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DEFENDANT EMPLOYER’S FAILURE TO ENGAGE IN COOPERATIVE DIALOGUE REGARDING ACCOMMODATION FOR THE DISABLED PLAINTIFF WARRANTED SUMMARY JUDGMENT ON PLAINTIFF’S NYC HUMAN RIGHTS LAW CLAIM (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the disabled plaintiff was intitled to summary judgment on his NYC Human Rights Law claim because defendant-employer failed to engage in a cooperative dialogue regarding accommodation for his disability:

… [P]laintiff is entitled to summary judgment on his City HRL claim based on defendant’s failure to engage, within a reasonable time, in a cooperative dialogue regarding his accommodation, as the record presents no issues of fact as to defendant’s failure to engage plaintiff in a cooperative dialogue once defendant became aware of his condition (see Administrative Code of City of NY §§ 8-102; 8-107[28][a] …). Contrary to defendant’s contention, an employer’s failure “to engage in a good faith interactive process is . . . independently actionable under the [City] HRL” … . Kocher v Mount Sinai Hosp., 2026 NY Slip Op 06007, First Dept 10-15-26

Practice Point: An employer’s failure to engage in cooperative dialogue with a disabled worker about accommodation for the disability violates the NYC Human Rights Law.

 

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EQUIVOCAL AND CONTRADICTORY EVIDENCE DID NOT MEET THE “CLEAR AND CONVINCING” STANDARD FOR THE ISSUANCE OF AN “EXTREME RISK PROTECTION ORDER (ERPO)” (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Corcoran, determined the equivocal evidence submitted by the state police was not sufficient to warrant an Extreme Risk Protection Order (ERPO). Respondent, a Department of Motor Vehicles (DMV) employee, had expressed animosity toward his supervisor. During a videoconference meeting with DMV personnel and respondent, a rifle and a handgun were visible near the respondent. Respondent’s vague statements, which were interpreted as threats of violence, were equivocal, and may have referred to respondent’s intent to sue the DMV:

At the hearing, the DMV labor relations representative who conducted the first videoconference meeting testified that respondent appeared intense and aggravated and repeatedly expressed animosity toward his supervisor. The agency director who conducted the second meeting the next day described how respondent sat to the side of the video frame while a rifle, mounted on a stand, and a handgun were prominently displayed on a table behind him. A screenshot of the participants and the firearms display was received in evidence. According to the director, the placement of the firearms “felt very intentional.” He nevertheless completed the hearing without commenting on the firearms, explaining that he wanted to address respondent’s grievance without creating any unnecessary distraction. The following day, respondent called the labor relations representative, asserted that his supervisor had engaged in unlawful discrimination and suggested that he should be supervised by someone else during the investigation. The investigator’s report annexed to the petition reflected that respondent had acknowledged animosity in his “chain of command” and stated that “be[ing] under something that condescending is not going to go well. It’s not a good idea to work under someone in that matter [sic] and you’re going to see later that it’s not a good idea.” … The labor relations representative told the investigator that respondent may have been referring to his stated plan to sue DMV for defamation or discrimination. * * *

… [P]etitioner’s proof of respondent’s alleged threat was equivocal or contradictory, such that petitioner failed to satisfy the requisite burden of proof. Petitioner’s documentary evidence and the testimony adduced at the hearing suggest that respondent’s statement about things “not going to go well” connoted future litigation. … To be sure, Supreme Court acted well within its discretion in finding that respondent testified untruthfully about his knowing display of firearms and that petitioner’s witnesses were more credible. Nonetheless, based upon the equivocal characterizations of respondent’s implied threat contained within petitioner’s own documentary proof and the testimony adduced at the hearing, we are constrained to conclude that petitioner did not establish by clear and convincing evidence that respondent was likely to engage in conduct that would result in serious harm to others. Matter of New York State Police v Brian LL., 2026 NY Slip Op 05832, Third Dept 10-8-26

Practice Point: Consult this opinion for insight into the “clear and convincing” standard of proof in the context of a petition for an “Extreme Risk Protection Order (ERPO).” The standard is not met by equivocal and contradictory proof.

