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FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT).

The Second Department determined this foreclosure proceeding was properly dismissed for failure to comply with a 90-day demand pursuant to CPLR 3216 (b)(3):

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Where, as here, a plaintiff has been served with a 90-day demand pursuant to CPLR 3216(b)(3), that plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day period … . The plaintiff failed to do either within the 90-day period. Therefore, in order to excuse the default, the plaintiff was required to demonstrate a justifiable excuse for its failure to timely file the note of issue or move to either vacate the demand or extend the 90-day period, as well as a potentially meritorious cause of action… . Nevertheless, it has been said that CPLR 3216 is “extremely forgiving” … , “in that it never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … .

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the defendant’s motion pursuant to CPLR 3216 to dismiss the action insofar as asserted against him. The plaintiff took no action whatsoever in the five years from the time the case was released from the foreclosure settlement part on October 15, 2009, until the defendant served his 90-day demand on October 10, 2014. Moreover, after failing to comply with the 90-day deadline, the plaintiff took no action for five months before belatedly filing a note of issue. The plaintiff failed to provide a justifiable excuse for its delay in filing a note of issue and failed to demonstrate a potentially meritorious cause of action. The plaintiff’s further contention that dismissal was too harsh a sanction, and that a lesser sanction was more appropriate under the circumstances, is unavailing, given the plaintiff’s “pattern[ ] of persistent neglect, a history of extensive delay, evidence of an intent to abandon prosecution and lack of any tenable excuse for such delay”  … . Deutsche Bank Natl. Trust Co. v Inga, 2017 NY Slip Op 08810, Second Department 12-20-17\

 

FORECLOSURE (CIVIL PROCEDURE, FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT))/CPLR 3216(b)(3) (FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT))/ABANDONMENT OF ACTION (CIVIL PROCEDURE, FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT))/NEGLECT TO PROSECUTE (CIVIL PROCEDURE, FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT))

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PROOF DID NOT SUPPORT TERMINATION OF FATHER’S PARENTAL RIGHTS (SECOND DEPT).

The Second Department, reversing Family Court, determined the proof did not support the termination of father’s parental rights:

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An order terminating parental rights may be granted where the parent “abandoned [the] child for the period of six months immediately prior to the date on which the petition is filed in the court” … . Abandonment must be proven by clear and convincing evidence … .

Here, the agency failed to establish, by clear and convincing evidence, that during the relevant period of time the father evinced an intent to forgo his parental rights and obligations … . The record demonstrates that once the father had sufficient reason to believe he might be the father, he took action to assert his paternity …  and sought to have contact with the child, filed petitions for custody, visited with the child on two occasions and attempted to visit on a third occasion, and brought the child snacks, toys, and clothes during the visits. In addition, the father spoke with the caseworker on the phone on multiple occasions, paid child support in the amount of $25 per month, and provided the caseworker with information about where he was living, who he was living with, and about a daycare where he would enroll the child. Under these circumstances, the Family Court should have denied the petition on the merits, and dismissed the proceeding … . Matter of Darrell J. D. J. (Kenneth R.), 2017 NY Slip Op 08826, Second Dept 12-2017

FAMILY LAW (PARENTAL RIGHTS, PROOF DID NOT SUPPORT TERMINATION OF FATHER’S PARENTAL RIGHTS (SECOND DEPT))/PARENTAL RIGHTS (FAMILY LAW, PROOF DID NOT SUPPORT TERMINATION OF FATHER’S PARENTAL RIGHTS (SECOND DEPT))/ABANDONMENT (PARENTAL RIGHTS, PROOF DID NOT SUPPORT TERMINATION OF FATHER’S PARENTAL RIGHTS (SECOND DEPT))

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ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT SUBJECT TO THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined, among other things, the arbitration of the breach contract claim did not preclude tort actions against the school defendants by a former student and his parents. The Second Department further determined Supreme Court should not have dismissed causes of action against the school on grounds not raised by the parties, should not have dismissed causes of action against a party which did not move for dismissal, and the four-month Article 78 statute of limitations, which usually applies to actions against schools, did not apply to the tort causes of action raised here. The allegations included bullying and an improper relationship between the student and certain defendants:

