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THE NYC BOARD OF HEALTH’S RESOLUTION MANDATING VACCINATION AGAINST MEASLES IS VALID AND LAWFUL; THE OBJECTIONS RAISED ON RELIGIOUS GROUNDS WERE REJECTED BECAUSE THE RESOLUTION DID NOT SINGLE OUT, TARGET OR EVEN MENTION RELIGION (SECOND DEPT).

The Second Department, in a full-fledged, comprehensive opinion by Justice Scheinkman, determined the resolution by the NYC Board of Health mandating vaccination against measles was lawful and valid and did not violate petitioners’ freedom of religion. As a threshold matter the court considered the matter as an exception to the mootness doctrine, because measles outbreaks are likely to occur in the future:

On April 17, 2019, the Board of Health of the Department of Health and Mental Hygiene of the City of New York adopted a resolution stating that, due to the active outbreak of measles among people residing within certain areas of Brooklyn, any person over the age of six months who was living, working, or attending school or child care in the affected areas had to be immunized against measles, absent a medical exemption. Failure to comply was made punishable by fines authorized by law, rule, or regulation, for each day of noncompliance. The plaintiffs/petitioners (hereinafter the petitioners), residents of areas covered by the resolution, challenge its validity. We hold that the resolution was lawful and enforceable, reserving, however, whether any fine imposed upon violation is excessive. The resolution was within the authority of the Board of Health of the Department of Health and Mental Hygiene to make and the resolution itself did not violate any right of the petitioners, including their freedom of religion. * * *

The petitioners profess to hold religious beliefs that hold that a healthy body should not assimilate foreign objects, including vaccine ingredients … . * * *

The Board’s resolution does not target religion or single out religion; it does not even mention religion. There is absolutely no indication that the resolution was adopted for the purpose of infringing the petitioners’ religious practices or suppressing their religious views … . The resolution treats all persons equally, whether religious or not … . The resolution does not create any favored classes at all, much less ones that are secular rather than religious. As the resolution is religiously neutral and generally applicable, it is not subject to strict scrutiny. C.F. v New York City Dept. of Health & Mental Hygiene, 2020 NY Slip Op 07867, Second Dept 12-23-20

 

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SUPREME COURT WENT BEYOND THE PERMISSIBLE REVIEW OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S DETERMINATION UNION CARBIDE’S FOIL REQUESTS WERE MOOT BECAUSE THE REQUESTED DOCUMENTS HAD BEEN PROVIDED; ONCE SUPREME COURT FOUND THAT THE FOIL REQUEST WAS NOT MOOT BECAUSE THERE WERE ADDITIONAL DOCUMENTS, IT SHOULD NOT HAVE GONE ON TO CONSIDER WHETHER THE ADDITIONAL DOCUMENTS WERE EXEMPT FROM DISCLOSURE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court and remitting the matter to the Department of Environmental Conservation (DEP), determined Supreme Court exceeded its review powers with respect to DEP’s response to petitioner’s (Union Carbide’s) FOIL requests. Union Carbide sought documents relating to a study which determined the radioactive slag found at sites owned by Union Carbide was not the same as the radioactive slag produced by Union Carbide’s predecessor. The DEP had determined the FOIL requests were moot because the requested documents had been produced. Supreme Court properly held that the requests were not moot, but then improperly went on to consider whether the additional requested documents were protected from disclosure:

… [T]he administrative determination was that the first two FOIL requests were closed and that the administrative appeal with respect to the third FOIL request was moot given the production of responsive records prior to and following the filing of the appeal. As such, Supreme Court’s review was limited to whether the appeal was moot on the basis offered by the FOIL Appeals Officer, that being, whether all responsive records had been provided. By virtue of respondent’s in camera submission of additional documents to the court, it was evident that all responsive records had not been provided, and the administrative determination should have been annulled. However, in reviewing the subject documents and finding that those documents, with the exception of the site classification report, were statutorily exempted from disclosure, Supreme Court went beyond its mandate to “judge the propriety of [the agency’s] action solely by the grounds invoked by the agency” … . Accordingly, there was no basis for the court to determine that any exemption justified the withholding or redacting of the additional documents submitted to the court … . Inasmuch as the record demonstrates that additional documents responsive to petitioners’ FOIL requests exist and were not yet produced or examined by respondent’s FOIL Appeals Officer, we remit to Supreme Court to direct respondent to respond to petitioners’ FOIL requests by reviewing the additional subject documents and to determine in the first instance whether they are statutorily exempted from disclosure under the Public Officers Law. Matter of Union Carbide Corp. v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 07445, Second Dept 12-10-20