 

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CAUSES OF ACTION AGAINST “BIG OIL” ALLEGING “GREENWASHING” IN VIOLATION OF NYC’S CONSUMER PROTECTION LAW PROPERLY DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Friedman, affirmed the dismissal of the “product greenwashing” and “corporate greenwashing” causes of action in a suit by the City of New York against Exxon Mobil, Royal Dutch Shell, Shell and BP. The opinion is a comprehensive discussion of the application of the City’s Consumer Protection Law (CPL) to the defendants’ claims re: the environmental benefits of fossil fuel products and the role of renewable energy in defendants’ businesses:

In this action, plaintiff City of New York alleges that defendant energy companies … have engaged in “deceptive . . . trade practice[s]” proscribed by the City’s Consumer Protection Law (CPL) (Administrative Code of the City of NY § 20-700 et seq.). The City’s first cause of action alleges that defendants violated the CPL “by misrepresenting the purported environmental benefits of using their fossil fuel products” — a practice referred to as “product greenwashing.” The City’s second cause of action alleges that defendants also violated the CPL “by creating a misleading impression of the role of renewables [i.e., renewable energy] in their businesses” — a practice referred to as “corporate greenwashing.”

The City now appeals to this Court from Supreme Court’s order granting defendants’ motion to dismiss both causes of action. The court dismissed the first cause of action, for product greenwashing, as against all defendants, pursuant to CPLR 3211(a)(7), on the ground that the alleged “product greenwashing” statements did not, as a matter of law, have “the capacity, tendency or effect of . . . deceiving or misleading consumers” (Administrative Code § 20-701), as required to constitute a deceptive trade practice within the meaning of the CPL. … The court also dismissed the second cause of action, for corporate greenwashing, as against all defendants, pursuant to CPLR 3211(a)(7), on the ground that the alleged “corporate greenwashing” statements were not “made in connection with the sale . . . or in connection with the offering for sale of consumer goods or services,” as also required to constitute a deceptive trade practice within the meaning of the CPL. … [W]e affirm. City of New York v Exxon Mobil Corp., 2026 NY Slip Op 05851, First Dept 10-8-26

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THE “DOCTRINE OF PRIMARY JURISDICTION” APPLIED TO THIS BREACH OF CONTRACT ACTION BETWEEN UTILITY PROVIDERS; THE UNDERLYING ACTION SHOULD HAVE BEEN STAYED, NOT DISMISSED, PENDING A RULING BY THE PUBLIC SERVICE COMMISSION (PSC) (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, applying the “doctrine of primary jurisdiction,” determined the underlying breach of contract action between the utility providers should have been stayed (not dismissed without prejudice) pending a ruling by the Public Service Commission (PSC):

Although “[t]here is no fixed formula governing the application of the doctrine to the facts of a particular case . . . [,] the court must determine in each case whether the reasons for the doctrine are present and whether the purposes of the doctrine will be served by its application” … . Factors considered by courts in determining whether the doctrine applies include, “(1) whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency’s particular field of expertise; (2) whether the question at issue is particularly within the agency’s discretion; (3) whether there exists a substantial danger of inconsistent rulings; and (4) whether a prior application to the agency has been made” … . * * *

… [W]e conclude that the PSC has primary jurisdiction over plaintiff’s claims because “the determination of the issues involved, under a regulatory scheme, depends upon the specialized knowledge and experience of th[at] agency” … . * * *

… [T]he court abused its discretion to the extent that it dismissed the complaint without prejudice instead of staying the action pending the PSC’s determination in the proceedings pending before it. In determining the appropriate disposition where the primary jurisdiction doctrine applies, “[a] court in its discretion may choose to dismiss the case without prejudice—but only if the parties would not be unfairly disadvantaged” … .  * * * … [B]y dismissing the complaint without prejudice instead of staying the action, the court would unfairly disadvantage plaintiff because, if plaintiff were to commence another action after the PSC issued its determination, the court might dismiss some of its claims on statute of limitations grounds … . Agway Energy Servs., LLC v Central Hudson Gas & Elec. Corp., 2026 NY Slip Op 05621, Fourth Dept 10-2-26

Practice Point: Consult this decision for an in-depth discussion of the applicability of the “primary jurisdiction doctrine” which allows an agency (here the Public Service Commission) to rule before court liligation proceeds.

Practice Point: Whether to stay the court proceedings or dismiss the proceedings without prejudice pending the agency ruling is a matter of discretion. Here the action should have been stayed, not dismissed, because the statute of limitations might preclude plaintiff from alleging certain causes of action in a new complaint.

 

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PETTIONERS (LICENSED CANNABIS RETAILERS) DID NOT DEMONSTRATE THAT THE RESPONDENT AGENCY’S REGULATIONS CONCERNING INSPECTIONS, SEARCHES AND SEIZURES AT PETITIONERS’ PLACES OF BUSINESS ARE UNCONSTITUTIONAL; THE ALLEGATION THAT THE MANNER IN WHICH THE INSPECTIONS ARE CONDUCTED VIOLATES THE CONSTITUTION IS PREMATURE BECAUSE THE ALLEGATION HAS NOT YET BEEN SUBJECTED TO ADMINISTRATIVE REVIEW, I.E., THE “EXHAUSTION OF REMEDIES” REQUIREMENT HAS NOT BEEN MET (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Corcoran, determined the preliminary injunction prohibiting certain inspections of petitioners’ businesses, which are licensed for the retail sale of cannabis, should not have been granted. The respondent is an agency, the NYS Cannabis Control Board.

… [Re:] petitioners’ attempt to show the likelihood of a successful constitutional challenge, we find that Supreme Court abused its discretion in granting the preliminary injunction because petitioners failed to show that the statutory and regulatory scheme is invalid in all of its applications … . * * *  When viewed as a whole, we find that the statutory and regulatory framework provides “meaningful limitation[s]” on an inspector’s discretion and ensures that “the search is limited in scope to that necessary to meet the interest that legitimized the search in the first place” … . …

To the extent petitioners challenge the manner in which inspections were applied to their particular businesses, these “as-applied” claims are premature because they have not been subjected to administrative review. A facial challenge requires examination of the statute “on a cold page” and without reference to the particular conduct … , whereas an “as-applied” challenge “requires an analysis of the facts of a particular case” … . Matter of Super Smoke N Save LLC v New York State Cannabis Control Bd., 2026 NY Slip Op 03715, Third Dept 6-11-26

Practice Point: A court can review an agency’s regulations which are alleged to be unconstitutional “on a cold page,” but a court cannot review the manner in which the regulations are applied absent an agency determination (the “exhaustion of remedies” rule in administrative law).

 

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“EXHAUSTION OF REMEMDIES” IS NOT ALWAYS REQUIRED BEFORE AN AGENCY ACTION CAN BE CHALLENGED IN COURT; HERE THE CHALLENGE INVOLVED A PURE QUESTION OF LAW (SECOND DEPT).

The Second Department noted that the “exhaustion of remedies” rule does not apply to administrative actions where, as here, an agency’s action is challenged as either unconstitutional or beyond the agency’s power. Here petitioners alleged the respondent NYC Water Board overcharged for excess water consumption. That agency’s procedure was properly reviewed by the court (but the argument was ultimately rejected):

… “[E]xhaustion of administrative remedies is not required where an agency’s action is challenged as either unconstitutional or beyond its grant of power, or when resort to an administrative remedy would be futile, or when its pursuit would cause irreparable injury” … . This is because while review of some claims “hinges upon factual issues reviewable at the administrative level [which] must first be addressed to the agency so that a necessary factual record can be established” … , other claims present “a circumstance where the issue to be determined is purely a question of law” … . To the extent the fifth cause of action sought a declaration that the Water Board is acting in contravention of an established statutory scheme for setting rates for excess water consumption, exhaustion was not required … , and the court should not have dismissed that portion of the fifth cause of action on those procedural grounds. Matter of Town of Carmel v New York City Water Bd., 2026 NY Slip Op 03680, Second Dept 6-10-26

Practice Point: This decision presents an example of when a court challenge to an agency action does not trigger the “exhaustion of remedies” requirement. Here the challenge presented a pure question of law which did not require the development of a factual record at the agency level.

 

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THE ISSUANCE DATE OF A DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) DECISION BY A HEARING OFFICER IS THE DATE THE DECISION IS MAILED; THE 60-DAY APPEAL PERIOD STARTS RUNNING ON THE DATE OF MAILING; HERE DOCCS DID NOT PROVE WHEN THE DECISION WAS MAILED AND THEREFORE FAILED TO PROVE THE APPEAL WAS UNTIMELY; THE DATE STAMPED BY A POSTAGE METER IS NOT NECESSARILY THE DATE OF MAILING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the respondent Department of Corrections and Community Supervision (DOCCS) did not demonstrate petitioner’s appeal of the suspension of her visiting rights was untimely. Petitioner is the fiancee of an incarcerated person and the suspension of visiting rights was related to an incident during one of the visits. The fiancee attempted to appeal the suspension.  DOCCS argued that the appeal was untimely and Supreme Court agreed. The Third Department determined DOCCS failed to prove the appeal was untimely because it did not prove when the decision suspending visitation was mailed. Mailing triggers the 60-day period for appeal. The envelope in which the decision was mailed was stamped by a postage meter on January 8, 2024, but that does not prove it was mailed on January 8. Petitioner’s appeal was received by DOCCS on March 13, 2024. Without proof of the exact date the decision was mailed, DOCCS did not demonstrate the 60-day appeal period had expired on March 13:

… [P]etitioner’s 60-day appeal window began to run on the date the decision was mailed. * * *

… [T]he issuance date of the Hearing Officer’s decision is the day it was placed in the mail. … [R]espondents’ submissions in support of their motion to dismiss do not reveal this date. Although the record contains a copy of the envelope in which the decision was mailed, it shows only the date the envelope was put through a postage meter, which “is not the equivalent of a postmark date” … . Respondents have not proffered an affidavit of mailing to establish the date it was placed in the mail. As such, respondents did not meet their burden of establishing that claimant’s appeal was untimely … . Matter of Moses v New York State Dept. of Corr. & Community Supervision, 2026 NY Slip Op 03485, Third Dept 6-4-26

Practice Point: If an appeal period is triggered by when a decision is mailed, the party attempting to prove the appeal was untimely must prove precisely when the decision was mailed. The date stamped by a postage meter is not proof of the the precise date of mailing.

 

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THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES (OCFS) DID NOT HAVE THE AUTHORITY TO CREATE THE “HOST FAMILY HOME” PROGRAM AS AN ALTERNATIVE TO THE STATUTORY FOSTER CARE PROGRAM (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, reversing the Appellate Division, determined the NYS Office of Children and Family Services (OCFS) did not have the authority to create the “Host Family Home” program as an alternative to the state’s statutory foster care regime:

The voluntary foster care statutes … mandate judicial involvement and oversight at several key junctures. At the outset, OCFS must petition Family Court to approve any placement expected to last longer than 30 days. The court may only do so after assessing that the placement was “knowingly and voluntarily” sought by the parent; that the placement would be “in the best interest of the child”; that “reasonable efforts were made . . . to prevent or eliminate the need for removal of the child from [their] home;” and that OCFS complied with the other miscellaneous requirements of Social Services Law § 384-a … . If placement lasts for at least eight months, the Family Court Act requires that Family Court hold a “permanency hearing” where it assesses the child’s well-being in the foster home and determines what, if any, further action would serve the best interests of the child … . These hearings must be held every six months thereafter until termination of the placement, or until the child ages out of foster care. Both parents and children are entitled to assigned counsel during these proceedings … . * * *

The Host Family Home program … purports to relieve its participants from some of the most important protections in the foster care system. Under the program, courts need not approve placements lasting longer than 30 days, nor are they required to assess the well-being of the child if they have been left in foster care for over eight months. Because the courts are not involved, the State need not provide assigned counsel to parents or children to advocate for them during these otherwise mandatory hearings. OCFS is likewise not required to identify known friends or relatives who might care for the child, nor offer any government-paid preventive services, before allowing parents to access host family care.

