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Causes of Action Stated Against County for Allowing Public Traffic During Paving Operation and Violation of Regulation Requiring Truck-Brake Maintenance

The Third Department determined plaintiff had stated causes of action sounding in negligence and a violation of Labor Law 241(6).  Plaintiff was driving a truck hauling asphalt to a county roadway paving operation (which had been contracted out to a private company–Graymont) when the truck’s brakes failed. Plaintiff was seriously injured when, after avoiding public traffic, he jumped from the truck which continued on over an embankment. The court upheld the negligence claim against the county which was based upon the county’s permitting public traffic on the road during construction.  The court further determined the county was entitled to summary judgment on its indemnification action against the private construction company (Graymont—based upon the county’s contract with the company). And the court upheld the Labor Law 241(6) claim, finding the regulation requiring truck-brake maintenance supported the cause of action:

Plaintiff alleges that the County violated 12 NYCRR 23-9.7 (a),  which provides that “[t]he brakes of every motor truck shall be so maintained that such truck with full load may be securely held on any grade that may be encountered in normal use on the job.”  While the County does not dispute that this provision is sufficiently specific to form the basis for liability under Labor Law § 241 (6), it argues that the regulation is not applicable to the circumstances here.  Mindful that “[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” …, we cannot agree.  Although the regulation speaks in terms of the ability of the brakes to “h[o]ld” the construction vehicle, the purpose of the regulation is to ensure proper functioning of a truck’s brakes on any terrain or grade normally encountered.  Thus, we find that the language of the regulation addresses not only the ability of a truck’s brakes to hold a stopped truck in place, but also the ability of the brakes to bring a moving vehicle to a stop. Duffina v County of Essex…, 515346, 3rd Dept 11-14-13

 

Home Attendant for Elderly Injured Walking from One Client’s Home to Another Was Covered by Workers’ Compensation

The Third Department affirmed the determination that a home attendant for the elderly, who was injured walking from one client’s home to another client’s home, was entitled to workers’ compensation:

While “injuries sustained during travel to and from the place of employment” are generally not compensable under the Workers’ Compensation Law, an outside employee “who does not have a fixed worksite[] may be compensated for injuries sustained in the course of” work-related travel … .  The employer and carrier contend that claimant was not an outside employee, but “[t]he distinguishing feature of outside employees is that they do not work at a fixed location and are required to travel between work locations” … .  The employer here assigned claimant to care for two clients in different locations and, thus, substantial evidence supports the Board’s determination that she “became an outside employee when [s]he left” one work site and proceeded to another… . Matter of Bedmark v Caring Professionals Inc…, 515870, 3rd Dept 11-7-13

 

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Collective Bargaining Agreement Subsequently Made Retroactive to Cover Period When it Had Expired Did Not Include Firefighters Hired During the Period the Agreement Had Expired

The Third Department affirmed Supreme Court’s determination that newly hired firefighters [hired January 9, 2010] were not eligible, pursuant to a collective bargaining agreement (CBA), for participation in a retirement plan to which they need not contribute a portion of their salary.  The collective bargaining agreement which would have allowed participation in the noncontributory program had expired at the time the firefighters were hired and was made effective retroactively when it was subsequently signed:

Petitioners’ reliance on the continued effect of the terms of the 2008-2009 CBA is unavailing in light of the recent decisions of the Court of Appeals expressly rejecting the application of the Triborough Amendment to the tier 5 retirement legislation … .  Accordingly, the expired 2008-2009 CBA cannot be considered to have been “in effect” on January 9, 2010 for the purpose of permitting the new hires to qualify for the statutory exception (see L 2009, ch 504, Part A, § 8).

Nor are we persuaded that the 2009-2013 CBA can be considered to be retroactively “in effect” on January 9, 2010, as it was not executed until seven months later in August 2010.  At that time, newly hired firefighters were required by law to contribute to the retirement system (see Retirement and Social Security Law §§ 1201, 1204) and, as a result, the Union and NFTA [Niagara Frontier Transportation Authority] were prohibited from agreeing to a noncontributory retirement plan (see Civil Service Law § 201 [4]; Retirement and Social Security Law § 470).  Moreover, while the Union and NFTA were able to retroactively bind each other to the terms of the 2009-2013 CBA, they were unable to bind third parties such as the Comptroller … . Matter of Buffalo Niagara Airport Firefighters Association v DiNapoli, 515811, 3rd Dept 11-7-13

 

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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

 

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