 

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THE RECEIPT OF THE LETTER BY CERTIFIED MAIL, NOT THE PRIOR RECEIPT OF AN EMAIL WITH THE LETTER ATTACHED, TRIGGERED THE FOUR-MONTH STATUTE OF LIMITATIONS FOR BRINGING AN ARTICLE 78 PROCEEDING; THE OMISSION OF THE REQUIREMENT THAT THE RESPONDENTS BE SERVED WITH THE ORDER TO SHOW CAUSE COULD BE REMEDIED BY AN EXTENSION OF THE TIME TO EFFECT SERVICE PURSUANT TO CPLR 306-B (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the receipt of a letter by certified mail on January 22, not the receipt of the email with the letter attached on January 17, started the four-month statute of limitations for the Article 78 action. The letter was the final determination of the respondent Department of Health, denying petitioner’s application to open an assisted living facility.  In addition, the Third Department determined a mistake made in the order to show cause, which did not require service upon the respondents, could be remedied. Therefore petitioners should be granted an extension of time to serve respondents pursuant to CPLR 306-b:

There is no dispute that the January 17 letter constituted a final and binding determination. At issue is whether counsel’s receipt of the January 17 email or counsel’s receipt of the January 17 letter by certified mail on January 22, 2019 provided the notice necessary to trigger the running of the statute of limitations. …

We recognize that there is only one letter, the January 17 letter, a copy of which was attached to the January 17 email and the original was delivered by certified mail on January 22, 2019. That said, even though an email delivery could have sufficed, respondents opted to effect delivery of the January 17 letter through the more formal certified mailing process, by which actual delivery and receipt are confirmed with the recipient’s signature. Given that format, it was not necessarily unreasonable for petitioners to have assumed that receipt of the January 17 letter on January 22, 2017 triggered the limitations period or, at least, an ambiguity was created as to whether to measure the time period from that date. As such, we conclude that Supreme Court erred in granting respondents’ motion to dismiss the petition as untimely … . …

Petitioners submitted, and Supreme Court signed, a proposed order to show cause providing for service upon respondents by service on the Attorney General. Petitioners complied with the terms of that order, but such service was manifestly defective because petitioners were also statutorily required to effect service upon respondents (see CPLR 307, 7804 [c]). In their cross motion, petitioners promptly sought permission to correct this error, and it is evident that respondents were in no way prejudiced. Not to be overlooked is the looming expiration of the statute of limitations. Under such circumstances, rather than dismissing a proceeding, a court is authorized to extend the time for service “upon good cause shown or in the interest of justice” (CPLR 306-b …). Matter of Park Beach Assisted Living, LLC v Zucker, 2020 NY Slip Op 07264, Third Dept 12-3-20

 

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THE GROUNDS FOR THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S DENIAL OF PETITIONER PROPERTY OWNER’S APPLICATION TO PARTICIPATE IN THE BROWNFIELD CLEANUP PLAN WERE IRRATIONAL AND UNREASONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioner property owner’s application to participate in the Brownfield Cleanup Plan (BCP) should not have been denied by the Department of Environmental Conservation (DEP) on the grounds that; (1) the petitioner had already entered an agreement to cleanup the property; and (2) an additional financial burden would be imposed on the state. Both grounds were deemed irrational and unreasonable:

… [T]he DEC’s determination that the public interest would not be served by granting the petitioner’s application because National Grid had already agreed to remediate the site pursuant to the consent order was irrational and unreasonable. We hold, consistent with the determinations reached by several other courts, that a “brownfield site” is not ineligible for acceptance into the BCP “on the ground that it would have been remediated in any event” … . …  [A]ny “financial misgivings” (id. at 167) concerning the fiscal impact of a property being accepted into the BCP on the state is irrelevant to the question of whether the public interest would be served by the granting of an application to participate in the BCP. The DEC is not tasked with acting as “a fiscal watchdog” … .

