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Nature of Declaratory Judgment and Doctrine of Ripeness Explained

In affirming the result in an Article 78/declaratory judgment proceeding which unsuccessfully challenged the Department of Environmental Conservation’s finding that petitioner had violated statutory and regulatory provisions relating to the application of pesticide, the Fourth Department explained the principles underlying a declaratory judgment action and the doctrine of ripeness:

Petitioners sought a declaration of the rights of the parties with respect to a 2002 consent order, and also sought further declarations that petitioners had the right to obtain waivers of the right to notification of the approximate dates upon which petitioners would apply products to the property of other customers. Pursuant to CPLR 3001, “[t]he supreme court may render a declaratory judgment . .. as to the rights and other legal relations of the parties to a justiciable controversy.” “A declaratory judgment action thus ‘requires an actual controversy between genuine disputants with a stake in the outcome,’ and may not be used as ‘a vehicle for an advisory opinion’ ” … . Here, the court, with the consent of the DEC, dismissed all charges related to alleged violations of the 2002 consent order, and thus no active controversy remained with respect to it.  *  *  *

The test for ripeness is well settled, to wit, a determination must be final before it is subject to judicial review (see CPLR 7801 [1]). “In order to determine whether an agency determination is final, a two-part test is applied. ‘First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and[,] second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party’ ” … .  Matter of Green Thumb Lawn Care, Inc v Iwanowicz…, 372, 4th Dept, 6-7-13

 

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Question of Fact Raised in Rear-End Collision Case

Over a dissent by two justices, the Fourth Department ruled a question of fact had been raised which precluded summary judgment to a defendant in a rear-end collision case:

Although defendant met his initial burden of establishing a prima facie case of negligence on the part of plaintiff inasmuch as it is undisputed that plaintiff’s vehicle rear-ended defendant’s stopped vehicle, we conclude that plaintiff submitted evidence of an adequate nonnegligent explanation for the collision… .

While other cases have held that a party’s testimony that he or she did not “see” the other vehicle’s brake lights illuminated before rear-ending that vehicle does not alone establish the requisite nonnegligent explanation for the collision…, those cases are distinguishable from this case. Here, plaintiff testified at his deposition that he was unable to discern whether defendant’s vehicle was stopped because defendant’s brake lights were not activated. Plaintiff, however, also submitted the deposition testimony of McCulloch [the driver of the vehicle in front of defendant] and defendant in which they both described traffic conditions on the date of the accident as “congested” and “stop and go.” Additionally, plaintiff submitted evidence that defendant stopped suddenly. Indeed, plaintiff testified at his deposition that defendant apologized to plaintiff for the accident, explaining that McCulloch had stopped suddenly and that defendant “couldn’t help it.” That evidence, when viewed in the light most favorable to the nonmoving party …, establishes a sufficient nonnegligent explanation for the collision.  Borowski v Ptak …, 1315, 4th Dept, 6-7-13

TRAFFIC ACCIDENTS

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Past Psychological Records Deemed Relevant in Lead-Paint Injury Case Where Psychological Injury Alleged

In a lead-paint injury case, the Fourth Department determined medical records regarding psychological injury stemming from a sexual assault were discoverable because the plaintiff alleged psychological injury associated with exposure to lead paint.  The Court ordered an in camera inspection of the records to weed out irrelevant information.  Dominique D. v Koerntgen…, 512, 4th Dept, 6-7-13

 

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Criteria for Recovery from Special Fund for Reopened Cases

In remitting the matter for further fact-finding, the Third Department explained the criteria for recovery from the Special Fund for Reopened Cases:

Workers’  Compensation  Law  §  25-a  provides  for the transfer of liability to the Special Fund  “when  an application to reopen a closed case is made  more  than seven years from the date of injury and  more  than three years after the last payment  of compensation…. Advance payments that are made voluntarily during the relevant time frame, in recognition of an employer’s liability, are considered compensation and  will prevent the shifting of liability to  the  Special Fund  ….   Notably, “evidence that a claimant received full wages  despite performing limited or light duties may result in a finding that advance payments [of compensation] have been  made”  …). Whether an advance payment of compensation was  made  to  the claimant is a factual issue for the  Board  to resolve and,  “its determination  . . . , if supported  by substantial evidence  in the  record  as  a  whole,  will not  be disturbed” … .  Matter of Schroeder v US Foodservice…, 515937, 3rd Dept, 6-6-13

 

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Residential Health Care Facility’s Medicaid Reimbursement Disallowed with Respect to Certain Operating Costs

The Third Department upheld the determination of the Department of Health’s Office of Inspector General which disallowed certain operating costs of petitioner (a residential health care facility) used to compute Medicaid reimbursement rates.  Matter of Odd Fellow & Rebekah Rehabilitation and Health Care Center, Inc v Commissioner of Health…, 515687, 3rd Dept, 6-6-13

 

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“Substantial Factor in Producing the Injury” Jury Instruction (Re: Causation) Did Not Reduce Plaintiff’s Burden of Proof

In attempting to intubate an 83-year-old woman who was unresponsive, a doctor perforated her esophagus making it necessary that she be fed through a tube for the remaining three years of her life.  In affirming the plaintiffs’ verdict, the Court of Appeals determined that the trial court’s jury charge did not improperly reduce plaintiffs’ burden of proof on the issue of causation in this medical malpractice action. The jury was told defendant’s negligence caused the injury if it was a substantial factor in producing the injury:

It is well settled that a “plaintiff must generally show that the defendant’s negligence was a substantial factor in producing the injury” to satisfy “the burden of proving a prima facie case” in a medical malpractice action…. Here, the trial court recited the proximate cause charge directly from the PJI and explicitly instructed the jury as to plaintiffs’ burden of proof in the case. The court charged the jury using the language from PJI 2:70, as follows: “An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury. That is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury.” Further, at the outset of the charge, the court instructed the jury that “the burden of the proof in this case rests with the plaintiffs,” and made clear that the plaintiffs had to establish by a preponderance of the evidence defendants’ negligence. Taking this jury charge as a whole, we do not find support for defendants’ contention of an improper alteration of the causation standard or plaintiffs’ burden of proof ….  Wild v Catholic Health System…, No 97, CtApp, 6-6-13

 

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HAIL Act Regulating Taxi Cabs and Livery Vehicles in New York City Does Not Violate Home Rule Section of State Constitution

The Court of Appeals, in a full-fledged opinion by Judge Piggot, held that the so-called HAIL Act, which regulates taxi cabs and livery vehicles in New York City, was not an unconstitutional special law in violation of the Home Rule Clause of the New York State Constitution because the statute benefits all New Yorkers, not just New York City residents:

At issue on this appeal is the constitutionality of chapter 602 of the Laws of 2011, as amended by chapter 9 of the Laws of 2012 (“HAIL Act”), which regulates medallion taxicabs (or “yellow cabs”) and livery vehicles, vital parts of New York City’s transportation system. The Act’s stated aim is to address certain mobility deficiencies in the City of New York, namely: the lack of accessible vehicles for residents and non-residents with disabilities; the dearth of available yellow cabs in the four boroughs outside Manhattan (“outer boroughs”), where residents and non-residents must instead rely on livery vehicles; and the sparse availability of yellow cab service outside Manhattan’s central business district. * * *

We conclude that the HAIL Act addresses a matter of substantial State concern. This is not a purely local issue. Millions of people from within and without the State visit the City annually. Some of these visitors are disabled, and will undoubtably benefit from the increase in accessible vehicles in the Manhattan central business district and in the outer boroughs. The Act is for the benefit of all New Yorkers, and not merely those residing within the City. Efficient transportation services in the State’s largest City and international center of commerce is important to the entire State. The Act plainly furthers all of these significant goals. Greater New York Taxi Association v State of New York…, Nos 98, 99, 100, CtApp, 6-6-13

 

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Different Monetary Standards in Wicks Law (Re: Bids for Construction Contracts) for Different Regions of State Did Not Violate Home Rule Section of State Constitution

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that the Wicks Law, as amended, did not violate the Home Rule section of the State Constitution.  The Wicks Law “requires public entities seeking bids on construction contracts to obtain ‘separate specification’ for three ‘subdivisions of the work to be performed’—generally, plumbing, electrical and HVAC…”.  Until 2008 the Wicks Law applied to all contracts which exceeded $50,000.  The 2008 amendment raised the contract-amounts and imposed different thresholds for New York City, Nassau, Suffolk and Westchester Counties, and the 54 remaining counties.  The Home Rule section provides: “(b) Subject to the bill of rights of local governments and other applicable provisions of this constitution, the legislature:  . . .  (2) Shall have the power to act in relation to the property, affairs or government of any local government only by general law, or by special law… .”  There was no attempt to comply with the “special law” requirements.  The Court of Appeals determined that the proper test for determining whether the Home Rule section has been complied with is whether the statute relates primarily to a “matter of State concern:”

“The test is . . . that if the subject be in a substantial degree a matter of State concern, the Legislature may act, though intermingled with it are concerns of the locality… .” * * * This principle controls this case. It can hardly be disputed, and plaintiffs here do not dispute, that the manner of bidding on public construction contracts is a matter of substantial State concern. The existence of the Wicks Law itself for the last century, and of much other legislation governing public contracting (e.g., General Municipal Law § 100-a, [requiring competitive bidding]) attests to this. The very amendments of which plaintiffs complain, though they do not treat all counties alike, unquestionably affect the State as a whole.  Empire State Chapter of Associated Builders and Contractors, Inc…v Smith…, No 101, CtApp, 6-6-13

 

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Substitute Judge Can Rule on Motion Argued Before Another Judge

The full-fledged opinion by Judge Read was succinctly summarized by the Court of Appeals as follows:

We hold that Judiciary Law § 21 does not bar a substitute judge from deciding a question of law presented in a motion argued orally before another judge so long as a transcript or recording of the prior argument is available for review, and “the substitute indicates on the record the requisite familiarity with the proceedings and no undue prejudice occurs to the defendant or the People” …. Put another way, section 21 does not mandate a mistrial or that the pending motion be re-argued orally in front of the substitute judge. People v Hampton, No 92, CtApp, 6-6-13

 

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