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On a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” … . The complaint must be liberally construed in the light most favorable to the plaintiff, and all allegations must be accepted as true … . Broadly construed, the allegations, inter alia, of an “inappropriate relationship” between the plaintiff’s son and Stowell, an instructor or teacher at Knox School, the allegations of multiple communications from Stowell to the son around the time of his temporary “disappearance” from school and home in late 2012, and the allegations that Stowell refused to cooperate with a police investigation, suffice to state causes of action sounding in negligence … , intentional infliction of emotional distress … , and negligent infliction of emotional distress … . Cheslowitz v Board of Trustees of the Knox Sch., 2017 NY Slip Op 08807, Second Dept 12-20-17

 

NEGLIGENCE (ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))/CIVIL PROCEDURE  (ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))/CPLR 3211 (a)(7)  (ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))

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DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT).

The Second Department determined defendant was entitled to a new Sex Offender Registration Act (SORA) risk level hearing because his attorney did not advocate his position and did not understand the availability of downward departure:

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A defendant has a right to the effective assistance of counsel in a SORA proceeding … . Here, the defendant’s counsel “failed to litigate any aspect of the adjudication” … , and, instead, affirmatively asserted that there was no basis on which to challenge or depart from the presumptive risk level. Moreover, defense counsel’s comments suggested that there was no basis for a downward departure because the points “add[ed] up validly,” thus demonstrating a misunderstanding of the law regarding downward departures from the presumptive risk level … . These facts, as well as defense counsel’s failure to seek a downward departure under the circumstances of this case, operated to deprive the defendant of meaningful representation in the SORA proceeding … . People v Collins, 2017 NY Slip Op 08866, Second Dept 12-20-17

 

CRIMINAL LAW (SORA, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, SORA HEARING, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (SORA, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (ATTORNEYS, INEFFECTIVE ASSISTANCE, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))

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FAILURE TO ADEQUATELY QUESTION JUROR ABOUT HER ABILITY TO BE FAIR AFTER SHE INDICATED SHE DID NOT THINK A PERSON SHOULD RESPOND TO VIOLENCE WITH VIOLENCE REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the court did not sufficiently question a juror about her ability to be fair after she indicated she didn’t think a person should respond to violence with violence:

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Here, during voir dire, a prospective juror indicated in response to questioning by defense counsel that she felt “you are never in the right if you respond to aggression with physical violence” and should “always turn the other cheek,” and that it was possible her belief could influence how she would decide the case. When the Supreme Court followed up by asking the prospective juror if her “religious beliefs” affected her verdict when she previously served on a criminal jury, she stated “I’m an atheist.” The court did not inquire further into the prospective juror’s ability to render an impartial verdict.

Under the circumstances of this case, the prospective juror’s statements revealed a state of mind likely to preclude her from rendering an impartial verdict, and thus, it was incumbent upon the Supreme Court to ascertain that she would render an impartial verdict based on the evidence … . The court failed to obtain an unequivocal assurance from the prospective juror, who never indicated that “religious beliefs” might influence her decision, that she would render an impartial verdict based on the evidence despite her feelings about the use of violence … . Further, the court’s collective inquiry to the whole panel as to whether “everybody here” could be fair and impartial was insufficient to constitute an unequivocal declaration of impartiality from the prospective juror at issue … . People v Francois, 2017 NY Slip Op 08844, Second Dept 12-20-17

 

CRIMINAL LAW (FAILURE TO ADEQUATELY QUESTION JUROR ABOUT HER ABILITY TO BE FAIR AFTER SHE INDICATED SHE DID NOT THINK A PERSON SHOULD RESPOND TO VIOLENCE WITH VIOLENCE REQUIRED REVERSAL (SECOND DEPT))/VOIR DIRE (CRIMINAL LAW, FAILURE TO ADEQUATELY QUESTION JUROR ABOUT HER ABILITY TO BE FAIR AFTER SHE INDICATED SHE DID NOT THINK A PERSON SHOULD RESPOND TO VIOLENCE WITH VIOLENCE REQUIRED REVERSAL (SECOND DEPT))/JURORS (CRIMINAL LAW, VOIR DIRE, FAILURE TO ADEQUATELY QUESTION JUROR ABOUT HER ABILITY TO BE FAIR AFTER SHE INDICATED SHE DID NOT THINK A PERSON SHOULD RESPOND TO VIOLENCE WITH VIOLENCE REQUIRED REVERSAL (SECOND DEPT))

