Administrative Law Archives - New York Appellate Digest

THE COURT WAS TROUBLED BY NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIAL AND HEARINGS’ (OATH’S) REQUIREMENT THAT PETITIONER PAY THE ORDERED RESTITUTION OF OVER $234,000 BEFORE PETITIONER COULD APPEAL THE DETERMINATION; THE ISSUE WAS NOT RAISED BY THE PARTIES AND THEREFORE COULD NOT BE DECIDED (FIRST DEPT).

The First Department noted it was troubled by the New York City Office of Administrative Trial and Hearings’ (OATH’S) requirement that petitioner pay the ordered restitution as a prerequisite to appealing the determination. The issue was not raised by the parties so the First Department could not decide it:

Although neither specifically preserved nor raised on appeal, we are troubled by the constitutional ramifications of an administrative tribunal insulating its decision by making judicial review contingent on satisfaction of its order, including, as here, the payment of money … . It seems patently unfair to force a litigant to pay restitution as a condition for filing an appeal where the litigant has received a waiver of prior payment of his fine due to financial hardship … . Petitioner here is excused from paying a $5,000 fine as a condition to filing an appeal based on financial hardship, but, notwithstanding its financial hardship, it is forced to pay almost a quarter of a million dollars ($234,152.57) before it can file an appeal. Under this system, if you do not have the financial means to pay, you cannot come into court and seek review regardless of the merits of the challenged administrative determination … . Nonetheless, because this constitutional issue was not fully briefed before us, we do not decide it. Matter of Sahara Constr. Corp. v New York City Off. of Admin. Trials & Hearings, 2020 NY Slip Op 03715, First Dept 7-2-20

July 2, 2020/0 Comments/by Bruce Freeman

Administrative Law, Civil Procedure, Constitutional Law, Insurance Law, Religion

THE REGULATION REQUIRING NEW YORK HEALTH INSURANCE POLICIES TO COVER MEDICALLY NECESSARY ABORTION SERVICES, WHICH INCLUDES AN EXEMPTION FOR ‘RELIGIOUS EMPLOYERS,’ IS CONSTITUTIONAL AND WAS PROPERLY PROMULGATED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Colangelo, affirming Supreme Court, determined the regulation requiring health insurance policies in New York to provide coverage for medically necessary abortion services, which includes an exemption for “religious employers,” was properly promulgated and was constitutional. The Court of Appeals decision upholding a similar regulation for prescription contraceptives, Catholic Charities of Diocese of Albany v Serio (7 NY3d 510 [2006] …), was deemed the controlling precedent:

At issue in Catholic Charities of Diocese of Albany was the validity of a provision of the Women’s Health and Wellness Act (…[hereinafter WHWA]) that requires health insurance policies that provide coverage for prescription drugs to include coverage for prescription contraceptives … . The WHWA also provided an exemption from coverage for “religious employers” (Insurance Law § 3221 [l] [16] [E]), which exemption contains the identical criteria as the exemption applicable here … . … As the constitutional arguments raised by plaintiffs here are the same as those raised and rejected in Catholic Charities of Diocese of Albany, Supreme Court properly concluded that they must meet the same fate by operation of the doctrine of stare decisis. “Stare decisis is the doctrine which holds that common-law decisions should stand as precedents for guidance in cases arising in the future and that a rule of law once decided by a court will generally be followed in subsequent cases presenting the same legal problem” … .

We agree with Supreme Court that an analysis of the Boreali factors [Boreali v Axelrod, 71 NY2d 1] weighs in favor of rejecting plaintiffs’ challenge that the Superintendent exceeded regulatory authority in promulgating the regulation at issue here. Roman Catholic Diocese of Albany v Vullo, 2020 NY Slip Op 03707, Third Dept 7-2-20

July 2, 2020/0 Comments/by Bruce Freeman

Administrative Law, Evidence, Vehicle and Traffic Law

THE RECORD SUPPORTED THE SUSPENSION OF PETITIONER BUS DRIVER’S LICENSE FOR CAUSING SERIOUS PHYSICAL INJURY TO A PEDESTRIAN WHILE FAILING TO EXERCISE DUE CARE; APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the proof before the Department of Motor Vehicles (DMV) was sufficient to find that petitioner bus driver caused serious physical injury to a pedestrian warranting suspension of petitioner’s driver’s license for six months:

In November 2014, a New York City Transit bus driven by petitioner struck the victim, an 88-year-old pedestrian. At the time of the accident, the victim was in a marked crosswalk with the right of way, and petitioner was making a right turn. The bus ran “over [the victim’s] legs . . . with the front passenger’s side tire,” pinning him under the bus. The victim was transported to the hospital, where he died less than four weeks later.

