MUNICIPAL LIABILITY
PRECEDENTS & STATUTES 2008
(Covering Decisions from September 1, 2007 through Mid-August 2008)
Michael G. Bersani, Esq.
Michaels & Smolak, P.C.
71 South Street
Auburn, New York 13021
(315) 253-3293
TABLE OF CONTENTS
I THE NOTICE OF CLAIM 5
A. When is a Notice of Claim Required? 5
1. Federal Claims 5
2. Small Claims 5
B. Form of the Notice of Claim 6
1. Can a Settlement Demand Letter Be Deemed a Notice of Claim? 6
2. Verification Requirement 6
C. Proving Timely Service of Notice of Claim 7
D. Sufficiency of the Notice of Claim 7
E. Amending or Correcting Notice of Claim 9
F. Late Service of the Notice of Claim (without Leave): A Nullity 12
G. Application for Permission to Serve Late Notice of Claim 14
1. The “Factors” Considered 14
2. Are the Merits of the Claim to be Considered? 16
3. Actual Knowledge in or “within a Reasonable Time” of the 90-day
time Limit” (the most important factor) 17
a. Who must have “actual knowledge?”. . . . . . . . . . . . . . . . . . . . . . . . . 17
b. Actual Knowledge gained first-hand . . . . . . . . . . . . . . . . . . . . . . . . . 18 . c. Actual Knowledge gained from hospital records, . police reports, accident reports and other records . . . . . . . . . . . . . . . .22 . d. Actual Knowledge gained from previously served late . Notice of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
e. By when must the Public Corporation have “actual notice” . . of the facts of the Claim? . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .31
4. Excuses, excuses (reasonable or not) 32
a. Unaware of the severity of the injury . . . . . . . . . . . . . . . . . . . . . . . . . 32 b. Law office failure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 c. Ignorance of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 d. Disability as excuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 e. Death as excuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 f. Other excuses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 g. Infancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5. Whether Defendant Prejudiced by the late Notice 38
H. Time Limit for Moving For Leave to Serve Late Notice of Claim 39
II OTHER CONDITIONS PRECEDENT TO SUIT 41
A. The 50-h Hearing 41
B. Failure to Comply with Condition Precedent and Recommencing under CPLR 205 43
C. Does the GML 30-Day Waiting Period Toll the SOL? 43
III SUING THE MUNICIPALITY OR PUBLIC CORPORATION 44
A. Infancy Toll 44
B. Continuous Treatment Toll 44
C. No Bankruptcy Toll 45
D. Statute of Limitations for Suing Municipal Defendants – Relation Back 46
E. Short Statute of Limitations for Suing Public Authorities 47
F. Oops, Wrong Entity . . . 47
G. Index Number Issues 52
H. Suing Based on New Allegations Not Mentioned in the Notice of Claim 52
IV THE PRIOR WRITTEN NOTICE REQUIREMENT 53
A. Prior Written Notice Generally 53
B. Big Apple Map Notice 57
C. Requirement Limited to Streets, Highways, Bridges, Culverts, Sidewalks and Crosswalks 58
D. Who Must Give, and Receive, Prior Written Notice? 59
E. Exceptions to Prior Written Notice Requirement: 62
1. Affirmatively Created the Hazard 62
2. Affirmatively Created, But Developed over Time (not an exception) 63
3. No Prior Written Notice Requirement for County Highways 65
F. Abutting Owner Liable? “Affirmatively Created” or “Special Use” 66
G. NY City Sidewalk Law (§ 7-210 of the NYC Administrative Code) 68
V GOVERNMENTAL IMMUNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70
A. Discretionary v. Ministerial Acts 71
B. Absolute v. Qualified Immunity 74
C. Prosecutorial Immunity 75
D. Judicial Immunity 75
E. “Special Relationship” Needed to Overcome Immunity Defense 76
F. Governmental v. Proprietary Functions 80
G. Weiss v. Fote (qualified immunity for designs, especially of roadways). 84
VI CLAIMS AGAINST POLICE AND THEIR EMPLOYERS 89
A. Federal 1983 Claims 89
B. Probable Cause Requirement in False Arrest Claims 89
C. Probable Cause Requirement in Malicious Prosecution cases (Presumption of Probable Cause from Grand Jury Indictment) 90
VII MUNICIPAL BUS LIABILITY 92
A. Violent Movements of the Bus 92
B. Failure to Provide a Safe Place to Alight 93
VIII COURT OF CLAIMS 94
A. Statute of Limitations issues 94
B. Sufficient specificity of Claim or Notice of Intention 95
C. Kolnacki fallout 95
IX V&T LAW § 1104 AND 1103(B) (“Reckless Disregard” Standard) 96
A. V&T 1104 (Emergency Vehicles) 96
B. V&T 1103(b) (Municipal Vehicles “Engaged in Work on Highway”) 98
X CLAIMS ON BEHALF OF FIREFIGHTERS AND POLICE OFFICERS 99