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FAILURE TO OBJECT TO DISCOVERY DEMANDS REQUIRED THAT THE COURT GRANT THE MOTION TO COMPEL DISCOVERY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s failure to object to plaintiff’s discovery demands required the court to grant plaintiff’s motion to compel discovery:

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A defendant’s failure to make a timely challenge to a plaintiff’s document demand pursuant to CPLR 3122(a)(1) forecloses inquiry into the propriety of the information sought except with regard to material that is privileged pursuant to CPLR 3101 or requests that are palpably improper … . Here, the defendant City of New York did not object to the plaintiff’s requests for discovery dated February 4, 2014, and February 12, 2015, respectively, within the required time period, and it failed to either asserted a valid privilege or establish that the demands were palpably improper.

Accordingly, the Supreme Court erred in denying the plaintiff’s motion to compel the City to comply with those requests for discovery.  Recine v City of New York, 2017 NY Slip Op 08870, Second Dept 12-20-17

 

CIVIL PROCEDURE (DISCOVERY, FAILURE TO OBJECT TO DISCOVERY DEMANDS REQUIRED THAT THE COURT GRANT THE MOTION TO COMPEL DISCOVERY (SECOND DEPT))/DISCOVERY (MOTION TO COMPEL, FAILURE TO OBJECT TO DISCOVERY DEMANDS REQUIRED THAT THE COURT GRANT THE MOTION TO COMPEL DISCOVERY (SECOND DEPT))/CPLR 3122 (DISCOVERY, FAILURE TO OBJECT TO DISCOVERY DEMANDS REQUIRED THAT THE COURT GRANT THE MOTION TO COMPEL DISCOVERY (SECOND DEPT))

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COURT HAS DISCRETION TO ACCEPT UNAUTHORIZED SURREPLIES (SECOND DEPT).

The Second Department noted that a judge has the discretion to control motion practice and may accept substantive surreplies:

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While unauthorized surreplies containing new arguments generally should not be considered, the Supreme Court has the authority to regulate the motion practice before it, as well as the discretion to determine whether to accept late papers or even surreply papers for “good cause” (CPLR 2214[c] …). Here, the Supreme Court did not improvidently exercise its discretion in determining that it would consider the supplemental evidence sought to be submitted by the plaintiff. The plaintiff proferred a valid excuse, the delay was minimal, and there was no prejudice as the court also determined that it would give the defendant a full opportunity to respond to, and submit further evidence addressing, the plaintiff’s submissions … . U.S. Bank Trust, N.A. v Rudick, 2017 NY Slip Op 08874, Second Dept 12-20-17

CIVIL PROCEDURE (MOTION PRACTICE, COURT HAS DISCRETION TO ACCEPT UNAUTHORIZED SUBSTANTIVE SURREPLIES (SECOND DEPT))/SURREPLIES (CIVIL PROCEDURE, COURT HAS DISCRETION TO ACCEPT UNAUTHORIZED SUBSTANTIVE SURREPLIES (SECOND DEPT))/MOTION PRACTICE (SURREPLIES,  COURT HAS DISCRETION TO ACCEPT UNAUTHORIZED SUBSTANTIVE SURREPLIES (SECOND DEPT))

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ATTORNEY WHO HIRED AN ASSOCIATE WHO PREVIOUSLY WORKED AS A PARALEGAL AT THE FIRM REPRESENTING DEFENDANTS SHOULD HAVE BEEN DISQUALIFIED (SECOND DEPT).

