You are here: / 1987 NEGATIVE DECLARATION DID NOT EXPIRE AND REMAINS VALID WITH RESPECT...

Search Results

/

1987 NEGATIVE DECLARATION DID NOT EXPIRE AND REMAINS VALID WITH RESPECT TO A PRELIMINATY PLAT APPLICATION; HOWEVER, BECAUSE OF CHANGES MADE TO THE PROJECT, THE PLANNING BOARD HAS THE POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION.

The Second Department determined that a 1987 negative declaration with respect to a preliminary plat application had not expired and was still valid. Therefore, the planning board’s determination that a new State Environmental Quality Review Act (SEQRA) review was necessary was annulled. However, since changes had been made to the project, the planning board has the power to amend or rescind the original negative declaration:

 

…[I]n light of … the changes to the project, the Planning Board has the responsibility to assess whether the 1987 negative declaration should be amended (see 6 NYCRR 617.7[e][1]) or “must” be rescinded (6 NYCRR 617.7[f][1]) under the standards set forth in 6 NYCRR 617.7(e) and (f) … . The provisions of 6 NYCRR 617.7(e) and (f) specifically authorize an agency to take into account changes in projects, new information, and changed circumstances affecting a project.

The Planning Board erroneously concluded that the amendment and rescission provisions were, by their terms, inapplicable. Rescission and amendment are authorized “[a]t any time prior to [the lead agency’s] decision to . . . approve an action” (6 NYCRR 617.7[e], [f]). Here, the Planning Board has never given final approval for subdivision of the entire parcel or for subdivision of the portion of the parcel the plaintiffs/petitioners now seek to develop. Accordingly, contrary to its conclusion otherwise, the Planning Board is still authorized to assess possible adverse environmental impacts with respect to the proposed East Mountain North subdivision pursuant to 6 NYCRR 617.7(e) and (f). Leonard v Planning Bd. of Town of Union Vale, 2016 NY Slip Op 01156, 2nd Dept 2-17-16

 

ENVIRONMENTAL LAW (1987 NEGATIVE DECLARATION WITH RESPECT TO A PRELIMINARY PLAT APPLICATION DID NOT EXPIRE, HOWEVER, BECAUSE OF CHANGES TO THE PROJECT, PLANNING BOARD HAS POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION)/STATE ENVIRONMENT QUALITY REVIEW ACT [SEQRA] (1987 NEGATIVE DECLARATION WITH RESPECT TO A PRELIMINARY PLAT APPLICATION DID NOT EXPIRE, HOWEVER, BECAUSE OF CHANGES TO THE PROJECT, PLANNING BOARD HAS POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION)/LAND USE (SEQRA, 1987 NEGATIVE DECLARATION WITH RESPECT TO A PRELIMINARY PLAT APPLICATION DID NOT EXPIRE, HOWEVER, BECAUSE OF CHANGES TO THE PROJECT, PLANNING BOARD HAS POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION)

/

A TRIAL JUDGE DOES NOT HAVE THE AUTHORITY TO CONDUCT A WEIGHT OF THE EVIDENCE ANALYSIS, ONLY THE APPELLATE DIVISION HAS THAT POWER.

The Second Department, reversing Supreme Court, determined a trial judge who renders a guilty verdict on an indictment count in a bench trial cannot thereafter conduct a weight of the evidence analysis and dismiss the count. Here, the judge reserved decision on defendant’s motion for a trial order of dismissal, found the defendant guilty, and then dismissed the count pursuant to the motion for a trial order of dismissal based up a weight of the evidence analysis:

 

“A Trial Judge who has rendered a guilty verdict after a nonjury trial has neither inherent power nor statutory authority to reconsider his [or her] factual determination. Although he [or she] may correct clerical or ministerial errors, he [or she] is without authority to reassess the facts and change a guilty verdict to not guilty” … . “After formal rendition of a verdict at a bench trial, a trial court lacks authority to reweigh the factual evidence and reconsider the verdict” … . “The term verdict’ is defined as the announcement . . . by the court in the case of a non-jury trial, of its decision upon the defendant’s guilt or innocence of the charges . . . considered by it'” … . Thus, “[t]rial judges are prohibited from setting aside a verdict as against the weight of the evidence. This power is reserved to the Appellate Division, which essentially sits as a thirteenth juror” … . * * *

