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MATTER REMITTED TO THE COMMISSIONER OF HEALTH TO DETERMINE WHETHER BONE SURGERY TO REPAIR CANCER-RELATED DAMAGE TO PETITIONER’S JAW IS COVERED UNDER MEDICAID, IF THERE IS A CONFLICT BETWEEN THE DSS REGULATIONS AND THE DEPARTMENT OF HEALTH’S GUIDELINES, THE REGULATIONS CONTROL (THIRD DEPT).

The Third Department, annulling the Commissioner of Health’s determination, in a full-fledged opinion by Justice McCarthy, sent the matter back with instruction to consider whether there was a conflict between the Medicaid (Department of Social Services, DSS) regulations and the Department of Heath’s (DOH’s) guidelines. If there is a conflict, the regulations prevail. Petitioner’s request for osseous surgery to reconstruct her jaw after damage caused by cancer treatments was denied. The Commissioner had determined the surgery was not covered:

Medicaid does not cover every medically necessary procedure; “medical necessity and coverage are distinct concepts” … . A “medical necessity” analysis is only required and relevant when the requested procedure is covered in the first place. Thus, the initial question is whether osseous surgery is covered by New York’s Medicaid program. * * *

The Commissioner committed an error of law when he determined, based on the Medicaid dental manual and without recognizing a potential conflict between the manual and the regulations, that osseous surgery cannot be a covered service under Medicaid. Due to this error, respondents did not reach other issues. Specifically, there was no determination as to whether petitioner established that her request for prior approval of that surgery should be granted pursuant to the regulation as a “dental service[] required for . . . the relief of pain” (18 NYCRR 506.2 [b] [1]). If she did not meet her burden, there is no conflict between the regulation and guidelines, so the Medicaid dental manual would prevent approval of the surgery. If petitioner did establish that the surgery is required to relieve her pain (which would, perforce, mean that the surgery was medically necessary), the regulations would prevail and the Commissioner must approve the surgery as covered by Medicaid. Because this issue requires factual findings and falls within DOH’s expertise, it should be decided by the agency in the first instance … . Matter of Rovinsky v Zucker, 2018 NY Slip Op 07026, Third Dept 10-18-18

MEDICAID (MATTER REMITTED TO THE COMMISSIONER OF HEALTH TO DETERMINE WHETHER BONE SURGERY TO REPAIR CANCER-RELATED DAMAGE TO PETITIONER’S JAW IS COVERED UNDER MEDICAID, IF THERE IS A CONFLICT BETWEEN THE DSS REGULATIONS AND THE DEPARTMENT OF HEALTH’S GUIDELINES, THE REGULATIONS CONTROL (THIRD DEPT))/ADMINISTRATIVE LAW (MEDICAID COVERAGE, MATTER REMITTED TO THE COMMISSIONER OF HEALTH TO DETERMINE WHETHER BONE SURGERY TO REPAIR CANCER-RELATED DAMAGE TO PETITIONER’S JAW IS COVERED UNDER MEDICAID, IF THERE IS A CONFLICT BETWEEN THE DSS REGULATIONS AND THE DEPARTMENT OF HEALTH’S GUIDELINES, THE REGULATIONS CONTROL (THIRD DEPT))

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DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two-judge dissent, determined that the hard caps imposed by Department of Health (DOH) regulations on the executive compensation and administrative expenditures by healthcare providers receiving public funds were properly promulgated. Another regulation which sought to impose a soft cap was deemed to have exceeded the regulatory powers of the DOH. The court’s anlaysis applied the Boreali factors which address the line between administrative rule-making and legislative policy-making (separation of powers):

In totality, following consideration of the Boreali factors, we are unconvinced that, in adopting the hard cap regulations, DOH exceeded its regulatory authority. The Legislature expressed a policy goal — that state healthcare funds should be expended in the most efficient and effective manner to maximize the quality and availability of public care — and the hard cap regulations, which focus exclusively on the appropriate use of state funds, are directly tied to that goal without improperly subverting it in favor of unrelated public policy interests … . * * *

… [T]he soft cap regulation cannot be said to here “fill in details of a broad policy.” Rather than determining the best way to regulate toward the legislative goal identified in its enabling legislation (i.e., using state funds to purchase affordable, quality care) with respect to the soft cap DOH appears to have envisioned an additional goal of limiting executive compensation as a matter of public policy and regulated to that end. Thus, we agree with the conclusion of the courts below that the soft cap regulation was promulgated in excess of DOH’s administrative authority. Matter of LeadingAge N.Y., Inc. v Shah, 2018 NY Slip Op 06965, CtApp 10-18-18