A. Predicating the GML 205-a or 205-e Claim on a Violation of a Statute, Regulation, etc. 100
B. The “Relaxed” Causation Requirement 103
C. Must Plaintiff-Police Officer Show Prior Written Notice? 104
D. GOL §11-106 Line-of-Duty Claims 105
XI SCHOOL LIABILITY 105
A. Student on Teacher Assaults: (“Special Relationship” Needed) 105
B. Student on Student Assaults 107
C. Sporting Activities, Gym Class and Playground Liability 111
D. Premises Liability Type Cases against Schools 113
E. Liability for Lack of Adequate Security 115
F. School Nurse Liability 115
G. Other Types of School Liability Claims 116
H. No Liability for Off-School-Grounds Incidents 116
XII STORM IN PROGRESS DEFENSE 117
XIII DE MINIMUS HEIGHT DIFFERENTIAL IN SIDEWALKS . . . . . . . . . . . .118
I THE NOTICE OF CLAIM
A. When is a Notice of Claim Required?
1. Federal Claims
Pendleton v. City of New York, 44 A.D.3d 733, 843 N.Y.S.2d 648 (2nd Dept 2007). The notice of claim requirements of GML §50-e, which apply to actions against municipalities and public corporations, do not apply where federal civil rights claims are asserted, specifically in this case 42 USC § 1983, against the municipality or public corporation. Here the Court dismissed the State-law causes of action on the grounds of late notice, but this did not affect the validity of the federal 1983 claim.
Felder v. City of New York, --- N.Y.S.2d ----, 53 A.D.3d 401 (1st Dept 2008). Although the Air Transportation Safety and System Stabilization Act of 2001 (ATSSSA, P.L. 107-42, § 408[b][1] ) created a federal cause of action as the exclusive judicial remedy for damages arising out of [the 9/11 aircraft] crashes at the World Trade Center providing exclusive jurisdiction over such lawsuits in the Southern District of New York, Court here held that Congress did not intend the ATSSSA to preempt GML § 50-e, and that ATSSSA preempts only state law damages remedies, not substantive standards governing liability. Inasmuch as the requirements relating to notices of claim are in the nature of conditions precedent to the right to bring suit, the requirements relating to notice of claim did not present an “insurmountable” barrier to relief under ATSSSA and it did not otherwise clearly appear that Congress, which presumably knew about § 50-e, intended that ATSSSA displace that section.
2. Small Claims
Hollingsworth v. Regional Transit Service, Inc., 857 N.Y.S.2d 477 (NY City Court 2008). This case involves a small claim action against a corporate subsidiary of a public authority for damage caused to plaintiff’s car by the Public Authority’s bus. Defendant moved for dismissal because the pro-se small-claims plaintiff failed to serve a notice of claim. Court examined the case law and found that “given the large number of conflicting decisions regarding whether notice of claim applies in small claims cases, it is respectfully suggested that the legislature consider whether such statutory provisions and similar settlement statutes should apply in that forum. If they decide those rules should not, then the legislature should make that statutorily clear If they determine that such rules should apply, then the legislature should specifically address the issue by amending the various local court acts to outline a notice of claim and settlement procedure specifically for and consistent with the legislative mandate that small claims courts should seek to achieve substantial justice. Since the answer was not clear, Court held that “consistent with the court's responsibility to do substantial justice between the parties according to the rules of substantive law”, the Court found for plaintiff.
B. Form of the Notice of Claim
1. Can a Settlement Demand Letter Be Deemed a Notice of Claim?
Power Cooling, Inc. v. Board of Educ. of City of New York, 48 A.D.3d 536, 852 N.Y.S.2d 214 (2nd Dept 2008). No notice of claim was ever served in this case. Moreover, the plaintiff's letter demanding payment could not be deemed the functional equivalent of a notice of claim because, inter alia, it was not presented to the defendants' governing body as required by the statute. Any alleged lack of prejudice to the defendants or actual knowledge of the claim by the defendants was irrelevant since no application for permission to serve a late notice of claim had been made. Furthermore, there was no evidence of affirmative, misleading conduct by the defendants to warrant a determination that they waived, or were estopped from asserting, the notice of claim issue.