Here, the defendant moved pursuant to CPL 290.10, at the close of evidence, for a trial order of dismissal, and the court reserved decision, as permitted by CPL 290.10 (1)(b), until after the verdict was rendered. We conclude that, where a defendant has moved for a trial order of dismissal pursuant to CPL 290.10 and the court has held all or part of that motion in abeyance, a court conducting a nonjury trial likewise may not render a verdict and then reconsider its factual determination; instead, the court must consider the legal sufficiency of the evidence in support of its original verdict … . Accordingly, in this matter, the Supreme Court’s order vacating its verdict of guilty as to count two of the indictment and dismissing that count must be reversed.  People v Dobson, 2016 NY Slip Op 01198, 2nd Dept 2-17-16

 

CRIMINAL LAW (TRIAL JUDGE, IN A BENCH TRIAL, DOES NOT HAVE THE AUTHORITY TO CONDUCT A WEIGHT OF THE EVIDENCE ANALYSIS AFTER ISSUING A GUILTY VERDICT)/WEIGHT OF THE EVIDENCE (TRIAL JUDGE, IN A BENCH TRIAL, DOES NOT HAVE THE AUTHORITY TO CONDUCT A WEIGHT OF THE EVIDENCE ANALYSIS AFTER ISSUING A GUILTY VERDICT)/TRIAL ORDER OF DISMISSAL (TRIAL JUDGE, IN A BENCH TRIAL, DOES NOT HAVE THE AUTHORITY TO CONDUCT A WEIGHT OF THE EVIDENCE ANALYSIS AFTER ISSUING A GUILTY VERDICT)/BENCH TRIAL (TRIAL JUDGE, IN A BENCH TRIAL, DOES NOT HAVE THE AUTHORITY TO CONDUCT A WEIGHT OF THE EVIDENCE ANALYSIS AFTER ISSUING A GUILTY VERDICT)

/

CRITERIA FOR A MOTION TO RENEW IS FLEXIBLE; HERE MOTION SHOULD HAVE BEEN GRANTED EVEN THOUGH MOVANT SHOULD HAVE BEEN AWARE OF THE “NEW” EVIDENCE.

The Second Department, reversing Supreme Court, determined plaintiff’s motion to renew an application for an order of reference in a mortgage foreclosure action should have been granted. The court noted that the criteria for a motion to renew is flexible, there is no time-limit for bringing the motion, and the motion can be granted even when movant should have been aware of the “new” evidence:

 

Generally, “a motion for leave to renew is intended to bring to the court’s attention new or additional facts which were in existence at the time the original motion was made, but unknown to the movant” … . However, the requirement that a motion for leave to renew be based upon new or additional facts unknown to the movant at the time of the original motion is a flexible one and the court, in its discretion, may also grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made … . Except where a motion to renew is based upon a change in the law, which is not the case here, CPLR 2221 does not impose a time limit for making a motion for leave to renew … . Here, the plaintiff established its entitlement to an order of reference, as it submitted documentary proof that the defendants failed to answer the complaint within the time allowed, that it was the holder of the note and mortgage, that the defendants defaulted, “and that, as a preliminary step in obtaining a judgment of foreclosure, the appointment of a referee to compute the amount due on the . . . mortgage would be proper” … . Although the plaintiff should have been aware of the durable power of attorney at the time it initially sought an order of reference, the Supreme Court, under the circumstances, improvidently exercised its discretion in denying the plaintiff’s motion for leave to renew, where the plaintiff, having otherwise established its entitlement to an order of reference, submitted, inter alia, the durable power of attorney in support of its renewal motion and the motion was unopposed. Citimortgage, Inc. v Espinal, 2016 NY Slip Op 01148, 2nd Dept 2-17-16

 

