You are here: / Denial of Property Tax Refunds by Director of Tax Commission Was Not Final—Article...

Search Results

/ , ,

Denial of Property Tax Refunds by Director of Tax Commission Was Not Final—Article 78 Claims Not Ripe for Judicial Review

The Second Department determined the Article 78 proceedings seeking property tax refunds were not ripe for judicial review because the denial of the refunds by the Director of the county Tax Commission was not final:

…[T]he Supreme Court properly determined that his claims seeking CPLR article 78 relief relating to his tax refund applications were not ripe for judicial review. Administrative determinations may only be challenged via CPLR article 78 review after the determination is final (see CPLR 7801[1]). “For a challenge to administrative action to be ripe, the administrative action sought to be reviewed must be final, and the anticipated harm caused by the action must be direct and immediate” … . Moreover, a matter is not ripe where the claimed harm may be prevented or significantly ameliorated by further administrative action … . Here, the issuance of written recommendations by the Executive Director of the Westchester County Tax Commission was not a final approval or denial of the appellant’s tax refund applications (see RPTL 5565])… . Matter of Greenberg v Assessor of Town of Scarsdale, 2014 NY Slip Op 07160, 2nd Dept 10-22-14

 

/ , ,

City Estopped from Denying Property Owner the Opportunity to Seek Discretionary Relief Re: the Payment and Acceptance of Tax Arrears—City’s Actions Misled Property Owner

The Second Department determined the equitable estoppel doctrine could properly be applied to a municipality in this case. A city employee had allowed the petitioner (Emporium) to enter an installment agreement to pay back real property taxes at a time when the property had already been foreclosed and transferred.  The Second Department determined Emporium was entitled to a hearing to determine whether the city is equitably estopped from denying Emporium the opportunity to seek discretionary relief re: the payment and acceptance of tax arrears:

With respect to Emporium’s equitable estoppel claim, “[a]lthough estoppel should not be invoked against governmental entities in the absence of exceptional circumstances, we have not hesitated to do so where a municipality’s misleading nonfeasance would otherwise result in a manifest injustice” … . “To establish estoppel, the misconduct of the public agency must have induced justifiable reliance by a party who then changed his position to his detriment” … . * * *

The City respondents’ failure to contact Emporium once it determined that the installment agreements would not be honored constitutes misleading conduct … . Moreover, the City respondents maintained their silence during a period of time when action could have made a difference to Emporium … . Matter of Emporium Mgt Corp v City of New York, 2014 NY Slip Op 07157, 2nd Dept 10-22-14

 

/

In the Absence of a Showing of Possible Fraud, Income Tax Returns Not Discoverable

In an action alleging a breach of an insurance policy, defendant sought discovery of plaintiff’s income tax returns.  In affirming Supreme Court’s refusal to compel production of the returns, the Second Department explained:

Tax returns generally are not discoverable in the absence of a strong showing that the information is indispensable to a claim or defense and cannot be obtained from other sources …. Here, the defendants failed to make such a showing. Contrary to their contention, the defendants did not make a sufficiently strong showing to warrant disclosure of the plaintiff’s tax returns, such as indicia of fraud … . Katz v Castlepoint Ins Co, 2014 NY Slip Op 07128, 2nd Dept 10-22-14

 

/

Unexcused Failure to Comply with Discovery Orders Warranted Striking of the Pleadings

The Second Department determined plaintiff’s failure to facilitate an independent medical examination was willful and contumacious warranting the striking of the pleadings:

“The determination whether to strike a pleading for failure to comply with [*2]court-ordered disclosure lies within the sound discretion of the trial court” … . “However, the drastic remedy of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious. Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time” … . Specifically, contrary to the plaintiff’s contention, dismissal of the complaint is warranted where a party repeatedly fails to appear at scheduled IMEs without adequate excuse …. It is undisputed that the plaintiff not only missed the scheduled IMEs without any excuse, but also missed the rescheduled IMEs without offering any reasonable excuse. In addition, the plaintiff failed to provide documents reflecting her prior accidents, despite being obligated to do so pursuant to a so-ordered stipulation. Mangione v Jacobs, 2014 NY Slip Op 07133, 2nd Dept 10-22-14