… [T]he DEC’s determination that the site was ineligible for acceptance into the BCP on the ground that it is was “subject to [an] on-going state . . . environmental enforcement action related to the contamination which is at or emanating from the site” is also irrational and unreasonable … . There is no support in the language of the statute ECL 27-1405(2)(e) or in its legislative history for the DEC’s conclusion that the consent order constituted an ongoing enforcement action … . Matter of Wythe Berry, LLC v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 07076, Second Dept 11-25-2o

 

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PETITIONER IS ENTITLED TO DISCOVERY IN THE ARTICLE 78 PROCEEDING CONTESTING SUNY ALBANY’S FINDING PETITIONER VIOLATED THE CODE OF CONDUCT BY HAVING NONCONSENSUAL SEX; THE ALLEGED VICTIM HAS NO MEMORY OF THE INCIDENT; PETITIONER ALLEGED BIAS ON THE PART OF THE SCHOOL’S TITLE IX INVESTIGATOR (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined petitioner was entitled to discovery in petitioner’s Article 78 proceeding contesting SUNY Albany’s finding petitioner violated the school’s code of conduct. The student was accused of sexual misconduct, but the alleged victim had no memory of the incident. The investigation was conducted by respondent Chantelle Cleary, the Title IX coordinator at the school:

We agree with petitioner that Supreme Court erred in denying his motion for discovery. In a special proceeding such as this, discovery is available only by leave of court (see CPLR 408 …). “Among the factors weighed are whether the party seeking disclosure has established that the requested information is material and necessary, whether the request is carefully tailored to obtain the necessary information and whether undue delay will result from the request” … . Petitioner’s motion requested the disclosure of, among other things, “[r]ecordings of all meetings and interviews” between petitioner and the Title IX investigators, as well as “[r]ecordings of all interviews of all witnesses” conducted in furtherance of the investigation. Petitioner cited the alleged bias of Cleary, and the attendant bias on his guarantee of an impartial investigation, as the reason the requested discovery was “material and necessary”; respondents did not argue that the requested discovery was overbroad or would cause undue delay. Thus, we find that petitioner met the requirements for discovery … . …

Here, where the nonconsensual nature of the sexual activity was not predicated on the reporting individual’s verbal and physical manifestation of nonconsent — but on her ability to knowingly consent due to excessive inebriation — and the reporting individual avers no memory of the activity, the Board’s determination was necessarily heavily reliant on that part of the referral report that contained a summary of statements of persons who had observed the reporting individual during Friday evening, prior to her sexual encounter with petitioner. Notably, these are not sworn affidavits of the witnesses, but rather statements collected and compiled by the Title IX investigators. Matter of Alexander M. v Cleary, 2020 NY Slip Op 06987, Third Dept 11-25-20

 

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TOWN PROCEEDINGS ABOUT WHETHER THE TOWN WAS OBLIGATED TO PLOW THE ROAD LEADING TO PETITIONER’S PROPERTY WAS NOT A “QUASI-JUDICIAL” PROCEEDING AND THEREFORE THE STANDARD OF REVIEW WAS NOT “SUBSTANTIAL EVIDENCE;” THE STANDARD IS WHETHER THE DETERMINATION WAS ARBITRARY AND CAPRICIOUS OR AFFECTED BY AN ERROR OF LAW (FOURTH DEPT).

The Fourth Department determined the the town was obligated to plow the road leading to the petitioner’s property. The decision has a discussion of the evidentiary standards for review of an Article 78 proceeding:

With respect to this proceeding, … “the substantial evidence standard of review does not apply to the administrative decision at issue, since it was made after [an] informational public hearing[], as opposed to a quasi-judicial evidentiary hearing” … . “Evidentiary hearings that are constitutionally required and have some of the characteristics of adversary trials, including cross-examination, result in ‘quasi-judicial’ determinations that are subject to article 78 review in the nature of certiorari, where the ‘substantial evidence’ inquiry is applicable” (… see CPLR 7803 [4]). “In a mandamus to review proceeding, however, no quasi-judicial hearing is required; the petitioner need only be given an opportunity ‘to be heard’ and to submit whatever evidence he or she chooses and the agency [or body] may consider whatever evidence is at hand, whether obtained through a hearing or otherwise. The standard of review in such a proceeding is whether the agency [or body] determination was arbitrary and capricious or affected by an error of law” … . Matter of Weikel v Town of W. Turin, 2020 NY Slip Op 06890, Fourth Dept 11-20-20

 