A summons was issued to petitioner alleging that he caused serious physical injury to a pedestrian while failing to exercise due care (see VTL § 1146 [c]). The Administrative Law Judge found that the charge was established by clear and convincing evidence. The DMV’s Traffic Violations Bureau Appeal Board affirmed, and petitioner’s license was suspended for six months (see VTL § 510 [2] [b] [xiv]). …

On this record, the agency’s determination — that clear and convincing evidence demonstrated that petitioner caused serious physical injury while failing to exercise due care in violation of VTL § 1146 (c) — is supported by substantial evidence … . Matter of Seon v New York State Dept. of Motor Vehs., 2020 NY Slip Op 03564, CtApp 6-25-20

SUMMARY OF FIRST DEPARTMENT DECISION REVERSED BY THE COURT OF APPEALS ON JUNE 25, 2020 (SUMMARIZED ABOVE)

APPLYING THE CLEAR AND CONVINCING EVIDENTIARY STANDARD, THE DEPARTMENT OF MOTOR VEHICLES’ (DMV’S) SUSPENSION OF PETITIONER BUS DRIVER’S LICENSE BASED UPON STRIKING A PEDESTRIAN WAS NOT SUPPORTED BY EVIDENCE OF THE EXTENT OF THE INJURY OR ANY CONNECTION BETWEEN THE INJURY AND THE PEDESTRIAN’S DEATH A MONTH LATER, DETERMINATION ANNULLED AND LICENSE REINSTATED (FIRST DEPT).

The First Department, annulling the determination of the Department of Motor Vehicles (DMV), over a two-justice dissenting opinion, determined the record did not support the suspension of petitioner-bus-driver’s license for a violation of Vehicle and Traffic Law 1146. The court noted that the standard of proof in the DMV hearing is “clear and convincing” and the standard of proof in the instant Article 78 proceeding is “substantial evidence.” Effectively, therefore, the “clear and convincing” standard applies to the Article 78. Here, on a dark and rainy night, an 88-year-old pedestrian apparently came into contact with the bus in the crosswalk when the bus was turning. The man died a month later. In the opinion of the majority, the hearing evidence did not demonstrate how seriously the man was injured by the bus, or a connection between any injury and the man’s death a month later:

Here, DMV was required to establish that petitioner violated Vehicle and Traffic Law § 1146(c)(1), which imposes liability on “[a] driver of a motor vehicle who causes serious physical injury as defined in article ten of the penal law to a pedestrian or bicyclist while failing to exercise due care.” The referenced definition of “serious physical injury” includes “physical injury . . . which causes death,” … which is presumably the basis for the charge against petitioner since he was not issued a summons until after the pedestrian died in the hospital. Thus, DMV was required to present clear and convincing evidence of both failure to exercise care and that such failure led to the pedestrian’s demise. * * *

To be sure, one could speculate, as does the dissent, that the pedestrian suffered a “serious physical injury.” But to engage in speculation would be to ignore the underlying standard of clear and convincing evidence, which even the dissent agrees applied in the administrative proceeding and is relevant to our review. “Clear and convincing evidence is evidence that satisfies the factfinder that it is highly probable that what is claimed actually happened . . . and it is evidence that is neither equivocal nor open to opposing presumptions”… . Given that standard, and the remarkable lack of compelling evidence before us, we would be abdicating our role were we simply to defer to the conclusions drawn by the Administrative Law Judge, and raising a serious question as to the very purpose of having any appellate review in this matter. Matter of Seon v New York State Dept. of Motor Vehs., 2018 NY Slip Op 02240, First Dept 3-29-18

June 25, 2020/0 Comments/by Bruce Freeman

Administrative Law, Municipal Law

NEW RULE ALLOWING THE NYC CIVILIAN COMPLAINT REVIEW BOARD TO INVESTIGATE SEXUAL MISCONDUCT ALLEGATIONS AGAINST POLICE OFFICERS IS INVALID; PUBLIC VETTING PROCESS WAS NOT FOLLOWED (FIRST DEPT).