The Host Family Home program’s elimination of these protections risks diverting children away from the voluntary foster care system. Matter of Lawyers for Children v New York State Off. of Children & Family Servs.. 2026 NY Slip Op 03218, CtApp 5-21-26

 

 

 

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ALTHOUGH RPTL 421-A DOES NOT EXPLICITLY ALLOW JUDICIAL REVIEW OF THE COMPTROLLER’S TAX RULINGS, THE CASE LAW SUPPORTS THE AVAILABILITY OF ARTICLE 78 REVIEW; THEREFORE THE STATUTE IS NOT UNCONSTITUTIONAL (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined RPTL 421-a (16) (c) (x) does not foreclose judicial review of the Comptroller’s rulings concerning certain tax benefits available to property developers who provide affordable housing and pay construction workers at the statutory rate. Although the statute does not explicitly allow judicial review, the case law supports the conclusion that Article 78 review is available:​

… Supreme Court has broad authority to provide relief from an administrative determination in a CPLR article 78 proceeding, both during the pendency of the proceeding and following the completion of judicial review … . During the pendency of such a proceeding, the court may “stay . . . the enforcement of [the] determination under review” (CPLR 7805 …). Correspondingly, once judicial review is complete, the reviewing court is authorized to “annul or confirm . . . or modify” the determination “in whole or part” and may “direct. . . specified action by the respondent” (CPLR 7806). The court’s authority under CPLR 7806 to direct specified action by the respondent agency encompasses “any . . . directions needed to secure to the petitioner the [a]rticle 78 relief ordered” and a court’s judgment embodying those directions “is enforceable by contempt proceedings” … . In other words, if a reviewing court found the Comptroller’s final determination under RPTL 421-a (16) (c) (x) to have been made in violation of lawful procedure, affected by an error of law, arbitrary and capricious or lacking in substantial evidence (see CPLR 7803 [3], [4]), it would have broad remedial power under CPLR 7806 to annul the Comptroller’s determination, which would, in effect, render the underlying administrative judgment unenforceable, and could also direct the Comptroller to take action to secure the vacatur of the administrative judgment. Matter of Bldg 44 Devs. LLC v State of New York, 2026 NY Slip Op 02898, Third Dept 5-7-26

Practice Point: Even where a statute does not explicitly allow judicial review, the case law may support Article 78 review, rendering the statute constitutional.

 

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THE INSTRUCTIONS CONCERNING THE USE OF CELL PHONES DURING A POLICE-DEPARTMENT PROMOTIONAL EXAM WERE AMBIGUOUS; THEREFORE THE DETERMINATION PETITIONERS VIOLATED THE INSTRUCTIONS WAS IRRATIONAL (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined the New York City Department of Citywide Administrative Services (DCAS), acted irrationally when it found that petitioners-police-officers had violated the prohibition of the use of cell phones before dismissal from a promotional examination. The petitioners did not use their cell phones during the exam. Rather the cell phones were used after completion of the exam but before dismissal from the exam room. The First Department held that the instructions concerning the use of cell phones were ambiguous:

Here, rationality is lacking, not for a want of evidence, but because the standard to which DCAS held petitioners was ambiguous. The notices of violations issued by DCAS specified, among other things, that petitioners breached a test-taking rule providing that, “[b]efore, during and after your test, you are not permitted to use, have turned on or have out in the open: cellular phones.” The rule does not indicate when the cell-phone prohibition begins or when it ends….  Nothing in the rule, which DCAS quoted from the instruction sheet provided to the candidates, suggests the location or locations to which the cell phone prohibition applied. The ambiguity of the rule, coupled with the ambiguity as to when the test concluded (which the executive deputy commissioner acknowledged) and the prevalence of cell phones in the exam room, make the determinations irrational. Matter of Bifulco v City of New York, 2026 NY Slip Op 02772, First Dept 5-5-26

Practice Point: An administrative punishment for a purported rule violation will be deemed irrational if the rule is ambiguous.

 

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