The Second Department, reversing Supreme Court determined the disqualification of plaintiffs’ counsel, D’Agostino, was required based on his hiring of an associate, Monteleon, who previously worked as a paralegal in the firm representing defendants. Even if Monteleon had not acquired client confidences, there existed the appearance of impropriety:

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The Supreme Court should have granted the defendants’ motions to disqualify D’Agostino as the plaintiffs’ counsel in the instant actions. A party seeking to disqualify an attorney or a law firm for an opposing party on the ground of conflict of interest has the burden of demonstrating (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse … . When the moving party is able to demonstrate each of these factors, an irrebuttable presumption of disqualification follows … . The defendants established that there is an irrebuttable presumption that Monteleon, who was a paralegal and subsequently D’Agostino’s associate, is subject to disqualification from representing the plaintiffs in these actions due to his prior employment.

Where one attorney is disqualified as a result of having acquired confidential client information in his former employment (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.9), there is a rebuttable presumption that the entirety of the attorney’s current firm must be disqualified … . … There is a rebuttable presumption here that D’Agostino, who employed Monteleon as a paralegal and subsequently an associate in his solo practice, is disqualified from representing the plaintiffs. That presumption has not been rebutted by the plaintiffs, as they failed to disprove that Monteleon had the opportunity to acquire confidential information in his former employment.  …

Even assuming that the irrebuttable presumption in favor of disqualification did not attach to Monteleon, disqualification of D’Agostino nonetheless is warranted. … Any doubts as to the existence of a conflict of interest must be resolved in favor of disqualification … . Moray v UFS Indus., Inc., 2017 NY Slip Op 08822, Second Dept 12-20-17

 

ATTORNEYS (CONFLICT OF INTEREST, ATTORNEY WHO HIRED AN ASSOCIATE WHO PREVIOUSLY WORKED AS A PARALEGAL AT THE FIRM REPRESENTING DEFENDANTS SHOULD HAVE BEEN DISQUALIFIED (SECOND DEPT))/CONFLICT OF INTEREST (ATTORNEY WHO HIRED AN ASSOCIATE WHO PREVIOUSLY WORKED AS A PARALEGAL AT THE FIRM REPRESENTING DEFENDANTS SHOULD HAVE BEEN DISQUALIFIED (SECOND DEPT))/IMPROPRIETY, APPEARANCE OF (ATTORNEY WHO HIRED AN ASSOCIATE WHO PREVIOUSLY WORKED AS A PARALEGAL AT THE FIRM REPRESENTING DEFENDANTS SHOULD HAVE BEEN DISQUALIFIED (SECOND DEPT))/DISQUALIFICATION (ATTORNEYS, CONFLICT OF INTEREST, ATTORNEY WHO HIRED AN ASSOCIATE WHO PREVIOUSLY WORKED AS A PARALEGAL AT THE FIRM REPRESENTING DEFENDANTS SHOULD HAVE BEEN DISQUALIFIED (SECOND DEPT))

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EVEN WHERE AN INJURED WORKER SETTLES WITH A THIRD-PARTY BEFORE THE WORKERS’ COMPENSATION SCHEDULE LOSS OF USE IS DETERMINED, THE EMPLOYER’S CARRIER MUST SHARE IN THE LITIGATION COSTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the appellate division, determined the employer’s workers’ compensation carrier  must share in the litigation costs incurred by an injured worker, even where the worker’s settlement with a third-party precedes the workers’ compensation schedule loss of use is determined:

Joseph Terranova, a foreman employed by the Lehr Construction Company, injured his right knee on a raised floor tile at a job site. He sought both workers’ compensation benefits from Lehr’s carrier, the New Hampshire Insurance Company (NHIC), and damages from the third-party contractor responsible for the defective tile. At the time of Mr. Terranova’s settlement with the third party — to which NHIC consented in a letter — he had received $21,495.99 in workers’ compensation payments and was litigating the extent of his schedule loss of use before a workers’ compensation law judge. Proceedings before that judge continued after the third-party settlement and ultimately resulted in a finding that Mr. Terranova suffered a ten percent schedule loss of use of the right leg that entitled him to 28.8 weeks of benefits, or an additional $9,960. Despite Mr. Terranova’s arguments to the contrary, the judge — as well as the Board and the Appellate Division — concluded that because his ultimate award was of a type we had indicated had an ascertainable present value, he was not entitled to the post-settlement apportionment of the litigation expenses contemplated for other types of awards in Burns v Varriale (9 NY3d 207 [2007]). * * *

