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THE NYC DEPARTMENT OF HOUSING PRESERVATON AND DEVELOPMENT HAD A RATIONAL BASIS FOR FINDING THAT PETITIONER DID NOT USE HIS BROTHER’S APARTMENT AS HIS PRIMARY RESIDENCE FOR ONE YEAR PRIOR TO HIS BROTHER’S DEATH; THEREFORE PETITIONER WAS NOT ENTITLED TO SUCCESSION RIGHTS TO THE MITCHELL-LAMA APARTMENT; THERE WAS AN EXTENSIVE TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over an extensive two-judge dissent, determined the NYC Department of Housing Preservation and Development had a rational basis for finding that petitioner did not use his brother’s apartment as his primary residence for one year prior to his brother’s death and therefore was not entitled to succession rights to the Mitchell-Lama apartment:

The administrative hearing officer found that petitioner failed to establish co-residency during the relevant one-year period. Initially, the hearing officer found petitioner’s claim that the subject apartment had been his primary residence since August 2018 was contradicted by documents addressed to him at a North Miami, Florida address during that timeframe—specifically, a February 2019 letter from the Social Security Administration and bank statements from petitioner’s Wells Fargo account for the period from October 2018 through January 2019. In addition, the hearing officer considered undated documents, documents dated outside of the one-year period and documents that did not include an address but determined such documents did not prove the requisite co-residency. The hearing officer likewise concluded that the statements from 2018 through 2020 for tenant’s bank account, listing petitioner as power of attorney, were not “credible, sufficient and reliable proof” that petitioner resided in the apartment as his primary residence. The hearing officer observed that the only documents that reflected petitioner’s address as the subject apartment during the required co-residency period were the April and May 2019 letters regarding SNAP benefits. Further, the hearing officer noted that petitioner had maintained his connection to Florida, as he had kept his Florida driver’s license throughout the co-residency period [FN2]. Based on these findings, the hearing officer denied the appeal, concluding that petitioner failed to meet the eligibility requirements. The opinion made no mention of petitioner’s failure to submit tax returns. Matter of Mantilla v New York City Dept. of Hous. Preserv. & Dev., 2025 NY Slip Op 07079, CtApp 12-18-25

 

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THE ADMINISTRATIVE LAW JUDGE WENT AHEAD WITH THE DRIVER’S LICENSE REVOCATION HEARING IN THE ABSENCE OF THE OFFICERS WHO ARRESTED THE DRIVER FOR DWI; THE DRIVER’S ARGUMENT HE WAS DENIED DUE PROCESS BECAUSE HE WAS UNABLE TO CROSS-EXAMINE THE OFFICERS WAS REJECTED; THE DRIVER HAD SUBPOENAED THE OFFICERS BUT CHOSE NOT TO USE THE CPLR 2308 PROCEDURE FOR ENFORCEMENT OF THE SUBPOENAS; THE AVAILABILITY OF THE ENFORCEMENT PROCEDURE WAS DEEMED “SUFFICIENT PROCESS” (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Wilson, determined a driver, Monaghan, whose license was automatically suspended when he refused to submit to a chemical test at the time he was arrested for DWI, was not denied due process rights when the Department of Motor Vehicles (DMV) Administrative Law Judge (ALJ) revoked his license despite the arresting officers’ failure to appear at the revocation hearing. Monaghan had subpoenaed the officers and argued he was denied his right to cross-examine them. The Court of Appeal noted that Monaghan could have sought to enforce the subpoenas but chose not to. The Court found that the procedure for enforcement of subpoenas is not unduly burdensome. Therefore requiring Monaghan to use that procedure to exercise his right to cross-examine the officers does not amount to a denial of due process:

… [W]e reject the contention that Mr. Monaghan’s was deprived of his due process right to cross-examine the Troopers. His private interest in retaining his driver’s license and the government’s interest in public safety are both significant. The due process analysis, here, turns on the benefit and burden of requiring a motorist to seek judicial enforcement of a subpoena. Mr. Monaghan chose not to avail himself of the process set forth in CPLR 2308 (b). The process of applying to enforce a nonjudicial subpoena is not so unduly burdensome as to constitute a deprivation of due process of law. Our holding is consistent with appellate courts’ decisions rejecting due process challenges in other types of administrative proceedings where the petitioner has not attempted to enforce a subpoena … . It is undisputed that Mr. Monaghan did not seek enforcement, nor did he request an adjournment to do so. Matter of Monaghan v Schroeder, 2025 NY Slip Op 06959, CtApp 12-16-25

Practice Point: Here the officers who arrested the driver for DWI did not appear at the license revocation hearing. The driver argued his inability to cross-examine the officers deprived him of due process of law. However, the driver had subpoenaed the officers. He could have used the CPLR 2308 (b) procedure for enforcing the subpoenas but chose not to. The availability of the enforcement procedure was deemed sufficient process.

 

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PETITIONERS, THE NEW YORK TAXI WORKERS ALLIANCE, HAD STANDING TO CONTEST THE NYC TAXI AND LIMOUSINE COMMISSION’S PILOT PROGRAM WHICH WOULD ADD 2500 FOR-HIRE VEHICLES TO THE CITY STREETS; PETITIONERS DEMONSTRATED THE ADDED VEHICLES WOULD REDUCE MEMBERS’ INCOME (INJURY-IN-FACT) IN VIOLATION OF A LOCAL LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, reversing Supreme Court, determined the petitioners, the New York Taxi Workers Alliance and two individual drivers, had standing to challenge a pilot program initiated by the NYC Taxi and Limousine Commission as violating a Local Law. The pilot program would put 2500 more for-hire vehicles (FHV’s} on the street. Petitioners argued standing based on evidence the pilot program will lower the income of the members of the Taxi Workers Alliance. Supreme Court had held the loss-of-income claim was speculative:

… [P]etitioners established both an injury in fact and that their alleged harm satisfies the zone of interest requirement, and they therefore have standing.

… [P]etitioners allege a concrete, particularized harm: a loss of income and a deterioration of driver well-being occasioned by the introduction or potential introduction of additional vehicles into the for-hire market. That harm is neither speculative nor conjunctural; rather, it is well-demonstrated by the legislative facts underpinning Local Law 147, which facts are based, in part, on industry data. Moreover, petitioners’ alleged harm is supported by the findings of the Committee on For-Hire Vehicles as expressed in their reports. The legislative materials evince a clear connection between the number of FHVs on the streets and driver income: when the number of FHVs increases without a corresponding increase in passenger demand, driver income decreases. * * *

… [P]etitioners demonstrated that the alleged harms of loss of income and deterioration of driver well-being fall within the zone of interests or concerns promoted or protected by Local Law 147. Two of the principal interests or concerns expressly promoted or protected by the law are driver income and driver well-being (see Administrative Code § 19-550[a]; 35 RCNY 59A-06[a][1]), and the significant legislative history of Local Law 147 confirms that the City Council was concerned with the human costs associated with the exceptional growth in the FHV market, particularly drivers’ ability to earn a living. Matter of New York Taxi Workers Alliance v New York City Taxi & Limousine Commission, 2025 NY Slip Op 06551, First Dept 11-25-25

Practice Point: To have standing to challenge a local law, the challenger must demonstrate an injury-in-fact and the injury is within the scope of the protections afforded by the local law.

 

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AN INSURER CANNOT DENY PAYMENT OF AN AUTOMOBILE-ACCIDENT NO-FAULT CLAIM ON THE GROUND THE LICENSED HEALTHCARE PROVIDER COMMITTED PROFESSIONAL MISCONDUCT (HERE AN ALLEGED KICKBACK SCHEME) UNLESS THE PROVIDER HAS ABDICATED CONTROL TO AN UNLICENSED PARTY (CT APP).

