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CLAIMANT PROPERLY AWARDED 100% SLU FOR FOUR AMPUTATED FINGERS AND AN ADDITIONAL 100% SLU FOR THE REATTACHED NONFUNCTIONAL THUMB.

The Third Department, over a dissent, determined claimant was properly awarded 100% schedule loss of use (SLU) for the amputation of four fingers on his right hand and an additional 100% SLU for the reattached non-functional thumb on his right hand:

… [T]he Board proportioned the loss of four fingers to the total loss of the hand as required by Workers’ Compensation Law § 15 (3) (q), and then separately evaluated the distinct and additional injury to the thumb, to which it awarded a 100% SLU. We defer to the Board’s determination to credit the sole proffered medical opinion of Paterson, and the Board’s conclusion based thereon that claimant sustained a separate and distinct injury to his thumb, which therefore warranted separate SLU determinations and awards for the thumb and the fingers … . Such result is supported by the guidelines, which contemplate awards greater than 100% for the loss of a hand (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 17, figure 2.8 [2012]) and provide that the loss of four fingers, excluding the thumb, constitutes a 100% SLU of the hand … . The guidelines, which address impairments to the thumb separately from fingers (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 12-14 [2012]), provide that “[t]he thumb deserves special consideration; it is the highest valued digit and the most important” (New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 17 [2012]). Under these circumstances, the Board’s determination to assign a separate SLU to the loss of the thumb and to make a distinct award is supported by the case law and the guidelines, and is not contrary to the statutory language. Therefore, we uphold the Board’s determination and affirm the amended decision. Matter of Deck v Dorr, 2017 NY Slip Op 04186, 3rd Dept 5-25-17

WORKERS’ COMPENSATION LAW (CLAIMANT PROPERLY AWARDED 100% SLU FOR FOUR AMPUTATED FINGERS AND AN ADDITIONAL 100% SLU FOR THE REATTACHED NONFUNCTIONAL THUMB)/SCHEDULE LOSS OF USE (SLU) (WORKERS’ COMPENSATION LAW, CLAIMANT PROPERLY AWARDED 100% SLU FOR FOUR AMPUTATED FINGERS AND AN ADDITIONAL 100% SLU FOR THE REATTACHED NONFUNCTIONAL THUMB)/HAND (WORKERS’ COMPENSATION LAW, CLAIMANT PROPERLY AWARDED 100% SLU FOR FOUR AMPUTATED FINGERS AND AN ADDITIONAL 100% SLU FOR THE REATTACHED NONFUNCTIONAL THUMB)

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DRIVER FOR A MEDICAL DELIVERY SERVICE WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS, NOTWITHSTANDING THE DRIVER’S CONTRACT WITH A THIRD PARTY PAYROLL COMPANY.

The Third Department determined a driver for Medical Delivery Services (MDS), which delivers highly regulated time-sensitive radioactive medication, was an employee of MDS entitled to unemployment insurance benefits, notwithstanding that the driver’s contract was with a third-party administrator:

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Medical Delivery Services (hereinafter MDS) is a provider of courier services specializing in the transportation of time-sensitive radioactive medications that is regulated by state and federal law. MDS engaged the services of drivers to transport these medications and contracted with Subcontracting Concepts Inc. (hereinafter SCI), a payroll company, to act as the third-party administrator to handle employment-related matters involving the drivers. Claimant responded to an advertisement placed by MDS and, after satisfying necessary requirements, was retained as a driver using his own vehicle. He entered into an owner/operator agreement with SCI in connection therewith.  * * *

… MDS placed the advertisement for owner/operator drivers and, when claimant responded, it conducted the initial interview and screening, paid for necessary drug tests and provided claimant with hazardous material training that was required by the Department of Transportation. Although claimant was actually paid by SCI and was designated an independent contractor under the owner/operator agreement, MDS provided SCI with the funds to pay claimant, set claimant’s pay rate at 59 cents per mile and dictated other aspects of his compensation, including reimbursement for tolls and fuel surcharges. Significantly, claimant dealt with MDS, not SCI, in the performance of his work duties.