ADMINISTRATIVE LAW (DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/CONSTITUTIONAL LAW (SEPARATION OF POWERS, DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/EMPLOYMENT LAW (EXECUTIVE COMPENSATION, DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/EXECUTIVE COMPENSATION (HEALTHCARE PROVIDERS, (DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/BOREALI FACTORS (ADMINISTRATIVE LAW, DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/REGULATIONS (ADMINISTRATIVE LAW, DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/DEPARTMENT OF HEALTH (ADMINISTRATIVE LAW, DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))

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COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined that the college’s determination that petitioner-student violated  the code of student conduct was supported by substantial evidence:

“We emphasize that [t]he substantial evidence standard is a minimal standard” … , and “demands only that a given inference is reasonable and plausible, not necessarily the most probable”… . Stated differently, “[r]ationality is what is reviewed under the substantial evidence rule” …; substantial evidence is “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” . Where substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently … .

“[O]ften there is substantial evidence on both sides of an issue disputed before an administrative agency” … . Where substantial evidence exists to support a decision being reviewed by the courts, the determination must be sustained, “irrespective of whether a similar quantum of evidence is available to support other varying conclusions”… . Moreover, hearsay is admissible as competent evidence in an administrative proceeding, and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds … . …

Contrary to petitioner’s argument, the hearsay evidence proffered at the administrative hearing, along with petitioner’s testimony, provides substantial evidence in support of the finding that he violated respondents’ code of conduct. The hearing board also could have reasonably interpreted some of petitioner’s conceded behavior as consciousness of guilt and concluded that his version of the events was not credible. Ultimately, it was the province of the hearing board to resolve any conflicts in the evidence and make credibility determinations. The Appellate Division improperly engaged in a re-weighing of the evidence when it substituted its own factual findings for those of respondents … . Matter of Haug v State Univ. of N.Y. at Potsdam, 2018 NY Slip Op 06964, CtApp 10-18-18

EDUCATION-SCHOOL LAW (COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/EVIDENCE (EDUCATION-SCHOOL LAW, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/ADMINISTRATIVE LAW  (EDUCATION-SCHOOL LAW, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/COLLEGES AND UNIVERSITIES (DISCIPLINARY PROCEEDINGS, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/SUBSTANTIAL EVIDENCE (ADMINISTRATIVE LAW, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))

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APPRENTICES WHO WORK OUTSIDE THE THEIR APPRENTICESHIP TRAINING CANNOT BE PAID THE LOWER APPRENTICE RATES, HERE APPRENTICE GLAZIERS DOING IRONWORK WHEN INSTALLING STOREFRONTS MUST BE PAID AT THE HIGHER JOURNEY-LEVEL RATE (CT APP).

The Court of Appeals, reversing the Appellate Division, determined that the prevailing wage provision of Labor Law 220 was properly interpreted by the Department of Labor (DOL) to mean that apprentices who work outside of their apprenticeship training cannot be paid at the lower apprenticeship rate. Here apprentice glaziers who were doing ironwork when installing storefronts must be paid higher journey-level rates for ironwork:

… [T]he DOL interprets Labor Law § 220 (3-e) to mean that apprentices employed on public work projects may be paid apprentice rates only if they are performing tasks within the trade classification (e.g., “glazier,” “ironworker”) that is the subject of the apprenticeship program in which they are enrolled. Apprentices who are performing tasks, in the installation of storefronts, curtain wall, and preglazed windows, that are classified as ironwork tasks may be paid the apprentice rate only if they are enrolled in an ironworker apprentice program (approved by the DOL), as opposed to a glazier apprentice program. Apprentices learning any trade other than ironwork, including those enrolled in a glazier apprenticeship program, must be paid journey-level ironworker prevailing wages and benefit rates if they are engaged in the parts of a work process that are classified as ironwork tasks. * * *

Given that Labor Law § 220 as a whole was “intended to prevent employers from cutting standards of construction work by hiring an excessive number of unskilled employees, and to ensure that learning-level workers receive approved, supervised training” … , it was rational for the DOL to conclude that section 220 (3-e) prohibits employers from diluting standards by hiring apprentices to perform tasks in trades for which they are not training. International Union of Painters & Allied Trades, Dist. Council No. 4 v New York State Dept. of Labor, 2018 NY Slip Op 06963, CtApp 10-18-18