Neither Kelly [60 NY2d 131] nor Burns contemplated the sequence involved here, in which a third-party settlement was consummated before an award was determined. Here, although the Board ultimately recognized the inequity of its initial determination, it first misinterpreted Kelly and Burns as requiring that litigation costs apportioned against all schedule loss of use awards be either assigned at the time of the third-party settlement or not at all. …

When, as here, the present value of the loss of use or other benefits is not finalized at the time of the claimant’s recovery in the third-party matter, the carrier must pay its fair share once the present value is determined. Matter of Terranova v Lehr Constr. Co., 2017 NY Slip Op 08799, CtApp 12-19-17

WORKERS’ COMPENSATION LAW (EVEN WHERE AN INJURED WORKER SETTLES WITH A THIRD-PARTY BEFORE THE WORKERS’ COMPENSATION SCHEDULE LOSS OF USE IS DETERMINED, THE EMPLOYER’S CARRIER MUST SHARE IN THE LITIGATION COSTS (CT APP))/LITIGATION COSTS (WORKERS’ COMPENSATION LAW, EVEN WHERE AN INJURED WORKER SETTLES WITH A THIRD-PARTY BEFORE THE WORKERS’ COMPENSATION SCHEDULE LOSS OF USE IS DETERMINED, THE EMPLOYER’S CARRIER MUST SHARE IN THE LITIGATION COSTS (CT APP))

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NYC WATER BOARD’S RATE HIKE AND BILL CREDIT WERE NOT IRRATIONAL. ARBITRARY OR CAPRICIOUS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two-judge dissent, reversing the appellate division, determined the rate hike imposed by the NYC Water Board was not arbitrary and capricious. The board imposed a 2.1% rate increase, a bill credit, and assistance programs and low-consumption rate freeze. Petitioners — various landlords not eligible for the bill credit and a landlords’ not-for-profit association — … assert that the Water Board’s determinations were irrational, arbitrary and capricious, and exceeded the Board’s authority:

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Our case law holds that a utility has “unfettered discretion to fix [rates] as it will so long as invidious illicit discriminations are not practiced and differentials are not utterly arbitrary and unsupported by economic or public policy goals, as it reasonably conceives them”… . A petitioner’s task in demonstrating that the rate-setting agency’s determination is unreasonable is appropriately described as a “heavy burden” … .

It is clear from the governing statutes that water and sewer rates may be determined in accordance with public policy goals, and not only economic goals. The Water Board “may take into consideration the views and policies of any elected official or body, or other person” and ultimately “appl[ies] independent judgment in the best interest of the authority, its mission and the public” … . Moreover, the statutory scheme gives the Board leeway to charge more than the bare minimum necessary for revenue recovery, by stating that the rates are to generate “revenues which, together with other revenues available to the board, if any, shall be at least sufficient at all times so that such system or systems shall be placed on a self-sustaining basis” … . In short, New York City’s “Water Board is granted broad authority to set rates for water usage” … .

Here, we cannot say that respondents’ actions were “utterly arbitrary and unsupported by economic or public policy goals, as it reasonably conceives them” … . Matter of Prometheus Realty Corp. v New York City Water Bd., 2017 NY Slip Op 08801, CtApp 12-19-17

 

MUNICIPAL LAW (NYC WATER BOARD’S RATE HIKE AND BILL CREDIT WERE NOT IRRATIONAL, ARBITRARY OR CAPRICIOUS (CT APP))/ADMINISTRATIVE LAW (NYC WATER BOARD’S RATE HIKE AND BILL CREDIT WERE NOT IRRATIONAL, ARBITRARY OR CAPRICIOUS (CT APP))/WATER BOARD (NYC WATER BOARD’S RATE HIKE AND BILL CREDIT WERE NOT IRRATIONAL, ARBITRARY OR CAPRICIOUS (CT APP))

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