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REGULATIONS PROMULGATED BY THE OFFICE OF VICTIM SERVICES WHICH LIMITED THE AVAILABILITY OF ATTORNEY’S FEES IN THE EARLY STAGES OF A CLAIM CONFLICT WITH THE CONTROLLING STATUTE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined that certain changes made by the Office of Victim Services (OVS) to regulations affecting the availability of attorney’s fees in early stages of a claim conflicted with the controlling statute:

Executive Law § 626 (1) requires OVS to reimburse crime victims for out-of-pocket loss, which “shall . . . include . . . the cost of reasonable attorneys’ fees for representation before [OVS] and/or before the [A]ppellate [D]ivision upon judicial review” … . Our primary purpose in interpreting this provision “is to discern the will of the Legislature and, as the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” … . Applying these principles, we find no authorization in the statute’s plain language for OVS to conclude that counsel fees are never”reasonable” during the early stages of a claim and, thus, to categorically exclude awards of counsel fees for such representation in every instance. Neither this statutory language nor the similar language of Executive Law § 623 (3) — that authorizes OVS to promulgate regulations for the approval of counsel fees “for representation before [OVS] and/or before the [A]ppellate [D]ivision” — distinguishes among the stages of a victim’s representation before OVS, nor does the statutory text suggest that OVS may do so. Matter of Juarez v New York State Off. of Victim Servs., 2019 NY Slip Op 00653, Third Dept 1-31-19

 

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NEGLIGENCE AND NEGLIGENT SUPERVISION CAUSES OF ACTION AGAINST THE SCHOOL DISTRICT BROUGHT BY A STUDENT WITH SPECIAL NEEDS WHO LEFT SCHOOL AND ATTEMPTED SUICIDE ARE NOT SUBJECT TO THE EXHAUSTION OF REMEDIES REQUIREMENTS OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence and negligent supervision, hiring, training and retention causes of action against the school district should not have been granted. Infant plaintiff is a special needs student who had an Individualized Education Program (IEP) pursuant to the Individuals with Disabilities Education Act (IDEA). The infant plaintiff left school, went home and attempted suicide. The school district argued plaintiffs did not exhaust their administrative remedies as required by the IDEA. The Second Department held that the negligence causes of action were not subject to the administrative requirements of the IDEA:

“An IEP is developed jointly by a school official, the child’s teacher and parents, and, where appropriate, the child. It details the special needs of a disabled child and the services which are to be provided to serve the individual needs of that child” … . Because parents and school officials sometimes cannot agree on such issues, the IDEA establishes formal administrative procedures for resolving disputes… . If a parent is dissatisfied with the outcome after having exhausted the IDEA’s administrative remedies, the parent may then seek judicial review by filing a civil action in state or federal court… . The IDEA’s exhaustion requirement is not limited to actions brought explicitly pursuant to the IDEA. 20 USC § 1415(l) states: “Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.”

Here, the complaint alleges only common-law causes of action to recover damages for, inter alia, negligence, negligent supervision, hiring, training, and retention, and loss of consortium. Thus, the plaintiffs were not required to exhaust the IDEA’s administrative remedies before commencing the instant action … . Matter of P.S. v Pleasantville Union Free Sch. Dist., 2019 NY Slip Op 00282, Second Dept 1-16-19

 

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AFTER REVERSAL BY THE COURT OF APPEALS, THE EXPULSION OF PETITIONER STUDENT FOR SEXUAL MISCONDUCT IN VIOLATION OF THE COLLEGE’S STUDENT CODE CONFIRMED, COLLEGE APPEALS BOARD HAD THE POWER TO IMPOSE ANY AVAILABLE REMEDY INCLUDING EXPULSION (THIRD DEPT).

The Third Department, after a reversal by the Court of Appeals, confirmed the college’s determination to expel petitioner, a student accused of sexual misconduct in violation of the student code:

… [T]he Court of Appeals agreed with us “that petitioner’s due process arguments were not preserved at the administrative level” … . To the extent that petitioner’s procedural claims go beyond those arguments, they are also unpreserved due to him either failing to raise them at the administrative hearing when they could have been corrected or failing to raise them altogether … . We accordingly focus upon the penalty of expulsion recommended by SUNY’s Appellate Board and imposed by respondent Kristen Esterberg, SUNY’s president.