EMPLOYMENT LAW (LABOR LAW, APPRENTICES WHO WORK OUTSIDE THE THEIR APPRENTICESHIP TRAINING CANNOT BE PAID THE LOWER APPRENTICE RATES, HERE APPRENTICE GLAZIERS DOING IRONWORK WHEN INSTALLING STOREFRONTS MUST BE PAID AT THE HIGHER JOURNEY-LEVEL RATE (CT APP))/LABOR LAW (APPRENTICES WHO WORK OUTSIDE THE THEIR APPRENTICESHIP TRAINING CANNOT BE PAID THE LOWER APPRENTICE RATES, HERE APPRENTICE GLAZIERS DOING IRONWORK WHEN INSTALLING STOREFRONTS MUST BE PAID AT THE HIGHER JOURNEY-LEVEL RATE (CT APP))/ADMINISTRATIVE LAW (DEPARTMENT OF LABOR, APPRENTICES WHO WORK OUTSIDE THE THEIR APPRENTICESHIP TRAINING CANNOT BE PAID THE LOWER APPRENTICE RATES, HERE APPRENTICE GLAZIERS DOING IRONWORK WHEN INSTALLING STOREFRONTS MUST BE PAID AT THE HIGHER JOURNEY-LEVEL RATE (CT APP))/APPRENTICES (LABOR LAW, APPRENTICES WHO WORK OUTSIDE THE THEIR APPRENTICESHIP TRAINING CANNOT BE PAID THE LOWER APPRENTICE RATES, HERE APPRENTICE GLAZIERS DOING IRONWORK WHEN INSTALLING STOREFRONTS MUST BE PAID AT THE HIGHER JOURNEY-LEVEL RATE (CT APP))

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ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, reversing Supreme Court, over a dissent, determined that the NYC “open space” zoning resolution (ZR) requirements can not be satisfied on a building by building basis. The permit allowing the construction of a nursing home facility on a parking  lot, therefore, should not have been issued. The open space on the roof of the proposed building would not be accessible to all who resided on the zoning lot. Such access is part of the definition of “open space:

The language in ZR § 12-10 is “clear and unambiguous” … . ZR § 12-10 has always defined “open space” as being “accessible to and usable by all persons occupying a #dwelling unit# or a #rooming unit# on the #zoning lot#” … . That language unambiguously requires open space to be accessible to all residents of any residential building on the zoning lot, not only the building containing the open space in question. To further bolster our finding that this language is clear and unambiguous, the 2011 amendments to ZR §§ 23-14 and 23-142 eliminated all references to “building” and replaced it with “zoning lot.” Equally dispositive is the identical change in the definition of “open space ratio” in ZR § 12-10. Of course, the impracticality of allowing the residents of one building on a zoning lot to have access to, and use of, open space located on the rooftop of another building on the zoning lot is obvious. Yet, respondents’ apparent contention concerning ZR § 12-10’s open space requirement — that any rooftop that may be considered open space for the purposes of the open space requirement shall or must be considered open space irrespective of access — gives credence to the impracticality. That is not what ZR § 12-10 says.

ZR § 12-10 unambiguously provides that “[o]pen space may be provided on the roof of . . . [a] building containing residences” and that “[a]ll such roof areas used for open space shall meet the requirements set forth in this definition.” Thus, any rooftop space that is to be considered open space for the purposes of satisfying the open space requirement under the Zoning Resolution must be accessible and usable by all residents on a zoning lot. Lest there be any doubt, we find that the 2011 amendments now preclude the use of the building-by-building methodology, which had been an exception to this clear statutory import. Matter of Peyton v New York City Bd. of Stds. & Appeals, 2018 NY Slip Op 06870, First Dept 10-16-18

ZONING (ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))/MUNICIPAL LAW (NYC OPEN SPACE, ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))/ADMINISTRATIVE LAW (NYC OPEN SPACE, ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))/OPEN SPACE (NYC ZONING, ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))

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PETITIONER MUST EXHAUST ITS ADMINISTRATIVE REMEDIES BY APPEALING THE DENIAL OF A BUILDING PERMIT BY THE TOWN BUILDING DEPARTMENT TO THE ZONING BOARD OF APPEALS BEFORE BRINGING A COURT ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner was required to exhaust its administrative remedies by appealing the town building department's ruling to the zoning board of appeals before bringing a court action. Petitioner's request for a permit to put in a convenience store in a rural use district had been denied by the building department:

… [T]he petitioner was required to exhaust its administrative remedies before commencing the instant proceeding/action. The petitioner's constitutional challenges to the Building Department's determination did not excuse the petitioner's failure to exhaust its administrative remedies through an appeal to the Zoning Board of Appeals… . Furthermore, the petitioner did not establish that the Building Department's determination was “wholly beyond its grant of power” or that the pursuit of administrative remedies would cause the petitioner irreparable injury … . Matter of Vineland Commons, LLC v Building Dept. of Town of Riverhead, 2018 NY Slip Op 06748, Second Dept 10-10-18

ZONING (PETITIONER MUST EXHAUST ITS ADMINISTRATIVE REMEDIES BY APPEALING THE DENIAL OF A BUILDING PERMIT BY THE TOWN BUILDING DEPARTMENT TO THE ZONING BOARD OF APPEALS BEFORE BRINGING A COURT ACTION (SECOND DEPT))/CIVIL PROCEDURE (ZONING, PETITIONER MUST EXHAUST ITS ADMINISTRATIVE REMEDIES BY APPEALING THE DENIAL OF A BUILDING PERMIT BY THE TOWN BUILDING DEPARTMENT TO THE ZONING BOARD OF APPEALS BEFORE BRINGING A COURT ACTION (SECOND DEPT))/ADMINISTRATIVE LAW (ZONING, CIVIL PROCEDURE (ZONING, PETITIONER MUST EXHAUST ITS ADMINISTRATIVE REMEDIES BY APPEALING THE DENIAL OF A BUILDING PERMIT BY THE TOWN BUILDING DEPARTMENT TO THE ZONING BOARD OF APPEALS BEFORE BRINGING A COURT ACTION (SECOND DEPT))

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SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT). ​

The Third Department, over a two-justice dissent, affirmed the Workers' Compensation Board's finding that claimant's shoulder injury was not compensable because it did not arise out of and in the course of her employment. Claimant's injury occurred when she scanned her parking pass to enter a parking garage. The garage was not owned by her employer, but there were spaces reserved for employees and the employer paid for parking. The majority found sufficient evidence to support the Board's ruling. But the dissenters argued this was not a case which required weighing conflicting evidence, therefore precedent allowing recovery for injuries in employee parking areas should control:

In concluding that claimant's injury was not compensable, the Board found that the parking garage was utilized by members of the public, as well as other businesses located within the same building as the employer. The Board further noted that the employer did not own or maintain the garage. These facts, which the Board credited, lead to the conclusion that the employer did not extend its premises to the area where claimant's injury occurred … . Although facts exist that would support a contrary result, given that substantial evidence supports the Board's decision, we discern no basis to disturb it … .

From the dissent: We respectfully dissent. The proper disposition of this case is not based upon our substantial evidence standard of review, as this is not a case where the Workers' Compensation Board was weighing and balancing conflicting evidence. There was no relevant conflicting evidence. The location and circumstances of the underlying event are not disputed; claimant does not challenge the factual findings, but instead addresses the appeal solely to the resulting legal determination. In this case, the Board was required to apply the policy established by precedent to the relevant undisputed facts. As the Board failed to properly apply this precedent in rendering the determination, we would reverse, based upon the law. Matter of Grover v State Ins. Fund, 2018 NY Slip Op 06601, Third Dept 10-4-18

WORKERS' COMPENSATION LAW (SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT))/ADMINISTRATIVE LAW (WORKERS' COMPENSATION LAW, (SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT))/PARKING GARAGES (WORKERS' COMPENSATION LAW, (SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT))

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NYC HUMAN RIGHTS LAW PROTECTS AGAINST TERMINATION BASED UPON AN EMPLOYEE’S MARRIAGE TO A PARTICULAR PERSON WHO HAD LEFT TO WORK FOR A COMPETITOR, THERE WAS NO NEED TO ALLEGE THAT THE EMPLOYER WAS BIASED AGAINST MARRIED COUPLES GENERALLY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, in a matter of first impression, determined that terminating a person the employer (Fidessa) believed was married to another employee who had left to work for a competing employer stated a cause of action for discrimination based upon marital status under the New York City Human Rights Law:

The City HRL states, in relevant part: “It shall be an unlawful discriminatory practice: (a) For an employer or an employee or agent thereof, because of the actual or perceived . . . marital status . . .(2) To refuse to hire or employ or to bar or to discharge from employment such person or (3) To discriminate against such person in compensation or in terms, conditions or privileges of employment” … .

From the complaint it appears that Fidessa treated plaintiff and his partner differently from [a] similarly situated couple based on its perception that they were married to one another and the members of the other couple were not. Thus, the question is whether discrimination based on “marital status” encompasses discrimination based on marital status in relation to a person relevant to Fidessa. In other words, is an employer prohibited from discharging an employee because of the employee's marriage to a particular person.

