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Municipal Law Update

Chelus, Herdzik, Speyer & Monte, P.C. has long been recognized as one of New York's preeminent authorities in the field of Municipal Law. Over the past several decades we have advised and represented countless counties, cities and towns throughout the state. We are proud to count Western New York's three largest municipalities as our personal clients.

This is our Municipal Law "blog" -- we will provide timely updates whenever there is legal news to report that affects our clients.

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2018
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2018

October 15, 2018
October 10, 2018
July 13, 2018
June 25, 2018
June 13, 2018
March 28, 2018
March 26, 2018
February 20, 2018
February 7, 2018

 

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October 15, 2018

Grant of Summary Judgment for City Reversed In Labor Law §200 Case 

In Parkhurst v Syracuse Regional Airport Auth., 2018 NY Slip Op 06670 (4th Dep’t Oct. 5, 2018), the plaintiff’s decedent, Michael Parkhurst, sustained injuries when he slipped and fell on plastic sheeting covering newly-laid carpet after descending a ladder while performing drywall finishing work.  The plaintiff brought a Labor Law §200 claim against the Syracuse Regional Airport Authority, the City Of Syracuse and Hueber-Breuer Construction Co., Inc.  At the trial court level, the defendants moved for summary judgment, arguing that a dangerous condition did not exist at the worksite, but rather the manner in which the plaintiff’s decedent had performed his work had caused his injuries.

On appeal, the Fourth Department found that the plastic sheeting on which the plaintiff’s decedent had slipped was placed there by defendant Hueber-Breuer Construction Co., Inc.  The Court concluded that while the placement of the plastic sheeting may have been part of Hueber's method of work, it was not a part of the decedent's method of work.

The Fourth Department also rejected the defendants’ argument that the plastic sheeting constituted an open and obvious hazard inherent in decedent's work, which could not serve as a basis for liability.  The Court held that the issue of whether a condition was readily observable impacts on decedent's comparative negligence, and does not negate the defendants' duty to keep the premises reasonably safe.

The Fourth Department unanimously reversed the trial court’s decision granting summary judgment to the defendants.

Prepared by Eric W. Marriott, Esq.

If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

 

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October 10, 2018

Plaintiff Cannot Overcome Prior Written Notice Requirement in Trip-and Fall Case 

In Hernandez v City of Syracuse, 2018 NY Slip Op 06351 (4th Dep’t Sep. 28, 2018), the plaintiff broke her ankle when she tripped on a deformed sidewalk in the City of Syracuse.  The plaintiff commenced a negligence action against the City, and the City moved for summary judgment on the ground that it did not receive prior written notice of the alleged defect.  The plaintiff opposed the motion, arguing that there had been an oral complaint to the City over the phone that a City worker had written down.  The trial court denied the motion.

On appeal, the Fourth Department held that, consistent with the Court of Appeals’ decision in Gorman v Town of Huntington, 12 NY3d 275 (2009), a verbal or telephonic communication to a municipal body that is reduced to writing does not satisfy a prior written notice requirement.  As the plaintiff could not prove the exception to the written notice requirement, that the City affirmatively created the defect through an act of negligence that immediately resulted in the existence of a dangerous condition, the Fourth Department reversed the lower court’s holding and dismissed the complaint.

No Reckless Disregard Found for Rochester Police Officer 

In Martinez v City of Rochester, 2018 NY Slip Op 06398 (4th Dep’t Sep. 28, 2018), Rochester police officer Jeremy Nash was responding to a police call with his emergency lights and sirens activated when he slowed his patrol vehicle and then entered the intersection against a red light.  The plaintiff's vehicle entered the intersection with a green light and struck the side of Nash’s patrol vehicle.  The plaintiff commenced an action for negligence, and the City of Rochester moved for summary judgment, which the trial court granted.

On appeal, the Fourth Department found that pursuant to Vehicle and Traffic Law § 1104, the driver of an authorized emergency vehicle, including a "police vehicle,” who is responding to a police call, may proceed past a steady red signal, but only after slowing down as may be necessary for safe operation.  An officer engaged in such privileged conduct cannot be held liable unless his or her conduct demonstrates a reckless disregard for the safety of others, or, in other words, rises to the level of recklessness.  In order to establish recklessness, there must be evidence that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome.

In light of the facts of the case, the Fourth Department found that the officer’s conduct did not rise to the level of reckless disregard for the safety of others, and affirmed the lower court’s order granting summary judgment to the defendants. 

Insurance Company Cannot Disclaim Coverage Following Fire Deaths 

In Matter of Turner v Municipal Code Violations Bur. of City of Rochester, 2018 NY Slip Op 06350 (4th Dep’t Sep. 28, 2018), the plaintiff brought suit under Article 78 seeking a declaratory judgment that Sections 202 and 307.1 of the Property Maintenance Code of New York State are unconstitutional, after the Municipal Code Violations Bureau of the City of Rochester found that the plaintiff had violated section 307.1 of the Code.

Section 307.1 of the Code states:

“Every exterior and interior flight of stairs having more than four risers shall have a handrail on one side of the stair and every open portion of a stair, landing, balcony, porch, deck, ramp or other walking surface that is more than 30 inches (762 mm) above the floor or grade below shall have guards.  Handrails shall be not less than 30 inches (762 mm) in height or more than 42 inches (1067 mm) in height measured vertically above the nosing of the tread or above the finished floor of the landing or walking surfaces.  Guards shall be not less than 30 inches (762 mm) in height above the floor of the landing, balcony, porch, deck, or ramp or other walking surface.”

Section 202 of the Code defines the term “guard” as “a building component or a system of building components located at or near the open sides of elevated walking surfaces that minimizes the possibility of a fall from the walking surface to a lower level.”

On appeal, the Fourth Department held that Property Maintenance Code Sections 202 and 307.1 are not unconstitutional and that the determination of the defendant that the plaintiff had violated the Code had a rational basis and was not arbitrary or capricious.

Prepared by Eric W. Marriott, Esq.

If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

 

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July 13, 2018

Hearing Officer’s Determination Supported by Substantial Evidence

In the Matter of Thomas Cordway v. Cayuga County, et al., (4th Dept. 2018), petitioner Cordway was a deputy sheriff who commenced an Article 78 proceeding challenging the termination of the disability benefits he was receiving pursuant to General Municipal Law Section 207-c. 

The Fourth Department held that the Hearing Officer’s determination terminating his disability benefits was supported by substantial evidence.  In opposition to the petitioner’s evidence that his injuries were causally related to his work-related slip and fall, the county presented evidence to the contrary.  “[T]he Hearing Officer was entitled to weigh the parties’ conflicting medical evidence and to assess the credibility of the witnesses, and [w]e may not weigh the evidence or reject [the Hearing Officer’s] choice where the evidence is conflicting and room for a choice exists.”  Therefore, the Fourth Department upheld the termination of benefits. 

Petitioner’s Claim Barred by Six-Year Statute of Limitations

In the Matter of Jerry Weikel, Sr. v. Town of West Turin and Richard Failing, (4th Dept. 2018), the Town of West Turin acting pursuant to Local Law No. 1 of 1997 permitted the Town to classify certain roads as “minimum maintenance roads.”  Under the same law, the Superintendent of Highways had the authority to determine the amount of maintenance provided to those roads, which included snow plowing. 

In 2004, Weikel purchased property along Bower Road.  In 2014, Weikel decided to permanently relocate to the property and requested that the Town resume its responsibility to plow Bower Road.  The Town declined the request to plow Bower Road. 

Subsequently, Weikel commenced a hybrid declaratory judgment action and Article 78 proceeding seeking among other relief that the Local Law was invalid.  The trial court determined that Weikel’s challenge to the Local Law was not time barred and granted his motion in part by declaring that the Local Law was invalid on the ground that it conflicts with the State Highway Law Section 140.  Weikel argued that Section 140 imposed a duty on the Superintendent of Highways to remove snow obstructing all Town highways.

On appeal, however, the Fourth Department agreed with the Town holding that Weikel’s complaint was untimely.  Although the Town did not cross-move for summary judgment dismissing the second cause of action seeking a declaration that the Local Law was invalid, the Fourth Department nonetheless granted summary judgment in favor of the Town.  The Appellate Division noted that the Weikel’s challenge was to the substance of the Local Law and was therefore subject to the six-year statute of limitations pursuant to CPLR Section 213(1), which would have accrued in August 2004 when Weikel purchased the property on Bower Road.  Therefore, the Fourth Department reversed the lower court.    

Planning Board’s Declaration was not Arbitrary or Capricious

In the Matter of Pilot Travel Centers, LLC v. Town Board of Town of Bath, et al., (4th Dept. 2018), the petitioner operated a truck stop directly across from the Kanona Truck Stop, which was under a contract for sale by Love’s Travel Stops & Country Stores, Inc. (hereinafter “Love’s”).  Love’s informed the Town’s Planning Board that it intended to construct a state-of-the-art travel center.  The Planning Board then published a notice for a public hearing relative to Love’s site plan application.  Counsel for the petitioner attended the hearing but did not raise any objections during the hearing. 

After the hearing, the Planning Board issued a negative declaration under the State Environmental Quality Review Act (“SEQRA”) and classified the project as a SEQRA Type I action with no significant adverse environmental impact.  Therefore, an Environmental Impact Statement (“EIS”) was not required.

In March 2017, the petitioner commenced an Article 78 proceeding to enjoin the construction of the project and annul the negative declaration of the Planning Board in light of the fact it failed to require an EIS for the project pursuant to Chapter 59 of the Town Code.  Subsequently, the Town repealed Chapter 59 of the Town Code in light of the fact it was no longer consistent with SEQRA.  The trial court denied the relief sought in the petition.  While that matter was pending, the petitioner commended a second Article 78 proceeding seeking to annul the Town’s repeal of Chapter 59 of the Town Code, which was also denied by the trial court. 

