Municipal Law Update
May 16, 2018

Claimant Denied Partial Summary Judgment on his Labor Law § 240(1) Claim

 

In Weitzel v. State of New York, (4th Dept. 2018), claimant sought recovery for injuries he sustained after falling while sandblasting from the Route 179 overpass of the New York State Thruway.  In order to complete the work, a truck was parked underneath the overpass which was equipped with wings that formed a platform.  Aluminum scaffolding was then erected on the wings of the truck but the scaffolding had no guardrails.  The claimant was provided with a safety harness and a six-foot lanyard.  While working, the claimant fell 15 feet to the pavement sustaining injuries.  At the time of his fall, however, his safety harness was not tied off.  

   

Claimant moved for partial summary judgment on his Labor Law §240(1) claim, but the motion was denied.  A defendant can overcome a claimant’s entitlement to summary judgment “by raising an issue of fact whether the claimant’s own conduct was the sole proximate cause of the accident.”

 

The Fourth Department held that the claimant failed to meet his initial burden as his own evidentiary submissions created an issue of fact as to whether his conduct was the sole proximate cause of the accident.  Despite claimant’s reliance on Bland v. Manocherin, 66 N.Y.2d 452 (1985), that decision did not require the presence of guardrails on scaffolding when there was other adequate safety device made available.  The claimant testified that he was provided with a safety harness and a six-foot lanyard and that he could have tied it off to the cross-bracing prior to his fall.  Therefore, based upon claimant’s own testimony it was possible that a trier of fact could conclude that the safety harness was an adequate safety device as required by the statute.  As a result, partial summary judgment in favor of the claimant was properly denied. 

 

Municipality Acting Within its Governmental Capacity Entitled to Dismissal of Complaint

 

In Preaster v. City of Syracuse, (4th Dept. 2018), the Fourth Department affirmed the trial court’s dismissal of plaintiffs second amended complaint.  Plaintiffs sought recovery for damage caused by a fire which occurred on their property.  The allegations against the City of Syracuse sounded in an alleged failure to repair a fire hydrant near the property which increased their overall damages caused by the fire.  

 

When a negligence claim is asserted against a municipality, a court must determine if the municipality was engaged in a propriety function or a governmental capacity.  “A municipality performs a purely proprietary role when its activities essentially substitute for or supplement traditionally private enterprises.”  When a municipality engages in conduct undertaken for the protection and safety of the public pursuant to its police powers, then they are acting in a governmental capacity. 

In this case, the Fourth Department held that the alleged negligence against the City of Syracuse arose from the municipality’s efforts to protect the public safety.  Furthermore, the Appellate Division held that the repairs to fire hydrants are made for the general public and not for a particular class of persons. 

 

The Fourth Department also rejected plaintiffs’ argument that the City of Syracuse maintained a special relationship with them.  In order to establish this exception to the general rule, the plaintiffs were required to demonstrate “an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who is injured.”  Plaintiffs failed to submit any proof that such a  special relationship existed and therefore the Fourth Department affirmed the trial court’s dismissal of the second amended complaint. 

 

Appellate Division Dismisses Article 78 Proceeding as Time-Barred

 

In the matter of Woodward v. Town of Groveland, (4th Dept. 2018), the petitioners sought permission to build an addition on their home and applied for a variance from the Town Zoning Board.  Following a public hearing, the Zoning Board of Appeals denied their application.  Subsequently, the petitioners modified their plans for the addition and applied for a front setback variance, which was again denied by the Zoning Board of Appeals.  After that denial, the petitioners filed an Article 78 proceeding challenging the Zoning Board’s decision.  The Supreme Court remitted the matter back to the Zoning Board of Appeals for reconsideration because it lacked sufficient information as to allow the trial court to determine whether the ultimate conclusion was supported by a rational basis. 

