You are here: / Court Has No Authority to Grant Application to File Late Notice of Claim...

Search Results

/ ,

Court Has No Authority to Grant Application to File Late Notice of Claim After Statute of Limitations Has Expired.

Plaintiff filed a notice of claim and commenced a suit against the City of New York.  The complaint was amended to add the New York City Transit Authority as a defendant.  The First Department affirmed the dismissal of the complaint against the Transit Authority because no notice of claim against the Transit Authority had been filed and the motion to file a late notice of claim was made more than one year and 90 days after the incident. Martinez v City of New York, et al, 9428, 16403/03, First Dept. 3-5-13

 

 

/ ,

Failure to Request Court-Permission to Re-Present Charges to a Grand Jury Is Reversible Error Which Survives a Guilty Plea

The First Department held that as long as the prosecutor presents evidence regarding potential charges to a grand jury, court-permission to re-present the charges is required.  “The critical question is whether the grand jury failed to indict after a full presentation of the case.”  The fact that the prosecutor “withdrew” the charges from the grand jury’s consideration, or allowed the grand jury to vote to “take no affirmative action” on them, is of no consequence.  The prosecutor’s failure to request and receive court-permission to re-present is a reversible error which survives a guilty plea.  People v Dinkins, 8603, 1443/10, 1st Dept. 3-5-13

 

/ , , ,

State Equal Access to Justice Act 

In a full-fledged opinion by Justice Mazzarelli, the First Department interpreted the State Equal Access to Justice Act to allow the award of attorney’s fees under the “catalyst theory.” The petitioner had brought an Article 78 proceeding to compel the City to reinstate public assistance benefits after the Office of Temporary and Disability Assistance had ordered the City to do so. Two weeks after the Article 78 proceeding was started, the City complied with the order and reinstated the benefits.  The First Department determined the Article 78 proceeding was the “catalyst” for the City’s reinstatement of the benefits and, under the State Equal Access to Justice Act, the petitioner was entitled to attorney’s fees.  In re Luz Solla v Berlin, et al, 7847 & 401178/11, 2259, 1st Dept. 3-5-13

 

/ , ,

CPLR 7511 Review of Compulsory Arbitration Under the Education Law

The First Department explained and applied the principles of a CPLR 7511 review of a hearing officer’s determination after compulsory arbitration pursuant to the Education Law. The case concerned allegations of inappropriate touching of students by a tenured school librarian.  In affirming the hearing officer’s findings and penalty, the Court noted that “ ‘ where the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration’ … . [T]he determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78’ …”.  In re Ash v New York City Board/Dept of Education, 8655, 108528/10 1st Dept. 3-5-13

 

 

/

Question of Fact Existed About Whether Lost or Destroyed Will Had Been Revoked.

A question of fact precluded summary judgment denying probate where there was evidence the decedent did not intend to revoke a will that could not be found after her death.  There is a presumption that a will that was last in decedent’s possession but can not be found after death has been revoked.  But in this case there was evidence that the decedent was, close in time to her death, taking steps to dispose of her property in accordance with her will, which expressly disinherited one of her four children.  Matter of DiSiena, et al, 515209, Third Dept. 2-28-13

 

/ , ,

Standing to Seek Review of Site Plan Approval Based Upon Interest in Protecting the Ecological Health of a Body of Water Adjacent to Petitioner’s Property.

Petitioners had standing to seek review of a planning board’s site plan approval.  Petitioners, who lived one half mile from the site, alleged “direct harm, injury that is in some way different from that of the public at large … .  Their allegations that the approved construction project will harm their regular use, enjoyment, and interest in protecting the ecological health of Stony Brook Harbor, which is adjacent to their property, are sufficient to confer standing …”.  Matter of Shepherd vs Maddaloni, 2011-09750, Index No. 7867/11, Second Dept. 2-27-13

 

/ , ,

County Did Not Have the Power to Enact a Local Law to Repeal State Laws Concerning Property Tax.

The Second Department, in a full-fledged opinion by Justice Lott, determined that a local law enacted by Nassau County which purported to repeal portions of state laws concerning property tax violated the New York State Constitution and the Municipal Home Rule Law. Matter of Baldwin Union Free Sch. Dist. v County of Nassau, 2013 NY Slip Op 01265 [105 AD3d 113], Second Dept 2-27-13

 

/ , ,

State Owns Submerged Land Below a Navigable Lake, Municipality Cannot Regulate Construction on Submerged Land (Docks).

The Second Department, in a full-fledged opinion by Justice Angiolillo, determined that where the state owns a navigable lake and the submerged land below the water, the state has the exclusive authority to regulate construction on the submerged land, absent delegation of that authority to the municipality. Town of Carmel v Melchner, 2013 NY Slip Op 01259 [105 AD3d 82], Second Dept 2-27-13

 

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