 

/

Court Should Have Allowed Service of an Order to Show Cause by Means Other than Personal Delivery after Plaintiff Failed to Effect Personal Delivery Despite Due Diligence

The Second Department determined plaintiff’s motion for leave to serve an order to show cause by means other than personal delivery should have been granted.  The plaintiff had been unable to effect personal delivery despite due diligence:

As a general matter, an order to show cause must be served at a time and in the manner specified therein (see CPLR 403[d]; 2214[d]…). However, under the particular circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was, in effect, for leave to serve … by a method of personal service pursuant to CPLR 308 other than personal delivery. The plaintiff demonstrated that personal delivery … pursuant to CPLR 308(1), as required by the order to show cause, could not be effected despite the exercise of due diligence. Moreover, service pursuant to the other means set forth in CPLR 308 constitutes personal service, and is sufficient here for notice of an application to punish for contempt … . Koyachman v Paige Mgt & Consulting LLC, 2014 NY Slip Op -7130, 2nd Dept 10-22-14

 

/

Unambiguous Terms of a Release Must Be Enforced—Extrinsic Evidence of Intent Not Permitted

In affirming the dismissal of a complaint which was deemed barred by the terms of a release, the Second Department explained the criteria for the analysis of a release:

Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release … . A release is “governed by principles of contract law” …, and one “that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms” … .

The plain language of a release is controlling, “regardless of one party’s claim that he [or she] intended something else” … . Where the scope of the release is unambiguous, “the court may not look to extrinsic evidence to determine the parties’ intent” … . “Whether or not a writing is ambiguous is a question of law to be resolved by the courts” …. Sicuranza v Philip Howard Apts Tenants Corp, 2014 NY Slip Op 07143, 2nd Dept 10-22-14

 

/ , ,

Release Given By Injured Party to a Tortfeasor Relieves that Tortfeasor of Any Liability for Contribution

The Second Department noted that a release given in good faith by the injured person to a tortfeasor relieves that tortfeasor from liability for contribution:

“A release given in good faith by the injured person to one tortfeasor as provided in [General Obligations Law § 15-108(a)] relieves him [or her] from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules” (General Obligations Law § 15-108[b]).  United States Fire Ins Co v Raia, 2014 NY Slip Op 07146, 2nd Dept 10-22-14

 

/ , , ,

Permit Allowing the Killing of 62 Deer Properly Issued/Exception to the Mootness Doctrine Applied

The Second Department determined an Article 78 proceeding contesting a permit issued by the Department of Environmental Conservation (DEC) allowing Vassar College to kill 62 deer was properly dismissed.  At the time of the appeal, the permit had already expired and the deer had been killed.  The court determined the appeal as an exception to the mootness doctrine because the issue is likely to reappear:

 …[A]n exception to the mootness doctrine permits courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable … .

Here, although the subject deer cull has been completed and the challenged permit has expired, the appellants raise a substantial and novel issue as to whether the DEC is fulfilling its statutory responsibilities under SEQRA [State Environmental Quality Review Act] related to the issuance of nuisance deer permits. The issue is likely to recur and to evade appellate review, given the extremely short period of time during which such permits are valid … . * * *

Judicial review of an agency determination under SEQRA is limited to whether the agency procedures were lawful and “whether 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” … . “In a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, it 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” … . The agency decision should be annulled only if it is arbitrary and capricious, or unsupported by the evidence … . Further, an agency’s interpretation of its own regulation is entitled to deference unless it is unreasonable or irrational … .

