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..

Daily Archives: March 29, 2018

Municipal Update March 28, 2018