You are here: / Administrative Review of a Rent Overcharge Petition Should Have Been Granted;...

Search Results

/ , ,

Administrative Review of a Rent Overcharge Petition Should Have Been Granted; Allegations of Fraud Overcame Four-Year Statute of Limitations

The First Department, over a dissent, reversed Supreme Court’s dismissal of an Article 78 petition for administrative review of the denial of petitioner’s rent overcharge complaint by the NYS Division of Housing and Community Renewal (DHCR).  Petitioner’s rent was increased from $572 to $1750 a month.  To justify that adjustment, the landlord was required to have spent $39,000 improving the apartment.  Petitioner submitted evidence that supported her position the landlord spent very little on the improvements.  The landlord, however, produced no evidence of what was actually spent and, therefore, there was no basis in the record for the DHCR’s determination that the $1750 rental amount was justified.  The First Department noted that the four-year statute of limitations did not apply because there was substantial evidence of fraud:

Under the standard set forth in Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin. (15 NY3d 358 [2010]), petitioner made a sufficient showing of fraud to require DHCR to investigate the legality of the base date rent … . Although the “look-back” for an apartment’s rental history is ordinarily limited to the four-year period preceding the date that the petitioner files the complaint …, where fraud is alleged and there is “substantial indicia of fraud on the record,” DHCR is obliged to investigate whether the base date rate was legal and “act[s] arbitrarily and capriciously in failing to meet that obligation”… .

Thus, we find that DHCR’s disparate treatment of the parties’ claims was arbitrary. While the agency made no attempt to evaluate the legitimacy of petitioner’s claims despite their consistency and degree of detail, DHCR credited the owner’s implicit claim that it spent $39,000 to renovate the apartment simply because “it would not be difficult for anyone with any experience in this industry to believe it could have taken $39,000 … to update the appearance and equipment in an apartment which had not changed hands for thirty-two years.” This justification for the agency’s determination is irrational. Finding that the owner “could have” spent $39,000 …, where the owner never submitted any evidence controverting petitioner’s claims is not equivalent to finding that the owner actually made improvements costing that much. Accordingly, this matter should be remanded to DHCR to give the parties the opportunity to present evidence in connection with the legality of the base rate rent. Matter of Boyd v NYS Division of Housing and Community Renewal…, 2013 NY Slip Op 06966, 1st Dept 10-29-13

 

 

/

Question of Fact Re: Implied Easement for Pipeline to Pond

The Third Department determined there was a question of fact whether an implied easement existed for a pipeline linking defendant’s property with a pond.  The court agreed with Supreme Court that an express easement had been extinguished when the relevant parcels were owned by the same party and was not subsequently recreated de novo.  The court explained the criteria for an implied easement:

“[A]n easement by implication requires ‘(1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary for the beneficial enjoyment of the land'” … .  Stated another way, “[a]n implied easement will arise ‘upon severance of ownership when, during the unity of title, an apparently permanent and obvious servitude was imposed on one part of an estate in favor of another part, which servitude at the time of severance is in use and is reasonably necessary for the fair enjoyment of the other part of the estate'” … . Here, there is no genuine dispute that there was unity in ownership and a subsequent separation of title of the subject parcels.  Similarly, defendants made a prima facie showing that the use of the pipeline across plaintiff’s property was continued and obvious for decades.  Freeman v Walther, 516293, 3rd Dept 10-24-13

 

/ ,

Inmate’s FOIL Request for Prison Directive Should Have Been Granted

The Third Department determined the inmate’s Freedom of Information Law (FOIL) request for a Department of Corrections directive should have been granted:

…”[T]here is a presumption that government documents are available for inspection, and the burden rests on the agency resisting disclosure to demonstrate that they are exempt under Public Officers Law § 87 (2) by articulating a specific and particularized justification” … .  Although the basis of the denial of petitioner’s request was that the disclosure may endanger the life or safety of a person (see Public Officers Law § 87 [2] [f]), we fail to see how the disclosure of DOCCS Directive No. 4004, which pertains to the specifications for creating unusual incident reports, poses a danger to lives or to anyone’s safety … . Accordingly, the directive must be disclosed. Matter of Flores v Fischer, 516131, 3rd Dept 10-24-13

 

/

Effects of Refusal to Allow Inmate to Call Witness Explained

The Third Department, in determining that a new hearing, not expungement, was the appropriate remedy, explained the ramifications of a hearing officer’s refusal of an inmate’s request to call witnesses:

“[W]hile ‘[a] hearing officer’s actual outright denial of a witness without a stated good-faith reason, or lack of any effort to obtain a requested witness’s testimony, constitutes a clear constitutional violation [requiring expungement,] [m]ost other situations constitute regulatory violations [requiring a new hearing]'” … .  Here, … the denial of the witnesses constituted a regulatory violation, and the proper remedy is to remit the matter for a new hearing… . Matter of Griffin, 515749, 3rd Dept 10-24-13

 

/ , ,

Grant of Writ of Prohibition Reversed—Criteria for Writ Explained

Supreme Court granted a writ of prohibition finding the state police did not have the legal authority to seize cigarettes purchased by a Nebraska Indian tribe from a manufacturer located on the St. Regis Mohawk Indian Reservation in St. Lawrence County.  The cigarettes did not have state tax stamps.  The Third Department reversed describing the relevant analysis as follows:

Pursuant to well-established law, a CPLR article 78 proceeding for a writ of prohibition is an extraordinary remedy … that “lies only where there is a clear legal right to such relief, and only when [the body or officer involved] acts or threatens to act without jurisdiction in a matter . . . over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” (…see also CPLR 7803 [2]).  Even where such a proceeding is permissible, the court has the discretion to deny the issuance of a writ of prohibition after considering such factors as “‘the gravity of the harm caused by the excess of power, the availability or unavailability of an adequate remedy on appeal or at law or in equity and the remedial effectiveness of prohibition if such an adequate remedy does not exist'”… .

…[P]etitioner failed to prove the absence of other avenues of relief that would adequately address the challenged seizure of the cigarettes… . * * *

…[P]etitioner failed to establish a clear entitlement to a writ of prohibition.  As relevant here, Tax Law § 471 (1) imposes “a tax on all cigarettes possessed in the state by any person for sale,” except under circumstances where “this state is without power to impose such tax” (Tax Law § 471 [1]; see 20 NYCRR 74.1 [a] [1]).4  All cigarettes within the state are presumed to be subject to tax unless “the contrary is established,” with the burden of proof of nontaxibility falling upon the person in possession of the cigarettes (Tax Law § 471 [1]).  In claiming that the sale here was not a taxable event, petitioner relies upon regulations which provide that no tax may be imposed on cigarettes sold to an out-of-state purchaser (see 20 NYCRR 74.1 [c] [4]; 76.1 [a] [1]). However, the same regulations that establish such exemption also require that all out-of-state sales be made by a duly licensed cigarette agent and that a certificate be obtained from the out-of-state purchaser showing that the cigarettes “will be immediately removed from the State to an identified location for such purposes and that such cigarettes shall not be returned to the State for sale or use herein” (20 NYCRR 76.3 [b] [emphasis added]).

…[P]etitioner has produced no evidence that the cigarettes would not be reintroduced into the state.   In fact, respondents submitted evidence in the form of, among other things, petitioner’s corporate shipment records and a statement by the driver of the truck, which suggest that petitioner regularly transports back into the state cigarettes purchased from the same manufacturer involved here.  HCI Distribution, Inc v NYS Police…, 516040, 3rd Dept 10-24-13

 

/ ,

Invocation of Right to Counsel When Not in Custody Can Be Withdrawn Without Attorney Present

The Third Department determined defendant’s invocation of his right to counsel when he was not in custody (on September 4, 2004) could be withdrawn without an attorney present and did not, therefore, require the suppression of subsequent statements made three weeks later:

The right to counsel indelibly attaches in two limited situations – where formal judicial proceedings against a defendant have commenced and where an uncharged defendant, who is in custody, has retained or requested an attorney … .  However, “[a] suspect who is not in custody when he or she invokes the right to counsel can withdraw the request and be questioned by the police” … .  As defendant was not in custody at the time he invoked his right to counsel on September 4, 2009, he was free to withdraw that request or waive such right and speak with the police without having an attorney present – particularly in view of the approximately three weeks that elapsed between his initial request for an attorney and his subsequent statements to law enforcement … . People v Cade, 103443, 3rd Dept 10-24-13

 

/ ,

Loss of Teeth is “Serious Injury” Re: Assault Second

The First Department determined the loss of teeth (in an assault) was a “serious injury” within the meaning of Penal Law 10.00 (10) because the loss of teeth constituted a “serious and protracted disfigurement” notwithstanding replacement by a prostheses:

The element of serious physical injury (Penal Law § 10.00[10]) was established, because the victim’s permanent loss of four front teeth constituted a protracted impairment of her health or protracted loss or impairment of the function of a bodily organ … . Since the teeth are lost, the victim can never eat with them, notwithstanding that she has been fitted with a prosthetic device; accordingly, her loss is not just protracted, but permanent. While the fact that damage to an organ has been successfully repaired may affect whether the injury qualifies as serious …, this does not apply when the organ is permanently lost, irrespective of whether it is replaced by a prosthesis.