Petitioner may not have been aware of the fact when he took an administrative appeal from a decision of the Hearing Board that suspended him for a semester, but the Appellate Board was empowered by article IX (C) of the student code of conduct to “alter the sanctions imposed” and punish him with “any of the [available] sanctions,” including more severe ones. Article IX misstates the student code of conduct sections dealing with the jurisdiction of the Appellate Board and the permissible sanctions, but a review of the pertinent provisions leaves no doubt that those misstatements were drafting errors that may be disregarded… . The Appellate Board chose one of the available remedies by recommending expulsion and, while no explanation was offered as to why it did so, the student code of conduct did not require one. Esterberg adopted the recommendation. Matter of Haug v State Univ. of N.Y. At Potsdam, 2018 NY Slip Op 08208, Third Dept 11-29-18

EDUCATION-SCHOOL LAW (COLLEGE DISCIPLINE, AFTER REVERSAL BY THE COURT OF APPEALS, THE EXPULSION OF PETITIONER STUDENT FOR SEXUAL MISCONDUCT IN VIOLATION OF THE COLLEGE’S STUDENT CODE CONFIRMED, COLLEGE APPEALS BOARD HAD THE POWER TO IMPOSE ANY AVAILABLE REMEDY INCLUDING EXPULSION (THIRD DEPT))/ADMINISTRATIVE LAW (COLLEGE DISCIPLINE, AFTER REVERSAL BY THE COURT OF APPEALS, THE EXPULSION OF PETITIONER STUDENT FOR SEXUAL MISCONDUCT IN VIOLATION OF THE COLLEGE’S STUDENT CODE CONFIRMED, COLLEGE APPEALS BOARD HAD THE POWER TO IMPOSE ANY AVAILABLE REMEDY INCLUDING EXPULSION (THIRD DEPT))/DISCIPLINARY PROCEEDINGS (COLLEGES,  AFTER REVERSAL BY THE COURT OF APPEALS, THE EXPULSION OF PETITIONER STUDENT FOR SEXUAL MISCONDUCT IN VIOLATION OF THE COLLEGE’S STUDENT CODE CONFIRMED, COLLEGE APPEALS BOARD HAD THE POWER TO IMPOSE ANY AVAILABLE REMEDY INCLUDING EXPULSION (THIRD DEPT))

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EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY AFTER THE UNDERLYING ACTION WAS SETTLED, CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department determined the exception to the mootness doctrine did not apply and the Department of Health’s (DOH’s) motion to dismiss causes of action pursuant to the Americans with Disabilities Act and the Rehabilitation Act should have been granted. The underlying action was brought by disabled residents of an adult-care facility which was being closed. The matter settled and the facility closed rendering further proceedings academic. Supreme Court had held that the state claims were moot, but the federal claims were viable under an exception to the mootness doctrine:

The exception to the mootness doctrine does not apply here. That exception permits a court to pass on moot issues when there exists: “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” … . If one or more of these elements is missing, the exception does not apply… .

Here, there is no likelihood of repetition because the issues are fact-specific … . Furthermore, because the issues are fact-specific, they are not substantial and novel … .

The plaintiffs contend that their federal law causes of action are not fact-specific, in that they challenge the validity of the regulations pursuant to which the DOH approves of any closure plan for an assisted living residence … . The plaintiffs contend that the regulations themselves violate the mandate in the ADA and Rehabilitation Act that services be administered in the most integrated setting appropriate to the needs of the resident … . However, this facial challenge to the DOH’s closure regulations is time-barred … .

The issues presented here also do not typically evade review… . An injunction maintaining the status quo was an effective procedure here and would be in a future case raising similar issues. The issues here only became moot when the plaintiffs voluntarily opted to settle their claims against the LLC … . Berger v Prospect Park Residence, LLC, 2018 NY Slip Op 08110, Second Dept 11-28-18

CIVIL PROCEDURE (EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY AFTER THE UNDERLYING ACTION WAS SETTLED, CRITERIA EXPLAINED (SECOND DEPT))/ADMINISTRATIVE LAW  (EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY AFTER THE UNDERLYING ACTION WAS SETTLED, CRITERIA EXPLAINED (SECOND DEPT))/APPEALS (EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY AFTER THE UNDERLYING ACTION WAS SETTLED, CRITERIA EXPLAINED (SECOND DEPT))/EXCEPTION TO THE MOOTNESS DOCTRINE (EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY AFTER THE UNDERLYING ACTION WAS SETTLED, CRITERIA EXPLAINED (SECOND DEPT)

