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ALTHOUGH PETITIONER’S USING HIS CELL PHONE WHILE ON DUTY TO SEND EXPLICIT MESSAGES VIOLATED THE EMPLOYEE’S MANUAL AND WARRANTED PUNISHMENT, TERMINATION WAS TOO SEVERE A PENALTY (THIRD DEPT).

The Third Department, modifying Supreme Court, over a dissent, determined that petitioner, a civil service employee, was properly found to have violated the Employee’s Manual by using his cell phone while on duty to send explicit messages. However, termination was deemed too severe a penalty and the matter was remitted. The dissent argued termination was proper:

“Judicial review of an administrative penalty is limited to whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offenses as to shock one’s sense of fairness” … . Petitioner was employed by respondent for 21 years at the time of the hearing and had a generally unremarkable disciplinary history….  Further, there is no indication that the messages were disseminated to any of his colleagues or subordinates or that there was a significant impact on the performance of his duties. To the contrary, the record establishes that petitioner consistently received strong evaluations for his work performance. Further, the record establishes that petitioner expressed remorse to respondent’s investigators, noting that he was not proud of his conduct, which he characterized as “unprofessional and even inappropriate.” Under these circumstances, we find that the penalty of termination “is so disproportionate to the offense and shockingly unfair as to constitute an abuse of discretion as a matter of law” and, accordingly, we remit the matter for consideration of a less severe penalty … . Matter of Brooks v New York State Dept. of Corr. & Community Supervision, 2023 NY Slip Op 03962, Third Dept 7-27-23

Practice Point: A civil service employee’s violation of general provisions of the Employee’s Manual, here the employee’s use of his cell phone to send explicit messages while on duty, warranted punishment . But termination was deemed too severe.

 

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THE NEW YORK STATE CONSTITUTION REQUIRES THAT THE INDEPENDENT REDISTRICTING COMMISSION SUBMIT A SECOND VOTING-DISTRICT REDISTRICTING PLAN AFTER THE REJECTION OF THE FIRST (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, over a two-justice dissent, determined that the Independent Redistricting Commission (IRC) was required by statute to submit a second voting-district redistricting plan after the rejection of the first. The opinion provides a detailed analysis of the constitutional, legislative and administrative measures taken to reform the manner in which voting-district maps are drawn:

The IRC had an indisputable duty under the NY Constitution to submit a second set of maps upon the rejection of its first set (see NY Const, art III, § 4 [b]). The language of NY Constitution, article III, § 4 makes clear that this duty is mandatory, not discretionary. It is undisputed that the IRC failed to perform this duty. Matter of Hoffmann v New York State Ind. Redistricting Commission, 2023 NY Slip Op 03828, Third Dept 7-13-23

Practice Point: The constitutional, statutory and regulatory requirements for the approval of a voting-district redistricting plan are explained in depth.

 

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LAWYERS FOR CHILDREN, WHICH IS CONTRACTUALLY OBLIGATED TO PROVIDE ATTORNEYS IN CHILD WELFARE MATTERS, HAS STANDING TO CHALLENGE THE HOST FAMILY HOMES PROGRAM WHICH PLACES CHILDREN WITHOUT THE PARTICIPATION OF ATTORNEYS (THIRD DEPT).

​The Third Department reversing Supreme Court, determined Lawyers for Children, which provides attorneys for child welfare matters, had standing to bring a petition challenging the Host Family Homes program which facilitates temporary placement of children in foster care without an attorney. 

… [P]ursuant to Social Services Law § 358-a (6), Family Court is tasked with appointing an attorney for the children should there be a hearing before it. Petitioner Lawyers for Children had initially contracted with the Office of Court Administration (hereinafter OCA) respecting voluntary foster care placements and, since the legislative changes in 1999, has consistently represented children in New York City who have been voluntarily placed outside of the home. Similarly, petitioner Legal Aid Society contracted with OCA and receives assignments through New York City Family Court. Petitioner Legal Aid Bureau of Buffalo, Inc., likewise, has contracted with OCA and receives funding to represent children in child welfare matters.

In December 2021, respondent Office of Children and Family Services (hereinafter OCFS) promulgated regulations creating the Host Family Homes program, a system for the temporary care of children by pre-vetted volunteers without resorting to the voluntary placement process in the Social Services Law … . * * * Children cared for by a host family under this program were not entitled to assigned counsel, although they could communicate with an attorney … . * * *

… [P]etitioners sufficiently alleged an injury in fact that is not merely conjectural, as implementation of the program would, in essence, place children outside their home without the right to legal representation to which they would be entitled by Social Services Law § 358-a and that petitioners have a contractual obligation to provide … . Matter of Lawyers for Children v New York State Off. of Children & Family Servs., 2023 NY Slip Op 03747, Third Dept 7-6-23

Practice Point: Lawyers for Children is contractually obligated to provide attorneys in child welfare matters. Lawyer for Children has standing to challenge the Host Family Homes program which places children in foster care without the participation of attorneys.