The First Department, over a dissent, in a comprehensive decision too detailed to fairly summarize, reversing (modifying) Supreme Court, determined certain Rules of City of New York Civilian Complaint Review Board adopted in 2018 were valid, but the 2018 resolution to begin investigating sexual misconduct allegations against police officers was invalid:

Defendant-respondent The New York City Civilian Complaint Review Board (the CCRB) investigates allegations of police misconduct toward members of the public (NY City Charter § 440[a]). It is empowered to receive, investigate, hear, make findings, and recommend action upon complaints that allege misconduct involving excessive use of force, abuse of authority, discourtesy or use of offensive language … . At issue in this appeal are certain amended rules adopted by the CCRB in 2018 … and a resolution, also adopted in 2018, to begin investigating sexual misconduct, which previously had been referred to the New York City Police Department (NYPD) Internal Affairs Bureau (IAB). * * *

By declaring that the CCRB would assert jurisdiction over an entire category of misconduct that it had historically referred as a matter of policy, the resolution announced a sweeping policy change that materially affected the rights of all alleged victims of sexual misconduct and allegedly offending police officers “equally and without exception,” and thus amounted to the adoption of a new “rule” … . However, because the CCRB undisputedly did not follow the public vetting process required … for adopting a new rule, the sexual misconduct resolution is a nullity … . Matter of Lynch v New York City Civilian Complaint Review Bd., 2020 NY Slip Op 03062, First Dept 5-28-20

May 28, 2020/by Bruce Freeman

Administrative Law, Appeals, Workers' Compensation

THE WORKERS’ COMPENSATION BOARD MADE SEVERAL DECISIONS BUT REMITTED THE MATTER TO THE WORKERS’ COMPENSATION LAW JUDGE FOR ADDITIONAL RULINGS; THE ORDER APPEALED FROM THEREFORE WAS NONFINAL; APPEAL DISMISSED (THIRD DEPT).

The Third Department determined the decision by the Workers’ Compensation Board was nonfinal and therefore the appeal could not be considered:

In reviewing these various decisions, the Board found, among other things, that claimant was entitled to awards from April 14, 1997 to September 1, 2011 at the previously established temporary partial disability rate of 66.6% and that claimant had reached maximum medical improvement, but remitted the case to the WCLJ [Workers’ Compensation Law Judge] for a determination of issues related to claimant’s alleged violation of Workers’ Compensation Law § 114-a, permanency and loss of wage-earning capacity … . …

This appeal must be dismissed. “We will not conduct a piecemeal review of the issues presented in a nonfinal decision in workers’ compensation cases that will be reviewable upon an appeal of the Board’s final decision” … . “Board decisions which neither decide all substantive issues nor involve a threshold legal issue are not appealable” … . As none of the arguments raised on this appeal address potentially dispositive threshold legal questions, and “the nonfinal decision may be reviewed upon an appeal from the Board’s final determination, this appeal must be dismissed” … . Matter of Navarro v General Motors, 2020 NY Slip Op 02504, Third Dept 4-30-20

April 30, 2020/by Bruce Freeman

Administrative Law, Social Services Law

ALLEGATION THAT PETITIONER FAILED TO REPORT AN INCIDENT OF SUSPECTED ABUSE BY ANOTHER EMPLOYEE OF THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES WAS SUBSTANTIATED DESPITE THE FAILURE TO SUBSTANTIATE THE ALLEGATION OF ABUSE BY THE OTHER EMPLOYEE (THIRD DEPT).

The Third Department determined the NYS Office for People with Developmental Disabilities’s (OPWDD’s) finding that petitioner’s failure to report an incident of suspected abuse by another employee was substantiated was supported by the evidence, despite the fact that allegation of abuse by the other employee was not substantiated:

The evidence at the hearing established that the service recipient reported to petitioner every time the other employee was “rude” to him over the course of six months, and petitioner did not act on this information. By petitioner’s own testimony, she saw the other employee shout at and belittle the service recipient, yet she reported nothing. Although petitioner disputed the characterizations of her statements at the meeting or that she thought the other employee was abusive, and offered many reasons as to why she did not act on her observations, respondent was free to make credibility determinations and credit contrary testimony, as “it is the responsibility of [respondent] to weigh the evidence and choose from among competing inferences therefrom” … .

