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Review of Action Brought Under General Municipal Law Section 4 (Re: Unlawful Use of Tax, Water and Sewer Funds) Must Be by Article 78, Not Appeal

In an action brought pursuant to General Municipal Law section 4 for an order directing a summary investigation into the financial affairs of the respondents (village, fire department and water board), the Third Department determined the respondents could not appeal Supreme Court’s ordering of the investigation. The petitioners alleged the tax, water and sewer moneys collected may have been corruptly and/or unlawfully expended. The petitioners’ only avenue for court review is an Article 78 prohibition proceeding:

This appeal must be dismissed as there is no appeal as of right from Supreme Court’s order in this statutory special proceeding directing a summary investigation (see CPLR 5701 [a]; see also CPLR art 4…).   Although certain respondents contend, seemingly persuasively, that Supreme Court is not authorized by General Municipal Law § 4 to direct an investigation against them as they are not a “village” or “town,” this Court cannot grant their requested relief in the absence of an appealable order.  We note that respondents could have moved in Supreme Court to dismiss on this ground within the time allowed for an answer; having properly raised this defense as an objection in point of law in their answer, respondents are entitled to pursue summary dismissal of this special proceeding in that court, in the first instance (see CPLR 404 [a]; see also CPLR 7804 [f]; Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 7804:7 at 673-675).  At this juncture, those claims could only be addressed by this Court in a special proceeding pursuant to CPLR article 78 in the nature of prohibition, instituted in this Court (see CPLR 506 [b] [1]; 7803 [2]…).  Matter of Village of Victory…, 515205, 3rd Dept 11-7-13

 

Four-Inch Floor-Drop Caused by Insect-Damage Constituted a “Collapse” within Meaning of Policy

In finding that the term “collapse” in a home insurance policy included a four-inch drop in the floors caused by insect damage, the Third Department explained:

An insurance policy must be interpreted to give clear and unambiguous provisions their plain and ordinary meaning… .  However, “[t]he policy must, of course, be construed in favor of the insured, and ambiguities, if any, are to be resolved in the insured’s favor and against the insurer” … .  The policy at issue here specifically covers “physical loss to covered property involving collapse of a building or any part of a building” …, but only if such collapse is caused by, among other things, “hidden insect or vermin damage.”  While the policy does not define what constitutes a collapse, it provides that a “[c]ollapse does not include settling, cracking, shrinking, bulging or expansion.”  In this regard, we have held that the term collapse “involves an element of suddenness, a falling in, and total or near total destruction” … . However, “the clear modern trend is to hold that collapse coverage provisions [–] which define collapse as not including cracking and settling – provide coverage if there is substantial impairment of the structural integrity of the building or any part of a building” … . Wangerin v New York Central Mutual Fire Insurance Company, 515723, 3rd Dept 11-7-13

 

Request for Employees’ Names and Addresses Not Allowed Under Balancing Test (Privacy versus Public Interest)

The Third Department applied a balancing test to determine whether petitioner’s Freedom of Information Law (FOIL) request for the names and addresses of employees should be granted.  The petitioner, a union employee, wished to communicate with the employees to ensure that nonunion contractors comply with the prevailing wage law (Labor Law 220).  The court affirmed the denial of petitioner’s request:

“FOIL is based on a presumption of access to [government] records, and an agency . . . carries the burden of demonstrating that [an] exemption applies to [a] FOIL request” … .  The personal privacy exemption (see Public Officers Law § 87 [2] [b]) incorporates a nonexhaustive list of categories of information that falls within the exemption (see Public Officers Law § 89 [2] [b] [i]-[vii]).  Where, as here, none of the categories applies specifically, the issue of whether there is an “unwarranted invasion” of privacy is decided “by balancing the privacy interests at stake against the public interest in disclosure of the information” … . * * *

An unwarranted invasion of personal privacy has been characterized as that which “‘would be offensive and objectionable to a reasonable [person] of ordinary sensibilities'” … .  Petitioner’s union desires names and home addresses so that it can contact employees of the nonunion contractor to find out if they were paid as reported by their employer.  The scenario of nonunion employees of a nongovernment employer being contacted at their homes by someone from a union who knows their names, their home addresses, the amount of money they reportedly earn, and who wants to talk about that income would be, to most reasonable people, offensive and objectionable. A significant privacy interest is implicated… . Matter of Massaro v NYS Thruway Authority, 516113, 3rd Dept 11-7-13

 

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“At Will” Clause in Employment Contract Precluded Action Based Upon Promissory Estoppel, Fraud and Negligent Representation/Criteria for Tortious Interference With Contract and Prima Facie Tort Not Met