Although the petitioner maintained standing to challenge the construction of the project, the Fourth Department held that it failed to exhaust its administrative remedies with respect to the Planning Board’s negative declaration.  Petitioner’s attorney attended the public hearing but raised no objection.  Further, even if the petitioner exhausted its administrative remedies there was no merit to the petitioner’s contention that the Planning Board’s determination was arbitrary and capricious because “[a] local law that is inconsistent with SEQRA must be invalidated.”  Chapter 59 of the Town Code was “inconsistent with SEQRA because SEQRA permits a negative declaration for Type I actions, whereas Chapter 59 effectively precluded a negative declaration in such actions.”  Additionally, where “an agency has followed the procedures by SEQRA, a court’s review of the substance of the agency’s determination is limited.” 

Therefore, a court “will not substitute its judgment for that of the agency if the agency reached its determination in some reasonable fashion.”  The Fourth Department concluded that “the Planning Board properly identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination” thereby upholding the trial court’s decision.    

With respect to the second appeal, the Fourth Department upheld the lower court’s determination that the petitioner lacked standing to challenge the Town’s repeal of Chapter 59 of the Town Code.  To demonstrate standing, a petitioner “must not only allege, but if the issue is disputed must prove, that [its] injury is real and different from the injury most members of the public face.  Standing requirements are not mere pleading requirements but rather an indispensable part of the [petitioner’s] case’ and therefore each element must be supported in the same way as any other matter on which the [petitioner] bears the burden of proof.” 

Petitioner’s “status of neighbor…does not automatically provide the admission ticket to judicial review in a land use case…”  More importantly, the repeal of Chapter 59 of the Town Code does not eliminate the environmental review requirements for the Town as they are still subject to the requirements of SEQRA.  In light of the fact the petitioner failed to demonstrate an injury distinct from the public at large, it lacked standing to challenge the repeal of Chapter 59 of the Town Code.   

Prepared by Nicholas M. Hriczko, Esq..

If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

 

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June 25, 2018

Claimant Permitted to File Late Notice of Claim on One of Two Accidents

In Matter of Szymkowiak v New York Power Auth., 2018 NY Slip Op 04482 (4th Dept June 15, 2018), the claimant was employed as a laborer on a project in which the New York State Department of Transportation rehabilitated three bridges that ran over the respondent’s property.  On September 26, 2015, the claimant fell off his employer's flatbed trailer and injured his left arm and shoulder.  On October 27, 2015, the claimant fell from a crane platform, sustaining a head injury and re-injuring his left shoulder.  By an order to show cause dated November 17, 2016, the claimant moved for leave to serve a late notice of claim, which the trial court granted.

The respondent appealed, asserting that the claimant failed to meet his burden of demonstrating that the respondent had timely actual knowledge of the first accident, that the claimant had no justifiable excuse for filing a late notice of claim, and that the respondent would be prejudiced by the late filing.

The Fourth Department first agreed with the respondent that the claimant failed to establish a reasonable excuse for the delay, but noted that the failure to offer an excuse for the delay is not fatal where actual notice was had and there is no compelling showing of prejudice to the respondent.

The Court found that there was no compelling showing of prejudice to the respondent.  As the plaintiff fell on a construction site, the Court held that even if the notice of claim had been timely filed, it was unlikely that conditions existing at the time of the accidents would still have existed at the time of filing.

Concerning actual notice, the Fourth Department stated that despite having engaged in pre-action discovery, the claimant was unable to provide any evidence that the incident report related to the first accident was ever transmitted to the respondent, and there was no mention of the first accident in the construction closeout report submitted to the respondent.  Inasmuch as there was no evidence that the respondent received timely actual knowledge of the occurrence of the first accident, the respondent could not have received timely actual knowledge of the injuries or damages resulting therefrom, an essential part of the actual notice requirement. 

The Court did find, however, that the respondent had received timely actual notice of the second accident.  The claimant established that the incident report related to that accident was submitted to the respondent's safety consultant, and the details and nature of the second accident were included in the construction closeout report.

Therefore, the claimant was permitted to file a late notice of claim as to the second accident only.

Prepared by Eric W. Marriott, Esq..

If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

 

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June 13, 2018

“Reckless Disregard” Standard Applies to Police Officer, but Question of Fact Remains

In Coston v City of Buffalo, 2018 NY Slip Op 04136 (4th Dept June 8, 2018), the plaintiff brought suit against the City of Buffalo seeking damages for injuries he sustained when the vehicle he was operating collided with a police vehicle operated by a police officer employed by the City of Buffalo.  The defendants moved for summary judgment based on the protection for emergency vehicles enumerated in Vehicle and Traffic Law §1104, which states that when involved in an emergency operation, emergency vehicles are exempt from certain rules of the road and are liable only if the operator acts with “reckless disregard for the safety of others.”

In denying the defendants’ motion, the trial court determined that there was an issue of fact as to whether the reckless disregard standard of care as opposed to ordinary negligence was applicable to the case.  

On appeal, the Fourth Department determined that because the officer was responding to a dispatch call in an authorized emergency vehicle, the protection of §1104 applied to the case, and the defendants should be held to the reckless disregard standard of liability.

The Court agreed with the plaintiffs, however, that there was a question of fact as to whether the officer had acted with reckless disregard for the safety of others.  There existed conflicting testimony as to whether the officer had slowed his vehicle before driving through a stop sign and impacting the plaintiff, which precluded a finding of summary judgment for the defendants.

Question of Fact on Whether Town Was Negligent in Failing to Install Guide Rails

In Whitaker v Kennedy/Town of Poland, 2018 NY Slip Op 04170 (4th Dept June 8, 2018), the plaintiff commenced an action as guardian of Joseph L. Martin, Jr., an incapacitated person, seeking damages for injuries sustained by Martin in a single-vehicle accident at the intersection of Hartman Road and Stone Road in the Town of Poland.  Martin was a passenger in a vehicle that failed to stop at the intersection, continued across the street, went down an embankment, struck a tree, and came to rest in a creek.  The plaintiff’s complaint alleged that the defendants were negligent in failing to install guiderails at the intersection, among other theories of negligence.

The defendants moved for summary judgment, and the trial court denied the motion.  On appeal, the Fourth Department found that the trial court properly denied the defendants’ motion on the issue of failing to install guiderails.  The Court stated, "A municipality has a duty to maintain its roads in a reasonably safe condition in order to guard against contemplated and foreseeable risks to motorists, including risks related to a driver's negligence or misconduct." 

The defendants’ own evidence submitted in support of their motion tended to establish that they had notice of prior similar accidents at the intersection, which the Court found to create an issue of fact as to whether they were negligent in failing to provide adequate protection against a known dangerous condition by installing guiderails.

The Court agreed with the defendants, however, that the other causes of negligence should have been dismissed, as the defendants met their initial burden, and the arguments were unopposed by the plaintiff.

Prepared by Eric W. Marriott, Esq..

If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

 

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March 28, 2018

Question of Fact Precludes Summary Judgment Under §1104(e) for City

In Oddo v City of Buffalo, 2018 NY Slip Op 02041 (4th Dep’t Mar 23, 2018), the plaintiffs commenced an action seeking to recover damages for injuries sustained by plaintiff Heather R. Oddo when the vehicle she was driving collided at an intersection with a police vehicle operated by defendant James Duffy, a police officer employed by the City of Buffalo, while he was responding to a police call.  The plaintiff, supported by two witnesses, contended that the officer proceeded through a red light.  The officer testified at his deposition that the light was green when he passed through it. 

The defendants moved for summary judgment dismissing the complaint and plaintiffs cross-moved for partial summary judgment on the issue of liability.  The trial court denied the motion and cross motion, determining that the applicable standard of care is “reckless disregard for the safety of others,” as set forth in Vehicle and Traffic Law §1104(e), and that there were triable issues of fact precluding summary judgment to either the plaintiffs or the defendants, including the issues of whether plaintiff failed to yield the right-of-way and whether the defendant officer slowed down before proceeding into the intersection.  

The Fourth Department affirmed, but with different reasoning. The Court held that the color of the traffic light was a material issue of fact precluding an award of summary judgment.  If the light was red, the officer would be held to a reckless disregard standard under §1104(e), as failing to obey a traffic signal is negligent conduct exempted under §1104(e).  If, however, as the officer testified, the light was green, the officer was not engaging in exempt conduct, and therefore he would be held to a standard of negligence.

Fourth Department Grants Town’s Summary Judgment Motion

In Lates v Town of Hume, 2018 NY Slip Op 02048 (4th Dep’t Mar 23, 2018), the plaintiff brought suit against the Town of Hume after his free-standing garage on his property was destroyed by waters from the adjacent Hudson Creek following a night of hard rain.  The creek had been experiencing erosion, causing it to encroach progressively on the plaintiff's property, especially in the vicinity of the garage, where the flowing water began to undermine the garage's foundation.  The plaintiff alleged in his amended complaint that the Town was negligent in, among other things, failing to maintain the creek despite being notified by plaintiff of the ongoing erosion, and in constructing or maintaining a bridge over the creek with the result that water was directed onto his property.

The Town moved for summary judgment, arguing that the Town had no duty to remedy the erosion, and the bridge did not cause the flooding and subsequent destruction of the plaintiff’s garage.  The trial court denied the motion.

On appeal, the Fourth Department reversed, holding that the Town owed no duty to the plaintiff either to remediate or to abate the soil erosion.  The plaintiff conceded at his General Municipal Law § 50-h examination that the County of Allegany, not the Town, secured an easement across plaintiff's property and performed the creek maintenance since the 1990s.  Further, the plaintiff conceded in his affidavit opposing the motion that it was not the bridge that caused the destruction to his garage but, rather, it was the lack of regular creek maintenance.