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DENIAL OF SPECIAL USE PERMIT FOR A GAS STATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT

The Second Department determined the denial of a special use permit for the construction of a gas station was not supported by substantial evidence:

The subject two-acre parcel of land, upon which is located a used auto sales dealership, an automotive repair shop, and an area for the storage of cars and boats, is located in a business district in which gasoline service stations are a permitted use with a special permit. * * *

Unlike a variance, a special permit does not entail a use of the property forbidden by the zoning ordinance but, instead, constitutes a recognition of a use which the ordinance permits under stated conditions … . Thus, the burden of proof on an applicant seeking a special permit is lighter than that required for a hardship variance… . In reviewing a town board’s determination on special permit applications, we are “limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion,” and we “consider substantial evidence only to determine whether the record contains sufficient evidence to support the rationality of the [b]oard’s determination” … . “A denial of a special . . . permit must be supported by evidence in the record and may not be based solely upon community objection”… .

Here, the material findings of the Town Board were not supported by substantial evidence. With regard to the alleged increased volume of traffic, there was no showing that the proposed use of a gasoline service station would have a greater impact on traffic than would other uses unconditionally permitted … . While there was evidence that traffic would be increased by 3%, there was no evidence indicating that the proposed use would have any greater impact than would other permitted uses. Thus, the alleged increase in traffic volume was an improper ground for the denial of the special permit. Matter of QuickChek Corp. v Town of Islip, 2018 NY Slip Op 08136, Second Dept 11-28-18

ZONING (DENIAL OF SPECIAL USE PERMIT FOR A GAS STATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT))/LAND USE (DENIAL OF SPECIAL USE PERMIT FOR A GAS STATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT))/SPECIAL USE PERMITS (LAND USE, DENIAL OF SPECIAL USE PERMIT FOR A GAS STATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT))/ADMINISTRATIVE LAW (LAND USE, DENIAL OF SPECIAL USE PERMIT FOR A GAS STATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT))/EVIDENCE (ADMINISTRATIVE LAW, LAND USE, DENIAL OF SPECIAL USE PERMIT FOR A GAS STATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT))/TRAFFIC, INCREASED (ADMINISTRATIVE LAW, LAND USE, DENIAL OF SPECIAL USE PERMIT FOR A GAS STATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT))

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COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT).

The Second Department, annulling the employment discrimination determination, held that the action against the employer, Food Corp., was untimely and the relation-back doctrine did not apply. Complainant had originally named Trade Fair as her employer and then added Food Corp. more than a year after her termination:

Food Corp. does not dispute that the first prong of the relation-back test was satisfied, because the claims against Food Corp. arose out of the same transactions or occurrences as those asserted against Trade Fair. The complainant also established the third prong of the test by presenting evidence suggesting that Food Corp. had notice of the proceeding before the statute of limitations expired, and that Food Corp. should have known that, but for the complainant’s mistake in omitting it as a respondent in her complaint, the proceeding would have been timely commenced against it as well.

However, the complainant failed to satisfy the second prong of the relation-back test, because Food Corp. and Trade Fair were not united in interest. Respondents are “united in interest only when their interest in the subject-matter [of the proceeding] is such that [the respondents] stand or fall together and that judgment against one will similarly affect the other'” … . “[T]he question of unity of interest is to be determined from an examination of (1) the jural relationship of the parties whose interests are said to be united and (2) the nature of the claim asserted against them by the [complainant]” … . Respondents are not united in interest if there is a possibility that the new party could have a defense different from that of the original party … . Here, the Commissioner dismissed the second amended complaint insofar as asserted against Trade Fair on the grounds that the complainant never interacted with or took direction from Trade Fair’s employees, and that Trade Fair was not the complainant’s employer. In contrast, the Commissioner determined that Food Corp. was the complainant’s employer because Food Corp.’s personnel hired and fired the complainant and controlled the complainant’s daily workplace activities. Thus, the record makes clear that Food Corp.’s and Trade Fair’s interests in the administrative proceeding did not stand or fall together … . Matter of 130-10 Food Corp. v New York State Div. of Human Rights, 2018 NY Slip Op 08123, Second Dept 11-28-18

CIVIL PROCEDURE (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/ADMINISTRATIVE LAW  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/HUMAN RIGHTS LAW  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/EMPLOYMENT LAW  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/DISCRIMINATION  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/RELATION BACK DOCTRINE (STATUTE OF LIMITATIONS, EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/STATUTE OF LIMITATIONS (RELATION BACK DOCTRINE, EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))

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ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT).