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UNIVERSITY STUDENTS WERE CHARGED WITH VIOLATIONS OF THE CODE OF CONDUCT STEMMING FROM THE RELEASE OF VIDEO CLIPS DEPICTING SKITS PERFORMED AT A ROAST HELD BY A FRATERNITY; THE SKITS INCLUDED RACIAL AND RELIGIOUS SLURS AND SIMULATED SEXUAL ACTIVITY AND VIOLENCE; THE 4TH DEPARTMENT HELD THAT THE DISCIPLINARY PROCEDURES COMPORTED WITH THE RULES, THE CODE VIOLATIONS WERE SUPPORTED BY THE EVIDENCE AND THE SANCTIONS DID NOT SHOCK ONE’S SENSE OF FAIRNESS; A STRONG DISSENT ARGUED THE CODE PROVISION PURPORTING TO PROHIBIT SPEECH WHICH “THREATENS” THE “MENTAL HEALTH” OF A PERSON IS SO VAGUE THAT IT CAN NOT SUPPORT A CONVICTION (FOURTH DEPT).

The Fourth Department, over a dissent, affirmed Supreme Court in this Article 78 proceeding contesting the disciplinary procedures used by Syracuse University (respondent), the disciplinary provisions of the respondent’s Code of Student Conduct, and the punishment imposed by respondent on the petitioners (students). The petitioners participated in a roast held by their fraternity which was videotaped. The videotaped skits “included dialogue in which students professed hatred for persons of certain races, ethnicities, and religions while using slurs to refer to those groups, and depictions of simulated sexual activity and sexual violence directed at persons imitating women and a disabled individual.” Eventually portions of the video were made public. Petitioners were afforded a group hearing and were found to have violated the charged code provisions. Sanctions which included one or two-year suspensions were imposed. After noting that private colleges are not held to constitutional free speech and due process standards, the Fourth Department determined the disciplinary procedures substantially complied with the code provisions, the evidence supported the charged code violations and the sanctions did not shock one’s sense of fairness. The dissent focused on one of the charged code provisions which prohibits “[c]onduct—whether physical, verbal or electronic, oral, written or video—which threatens the mental health, physical health, or safety of any person or persons including, but not limited to hazing, drug or alcohol abuse, bullying or other forms of destructive behavior:”

​FROM THE DISSENT:

… [T]here is one aspect of this case that I cannot reconcile with the applicable law, namely, respondent’s decision to convict petitioners of violating Section 3 of the Code. … Section 3 empowers respondent to punish any student for “[a]ssistance, participation in, promotion of, or perpetuation of conduct—whether physical, verbal[,] electronic, oral, written or video—which threatens the mental health . . . of any person or persons” … . * * *

… [D]oes that provision create any distinction between speech that merely offends and speech that truly harms another person’s psychological, psychiatric, or neuro-cognitive functioning? … [H]ow does Section 3 channel the factfinder’s discretion so as to punish only the latter and not the former? … [T]he staggering breadth of the provision is matched only by its indefiniteness, and it effectively serves as a systemic instrument for the suppression of any viewpoint that falls outside the zone of permissible opinion decreed by the most strident and self-righteous of the campus community. To convict petitioners under such a vague and standardless diktat is, to my mind, the very embodiment of arbitrary and capricious administrative decision-making that should be annulled under CPLR article 78 … . Matter of John Doe 1 v Syracuse Univ., 2020 NY Slip Op 06586, Fourth Dept 11-13-20

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PETITIONER’S PISTOL PERMIT WAS NOT REVOKED FOR DOMESTIC VIOLENCE; THEREFORE THE FACT THAT THE PERMIT HAD BEEN REVOKED IN THE PAST, STANDING ALONE, WAS NOT “GOOD CAUSE” FOR DENIAL OF THE INSTANT PETITION FOR REINSTATEMENT OF THE PERMIT; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing County Court, determined petitioner’s application for reinstatement of his pistol permit should not have been denied simply on the ground it had been revoked before. The matter was remitted:

… [P]etitioner’s application was erroneously denied on the sole ground that his pistol permit had previously been revoked. Although “[a] pistol licensing officer has broad discretion in ruling on permit applications,” denials must be based upon “good cause” … . Penal Law § 400.00 (1) (k) prohibits the issuance of a pistol permit to an individual “who has . . . had a license revoked or who is . . . under a suspension or ineligibility order issued pursuant to the provisions of [CPL 530.14] or [Family Ct Act § 842-a].” This Penal Law statute, however, “was intended to protect victims of domestic violence from individuals who have orders of protection issued against them” and, thus, necessarily bars issuance only where the prior pistol permit was revoked pursuant to one of the cited statutes … .

