Fourth Department Affirms Denial of Claimant’s Application to Serve Late Notice of Claim
In Powell v. Central New York Regional Transportation Authority, 92 N.Y.S.3d 791 (4th Dept. 2019), the plaintiff sought compensation for injuries she sustained while existing a bus owned and operated by Central New York Regional Transportation Authority. The three main factors a court should consider in whether to grant leave to file a late notice of claims are “whether the claimant has shown a reasonable excuse for the delay, whether the [respondent] has actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the [respondent].”
Although “the presence or absence of any single factor is not determinative, one factor that should be accorded great weight is whether the [public corporation’ received actual knowledge of the facts constituting the claim in a timely manner.” Furthermore, “absent a ‘clear abuse’ of the court’s broad discretion’ such a determination of whether to grant such relief will not be disturbed on appeal.
In this case, the Fourth Department held that the claimant failed to meet her burden of proof by establishing that the respondent had actual knowledge of her accident within 90 days of its accrual. In fact, the claimant did not inform the bus driver of the accident on the date it allegedly occurred and it was not apparent that she was even injured.
Additionally, the Fourth Department noted that the nature of the claimant’s injuries, that is a torn meniscus and a bone contusion, did not constitute a reasonable excuse in failing to comply with the notice of claim requirement. Therefore, the Fourth Department affirmed the trial court’s denial of the application.
Fourth Department Affirms Dismissal of Petition Pursuant to CPLR §3211(a)(4)
In the Matter of Sealand Waste LLC v. Town of Carroll, 91 N.Y.S.3d 916 (4th Dept. 2019), the petitioner sought a declaration that the Town of Carroll’s Local Law No. 1 of 2007 (2007 Law) was null and void. The lower court dismissed the petition. The Fourth Department affirmed holding that “[w]here, as here, ‘there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211(a)(4) on the ground that there is another action pending’”. Therefore, the lower court did not abuse its discretion in dismissing the petition.
Furthermore, since the 2007 law had not been deemed invalid the Town of Carroll was not arbitrary and capricious in denying the petitioner’s application for permits which were related to a proposed expansion of a landfill since same was prohibited by the 2007 law.
Fourth Department Reverses Trial Court’s Permanent Stay of Arbitration
In City of Watertown v. Watertown Professional Firefighters Association, Local 191(4th Dept. 2019), the City of Watertown sought a permanent stay of arbitration of a grievance filed by the Watertown Professional Firefighters Association. The respondent alleged that the City violated certain provisions of the collective bargaining agreement relative to minimum staffing requirements. The lower court granted the petition and determined that the staffing provisions were “unenforceable job security provisions” that violated public policy. On appeal, the Fourth Department reversed and dismissed the petition.
“It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim.” In making such a determination, the Fourth Department noted a two-prong test.
First, a determination must be made as to whether “there is any statutory, constitutional or public policy prohibition against arbitration of the grievance.” Next, “[i]f no prohibition exists, [the court must then determine] whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement.”
The Fourth Department held that the lower court erred in determining that the staffing provisions are not arbitrable on the ground that they are job security provision and thus subject to the public policy exception. “A job security provision insures that, at least for the duration of the agreement, the employee need not fear being out of a job.” In this case, however, the provisions at issue “do not purport to guarantee a firefighter his or her employment while the CBA is in effect.” Instead, the Fourth Department held that the staffing provisions merely set forth the minimum number of firefighters that are required to be present during shifts and regular operations. The parties contemplated such a provision during negotiations in order to protect the health and safety of the members of the association.
Furthermore, the Fourth Department held that the CBA included a broad arbitration clause. Therefore, the court’s analysis with respect to the second-prong of the analysis “is limited to whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.” Here, the Fourth Department held this standard was met since the respondent references staffing provisions in its labor grievance.
Court of Appeals Continues to Apply Woodson Test on Prior Written Notice Issue
In Hinton v Village of Pulaski, 2019 NY Slip Op 01261 (Court of Appeals February 21, 2019), the plaintiff brought an action against the Village after he fell while descending an exterior stairway that connects a public road to a municipal parking lot. The Village of Pulaski Code provides, in relevant part, that “[n]o civil action shall be maintained” against the Village of Pulaski for personal injury sustained as a result of a defect in “any street, highway, bridge, culvert, sidewalk or crosswalk” unless prior written notice of the alleged defect is provided to the Village. The Village did not receive prior written notice of the alleged defect before plaintiff commenced suit.