In accordance with regulatory and legal requirements, MDS required claimant to adhere to a strict delivery schedule, report each delivery via his cell phone and submit specific invoices to MDS for each delivery. In addition, MDS required claimant to carry certain safety equipment in his vehicle, including a dosimeter, which MDS monitored to detect radiation levels. MDS also imposed a dress code, providing claimant with polo shirts bearing its logo, and furnished him with an identification badge, lanyard and clipboard advertising its name. Furthermore, in the event that claimant wanted to take time off, he needed to provide MDS with advance notice, and MDS, not claimant, selected the replacement driver. Although much of the control exercised by MDS was occasioned by the highly regulated nature of the work performed, many other aspects of the control that MDS exercised were not. In view of the foregoing, we find that substantial evidence supports the Board’s finding of an employment relationship notwithstanding the evidence that would support a contrary conclusion … . Matter of Crystal (Medical Delivery Servs.–Commissioner of Labor), 2017 NY Slip Op 04185, 3rd Dept 5-25-17

 

UNEMPLOYMENT INSURANCE (DRIVER FOR A MEDICAL DELIVERY SERVICE WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS, NOTWITHSTANDING THE DRIVER’S CONTRACT WITH A THIRD PARTY PAYROLL COMPANY)/DRIVERS (UNEMPLOYMENT INSURANCE, DRIVER FOR A MEDICAL DELIVERY SERVICE WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS, NOTWITHSTANDING THE DRIVER’S CONTRACT WITH A THIRD PARTY PAYROLL COMPANY)

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PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER.

The Third Department determined defendant school district was entitled to summary judgment in this sports injury case. Plaintiff (Legac) was struck in the face by a baseball during tryouts held in the gymnasium (due to weather). The Third Department held that the school district demonstrated plaintiff had assumed the risk of injury. He was an experienced baseball player and was aware of the way the baseball was being hit by the coach and the way the baseball reacted when striking the gymnasium floor:

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While Legac testified that he believed that Potter was hitting the ball “too hard” and that the baseball traveled faster on the gymnasium floor than it would have on a baseball field, such conditions were open and obvious and clearly appreciated by Legac, who had the opportunity to watch the players ahead of him complete the ground ball fielding drill and had observed the ball interact with the flooring over three days of indoor tryouts … . Inasmuch as the conditions inherent in the indoor ground ball fielding drill were readily apparent to Legac and the risk of being struck by a ball was a reasonably foreseeable consequence of engaging in that drill, we find that defendants established their prima facie entitlement to summary judgment dismissing the complaint … . Legac v South Glens Falls Cent. Sch. Dist., 2017 NY Slip Op 04182, 3rd Dept 5-25-17

NEGLIGENCE (PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)/EDUCATION-SCHOOL LAW (SPORTS, PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)/ASSUMPTION OF THE RISK (EDUCATION-SCHOOL LAW, PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)/BASEBALL (EDUCATION-SCHOOL LAW, SPORTS, PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)

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COMPLEX ISSUES ARISE IN RETROACTIVELY DETERMINING THE APPROPRIATE RENTAL AMOUNT FOR A RENT STABILIZED APARTMENT OCCUPIED BY THE SAME TENANTS SINCE 2000.

The First Department, in a full-fledged opinion by Justice Gische, dealt with complex issues relating to the appropriate rental amount for a rent stabilized apartment occupied by the same tenants since 2000:

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There are interlocking complex issues framed by this appeal involving plaintiffs’ claims that the apartment they have continuously rented for the last 16 years (apartment 5M), was improperly removed from rent stabilization. The overarching issue is whether the apartment should be restored to rent stabilization because defendant 72A Realty Associates L.P. (the Owner) deregulated the apartment pursuant to the luxury decontrol laws while it was simultaneously receiving tax incentives under the City’s J-51 program … . There can be little dispute that following Roberts v Tishman Speyer Props., L.P., (13 NY3d 270 [2009]) and its progeny applying Roberts retroactively … the subject apartment must be returned to rent stabilization as of 2000, when the Owner first treated the apartment as exempt. The thornier issues implicated by returning the apartment to rent stabilization concern the setting of the stabilized rent, the base date for, and the statute of limitations applicable to, the setting of such rent, and the possible imposition of treble damages and attorney fees. We agree with Supreme Court that plaintiffs are entitled to a declaration that the apartment was and still is subject to rent stabilization and that they are the rent-stabilized tenants thereof. We also agree with Supreme Court that the issues of the legal rent, as well as the issues of possible overcharge, treble damages and attorneys fees cannot be resolved on a motion for summary judgment. We disagree with Supreme Court only insofar as it held that the increases made to the rent-stabilized rent in 2000, based upon individual apartment improvements (IAIs) before the plaintiffs took occupancy, are subject to challenge on this record. Taylor v 72A Realty Assoc., L.P., 2017 NY Slip Op 04218, 1st Dept 5-25-17