CIVIL PROCEDURE (MOTION TO RENEW, FLEXIBLE CRITERIA, NO TIME-LIMIT, MOTION SHOULD HAVE BEEN GRANTED EVEN THOUGH MOVANT SHOULD HAVE BEEN AWARE OF THE NEWLY PROFERRED EVIDENCE)/MOTION TO RENEW (FLEXIBLE CRITERIA, NO TIME-LIMIT, SHOULD HAVE BEEN GRANTED EVEN THOUGH MOVANT SHOULD HAVE BEEN AWARE OF THE NEWLY PROFERRED EVIDENCE)

/

IN A FEE DISPUTE, PLAINTIFF-ATTORNEY’S FAILURE TO NOTIFY CLIENT OF THE CLIENT’S RIGHT TO ARBITRATE REQUIRED DISMISSAL OF THE COMPLAINT.

The Second Department determined, in a fee dispute, plaintiff-attorney’s failure to give notice to his client of the client’s right to arbitrate required dismissal of the complaint without prejudice:

 

Except in limited circumstances, where an attorney commences an action to recover a fee, the attorney must provide written notice by certified mail or by personal service of the client’s right to elect to arbitrate and must allege in the complaint that the client received notice of his or her right to pursue arbitration and did not file a timely request to arbitrate or that the dispute is not otherwise covered by the rules governing the resolution of attorney-client fee disputes by arbitration (see 22 NYCRR 137.6…). A plaintiff’s failure to provide the defendant with written notice of his or her right to elect to submit the fee dispute to arbitration, and the failure to allege in the complaint that the defendant received such notice and did not file a timely request for arbitration, or that fee dispute arbitration is inapplicable to the matter for specified reasons, requires dismissal of the complaint … . Pascazi Law Offs., PLLC v Pioneer Natural Pools, Inc., 2016 NY Slip Op 01160, 2nd Dept 2-17-16

 

ATTORNEYS (FEE DISPUTE, PLAINTIFF- ATTORNEY’S FAILURE TO NOTIFY CLIENT OF RIGHT TO ARBITRATE REQUIRED DISMISSAL OF THE COMPLAINT)/ATTORNEY’S FEES (FEE DISPUTE, PLAINTIFF- ATTORNEY’S FAILURE TO NOTIFY CLIENT OF RIGHT TO ARBITRATE REQUIRED DISMISSAL OF THE COMPLAINT)

/ ,

INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL.

The Second Department, reversing Supreme Court, determined defendant school district’s motion for summary judgment should have been granted. Infant plaintiff was injured playing basketball when he struck the pole holding the hoop. The Second Department held the school district had demonstrated infant plaintiff assumed the risk of that injury:

 

The doctrine of primary assumption of risk applies where a consenting participant in a sporting activity “is aware of the risks [inherent in the activity]; has an appreciation of the nature of the risks; and voluntarily assumes the risks” … . “However, the doctrine will not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … .

The defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging premises liability by demonstrating that the subject pole was open and apparent, that the risk of colliding with it was inherent in the activity of playing basketball in the courtyard, that the defendant did nothing to conceal or unreasonably increase the risk, and that the plaintiff assumed the risk of injury by voluntarily participating in the activity at that location, as he had on numerous prior occasions … . Altagracia v Harrison Cent. Sch. Dist., 2016 NY Slip Op 01141, 2nd Dept 2-17-16

 

NEGLIGENCE (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)/ASSUMPTION OF RISK (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)/BASKETBALL (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)/EDUCATION-SCHOOL LAW (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)

/

COVERAGE AT ISSUE WAS THE SUBJECT OF A POLICY EXCLUSION (WHICH WAS THEN ADDED BACK IN BY AN ENDORSEMENT); BECAUSE THE COVERAGE WAS NOT OUTSIDE THE SCOPE OF THE POLICY A TIMELY DISCLAIMER WAS REQUIRED.