Furthermore, the victim’s loss of four front teeth also constituted a “serious and protracted disfigurement,” since “a reasonable observer would find her altered appearance distressing or objectionable” … . The fact that the victim received a removable prosthetic device did not ameliorate the seriousness of her injuries, since whenever she removes the device, the disfigurement will be readily apparent.  People v Everett, 2013 NY Slip Op 06954, 1st Dept 10-24-13

 

 

/

Music Teachers Are Employees Not Independent Contractors

In finding that music teachers were employees [of Musika, LLC], not independent contractors, the Third Department wrote:

Claimant offered guitar lessons for Musika LLC, a business that matches music teachers it deems qualified with students. Musika required its teachers to execute a contract that set the fee for lessons, prohibited them from competing with Musika or soliciting its students, and obliged teachers to perform any services “reasonably requested” by it. The teachers were required to report their work activities to Musika which, in turn, billed the students and paid the teachers by check. Moreover, teachers were expected to notify Musika if they were unavailable to work and could not use a substitute teacher without prior approval. Notwithstanding the proof in the record that could support a contrary result, the above constitutes substantial evidence for the determination of the Unemployment Insurance Appeal Board that claimant and those similarly situated were Musika’s employees and not independent contractors… . Matter of Tekmitchov…, 516112, 3rd Dept 10-24-13

 

/

Homeowner’s Exemption Applied/Homeowner Not General Contractor

In dismissing the action against defendant homeowner, the Third Department determined the homeowner’s exemption applied, the homeowner did not direct or supervise plaintiff’s work, and the homeowner could not be characterized as a general contractor:

Although Labor Law §§ 240 (1) and 241 each “impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities . . .[,] the Legislature has carved out an exemption for the owners of one and two-family dwellings who contract for but do not direct or control the work” … .  In this context, “the phrase ‘direct or control’ is to be strictly construed and, in ascertaining whether a particular homeowner’s actions amount to direction or control of a project, the relevant inquiry is the degree to which the owner supervised the method and manner of the actual work being performed by the injured [party]” * * *

The case law makes clear …that neither providing site plans …., obtaining a building permit …, hiring contractors, purchasing materials…, offering suggestions/input …, inspecting the site … , retaining general supervisory authority … , performing certain work …nor physical presence at the site operates to deprive a homeowner of the statutory exemption – so long as the homeowner did not exercise direction or control over the injury-producing work… . * * *

We reach a similar conclusion with respect to plaintiff’s Labor Law § 200 and common-law negligence claims.  In order to prevail on such claims, plaintiff was required to establish that defendant both “exercised supervisory control over plaintiff’s work and had actual or constructive knowledge of the unsafe manner in which the work was being performed”… . Bombard v Pruiksma, 516213, 3rd Dept 10-24-13

 

/ , , ,

Construction of Dock Could Not Be Regulated by Town—Land Under Navigable Waters Owned by State

The Third Department determined that the Lake George Town Planning Board did not have jurisdiction to grant or deny petitioner’s application to build a dock in Lake George because the state, not the town, owned the land under navigable waters:

When the state owns land under navigable waters in its sovereign capacity, its exclusive authority preempts local land use laws and extends beyond the regulation of navigation “to every form of regulation in the public interest.”… .  The state holds title to the lands under Lake George in its sovereign capacity  and, thus, has sole jurisdiction over construction in the lake’s navigable waters provided it has not delegated this authority to a local government … .

“[A]bsent the delegations in Navigation Law § 46-a allowing local municipalities to regulate the manner of construction and location of structures in waters owned by the [s]tate in its sovereign capacity, municipalities bordering or encompassing such waters . . . have no authority to issue such regulations”… . The Hart Family v Town of Lake George, 515142, 3rd Dept 10-24-13

 

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