The Court of Appeals, in full-fledged opinion by Judge Rivera, over an extensive dissenting opinion by Judge Wilson, determined the NYS Department of Financial Services’ (DFS’s) interpretation of a regulation addressing the payment of no-fault benefits for automobile-accident injuries was rational. The issue was whether alleged professional misconduct by a licensed healthcare provider allowed the insurer to deny payment. The DFS ruled that the insurer could not deny payment of a no-fault claim based upon alleged misconduct by the licensed provider which did not amount to the provider’s abdicating control to an unlicensed party:

The United States Court of Appeals for the Second Circuit has certified the question of whether a regulation promulgated by the Department of Financial Services (“DFS”) permits an insurer to deny a healthcare provider’s no-fault benefits claim because the provider allegedly committed professional misconduct by paying for patient referrals. DFS interprets its regulation to allow an insurer to deny a no-fault benefits claim only when a provider fails to fulfill a foundational licensing requirement necessary to perform healthcare services in any instance, and not when an insurer unilaterally determines that a properly-licensed provider has committed professional misconduct, short of effectively abdicating control to an unlicensed party. This interpretation is rational, because it is consistent with the regulation’s plain text, the no-fault statutory framework, and the legislative purposes of providing swift compensation to victims of motor vehicle accidents and reducing litigation costs. Therefore, as to those cases where the alleged professional misconduct does not constitute surrender of control to an unlicensed party, we answer the certified question in the negative. * * *

DFS asserts that it has long interpreted 11 NYCRR 65-3.16 (a) (12) as only encompassing pre-licensing requirements, and not standards to maintain licensure. DFS explains that State regulators have sole discretion to determine whether a provider has committed professional misconduct and, if they have, whether there should be licensing consequences that affect their ability to collect no-fault reimbursements. Only after a State regulator has determined that a provider committed professional misconduct, and it has suspended, annulled, or revoked their license, may an insurer deny the provider reimbursement of a no-fault benefits claim under 11 NYCRR 65-3.16 (a) (12). Additionally, DFS states that its interpretation of 11 NYCRR 65-3.16 (a) (12) does not preclude plaintiffs from arguing in this action that [the alleged} kickback scheme [at issue here] was so extensive as to essentially cede improper control of … to unlicensed individuals, in violation of licensing requirements. Plaintiffs argue that 11 NYCRR 65-3.16 (a) (12) allows an insurer to deny reimbursement based on its unilateral determination that a provider allegedly committed professional misconduct.

DFS’s interpretation of 11 NYCRR 65-3.16 (a) (12) is rational. … [I]nterpreting the regulation to exclude professional misconduct fully comports with the regulatory text. Government Employees Ins. Co. v Mayzenberg, 2025 NY Slip Op 06527, CtApp 11-24-25

Practice Point: Consult this opinion for insight into how a court will determine whether an agency has properly interpreted a regulation.

 

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THE DIVISION OF CRIMINAL JUSTICE SERVICES’ (DCJS’S) DETERMINATION THAT PETITIONER POLICE OFFICER WAS TERMINATED “FOR CAUSE” WAS CONTRADICTED BY THE FACTS; THE DETERMINATION WAS REVERSED AS “ARBITRARY AND CAPRICIOUS” (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, held the Division of Criminal Justice Services’ (DCJS’s) determination that petitioner police officer was terminated “for cause,” in the face of a consent order and evidence demonstrating petitioner resigned, was arbitrary and capricious.  The opinion is fact-specific and cannot be fairly summarized here:​