The First Department, reversing Supreme Court, determined the insurance coverage at issue was the subject of a policy exclusion which required a timely disclaimer. The disclaimer was deemed untimely and ineffective. The plaintiff city was an additional insured on a general liability policy issued by defendant insurance company. The city was a defendant in a lawsuit alleging negligence by the Administration for Children’s Services resulting in the abuse and death of decedent. The policy excluded coverage for “abuse or molestation” but an endorsement added that coverage back in. The First Department noted that if “abuse or molestation” was outside the scope of the policy, no disclaimer would have been necessary. However, because “abuse or molestation” coverage was eliminated by a policy exclusion (and then added back in) a timely disclaimer was mandatory:

 

When a claim falls outside the scope of an insurance policy’s coverage portion, a disclaimer of coverage is unnecessary because the policy did not contemplate coverage in the first instance and requiring coverage for a failure to disclaim in such instances “would create coverage where it never existed” … . By contrast, when a refusal to provide coverage is based on a policy exclusion, a timely disclaimer of coverage is necessary to invoke the policy exclusion … . Here, abuse and molestation claims occurring during the policy period but not reported until afterwards were eliminated from coverage by the exclusion but not added back in by the endorsement, and thus required a disclaimer (id. ), which defendant failed to timely provide. City of New York v Granite State Ins. Co., 2016 NY Slip Op 01124, 1st Dept 2-16-16

 

INSURANCE LAW (COVERAGE EXCLUDED FROM POLICY AND ADDED BACK IN BY ENDORSEMENT REQUIRED TIMELY DISCLAIMER)/POLICY EXCLUSION (INSURANCE, COVERAGE EXCLUDED FROM POLICY AND ADDED BACK IN BY ENDORSEMENT REQUIRED TIMELY DISCLAIMER)/DISCLAIMER (INSURANCE, COVERAGE EXCLUDED FROM POLICY AND ADDED BACK IN BY ENDORSEMENT REQUIRED TIMELY DISCLAIMER)

/

ANALYTICAL FRAMEWORK FOR DE FACTO MERGER OF NONPROFIT CORPORATIONS FASHIONED BY THE COURT.

The First Department determined questions of fact were raised about whether there was a de facto merger of two nonprofit corporations. If a de facto merger is found in the sale of a corporation, the liabilities of the seller become the liabilities of the buyer. Because the established “de facto merger” law does not address nonprofits (which have no “owners”), the First Department fashioned a “nonprofit de facto merger” analytical framework:

Since, unlike for-profit corporations, nonprofits do not have owners, we hold that continuity of ownership is not a sine qua non of de facto merger of nonprofits, as it is for a finding of a de facto merger of for-profits … . Thus, it is necessary to examine the other elements of de facto merger.

Plaintiffs satisfied the second and third elements, “cessation of ordinary business operations and the dissolution of the selling corporation as soon as possible after the transaction,” and “the buyer’s assumption of the liabilities ordinarily necessary for the uninterrupted continuation of the seller’s business”… . …

Triable issues of fact exist as to the fourth element of de facto merger, “continuity of management, personnel, physical location, assets and general business operation”… . Ring v Elizabeth Found. for the Arts, 2016 NY Slip Op 01127, 1st Dept 2-16-16

CORPORATION LAW (DE FACTO MERGER OF NONPROFIT CORPORATIONS, ANALYTICAL FRAMEWORK)/DE FACTO MERGER (DE FACTO MERGER OF NONPROFIT CORPORATIONS, ANALYTICAL FRAMEWORK)/NONPROFIT CORPORATIONS (DE FACTO MERGER OF NONPROFIT CORPORATIONS, ANALYTICAL FRAMEWORK)

/ , ,

CITY IS NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN AN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING A POLICE VAN.

The First Department, reversing Supreme Court, determined the city’s motion for summary judgment in this car-accident case should have been granted. Plaintiff was struck by a police van driven by an unlicensed car-wash attendant. The city was not liable for negligently entrusting the vehicle to the unlicensed driver because, inter alia, there was no duty to make sure the attendant had a license before handing over the keys to him. In addition, the city was not vicariously liable as the owner of the van pursuant to Vehicle and Traffic Law 388. Police vehicles are statutorily exempt from such liability. Plaintiff argued that the exemption did not apply because the van was not being “operated” by the police department at the time of the accident. The First Department held that “operated” in this context means “to exercise power over,” and not “driven:”