Here, petitioner’s prior permit was not revoked pursuant to either CPL 530.14 or Family Ct Act § 842-a, but instead upon proof that petitioner made a certain threatening remark and failed to comply with an order directing him to turn in all of his firearms. “Although the revocation of petitioner’s pistol permit and the reasons therefor unquestionably could have some bearing on whether there is good cause to deny his current application,” the prior revocation, alone, was not an adequate basis for the denial (id. at 1114 [internal quotation marks and citation omitted]). As the determination set forth no other ground for denying the permit, it was not based on “good cause” and must be annulled as arbitrary and capricious … . Matter of Gaul v Sober, 2020 NY Slip Op 05013, Third Dept 9-17-20

 

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THE STATE DIVISION OF HUMAN RIGHTS (SDHR) ADMITTED IT HAD FAILED TO ADEQUATELY INVESTIGATE PETITIONER’S GENDER DISCRIMINATION CLAIMS; REVERSING SUPREME COURT, SDHR’S “NO PROBABLE CAUSE” FINDING WAS ANNULLED AND THE MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the State Division of Human Rights (SDHR) had acted irrationally, arbitrarily and capriciously in finding there was no probable cause to believe petitioner’s gender-discrimination claims:

In its answer, SDHR specifically requested that Supreme Court remand this case so that SDHR could conduct further investigation pursuant to 9 NYCRR 465.20 (a) (2), conceding that it “may have overlooked or not given full consideration” to the issues raised by petitioner. SDHR acknowledged that the final investigation and report … erroneously included information from a wholly unrelated case before it … and conceded that the witnesses identified by petitioner “were not interviewed [by SDHR] during the investigative process.”… Given SDHR’s admissions, Supreme Court was presented with sufficient good cause demonstrating that SDHR’s underlying investigation in this matter was inadequate and/or abbreviated (see 9 NYCRR 465.20 [a] [2]). Accordingly, we find that SDHR’s probable cause determination based thereon should be annulled as irrational, arbitrary and capricious, and this matter remitted to SDHR for further investigation “so that there can be a proper determination as to whether probable cause exists” … . Matter of Schwindt v Niagara Mohawk Power Corp., 2020 NY Slip Op 05009, Third Dept 9-17-20

 

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THE TOWN’S APPROVAL OF CHANGES TO A WIND-TURBINE PROJECT WITHOUT A SECOND SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT (SEIS) WAS NOT ARBITRARY AND CAPRICIOUS (FOURTH DEPT).

The Fourth Department, dismissing the petition seeking review of the town’s approval of a wind turbine project. determined a second supplemental environmental impact statement (SEIS) was not necessary before approving an increase in the height of the turbines and the placement of the transmission lines underground. The Fourth Department noted that Supreme Court’s failure to address issues raised in the petition constitutes a denial of the related relief, and the petitioners did not cross-appeal those denials:

During the SEQRA [State Environmental Quality Review Act] process, a SEIS may be required to address “specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS,” arising from, inter alia, changes in the project … . A decision to require a SEIS “must be based upon . . . the importance and relevance of the information; and . . . the present state of the information in the EIS” … . “A lead agency’s determination whether to require a SEIS—or in this case a second SEIS—is discretionary” … , and such determination “should be annulled only if it is arbitrary, capricious, or unsupported by the evidence” … .

We conclude that the Town Board “took a hard look at the areas of environmental concern and made a reasoned elaboration of the basis for its conclusion that a second SEIS was not necessary” … . The Town Board’s discretionary determination was not arbitrary, capricious, or unsupported by the evidence … . The prior submissions concerning the impact of the project on bald eagles, combined with the updated materials submitted with the latest project modification, were sufficient to establish that the proposed changes would not adversely impact bald eagles. The materials established that collisions between raptors and wind turbines are rare, and that even the higher, 599-foot turbines lie below the normal flight altitude of bald eagles. With respect to the buried electrical transmission lines, the materials showed that such a modification would have a significant positive environmental impact, reducing the effect of the project on wetlands. Matter of McGraw v Town Bd. of Town of Villenova, 2020 NY Slip Op 04644, Fourth Dept 8-20-20

 

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