How do you define a bad day?  For John Whalen a bad day was on December 8, 2004 (See Whalen v. NYC Dept. of Environmental Protection 109957/05;10/19/09). He was driving on Route 28 next to the Ashokan Reservoir when an 80 foot tall pine tree, set back at least 20 feet from the roadway, fell and crushed his vehicle causing him to lose consciousness and sustain serious injuries. The tree was on City owned property on the Ashokan Reservoir. Mr. Whalen claimed the City was negligent for failing to inspect the tree and remove the tree as it was unstable and decayed.

 

Judge Saliann Scarpulla, in a decision dated October 19, 2009, was asked to decide whether the City was entitled to summary judgment, dismissing the complaint, as the City had no actual notice of the dangerous condition, and further there was no constructive notice of the decay on the tree as the subject tree was 20-30 feet set back from the roadway in a group of many trees. The City also claimed that even if there is a duty to inspect the trees in that location, the City is immune from suit because it was exercising a governmental function. Judge Scarpulla discussed the imposition of liability when a tree falls that is owned by a municipality, "In cases involving trees that fall from its property and cause injury, a municipality/property owner will be held liable only if it had actual or constructive notice of the dangerous condition of the tree. See Hilliard v. Town of Greenburgh, 301 A.D.2d 572 (2nd Dept. 2003).

 

"The concept of constructive notice with respect to liability for falling trees is that there is no duty to consistently and constantly check all trees for nonvisible decay. Rather, the manifestation of said decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm." Ivancic v. Olmstead, 66 N.Y.2d 349, 351 (1985); see also Lahowin v. Ganley, 265 A.D.2d 530 (2nd Dept. 1999); Leach v. Town of Yorktown, 251 A.D.2d 630 (2nd Dept. 1998). "Here the plaintiff's arborist in an affidavit submitted in opposition to the motion claimed there was visible decay and "visible woodpecker holes" when he inspected the tree. The City's motion was denied, and the Court allowed the case to proceed to trial on an issue of fact.

 

"While the City correctly explains that there can be no liability for negligence stemming from the performance of a governmental function unless there exists a special relationship between the injured party and the governmental entity, which would create a specific duty to protect that individual, see Nola v. New York City Transit Authority, 115 A.D.2d 461 (2nd Dept. 1985), public entities are not immune from negligence claims stemming from the performance of their proprietary functions. See Crosland v. New York City Transit Auth., 110 A.D.2d 148 (2nd Dept. 1985) affd 68 N.Y.2d 165 (1986). When a municipality acts in a proprietary capacity, it is generally subject to the same duty of care as private individuals and institutions engaging in the same activity, see Miller v. State, 62 N.Y.2d 506 (1984); Dobin v. Town of Islip, 11 A.D.3d 577 (2nd Dept. 2004), and specifically, landowner liability may be imposed upon a municipality in the exercise of proprietary functions. See Melby v. Duffy, 304 A.D.2d 33 (2nd Dept. 2003). Here, the duty imposed upon the municipality to maintain trees on its property that could pose a danger to travelers in a reasonably safe condition does not implicate the governmental functions of defendant, but rather its proprietary functions." 

Every lawyer in New York can tell a tale of waiting months, sometimes years, for a decision to be rendered by a particular Judge. "Judicial delay" is a problem for litigators and their clients. CPLR section 3213(c) provides "The decision of the court shall be rendered within sixty days after the cause or matter is finally submitted or within sixty days after a motion under Rule 4403, whichever is later, unless the parties agree to extend the time." What remedy does a lawyer have when the months roll by and no decision is issued?

Perhaps one remedy could be a writ of mandamus to compel the judge to perform the duties of his or her office. Not a good idea if you have any hope of actually prevailing on the motion. How about a polite letter? Always a good first step. The law secretary may be overwhelmed, or has sent the motion to the law department where it has been sitting for some time, so a letter may spark some movement. What can the litigator do, however, if those remedies fail?

 

An Albany attorney filed charges with the Commission on Judicial Conduct against Judge James P. Gilpatric of the Kingston City Court and the Court of Appeals heard arguments on the appropriate sanction on November 17, 2009 in Matter of James P. Gilpatric v. State Commission on Judicial Conduct. Judge Gilpratic, it seems, had pondered a small claims action before him for 31 months before a decision was issued and was late with decisions in 47 other cases over a four year term. In Matter of Greenfield, 76 NY2d 293, (1990), the Court of Appeals held the Commission did not have the power to sanction a Judge for judicial delays. Here the Commission, by an 8-1 vote recommended admonishment against Judge Gilpatric, indicating that Judge Gilpatric's conduct constituted a pattern of "persistent or deliberate neglect of his judicial duties."  Judge Gilpatric, has just been elected to the Supreme Court, and is scheduled to begin his 14 year term in January 2010. The decision of the Court of Appeals will decide the scope and breadth of the sanctioning power of the Commission. 

On November 12, 2009 Governor David Paterson signed into law Senate Bill Number 66002, adding Section 5-335 to the New York State General Obligations Law barring health insurance providers from seeking reimbursement or subrogation against "any settling party" with respect to a bodily injury or wrongful death action. The new law, which is effective immediately, applies to all pending actions, provided, the case is not settled or verdict entered as of November 12, 2009. Medicaid and Medicare liens are exempt from this statute as well as other statutory rights for reimbursement, i.e. workmen's compensation claims.

 

This new legislation is the Legislature's answer to Fasso v. Doerr, 12 N.Y.3rd 80 (2009) which recognized the right of reimbursement or subrogation which was not codified by statute. The Senate bill also addressed the right of a municipal employer sued by a public employee to a collateral source set-off for future pension benefits that employee would receive.  In the action of Iazzetti v. The City of New York, (94 NY2d 183, 701 NYS2d 332 (1999)), the Court of Appeals addressed the conflict between the two sections of CPLR 4545.

 

In Iazzetti, the Court of Appeals ruled that the specific provisions of subdivision (b) of CPLR 4545 takes precedence over the general provisions of subdivision (c) of this section.  The Court reversed a lower court decision which off-set an award of future lost earnings by the accident disability pension the city employee was to receive. Based on Iazzetti in a suit by a municipal employee against his employer, any award for future lost earnings was not off-set by a disability pension.  Under the November 12, 2009 amendment, a public employer, sued by an employee, will now be entitled to a set-off for future benefits the employee will receive. The amendment to CPLR Section 4545, in contrast to the General Municipal Law amendment, applies only to actions commenced on or after the effective date.