The First Department determined the stipulation signed by plaintiff teacher, who agreed to resign in return for discontinuing the disciplinary hearing, was binding under contract principles, despite the inapplicability of CPLR 2104 to administrative proceedings. After signing the stipulation, plaintiff changed his mind:

In the stipulation, DOE (Department of Education] agreed to discontinue the disciplinary hearing on the pending misconduct charges and to take no further disciplinary action against plaintiff, in exchange for which plaintiff agreed “to irrevocably retire from his employment with [DOE] … .” The agreement was signed by plaintiff, his counsel, and DOE’s counsel … . Annexed to the stipulation was a letter signed by plaintiff and addressed to District Superintendent Karen Watts stating, “I hereby irrevocably retire from [DOE] … .” The stipulation contained a signature line for Superintendent Watts, who signed it several days later.

Before Superintendent Watts signed the stipulation, plaintiff notified DOE that he had changed his mind and wanted to rescind the stipulation. He argues that the stipulation was unenforceable when he changed his mind because not all the parties had signed it. …

Although CPLR 2104 is not applicable to agreements entered into in administrative proceedings, the stipulation signed by plaintiff and counsel acting on behalf of DOE is binding under general contract principles … . Plaintiff failed to show the existence of fraud, collusion, mistake or accident, or that counsel lacked DOE’s consent to enter into the stipulation … . Plaintiff’s agreement to retire was irrevocable, and plaintiff understood its consequences. His change of mind is not a cause sufficient to set aside his agreement … . Nor is his parol evidence, offered to show that the parties did not intend to be bound by the stipulation until Superintendent Watts had signed it, admissible to add to or vary the terms of the writing … . Matter of Nobile v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2018 NY Slip Op 08065, First Dept 11-27-18

ADMINISTRATIVE LAW (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/CONTRACT LAW  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/EMPLOYMENT LAW  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/EDUCATION-SCHOOL LAW  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/CIVIL PROCEDURE (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/CPLR 2104  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))

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BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT).

The First Department determined the NYC Civil Service Commission (CSC) properly upheld the termination of  the petitioner correction officers for using excessive force against an inmate. The court noted that, because the petitioners chose to appeal the determination of the administrative law judge to the CSC, instead of bringing an Article 78, the court’s review powers are extremely limited:

Civil Service Law § 76(1) permits a person whose civil service employment has been terminated to “appeal from such determination either by an application to the state or municipal commission having jurisdiction, or by an application to the court in accordance with [article 78].” If the former option is chosen, “[t]he decision of such civil service commission shall be final and conclusive, and not subject to further review in any court” … . The Court of Appeals has clarified that, despite the plain language in the statute, judicial review is not completely foreclosed … . Rather, the article 78 court, instead of being guided by the substantial evidence or arbitrary and capricious standards of review, is limited to reviewing whether “the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction” … .

Petitioners argue that CSC acted unconstitutionally because it relied on the statements of the inmates, who never testified, thus depriving petitioners of any chance to cross-examine them. However, this point is unpreserved. Petitioners fail to point to anything in the record showing that they ever sought to cross-examine or call the inmates and were denied that opportunity. More importantly, they never protested that their constitutional rights were being violated. This Court has “no discretionary authority” to “reach[] an unpreserved issue in the interest of justice” in an article 78 proceeding challenging an administrative determination … , including issues touching on due process … and evidentiary challenges … . Matter of Almanzar v City of New York City Civ. Serv. Commn., 2018 NY Slip Op 08062, First Dept 11-27-18

ADMINISTRATIVE LAW (BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/CIVIL PROCEDURE  (BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/EMPLOYMENT LAW (BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/APPEALS (CIVIL SERVICE COMMISSION, BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/MUNICIPAL LAW (EMPLOYMENT LAW, BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))

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REVOCATION OF RACEHORSE TRAINER’S LICENSE BY THE NYS RACING AND WAGERING BOARD SHOULD HAVE BEEN CONFIRMED, SUBSTANTIAL EVIDENCE STANDARD WAS MET (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the revocation of petitioner’s racehorse trainer’s license by the NYS Racing and Wagering Board should have been confirmed. The Court of Appeals did not write a decision and adopted the reasoning of the dissenting justice on the Appellate Division:

From the Dissent in the Appellate Division’s Decision at 144 AD3d 1244, 1247-1252:

I agree with the majority that if the dates found on veterinary records … regarding specified forms of veterinary care represent the dates upon which such treatment was administered, those records, along with other evidence, chronicle 1,717 violations by petitioner of rules prohibiting the administration of specified substances to a horse within specified windows prior to a race. The majority, however, finds that a reasonable mind cannot reach the conclusion that those dates convey when treatment occurred. As a result, the majority annuls the entirety of respondent’s determination. In contrast, I find that the inference that respondent made that the dates listed next to specified veterinary care represent the dates that such care was administered to be reasonable and plausible. That conclusion requires confirmance and, accordingly, I respectfully dissent. * * *

Substantial evidence “demands only that a given inference is reasonable and plausible, not necessarily the most probable” … . Where “room for choice” exists in the inferences to be drawn from evidence, this Court has no power to preference its own interpretation over that of the administrative agency tasked with the determination … . This great deference accorded to such an agency determination derives from the Legislature’s decision to task an agency with expertise in the relevant law and regulations—rather than a court of general jurisdiction that lacks such expertise—with the authority to initially resolve legal disputes … . Matter of Pena v New York State Gaming Commn., 2018 NY Slip Op 08060, CtApp 11-27-18

ADMINISTRATIVE LAW (REVOCATION OF RACEHORSE TRAINER’S LICENSE BY THE NYS RACING AND WAGERING BOARD SHOULD HAVE BEEN CONFIRMED, SUBSTANTIAL EVIDENCE STANDARD WAS MET (CT APP))/EVIDENCE (ADMINISTRATIVE LAW, REVOCATION OF RACEHORSE TRAINER’S LICENSE BY THE NYS RACING AND WAGERING BOARD SHOULD HAVE BEEN CONFIRMED, SUBSTANTIAL EVIDENCE STANDARD WAS MET (CT APP))/NYS RACING AND WAGERING BOARD (REVOCATION OF RACEHORSE TRAINER’S LICENSE BY THE NYS RACING AND WAGERING BOARD SHOULD HAVE BEEN CONFIRMED, SUBSTANTIAL EVIDENCE STANDARD WAS MET (CT APP))

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SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive two-judge dissenting opinion, determined that school districts do not have the authority to oversee pre-kindergarten programs offered by charter schools. The court noted that deference to the Commissioner of Education’s contrary finding was not required because the question is one of pure statutory interpretation:

Charter schools are listed among the various eligible providers under the Statewide Universal Full-Day Pre-Kindergarten Program. Unlike other providers, however, charter schools are separately governed by the New York Charter Schools Act, and all “monitoring, programmatic review and operational requirements” related to charter school pre-kindergarten programs are “the responsibility of the charter entity” and must be “consistent with the requirements” of the Charter Schools Act (Education Law § 3602-ee [12]). The issue before us is whether the statutory scheme governing charter school pre-kindergarten programs allows for shared oversight authority between charter entities and local school districts. We hold that it does not … . * * *

According to [the appellate division, affirmed here by the Court of Appeals], the Legislature’s use of the word “all” in subdivision 12 provide the charter entity “with full responsibility for the relevant monitoring, programmatic review and operational requirements’ for the relevant prekindergarten programs” and that the plain meaning of this provision “in no way indicates that another entity — such as a school district — holds concurrent responsibility or authority in this regard” (… quoting Education Law § 3602-ee [12]). This reading, in the Appellate Division’s view, “best harmonizes the provisions of the statute in a manner consistent with the Legislature’s announced purpose” of Universal Pre-K Law which was ” to encourage program creativity through competition'” (… quoting Education Law § 3602-ee [1]). The Court also determined that the plain meaning of the term “inspection” did not include a right to regulate the curriculum (id.; see Education Law § 3602-ee [10]). The Appellate Division remitted the matter to the Commissioner, given that “the Commissioner’s determination regarding Success Academy’s request for funding was affected by its erroneous interpretation of” Universal Pre-K Law” … . Matter of DeVera v Elia, 2018 NY Slip Op 07922, CtApp 11-20-18

EDUCATION-SCHOOL LAW (SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP))/ADMINISTRATIVE LAW (EDUCATION-SCHOOL LAW, SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP))/PRE-KINDERGARTEN PROGRAMS (SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP))/CHARTER SCHOOLS, PRE-KINDERGARTEN PROGRAMS, (SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP))

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