In its brief on appeal, DCJS states that it “interprets this regulation as requiring a causal nexus between the allegations of misconduct and the officer’s subsequent separation from service.” Although that is a facially rational interpretation of the regulation, DCJS’ determination that that is what occurred here lacks a sound basis in reason and disregards the facts … . Indeed, during the review process, DCJS had before it a copy of the consent award, which clearly stated that petitioner would be reinstated in good standing upon serving his suspension. Although the Police Chief claimed that petitioner never returned to work after the suspension period was over, petitioner submitted documentary evidence demonstrating the inaccuracy of that representation. Moreover, DCJS knew that the Police Chief had characterized petitioner’s separation from employment as a “standard resignation” … and that the consent award did not contain any provision precluding petitioner from seeking employment with the Schenectady County Sheriff’s Department, thereby raising a question as to the sincerity of the Police Chief’s representation [to that effect], as well as his subsequent “for cause” report. In these circumstances, it should have been clear to DCJS that the misconduct allegations were fully resolved upon petitioner serving his suspension and, therefore, the Police Chief’s subsequent reporting that petitioner resigned “in connection with allegations of misconduct” was materially inaccurate. Matter of Ferretti v New York State Div. of Criminal Justice Servs., 2025 NY Slip Op 06000, Third Dept 10-30-25

Practice Point: Consult this opinion for insight into when an administrative agency’s determination will be found “arbitrary and capricious.” Here the agency relied on representations by a police chief which were contradicted by the facts.

 

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IN RESPONSE TO PETITIONER’S FOIL REQUESTS, THE TOWN DID NOT CITE ANY EXEMPTION FOR THE IDENTIFIED RECORDS WHICH WERE NOT PRODUCED AND DID NOT CERTIFY THOSE RECORDS DID NOT EXIST; IN ADDITION THE TOWN DID NOT EXPLAIN THE REASONS FOR THE REDACTIONS IN THE PRODUCED RECORDS; ALL IN VIOLATION OF THE PUBLIC OFFICERS LAW; MATTER REMITTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court and remitting the matter, determined that the respondent town did not explain its failure to produce the determinations made in 51 of the 54 appeals identified in response to the petitioner’s FOIL request and did not explain the reasons for redactions made in the records which were provided:

… Supreme Court erred in dismissing so much of the petition/complaint as sought, in effect, to compel the production of all responsive records or, in the alternative, to certify that the respondent does not possess the requested records and that they could not be located after a diligent search. The respondent does not dispute that it failed to produce the determinations made in 51 of the 54 appeals that were identified in response to the petitioner’s request. The respondent did not claim a specific exemption to disclosure in denying the petitioner’s request for those determinations. Accordingly, the respondent was required to either produce those records or certify that it does not possess the requested records and that they could not be located after a diligent search (see Public Officers Law § 89[3][a] …).

Supreme Court also erred by determining that the respondent’s redactions were permissible to prevent unwarranted invasions of personal privacy pursuant to Public Officers Law § 87(2)(b). In an administrative appeal of an agency’s denial of access to records, the agency is required to “fully explain in writing . . . the reasons for further denial” (Public Officers Law § 89[4][a]). “[J]udicial review of an administrative determination is limited to the grounds invoked by the agency and the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” … . Here, the respondent failed to respond to the petitioner’s administrative appeal, and failed to otherwise reference Public Officers Law § 87(2)(b) as a justification for the redactions. To provide the respondent the benefit of justifications it did not advance in the first instance “contravenes Court of Appeals precedent ‘as well as the spirit and purpose of FOIL'” … . Matter of Aron Law, PLLC v Town of Hempstead, 2025 NY Slip Op 05519, Second Dept 10-8-25

Practice Point: Under FOIL (Public Officers Law) identified records must be produced unless an exemption is demonstrated to apply or the respondent certifies that the records could not be found after a diligent search. In addition, the reasons for any redactions in produced records must be explained. Here Supreme Court should not have dismissed aspects of the FOIL petition in the absence of these required responses by the town.