The Third Department affirmed the dismissal of a complaint brought by a doctor against the hospital where he was employed and the doctor who supervised him.  The plaintiff was hired pursuant to an agreement which included an “at will” clause allowing termination without cause upon 60 days notice. Plaintiff was terminated upon 90 days notice. Plaintiff sued the hospital for promissory estoppel, fraud, and negligent representation.  Plaintiff sued his supervisor [Hussain] for tortious interference with contract and prima facie tort:

Plaintiff’s claims against the hospital all required a showing that, among other things, he reasonably relied on any alleged promises or misrepresentations made to him by the hospital … .  In this regard, we note that “[w]here, as here, ‘a plaintiff is offered only at-will employment, he or she will generally be unable to establish reasonable reliance on a prospective employer’s representations'” … . * * * Inasmuch as any oral assurances made by the hospital as to the security of plaintiff’s position could not have altered the at-will nature of the employment contract, the hospital established its prima facie entitlement to judgment as a matter of law dismissing the claims against it, shifting the burden to plaintiff “‘to establish the existence of material issues of fact which require a trial of the action’”… . * * *

… [A] claim of tortious interference with contract requires (1) the existence of a valid contract between a plaintiff and a third party, (2) a defendant’s knowledge of such contract, (3) the intentional inducement of a breach of that contract, and (4) damages … .  Significantly, as the contract here was terminable at will, plaintiff was also required to “show that [Hussain] employed wrongful means, such as fraud, misrepresentation or threats[,] to effect the termination of employment”… .No such showing was made here. * * *

“[Prima facie tort] requires a showing of an intentional infliction of harm, without excuse or justification, by an act or series of acts that would otherwise be lawful . . . and that malevolence was the sole motivating factor” … .  Considering plaintiff’s acknowledgment that Hussain prevented him from examining patients as a result of complaints made by patients who wanted to be treated by Hussain and not plaintiff, plaintiff could not establishthat Hussain’s actions were motivated solely by “disinterested malevolence”… . Hobler v Hussain…, 516381, 3rd Dept 11-7-13

 

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Bond Resolution for Upgrades to School District Buildings Does Not Constitute a School-District Debt—Petitioner Did Not Have Standing to Challenge School District’s Environmental Impact Determination

In a full-fledged opinion by Justice Spain, the Third Department determined that a bond resolution for the upgrading of school district buildings did not violate the school district’s constitutional and statutory debt limit and the petitioner did not have standing to challenge the school district’s State Environmental Quality Review Act (SEQRA) finding that the upgrading did not have a negative environmental impact.  The court held the bonds need not be included in the debt until they are sold, i.e., until the bonds are actually issued:

…[F]or purposes of the debt limit, “contract indebtedness” and “existing indebtedness” include only bonds that have been actually issued – i.e., sold – at that time, and exclude the value of bonds that have merely been authorized for future issuance. * *

…[P]etitioner lacks standing to challenge the School District’s SEQRA determination and process … .  Standing, even to raise environmental challenges, is not automatic and must be alleged and, when disputed, proven …; this petitioner failed to do.  To the extent that petitioner relies on the proximity of his property to one of the buildings scheduled for repurposing … to raise an inference of injury sufficient to confer standing, under our decisional law a distance of over 1,000 feet “is not close enough to give rise to the presumption that the neighbor is or will be adversely affected by the proposed project” … .  Further, petitioner failed to alleged or identify any actual injury or direct harm that he will suffer, environmental or otherwise, if the facilities project is undertaken that is distinct from the harm experienced by the general public… . Matter of O’Brien v NYS Commissioner of Education, 515382, 3rd Dept 11-7-13

 

Amendment of Summons and Complaint to Fix Misnamed Party Allowed

In affirming the Supreme Court’s allowing a summons and complaint to be amended to include a misnamed party [Enigma Management] which shared the same address and counsel and provided the same services as the named defendant, the Third Department wrote:

The showing required by plaintiffs in support of their motion pursuant to CPLR 305 (c) included “that the intended but misnamed defendant was fairly apprised that it was the party the action was intended to affect [and that it] would not be prejudiced” … .  Here, plaintiffs’ proof established, among other things, that service occurred at the shared address of defendant and Enigma Management, defendant and Enigma Management essentially acted as one in asserting identical causes of action against plaintiffs, both claimed to have done laboratory work for plaintiffs, they had the same counsel and they used a variety of names in their billing and correspondence.  There is no prejudice to Enigma Management in permitting the amendment.  MVP Health Insurance Company v Enigma Diagnostic Corporation, 515660, 3rd Dept 11-7-13

 

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Town Could Not Be Liable for Discretionary Judgment Made by EMT (Third Dept).