The Village brought a motion for summary judgment dismissing the complaint in the trial court. The trial court granted the motion, holding that an exterior stairway is included in the definition of “sidewalk” for purposes of the prior written notice statute. The plaintiff appealed, and the Fourth Department unanimously affirmed.
The Court of Appeals granted permission to the plaintiff to appeal, and affirmed the Fourth Department’s holding in a 5-2 decision. The Court of Appeals found that the lower courts correctly determined that the stairway at issue “functionally fulfills the same purpose” as a standard sidewalk, under Woodson v. City of New York, 93 NY2d 936, 937-938 (1999). The Court noted that an extraordinary and compelling justification is needed to overturn precedents involving statutory interpretation, because if the precedent has misinterpreted the legislative intention embodied in a statute, “the Legislature’s competency to correct the misinterpretation is readily at hand.” The Court reasoned that as the Legislature had not done anything to signal disapproval of the precedent case law, the Court should continue to apply the functional equivalence test of Woodson with regard to prior written notice statutes.
Judge Wilson issued a lengthy dissent, stating, “Conventions of normal English, legislative policy, and the invention of the escalator” dictate that a stairway is not a sidewalk. He argued that only through the “alchemy” of a “functional equivalence test conjured from Woodson, one can buy a sidewalk to heaven, climb the sidewalk to the stars, and build a sidewalk to paradise (with a new slab every day). Indeed, while on the subject of alchemy, if Harry Potter was set in New York, his Dursley abode would no doubt change to a cupboard under the sidewalk.” Judge Wilson pointed out other examples seemingly at odds with the plain meaning of a prior written notice statute, including Groninger v Village of Mamaroneck, 17 NY3d 125 (2011), where the Court of Appeals held that a parking lot “serves the functional purpose of a highway” because “it was owned and maintained by the Village and accessible to the general public for vehicular travel,” even though, as the three dissenting Judges in that case explained at length, highways—accommodating moving vehicles—and parking lots—accommodating stationary vehicles—had precisely the opposite “functional purpose.” Wilson argued he would reverse the Fourth Department’s holding, and that the functional equivalence test in Woodson may be “unworkable.”
Fourth Department Reverses Trial Court on City Contract Award
In Matter of Bison El. Serv., Inc. v City of Buffalo, 2019 NY Slip Op 01971, (4th Dept. March 15, 2019), the City awarded an elevator maintenance contract to D.C.B. Elevator Co., Inc. (DCB) after DCB submitted the lowest bid in response to the City’s Request for Proposals (RFP). Petitioner Bison Elevator Service, Inc. (BES), protested the award on the ground that DCB could not comply with the terms of the RFP. Specifically, BES argued that DCB could not show, as required by the RFP, that DCB’s main operating facilities were equipped with certain machine shop equipment (Machine Shop Clause), because DCB relied on outside contractors for access to such equipment.
Instead of dismissing the protest and awarding the contract to DCB, however, the City rejected all bids and issued a revised RFP, which provided that the Machine Shop Clause could be satisfied through the use of outside contractors. Upon the submission of new bids, the City awarded the contract to DCB, which was again the lowest bidder.
BES subsequently brought an Article 78 proceeding against the City, alleging that the City’s decision to reject the initial bids and to re-bid the contract was irrational, dishonest, or unlawful. The trial court agreed, and granted the petition. On appeal, the Fourth Department reversed.
In support of the basis for its decision, the City produced email correspondence between The Deputy Director of Building Operations for the City and the City’s corporation counsel from before the City rejected all bids, in which the Deputy Director recommended that BES’s protest be dismissed and opined that DCB’s bid complied with the terms of the RFP. The email was forwarded to DCB, but not BES, before the bids were rejected.
The Fourth Department held that while it would have been wiser for the City to have communicated with all bidders regarding its interpretation of the Machine Shop Clause so as to avoid the appearance of impropriety, the single communication with DCB regarding that interpretation did not show actual favoritism, fraud or similar evil, and therefore did not demonstrate actual impropriety or unfair dealing sufficient to merit disturbing the City’s determination to reject all bids and issue a revised RFP.