Municipality, its police department and a police officer sued for injuries plaintiff suffered after being bitten by a police department K-9 Unit police dog

Plaintiff sued the municipality and others [Defendants] to recover damages for injuries he allegedly sustained when he was bitten by a municipality police department's police dog.

The incident occurred during a training exercise in explosives detection in which the police dog and his handler were participating. As part of the training, the police dogs were off-leash. Plaintiff, who was participating in a different training event in a different building, entered the building where the explosives detection training exercise was being held and was still in progress when he was bitten by the police dog. 

Supreme Court denied Defendants' motion for summary judgment dismissing the complaint and Defendants' appealed the court's decision. The Appellate Division reversed the Supreme Court's order "on the law, with costs" and granted the Defendants' motion for summary judgment.

Citing Applewhite v Accuhealth, Inc., 21 NY3d 420, and other decisions, the Appellate Division, said "[w]hen a negligence cause of action is asserted against a municipality, and the municipality was exercising a governmental function, a municipality may not be held liable unless it owed a special duty* to the injured party".

The Appellate Division noted that the Defendants had established that its police officer "was an attendee at a training program" at a New York State facility and that its police officer "merely participated in the training exercise" and that he "took direction" from a New York City Police Department canine instructor.

Here, said the court, Defendants established, prima facie, that they did not owe a special duty to the Plaintiff as there was no evidence that the police officer took positive control of a known and dangerous safety condition which gave rise to Plaintiff's injuries.

As the Plaintiff failed to raise a triable issue of fact, the Appellate Division opined the Supreme Court should have granted the Defendants' motion for summary judgment and dismissed the complaint.

*  The Appellate Division's decision noted that such a special duty is present where the defendant "took positive control of a known and dangerous safety condition".

Click HERE to access the Appellate Division's decision posted on the Internet.

Compelling disclosure of certain records pursuant to New York State's Freedom of Information Law

The Appellate Division reversed a Supreme Court's decision dismissing branches of a Freedom of Information petition seeking [1] certain certain records pertaining to the creation or maintenance of a police department's current databases and [2] attorney's fees and litigation costs. 

The court noted the requirement that a FOIL request reasonably describing the records sought is to enable the agency to locate the records in question, citing Matter of Konigsberg v Coughlin, 68 NY2d 245 and Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75. 

In order for an agency to deny a FOIL request for overbreadth, the Appellate Division  said the agency must demonstrate that the description is "insufficient for purposes of locating and identifying the documents sought", citing Matter of Konigsberg v Coughlin, 68 NY2d at 249.

The matter was then remitted to the Supreme Court for further proceedings. 

Click HERE access the Appellate Division's decision.

RULE REVIEW - New York State Department of Civil Service

Pursuant to Section 207 of the State Administrative Procedure Act (SAPA), notice is hereby provided of rules adopted by the New York State Civil Service Commission and the President of the New York State Civil Service Commission during calendar years 2000, 2005, 2010, 2015 and 2020 which remain in effect. 

Below is a brief description of each rule, including the statutory authority therefor; and where appropriate, a statement setting forth the ongoing need for each rule without further modification.

2000 Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified Service) Statutory Authority: Civil Service Law section 6 

Description of the Regulation: The resolution added a new subdivision (vii) to paragraph (2) of section (b) of Rule 4.5 to provide for a probationary term for positions of “Thruway Maintenance Worker” of not less than 26 weeks nor more than 52 weeks.

Action: The rule has functioned consistent with the purposes underlying its adoption and the Department of Civil Service recommends continuation without modification. 

Amendments to Chapter IV of 4 NYCRR (Regulations of the State Civil Service Commission [Commission’s Regulations]) Statutory Authority: Civil Service Law section 6 

Description of the Regulations: A new section 55.5 was added to the Commission’s Regulations and the previous sections 55.5 and 55.6 were renumbered 55.6 and 55.7, respectively. Section 55.5 codified the long-standing Civil Service Commission practice of granting prior approval for certain examination rating keys, according to the conditions and standards set forth within such section, upon the request of the Department’s Director of Examinations or his or her designee. 

Action: The rule has functioned consistent with the purposes underlying its adoption and the Department of Civil Service recommends continuation without modification.

2005 Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified Service) Statutory Authority: Civil Service Law section 6 

Description of the Regulation: The resolution added a new paragraph (viii) to subdivision (1) of subsection (b) of Rule 4.5 to provide for a probationary term for positions of “University Police Officer 1 and “University Police Officer 1 (Spanish Language)” of not less than 52 weeks nor more than 78 weeks. 

Action: The rule has functioned consistent with the purposes underlying its adoption and the Department of Civil Service recommends continuation without modification.

2010 Amendment to Chapter V of Title 4 of NYCRR (Regulations of the Department of Civil Service [President’s Regulations]) Statutory Authority: Civil Service Law sections 7 and 80

Description of the Regulation: The resolution added a new paragraph to Rule 72.1 designating the Authorities Budget Office as a separate unit for suspension, demotion or displacement within the Department of State. 

Action: The rule has functioned consistent with the purposes underlying its adoption and the Department of Civil Service recommends continuation without modification. 

2015 No current rules or regulations were adopted during calendar year 2015. 

2020 No current rules or regulations were adopted during calendar year 2020. 

 

Various amendments to the Appendices to the Rules for the Classified Service 

Appendix 1 (Exempt Class) Appendix 2 (Non-competitive Class)

Statutory Authority:

                Appendix 1: Civil Service Law, sections 6 and 41; 4 NYCRR 2.1

                Appendix 2: Civil Service Law, sections 6 and 42;

NYCRR 2.2 Description of the Regulations: Civil Service Commission rules relating to the jurisdictional classification of positions were specifically exempted from compliance with Executive Order No. 20 review requirements by the former Governor’s Office of Regulatory Reform, upon a finding that such review lacked substantial benefit. Based upon this determination, and pursuant to SAPA section 207(5), a full recitation of amendments to Appendices 1 and 2 to Title 4 of NYCRR adopted by the Civil Service Commission during calendar years 2000, 2005, 2010, 2015 and 2020 is hereby omitted. 

Public Comments There will be a forty-five (45) day public comment period following publication of this Notice in the New York State Register [Published on January 22, 2025]. 

Requests for information and public comments regarding the foregoing may be directed to: Eugene Sarfoh, Esq., Counsel, New York State Department of Civil Service, Empire State Plaza, Albany, NY 12239, (518) 473-2624, e-mail: public.comments@cs.ny.gov