 

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ELECTRONIC LOGGING DEVICES (ELD’S) WHICH KEEP TRACK OF COMMERCIAL TRUCKERS’ LOCATION, HOURS OF OPERATION AND MILES DO NOT FACILITATE UNREASONABLE SEARCHES; THE TRUCKING INDUSTRY IS HEAVILY REGULATED AND THE ELD’S AIM TO PREVENT DRIVER FATIGUE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, determined the electronic logging devices (ELD’s) which record the location, engine hours and mileage of commercial motor vehicles (CMV’s) do not facilitate unreasonable searches, The commercial trucking industry has been regulated for decades to prevent accidents due to drivers’ fatigue and the ELD’s contribute to that end:

Before us is a facial challenge to the constitutionality of New York regulations adopting a rule promulgated by the Federal Motor Carrier Safety Administration requiring the installation of electronic logging devices in commercial motor vehicles. We hold that the warrantless inspections authorized by the regulations fall within the administrative search exception to the warrant requirement and do not constitute unreasonable searches and seizures under article I, § 12 of the State Constitution. * * *

… [P]etitioners correctly concede that there is a long tradition of commercial trucking being subject to comprehensive regulations. Regulation of commercial trucking, including regulation of “the maximum hours of service for commercial drivers,” extends back more than eighty years both in New York and on the federal level … . Those regulations are in keeping with this State’s “vital and compelling interest in safety on the public highways” … .

CMV operators therefore have “a diminished expectation of privacy in the conduct of that business because of the degree of governmental regulation” … , and “may reasonably be deemed to have relinquished a privacy-based objection” to an “intrusion that will foreseeably occur incident” to applicable regulations … . More particularly, … commercial truck drivers have a diminished expectation of privacy in the location of their vehicles because of their participation in a pervasively regulated industry. Matter of Owner Operator Ind. Drivers Assn., Inc. v New York State Dept. of Transp., 2023 NY Slip Op 03184, CtApp 6-13-23

Practice Point: Electronic Logging Devices (ELD”s) which keep track of the location, hours of operation and mileage of commercial trucks aim to prevent driver fatigue and do not facilitate unreasonable searches.

 

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THERE WAS A QUESTION WHETHER THE EXPANSION OF A PREEXISTING NONCONFORMING USE FELL WITHIN THE NONCONFORMING USE; THE ZONING BOARD OF APPEALS’ RULING ALLOWING THE EXPANSION OF A MARINA WAS ANNULLED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined that, although the marina and shellfishiing operation were preexisting nonconforming uses, there was a question whether the expansion of the marina fell within the nonconforming use. The zoning board of appeals’ (ZBA’s) determination allowing the expansion was annulled and the matter was remitted to the ZBA:

“While nonconforming uses are generally permitted to continue, they may not be enlarged as a matter of right” … . Although a mere increase in the volume in one’s business may not constitute a change in use, “a distinction is to be drawn where there has been a purposeful expansion of the nature of [the] operation” … . “The protection of vested rights in a nonconforming structure, existing or in process of erection at the time of the imposition of zoning restrictions, does not extend to subsequent new construction” … .

Here, the Reeves’ [the marina owners’] failure to obtain site plan approval for the reconstruction of the docks and bulkhead, for which permits were initially issued in 2003, casts doubt on whether any of the new structures built after 2003 fall within the Reeves’ nonconforming use for the marina and commercial shellfishing operation … and calls into question the Building Department’s unexplained finding that the dock and bulkhead reconstruction work “did not constitute an expansion of a pre-existing, non-conforming use in 2003″—which was not specifically addressed in the ZBA’s … determination. Matter of Andes v Zoning Bd. of Appeals of the Town of Riverhead, 2023 NY Slip Op 03009, Second Dept 6-7-23

Practice Point: An expansion of a preexisting nonconforming use, here a marina and shellfishing operation, may not fall within the nonconforming use. The building department’s finding that new construction did not expand the preexisting nonconforming use was not addressed in the zoning board of appeals’ (ZBA’s) determination. The determination was annulled and the matter was sent back to the ZBA.