 

Plaintiff’s argument that the NYPD traffic van does not qualify as a “police vehicle,” because it was not being “operated by the police department” at the time of the accident, but, rather, was being “operated” by the car wash attendant, assumes that the term “operated” means “to cause to function” (Merriam- Webster Online Dictionary, http://beta.merriam-webster.com/dictionary/operate [accessed Jan. 27, 2016]) or is a substitute for the word “driven.” This ignores the common use of the term “operated” as an intransitive verb meaning “to exert power or influence” (id.). Under plaintiff’s interpretation, a police vehicle would not qualify as such under Vehicle and Traffic Law § 132-a, unless it was being driven by “the police department,” which strains common sense, since a police department cannot be the driver of a vehicle.

More importantly, plaintiff’s interpretation would strip the exemption provided to police vehicles in Vehicle and Traffic Law § 388(2) of its force and effect. Vehicle and Traffic Law § 388 specifically contemplates that someone, other than the vehicle’s owner, is driving the vehicle when an injury occurs. If “police vehicles” are only exempted when an owner or owner equivalent is driving, there would be no need for the exemption in Vehicle and Traffic Law § 388(2). This interpretation is untenable as it would render the police vehicle exemption in Vehicle and Traffic Law § 388(2) meaningless … . Guevara v Ortega, 2016 NY Slip Op 01106, 1st Dept 2-16-16

 

NEGLIGENCE (CITY NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING POLICE VAN)/MUNICIPAL LAW (CITY NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING POLICE VAN)/VEHICLE AND TRAFFIC LAW (CITY NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING POLICE VAN)

/

DEFENDANTS DID NOT DEMONSTRATE LACK OF NOTICE OF DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED.

The First Department determined the defendants in a slip and fall case were not entitled to summary judgment because they did not affirmatively demonstrate a lack of notice of the icy condition:

 

Defendants did not demonstrate that they lacked constructive notice of the icy condition since they did not proffer an affidavit or testimony based on personal knowledge as to when its employees last inspected the driveway or as to the driveway’s condition prior to the accident … . The testimony of defendants’ branch manager as to his usual and customary practice of inspecting the premises each morning does not satisfy defendants’ burden of showing that they lacked notice of the alleged condition of the driveway prior to the accident, as there was no evidence to show that the manager’s customary practice was followed on the day of the accident … . Singh v Citibank, N.A., 2016 NY Slip Op 01120, 1st Dept 2-16-16

 

NEGLIGENCE (SLIP AND FALL, DEFENDANTS FAILED TO AFFIRMATIVELY DEMONSTRATE LACK OF NOTICE OF DANGEROUS CONDITION)/SLIP AND FALL (DEFENDANTS FAILED TO AFFIRMATIVELY DEMONSTRATE LACK OF NOTICE OF DANGEROUS CONDITION)

/

INSTALLATION OF TEMPORARY FLAG HOLDERS NOT A PROTECTED ACTIVITY UNDER LABOR LAW 240 (1).

The First Department determined plaintiff’s injuries from a two-story fall were not covered by Labor Law 240 (1). Plaintiff was installing temporary flag holders at the time of the fall:

 

The record establishes that plaintiff was not engaged in a protected activity under Labor Law § 240(1) at the time of his accident. Plaintiff testified that the installation of the three flag holder brackets entailed marking the location of the screws, drilling three holes for each bracket, placing plastic fasteners in the holes, and attaching each flag holder with three screws to hold it in place. Such work did not constitute “altering” since it did not result in a “significant physical change” to the building’s structure … . The cosmetic and nonstructural nature of the work is reflected by the temporary placement of the flags to enhance the exterior appearance of the building during the St. Patrick’s Day celebration, after which they were removed … . Lannon v 356 W. 44th St. Rest., Inc., 2016 NY Slip Op 01129, 1st Dept 2-16-16

 

LABOR LAW (INSTALLATION OF TEMPORARY FLAG HOLDERS NOT A PROTECTED ACTIVITY UNDER LABOR ALW 240 (1)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy