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WHERE, AS HERE, PLAINTIFFS ALLEGE THE CONTESTED SALES TAX STATUTE IS “WHOLLY INAPPLICABLE” TO THEM, AND PLAINTIFFS SEEK A DECLARATORY JUDGMENT TO THAT EFFECT, THE “EXHAUSTION OF ADMINISTRATIVE REMEDIES” REQUIREMENT IS NOT RELEVANT (THRID DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined some of the plaintiffs had not failed to exhaust their administrative remedies in this action contesting the imposition of sales tax on the construction and demolition inspection services provided by plaintiffs. There is an exception to the “exhaustion of administrative remedies” requirement where, as here, plaintiffs claim the tax statute at issue is “wholly inapplicable” to them:

… [T]he remaining plaintiffs did not, as Supreme Court held, fail to exhaust their administrative remedies. Generally, a taxpayer must utilize statutory administrative remedies prior to commencing an action against the taxing entity … . That said, there is an exception to this requirement when, as relevant here, a tax statute is attacked as wholly inapplicable to the plaintiff … . “To challenge a statute as wholly inapplicable, the taxpayer must allege that the agency had no jurisdiction over it or the matter that was taxed” … . “This exception to the rule [mandating exhaustion of administrative remedies] is limited to those cases where no factual issue is raised” concerning the subject matter of the tax dispute … .

The remaining plaintiffs qualify for the “wholly inapplicable” exception, as the complaint alleges that DTF [Department of Taxation and Finance] lacks jurisdiction because Tax Law § 1105 (c) (8) does not apply to their site safety services. Further, there are no factual issues at play here. * * * … [T]he complaint simply seeks a declaration that site safety services, as specifically defined in the New York City Building Code, are exempt from sales tax … . Site Safety LLC v New York State Dept. of Taxation & Fin., 2025 NY Slip Op 02255, Third Dept 4-17-25

Practice Point: Here plaintiffs alleged the relevant sales-tax statute was wholly inapplicable to them and sought a declaratory judgment to that effect. The proceeding therefore is excepted from the “exhaustion of administrative remedies” requirement.

 

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THE OFFICE OF CHILDREN AND FAMILY SERVICES (OCFS) DID NOT EXCEED ITS AUTHORITY IN CREATING THE HOST FAMILY PROGRAM FOR TEMPORARY PLACEMENT OF CHILDREN AND FAMILIES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, over a two-justice dissenting opinion, determined the Office of Children and Family Services (OCFS) did not exceed its authority when creating the Host Family Home program for temporary placement of children and families. The appellants argued the Host Family Home program was essentially a foster care program without the legislative foster-care safeguards:

The subject regulations established the Host Family Home program (see 18 NYCRR 444.1), which aims to provide “supportive services . . . to children and their families . . . for the purpose of: assisting a family in need of day-to-day community-based supports by peers, arranging for parents and children to be temporarily cared for together in a host family home, and/or temporarily supporting a family when a parent has determined that he/she is temporarily unable to care for their child . . . as a way to avert the need for more formal child welfare intervention” … . * * *

Petitioners’ argument that OCFS exceeded its authority when it created the Host Family Home program is unpersuasive. “Administrative agencies have all the powers expressly delegated to them by the Legislature, and are permitted to adopt regulations that go beyond the text of their enabling legislation, so long as those regulations are consistent with the statutory language and underlying purpose” … . “While an administrative agency may not, in the exercise of rule-making authority, engage in broad-based public policy determinations, the cornerstone of administrative law is the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation” … . * * *

On balance, the Boreali factors [Boreali v Axelrod, 71 NY2d 1] lead us to the conclusion that the Host Family Home program regulations are a valid exercise of OCFS’s rulemaking authority, bringing an end to our inquiry. We emphasize that “[o]ur role in this regard is not to question the efficacy or wisdom of the means chosen by the agency to accomplish the ends identified by the [L]egislature” … . As we have also found that the regulations are consistent with the governing statutory language and its purpose, we affirm. Matter of Lawyers for Children v New York State Off. of Children & Family Servs., 2025 NY Slip Op 02115, Third Dept 4-10-25

Practice Point: Consult this opinion for an in-depth analysis of the authority of an agency to promulgate regulations.

 

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THE NYS DEPARTMENT OF HEALTH’S CLARIFICATION OF BILLING PRACTICES FOR PHYSICIANS WHO DISPENSE PRESCRIPTION DRUGS UNDER THE MEDICAID PROGRAM IS VALID; THE CLARIFICATION IS NOT A “RULE” AND IS NOT VOID FOR VAGUENESS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined a clarification issued by the respondent NYS Department of Health, was valid, was not a rule, and was not void for vagueness. The clarification concerned the billing practices for physicians who dispense prescription drugs:

As it regularly does, respondent [NYS Department of Health] took steps to clarify appropriate billing practices. This included issuance of the July 2022 edition of its official newsletter of the New York State Medicaid Program — Medicaid Update. In a section entitled “Policy Clarification for Practitioner Dispensing” … , which purported to “supersede[ ] previous communications on this topic,” respondent stated that the state Medicaid program reimburses for drugs furnished by practitioners to their patients on the basis of the acquisition cost to the practitioner and that additional registration or ownership of a pharmacy is not required. The clarification went on to provide that practitioners billing for medications dispensed to its fee-for-service patients should use the medical claim format and that practitioners still participating in managed care should check with the patient’s health plan to determine the billing policy for prescription drugs dispensed directly to patients. Reportedly confused by the alleged change in billing practice, petitioner subsequently contacted respondent for further clarification. In response, respondent reiterated that a practitioner that dispenses drugs to their patients is not considered a pharmacy under either statutory or enrollment requirements and therefore should not be enrolled or billing as a pharmacy provider.

Petitioner then commenced this CPLR article 78 proceeding to annul the clarification as an unpromulgated rule, unconstitutionally vague, irrational and violative of section 504 the Rehabilitation Act of 1973 (see 29 USC § 794). Citing anticipated financial losses for expenses attendant to medication dispensing, that is, beyond the acquisition cost of the drugs, petitioner argued that respondent’s alleged new rule would force it to cease its physician-dispensing services altogether, thereby both irrationally depriving cancer patients from effective treatment and discriminating against them by effectively precluding them from meaningful access to the provider of their choice. Matter of North Shore Hematology-Oncology Assoc., P.C. v New York State Dept. of Health, 2025 NY Slip Op 01985, Third Dept 4-3-25

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THE NEW YORK CITY CIVILIAN COMPLAINT REVIEW BOARD (CCRB) IS NOT ENTITLED TO UNSEAL THE RECORD OF THE CRIMINAL PROSECUTION AND TRIAL OF AN OFF-DUTY POLICE OFFICER WHO SHOT A MAN IN A ROAD RAGE INCIDENT (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice McCormick, determined the NYC Civilian Complaint Review Board (CCRB) was not entitled to unseal the record of a criminal action which had resulted in the acquittal of an off-duty police officer (the defendant) who shot and killed a man during a road rage incident:

At his criminal trial, the defendant presented a justification defense … [and] the jury acquitted him of all charges. As a result, the records pertaining to the defendant’s arrest and criminal prosecution were sealed (see CPL 160.50). * * *

The CCRB charged the defendant with three counts of intentionally using force without police necessity, rising to the level of assault in the second degree, in violation of the NYPD’s Patrol Guide. * * *

… [T]he CCRB moved herein to unseal the record of this criminal action … in order to conduct its disciplinary trial … . * * *

Although the New York City Charter authorizes the CCRB to compel the attendance of witnesses and to require the production of such records and other materials as are necessary for its investigations of police misconduct, and further requires the NYPD, inter alia, to provide records and other materials that are necessary for the CCRB’s investigations, the Charter specifically exempts from such disclosure “such records or materials that cannot be disclosed by law” (NY City Charter § 440[d][1]). As such, it cannot be said that the CCRB has been given a specific grant of power that would allow it to access the sealed records … . People v Isaacs, 2025 NY Slip Op 01818, Second Dept 3-26-25

Practice Point: The NYC Civilian Complaint Review Board cannon unseal the record of the criminal prosecution of a police officer which resulted in an acquittal.

 

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THE LANDLORD’S APPLICATION TO AMEND PRIOR ANNUAL REGISTRATION STATEMENTS TO PERMANENTLY EXEMPT AN APARTMENT FROM RENT STABILIZATION WAS PROPERLY DENIED BY THE DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR); ONLY MINISTERIAL AMENDMENTS TO PRIOR ANNUAL REGISTRATION STATEMENTS, SUCH AS CLERICAL ERRORS AND MISSPELLINGS, ARE ALLOWED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, over an extensive two-judge dissenting opinion, determined the Division of Housing and Community Renewal (DHCR) properly rejected petitioner-landlord’s application to amend two prior annual registration statements to permanently exempt an apartment from rent stabilization. The ability to amend the annual registration statements extends only to ministerial issues such as clerical errors, misspellings, incorrect lease terms, etc.:

DHCR’s chosen limiting principle—that amendments may correct only “ministerial” issues—does not permit amendments that seek to remove a housing accommodation’s rent-stabilized status.  The application of that rule to this case was clearly rational. Matter of LL 410 E. 78th St. LLC v Division of Hous. & Community Renewal, 2025 NY Slip Op 01672, CtApp 3-20-25

 

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THE COMMISSIONER OF AGRICULTURE AND MARKETS HAD JURISDICTION OVER THE DISPUTE BETWEEN THE TOWN AND A FARM IN WHICH THE TOWN ALLEGED THE FARM WAS RUNNING A COMMERCIAL MULCHING OPERATION IN VIOLATION OF THE TOWN CODE; THE COMMISSIONER PROPERLY DETERMINED THE FARM WAS NOT VIOLATING THE TOWN CODE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, determined the Commissioner of Agriculture and Markets had jurisdiction over the matter and had the authority to determine a farm located in the Long Island Pine Barrens Maritime Reserve (Central Pine Barrens) was not running a commercial mulching operation in violation of the Code of the Town of Brookhaven:

Respondent Delea Sod Farms, Inc. (hereinafter Delea Farms) operates a farm in an agricultural district in the Town of Brookhaven, Suffolk County, where it primarily produces sod for sale that is used at, among other places, Yankee Stadium. Mulch and compost are stored and sold at the farm as well. The farm also lies within the Central Pine Barrens area as defined by the Long Island Pine Barrens Maritime Reserve Act (ECL 57-0101 et seq. [hereinafter the Pine Barrens Act]), the Pine Barrens being an environmentally sensitive area of Long Island that contains an aquifer from which many locals obtain drinking water and is subject to “laws and policies . . . at all government levels to protect [it] from unbridled development” (… see also ECL 57-0107 [10]). Petitioner sued Delea Farms in March 2020 to enjoin it from running what was, in petitioner’s view, a commercial mulching operation that allegedly ran afoul of the farmland bill of rights and zoning regulations contained in the Code of the Town of Brookhaven (hereinafter the Town Code) as well as the terms of a conditional discharge entered following a 2017 guilty plea by Delea Farms in a code enforcement matter. Delea Farms reacted by requesting an informal opinion from respondent Commissioner of Agriculture and Markets as to whether its storage and sale of compost and mulch on the farm was “agricultural in nature” within the meaning of Agriculture and Markets Law § 308 (4). The Commissioner issued an opinion in July 2020 that the storage and sale of mulch and compost was an incidental agricultural use to the production and sale of sod at the farm. * * *

The Commissioner determined that Delea Farms was primarily operating the farm for sod production and harvesting, that it was not manufacturing or processing mulch at the farm and that the mulch and compost at the farm was either used on the farm itself or sold to customers who needed it to install the sod and nursery stock that was the farm’s actual focus. Matter of Town of Brookhaven v Ball, 2025 NY Slip Op 01686, Third Dept 3-20-25

 

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IN A FACT-SPECIFIC OPINION, THE COURT OF APPEALS, REVERSING THE APPELLATE DIVISION, DETERMINED THERE WAS SUBSTANTIAL EVIDENCE SUPPORTING THE UNIVERSITY’S RULING THAT PETITIONER-STUDENT VIOLATED THE CODE OF STUDENT CONDUCT BY ENGAGING IN UNWANTED SEXUAL ACTIVITY (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannatara, in a fact-specific analysis, determined the university’s ruling that petitioner, P.C., a university student, violated the Code of Student Responsibility by engaging in unwelcome sexual activity with another student, S.G., was supported by the evidence:

… [S]ubstantial evidence supports the determination that P.C. violated the Code of Student Responsibility by engaging in unwanted sexual activity with S.G. despite her physical resistance and loss of consciousness during separate encounters. Although some aspects of the sexual encounters may have been consensual, there is ample evidence that other aspects were not. S.G.’s unrebutted testimony was deemed credible and she provided consistent evidence, both in her written statement for the investigator and in her hearing testimony, that she tried unsuccessfully to physically remove P.C.’s hands from her neck during an encounter in the woods. Under the Code of Student Responsibility, her physical resistance is inconsistent with affirmative consent.

Similarly, with respect to the allegation that P.C. had sex with S.G. in the car without her affirmative consent, S.G. consistently maintained that she lost consciousness, woke up while P.C. was still having sex with her, and that P.C. then told her she had only been “out” for a moment. Under the Code, sexual activity must stop when a person is incapacitated by lack of consciousness or being asleep. Moreover, P.C.’s own text messages acknowledge the sexual contact and, to some degree, evince a consciousness of guilt.

The evidence adduced depicting unwelcome sexual conduct by P.C. constitutes substantial evidence supporting all three charges. In reaching the opposite conclusion, the Appellate Division majority improperly reweighed the evidence by relying on S.G.’s statements concerning consensual conduct that transpired earlier in the evening, to the exclusion of her testimony regarding the contact to which she did not consent, and disregarded the conclusion that P.C.’s text messages reflected a consciousness of guilt. Matter of P.C. v Stony Brook Univ., 2025 NY Slip Op 01566, CtApp 3-18-25

Practice Point: Consult this opinion for some insight into the evidence which is sufficient to support a university’s ruling that a student should be suspended for violating the Code of Student Responsibility by engaging in unwanted sexual activity.

 

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THE RECORD DOES NOT DEMONSTRATE THAT THE TOWN PLANNING BOARD TOOK THE REQUIRED “HARD LOOK” AT THE EFFECTS OF THE EMISSION OF HAZARDOUS AIR POLLUTANTS [HAPS] FROM THE PROPOSED “BIOSOLIDS REMEDIATION AND FERTILIZER PROCESSING FACILITY;” THE NEGATIVE DECLARATION WAS THEREFORE DEEMED ARBITRARY AND CAPRICIOUS (THIRD DEPT). ​

The Third Department, reversing Supreme Court’s dismissal of the Article 78 petition contesting the town planning board’s “negative declaration” regarding a proposed “biosolids remediation and fertilizer processing facility.” The record did not demonstrate that the planning board took the required “hard look” at the effects of the emissions from the facility. Instead the board relied on proposed mitigation measures overseen by the Department of Environmental Conservation (DEC):

… [T]he planning board failed to take a hard look at the project’s potential adverse impacts on air, resulting in an arbitrary and capricious negative declaration (see CPLR 7803 [3]). The voluminous record includes the planning board’s meeting minutes, recordings and other documents, all of which are devoid of evidence that the planning board “thoroughly analyze[d]” the project’s generation of 12.7 tons of designated HAPs [hazardous air pollutants] before it issued a negative declaration … . Instead, the planning board appears to have determined that, because the project’s HAP emissions were “mitigated” to fall below the 25-ton threshold for a major source, then emissions at 50% of that rate were also mitigated … . Not only is this conclusion “without sound basis in reason” — it is not clear why the planning board decided that mitigating the impact of 25 tons of HAPs would do the same for 12.7 tons of HAPs — but also “without . . . regard to the facts,” as the record confirms that the planning board never considered the potential impacts of the project’s HAP emissions at al … . * * *

… [T]he planning board’s unexplained deference to DEC’s permitting standards and periodic monitoring with respect to the impacts of the project’s emissions on air quality does not satisfy its SEQRA obligations, resulting in an arbitrary and capricious negative declaration (see CPLR 7803 [3] …). Matter of Clean Air Action Network of Glens Falls, Inc. v Town of Moreau Planning Bd., 2025 NY Slip Op 01020, Third Dept 2-20-25

Practice Point: The lead agency for a State Environmental Quality Review Act (SEQRA) declaration cannot avoid a “hard look” at the potential hazardous air pollutants (HAPS} which will be produced by a proposed facility by simply deferring to the Department of Environmental Conservation’s (DEC’s) permitting and monitoring of the facility.