 

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THE OFFICE OF RENEWABLE ENERGY SITING (ORES) CONDUCTED A PROPER REVIEW BEFORE ISSUING THE CHALLENGED REGULATIONS CONCERNING THE SITING OF MAJOR RENEWABLE ENERGY FACILITIES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined that the Office of Renewable Energy Siting (ORES) had conducted a proper review before issuing regulations concerning the siting of major renewable energy facilities. The opinion is far too detailed to fairly summarize here:

… [P]etitioners — who include numerous municipalities, municipal corporations and private entities — commenced the instant combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, seeking, among other things, to annul the regulations and direct ORES to engage in a proper SEQRA [State Environmental Quality Review Act] review. Specifically, petitioners alleged that, among other things, ORES: (1) mischaracterized the action as an unlisted action rather than a type I action; (2) failed to take a hard look at the environmental consequences of the regulations; (3) violated the home rule provision of the NY Constitution; and (4) violated the express terms of Executive Law § 94-c. * * *

… [W]e agree with petitioners’ threshold argument that ORES misclassified this action as unlisted, rather than type I. … … [T]he promulgation of the regulations should have been classified as a type I action that would carry the presumption of requiring preparation of an EIS [Environment Impact Statement] … . However, “a misclassification does not always lead to the annulment of the negative declaration if the lead agency conducts the equivalent of a type I review notwithstanding the misclassification” … , and, notably, “a type I action does not, per se, necessitate the filing of an EIS” … . * * *

A review of the vast record reveals that ORES took a thorough and hard look at the potential negative environmental impacts associated with the proposed regulations. Matter of Town of Copake v New York State Off. of Renewable Energy Siting, 2023 NY Slip Op 02721, Third Dept 5-18-23

Practice Point: The newly created Office of Renewable Energy Siting conducted a proper review before issuing the challenged regulations concerning the siting of major renewable energy facilities.

 

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THE NYC BOARD OF HEALTH PROPERLY REFUSED TO ADD GENEALOGISTS TO THE LIST OF PERSONS WHO CAN ACCESS DEATH CERTIFICATES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Board of Health did not exceed the scope of its powers when it amended the NYC Health Code to add family members to the list of persons who can access death certificates but refused to add genealogists:

… New York City Board of Health did not “exceed[] the scope of its delegated powers” in amending 24 RCNY 207.11 … , by adding to the existing list of family members for whom requests for death certificates would automatically be deemed “necessary or required for a proper purpose” while declining to add genealogists … . Instead, it “balance[ed] costs and benefits according to preexisting guidelines” and did not create “its own comprehensive set of rules without benefit of legislative guidance” … .  …

The stated goal of the proposal was to allow more family members access to death certificates, and the Board of Health reasonably expressed concern with family privacy issues, due to social security numbers and causes of death being listed on death certificates, when declining to add genealogists to the expanded list … .  Matter of Reclaim the Records v New York City Dept. of Health & Mental Hygiene, 2023 NY Slip Op 02395, First Dept 5-4-23

Practice Point: The NYC Board of Health did not exceed its administrative powers when it refused to add genealogists to the list of persons who can access death certificates.

 

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THE DEPARTMENT OF HEALTH REGULATIONS PLACING A CAP ON THE NUMBER OF SERIOUSLY MENTALLY ILL PERSONS WHO CAN BE PLACED IN LARGE (AT LEAST 80-BED) ADULT HOMES DOES NOT CONSTITUTE DISCRIMINATION UNDER THE AMERICANS WITH DISABILITIES ACT (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Lynch, reversing Supreme Court, determined the cap on the number of seriously mentally ill persons who can be placed in large adult homes (at least an 80-bed capacity) did not amount to unconstitutional discrimination under the Americans with Disabilities Act (ADA):

On this record, we conclude that respondent has demonstrated that the admissions cap was implemented to benefit, rather than to discriminate against, persons with serious mental illness … .

… [R]espondent [Commissioner of Health] has demonstrated that the challenged regulations are narrowly tailored to implement the integration mandate of Title II of the ADA and that the “benefit to the [protected class from the subject regulations] . . . clearly outweigh[s] whatever burden may result to them” … . The admissions cap applies only to people with a serious mental illness — those “who have a designated diagnosis of mental illness under the Diagnostic and Statistical Manual of Mental Disorders . . . and whose severity and duration of mental illness results in substantial functional disability” (18 NYCRR 487.2 [c] … ). Accordingly, the cap is specifically tailored to the very individuals who are the subject of the integration mandate. Rather than limiting admissions to all adult homes, the regulations apply solely to a subcategory of large adult homes — those certified with at least an 80-bed capacity — where new admissions would increase the population of persons with serious mental illness over the 25% threshold. Matter of Oceanview Home for Adults, Inc. v Zucker, 2023 NY Slip Op 02365, Third Dept 5-4-23

Practice Point: The cap on the number of seriously mentally ill persons who can be placed in large adult homes does not amount to unconstitutional discrimination against persons with disabilities.