We reject petitioner’s contention that obstruction of reporting cannot be substantiated against her since the underlying allegations of abuse against the other employee were not substantiated. Pursuant to statute, reportable incidents must be reported when they are “suspected,” rather than confirmed … . Matter of Taylor v Justice Ctr. for the Protection of People with Special Needs, 2020 NY Slip Op 02299, Third Dept 4-16-20

April 16, 2020/by Bruce Freeman

Administrative Law, Medicaid, Social Services Law

SERVICES PROVIDED TO A DISABLED MAN BY THE NYS OFFICE OF PEOPLE WITH DEVELOPMENTAL DISABILITIES COULD NOT BE CURTAILED BECAUSE OF A LACK OF FUNDS (THIRD DEPT).

The Third Department determined the NYS Office for People with Developmental Disabilities (OPWDD) was properly prohibited from curtailing services to and disabled man, M,D., because of a lack of funds:

Even if the catch-all of “any other relevant considerations advanced by the parties” (OPWDD Policy and Procedures, Topic No. CP-10 [Rev (Feb. 1995)], at 4, ¶ 10) includes a provider agency’s financial difficulties connected to the provision of services to an individual, the Hearing Officer noted that petitioner “may well have valid fiscal concerns,” but concluded that it would not be proper or in M.D.’s best interest to discharge him on the basis of a lack of funding. We acknowledge the conundrum raised by petitioner — that providers face a difficulty in providing excellent services to a population with special needs but with no avenue of relief to help them financially when those services are more expensive than expected or than the maximum allowed under the HCBS [Home Community Based Services] waiver program. While we applaud providers such as petitioner for striving to provide excellent services to an underserved population, and are cognizant of their frustration when they deem the funding available for such services to be inadequate, the remedy must be for the service providers to apply to or lobby the relevant agencies, the Legislature or the Governor to provide more funding; the answer cannot be that administrative agencies or courts should allow service providers to simply discharge individuals with developmental disabilities from their services whenever the providers deem them too expensive. Based on consideration of the relevant factors, substantial evidence supports the Commissioner’s determination that it was not reasonable to allow petitioner to discharge M.D. from its program. Matter of Community, Work, & Independence, Inc. v New York State Off. for People with Dev. Disabilities, 2020 NY Slip Op 02301, Third Dept 4-16-20

April 16, 2020/by Bruce Freeman

Administrative Law, Civil Procedure, Contract Law, Land Use, Municipal Law, Zoning

CORRESPONDENCE BETWEEN THE TOWN AND THE PROPERTY OWNER AMOUNTED TO AN AGREEMENT TO AGREE, NOT AN ENFORCEABLE SETTLEMENT AGREEMENT ALLOWING CONSTRUCTION; SUPREME COURT’S DIRECTIVES TO THE TOWN ENCROACHED UPON THE TOWN’S ADMINISTRATIVE AUTHORITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined: (1) the correspondence between the property owner (PCP) and the town concerning proposed construction created an agreement to agree, not an enforceable settlement agreement allowing construction; and (2), Supreme Court’s directing what the town could and could not consider with respect to the construction project encroached upon the town’s administrative authority:

… [T]he letters that the court found to have memorialized the settlement agreement did not contain all the material terms of the settlement and constituted no more than an agreement to agree … . [The town] stated therein only that it was “now in a position to agree to a settlement of the mass and scale issues,” but that first it would “need to receive, review and approve all of the items that it normally reviews in connection with any application it receives.” Any agreement was further conditioned on [the town’s] receipt of additional documentation from PCP, including “an accurate, to-scale site plan” and further roof specifications … .

We further conclude that, in the absence of an enforceable settlement agreement, the court’s hearing on the issues of mass and scale, subsequent decision rendering findings of fact related to PCP’s new application for a certificate of approval, and remittal to [the town] for consideration of that application with specific directives regarding what [the town] could and could not consider were impermissible intrusions into respondents’ administrative domain … . Matter of Pittsford Canalside Props., LLC v Village of Pittsford Zoning Bd. of Appeals, 2020 NY Slip Op 01812, Fourth Dept 3-13-20

March 13, 2020/by Bruce Freeman

Administrative Law, Social Services Law

ALTHOUGH TWO OF MOTHER’S FIVE CHILDREN, AS FULL-TIME COLLEGE STUDENTS, WERE INELIGIBLE FOR THE SNAP (FOOD STAMP) PROGRAM, THE ENTIRE AMOUNT OF FATHER’S CHILD SUPPORT PAYMENTS MUST BE CONSIDERED AS HOUSEHOLD INCOME, RENDERING THE FAMILY INELIGIBLE FOR THE SNAP PROGRAM (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined that the child support payments made by father constituted income to mother (Ms. Leggio), not to the children. Therefore, although two of the children are full-time college students and ineligible for the SNAP (food stamp) program, the full amount of the child support must be considered in determining the family’s eligibility for the SNAP program. Applying the full amount of the child support to the mother’s income rendered the family ineligible:

… [I]f Ms. Leggio’s two eldest children are the owners of their pro rata shares of the child support she receives, the household would be eligible for SNAP benefits … . Conversely, if child support funds are considered income of the custodial parent who received them (here, Ms. Leggio) they are household income not subject to any exclusion, and Ms. Leggio’s household’s income would be too high to receive SNAP benefits. Although the consequences of allocating the income are clear, the threshold question, whether child support is income of the recipient-parent or of the beneficiary-child for purposes of determining eligibility for SNAP benefits, is unresolved by any federal or state statute or regulation or decision of this Court.

We conclude that OTDA’s [Office of Temporary and Disability Assistance’s] interpretation of the federal statutes it administers was not irrational and is entitled to deference and thus, for the purposes of SNAP, child support directly received by a parent is household income, even if it is used for the benefit of an ineligible college student living at home. Matter of Leggio v Devine, 2020 NY Slip Op 00999, Ct App 2-13-20

February 13, 2020/by Bruce Freeman

Administrative Law, Retirement and Social Security Law

INCREASES IN PAY TO PORT AUTHORITY EXECUTIVE EMPLOYEES, AIMED AT RETAINING THOSE EMPLOYEES IN THE WAKE OF THE 9-11 ATTACKS, SHOULD NOT BE TREATED AS SALARY IN THE CALCULATION OF THOSE EMPLOYEES’ RETIREMENT BENEFITS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined certain increases in pay to executive employees of the Port Authority, aimed at retaining those employees in the wake of the 9-11 attacks, should not be treated as salary in the calculation of those employees’ retirement benefits. ” … Retirement and Social Security Law § 431 provides that “[i]n any retirement or pension plan to which the state or municipality thereof contributes, the salary base for the computation of retirement benefits shall in no event include . . . any additional compensation paid in anticipation of retirement” (Retirement and Social Security Law § 431 [3] [emphasis added]):”

… [W]e must … ask whether there is substantial evidence in the record to support the Comptroller’s determination that the Port Authority’s compensation adjustment program constituted “additional compensation paid in anticipation of retirement” (Retirement and Social Security Law § 431 [3]). Under this standard, where substantial evidence exists to support the administrative agency’s determination, a court may not substitute its judgment for that of the agency, even if there is evidence supporting a contrary conclusion … . In order to determine whether the purpose of the compensation was “to circumvent the provisions of Retirement and Social Security Law § 431,” courts ” must look to the substance of the transaction and not to what the parties may label it’ ” … .

Here, the record contains substantial evidence supporting the Comptroller’s determination that the Port Authority provided the compensation adjustments to artificially increase the executive employees’ final average salaries so that, upon retirement, they would receive pension increases roughly equivalent to those they would have received under the retirement incentive program. Indeed, the letter agreements signed by petitioner employees directly referred to a program “designed to provide a limited number of staff members with a parity’ benefit” to make their “pension calculation[s] . . . roughly equivalent to the calculation[s] if [they] had been eligible to retire with the incentive.” Plainly, substantial evidence supports the conclusion that the compensation, by design, was made in anticipation of petitioner employees’ retirement within the meaning of the statute. Matter of Bohlen v DiNapoli, 2020 NY Slip Op 00997, CtApp 2-13-20