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THE NYC LOFT BOARD PROPERLY REMITTED THE MATTER FOR FURTHER PROCEEDINGS IN THIS ACTION CONCERNING A SETTLEMENT AGREEMENT IN WHICH THE TENANTS PURPORTED TO WITHDRAW THEIR APPLICATION FOR LOFT LAW COVERAGE (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the NYC Loft Board properly remitted the matter for further proceedings in this proceeding involving a settlement agreement in which the tenants purported to withdraw their application for Loft Law coverage:

… [T]he matter [is] remitted to the Appellate Division with directions to remand to the New York City Loft Board for further proceedings in accordance with this memorandum.

In accordance with its regulations (see 29 RCNY § 1-06 [j] [5]), the Loft Board reviewed and rejected the parties’ proposed settlement agreement as perpetuating an illegal living arrangement. The rationality of that determination is not before us … . Under these limited circumstances, it was not irrational for the Board to remand for further proceedings, thereby declining to give effect to a provision of the settlement agreement in which tenants purported to withdraw their application for Loft Law coverage. Matter of Callen v New York City Loft Bd., 2022 NY Slip Op 00957, Ct App 2-15-22

 

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THE SO-CALLED TWO-HOUR RULE, REQUIRING THE REQUEST FOR A DWI BREATH TEST BE MADE AND THE REFUSAL WARNINGS BE GIVEN WITHIN TWO HOURS OF ARREST, DOES NOT APPLY TO THE ADMINISTRATIVE LICENSE REVOCATION HEARINGS HELD BY THE DEPARTMENT OF MOTOR VEHICLES (DMV); THEREFORE THE FACT THAT THE PETITIONER WAS ASKED TO TAKE THE BREATH TEST AND WAS GIVEN THE REFUSAL WARNINGS THREE HOURS AFTER ARREST DID NOT PRECLUDE THE DMV FROM CONSIDERING PETITIONER’S TEST REFUSAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFore, over a dissenting opinion, determined the so-called two-hour rule does not apply to a driver’s license revocation administrative hearing after a DWI arrest. Within two hours of arrest the police can warn the driver that a refusal to submit to the blood-alcohol breath test is admissible at trial. If the request to submit to the test is made and the refusal warnings are given more than two hours after arrest, however, the refusal is not admissible at trial. Here the petitioner refused the DWI breath test three hours after arrest, after the refusal warnings were given. He argued the two-hour rule should apply and the refusal should not be considered at the Department of Motor Vehicle’s (DMV’s) administrative license revocation hearing:

Petitioner’s reliance on the statutory interpretation analysis in People v Odum [31 NY3d 344] as support for a motorist’s substantive right to refuse a chemical test without consequence is misplaced. Odum addressed the admissibility at trial of the results of a chemical test administered more than two hours after the defendant’s arrest, and whether the refusal warnings, including the inaccurate warning regarding the use of any refusal at a criminal trial, as given to him rendered his consent to the test involuntary. We emphasized that the 1973 statute authorizing the admissibility of evidence of a test refusal at a criminal trial was in derogation of common law and concluded as a result that the statutory provision authorizing such admission—Vehicle and Traffic Law § 1194 (2) (f)—had to be strictly construed to include the two-hour rule … . In stark contrast, the limitation on the scope of the revocation hearing in section 1194 (2) (c) is not in derogation of the common law and is a subsequently enacted provision that specifically governs the issues that may be considered at an administrative hearing … . Matter of Endara-Caicedo v Vehicles, 2022 NY Slip Op 00959, CtApp 2-15-22

 

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ALTHOUGH CLAIMANT DID NOT SUCCEED IN DEMONSTRATING HER CONDITION HAD WORSENED SUCH THAT SHE WAS ENTITLED TO INCREASED BENEFITS, HER COUNSEL’S FEES SHOULD NOT HAVE BEEN RESCINDED BY THE WORKERS’ COMPENSATION BOARD (THIRD DEPT). ​

he Third Department, reversing (modifying) the Workers’ Compensation Board, determined the rescission of the award of claimant’s counsel’s fee on the ground that the claim was unsuccessful was arbitrary and capricious. Claimant was unable to show her condition had worsened entitling her to increased benefits:

The initial application submitted by claimant’s counsel, which sets forth in detail the services rendered and the time spent in connection therewith, reflects that counsel represented claimant for a number of years, engaged in extensive correspondence with, among others, claimant, Petroski [claimant’s treating physician] and the carrier, reviewed various reports, attended hearings and successfully sought and obtained a reopening of this matter. Although counsel ultimately did not succeed in obtaining an increase in claimant’s loss of wage-earning capacity, the Board rescinded the fee award solely upon counsel’s unsuccessful efforts in this regard. Notwithstanding the Board’s broad discretion, this single-factor reasoning strikes us as arbitrary and capricious — particularly in view of the fact that claimant clearly received an economic benefit from counsel’s overall representation of her. Matter of Simmons v Glens Falls Hosp., 2022 NY Slip Op 00712, Third Dept 2-3-22