LANDLORD-TENANT (COMPLEX ISSUES ARISE IN RETROACTIVELY DETERMINING THE APPROPRIATE RENTAL AMOUNT FOR A RENT STABILIZED APARTMENT OCCUPIED BY THE SAME TENANTS SINCE 2000)/RENT STABILIZATION (NYC) (COMPLEX ISSUES ARISE IN RETROACTIVELY DETERMINING THE APPROPRIATE RENTAL AMOUNT FOR A RENT STABILIZED APARTMENT OCCUPIED BY THE SAME TENANTS SINCE 2000)

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE ACTION, CONTACT WITH A HANGING LIVE ELECTRIC WIRE, DEFENDANTS VICARIOUSLY LIABLE.

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 241(6) cause of action. A portion of plaintiff’s harness touched an exposed electric wire. Defendants, who were vicariously liable, did not raise a question of fact about plaintiff’s comparative negligence:

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It is undisputed that violations of Industrial Code (12 NYCRR) § 23-1.13(b)(3) and (4) proximately caused the injuries sustained by plaintiff when a metal part of his safety harness contacted a live electrical wire, known as a BX cable, which was hanging down from a drop ceiling of a building under renovation. Appellants, as owner and general contractor, may be held liable for violation of those provisions, even though they impose obligations on the employer, since they have a nondelegable duty to provide adequate safety protections … . Appellants fail to point to any evidence that would support a finding that plaintiff was comparatively negligent, since he was acting pursuant to his foreman’s instructions and neither knew nor should have known that the cable was electrified, in the absence of any warnings, caution tape, or other such indications that workers should avoid the area … . Appellants’ assertion that they lacked notice of the presence of the exposed, electrified cable is irrelevant, “[s]ince an owner or general contractor’s vicarious liability under section 241(6) is not dependent on its personal capability to prevent or cure a dangerous condition” … . Rubino v 330 Madison Co., LLC, 2017 NY Slip Op 04210, 1st Dept 5-25-17

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(1) CAUSE ACTION, CONTACT WITH A HANGING LIVE ELECTRIC WIRE, DEFENDANTS VICARIOUSLY LIABLE)

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AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED.

The Second Department determined Family Court’s award of sole legal and physical custody to mother was not supported by the record. The court noted that the preference of the children was not adequately considered:

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“Since the Family Court’s custody determination is largely dependent upon an assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents, its determination should not be disturbed unless it lacks a sound and substantial basis in the record”… . “However, an appellate court would be seriously remiss if, simply in deference to the finding of a trial judge, it allowed a custody determination to stand where it lacked a sound and substantial basis in the record”… .

In this case, the Family Court’s determination awarding the mother sole legal and physical custody of the children does not have a sound and substantial basis in the record. Specifically, the court’s finding that the mother was “better equipped to meet the physical, mental and emotional needs of the children” was not supported by the record. The record also fails to support the court’s determination that the father did not indicate a willingness to co-parent with the mother. In addition, while a child’s expressed preference in a custody proceeding is not determinative, it is some indication of what is in the child’s best interests, particularly where, as here, the court’s interview with the sons demonstrated their level of maturity and ability to articulate their preferences … . Here, although the children indicated a preference for living with the father, the court merely indicated that it understood their positions without explaining its reasons for rejecting them … . Matter of Tofalli v Sarrett, 2017 NY Slip Op 04125, 2nd Dept 5-25-17

 

FAMILY LAW (AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED)/CUSTODY (FAMILY LAW, AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED)/APPEALS (FAMILY LAW, AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED)

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INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS.

The Third Department, annulling the determination below, found that petitioner-police officer’s application for accidental and performance of duty retirement benefits should not have been denied. Although the comptroller can accept the opinion of one expert over another, in this case the inconsistencies in the retirement system’s expert’s (Hughes’) testimony did not provide substantial evidence for the finding against the petitioner:

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On cross-examination, however, Hughes acknowledged that petitioner complained of a number of post-concussion symptoms during his examination and he believed that petitioner was being truthful. When asked if these symptoms would preclude petitioner from performing the specific duties of a police officer, Hughes initially explained that he confined his opinion to “whether [petitioner’s] neck injury and post-concussion syndrome caused by the accident of 3/19/09 resulted in a permanent disability.” Nonetheless, he subsequently confirmed that petitioner’s symptoms could impede his ability to use a firearm, carry out complicated directions and perform other police-related tasks. Ultimately, Hughes agreed that petitioner suffered “an exacerbation or recurrence” of his post-concussion symptoms in July 2010, that would disable him from performing the duties of a police officer.

In our view, Hughes’ inconsistent testimony on the issue of permanent incapacity and failure to account for the July 2010 incident in rendering his opinion does not constitute a rational and fact-based opinion necessary to support the finding that petitioner was not permanently incapacitated from performing his duties as a police officer. To the contrary, the record contains ample medical evidence and documentation, most significantly Ward’s testimony, establishing that petitioner was permanently incapacitated by injuries sustained as a result of the March 19, 2009 incident that were later exacerbated in July 2010. Accordingly, inasmuch as we find that the Comptroller’s determination is not supported by substantial evidence, it must be annulled and the matter remitted for further proceedings … . Matter of Rawson v DiNapoli, 2017 NY Slip Op 04189, 3rd Dept 5-25-17

EMPLOYMENT LAW (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/EVIDENCE,  (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/POLICE OFFICERS (ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/RETIREMENT BENEFITS (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)

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ALTHOUGH DEFENDANT’S GUILTY PLEA SATISFIED AN UNCHARGED BURGLARY, THE SENTENCING COURT SHOULD NOT HAVE ORDERED RESTITUTION FOR THE UNCHARGED BURGLARY.

The Third Department determined the sentencing court erred when it ordered restitution for an uncharged burglary (on December 18). Although defendant’s guilty plea was taken in satisfaction of the uncharged December 18 burglary, that burglary was never included in an accusatory instrument and was not shown to be part of the same criminal transaction to which defendant pled:

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Pursuant to Penal Law § 60.27, a trial court may order restitution arising from “the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty by the defendant to an offense” (Penal Law § 60.27 [4] [a]). Defendant’s guilty plea pertained to the December 24, 2014 burglary of the warehouse, and satisfied uncharged burglaries from that warehouse on December 15 and 18, 2014. … After a hearing, County Court determined that there was insufficient evidence that defendant had committed the December 15 burglary but ordered restitution in the amount of $11,471 for the materials stolen in the December 18 burglary.

However, no proof was adduced at the hearing that the December 18 burglary was ever charged in an accusatory instrument and the People did not prove by a preponderance of the evidence that this burglary was part of “the same criminal transaction” as the December 24 crime of conviction … . To be part of the same criminal transaction, the conduct must be “either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” … . Here, the evidence established that there were three separate burglaries, each committed days apart in which distinct materials were stolen, and each was completed when the perpetrator left the premises with the stolen materials … . As such, the evidence established that the burglaries were separate “criminal transaction[s]” and did not demonstrate that they were “integral parts of a single criminal venture”” (CPL 40.10 [2] [a], [b]), as there was no proof that they “involve[d] planned, ongoing organized criminal activity, such as conspiracies, complex frauds or larcenies, or narcotics rings” … . Accordingly, Penal Law § 60.20 (4) (a) did not authorize restitution for the December 18 burglary, and the restitution order must be vacated … . People v Pixley, 2017 NY Slip Op 04173, 3rd Dept 5-25-17

 

CRIMINAL LAW (ALTHOUGH DEFENDANT’S GUILTY PLEA SATISFIED AN UNCHARGED BURGLARY, THE SENTENCING COURT SHOULD NOT HAVE ORDERED RESTITUTION FOR THE UNCHARGED BURGLARY)/RESTITUTION (CRIMINAL LAW, ALTHOUGH DEFENDANT’S GUILTY PLEA SATISFIED AN UNCHARGED BURGLARY, THE SENTENCING COURT SHOULD NOT HAVE ORDERED RESTITUTION FOR THE UNCHARGED BURGLARY)

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BUT FOR TEST FOR LEGAL MALPRACTICE IS NOT THE SAME AS SOLE PROXIMATE CAUSE, IT IS ENOUGH THAT AN ATTORNEY’S ACTIONS CONSTITUTE A PROXIMATE CAUSE.

