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.
Prepared by Eric W. Marriott, Esq.