 

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THE ETHICS COMMISSION REFORM ACT OF 2022, WHICH VESTS A COMMISSION WITH THE POWER TO INVESTIGATE AND ENFORCE ETHICS AND LOBBYING LAWS WITH RESPECT TO ELECTED OFFICIALS, EMPLOYEES OF THE LEGISLATURE, STATE OFFICERS AND THEIR EMPLOYEES, CURRENT AND FORMER CANDIDATES FOR PUBLIC OFFICE, AND LOBBYISTS (AMONG OTHERS), DOES NOT VIOLATE THE SEPARATION OF POWERS DOCTRINE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, determined the Ethics Commission Reform Act of 2022 did not unconstitutionally vest the State Commission on Ethics and Lobbying in Government with executive power. The Act is not unconstitutional:

The issue on this appeal is whether, on its face, the Ethics Commission Reform Act of 2022 unconstitutionally vests the State Commission on Ethics and Lobbying in Government with executive power. Plaintiff’s principal argument is that because the Commission exercises executive power, the Governor must have power to appoint and remove the Commissioners. In New York, however, the Legislature—not the Governor—may ordinarily define the terms on which non-constitutional state officers may be appointed and removed. Moreover, the Legislature structured the Commission to address a narrow but crucial gap arising from the inherent disincentive for the Executive Branch to investigate and discipline itself, which has serious consequences for public confidence in government. The Act does not displace the Executive Branch to accomplish that goal; instead, it confers upon an independent agency power to enforce a narrow set of laws, thus mitigating the unique danger of self-regulation. The Act addresses a threat to the legitimacy of government itself with an extraordinary response. While the Act extends very close to the boundary of permissible legislation, it is not “intrinsically a constitutional affront to the separation of powers doctrine” … . * * *

The Legislature … enacted … the Ethics Commission Reform Act of 2022 (the Act), which amended Executive Law § 94 and replaced JCOPE [Judicial Commission on Public Ethics] with the Commission on Ethics and Lobbying in Government. Like JCOPE, the Commission is established in the Department of State and charged with the investigation and enforcement of the ethics and lobbying laws … . Those under the Commission’s jurisdiction include statewide elected officials; members and employees of the Legislature; certain statutorily defined state officers and employees; current and former candidates for statewide office, Senate, and Assembly; the political party chair; and current and former lobbyists and their clients … . The Commission also enforces financial disclosure requirements and reviews disclosure forms of statewide elected officials, their officers and employees and other persons subject to disclosure under Public Officers Law 73-a … . As part of its specific grant of authority under the Act, the Commission has rulemaking power to “adopt, amend and rescind any rules and regulations pertaining to” Public Officers Law § 73 (concerning official ethics), Public Officers Law § 73-a (financial disclosure), Legislative Law Article 1-a (lobbying) and Civil Service Law § 107 (political activities and contributions) (Executive Law § 94 [5] [a]). With respect to members and employees of the Legislature, the Commission’s powers are limited: the Commission may investigate such persons but must refer any potential violations of the ethics laws to the legislative ethics commission … . Cuomo v New York State Commn. on Ethics & Lobbying in Govt., 2025 NY Slip Op 00902, CtApp 2-18-25

 

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THE REGULATIONS WHICH PLACE A CAP ON THE NUMBER OF SERIOUSLY MENTALLY ILL PERSONS WHO CAN BE ADMITTED TO A LONG-TERM CARE FACILITY DO NOT DISCRIMINATE AGAINST PERSONS WITH DISABILITIES (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined the regulations putting a cap on the number of seriously mentally ill persons who can be accepted by a long-term care facility did not facially discriminate against persons with disabilities:

The State of New York’s Department of Health (DOH) licenses certain facilities known as “adult homes” to provide “long-term care, room, board, housekeeping, personal care and supervision to five or more adults unrelated to the operator” (Dept of Health Regs [18 NYCRR] § 485.2 [b]). Regulations promulgated by DOH provide that an adult home may not admit additional residents with serious mental illness if it has a capacity of 80 or more beds and its resident population is over 25% persons with serious mental illness … . Oceanview Home for Adults, Inc., an adult home subject to this admissions cap, claims that those regulations discriminate against persons with disabilities in violation of the Fair Housing Act Amendments of 1988 (FHAA), which extended the protections of the Fair Housing Act (FHA) to persons with disabilities (see 42 USC § 3604 [f] [1]-[2]). We conclude that plaintiff has failed to establish that the challenged regulations facially discriminate against persons with disabilities, and therefore affirm. Matter of Oceanview Home for Adults, Inc. v Zucker, 2025 NY Slip Op 00805, CtApp 2-13-25

 

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