The Third Department, in a lawsuit alleging breach of contract, breach of fiduciary duty and fraud (among other causes of action) stemming from the underfunding of a Workers’ Compensation benefits trust fund, determined the complaint stated a cause of action for legal malpractice. The lawyer, Gosdeck, argued that the complaint failed to allege his actions were the sole proximate cause of the injury. The Third Department reasoned that the “but for” test for legal malpractice was not the same as “sole proximate cause:”

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… [W]e reject Gosdeck’s argument that plaintiff was required to allege that he was the sole proximate cause of alleged damages. Rather, “[i]n an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused [the] plaintiff to sustain actual and ascertainable damages”… . “An attorney’s conduct or inaction is the proximate cause of a plaintiff’s damages if but for the attorney’s negligence the plaintiff . . . would not have sustained actual and ascertainable damages”… . We agree with Supreme Court that, on this motion to dismiss a claim of legal malpractice that is based on negligent legal advice given over a period of time, the “but for” standard is not synonymous with sole proximate cause and that plaintiff’s burden is to prove that Gosdeck’s negligence was a proximate cause of damages … . New York State Workers’ Compensation Bd. v Program Risk Mgt., Inc., 2017 NY Slip Op 04184, 3rd Dept 5-25-17

ATTORNEYS (LEGAL MALPRACTICE, BUT FOR TEST FOR LEGAL MALPRACTICE IS NOT THE SAME AS SOLE PROXIMATE CAUSE, IT IS ENOUGH THAT AN ATTORNEY’S ACTIONS CONSTITUTE A PROXIMATE CAUSE)/LEGAL MALPRACTICE (BUT FOR TEST FOR LEGAL MALPRACTICE IS NOT THE SAME AS SOLE PROXIMATE CAUSE, IT IS ENOUGH THAT AN ATTORNEY’S ACTIONS CONSTITUTE A PROXIMATE CAUSE)/WORKERS’ COMPENSATION LAW (LEGAL MALPRACTICE RE MANAGEMENT OF WORKERS’ COMPENSATION TRUST, BUT FOR TEST FOR LEGAL MALPRACTICE IS NOT THE SAME AS SOLE PROXIMATE CAUSE, IT IS ENOUGH THAT AN ATTORNEY’S ACTIONS CONSTITUTE A PROXIMATE CAUSE)/NEGLIGENCE (LEGAL MALPRACTICE, BUT FOR TEST FOR LEGAL MALPRACTICE IS NOT THE SAME AS SOLE PROXIMATE CAUSE, IT IS ENOUGH THAT AN ATTORNEY’S ACTIONS CONSTITUTE A PROXIMATE CAUSE

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ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED.

The Second Department determined the zoning board of appeals properly issued a negative declaration pursuant to the State Environmental Quality Review Act (SEQRA) and properly issued a substantial setback variance. The court explained its limited role in assessing the propriety of actions taken by zoning boards:

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“[I]t is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively” … . While courts must review the record to determine if the agency identified the relevant areas of environmental concern, took a “hard look” at them, and made a “reasoned elaboration” of the basis for its determination … , “[n]othing in the law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency’s choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence” … .

Contrary to the petitioner’s contention, the Planning Board took the required hard look at the project proposal and set forth well-reasoned explanations for finding that the project would not result in any significant adverse environmental impacts. …

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In determining whether to grant an area variance, a zoning board of appeals is required to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted … . A zoning board must also consider “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” … .

Here, the record establishes that the Zoning Board considered and properly weighed the relevant factors in determining to grant the area variance. Although the variance is indisputably substantial, there is no evidence that granting the variance would produce an undesirable change in the character of the neighborhood or have an adverse effect or impact on the physical and environmental conditions in the neighborhood or district, that the benefit to the applicant could be achieved by other means, or that the applicant’s difficulty was self-created … . Matter of Beekman Delamater Props., LLC v Village of Rhinebeck Zoning Bd. of Appeals, 2017 NY Slip Op 04112, 2nd Dept 5-24-17

ZONING (ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED)/ENVIRONMENTAL LAW (SETBACK VARIANCE, ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED)/VARIANCES (ZONING, ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED)

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