Case Dismissed as Time-Barred Against Town

In EPK Props., LLC v PFOHL Bros. Landfill Site Steering Comm., 2018 NY Slip Op 02085 (4th Dep’t Mar 23, 2018), the plaintiff commenced an action seeking damages and injunctive relief based on its allegations that the defendants, including the Town of Cheektowaga, were responsible for damage to its property as a result of the artificial diversion of water onto its property.  The defendants moved for summary judgment, asserting that the plaintiff’s actions were time-barred.

The plaintiff argued that, because the water flowed continually onto its property, the torts were continuous in nature and, as a result, its causes of action for nuisance and trespass were not time-barred.  The Fourth Department laid forth the rule of the continuing wrong doctrine, stating that courts will apply the continuing wrong doctrine in cases of nuisance or continuing trespass where the harm sustained by the complaining party is not exclusively traced to the day when the original objectionable act was committed.

In this case, the Fourth Department found that the damage to the property became apparent at the latest in June 2010, when the US Army Corps of Engineers informed the plaintiff that the conditions on the property had changed substantially, requiring a new delineation of federal wetland boundaries, and the damage was traceable to an original objectionable act.  The plaintiff did not bring suit until on July 24, 2014.  By that reasoning, the Fourth Department affirmed the decision of the trial court to dismiss the case as time-barred.

If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

Prepared by Eric W. Marriott, Esq..

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March 26, 2018

Personal Injury Action Against City Dismissed As Time-Barred

In Baity v. City of Buffalo, 2018 NY Slip Op 01727 (4th Dep’t Mar 16, 2018), the plaintiff brought suit asserting various tort claims under state law against the defendant as a result of being arrested, detained, and then released on August 7, 2006 without charges being filed.  The plaintiff timely served a notice of claim against the defendant City of Buffalo, and commenced action against the defendant on July 15, 2008.  

Under General Municipal Law §50-i(1)(c), any action for personal injury against a municipality shall be commenced within one year and 90 days after the happening of the event upon which the claim is based.  Pursuant to CPLR §3211, the defendants moved at the trial court level to dismiss the suit as time-barred.  The trial court granted the defendant’s motion, and the plaintiff appealed, asserting that the defendant waived its statute of limitations defense because its motion was made more than 60 days after interposing an answer.  The plaintiff also contended that a three-year statute of limitations applied to the claims, under New York’s “constitutional tort law.”

The Fourth Department affirmed the decision of the lower court dismissing the case.  The Fourth Department held that the 60-day waiver rule does not apply to motions to dismiss based on the statute of limitations, and that General Municipal Law §50-i(1)(c)’s limitation of time to bring the action was controlling. 

If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

Prepared by Eric W. Marriott, Esq..

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February 20, 2018

No “Reckless Disregard” Standard for Municipal Dump Truck Driver

In Zanghi v. Doerfler, 2018 NY Slip Op 00963 (4th Dept Feb 9, 2018), a case handled by Michael J. Chmiel and Eric W. Marriott of our offices, the defendants were James Doerfler, a municipal dump truck driver, and the Town of Amherst, his employer.

Mr. Doerfler was in the process of transporting snow between various sites in the Town to a central dumping site located off of Millersport Highway.  Mr. Doerfler had just finished unloading snow at the central dumping site, and was on his way back to retrieve more snow.  He was stopped at a red light behind the plaintiffs’ vehicle.  Mr. Doerfler then suffered an unexpected sneezing fit, and his foot slipped from the brake, causing his vehicle to lurch forward and impact the plaintiffs’ vehicle. 

The plaintiffs brought suit, asserting that the defendants were negligent.  The defendants moved for summary judgment under Vehicle and Traffic Law §1103(b), which states that vehicles “actually engaged in work on a highway” are not liable unless their operator acted with “reckless disregard for the safety of others.” 

The plaintiffs cross-moved for summary judgment on the issue of negligence, arguing that because the dump truck was empty, Mr. Doerfler was not “actually engaged in work on a highway.”  In their reply papers, the defendants argued that Mr. Doerfler’s job of transporting snow is all part of the same “run” or “beat,” and as such the protection of §1103(b) cannot be applied to only some parts of the work but not others.  Whether the dump truck was full or empty made no difference, so long as it was engaged in work on a highway.

The Trial Court denied defendants’ motion and granted plaintiffs’ motion on the issue of negligence.  On appeal, the Fourth Department affirmed.  The Fourth Department held that because Mr. Doerfler was not actively “plowing, salting, sanding or hauling snow,” he could not be afforded the protection of §1103(b).  Therefore, because the dump truck was empty at the time the accident occurred, the defendants were not afforded the protection of §1103(b), and were found negligent as a matter of law.

If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

Prepared by Eric W. Marriott, Esq..

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February 7, 2018

 

Plaintiff Failed to Meet Burden of Proof in Opposing City’s Motion for Summary Judgment

In Burke v. City of Rochester, (4th Dept. 2018), the plaintiff allegedly sustained injuries after stepping into a sinkhole in front of her home, which was covered with snow.  A year prior to the accident, the City of Rochester performed a “lawn cut” in the area where the plaintiff allegedly fell.  The plaintiff alleged that this work resulted in a defective condition.  The trial court denied the City’s motion for summary judgment. 

On appeal, the Fourth Department reversed its finding that the City met its initial burden of proof by establishing it did not receive prior written notice of the alleged defect.  With the burden of proof then shifting, the plaintiff failed to demonstrate that the City “affirmatively created the defect through an act of negligence…that immediately result[ed] in the existence of a dangerous condition.”  Although the Court recognized that the plaintiff submitted evidence demonstrating that the City may have created the sinkhole, she failed to establish that the depression “was present immediately after completion of the work.”  In light of the fact the affirmative negligence exception to the prior written rule “does not apply to conditions that develop over time” the complaint was dismissed.      

City Lacked Prior Written Notice and Was Entitled to Summary Judgment

In Tracy v. City of Buffalo, (4th Dept. 2018), the plaintiff attributed the injuries she sustained following a motor vehicle accident to the presence of potholes.  The trial court denied the City’s motion for summary judgment.  On appeal, the Fourth Department reversed the lower court since the City lacked prior written notice.  Additionally, the plaintiff failed to demonstrate that an exception to the prior written notice rule applied.  Further, the Appellate Division noted that “verbal or telephonic communication to a municipal body that is reduced to writing [does not] satisfy a prior written notice requirement” and dismissed the complaint.

Municipal Plaintiff Entitled to Jury Trial on Discount Rate of Damages Award 

In Village of Herkimer v. County of Herkimer, (4th Dept. 2018), the Village of Herkimer was a former member of the Herkimer Self-Insurance Plan, which filed suit against the County of Herkimer as the plan’s administrator.  The County moved for summary judgment dismissing the complaint and for summary judgment on its counterclaims.  The lower court granted the motions and directed a hearing on damages, which the Fourth Department affirmed. 

A jury awarded the County $1,617,528.00 in damages, to which the court added $833,580.87 in prejudgment interest.  In a prior appeal, the Fourth Department affirmed the judgment, but the Court of Appeals modified the judgment and remitted the matter to the trial court for the purpose of establishing an appropriate discount rate.  On remittitur, the trial court judge awarded a 1.8% discount and ordered that the County refund $363,521.07, which prompted the present appeal.

The Fourth Department concluded that the lower court erred in failing to empanel a jury to determine the discount rate.  It was undisputed that prior to the original trial, the Village had demanded a jury trial on all issues.  Despite the Village’s objection, the jury was provided with a verdict form that did not permit any damages discount.    Therefore, the Fourth Department remitted the matter to the lower court for a jury trial on the issue of determining an appropriate discount rate.  

Case Remitted to Court of Claims to Determine Whether the Dangerous Condition Was a Proximate Cause of Decedent’s Fatal Injuries

In Reames v. State of New York, et al (4th Dept. 2018), the plaintiff’s decedent sustained fatal injuries while riding as a passenger when the driver crashed into “an out-of-commission bridge.”  There were four signs present advising of the bridge’s closure.  The first of four signs was encountered when the driver of the vehicle turned onto Stoney Creek Road.  This sign was white and was five feet high with black lettering which read “BRIDGE CLOSED ¾ MILES AHEAD LOCAL TRAFFIC ONLY.”  The second sign was also on the right-hand side of the street, which was orange with black lettering which read “BRIDGE CLOSED 500 FT.”  The third sign crossed both lanes of the road, via a barricade and was about 89 feet before the bridge.  This sign read “BRIDGE CLOSED.”  The last sign was located at the southern entrance of the bridge, which was a six-inch hollow steel box beam “with a small strip of orange and white diagonal reflective stripes across the middle.”

The driver of the vehicle at issue drove past the first two signs and through the center of the third sign.  Subsequently, the driver then proceeded “into and under the fourth sign”.  Due to the height of the steel beam box, the vehicle underrode the beam killing the driver instantly.  The vehicle continued forward across the bridge striking a second steel box beam, which resulted in head injuries to the plaintiff’s decedent resulting in his eventual death.       

Following the conclusion of a nonjury trial, the Court of Claims held that the claimant failed to establish by a preponderance of the evidence that the defendants were negligent “when placing warning signs and barricades leading up to the closed bridge, or that such negligence, if established, was a proximate cause of the accident.”

The Fourth Department agreed with the lower court in that the “signs and barricades leading north to the…Bridge on Stoney Creek Road were sufficient on the date of the accident for their intended purpose-to warn drivers that the [B]ridge was closed.”  Additionally, the Fourth Department upheld the lower court’s conclusion that inadequate signage was not a proximate cause of the accident.   