The Third Department determined that an EMT employed by the town made a discretionary judgment that plaintiff’s decedent did not need life support during transport to the hospital.  Plaintiff’s decedent’s condition worsened during the trip and he died a week later.  Because the EMT’s judgment was discretionary, the town could not be held liable:

The Court of Appeals recently held that when a municipality provides emergency first responder services in response to a 911 call for assistance, as the Town did here by dispatching its paramedic, “it performs a governmental function[, rather than a proprietary one,] and cannot be held liable unless it owed a ‘special duty’ to the injured party” … .  A plaintiff generally must first establish the existence of a special duty before it becomes necessary for the court to address whether the governmental function immunity defense applies …, but the special relationship issue is irrelevant where the government action in question is discretionary … .  “Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” … .  Discretionary authority involves “the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … .

Although the record here at least arguably contains factual issues concerning whether the Town voluntarily assumed a duty to decedent or plaintiff, thereby creating a special duty …, we need not address that question because the Town’s actions were discretionary.  The Town’s paramedic exercised his discretion in making medical determinations concerning decedent’s condition … . DiMeo… v Rotterdam Emergency Medical Services, Inc, 516264, 3rd Dept 10-31-13

 

Petitioner Was Domiciled in New York at Time of Stock Sale; Taxes Owed to New York

In affirming the Tax Appeals Tribunal’s determination that petitioner was domiciled in New York when she sold shares of stock resulting in $2 million in capital gains, the Third Department explained the relevant principles:

…[A]n individual is a resident of this state for income tax purposes when that individual is domiciled in New York (see Tax Law § 605 [b] [1] [A]).   A domicile “is the place which an individual intends to be such individual’s permanent home” (20 NYCRR 105.20 [d] [1]) and, “once established[, a domicile] continues until the individual in question moves to a new location with the bona fide intention of making such individual’s fixed and permanent home there” (20 NYCRR 105.20 [d] [2]; see Matter of Newcomb, 192 NY 238, 250 [1980]).  “Domicile is established by physical presence and intent”… .  “No single factor is controlling and the unique facts and circumstances of each case must be closely considered” … .  “The fact that a person registers and votes in one place is important but not necessarily conclusive, especially if the facts indicate that such individual did this merely to escape taxation” (20 NYCRR 105.20 [d] [2]). The party seeking to establish a change in domicile must carry the burden of doing so by clear and convincing evidence … .  Upon review, this Court will defer to the Tribunal’s determinations regarding witness credibility and the weight to be accorded the evidence …, and the Tribunal’s determination will be confirmed if it is “rationally based upon and supported by substantial evidence” … . Matter of Ingle v Tax Tribunal of the Department of Taxation…, 514245 3rd Dept 10-31-13

 

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False Imprisonment Claims Against Hospital for Involuntary Confinement Turn on Finding of Medical Malpractice

In affirming the dismissal of a complaint against a hospital for false imprisonment based on involuntary confinement pursuant to the Mental Hygiene Law, the Third Department explained the relevant analysis. Plaintiff had made death threats against family members:

Pursuant to the Mental Hygiene Law, an individual may be temporarily confined on an involuntary basis where he or she has “a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself[, herself] or others” (Mental Hygiene Law § 9.39 [a]).  We agree with Supreme Court that all of plaintiff’s claims against the hospital are, in effect, claims for false imprisonment, inasmuch as they are all based upon allegations of unlawful seizure and involuntary confinement… .  These claims all turn upon a finding of medical malpractice because “[c]ommitment pursuant to Mental Hygiene Law article 9 is deemed privileged in the absence of medical malpractice”… .  Accordingly, the hospital was required to make a prima facie showing that its medical treatment did not depart from accepted standards of care… . Tienken v Benedictine Hospital, 514164, 3rd Dept 10-31-13

 

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Upward Departure in SORA Proceeding Affirmed

The Third Department affirmed County Court’s upward adjustment of defendant’s sex offender status from a presumptive level I to a level III.  Defendant had pled guilty to a course of sexual conduct with a young girl entrusted to his care spanning five years:

“An upward departure from a presumptive risk classification is justified when an aggravating factor exists that is not otherwise adequately taken into account by the risk assessment guidelines and the court finds that such factor is supported by clear and convincing evidence” … .  The circumstances underlying these charges as well as defendant’s past misconduct may be considered within the context of this proceeding … .  Here, additional factors established by the record, not adequately taken into account by the guidelines, included defendant’s disregard and abuse of other children even younger than the victim who were also entrusted to his care, his mental instabilities, and the repeated and lengthy nature of his conduct toward the victim.  Accordingly, we find that the record sufficiently supports County Court’s upward departure from the presumptive risk level… .  People v Muirhead, 511847, 3rd Dept 10-31-13

 

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