section 12 enactment in New York

1975As was observed in Motyka v City of Amsterdam ( 15 NY2d 134, 138-139 ), an action such as this would have been dismissed on the ground of governmental immunity, a defense which was waived in 1929 by the enactment of section 12-a (now § 8) of the Court of Claims Act (Bernardine v City of New York, 294 NY 361 ).

1973However, with the waiver of immunity effected by the enactment of section 12-a, the present section 8, of the Court of Claims Act, the State and its civil subdivisions became liable for the torts of their agents on the basis of respondeat superior , notwithstanding the fact that the agent was engaged in "governmental" activity. ( McCrink v. City of New York , 296 N.Y. 99 [1947]; Steitz v. City of Beacon , 295 N.Y. 51 [1945]; Bernardine v. City of New York , 294 N.Y. 361 [1945]; McCarthy v. City of Saratoga Springs , 269 App. Div. 469 [3d Dept., 1945]).

2004Thus, the court determines consistent with the doctrine of separation of powers under article III, § 1 and article iy § 1 of the New York Constitution, that the determination of the municipal location of the casino in the County of Erie, City of Buffalo, constituted a pohcy-making choice of the New York State Legislature, thereby requiring the enactment of Executive Law § 12 (a) (see Saratoga III, 100 NY2d at 822-823; Saratoga II, 296 AD2d at 25-26 ).

2004Thus, the court determines consistent with the doctrine of separation of powers under article III, § 1 and article IV, § 1 of the New York Constitution, that the determination of the municipal location of the casino in the County of Erie, City of Buffalo, constituted a policy-making choice of the New York State Legislature, thereby requiring the enactment of Executive Law § 12 (a) ( see Saratoga III , 100 NY2d at 822-823; Saratoga II , 296 AD2d at 25-26 ).

1973However, with the waiver of immunity effected by the enactment of section 12-a, the present section 8, of the Court of Claims Act, the State and its civil subdivisions became liable for the torts of their agents on the basis of respondeat superior , notwithstanding the fact that the agent was engaged in "governmental" activity. ( McCrink v. City of New York , 296 N.Y. 99 [1947]; Steitz v. City of Beacon , 295 N.Y. 51 [1945]; Bernardine v. City of New York , 294 N.Y. 361 [1945]; McCarthy v. City of Saratoga Springs , 269 App. Div. 469 [3d Dept., 1945]).

1973(McCrink v. City of New York, 296 N. Y. 99 [1947]; Steitz v. City of Beacon, 295 N. Y. 51 [1945]; Bernardine v. City of New York, 294 N. Y. 361 [1945] ; McCarthy v. City of Saratoga Springs, 269 App. Div. 469 [3d Dept., 1945]).

1973However, with the waiver of immunity effected by the enactment of section 12-a, the present section 8, of the Court of Claims Act, the State and its civil subdivisions became liable for the torts of their agents on the basis of respondeat superior , notwithstanding the fact that the agent was engaged in "governmental" activity. ( McCrink v. City of New York , 296 N.Y. 99 [1947]; Steitz v. City of Beacon , 295 N.Y. 51 [1945]; Bernardine v. City of New York , 294 N.Y. 361 [1945]; McCarthy v. City of Saratoga Springs , 269 App. Div. 469 [3d Dept., 1945]).

1973(McCrink v. City of New York, 296 N. Y. 99 [1947]; Steitz v. City of Beacon, 295 N. Y. 51 [1945]; Bernardine v. City of New York, 294 N. Y. 361 [1945] ; McCarthy v. City of Saratoga Springs, 269 App. Div. 469 [3d Dept., 1945]).

1953As was said in Moch Co. v. Rensselaer Water Co. ( 247 N. Y. 160,166 ), ‘ If the plaintiff is to prevail, one who negligently omits to supply sufficient pressure to extinguish a fire started by another, assumes an obligation to pay the ensuing damage, though the whole city is laid low.

1945As was said in Moch Co. v. Rensselaer Water Co. ( 247 N. Y. 160, 166 ), “ If the plaintiff is to prevail, one who negligently omits to supply sufficient pressure to extinguish a fire started by another, assumes an obligation to pay the ensuing damage, though the whole city is laid low.

1900Section 903 of the consolidation act was a re-enactment of section 12 of chapter 550 of the Laws of 1880, and which was construed by the court of appeals in Re Smith, 99 N. Y. 424 , 2 N. E. 52 .

1900Section 903 of the consolidation act was a re-enactment of section 12 of chapter 550 of the Laws of 1880, and which was construed by the court of appeals in Re Smith, 99 N. Y. 424 , 2 N. E. 52 .

2004The {** 5 Misc 3d at 680 }Legislature in its enactment of Executive Law § 12 authorizing the Governor to enter into a compact consistent with the MOU, as it relates to the City of Buffalo casino, was passing upon three distinct location concepts expressly addressed in the MOU, to wit: designation of a municipal location in the City of Buffalo; a facility location within the City of Buffalo; and the ability of the Nation, in the event that a site in the City of Buffalo was unavailable for any reason, to propose an alternate site.

2004That section provides that "[t]he legislative power of this state shall be vested in the senate and assembly." As recognized in Saratoga III , under our State Constitution, "the separation of powers 'requires that the Legislature make the {** 5 Misc 3d at 681 }critical policy decisions, while the executive branch's executive responsibility is to implement those policies' " ( Saratoga III , 100 NY2d at 821-822, quoting Bourquin v Cuomo , 85 NY2d 781, 784 [1995]).

1999Moreover, when a person is injured through the negligent operation of a State-owned motor vehicle, with section 388 of the Vehicle and Traffic Law imposing vicarious liability upon the State as owner, he or she may sue the State in the Court of Claims (Callahan v State of New York, 201 Misc 378 ) or the operator in Supreme Court (Bernhard v Faulds, 47 Misc 2d 286 ).

1999Moreover, when a person is injured through the negligent operation of a State-owned motor vehicle, with section 388 of the Vehicle and Traffic Law imposing vicarious liability upon the State as owner, he or she may sue the State in the Court of Claims (Callahan v State of New York, 201 Misc 378 ) or the operator in Supreme Court (Bernhard v Faulds, 47 Misc 2d 286 ).

1999Since the enactment of section 12-a (now section 8) of the Court of Claims Act (L 1929, ch 467) a person injured by the tort of a State employee acting within the scope of his or her employment, which arises from the breach of a duty owed individually by the State employee directly to the injured party, may bring a direct action against that employee in Supreme Court as well as an action against the State in this court under the doctrine of respondeat superior (Morell v Balasubramanian, 70 NY2d 297 ).

1983(See Flagg Bros. v Brooks, 436 US, at p 165 .) Respondent advances numerous grounds on which to predicate a finding of State action, among them, Con Ed’s monopoly status within its franchise area, the high degree of State regulation, and the enactment of section 12 of the Transportation Corporations Law, which, respondent argues, “creates a duty not existing at common law, thereby imparting State action.” Respondent finally argues that New York State has delegated to Con Ed the traditional State function of dispute resolution.

1975The bar of governmental immunity no longer stood against the enforcement of civil liability arising from breach of a duty that existed before, but which could not be enforced until the immunity was waived (Schuster v City of New York, 5 NY2d 75 ), and counties and towns and other political subdivisions of the State became answerable equally with individuals and private corporations for wrongs of officers and employees.

1975As was observed in Motyka v City of Amsterdam ( 15 NY2d 134, 138-139 ), an action such as this would have been dismissed on the ground of governmental immunity, a defense which was waived in 1929 by the enactment of section 12-a (now § 8) of the Court of Claims Act (Bernardine v City of New York, 294 NY 361 ).

1973However, with the waiver of immunity effected by the enactment of section 12-a, the present section 8, of the Court of Claims Act, the State and its civil subdivisions became liable for the torts of their agents on the basis of respondeat superior , notwithstanding the fact that the agent was engaged in "governmental" activity. ( McCrink v. City of New York , 296 N.Y. 99 [1947]; Steitz v. City of Beacon , 295 N.Y. 51 [1945]; Bernardine v. City of New York , 294 N.Y. 361 [1945]; McCarthy v. City of Saratoga Springs , 269 App. Div. 469 [3d Dept., 1945]).

1973(McCrink v. City of New York, 296 N. Y. 99 [1947]; Steitz v. City of Beacon, 295 N. Y. 51 [1945]; Bernardine v. City of New York, 294 N. Y. 361 [1945] ; McCarthy v. City of Saratoga Springs, 269 App. Div. 469 [3d Dept., 1945]).

1961(People v. Richter’s Jewelers, 291 N. Y. 161, 166 ; People v. Adams, 176 N. Y. 351, 358 ; People v. Defore, supra.) In 1914 the United States Supreme Court held in the case of Weeks v. United States ( 232 U. S. 383 , supra), that in a Federal prosecution, the Fourth Amendment barred the use of evidence secured through an illegal search and seizure.

1961Following the enactment of section 12 of article I of the New York State Constitution and, indeed, until the recent decision of the United States Supreme Court in the case of Mapp v. Ohio ( 367 U. S. 643 ), our courts have followed the rule, previously enunciated under section 8 of the Civil Bights Law, that evidence illegally secured may be received upon the trial since the court did not take notice of the manner in which witnesses have possessed themselves of papers or other articles of personal property which are material and properly offered in evidence.

1961(People v. Richter’s Jewelers, 291 N. Y. 161, 166 ; People v. Adams, 176 N. Y. 351, 358 ; People v. Defore, supra.) In 1914 the United States Supreme Court held in the case of Weeks v. United States ( 232 U. S. 383 , supra), that in a Federal prosecution, the Fourth Amendment barred the use of evidence secured through an illegal search and seizure.

1961(People v. Richter’s Jewelers, 291 N. Y. 161, 166 ; People v. Adams, 176 N. Y. 351, 358 ; People v. Defore, supra.) In 1914 the United States Supreme Court held in the case of Weeks v. United States ( 232 U. S. 383 , supra), that in a Federal prosecution, the Fourth Amendment barred the use of evidence secured through an illegal search and seizure.

1961(People v. Richter’s Jewelers, 291 N. Y. 161, 166 ; People v. Adams, 176 N. Y. 351, 358 ; People v. Defore, supra.) In 1914 the United States Supreme Court held in the case of Weeks v. United States ( 232 U. S. 383 , supra), that in a Federal prosecution, the Fourth Amendment barred the use of evidence secured through an illegal search and seizure.

1956Even prior to the enactment of section 12 the display of another’s plate created a common-law presumption of ownership of the car (Ferris v. Sterling, 214 N. Y. 249 ) on the part of the owner of the plate; but since Scarpulla affirmatively proved nonownership, the presumption of ownership has been overcome (McCann v. Davison, 145 App. Div. 522 ).

1956Even prior to the enactment of section 12 the display of another’s plate created a common-law presumption of ownership of the car (Ferris v. Sterling, 214 N. Y. 249 ) on the part of the owner of the plate; but since Scarpulla affirmatively proved nonownership, the presumption of ownership has been overcome (McCann v. Davison, 145 App. Div. 522 ).

1953This court, on three occasions prior to the enactment of section 12-a of the Lien Law held that the statement of the amount unpaid as the agreed price and value of the materials furnished and labor performed did not invalidate the notice of lien (Mahley v. German Bank, 52 App. Div. 131 , revd. on other grounds 174 N. Y. 499 ; Boseck v. Riter, 138 App. Div. 912 ; Brady v. Rodenbach, 174 App. Div. 795 ).

1953This court, on three occasions prior to the enactment of section 12-a of the Lien Law held that the statement of the amount unpaid as the agreed price and value of the materials furnished and labor performed did not invalidate the notice of lien (Mahley v. German Bank, 52 App. Div. 131 , revd. on other grounds 174 N. Y. 499 ; Boseck v. Riter, 138 App. Div. 912 ; Brady v. Rodenbach, 174 App. Div. 795 ).

1953This court, on three occasions prior to the enactment of section 12-a of the Lien Law held that the statement of the amount unpaid as the agreed price and value of the materials furnished and labor performed did not invalidate the notice of lien (Mahley v. German Bank, 52 App. Div. 131 , revd. on other grounds 174 N. Y. 499 ; Boseck v. Riter, 138 App. Div. 912 ; Brady v. Rodenbach, 174 App. Div. 795 ).

1953This court, on three occasions prior to the enactment of section 12-a of the Lien Law held that the statement of the amount unpaid as the agreed price and value of the materials furnished and labor performed did not invalidate the notice of lien (Mahley v. German Bank, 52 App. Div. 131 , revd. on other grounds 174 N. Y. 499 ; Boseck v. Riter, 138 App. Div. 912 ; Brady v. Rodenbach, 174 App. Div. 795 ).

1953The cases to the contrary cited in the majority opinion in Fries v. Bray ( 279 App. Div. 8 ) were decided prior to the enactment of section 12-a by chapter 627 of the Laws of 1932.

1951In fact, this statute has been declared to be an admission that “ the sovereign ought to and promises that in future it will voluntarily discharge its moral obligations in the same manner as the citizen is forced to perform a duty which courts and Legislatures have so long held, as to him, to be a legal liability” (Jackson v. State of New York, 261 N. Y. 134, 138 ).