 

On remittal, the Zoning Board of Appeals held a work session and then issued a written decision which was filed with the Town Clerk.  Ultimately, the Appellate Division affirmed the trial court’s dismissal of the amended petition as time-barred.  The thirty-day statute of limitations relative to the Article 78 proceeding began to run on April 12, 2016 when the Zoning Board of Appeals’ decision was filed in the Town Clerk’s Office.  Therefore, the statute of limitations expired prior to the petitioners commencing the proceeding.  The Fourth Department rejected the petitioners’ contention that the statute of limitations should have begun to run on April 18, 2016 when the hearing minutes were filed with the Town Clerk. 

 

Municipality Failed to Meet its Burden of Proof Entitling it to Summary Judgment

 

In Brady v. City of North Tonawanda, (4th Dept. 2018), the trial court granted the City of North Tonawanda’s motion for summary judgment dismissing the complaint.  On appeal, the Fourth Department reversed the trial court’s granting of summary judgment and reinstated the amended complaint against the City of North Tonawanda (hereinafter referred to as “City”). 

 

The plaintiffs were injured when the codefendant, Anthony Regalla, was intoxicated and drove his vehicle up a paved driveway which connected the street to a park path where the plaintiffs were walking their dogs.  The Fourth Department noted that the City had a duty to maintain its roads in a reasonably safe condition.  Additionally, the Fourth Department held that plaintiffs’ cause of action against the City also implicated its duty to maintain its park and playground facility in a reasonably safe condition.  Therefore, the Fourth Department rejected the City’s contention that it was immune from liability since plaintiffs’ claims arose from its performance of a governmental function.  “It is well-settled that regardless of whether or not it is a source of income the operation of a public park by a municipality is a quasi-private or corporate and not a governmental function.”  Parenthetically, “a municipality may not ignore the foreseeable dangers [it created], continue to extend an invitation to the public to use the area and not be held accountable for resultant injuries.”  The City’s maintenance of the intersection at issue was also a proprietary function. 

 

In in their amended complaint, the plaintiffs alleged that the City was negligent by creating the driveway access to the park without also installing some type of barricade.  In its motion papers, the City never denied or disputed that it paved the driveway during its development of the park.  Rather, the City argued that the plaintiff offered no evidence that it failed to adhere to the applicable design standards.

 

The Fourth Department noted that “a party does not carry its burden in moving for summary judgment by pointing to gaps in opponent’s proof.”  As such, the City failed to establish as a matter of law that it owed no duty to warn “of the foreseeable danger created by this driveway access.”   

 

Additionally, the Fourth Department determined that the trial court erred in relying on the codefendant’s deposition testimony that he did not intentionally turn his vehicle into the driveway access area.  Rather, defendant Regalla had no coherent memory of the incident during his deposition.  Regalla testified that he did not know where the street ended and did not know that he had already made his way to the end of the road at the time of the accident.  Therefore, summary judgment should have been denied in favor of the City. 

 

County Employee Not Entitled to Defense and Indemnification

 

In Dunn v. County of Niagara, (4th Dept. 2018), defendant Russel Jackman was a coroner employed by the County of Niagara.  On April 13, 2012, he responded to a fatal accident involving the plaintiffs’ son.  Mr. Jackman absconded with the decedent’s brain matter without plaintiffs ‘consent.  Mr. Jackman turned the brain matter over to defendant Vincent Salerno, who was the Fire Chief of the Cambria Volunteer Fire Company, for use in training cadaver dogs. 

 

Subsequently, Mr. Jackman pleaded guilty to obstructing governmental administration and resigned from his position.  In his answer, Mr. Jackman asserted a cross-claim against the County for indemnification and/or contribution.  Likewise, the County also interposed a cross-claim against Mr. Jackman for contribution and indemnification. 

 

Mr. Jackman moved for summary judgment dismissing the County’s cross-claim and sought a determination that the County was obligated to defend and indemnify him pursuant to Public Officer’s Law § 18.  The trial court granted his motion in part and determined that the County must provide defendant with a defense by an attorney of his choosing and was to reimburse him for his legal costs incurred up until the date of the order.  However, the Fourth Department concluded that the trial court should have denied the motion in its entirety. 