 

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EXPULSION OF PETITIONER-STUDENT FROM THE PHYSICIAN ASSISTANT PROGRAM “SHOCKED [THE COURT’S] SENSE OF FAIRNESS;” PETITONER WAS REINSTATED IN GOOD STANDING (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the student’s petition to vacate her college’s determination to expel her from the physician assistant program should have been granted. The petitioner-student had written recommendations for friends seeking admission to the program. Although the recommendations clearly indicated the petitioner was still a student, the digitally generated designation PA-C (Physician Assistant-Certified) appeared on the recommendations instead of PA-S (Physician Assistant -Student). The First Department found expulsion was not supported by the record and ordered the student reinstated in good standing:

“It is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion . . .” … . A review of the record makes it clear that the faculty members of the College’s Professional Conduct Review Committee and Academic Performance Committee unreasonably failed to view the totality of the circumstances and abused their discretion. This mistake harmed no one; petitioner consistently maintained that the mistake was inadvertent, as supported by petitioner’s digital signature on the letter with her student email address as well as the multiple references in the accompanying CASPA form to petitioner as a “student”; and the typographical mistake of the use of PA-C was rectified on all documentation … .

Pursuant to the College’s policy, petitioner’s inadvertent mistake simply warranted counseling or, at worst, probation. Here, the College’s imposition of the ultimate academic sanction of expulsion is “so disproportionate to the offense as to shock our sense of fairness” … as to warrant its vacatur. Matter of Mirza v College of Mount St. Vincent, 2025 NY Slip Op 05156, First Dept 9-25-25

Practice Point: Here the appellate court found that the expulsion of a college student “shock[ed] our sense of fairness.” The court vacated the expulsion and reinstated the student in good standing.

 

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VIDEOTAPED INTERVIEWS OF RESPONDENT FATHER’S CHILDREN LED TO CRIMINAL SEXUAL ABUSE CHARGES AGAINST FATHER WHICH WERE DISMISSED BECAUSE OF A LACK OF WITNESS COOPERATION; THE VIDEOTAPED INTERVIEWS ARE NOT SUBJECT TO THE SEALING REQUIREMENT IN THE CRIMINAL PROCEDURE LAW AND CAN BE USED IN A FAMILY COURT PROCEEDING ALLEGING SEXUAL ABUSE BY FATHER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gonzalez, determined that videotaped interviews respondent father’s children by the Manhattan Child Advocacy Center (CAC) are not subject to sealing under Criminal Procedure Law (CPL)  160.50 and therefore can be presented in a Family Court proceeding brought by the Administration for Children’s Services (ACS) alleging sexual abuse by father. The related criminal charges against father had been dismissed because of a lack of witness cooperation:

The argument advanced by ACS and the attorney for the children, which analogizes the CAC videos to 911 recordings, is persuasive. This Court has held that 911 calls are not official records within the meaning of CPL 160.50, as the 911 system serves a broader purpose than solely relating to criminal arrests and prosecutions … . Similar to a 911 call, which is handled by the NYPD and may or may not lead to a police response and criminal proceeding, a forensic interview at CAC is an initial information-gathering process, not inherently tied to any arrest or prosecution that may follow.

The recorded interviews of the children, in which they gave their own accounts of the father’s actions to an independent forensic interviewer, did not contain any information about the father’s arrest or discontinued prosecution. Sealing the videotaped interviews would undermine the CAC and multidisciplinary model. Although we recognize that there is a delicate balance between the compelling need to protect the welfare of children and the right of criminal defendants to be free from the stigma of an unsustained prosecution, CPL 160.50 should not be used to override the truth-finding and child-protective missions of the Family Court. Leah W. v Keith W., 2025 NY Slip Op 05041 First Dept 9-23-25

Practice Point: Videotaped interviews of father’s children by CAC led to criminal sex abuse charges against father which were dismissed. The videotaped interviews are not “official records and papers” subject to the sealing requirements in CPL 160.50 and therefore are available for use in related Family Court proceedings against father.

