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THE DISCIPLINARY PROCEEDINGS AGAINST A TOWN POLICE OFFICER ARE CONTROLLED BY THE TOWN LAW AND THE TOWN POLICE MANUAL, NOT THE CIVIL SERVICE LAW AND COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the disciplinary proceedings against a town police officer are controlled by the Town Law and the town police manual, not by the Civil Service Law and the collective bargaining agreement (CBA):

… [W]e agree with respondents that the disciplinary procedures set forth in the police manual are controlling, we further agree with respondents that the court erred in directing them to resolve petitioner’s disciplinary proceedings pursuant to Civil Service Law § 75 and the CBA … . To the extent that the police manual contains references to Civil Service Law § 75, it is well settled that section 75 did not repeal or modify Town Law § 155 … . Indeed, “Civil Service Law § 76 (4) states that ‘[n]othing contained in section [75] or [76] of this chapter shall be construed to repeal or modify any general, special or local’ preexisting laws” … , and Town Law § 155, which gives towns the power and authority to adopt rules regarding police discipline, was enacted prior to Civil Service Law §§ 75 and 76 … . Thus, where, as here, a town board has adopted disciplinary rules pursuant to Town Law § 155, those rules are controlling and Civil Service Law § 75 and any collective bargaining agreement are inapplicable … . Matter of Town of Tonawanda Police Club, Inc. v Town of Tonawanda, 2021 NY Slip Op 02959, Fourth Dept 5-7-21

 

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PETITIONER, WHO HAD WORKED FOR THE TOWN FOR 32 YEARS, TOOK $181 FROM PETTY CASH AND LEFT A NOTE INDICATING SHE OWED MONEY TO THE FUND; THE LARCENY AND THEFT CHARGES WERE ANNULLED; TERMINATION WAS TOO SEVERE A PUNISHMENT; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the theft and larceny charges against petitioner should be annulled and termination of petitioner’s employment with the town was too severe a penalty. Petitioner took $181 from petty cash but left a note indicating she owed money to the fund:

We agree with petitioner that the determination of guilt on charges 1 and 2, which charged her respectively with theft and larceny, is not supported by substantial evidence. A person “commits larceny when, with intent to deprive another of property or to appropriate the same to him[- or her]self or to a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law § 155.05 [1]). “Theft” is a synonym of “larceny” (Black’s Law Dictionary 1780 [11th ed 2019]). We conclude that petitioner’s actions, particularly the creation and placement of the note, are inconsistent with an intent to deprive or appropriate (see § 155.00 [3], [4] …). …

… [I]n light of petitioner’s 32 years of service to the Town, her impending retirement, and the absence of grave moral turpitude … , we conclude that the penalty of termination is ” ‘so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness’ ” … . Matter of Gray v LaFountain, 2021 NY Slip Op 02624, Fourth Dept 4-30-21

 

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THE ACTION CONTESTING THE AMENDMENT TO THE BY-LAWS OF A NOT-FOR-PROFIT CORPORATION WHICH OWNS RECREATIONAL LAND AND COLLECTS DUES FROM LOT OWNERS MUST BE BROUGHT AS AN ARTICLE 78 PROCEEDING, NOT AN ACTION FOR A DECLARATORY JUDGMENT; THE ACTION IS THEREFORE TIME-BARRED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the amendment to the by-laws defendant not-for-profit corporation which owns land underneath a man-made lake must be contested in an Article 78 action, not a declaratory judgment action. Therefore the four-month Article 78 statute of limitations applied and the action was time-barred. The underlying dispute involved the assessment of annual dues for lots which had been exempt from dues. Plaintiffs are the owners of those lots:

Supreme Court concluded that the action being challenged was a legislative act, which cannot be challenged in a CPLR article 78 proceeding but must be maintained in a declaratory judgment action. However, the cases addressing legislative acts deal with challenges to “governmental activity,” rather than the activity of nonpublic corporations … . This is an important distinction as the rule prohibiting the use of CPLR article 78 proceedings to challenge acts of legislative bodies “is derived from the separation-of-powers doctrine,” and so “has no application to the quasi-legislative acts of administrative agencies” … . Similarly, it does not apply to the actions or decisions of nonpublic corporations. * * *

Whether defendant’s alleged interest in plaintiffs’ property is based on the imposition of restrictive covenants or the possibility of a lien if plaintiffs fail to pay dues on multiple lots, any such alleged interest would be based on the amended bylaws. Accordingly, though all of plaintiffs’ causes of action are couched in declaratory judgment language, they can be distilled to challenges to defendant’s enactment of the amended bylaws that could have been raised in a CPLR article 78 proceeding and are therefore subject to a four-month statute of limitations … . Indeed, other courts have held that a challenge to a corporation’s amendment of its bylaws must be raised via a CPLR article 78 proceeding commenced within four months of such amendment … . Doyle v Goodnow Flow Assn., Inc., 2021 NY Slip Op 02580, Third Dept 4-29-21

