written Notice of the Defect (to the Town) Not Required

The Third Department determined the town’s requirement that it be provided with written notice of a defect before the town can be held liable for a related slip and fall did not apply to the grassy area where plaintiff fell:

Where, as here, a municipality has enacted a prior written notice provision (see Code of the Town of Clifton Park § 176-1 [A]), “a plaintiff may not bring a civil action against [the] municipality for damages as the result of an injury sustained by reason of a defective street, highway, bridge, culvert, sidewalk or crosswalk unless prior written notice of the allegedly defective condition has been given” … . Hence, in order to prevail upon its motion for summary judgment dismissing the complaint, the Town was required to establish as a matter of law that the grassy area in question constituted — insofar as is relevant here — either a highway, a sidewalk or a site that serves the same “functional purpose” as a highway or sidewalk… .

To be sure, a highway “encompasses the associated shoulders, guardrails, embankments, retaining walls and culverts” (…see Highway Law § 2 [4]…). As relevant here, whether the land adjacent to a highway is paved or otherwise improved does not determine its status as a shoulder; rather, the inquiry is whether the area in question creates “a general right of passage for the traveling public” … . Here, the Town failed to establish that the grassy area where plaintiff fell was designed or intended to provide a general right of passage; further, it is readily apparent from the photographs contained in the record on appeal that the grassy area where plaintiff’s accident occurred is too far removed from the edge of Old Route 146 to be considered an adjacent shoulder or to otherwise fall within the definition of a highway … .

We reach a similar conclusion with respect to whether the grassy area may be deemed to fall within the definition of a sidewalk. In this regard, “a grass strip between the sidewalk and the pavement of the road [indeed] is part of the sidewalk” … . Here, however, the grassy area depicted in the relevant photographs does not lie between a sidewalk and a roadway and, contrary to the Town’s contention, the mere fact that plaintiff and her son were traversing the grassy area to access the nearby parking lot (owned by Northway 9 Associates) does not render this area the functional equivalent of a sidewalk … . Cieszynski v Town of Clifton Park, 2015 NY Slip Op 00423, 3rd Dept 1-15-15

 

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