 

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THE COUNTY’S FAILURE TO RESPOND TO PETITIONER’S FOIL REQUEST WITHIN FIVE DAYS IS A DENIAL; THE COUNTY’S FAILURE TO NOTIFY PETITIONER OF THE AVAILABILITY OF AN ADMINISTRATIVE REVIEW OF THE DENIAL EXCUSED PETITIONER’S FAILURE TO SEEK ADMINSTRATIVE REVIEW; PETITIONER’S ARTICLE 78 ACTION SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Article 78 petition seeking court review of the denial of a FOIL request should not have been dismissed for failure to exhaust administrative remedies. Here the county did not respond to the FOIL request within five days, which, under the controlling regulations, is a denial. Petitioner, after an additional 30 days, filed the Article 78 petition without pursuing an administrative appeal. The Second Department held that the county’s failure to notify petitioner of the availability of administrative review justified petitioner’s failure to seek it before going to court, even though petitioner was aware of the availability of the administrative review process:

“The statutory time to respond to a FOIL request for records is ‘within five business days of the receipt of a written request,’ and the agency should respond by ‘mak[ing] such record available to the person requesting it, deny[ing] such request in writing or furnish[ing] a written acknowledgment of the receipt of such request and a statement of the approximate date . . . when such request will be granted or denied'” … . 21 NYCRR 1401.7(b) states, in relevant part, that “[d]enial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body designated to determine appeals, and that person or body shall be identified by name, title, business address[,] and business telephone number” … . “21 NYCRR 1401.7(c) provides that a FOIL request is deemed denied if there is no response to the request within five business days” … . “[A]ny administrative appeal of a denial [must] be undertaken within 30 days of the denial” … . A petitioner who does not “appeal[ ] the denial in writing” will generally be deemed to have “failed to exhaust its administrative remedies and, thus, [may] not resort to a judicial forum to gain relief” … .

Here, the Supreme Court improperly determined that dismissal was warranted based on the petitioner’s failure to exhaust its administrative remedies. Where, as here, an agency fails to “inform the person [or entity] making the FOIL request that further administrative review of the determination is available, the requirement of exhaustion is excused” … . Matter of Law Offs. of Cory H. Morris v Suffolk County, 2023 NY Slip Op 02312, Second Dept 5-3-23

Practice Point: If the agency which receives a FOIL request does not respond within five days, the request can be deemed denied. If the agency does not notify the party making the request of the availability of administrative review of the denial, failure to seek administrative review is excused, even where, as here, the petitioner was aware of the administrative review process.

 

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PETITIONER, A CORRECTION OFFICER WHO WAS INJURED MOVING LAUNDRY BAGS BLOCKING A HALLWAY IN THE JAIL, WAS ENTITLED TO GENERAL MUNICIPAL LAW 207-C BENEFITS; ALTHOUGH SUPREME COURT SHOULD NOT HAVE TRANSFERRED THE ARTICLE 78 TO THE APPELLATE DIVISION, THE FOURTH DEPARTMENT CONSIDERED THE MERITS (FOURTH DEPT).

The Fourth Department, reversing the denial of General Municipal Law 207-a benefits in this Article 78 proceeding, determined petitioner, a correction officer, was injured performing her duties when she attempted to move laundry bags blocking the hallway in the jail housing unit. The Fourth Department noted that Supreme Court should not have transferred the Article 78 proceeding to the appellate division because the determination was not based upon a hearing at which evidence was taken “pursuant to direction by law:”

… Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804 (g) on the ground that the petition raised a substantial evidence issue. Respondent’s determination “was not ‘made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law’ (CPLR 7803 [4]). Rather, the determination was the result of a hearing conducted pursuant to the terms of [an] agreement” between petitioner’s union and respondent … . Nevertheless, in the interest of judicial economy, we consider the merits of the petition …. …

Petitioner testified at the hearing that she thought the laundry bags outside the main entrance door were a “safety issue,” particularly because they would block other officers from moving through the hallway quickly and because persons using the hallway may get hurt. She further testified that her training and job responsibilities required her to address safety concerns. Petitioner also submitted documentary evidence that correction officers were under the duty to ensure that laundry bags are not placed on the housing unit floor at any time. Moreover, it is undisputed that there was no policy prohibiting correction officers from moving laundry bags. Although respondent submitted testimony that correction officers should order inmates to move laundry bags, that testimony did not address the location of the laundry bags and the safety hazard posed by laundry bags left in a hallway. We therefore conclude that the determination to deny petitioner’s application for section 207-c benefits was arbitrary and capricious … . Matter of Williams v County of Onondaga, 2023 NY Slip Op 02262, Fourth Dept 4-28-23

Practice Point: A correction officer injured moving laundry bags blocking a jail hallway was performing her duties and was entitled to General Municipal Law 207-c benefits.

Practice Point: An Article 78 proceeding should not be transferred to the appellate division unless evidence was taken at a hearing “pursuant to direction by law.” Here the hearing, which was held pursuant to an agreement between the respondent and petitioner’s union, did not meet that criteria.

 

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