 

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PETITIONER FAILED TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES AFTER THE APPLICATION FOR A BUILIDING PERMIT WAS DENIED BY APPEALING TO THE ZONING BOARD OF APPEALS; THE FAILURE WAS NOT EXCUSED ON THE GROUND THAT A CONSTITUTIONAL ISSUE WAS AT STAKE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner did not exhaust the available administrative remedies before bringing an Article 78 proceeding. Petitioner’s application for a building permit, apparently for a gas station, was denied by the village building inspector. Supreme Court, pursuant to the Article 78, granted the petition. The Second Department held that petitioner’s failure to appeal the building inspector’s ruling to the zoning board of appeals rendered the petition abandoned. Petitioner’s argument that the failure to exhaust administrative remedies should be excused because a constitutional issue was at stake was rejected:

“The exhaustion rule … is not an inflexible one. It is subject to important qualifications. It need not be followed, for example, when an agency’s action is challenged as either unconstitutional or wholly beyond its grant of power, or when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury” … . …

 “‘A constitutional claim that hinges upon factual issues reviewable at the administrative level must first be addressed to the agency so that a necessary factual record can be established'” … . “Further, the mere assertion that a constitutional right is involved will not excuse the failure to pursue established administrative remedies that can provide the required relief” … . Matter of 5055 N. Blvd., LLC v Incorporated Vil. of Old Brookville, 2022 NY Slip Op 00424, Second Dept 1-26-22

 

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A ZONING BOARD OF APPEALS IS WITHOUT JURISDICTION ABSENT AN APPEAL FROM AN ORDER OR OTHER DETERMINATION BY AN ADMINISTRATIVE OFFICIAL CHARGED WITH ENFORCING THE ZONING CODE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, noted that a Zoning Board of Appeals has no jurisdiction unless there is an appeal from an order or decision or determination made by an administrative official charged with enforcement of zoning ordinances:

Pursuant to the Code of the Town of Webster, absent an “order, requirement, decision or determination by any administrative official of the Town” charged with the enforcement of the Town’s local zoning ordinance, the ZBA is without jurisdiction to hear an appeal … . * * *

…[W]e conclude on this record that there was no determination … affording jurisdiction to the ZBA to hear petitioner’s appeal … . Matter of Webster Citizens for Appropriate Land Use, Inc. v Town of Webster, 2021 NY Slip Op 07370, Fourth Dept 12-23-21

 

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AN APPELLATE COURT HAS THE POWER TO CONSIDER A REQUEST FOR A DECLARATORY JUDGMENT WHICH WAS NOT BEFORE THE MOTION COURT; THE REGULATION MANDATING CERTAIN VACCINES DOES NOT VIOLATE THE SEPARATION OF POWERS DOCTRINE OR EXCEED THE REGULATORY POWERS OF THE NYS DEPARTMENT OF HEALTH (FOURTH DEPT).

The Fourth Department, in a full-fledged, comprehensive opinion by justice NeMoyer which cannot be fairly summarized here, held the appellate court had the power to determine a request for a declaratory judgment which was not raised in the motion court, and the regulation mandating certain vaccines, 10 NYCRR 66-1.1(1) , does not violate the separation of powers doctrine or exceed the regulatory powers of the NYS Department of Health:

The legislature has determined that vaccines save lives. It has therefore established a mandatory “program of immunization . . . to raise to the highest reasonable level the immunity of the children of the state against communicable diseases” (Public Health Law § 613 [1] [a]). And by promulgating 10 NYCRR 66-1.1 (l), respondents-defendants-appellants (defendants) merely implemented the legislature’s policy in a manner entirely consistent with the legislative design. We therefore hold that 10 NYCRR 66-1.1 (l) is valid, does not violate the separation of powers doctrine, and does not exceed the authority of its promulgator. Matter of Kerri W.S. v Zucker, 2021 NY Slip Op 07349, Fourth Dept 12-23-21

 

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THE PISTOL LICENSING SERVICE’S DENIAL OF PETITIONER’S APPLICATION FOR A PISTOL LICENSE HAD A RATIONAL BASIS AND SHOULD NOT HAVE BEEN ANNULLED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Pistol License Section’s (PLS’s) denial of petitioner’s application for a pistol licenses had a rational basis and should not have been annulled:

… [T]he denial of the petitioner’s application for a pistol license had a rational basis and was not arbitrary and capricious. The PLS’s investigation of the petitioner’s application revealed a lengthy history of domestic incidents that involved, at various points, the petitioner, the petitioner’s wife, a close family member of the petitioner, and the close family member’s domestic partner. These incidents included heated verbal disputes, arguments where property was damaged, shoving matches, and a situation where the close family member wielded a loaded shotgun in the presence of police officers. During many of these incidents, the close family member was intoxicated; in several others, the close family member threatened suicide. These incidents provided a rational basis for denying the petitioner’s application … . Moreover, the petitioner’s rationale for not disclosing these incidents to the PLS—that the close family member was not a member of the petitioner’s “household” because the close family member lived in an allegedly private basement apartment in the petitioner’s home—was misleading and provided a “rational basis for the [PLS] to conclude that [the] petitioner did not meet the good moral character standard” … . Matter of Franzese v Ryder, 2021 NY Slip Op 07285, Second Dept 12-22-21

 

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THE PLANNING BOARD DID NOT HAVE THE AUTHORITY TO WAIVE OR IGNORE THE REQUIREMENTS OF THE VILLAGE ZONING CODE; THE SPECIAL USE PERMIT SHOULD NOT HAVE BEEN ISSUED AND THE SITE PLAN SHOULD NOT HAVE BEEN APPROVED (SECOND DEPT). ​

The Second Department determined the planning board abused its discretion in issuing a special permit and approving a site plan for a plant nursery and arborist business. To issue the special permit, the planning board improperly waived a requirement that the business have frontage and access to two major roads. The approve the site plan, the planning board which violated the village zoning law:

One of the requirements of the special use permit at issue was that the arborist service, landscape services and/or wholesale nursery “shall have frontage on and practical access to two major roads” (Code of the Village of Wesley Hills [hereinafter Village Code] § 230-26[N][2]). Here, the Planning Board abused its discretion by waiving this requirement and deeming “practical access” to a second major road unnecessary. …

… A local planning board has broad discretion in deciding applications for site plan approvals, and judicial review is limited to determining whether the board’s action was illegal, arbitrary and capricious, or an abuse of discretion … . Village Code § 230-45 states that the Planning Board “shall not approve a site plan unless it shall find that such plan conforms [with] the requirements of [the Village Zoning Law].” Since the Village Zoning Law requires that a lot in the R—35 zoning district have a maximum gross impervious surface ratio of .25 (see Village Code § 230 Attachment I), the Planning Board abused its discretion in approving the site plan, which had a proposed gross impervious surface ratio of .44. Matter of Marcus v Planning Bd. of the Vil. of Wesley Hills, 2021 NY Slip Op 06618, Second Dept 11-24-21

 

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THE DENIAL OF THE FOIL REQUEST DID NOT ADVISE PETITIONER OF THE AVAILABILITY OF AN ADMINSTRATIVE APPEAL; THEREFORE SUPREME COURT SHOULD NOT HAVE DISMISSED THE ARTICLE 78 PETITION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Article 78 petition seeking the production of documents should not have been dismissed on the ground petitioner failed to exhaust administrative remedies. When the FOIL request was denied the denial did not advise petitioner of the availability of an administrative appeal:

Public Officers Law § 89(3)(a) and (4)(a) requires that FOIL requests be granted or denied by an agency within five business days, and that any administrative appeal of a denial, as required for exhausting administrative remedies, be undertaken within 30 days of the denial. 21 NYCRR 1401.7(b) further requires, however, 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. The records access officer shall not be the appeals officer.” Since there is no dispute that the subject denial of the petitioner’s FOIL request failed to advise the petitioner of the availability of an administrative appeal and the person to whom the appeal should be directed as required by 21 NYCRR 1401.7(b), the Supreme Court erred in dismissing the petition for failure to exhaust administrative remedies … . Matter of Snyder v Nassau County, 2021 NY Slip Op 06359, Second Dept 11-17-21

 

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THE ADMINISTRATIVE RECORD SUPPORTED THE GRANT OF THE ARIA VARIANCE BY THE ZONING BOARD OF APPEALS; SUPREME COURT SHOULD NOT HAVE SUBSTITUTED ITS JUDGMENT FOR THE BOARD’S (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the zoning board of appeals (ZBA) properly granted an area variance and Supreme Court should not have substituted its judgment for the board’s:

The administrative record and the ZBA’s formal return in the CPLR article 78 proceeding establish that the ZBA considered the five statutory factors, including whether the alleged difficulty was self-created … . Thus, we conclude that the ZBA “rendered its determination after considering the appropriate factors and properly weighing the benefit to the [applicants] against the detriment to the health, safety and welfare of the neighborhood or community” if the variance was granted … . We further conclude that the record establishes that the ZBA’s determination had the requisite rational basis … . It was therefore error for the court to substitute its judgment for that of the ZBA, “even if such a contrary determination is itself supported by the record” … . Matter of Gasparino v Town of Brighton Zoning Bd. of Appeals, 2021 NY Slip Op 06239, Fourth Dept 11-12-21

 

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