 

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THE DEPARTMENT OF FINANCIAL SERVICES’ AMENDMENT TO AN INSURANCE REGULATION DESIGNED TO PROTECT CONSUMERS OF LIFE INSURANCE AND ANNUITY PRODUCTS IS VOID FOR VAGUENESS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, reversing Supreme Court, determined the Department of Financial Services’ (DFS’s) amendment to an Insurance Regulation was void for vagueness:

The amendment was promulgated to address concerns with respect to the growing complexities involved with life insurance and annuity products, the corresponding need for consumers to increasingly rely on the advice of professionals in order to comprehend the widening market of products available and to mitigate abuses with respect to the compensation of agents and brokers (hereinafter collectively referred to as producers [see 11 NYCRR 224.3 (c)]) who have incentive to manipulate consumers into purchasing financial products that result in higher commissions but ultimately fail to meet their needs. * * *

… [W]hile the consumer protection goals underlying promulgation of the amendment are laudable, as written, the amendment fails to provide sufficient concrete, practical guidance for producers to know whether their conduct, on a day-to-day basis, comports with the amendment’s corresponding requirements for making recommendations and compiling and evaluating the relevant suitability information of the consumer … . Although the amendment provides certain examples of what a recommendation does not include (i.e., “general factual information to consumers, such as advertisements, marketing materials, general education information” and “use of . . . interactive tool[s]” (11 NYCRR 224.3 [e] [2]), the remaining definitional language is so broad that it is difficult to discern what statements producers could potentially make that would not be reasonably interpreted by the consumer to constitute advice regarding a potential sales transaction and therefore fall within the purview of the amendment (see 11 NYCRR 224.3 [e] [1], [2]). Matter of Independent Ins. Agents & Brokers of N.Y., Inc. v New York State Dept. of Fin. Servs., 2021 NY Slip Op 02574, Third Dept 4-29-21

 

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NYU DID NOT ACT ARBITRARILY AND CAPRICIOUSLY WHEN IT SUSPENDED THREE STUDENTS FOR ATTENDING OFF-CAMPUS ROOFTOP PARTIES IN AUGUST 2020 WHERE THE ATTENDEES DID NOT WEAR MASKS AND DID NOT PRACTICE SOCIAL DISTANCING (FIRST DEPT).

The First Department, reversing Supreme Court, determined the school (New York University NYU) properly suspended three students for attending off-campus, rooftop parties in August 2020 where the attendees did not wear masks or practice social distancing. The First Department found that the general student conduct policies prohibiting behavior which endangers health and safety, the COVID-19 Executive Orders in effect at the time, and emails sent out by the school provided sufficient pre-conduct notice of the prohibited conduct:

… [W]e find that NYU’s determination to suspend petitioners was not arbitrary and capricious and was made in the exercise of honest discretion. Petitioners had notice that the gatherings they attended in August 2020 could result in disciplinary action by NYU. Matter of Storino v New York Univ., 2021 NY Slip Op 02087, First Dept 4-1-21

 

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THE FINDING THAT THE COMPLAINANT CONSENTED TO LYING DOWN IN BED WITH PETITIONER FOR THE NIGHT BUT DID NOT CONSENT TO HAVING SEX WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; THE COLLEGE’S DETERMINATION THAT PETITIONER VIOLATED THE STUDENT CODE OF CONDUCT ANNULLED (SECOND DEPT).

The Second Department, annulling the determination of the Campus Appeals Board of SUNY Purchase College, held the Board’s conclusion petitioner had sexual intercourse with the complainant without the complainant’s consent was not supported by substantial evidence. The Board had found the evidence that complainant was unable to give consent “conflicting and unreliable:”

After the hearing, the Hearing Board found “the complainant’s statements to be conflicting and unreliable as it pertained to her inability to give consent.” The Hearing Board concluded that “[t]here were considerable gaps in the complainant’s memory,” and indicated that it was “concerned that some of her statements after her initial report were tainted by reading the reports that were submitted by other witnesses and parties.” Nevertheless, the Hearing Board found that although there was consent for lying together in bed, kissing, and the removal of the complainant’s pants, the complainant had not consented to the remainder of the sexual activity. …

… [T]he determination that the petitioner violated code C.8 was not supported by substantial evidence. Having rejected the complainant’s testimony that she was incapable of giving consent, the Hearing Board was not left with adequate evidence to support the conclusion that while the complainant consented to spending the night in the petitioner’s bed, kissing, and removing her pants, she did not consent to the remainder of the sexual activity. The Board indicated that its finding of nonconsensual conduct was based on the statements of the petitioner and the complainant “that clear, affirmative consent for these activities was not given.” However, the petitioner, while freely admitting that he did not obtain verbal consent, clearly asserted that the complainant consented with her actions … . Matter of Doe v Purchase Coll. State Univ. of N.Y., 2021 NY Slip Op 01974, Second Dept 3-31-21

 

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ALTHOUGH THE ARTICLE 78 PROCEEDING WAS PROPERLY TRANSFERRED TO THE APPELLATE DIVISION, THE RELATED DECLARATORY JUDGMENT ACTION WAS NOT TRANSFERABLE (FOURTH DEPT).