However, the Fourth Department determined that the trial court erred in its dismissal of the claim inasmuch as it alleged that the defendants created a dangerous condition, which was a proximate cause of the injuries.  New York State “has an obligation to provide and maintain adequate and proper barriers along its highways.”  Therefore, the defendants decision to create a steel box beam across the front of the bridge at a sufficient height to allow a vehicle to proceed under it, “constituted the creation of a dangerous condition as a matter of law.” 

Therefore, the Fourth Department remitted the case back to the Court of Claims to determine “whether [this] dangerous condition constituted a proximate cause of the decedent’s fatal injuries.”         

City Not Entitled to Summary Judgment as They Failed to Meet Their Burden of Proof

In 2305 Genesee Street, LLC v. City of Utica, the plaintiff commenced an action alleging damage to real and personal property as a result of a drainage system overflowing.  The City of Utica moved for summary judgment arguing that it was not negligent in maintaining its drainage system, but the damage was caused by an “act of God.”  The lower court granted summary judgment in favor of the City. 

On appeal, however, the Fourth Department concluded that the City failed to meet its burden in light of the fact that its own moving papers created a question of fact on the issue of negligence.  In its moving papers, the City admitted that a “trash rack” was located in the rear of the plaintiff’s property, which was used to filter debris that was entering the drainage system from a nearby ravine.  Further, if too much debris builds up in the “trash rack” it prevents water from flowing into the drainage system.  The record also established that flooding had previously occurred at the premises causing property damage. 

To prevent flooding, the City alleged that its employees would periodically inspect the ravine.  To the contrary, a member of plaintiff’s company testified that the City “rarely” inspected the “trash rack”.  Further, the Fourth Department held that the defendant failed to establish that “the storms and...flooding were the sole and immediate cause[s] of the injur[ies] and that [defendant was] free from any contributory negligence.”  Therefore, the Fourth Department reinstated the complaint.          

Trial Court Erred in Vacating Jury’s Damages Award

In Mecca v. Buffalo Niagara Convention Center Management, (4th Dept. 2018), plaintiffs commenced the underlying action for injuries Paige Mecca allegedly sustained as a result of having a tray of dishes dropped on her by one of defendant’s employees.  After a jury trial, the jury found defendant liable and awarded damages.  Following the verdict, plaintiffs moved pursuant to CPLR §4404 to set aside the damages award for past and future pain and suffering, future lost wages and business profits and future medical expenses.  Plaintiffs also sought a new trial on these categories of damages unless defendant stipulated to an increased amount.  The lower court granted plaintiffs’ motion and granted a new trial unless defendant stipulated to an increased award. 

The Fourth Department held that the trial court abused its discretion in granting the motion and reinstated the jury’s award.  An award for personal injuries “is primarily a question for the jury…, the judgment of which is entitled to great deference based upon its evaluation of the evidence, including conflicting expert testimony.”  A jury is also free to reject an expert’s opinion “if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion.”

Despite plaintiffs’ medical evidence, the defense (led by Michael M. Chelus) set forth proof that the plaintiff had exaggerated her injuries.  Therefore, upon a review of the record the Fourth Department concluded that there was no reason “to disturb the jury’s resolution of these issues” and reinstated the jury’s damages award.

If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

Prepared by Nicholas M. Hriczko, Esq.

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2017

December 29, 2017
November 27, 2017
November 15, 2017
October 20, 2017
October 18, 2017
July 13, 2017
July 7, 2017
June 26, 2017
June 16, 2017
May 10, 2017
May 3, 2017
April 20, 2017

 

 

 

 

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December29, 2017

Summary Judgment Granted As Village Did Not Have Prior Written Notice of Defect

In Malek v Village of Depew, 2017 NY Slip Op 08998 (4th Dept Dec. 22, 2017), the plaintiff brought suit to recover damages for injuries that he sustained when his foot fell through the pavement adjacent to a storm drain that was located in defendant Village of Depew.  The trial court denied the Village's motion for summary judgment dismissing the complaint.

On appeal, the Fourth Department held that there was no dispute that the Village established that it lacked prior written notice, thus shifting the burden to the plaintiff to demonstrate that an exception to the general rule is applicable.  Such an exception exists where the municipality affirmatively created the defect through an act of negligence.  That exception, however, applies only to work by the municipality that immediately results in the existence of a dangerous condition.  Here, the plaintiff failed to raise an issue of fact because his expert opined that the dangerous condition developed over time as a result of the intake of storm water, not that the dangerous condition was the immediate result of allegedly negligent work.  The Village was therefore entitled to summary judgment dismissing the complaint.

City Denied Governmental Immunity in Lead Paint Case

In Washington v City of Rochester, 2017 NY Slip Op 09053 (4th Dept Dec. 22, 2017), the plaintiff brought suit seeking damages for injuries she sustained as a result of exposure to lead paint while residing at a residence owned by the City of Rochester.  The City moved for summary judgment on the basis of governmental immunity.  The trial court denied the motion.

When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose.  A government entity performs a purely proprietary role when its activities essentially substitute for or supplement traditionally private enterprises.  Where a municipality acts in a proprietary capacity, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties.

Here, the City failed to meet its initial burden of establishing as a matter of law that its actions were undertaken in a governmental rather than a proprietary capacity.  Ownership and care relating to buildings with tenants has traditionally been carried on through private enterprises, specifically by landlords, and thus constitutes a proprietary function when performed by a municipality.  As a result, the trial court’s denial of the City’s summary judgment motion was affirmed. 

No Abuse of Discretion in Grant of Leave to File Late Notice of Claim

In Matter of Gumkowski v Town of Tonawanda, 2017 NY Slip Op 09079 (4th Dept Dec. 22, 2017), the claimant, Kathleen Gumkowski, applied for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5).  The trial court granted the application, and the Fourth Department affirmed.

In reviewing whether to grant an application for leave to file a late notice of claim, courts consider whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality.  Absent a clear abuse of discretion, the lower court's determination will not be overturned on appeal.

Here, the claimant showed a reasonable excuse for the delay and the delay did not cause the Town substantial prejudice.

If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

Prepared by Eric W. Marriott, Esq.

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November 27, 2017

Defendant’s Motion For Summary Judgment Denied As Record Proof Did Not Establish That The Roadway Was Reasonably Safe

In Stiggins v. Town of North Dansville, (4th Dept. 2017), nonparty Clayton Benedict was operating his vehicle on a road maintained by the Town of Dansville (“Town”).  Mr. Benedict lost control of his vehicle and struck a tree.  The vehicle flipped over, which resulted in the death of Joshua Stiggins, who was a passenger in the Benedict vehicle. 

The road at issue ended at a parking lot, which was part of a public park.  Mr. Benedict lost control of his vehicle at a curve in the road just past the park gate, which was open at the time of the accident.  Mr. Benedict had consumed alcohol on the night of the accident and subsequently pleaded guilty to, among other charges, aggravated vehicular homicide and vehicular assault. 

The Supreme Court granted the Town’s motion for summary judgment.  The Fourth Department, however, reversed the trial court and denied the Town’s motion for summary judgment thereby reinstating the complaint.  The Appellate Division noted that municipalities have “a duty to maintain its roads in a reasonably safe condition in order to guard against contemplated and foreseeable risks to motorists.” This duty is not eroded “whenever [an accident] involves driver error.” 

As a result, the Fourth Department concluded that Town failed to establish as a matter of law that it was free of any negligence as it presented no evidence that the roadway where the accident occurred was reasonably safe.  Additionally, the Court noted that the trial court erred in determining that Mr. Benedict’s conduct was the sole proximate cause of the accident.  On that point, the Fourth Department held that the Town’s proof “did not establish as a matter of law that [Mr.] Benedict’s manner of driving would have been the same if the safety measures proposed by plaintiffs had been in place…” 

The Appellate Division also rejected the Town’s alternate theory of assumption of the risk in light of the fact the accident did not arise form a sporting event or an athletic activity.        

If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

Prepared byNicholas Hriczko, Esq.

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November 15, 2017

Defendants’ Alleged Negligence was Not a Proximate Cause of the Accident

In Gregory v. Cavarello, (4th Dept. 2017) a case in which Chelus, Herdzik, Speyer & Monte, P.C. represents defendant Steven Cavarello, the Fourth Department dismissed the case as against defendants National Fuel Gas Distribution Corporation, Municipal Pipe Company and the City of Buffalo. 

Plaintiff, Sarah Gregory, was struck by a vehicle operated by Cavarello as she attempted to cross the street.  The City-owned street was undergoing a construction project on the opposite side and multiple blocks away from the accident site.  As Cavarello approached the area where plaintiff was attempting to cross, the vehicle immediately in front of him abruptly turned on his turn signal and made a left-hand turn.  In order to avoid a rear-end collision, Cavarello swerved to the right into the parking lane thereby striking the plaintiff.  

Plaintiffs alleged that National Fuel, Municipal Pipe and the City of Buffalo, were negligent in failing to provide proper temporary traffic control devices.  These defendants moved for summary judgment successfully arguing that they were not a proximate cause of the accident.  The trial court held that the accident occurred within a “work zone” and denied the defendants’ motions for summary judgment. 

The Fourth Department held that the defendants met their initial burden of proof by means of Cavarello’s deposition transcript, his sworn statement to police and the accident scene photographs.  Cavarello testified at his deposition that had the vehicle in front of him not made a sudden left-hand turn he would have had no difficulty proceeding in his own lane of travel. 

Although plaintiffs argued that the temporary traffic control devices were inadequate, the Appellate Division held that even if that were the case, such negligence was not a proximate cause of the accident.  “A showing of negligence is not enough; there must also be proof that the negligence was a proximate cause of the event that produced the harm.” 

Therefore, the Fourth Department rejected plaintiffs’ argument and held that the construction work “merely furnished the condition or occasion for plaintiff being struck by a vehicle while crossing the street and was not a proximate cause of the accident.”  The Fourth Department also found plaintiffs’ expert’s conclusions and opinions speculative.  The order of the Supreme Court was reversed and the amended complaint was dismissed against the moving defendants.