2. Verification Requirement
Enex Steele v. State, 19 Misc.3d 766, 855 N.Y.S.2d 329 (Ct of Claims 2008). Defense asserted that the Attorney General's office received a Claim without a proper verification. CPLR 3022 states “when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient with due diligence' returns the pleading with notification of the reason(s) for deeming the verification defective.” Defendant rejected the Claim and returned it to Claimant the same day on which it was received, with a letter stating that the Claim was being returned because “it does not contain the required verification language”. But the letter did not elaborate as to what the required verification language should have been. Pursuant to CPLR 3022, in order for a rejection to be effective, it must be done with due diligence and the notice of rejection must set forth the reason(s) for deeming the verification defective. The notice of the objection must state the defects relied upon with sufficient specificity that the party whose pleading is rejected has a reasonable opportunity to cure the defect. Notices which state simply that the pleading does not comply with the CPLR are too general. Thus, although the Claim was not properly verified, it was also not properly rejected. Since the notice of rejection was insufficient, it had no effect. It is as if the Claim had not been returned.
ADC Contracting & Const., Inc. v. Town of Southampton, 45 A.D.3d 614, 850 N.Y.S.2d 121 (2nd Dept 2007). Plaintiff filed a timely notice of claim against the defendant Town for breach of contract. Throughout the next four years, the case proceeded through litigation, and culminated in a jury trial which resulted in a verdict awarding the plaintiff damages. During the trial, the plaintiff's owner testified that he had notarized the Notice of Claim (among other things) by using his wife's expired notary stamp and forging her signature. In a post trial motion, the Town moved, in effect, pursuant to CPLR 4404 to set aside the jury verdict and for judgment as a matter of law on the ground that the plaintiff filed an improperly verified notice of claim. A properly verified notice of claim is a condition precedent to maintaining an action to recover damages for breach of contract against a town both pursuant to the General Municipal Law and Town Law (see Town Law § 65[3]). But in contrast to the General Municipal Law, Town Law § 65(3) contains no provision allowing the court to excuse noncompliance with its requirements. Accordingly, the court lacked “authority to disregard the lack of verification of a notice of claim arising out of a contractual dispute”.
C. Proving Timely Service of Notice of Claim
Stewart v. New York City Transit Authority, 50 A.D.3d 1013, 856 N.Y.S.2d 638 (2nd Dept 2008). Plaintiff alleged that he served the defendant with a notice of claim by regular mail on July 21, 2004, within the 90-day statutory time period. The defendant moved to dismiss the complaint for failure to state a cause of action and submitted in support of the motion a copy of the notice of claim with a “date received” stamp well beyond the statutory time period. In opposition, the plaintiff submitted an affidavit from a paralegal who averred that she personally mailed the notice of claim within the 90-day period. Supreme Court dismissed the complaint, but the Appellate Division reversed, holding that there was a question of fact regarding when the notice of claim was served.
D. Sufficiency of the Notice of Claim
Atwater v. County of Suffolk, 50 A.D.3d 713, 855 N.Y.S.2d 226 (2nd Dept 2008). Plaintiff was injured when a defective door at the campus of the defendant Suffolk County Community College struck her in the face. A notice of claim and an amended notice of claim were timely served on defendants. Both the notice of claim and the amended notice of claim described the location of the accident as “the main entrance of the Southampton building through the steel doors located on the left side of said entrance.” At the 50-h hearing three months later, the plaintiff described the route she took to arrive at the building where her accident occurred. There was no testimony regarding the number of entrances to the building or where they were located. Then, 2 ½ years after the accident, a representative of the defendant appeared for a deposition with records pertaining to the doors at the main entrance. When shown pictures of the door involved in this accident, the witness identified the door as located at the entrance of the back of the building and not the main entrance of the building as described in the notice of claim and the amended notice of claim. Thereafter, the witness appeared for a further deposition wherein he maintained that the work orders and complaints regarding the doors at the back of the building had been lost. Defendant moved to dismiss the complaint on the grounds that the notice of claim did not give sufficient or correct information regarding the place of the accident. Court noted that a notice of claim must describe the location of the accident with sufficient particularity to allow the public entity to timely and effectively investigate and defend the claim while the information is still fresh. The test of the sufficiency of a notice of claim is whether the public entity is able to “locate the place, fix the time, and understand the nature of the accident”. Here, the notice of claim and the amended notice of claim did not provide a sufficient description of the location of the accident. The hearing did not remedy the deficiencies. There was no testimony regarding the number of entrances to the building, or where they were located. Complaint dismissed.