 

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THE COMMISSIONER’S FAILURE TO REVIEW THE HEARING OFFICER’S DETAILED DECISION BEFORE TERMINATING THE PETITIONER’S EMPLOYMENT RENDERED THE COMMISSIONER’S DETERMINATION “UNAVOIDABLY ARBITRARY” (THIRD DEPT). ​

The Third Department, reversing Supreme Court in this Article 78 proceeding, determined the respondent Panunzio, Commissioner of the City of Albany’s Department of General Services, did not review the hearing officer’s detailed decision before terminating petitioner’s employment with the city. Therefore the Commissioner’s determination was “arbitrary” and the Article 78 petition should not have been dismissed:

… [F]ollowing a disciplinary hearing held pursuant to Civil Service Law § 75 (2), a hearing officer “shall make a record of such hearing which shall, with his [or her] recommendations, be referred to such officer or body [having the power to remove the employee] for review and decision” … . The resulting administrative]determinations are entitled to a presumption of regularity … and, “in the absence of a clear revelation that the administrative body made no independent appraisal and reached no independent conclusion, its decision will not be disturbed” … . …

Panunzio did not … review the Hearing Officer’s detailed and thorough decision, as such was read into the record at the hearing and the hearing transcript was not received until after the determination terminating petitioner had already been issued. As Panunzio was unable to review the Hearing Officer’s complete report and findings, respondents had “no basis upon which to act” and their determination was thus “unavoidably . . . arbitrary” … . To be sure, a reviewing officer need not review all evidence presented before the hearing officer or defer to his or her findings … . Nevertheless, to permit respondents to issue a determination without even having the availability of the Hearing Officer’s complete report and findings would render the requirements of Civil Service Law § 75 (2) meaningless … . Matter of Alexander v City of Albany, 2025 NY Slip Op 04949, Third Dept 9-11-25

Practice Point: Hear the Commissioner terminated petitioner’s employment without first reading the detailed decision by the hearing officer, which the Commissioner is required to do by statute. The Commissioner’s determination was thereby rendered “arbitrary.” Petitioner’s Article 78 petition should not have been dismissed.

 

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THERE ARE QUESTIONS OF FACT WHETHER THE FORFEITURE OF THE VEHICLE USED FOR FOOD VENDING WITHOUT A LICENSE IS “PUNITIVE” IN NATURE AND VIOLATES THE “EXCESSIVE FINES” CLAUSES OF THE NEW YORK STATE AND UNITED STATES CONSTITUTIONS; THE FINES IMPOSED FOR THE FOOD VENDING VIOLATION WERE $2600 AND THE VALUE OF THE VEHICLE IS $40,000 (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined the forfeiture of Thomas Jones’ vehicle for food vending without a license violated the Excessive Fines clauses of both the State and Federal Constitutions. The vehicle was worth $40,000, and the fine imposed for vending without a license was $2600:

The City … commenced this proceeding in Supreme Court pursuant to Administrative Code of City of NY §§ 17-321(c) and 17-322 to seize and order forfeiture of Jones’ truck. Administrative Code § 17—321(a) permits both public health officials and the police to enforce food vending codes. Section 17-321(c)(iii) permits police or public health officials to seize a food vending vehicle being used by an unlicensed vendor and any food being offered for sale. If forfeiture proceedings are not commenced, the vendor may be charged with the “reasonable costs for removal and storage payable prior to the release of such food, vehicle or pushcart.” Section 17—322(a) provides for forfeiture of “all property seized” from unlicensed food vendors “[i]n addition to any penalties imposed” pursuant to Section 17-325. Section 17-325(a) provides that vending food without a license is a misdemeanor punishable by a fine of up to $1,000, imprisonment for up to three months, or both. Section 17-325(c) provides for additional fines for unlicensed food vendors.

The motion court denied the City’s motion for summary judgment on the grounds that there are questions of fact as to: (1) whether the forfeiture provision at issue is punitive in nature; and (2) whether the value of the property seized is so disproportional to the fines imposed and any harm to society that it violates the excessive fines clauses of the New York and United States Constitutions. We now affirm. City of New York v Jones, 2025 NY Slip Op 04842, First Dept 9-4-25

Practice Point: Consult this opinion for an in-depth discussion of when forfeiture is deemed “punitive” in nature such that forfeiture violates the Excessive Fines clauses of the State and Federal Constitutions.

 

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