If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

Prepared by Nicholas Hriczko, Esq.

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October 20, 2017

No Declaratory Judgment for Municipal Plaintiffs Against Law Firm

In County of Monroe v Clough Harbour & Assoc., LLP, 2017 N.Y. Slip Op. 07033, the municipal plaintiffs brought suit against a law firm, seeking a declaration that the defendant was obligated, under the terms of the parties' agreement, to reimburse plaintiffs for all defense costs associated with an underlying personal injury lawsuit brought against plaintiffs.  The plaintiffs brought a summary judgment motion, and the trial Court denied the motion.

On appeal, the Fourth Department affirmed, finding that the explicit language of the indemnification provision in the parties’ agreement does not violate General Obligations Law § 5-322.1 inasmuch "as it does not require [defendant] to indemnify [plaintiffs] for [their] own negligence."  Instead, the "provision is clear, obligating [defendant] to indemnify [plaintiffs] only when it is shown that damages were caused by [defendant's] own negligence." 

Further, the Fourth Department held that “declaratory judgment is a discretionary remedy,” and "the [general] rule in declaratory judgment actions [is] that on a motion to dismiss the complaint for failure to state a cause of action, the only question is whether a proper case is presented for invoking the jurisdiction of the court to make a declaratory judgment, and not whether the plaintiff is entitled to a declaration favorable to him."

Municipal Defendant Cannot Use Governmental Immunity as Defense in Tort Case

In Waterman v City of Rochester, 2017 NY Slip Op 07048, the plaintiff brought suit against the City seeking damages for his injuries after he was struck by a municipal vehicle driven by defendant David J. Bagley, II. 

The City brought a motion for summary judgment, arguing the defense of governmental immunity.  The Trial Court denied the motion, and the Fourth Department affirmed, stating, "Governmental immunity does not apply when a public employee, acting in the course of his or her employment, commits an ordinary tort that anyone else might commit—for example, when the employee is negligent in driving a [vehicle]."

If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

Prepared by Eric W. Marriott, Esq.

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October 18, 2017

County Not Liable to Decedent for Legal Advice Given to Board

In Pearce v Joint Bd. of Directors of Erie-Wyoming County Soil Conservation Dist.,  2017 NY Slip Op 06793, the plaintiff sought damages for the death of her son as the result of a drowning accident in the vicinity of a dam on Buffalo Creek in the Town of West Seneca.  The plaintiff sued both the Town of West Seneca and Erie County, as well as the Joint Board of Directors of the Erie-Wyoming County Soil Conservation District.

The Board had previously planned to install signs warning that the dam area was hazardous, but the County, which provides legal services to the Board pursuant to Soil and Water Conservation Districts Law § 9 (13), advised the Board not to install warning signs.

The plaintiff alleged that the County was negligent in "improperly advising" the Board not to install the signs, and that the County "was further negligent in an ultra vires appropriation of power assigned to" the Board and other entities.

The County moved to dismiss the suit against it for failure to state a valid cause of action, and the trial Court denied the motion.  On appeal, the Fourth Department modified the order, stating, "[A]bsent fraud or other special circumstances [not present here], an attorney is not liable to third parties for purported injuries caused by services performed on behalf of a client or advice offered to that client."  Therefore, the County, as counsel to the Board, owed no duty to the decedent.

If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

Prepared by Eric W. Marriott, Esq.

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July 13, 2017

County, City, Town Not Liable for Motor Vehicle Accident

In Full v. Monroe County Sheriff’s Dept., 2017 NY Slip Op 05557 (4th Dep’t July 7, 2017), the plaintiff sought damages for injuries sustained when he was struck by a motor vehicle.  On the day of the accident, Monroe County had sponsored an air show at Ontario Beach Park, which is owned by the City of Rochester and operated by the County.  To accommodate the vehicular traffic in the vicinity of the air show, an inter-agency task force involved in the planning of the air show temporarily designated Beach Avenue, normally a two-way street, as a one-way street in which the traffic could travel only westbound. Side streets were barricaded, and parking was banned along the length of the Beach Avenue corridor.  Just prior to the accident, Full drove along the corridor, pulled into a private driveway, exited his vehicle, and crossed the street to seek parking advice from pedestrians.  As Full re-crossed the street, he was struck by an oncoming vehicle, suffering severe brain injuries.

The County, City, and the Town of Greece moved separately for summary judgment dismissing the complaint against them, which was granted by the lower court.  On appeal, the plaintiff did not challenge the lower court's dismissal of the complaint against the Monroe County Sheriff’s Department and the Town of Greece.  The Fourth Department further noted that the Sheriff’s Department was an improper party, stating, “"[A] Sheriff's Department does not have a legal identity separate from the County . . ., and thus an action against the Sheriff's Department is, in effect, an action against the County itself'." 

The Fourth Department concluded that the creation of the Beach Avenue corridor was a governmental function, and therefore the allegedly negligent conversion of Beach Avenue into a one-way street was not actionable in the absence of a special duty to the plaintiff.  Traffic regulation is a classic example of a governmental function.

The Court additionally found that the lower court erred in determining that the plaintiff's cause of action for negligence under state law against defendants was preempted by federal law.  The alleged negligence of the defendants in sponsoring the air show, including their decision to locate the show at Ontario Beach Park and their alleged failure to keep greater distance between the purportedly distracting planes and nearby pedestrians and drivers, arose from proprietary functions and thus were "subject to the same principles of tort law as a private [party].'"  Nevertheless, the defendants were able to establish as a matter of law that any negligent operation of the air show was not a proximate cause of Full's injuries, because neither he nor the driver was proven to have been distracted by the air show.

No Summary Judgment for County in Defective Guide Rail Case

In Morris v. Ontario County, 2017 NY Slip Op 05533, (4th Dep’t July 7, 2017), the plaintiff brought suit against the County seeking damages stemming from a motor vehicle accident.  The plaintiff’s decedent was operating her vehicle on County Route 41 when the vehicle traveled off the road and hit the guide rail on Fish Creek Bridge in the Town of Victor.  The guide rail system was installed during a 2005 renovation project of County Route 41.

The lower court granted the defendants’ motion for summary judgment, but the Fourth Department reversed that decision.  The Court concluded that the County failed to meet its initial burden of establishing its entitlement to summary judgment based on qualified immunity.  In particular, the County failed to establish that the decision to change the end assembly of the guide rail from a Type I to a Type II end assembly was "the product of a deliberative decision-making process, of the type afforded immunity from judicial interference." 

The Fourth Department also rejected the County’s argument that it could not be held liable because it did not receive written notice of the dangerous condition or defect.  The plaintiffs alleged that the County affirmatively created the alleged dangerous condition or defect by, among other things, negligently changing the design plans and installing the Type II end assembly, as well as omitting an additional guide rail.  The Court noted that the prior notice requirement does not apply where a tortfeasor's negligent design or construction creates a dangerous condition or defect.

Finally, the Court concluded that there were questions of fact as to whether the County's alleged negligence with respect to the change in the end assembly was a proximate cause of the accident and, thus, neither the County nor plaintiffs were entitled to summary judgment on the issue of proximate cause.

No Redress for Town that Did Not Properly Commence Action

In Matter of Town of Cicero v Lakeshore Estates, LLC, 2017 NY Slip Op 05524 (4th Dep’t July 7, 2017), without filing or serving either a summons, a complaint, a petition, or a notice of petition, the Town of Cicero obtained and served upon Lakeshore Estates an order to show cause demanding a permanent injunction requiring that certain structures constructed by Lakeshore Estates on their property in alleged violation of the Town's zoning and building codes be removed at their own expense. The Town appealed from an order that purportedly denied the "Petition."

The Fourth Department succinctly held that because the Town never properly initiated a suit against Lakeshore Estates, the Court lacked jurisdiction to entertain the Town’s request.  While courts are directed under CPLR §103(c) to convert a civil judicial proceeding not brought in the proper form into one which would be in proper form, rather than to grant a dismissal, the Court found that “more than improper form is involved here.” The Court held that converting the order to show cause and supporting papers into a summons and complaint in these circumstances would effectively permit the Town to seek an injunction by motion, a result at odds with the well-established principle that the pendency of an action is an indispensable prerequisite to the granting of an injunction.  The “Petition” was, therefore, dismissed.

If you have questions about these cases or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

 

Prepared by Eric W. Marriott, Esq.

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July 7, 2017

Plaintiff Wins on Motion to Access Emergency 911 Records

In Abate v. County of Erie, 2017 NY Slip Op 05351 (4th Dep’t June 30, 2017), an unusually intense winter storm stranded plaintiff’s decedent inside his vehicle.  The decedent called 911 at 3:50 a.m. to report his predicament.  The dispatcher instructed the decedent to remain in his vehicle, and assured him that help would be forthcoming.  Help did not arrive, however, until 1:37 a.m. on the following day.  By that time, the decedent had passed away, still stranded inside his vehicle. 

The plaintiff’s complaint alleged that the decedent's death resulted from defendants' negligent failure to rescue him during the storm.  According to the plaintiff, the defendants breached a special duty to the decedent that attached as a result of his communications with the 911 service.

In the course of discovery, the plaintiff sought disclosure of the 911 records pertaining to the decedent’s emergency call.  The plaintiff also sought disclosure of 911 records pertaining to other stranded persons at eight specified locations in the decedent's vicinity.  The defendants voluntarily disclosed the decedent's 911 records, but they refused to disclose any 911 records pertaining to other stranded persons, arguing principally that the 911 records of non-parties were categorically exempt from disclosure by County Law § 308(4), which states that records of calls made to a municipality's emergency 911 system “shall not” be made available to any entity or person other than government agencies and certain medical personnel.