 

The Fourth Department rejected the County’s argument that defendant’s motion should have been decided based upon the standard set forth in CPLR Article 78 since it argument was raised for the first time on appeal.  Nevertheless, the Appellate Division agreed with the County that summary judgment in favor of Mr. Jackman should have been denied because “a County’s duty to defend an employee turns on whether [the employee was] acting within the scope of [his or her] employment, and whether the obligation to defend the employee was formally adopted by a local governing body.” 

 

In order to establish judgment as a matter of law pursuant to Public Officer’s Law § 18, Mr. Jackman was required to demonstrate its applicability herein.  The Fourth Department held that the lower court erred by granting summary judgment to Mr. Jackman while simultaneously finding issues of fact which bore on the applicability of Public Officer’s Law § 18.  Mr. Jackman’s argument that County adopted Public Officer’s Law § 18 was raised for the first time in his reply papers and was not properly before the trial court. 

 

The Appellate Division agreed with the County that the lower court should have applied County Law § 501 in determining whether the County had an obligation to defend Mr. Jackman.  Under that statute, and in light of the fact that the complaint created an inherent conflict between Mr. Jackman and the County, “the County was absolved of its responsibility to defend defendant and defendant’s retention of outside counsel was at his own expense unless the provisions of [Public Officer’s Law § 18] are applicable.”

 

State of New York Entitled to Summary Judgment where Alleged Defect is Trivial

 

In Graham v. State of New York, (4th Dept. 2018), the claimant commenced an action against the State of New York seeking damages for injuries she sustained while jogging on the Centerway Bridge in Corning, New York.  The claimant alleged that she tripped on a steel plate that was elevated from the concrete sidewalk.  After a trial on the issue of liability, the Court of Claims dismissed the claim. 

 

The Fourth Department affirmed the dismissal of the claim as the claimant failed to establish the existence of a dangerous condition on the sidewalk and that the defect at issue was in fact trivial.  The evidence produced at the time of trial established that the accident occurred on a sunny day and the claimant saw the apparent steel plate prior to her accident.  Additionally, the height differential between the sidewalk and steel plate was small.  The determination by the Court of Claims was “supported by fair interpretation of the evidence.”  Therefore, the Fourth Department did not disturb the lower court’s finding of facts and affirmed the dismissal of the case.

 

Claim for Negligent Supervision and Training was Properly Dismissed

 

In Owen v. State of New York (4th Dept. 2018), the Fourth Department affirmed the Court of Claims’ dismissal of the claim.  The claimant was arrested following a sobriety checkpoint upon suspicion of driving while intoxicated.  A blood draw taken two hours after the arrest revealed a blood alcohol content of 0.00%, which prompted the claimant to commence the instant action for false imprisonment, malicious prosecution and negligent supervision and training. 

 

The Fourth Department held that the Court of Claims properly dismissed the false imprisonment and malicious prosecution claims as claimant was required to establish that the New York State Trooper who made the arrest lacked probable cause.  However, the record evidence supported the Trooper’s probable cause based upon the claimant’s blood short eyes, slurred speech and flushed face. 

 

Additionally, the Appellate Division affirmed the Court of Claims’ dismissal of the negligent supervision and training claim.  Such a claim, “does not lie where, as here, the employee [was] acting within the scope of his or her employment, thereby rendering the employer liable for damages caused by the employee’s negligence under the [alternative] theory of respondent’s superior.”  In light of the fact that the claimant did not dispute that the New York State Trooper and his supervisor were acting within the scope of their employment, such claim for negligent supervision and training must fail. 

 

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.

 
Chelus Herdzik Speyer & Monte PC | mailbox@cheluslaw.com | 716-852-3600 | www.cheluslaw.com
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