The Fourth Department determined Supreme Court properly transferred the Article 78 proceeding to the appellate division because there was a quasi-judicial hearing before an administrative law judge at which evidence was taken. The court noted that the aspect of the underlying action which sought a declaratory judgment could not be transferred to the appellate division:

… [A]lthough petitioner also contends that she is entitled to declaratory relief, we do not “have jurisdiction to consider the declaratory judgment action as part of this otherwise properly transferred CPLR article 78 proceeding” … . The transfer of a declaratory judgment action to this Court is not authorized by CPLR 7804 (g) … and we “lack[] jurisdiction to consider a declaratory judgment action in the absence of a proper appeal from a court order or judgment” … . We therefore vacate the order insofar as it transferred the declaratory judgment action, sever the declaratory judgment action and CPLR article 78 proceeding, and remit the declaratory judgment action to Supreme Court for further proceedings … . Matter of Blue v Zucker, 2021 NY Slip Op 01924, Fourth Dept 3-26-21

 

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FUNDS FOR PERSONAL CARE SERVICES ARE MEDICAID FUNDS SUBJECT TO THE AUDIT AND RECOUPMENT AUTHORITY OF THE CITY OF NEW YORK HUMAN RESOURCES ADMINISTRATION; APPELLATE DIVISION REVERSED (CT APP)..

The Court of Appeals, reversing the Appellate Division, determined funds paid for personal care were Medicaid funds which were subject to the audit and recoupment authority of the City of New York Human Resources Administration (HRA). The facts are explained in the Appellate Division decision:

For the reasons stated in the dissenting opinion below (Matter of People Care Inc. v City of New York, 175 AD3d 134, 147-152 [1st Dept 2020] [Richter, J.P., dissenting]), we conclude that the funds for personal care services paid to petitioner People Care, Inc. under the Health Care Reform Act (Public Health Law §§ 2807-v [1] [bb] [i], [iii]) are Medicaid funds subject to the audit and recoupment authority of the City of New York Human Resources Administration (HRA) in accordance with the parties’ 2001 contract. Matter of People Care Inc. v City of N.Y. Human Resources Admin., 2021 NY Slip Op 01834, CtApp 3-25-21

 

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THE NYPD OFFICER WHO EMPLOYED A PROHIBITED CHOKEHOLD ON ERIC GARNER, WHICH CONTRIBUTED TO ERIC’S DEATH, WAS PROPERLY DISMISSED FROM THE NYPD (FIRST DEPT).

The First Department determined the police officer who employed a prohibited chokehold on Eric Garner, which contributed to Eric’s death, was properly dismissed from employment by the New York Police Department (NYPD):

Substantial evidence supports respondents’ conclusion that petitioner recklessly caused injury to Eric Garner by maintaining a prohibited chokehold for 9 to 10 seconds after exigent circumstances were no longer present, thereby disregarding the risk of injury (Penal Law §§ 15.05[3]; 120.00[2] …).

We do not find the penalty “so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness” … . Conduct far less serious than petitioner’s has been found by the Court of Appeals to have a “destructive impact . . . on the confidence which it is so important for the public to have in its police officers” … . Matter of Pantaleo v O’Neill, 2021 NY Slip Op 01857, First Dept 3-25-21

 

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PETITIONER SOUGHT ATTORNEY’S FEES AS THE PREVAILING PARTY PURSUANT TO NEW YORK’S EQUAL ACCESS TO JUSTICE ACT UNDER THE “CATALYST THEORY;” THE 4TH DEPARTMENT REJECTED THE CATALYST THEORY, FINDING PETITIONER WAS NOT THE PREVAILING PARTY UNDER THE TERMS OF THE STATUTE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the so-called “catalyst theory” did not apply to New York’s Equal Access to Justice Act (EAJA). The EAJA, in certain circumstances, allows a prevailing party to recover attorney’s fees against the state. Here petitioner argued that petitioner’s seeking reconsideration of a determination by the NYS Office for People with Developmental Disabilities (OPWDD) prompted the OPWDD to grant petitioner’s application. Petitioner argued the request for reconsideration was the “catalyst” for the OPWDD’s granting the application and petitioner was therefore entitled to attorney’s fees. The Fourth Department determined petitioner was not a “prevailing party” within the meaning of the NYS EAJA:

This Court has yet to address the issue, but we now reject application of the catalyst theory in State EAJA cases. Where, as here, litigation is rendered moot by an administrative change in position, the petitioner or plaintiff has not prevailed “in the civil action” (CPLR 8602 [f]). Matter of Criss v New York State Dept. of Health, 2021 NY Slip Op 01642, Fourth Dept 3-19-21

 

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