The Fourth Department, upon examination of the legislative history of County Law §308(4), did not find anything suggesting that the intent of that provision was to preclude civil litigants from obtaining emergency records.  The Court therefore concluded that the 911 records were within the scope of discovery authorized by CPLR article 31, and granted the plaintiff’s motion to compel the defendants to provide those records.

Claimant Granted Leave to Add Derivative Claim against County

In Darrin v County of Cattaraugus, 2017 NY Slip Op 05352, (4th Dep’t June 30, 2017), the trial court denied the claimant’s motion for leave to file a late notice of claim pursuant to General Municipal Law §50-e(5).  The claimant was attempting to add a derivative claim for her husband’s loss of consortium. 

The County argued it did not receive actual knowledge of the facts constituting the husband's claim because it did not receive knowledge of the injuries or damages claimed by the husband.  The Fourth Department reasoned that the claim was predicated on the exact same facts as the original claim, and noted that courts have generally allowed for leave to add a derivative claim for loss of consortium because of this. 

The Court stated, “…we discern no rational basis upon which the court could have granted the application with respect to the wife but not the husband.”

Question of Fact Exists As To Whether Officer Acted With Reckless Disregard

In Perkins v. City of Buffalo, 2017 NY Slip Op 05360 (4th Dep’t June 30, 2017), the plaintiff sought damages for injuries sustained when her vehicle collided with a police vehicle.  At the time of the accident, the officer was responding to an emergency call without his emergency lights or siren activated, and he ran a red light at an intersection.  As the plaintiff entered the intersection with a green light, her vehicle struck the rear end of the police vehicle. 

The Plaintiff moved for summary judgment on the issues of negligence and proximate cause, and the defendants cross-moved for summary judgment dismissing the complaint because the officer did not act with reckless disregard for the safety of others within the meaning of Vehicle and Traffic Law §1104(a) and (c).  Those provisions hold an authorized emergency vehicle while involved in an emergency operation to a “reckless disregard” standard of care.

The Fourth Department agreed with the defendants that the reckless disregard standard should apply, but held both motions should have been denied, stating that a question of fact existed as to whether the officer “intentionally [performed an] act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow' and [did] so with conscious indifference to the outcome.”

Plaintiff’s Civil Rights Claim against City Will Move Forward

In Hall v. City of Buffalo, 2017 NY Slip Op 05361 (4th Dep’t June 30, 2017), the plaintiff was with his friend William Sager at a bar when an employee of the bar pushed Sager down a flight of stairs, causing injuries that ultimately resulted in Sager's death.  When the plaintiff went to check on Sager, he was told to leave the premises by defendant Robert Eloff, an off-duty police officer who was providing security at the bar.  The plaintiff moved onto a public sidewalk, but Eloff nonetheless arrested him and made false statements to other officers that led to plaintiff being charged with criminal trespass in the third degree. 

Among other things, the plaintiff sued the City of Buffalo and bar owner on the theory that police officers had conspired with the bar owner to have the plaintiff arrested without probable cause in order to suppress evidence of what had happened to Sager.  The defendants moved to dismiss the complaint for failure to state a valid cause of action.

 The Fourth Department rejected the defendants' contention that the complaint failed to state a cause of action against them for false arrest in violation of 42 USC § 1983.  In doing so, the Court rejected the defendants' argument that the plaintiff's allegations of conspiracy were merely conclusory. 

If you have questions about these cases or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

 

Prepared by Eric W. Marriott, Esq.

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June 26, 2017

Language of Settlement Agreement Key in Subsequent Action

In Marinaccio v. Town of Clarence, 2017 N.Y. Slip Op. 04962 (4th Dep’t June 16, 2017), the plaintiff and Town entered into a settlement agreement, pursuant to which the Town would pay the plaintiff $1,200,000, and the plaintiff would deed to the Town a 30–foot strip of land along the border of his property.  The Town would then construct a drainage ditch for the purpose of diverting storm water from the plaintiff’s property into the drainage ditch.  The plaintiff transferred the land to the Town, and the Town constructed the ditch.  However, the ditch was not sufficient to drain storm water from the plaintiff’s property.  The plaintiff brought suit for breach of contract, negligence, and nuisance.

As part of the settlement agreement, the plaintiff signed a release that stated the plaintiff “irrevocably and unconditionally remises, releases, and forever discharges ... [the Town] ... of and from all, and all manner of action and actions, cause and causes of action, suits, ... damages known or unknown, ... [and] claims and demands whatsoever, in law or in equity, ... relating to past, present or future damages related to the ongoing intrusion of storm water to [plaintiff's property], including all claims sounding in negligence, trespass, [and] nuisance ... [Plaintiff] expressly releases and waives any and all claims of economic damages of any sort ... with respect to [his property],”

The Fourth Department held that as to the breach of contract claim, the release found in the settlement agreement did not “evince an intention to encompass the distinct contractual obligations defendant undertook upon which plaintiff's breach of contract causes of action [were] premised,” i.e., the breach of the settlement agreement itself.  However, the Court also found that the nuisance and negligence claims were, in fact, encompassed by the release, and that those counts of the plaintiff’s complaint must be dismissed.

Administration of Lead Hazard Control Project by City Deemed Proprietary Function

In Moore v. Del-Rich Properties, Inc., 2017 N.Y. Slip Op. 04975 (4th Dep’t June 16, 2017), the plaintiff sought damages for injuries her grandson sustained as a result of exposure to lead paint while he was visiting and then residing with plaintiff in an apartment owned by defendant Del–Rich Properties.  After it was discovered that there were dangerous levels of lead paint throughout the structure, Del–Rich applied to enroll in the Lead Hazard Control Project, a federally-funded grant program designed to address the high rate of lead poisoning in and around defendant City of Buffalo.  Employees of defendant City of Buffalo Urban Renewal Agency (BURA) helped manage the Project, and properties enrolled in the Project would receive lead abatement work performed by contractors chosen by the Project.

The lead abatement work was performed at the plaintiff's apartment around February 2000.  Nevertheless, when the property was retested in April 2001, dangerous levels of lead were again detected. The plaintiff brought suit alleging that the City and BURA were liable for the injuries sustained by her grandson as a result of the negligent lead abatement work performed at the residence as part of the Lead Hazard Control Project.

The City moved for summary judgment dismissing the complaint against it, contending that it was not negligent as a matter of law; that the plaintiff could not establish liability against the City, a government entity, because the plaintiff could not establish a special relationship with the City; and that the City was immune from suit because its actions were discretionary.

When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. If the municipality's actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties. 

The Court held that the defendants were acting in a proprietary capacity as a matter of law in their management of the Lead Hazard Control Project.  The defendants, through the jointly-managed Project, solicited homeowners to apply for enrollment in the Project; determined whether those applicants were qualified for the Project; performed preabatement testing of the property; identified the areas in need of abatement; prepared a list of specifications for each individual remediation project; prepared a bid package; solicited bids for work at the applicant's residence; chose the particular contractor to perform the abatement work; typed up the contract between the homeowner and the contractor; approved that contract after it was signed by the homeowner and the contractor at City Hall; issued a permit for the remediation work; arranged for the relocation of the occupants during the remediation work; established a time schedule for the remediation work; inspected the remediation work “as it was being performed”; tested the property after the abatement work was completed; and obtained a written approval of the work from the homeowner.  The Court found that all of these actions were proprietary functions, in that the City and BURA were essentially a substitute for or supplement to traditionally private enterprises.  Once the defendants assumed the burden of the project, they also assumed “the burdens incident thereto.”

Party Not Required to Satisfy Municipal Notice Requirements in Inverse Condemnation Claim

In County of Jefferson v Onondaga Dev., LLC, 2017 NY Slip Op 04964 (4th Dep’t June 16, 2017), the County entered into a contract with the defendant whereby the County would acquire from the defendant property needed for a road construction project.  The contract provided that the defendant would convey to the County a portion of its property on which a gas station and a trucking depot were located, and the County would assemble and convey at closing to the defendant the abandoned road bed of Fisher Road and two parcels contiguous to the abandoned road.  Upon execution of the contract, the County was to pay defendant a deposit of $200,000, which the parties agreed was the expected cost of demolishing the gas station and trucking depot and remediating any environmental concerns with the parcel.  At closing, the County was to deliver the remaining portion of the purchase price as well as “any other documents required by this contract to be delivered,” and the defendant was to deliver a deed for the parcel and two temporary easements allowing the County to enter the defendant's property adjacent to the parcel while the County was building the new road.  Although the contract required that the defendant demolish the buildings and remediate the parcel by closing, the parties entered into a license agreement granting defendant use of the parcel for the operation of the gas station until January 2008.  The closing of title pursuant to the contract was to occur on the first day of October 2007 and, in the event that the closing did not occur before the first day of November 2007, there was a liquidated damages provision.

On October 30, 2007, the defendant conveyed the parcel to the County and the County paid the remaining portion of the purchase price.  However, the County did not deliver title to the assembled property, and the defendant did not provide the County with the required easements.  Although the defendant demolished the trucking depot, the defendant failed to demolish the gas station building or remediate the property after the license agreement expired.

In 2011, the County brought suit alleging a multitude of causes of action, including inverse condemnation and trespass. The Fourth Department found that the lower court should not have granted summary judgment to the County on those claims.  The County did not specifically address the claims in their affidavits or evidence submitted in support of the motion and thus did not establish as a matter of law either that it did not encroach upon the defendant's property or that any encroachment was permissible.

Nevertheless, in their reply papers to the defendant’s cross-motion, the County contended that the defendant’s counterclaim was invalid based on the defendant's failure to comply with the notice of claim requirements of General Municipal Law §§ 50-e and 50-i and County Law § 52.  The Court concluded that the County's reliance on those statutes was misplaced, stating, “A cause of action sounding in inverse condemnation is not founded in tort, and, therefore, compliance with the notice of claim provisions of General Municipal Law § 50-e [and County Law § 52] is unnecessary.” 

Trial Court Abused Discretion in Granting Leave to Serve Late Notice of Claim

In Tate v State Univ. Const. Fund, 2017 NY Slip Op 05009 (4th Dep’t June 16, 2017), the plaintiff was injured in a work-related accident at a construction site.   The trial court issued an order granting the plaintiff leave to serve a late notice of claim under General Municipal Law §50-e, and the defendant appealed from that order.  The Fourth Department found that the plaintiff failed to demonstrate a reasonable excuse for his failure to serve the notice of claim within 90 days of the claim's accrual or within a reasonable time thereafter. 

The plaintiff’s mistaken belief that workers' compensation was his sole remedy did not constitute a reasonable excuse.  Furthermore, given that the plaintiff was diagnosed with a torn right meniscus in August 2015, his assertion that he did not know the extent of his injuries does not constitute a reasonable excuse for his failure to serve or seek permission to serve a notice of claim until March 2016.

Moreover, the plaintiff was unable to show that the defendant had actual knowledge of the essential facts constituting the claim within the first 90 days after the accident or a reasonable time.  The plaintiff submitted an accident report prepared by a third party, and this was insufficient to prove the defendant had actual knowledge of the essential facts constituting the claim inasmuch as the report described the accident and the plaintiff’s injuries in only vague and general terms that differed from the detail set forth in the proposed notice of claim, and the accident report drew no connection between the accident and any liability on the part of the defendant.

Finally, the Court found that the plaintiff failed to sustain his burden of showing that a late notice of claim would not substantially prejudice respondent's interests.  The Court found the defendant affirmatively showed that it would be prejudiced, leading to the conclusion that the plaintiff should not have been granted leave.

If you have any questions about any of these cases or the issues presented within, do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

Prepared by Eric W. Marriott, Esq.

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June 16, 2017

In Berner v. Town of Cheektowaga, (4th Dept. 2017 WL 2491014), a case handled by Kevin Loftus and Nicholas Hriczko of our office, plaintiff commenced a New York Labor Law cause of action alleging that he sustained injuries after falling from a ladder while repairing a vacant home.  On appeal, the Fourth Department agreed with the Town of Cheektowaga that it was neither an owner nor general contractor for purposes of Labor Law liability.  The Appellate Division also agreed with the Town’s argument that even if it was found to be an owner of the vacant property, it was entitled to the single-family exemption under the Labor Law.  The Fourth Department held that the Town met its prima facie burden by demonstrating that it did not have any employees on the jobsite at the time of the accident, the plaintiff’s employer directed the plaintiff’s work and the Town lacked the authority to direct the method and manner of the plaintiff’s work.  As a result, the plaintiff’s complaint was dismissed in its entirety.   

In Arrahim v. City of Buffalo, (4th Dept. 2017 WL 2492058), plaintiff commenced an action for injuries he allegedly sustained after his vehicle collided with a snowplow owned by the City of Buffalo.  Defendants argued that the reckless disregard standard of care, as opposed to ordinary negligence, applied to the action pursuant to Vehicle and Traffic Law §1103(b).  A triable issue of fact precluded summary judgment as to whether the operator of the snowplow was in fact “plowing” or “salting” the roadway at the time of the accident.  The Fourth Department went on to hold that the defendants failed to demonstrate, as a matter of law, that the operator of the snowplow “was working his run or beat at the time of the accident.”  Section 1103(b) is inapplicable if the operator was merely traveling from one route to another.    

In Johnson v. State of New York, (4th Dept. 2017 WL 2491310), the claimant sought monetary damages for injuries she sustained when her tractor-trailer rolled over on a State highway.  The claimant alleged that the State was negligent in failing to install “rumble strips” on the highway shoulder as well as failing to repave the shoulder, thereby causing a depression.  The Court of Claims concluded that claimant’s speed was a significant contributing factor and apportioned 30% liability against the State and 70% against the claimant.  “When the State or one of its governmental subdivisions undertakes to provide a paved strip or shoulder alongside a roadway, it must maintain the shoulder in a reasonably safe condition for foreseeable uses.”  Nonetheless, the Fourth Department affirmed the apportionment of liability.   

In Clauss v. Village of Williamsville, (4th Dept. 2017 WL 2490962), plaintiff commenced an action for injuries she sustained after allegedly tripping on a public sidewalk.  “Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner.  That rule does not apply, however, if there is an ordinance or municipal charter that specifically imposes a duty on the abutting landowner to maintain and repair the public sidewalk and provides that a breach of that duty will result in liability for injuries to the users of the sidewalk; the sidewalk was constructed in a special manner for the use of the abutting landowner; the abutting landowner affirmatively created the defect; or the abutting landowner negligently constructed or repaired the sidewalk.” 

The Village of Williamsville contended that the trial court erred in denying its motion for summary judgment because any defect in the sidewalk was trivial as a matter of law.  “In determining whether a defect is trivial as a matter of law, a court must consider ‘all the facts and circumstances presented” which include the defect’s dimensions, appearance and elevation at the time of the plaintiff’s injury.  In support, the Village submitted an affidavit of an employee who took photographs of the alleged defect who opined the defect was one-half inch or less.  The photographs, however, were only black-and-white.  Additionally, the Village submitted excerpts from the deposition testimony of employees of Jones Lang, a codefendant, who reviewed the color photographs of the defect and testified that it “should be repaired because it could be a tripping hazard.”  Therefore, the Fourth Department affirmed the trial court’s denial of summary judgment in favor of the Village. 

In Frongetta v. City of Rochester, (4th Dept. 017 WL 2491659), plaintiff commenced an action for injuries she allegedly sustained when she tripped and fell on uneven bricks near a drainage grate in a public market.  In her Notice of Claim, the plaintiff mistakenly identified the name of the street where the accident occurred which was later corrected in the amended complaint.  The Fourth Department held the mistake was not made in bad faith and the defendant failed to establish that it was prejudiced by the error.  Additionally, there was nothing in the record indicating that the defendant instructed anyone to investigate the scene of the accident, either before or after the correct location of the accident was revealed.     

In Morris v. City of Buffalo, (4th Dept. 2017 WL 2491529), the plaintiff alleged his civil rights were violated pursuant to 42 U.S.C. §1983 for false arrest and malicious prosecution.  The Fourth Department affirmed the trial court’s dismissal of the complaint.  “An arresting officer is immune from a suit for damages if he or she had arguable probable cause to arrest a plaintiff.  Arguable probable cause exists where (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.”  During a suppression hearing, the arresting officer testified that he observed the plaintiff provide another individual a cigarette in exchange for money and two cartons of unstamped cigarettes were found in the plaintiff’s possession.  Therefore, this established, as a matter of law, that it was objectively reasonable to arrest the plaintiff for a violation of Tax Law §1814(b) (possession of unstamped cigarettes for the purpose of sale).  

In Scheidelman v. State of New York, (4th Dept. 2017 WL 2491358), the plaintiff commenced an against the State of New York alleging he was unjustly imprisoned pursuant Court of Claims Act § 8-b.  The Court of Claims dismissed the complaint and this appeal ensued.  Prior to the instant appeal, the claimant was convicted of sexual abuse in the first degree for which he appealed.  On appeal of the original conviction, the Fourth Department determined the verdict comported with the weight of the evidence, but reversed due to prosecutorial misconduct and granted a new trial.  Upon remittitur to County Court, the claimant entered into a plea agreement whereby he pleaded guilty to one count of endangering the welfare of a child, a misdemeanor.    

Pursuant to Court of Claims Act §8-b, a defendant can recover damages for unjust imprisonment when the “judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not
guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the [judgment] of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of [certain enumerated grounds, including, as relevant here,] paragraph…(b)…of subdivision one of section 440.10 of the criminal procedure law.”  Moreover, Criminal Procedure Law §440.10 permits vacatur of a judgment if “[t]he judgment was procured by duress, misrepresentation or fraud on the part of…a prosecutor or a person acting for or in behalf of a…prosecutor.”   

Essentially, the “linchpin” of success as to a claim brought pursuant to Court of Claims Act §8-b is to demonstrate one’s innocence.  Therefore, “if it appears that the claimant will not be able either to establish his innocence or to demonstrate
that conviction was not the result of his own conduct, the claim must be dismissed.”  Conversely, “[t]o defeat a motion to dismiss, the statute places the burden on the claimant to provide the requisite documentary evidence establishing that the judgment of conviction was reversed and the indictment was dismissed pursuant to
one of the grounds listed in section 8-b (3) (b) of the Court of Claims Act.” 

Here, after a new trial was granted, the claimant pleaded guilty to a second charge in satisfaction of the underlying indictment.  The claimant merely pleaded to a lesser charge involving the same conduct that gave rise to the initial conviction of sexual abuse.  Therefore, the Fourth Department concluded that “the claim does not satisfy the
pleading requirements of Court of Claims Act § 8-b (3) (b), because the evidence submitted in conjunction with the claim establishes that the dismissal of the indictment was based on the plea to the misdemeanor, and was not based on any of the grounds set forth in the statute.”  The Appellate Division also noted that although the original conviction was reversed due to prosecutorial misconduct, “that misconduct does not rise to the level of prosecutorial misrepresentation or fraud, as required by section 8-b (3) (b) and the applicable subdivisions of CPL 440.10.” 

Prepared by Nicholas Hriczko, Esq.

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May 10, 2017

Plaintiff Raises Question of Fact on Issue of Whether City was Negligent in Affirmatively Creating a Dangerous Condition

In Ahern v. City of Syracuse, (4th Dept. 2017), the plaintiff commenced an action against the City of Syracuse for injuries he allegedly sustained after he tripped and fell on a broken curb.  The Fourth Department acknowledged that the defendant met its initial burden by demonstrating that it did not receive prior written notice of the allegedly dangerous or defective condition.  However, the plaintiff raised an issue of fact as to whether the City “affirmatively created the defect through an act of negligence…that immediately result[ed] in the existence of a dangerous condition.”  In opposition, the plaintiff submitted evidence that he was familiar with the walk and curb area where the City was performing excavation work because he had parked his vehicle on that street for nearly 10 years.  The plaintiff testified that after the fencing was removed from the construction area he noticed that the curb was damaged.  Additionally, the Fourth Department rejected the City’s argument that the alleged defect was open and obvious.  The Appellate Division noted that regardless of whether a dangerous condition is open and obvious it does not negate “the duty to maintain premises in a reasonably safe condition, but, rather, bears only on the injured person’s comparative fault.”    

Prepared by Nicholas Hriczko, Esq.

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May 3, 2017

Issue of Fact Precludes “Reckless Disregard” Standard of Care in Negligence Action

In Martinez v. City of Buffalo, 2017 WL 1527026 (4th Dept. 2017), the plaintiff commenced an action for injuries he allegedly sustained after being struck by a snowplow.  The operator of the snowplow, Thomas Alan Gill, was employed by the City of Buffalo.  While attempting to make a U-turn with the snowplow, defendant Gill proceeded into the plaintiff’s lane of travel and collided with plaintiff’s vehicle.  The trial court granted plaintiff’s motion with respect to serious injury, denied plaintiff’s motion on the issue of negligence but determined, sua sponte, that the “reckless disregard for the safety of others” standard contained within New York’s Vehicle and Traffic Law §1103(b) applied to the operation of the snowplow as opposed to ordinary negligence. 

The Fourth Department opined that a trial court is empowered to search the record and may even grant summary judgment to a non-moving party.  The Court, however, held that on these facts summary judgment as to the applicability of the “reckless disregard for the safety of others” standard was precluded as issues of fact existed as to whether the snowplow was a vehicle “actually engaged in work on a highway.”  Due to conflicting testimony of the parties as to whether defendant Gill was engaged in any form of snow or ice removal, the Court concluded it could not be determined, as a matter of law, that the snowplow was “actually engaged in work on a highway” at the time of the accident.  Therefore, the Appellate Division vacated the provision of the trial court’s order which determined the “reckless disregard” standard applied.

Derivative Cause of Action Dismissed Against Village as Claimant Failed to Allege it in the Notice of Claim 

In Snow v Povoski, et al., 2017 WL 1527099 (4th Dept. 2017), the infant plaintiff alleged to have sustained injuries after being struck by a motor vehicle near the area where excavation work was being performed by defendant Village of Addison.  After watching the excavation work, the infant was struck as he attempted to cross the street after emerging from behind a pile of dirt placed partially in the street.  The Village moved for summary judgment seeking dismissal of the complaint but it was denied by the trial court. 

The Fourth Department noted that the Village demonstrated its entitlement to summary judgment dismissing the plaintiff’s second cause of action due to the fact the derivative claim was not pled in the notice of claim.  A notice of claim must set forth the nature of the claim as well as the alleged damages and injuries.  The Fourth Department held that a claimant “need not state a precise cause of action in haec verba in a notice of claim, but a claimant may not raise in the complaint causes of action or legal theories that were not directly or indirectly mentioned in the notice of claim and that change the nature of the earlier claim or assert a new one.”  Therefore, the plaintiff was foreclosed from asserting a derivative claim against the Village.

Prepared by Nicholas Hriczko, Esq.

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April 20, 2017

New Court of Appeals Ruling on Notice of Claim Extensions

The Court of Appeals recently ruled in Newcomb v. Middle County Central School District, 28 N.Y.3d 455, 45 N.Y.S.3d 895 (Dec. 22, 2016), that in order to receive an extension of time to file a notice of claim under General Municipal Law § 50–e(5), the plaintiff must make an initial showing that the public corporation will not be substantially prejudiced and the public corporation must then rebut that showing with particularized evidence. 

Prior to the Court of Appeals’ ruling in Newcomb, there was a split in Appellate Division authority regarding which party has the burden of proof to demonstrate that a late notice of claim substantially prejudices the public corporation. While there have been decisions in all four Departments that placed the burden on the plaintiff to show a lack of substantial prejudice, there are also decisions in all four Departments that either place the burden on the public corporation or shift the burden to the corporation after the petitioner has made an initial showing of a lack of prejudice.

The Fourth Department had previously ruled in Baehre v. County of Erie, 94 A.D.2d 943, 943, 464 N.Y.S.2d 69 (4th Dept.1983), that the plaintiff was required to make an initial showing that the municipality was not prejudiced by the extension.  Most recently, however, the Fourth Department ruled in Casale v. Liverpool Cent. Sch. Dist., 99 A.D.3d 1246, 951 N.Y.S.2d 439 (4th Dept.2012), that the burden was on the public corporation to make a “particularized or persuasive showing that the delay caused [it] substantial prejudice.” Id. at 1247. The other three Departments had all most recently ruled that the burden was on the plaintiff.

Significantly, the Court of Appeals unequivocally stated that an attorney affirmation is not sufficient proof to rebut a plaintiff’s initial showing that the municipality will not be burdened.  The Court stated there must be a “particularized evidentiary showing that the corporation will be substantially prejudiced if the late notice is allowed.” Newcomb at 467.  For public corporations within the Fourth Department, this ruling is more beneficial than the standard the Fourth Department applied in Casale, as the plaintiff must now make the initial showing of no prejudice.  Nevertheless, public corporations must now ensure they meet the “particularized evidentiary showing” standard that is required to rebut the plaintiff’s initial showing, or an extension of time will be granted for the plaintiff to file a notice of claim.

Fourth Department Rulings Following Newcomb

The Fourth Department recently ruled in Diegelman v. City of Buffalo, 2017 NY Slip Op 02316 (Mar. 24, 2017).  In Deigelman, the plaintiff was a police officer who brought suit against the City of Buffalo alleging he sustained damages from exposure to asbestos while an employee of the City. In determining whether to grant claimants' application for an extension of time to file a notice of claim, the Court concluded that the trial court's exercise of discretion in granting their application was appropriate. Although respondents did not obtain knowledge of the facts underlying the claim until approximately nine months after the expiration of the 90-day period, the Court concluded that under the circumstances of this case that this was a reasonable time, particularly in light of the fact that there was no subsequent change in the condition of the premises which might hinder the investigation or defense of the action.

Quoting Newcomb, the Fourth Department further decided that the claimants made a sufficient showing that the late notice would not substantially prejudice the City, and the City failed to "respond with a particularized evidentiary showing that [they would] be substantially prejudiced if the late notice [was] allowed." Newcomb, 28 NY3d at 467.

Additionally, in Brege v. Town of Tonawanda, 2017 NY Slip Op 02562 (Mar. 31, 2017), the Fourth Department  concluded that the trial court abused its discretion when it denied the plaintiff’s application to deem his proposed notice of claim timely served nunc pro tunc, or in the alternative, for leave to serve a late notice of claim for his claims for, inter alia, false arrest, false imprisonment and malicious prosecution, based solely on plaintiff's failure to provide a reasonable excuse for the delay.

The Court stated that "a [plaintiff's] failure to tender a reasonable excuse is not fatal where... actual notice was had and there is no compelling showing of prejudice to [defendant]" Brege, quoting Casale v Liverpool Cent. Sch. Dist., 99 AD3d 1246, 1246, 951 N.Y.S.2d 439.  Here, the defendant had actual knowledge of the essential facts underlying those claims within the 90-day period.  The Court, citing Newcomb, further determined that the plaintiff met his initial burden of showing that the late notice would not substantially prejudice defendant and, in opposition, the defendant failed to make a "particularized showing" of substantial prejudice caused by the late notice with respect to all but one of his claims.

The Fourth Department decided a third case relating to notice of claims in Kennedy v. Oswego City School District, 2017 NY Slip Op 02561 (Mar. 31, 2017). The Fourth Department found that the trial court did not err in denying the plaintiff-appellant’s application for leave to serve a late notice of claim against a school district, as he failed to show that the district had actual knowledge of the essential facts constituting the claim within 90 days of its accrual.  Furthermore, even if an agent of the district timely received an accident report, it was insufficient to provide the district actual knowledge of the essential facts constituting the claim.

Additionally, the Court held that even if the plaintiff-appellant was initially unaware of the severity of his injuries, he did not offer a reasonable excuse for not seeking leave to serve a late notice of claim until nearly seven months after his surgery, and, citing Newcomb, the Court determined that he failed to meet his burden to show the late notice would not substantially prejudice the district's ability to investigate and defend against the claim.

Additional Municipal Law Cases Recently Decided

 The Fourth Department additionally ruled on two municipal law cases: Fancett v City of Syracuse, 2017 NY Slip Op 02572 (Mar. 31, 2017) and Peelle v Town of Irondequoit, 2017 NY Slip Op 02542 (Mar. 31, 2017).

In Fancett, the Court found that the defendant failed to introduce sufficient evidence to prove the precise location of a debris basin, which injured the plaintiff.  The Court held that a metes and bounds description of the nearby streets, a survey map, or any instruments of conveyance establishing the boundaries of the City streets would have been sufficient evidence.

In Peelle, the plaintiffs alleged causes of action for, inter alia, negligence, trespass, nuisance, inverse condemnation, and constitutional takings.  The Court found that the inverse condemnation and constitutional takings causes of action had a single accrual date, contrary to the implication of the trial court in its decision.  The Fourth Department further held that the trial court properly limited plaintiffs' recovery of monetary damages for trespass and nuisance to those incurred within one year and 90 days prior to the commencement of the action, applying the continuous wrong doctrine properly.

If you have any questions about any of these cases or the issues presented within, do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

Prepared by Eric W. Marriott, Esq.

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