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PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT).

The Second Department determined the town planning board’s denial of petitioner’s application for a wetland control permit and site plan approval was properly annulled by Supreme Court. The planning board’s action departed from many prior determinations and the planning board did not set forth any factual reasons for the departure:

… ” [A] local planning board has broad discretion in reaching its determination on applications . . . and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion'”… . ” A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious'” … . Where an agency reaches contrary results on substantially similar facts, it must provide an explanation … . “An agency’s failure to provide a valid and rational explanation for its departure from its prior precedent mandates reversal’ regardless of whether the record otherwise supports the determination” … .

Here, the Planning Board failed to set forth any factual basis in the determination as to why it was departing from numerous prior determinations that, for example, permitted larger encroachments into wetland and wetland buffer areas and permitted encroachments of the same or similar type into those areas within the immediate vicinity of the petitioner’s lot. The Planning Board’s belated effort to provide such distinctions are not properly before this Court … . Matter of Nicolai v McLaughlin, 2018 NY Slip Op 05046, Second Dept 7-5-18

​ADMINISTRATIVE LAW (ZONING,  PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT))/ENVIRONMENTAL LAW (PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT))/LAND USE (PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT))/WETLANDS (PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT))

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WHERE RESPONDENTS MADE A PRE-ANSWER MOTION TO DISMISS, THE ULTIMATE RELIEF SOUGHT BY PETITIONER SHOULD NOT HAVE BEEN GRANTED; THE MATTER WAS REMITTED TO ALLOW RESPONDENTS TO ANSWER THE PETITION (SECOND DEPT).
INSURER WAS NOTIFIED OF PLAINTIFFS’ LAWSUIT BY THE INJURED PLAINTIFFS NOT THE INSURED; DISCLAIMER ONLY ADDRESSED INSURED’S NOTIFICATION FAILURE AND WAS THEREFORE INEFFECTIVE AGAINST PLANTIFFS.
DEFENDANTS’ AFFIDAVITS SUBMITTED IN REPLY TO CLAIMANT’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT RAISED A QUESTION OF FACT; DEFENDANTS’ MOTION TO DISMISS THE CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED; PLAINTIFF’S EXPERT DID NOT DEMONSTRATE THE NECESSARY EXPERTISE AND THE EXPERT’S AFFIDAVIT WAS CONCLUSORY AND SPECULATIVE; THE COURT NOTED THAT A THEORY RAISED FOR THE FIRST TIME IN OPPOSITION TO SUMMARY JUDGMENT SHOULD NOT BE CONSIDERED (SECOND DEPT).
JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND SHOULD NOT HAVE ADDRESSED THE ISSUE OF STANDING, WHICH IS NOT JURISDICTIONAL AND COULD NOT BE RAISED BY A DEFAULTING DEFENDANT (SECOND DEPT).
SUPPORT MAGISTRATE HAD THE AUTHORITY TO VACATE MAINTENANCE ARREARS; THE FORMER HUSBAND DEMONSTRATED THE FORMER WIFE WAIVED HER RIGHT TO MAINTENANCE PAYMENTS 16 YEARS BEFORE THE PETITION WAS BROUGHT (SECOND DEPT).
ALTHOUGH PLAINTIFF INDICATED SHE DID NOT KNOW THE CAUSE OF HER FALL IN HER DEPOSITION, IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHE RAISED A QUESTION OF FACT ABOUT WHETHER THE FLOOR WAS WET FROM TRACKED IN SNOW AND DEFENDANT DID NOT PRESENT ANY EVIDENCE ON THE ISSUE OF NOTICE (SECOND DEPT).
THE SEPARATION AGREEMENT WAS NOT UNCONSCIONABLE, BUT THERE WAS A QUESTION WHETHER THE AGREEMENT WAS THE PRODUCT OF OVERREACHING, HEARING ORDERED (SECOND DEPT).

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