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This publication is intended as an information source for clients, prospective clients, and colleagues. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Fire District Alert: Requirements for Sale or Disposition of Surplus Apparatus Amended

fire service laws

I am often asked about the requirements for disposing of surplus apparatus or other property.  Generally, unless apparatus was being traded in as part payment for new apparatus, fire district commissioners had to pass a resolution subject a mandatory referendum before disposing of surplus property.  However, there are two exceptions to the mandatory referendum requirement:  (1) If the property was valued at less than $50,000, then the board of fire commissioners only needed to pass a resolution subject to a permissive referendum; and (2) If the property was valued at less than $10,000, then the commissioners need only a resolution to dispose of the surplus property.

Effective immediately, those thresholds have been boosted to $100,000 and $20,000, respectively.  For more information about this recent amendment, please see my article on our law firm’s website: New Law Removes Red Tape for Fire Districts Selling Surplus Apparatus.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Can a Fire District Pre-Pay for a New Fire Truck?

This is a question that has come up quite a bit recently, and I’ve decided to explain the reasoning behind my answer here.  Fire apparatus can be very expensive, ranging from several hundred thousand dollars to as much as a million dollars or more for the most sophisticated aerial ladder trucks.  With the tax cap as low as it is, it is easy to see why it may be tempting to take advantage of the savings offered by a vendor who offers a pre-payment option.  Sometimes the savings can be as much as 10% of the cost of the apparatus.  Should you take advantage of this?

It is well settled that “[f]ire districts are established for the purpose of providing fire protection and responding to certain other types of emergencies . . . and have only those powers expressly granted by statute and necessarily implied therefrom.” 1992 Opn. St. Comp. No. 92-41.  Is there a statute that expressly permits a fire district to make pre-payments?

Section 176(4-a) of the Town Law outlines the procedure for fire district commissioners to audit and authorize payment of claims.  Although originally not permitted, payments in advance are now permitted in limited circumstances:

The board of fire commissioners may, further, by resolution authorize the payment in advance of audit of claims for light, telephone, postage, freight and express charges. All such claims shall be presented at the next regular meeting for audit, and the claimant and the officer incurring or approving the same shall be jointly and severally liable for any amount disallowed by the board of fire commissioners.

[N.Y. Town Law section 176(4-a)].

In 1996, fire district commissioners became authorized to make progress payments in connection with the purchase of motor vehicles used for fire-fighting purposes.  But even this authorization was limited.  Section 176(23-a) of the Town Law provides in pertinent part:

In any case of a purchase from a manufacturer of a motor vehicle used for fighting fires, whether or not including apparatus used in connection with such motor vehicle, having a period of probable usefulness of ten years as determined by section 11.00 of the local finance law, advertisement for sealed bids may be made and the purchase contract may be awarded for such motor vehicle and apparatus with the provision, if the board of fire commissioners shall so specify, that progress payments be made to the manufacturer as the motor vehicle or apparatus or both progresses, provided that evidence satisfactory to the board of fire commissioners as to the progress of such work be produced with each request by the manufacturer for a progress payment, and further provided that such progress payments shall not exceed four in number and that at least twenty-five per cent of the contract price of the motor vehicle or apparatus or both be withheld by the board of fire commissioners until such motor vehicle or apparatus or both are delivered to and accepted by the board of fire commissioners, and further provided that every such contract providing for progress payments shall be accompanied by a surety bond of a property/casualty insurance company, as defined in section one hundred seven of the insurance law, for the completion of the work, specified in the contract, within the amount stipulated therein, which bond shall be filed with the board of fire commissioners.

[N.Y. Town Law section 176(23-a)].  In other words, a fire district may use progress payments to purchase apparatus, provided the following requirements are met:

  1. The specifications for the purchase must include an option to make progress payments;
  2. There shall be no more than four payments;
  3. Each request for payment must include evidence satisfactory to the board of fire commissioners as to the progress of the work;
  4. At least 25% must be withheld by the board of fire commissioners (i.e., the last payment) until such motor vehicle or apparatus or both are delivered to and accepted by the board of fire commissioners; and
  5. The contract providing for progress payments shall be accompanied by a surety bond.

These requirements do not permit advance payments or any other type of pre-payment.  However, if the foregoing criteria are met, progress payments are permitted.  While the savings offered by vendors will not be as great as the pre-payment option, many vendors also offer progress payment options, and these options should be considered.  At the very least, the bid specifications should include a request that the vendors include options for progress payments (and the specifications should also explain how the lowest responsible bidder will be determined if such options are requested).

Although it would seem to be in the best interest of the taxpayers to obtain the discount offered by the pre-payment option, taking advantage of this option would run counter to the public policy of the State of New York.  This is similar to the rules that prohibit fire districts and other municipalities from investing their funds in something other than insured certificates of deposit or United States obligations.  In a recent fire district audit involving the failure of a fire district to invest funds properly, the Comptroller explained that “[t]he law emphasizes safety, security and liquidity over yield, because improper investments could result in a risk of market fluctuation and the loss of principal.”  [Orient Fire District Audit at 6 (March 2016)].

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This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Giddyup! Horseback Rider Survives Injury (and Ranch’s Summary Judgment Motion)

My wife finally convinces me to go on a trail ride.  Emerald Springs Ranch?

My wife finally convinces me to go on a trail ride.

Year after year, no matter where we went for vacation, we always seemed to drive by a ranch offering trail rides.  Finally, after many years of declining such requests, my wife finally convinced me to give it a try.  We were vacationing in the Adirondacks and I owed it to my wife to finally give horseback riding a try.  

Earlier in the week, I went overboard with the mountains we climbed–choosing in mid-hike to add another nearby mountain to our trek before returning to the car.  Suffice it to say, this made it easier for my wife to convince me to finally go on my first trail ride.

While the trail ride proved to be a fun experience (and I’ve been riding a few times since then), I was pretty nervous about being that high up on unfamiliar trails.  I also remember the guide giving us a short pre-ride lesson, and while he was sitting on his horse, it stepped back and tripped on the small step ladder he used to get on the horse.  This only served to heighten my anxiety, as I already had Christopher Reeve on my mind, and now I watched our guide nearly fall off his horse.  But we made it without any other mishaps.

By now, you’re probably thinking, “What does this story have to do with the injured horseback rider you mentioned earlier?”  I am pretty sure that the ranch where I first rode was the Emerald Springs Ranch in Saranac Lake (how many other ranches could there be in Saranac Lake?).  So when I saw a case about an injured horseback rider suing the Emerald Springs Ranch I knew I had to write about it.

In Vanderbrook v. Emerald Springs Ranch, 109 A.D.3d 1113, 971 N.Y.S.2d 754 (4th Dep’t 2013), the horseback rider sued the Ranch, seeking damages for personal injuries she sustained while riding a horse on a guided trail ride at the Ranch.  During the ride, the horse brushed up against a tree, plaintiff was unable to push away from the tree, and the tree caught plaintiff’s leg, allegedly injuring her leg and hip.

The Ranch moved for summary judgment, asking the trial court to dismiss the complaint as a matter of law because, according to the defendant, the plaintiff could not establish either (1) the horse’s “vicious propensity” or (2) that the Ranch was aware of such “vicious propensity.”  How could a horse have a vicious propensity?  Should be pretty easy, right?

Not exactly.  As the court noted, “It is well settled that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities.”  [Vanderbrook, 109 A.D.3d at __, 971 N.Y.S.2d at 755 (internal quotations omitted)].  “[A]n animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities–albeit only when such proclivity results in the injury giving rise to the lawsuit.” [Id. (internal quotations omitted)].

In an effort to convince the court that the complaint should be dismissed, the Ranch submitted proof establishing that the rider herself testified that she was in fact instructed by Ranch personnel to push off the trees if the horse walked too closely to the trees on the single-track trail.  The Ranch bolstered this proof with the transcript of the Ranch owner’s deposition, in which she also stated that she told her guides to instruct riders to push off the trees of the horses rode too closely to them.  The Ranch obviously thought this proof would support its arguments.  But the court instead found that this proof instead illustrated a question of fact to be determined at trial as to whether the Ranch knew of the horse’s propensity to walk too closely to the trees, which was the behavior that allegedly caused the rider’s injury.

The court also ruled that the Ranch failed to establish as a matter of law that the rider assumed the risk of horseback riding.  “Assumption of the risk” is a defense often successfully asserted in recreational injury cases.  However, as the court noted here, “Horseback riding participants will not be deemed to have assumed unreasonably increased risks.” [Id. (internal quotations omitted)].  According to the court, the Ranch’s evidence again raised questions of fact as to whether the Ranch unreasonably increased the risks of horseback riding by using a bitless bridle on their horses, which allegedly failed to provide plaintiff with the ability to control the horse, and by failing to give the plaintiff, who was a novice rider, adequate instruction on how to control the horse.  When looking at the pictures of my first ride, I noticed that the bridle on my horse also appeared to be bitless.

Finally, the Ranch also sought dismissal of the complaint based on the waiver of liability that the rider signed before the ride.  The court ruled that the Ranch failed to establish any entitlement to dismissal on this ground as well, finding that the release here was void as against public policy based upon General Obligations Law section 5-326.  Although it is a common practice to ask participants to sign waivers like this before engaging in certain recreational activities, many (but not all) of these releases have been rendered void by this provision of the General Obligations Law.  The issues presented by such releases are beyond the scope of this post, and I plan to write about that in a future post.

So what happens next?  In all likelihood, the case will be scheduled for a trial.  Although the injured rider survived the Ranch’s motion for summary judgment, this only means that she was able to convince the judge that factual issues exist, warranting a trial.  Absent a settlement of the claim, she now must convince a jury that she is entitled to recover.

Giddyup!  My First Time on a Horse!

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