Here, the Supreme Court properly determined that the DEC’s issuance of a nuisance deer permit to Vassar pursuant to Environmental Conservation Law § 11-0521 complied with the requirements of SEQRA and its implementing regulations. The DEC’s use of a generic EIS, updated with a supplemental findings statement, to assess the impacts of the issuance of nuisance deer permits as a part of its wildlife game species management program was proper… . Matter of In Defense of Animals v Vassar College, 2014 NY Slip Op 07162, 2nd Dept 10-22-14

 

/ ,

Fugitive Disentitlement Doctrine Applied to Dismiss Appeal of Wife Whose Child Support Payments Were In Arrears and Who Had Moved to Nigeria

The Second Department, in a full-fledged opinion by Justice Roman, applied the fugitive disentitlement doctrine where the wife, whose child support payments were in arrears, had left the jurisdiction and was living in Nigeria.  The Second Department determined the criteria for fugitive disentitlement had been met and dismissed the wife's appeal on that ground:

“It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his [or her] appeal” … . The “fugitive disentitlement doctrine,” which has its origin in criminal law, is based upon the inherent power of the courts to enforce their judgments, and has long been applied to those who evade the law while simultaneously seeking its protection … . * * *

To apply the fugitive disentitlement doctrine, there must be a “connection between a defendant's fugitive status and the appellate process, sufficient to make an appellate sanction a reasonable response” … . The doctrine has been extended to the dismissal of appeals in civil cases provided there is likewise a nexus between the appellant's fugitive status and the appellate proceedings … . The nexus requirement is satisfied in civil cases “where the appellant's absence frustrates enforcement of the civil judgment” … . * * *

Applying these principles here, we find that dismissal of the appeal is warranted pursuant to the fugitive disentitlement doctrine. The record reveals that the mother deliberately removed herself from the jurisdiction of the New York courts concomitant with the filing of the October 2011 violation petition, which alleged that she had willfully failed to obey the December 2009 child support order. She thereafter failed to personally appear before the Family Court, and a bench warrant was issued to secure her return. However, the mother continued to evade the court, rendering her a fugitive … .

Additionally, there is a nexus between the mother's fugitive status and the appellate proceedings, since her fugitive status related to her failure to comply with the Family Court's prior orders and her refusal to personally appear before that court. Indeed, “by her default and absence,” the mother is “evading the very orders from which she seeks appellate relief” … . Further, the mother's absence from New York has frustrated the father's efforts to enforce the prior child support orders … . Matter of Allain v Oriola-Allain, 2014 NY Slip Op 07151, 2nd Dept 10-22-14

 

/ ,

Defendant’s Request for New Assigned Counsel Was Not Supported by Sufficient Facts to Warrant Inquiry by the Court

In finding defendant’s request for new assigned counsel was properly denied, the Second Department explained the relevant analytical criteria:

A defendant may be entitled to new assigned counsel upon a showing of good cause, such as a conflict of interest or other irreconcilable conflict with counsel … . “Whether counsel is substituted is within the discretion and responsibility’ of the trial judge, and a court’s duty to consider such a motion is invoked only where a defendant makes a seemingly serious request[ ]'” … . Where a seemingly serious request is made, the trial court is obligated to conduct at least a “minimal inquiry” to determine the nature of the conflict and a possible resolution … .

In People v Porto, the Court of Appeals delineated the threshold necessary to require a court to make further inquiry, to wit, a defendant’s request to substitute counsel must contain “specific factual allegations of serious complaints about counsel'” … . Here, no serious complaint about counsel was raised by the defendant … . Instead, the defendant, who already had at least one prior change of counsel, stated that he wanted new counsel because he didn’t “want [his current counsel] anymore. First and foremost [he is] not helping me at all. I don’t see myself even surviving the jungle right here with him even representing me.” The defendant further stated, “I don’t want to proceed with him. And I’m going to tell you, I’m not a lawyer or nothing like that. But I think I can do better than him.” The defendant’s bare assertions did not suggest the serious possibility of a genuine conflict of interest or other impediment to the defendant’s representation by assigned counsel, and did not create a duty of inquiry on the part of the trial court … . Under these circumstances, the trial court providently exercised its discretion in denying the defendant’s request … . People v Ward, 2014 NY Slip Op 07193, 2nd Dept 10-22-14

 

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