For the purposes of this analysis, the fact that defendant was not alleged to be “biased against” married couples in all circumstances is of no moment: the factor in terminating plaintiff's employment was plaintiff's marital status in relation to the employee who left the company. Thus, plaintiff's termination was based on his marital status. Morse v Fidessa Corp., 2018 NY Slip Op 05975, First Dept 9-6-18

HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION, NYC HUMAN RIGHTS LAW PROTECTS AGAINST TERMINATION BASED UPON AN EMPLOYEE'S MARRIAGE TO A PARTICULAR PERSON WHO HAD LEFT TO WORK FOR A COMPETITOR, THERE WAS NO NEED TO ALLEGE THAT THE  EMPLOYER WAS BIASED AGAINST MARRIED COUPLES GENERALLY  (FIRST DEPT))/EMPLOYMENT LAW (EMPLOYMENT DISCRIMINATION, NYC HUMAN RIGHTS LAW PROTECTS AGAINST TERMINATION BASED UPON AN EMPLOYEE'S MARRIAGE TO A PARTICULAR PERSON WHO HAD LEFT TO WORK FOR A COMPETITOR, THERE WAS NO NEED TO ALLEGE THAT THE  EMPLOYER WAS BIASED AGAINST MARRIED COUPLES GENERALLY  (FIRST DEPT))/ADMINISTRATIVE LAW (EMPLOYMENT DISCRIMINATION, NYC HUMAN RIGHTS LAW PROTECTS AGAINST TERMINATION BASED UPON AN EMPLOYEE'S MARRIAGE TO A PARTICULAR PERSON WHO HAD LEFT TO WORK FOR A COMPETITOR, THERE WAS NO NEED TO ALLEGE THAT THE  EMPLOYER WAS BIASED AGAINST MARRIED COUPLES GENERALLY  (FIRST DEPT))/MARITAL STATUS (EMPLOYMENT DISCRIMINATION, NYC HUMAN RIGHTS LAW PROTECTS AGAINST TERMINATION BASED UPON AN EMPLOYEE'S MARRIAGE TO A PARTICULAR PERSON WHO HAD LEFT TO WORK FOR A COMPETITOR, THERE WAS NO NEED TO ALLEGE THAT THE  EMPLOYER WAS BIASED AGAINST MARRIED COUPLES GENERALLY  (FIRST DEPT))

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TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT’S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT).

The Second Department determined the town planning board's rescission of a 1987 negative declaration under the State Environmental Quality Review Act (SEQRA) was proper. The board found that the regulatory landscape in 2013 constituted new information or a change in circumstances justifying rescission. The court noted that its review powers are limited to whether the board's action satisfied SEQRA procedurally and substantively, and cannot include determining whether the board was “correct:”

The record supports the Planning Board's conclusion that changes in the regulatory landscape for environmental matters constituted new information or a change in circumstances … . Moreover, in determining that the project may result in significant adverse environmental impacts, the Planning Board identified specific environmental concerns relevant to the criteria for determining significance … .

The petitioners argue that the Planning Board's conclusion was incorrect. However, “it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively” … . Our review is limited to “whether the agency procedures were lawful and whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination” … . Here, the Planning Board satisfied this standard. Leonard v Planning Bd. of the Town of Union Vale, 2018 NY Slip Op 05757, Second Dept 8-15-18

ENVIRONMENTAL LAW (TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT'S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT'S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT))/ADMINISTRATIVE LAW (ENVIRONMENTAL LAW, TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT'S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT))/APPEALS (ADMINISTRATIVE LAW, ENVIRONMENTAL LAW, TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT'S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT))

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OWNER PROPERLY FOUND RESPONSIBLE FOR REFUNDING OVERCHARGES COLLECTED BY THE PRIME TENANT WHICH HAD CREATED AN ILLUSORY TENANCY TO CIRCUMVENT THE NYC RENT STABILIZATION LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that the NYC Department of Housing and Community Renewal (DHCR) had the authority to sua sponte vacate a nonfinal order under the Rent Stabilization Code and DHCR correctly found that petitioner 333 East 49th Partnership, LP (the owner) was responsible for refunding the overcharge collected by the prime tenant, on the grounds that the prime tenant created an illusory tenancy. The opinion is complex and comprehensive and cannot be fairly summarized here:

Section 2529.9 of the Rent Stabilization Code * * * authorizes DHCR to reopen, sua sponte, a proceeding at any time upon a finding of irregularity of vital matters, fraud or illegality, upon notice to the parties … . * * *

The rent stabilization laws [RSL] are designed “to prevent exactions of unjust, unreasonable and oppressive rents and rental agreements and to forestall profiteering, speculation and other disruptive practices … . The Rent Stabilization Code expressly provides that the legal regulated rents and other requirements “shall not be evaded, either directly or indirectly, in connection with the renting or leasing or the transfer of a lease for housing accommodations” … .

An illusory tenancy exists when the prime tenant rents an apartment for the sole purpose of re-leasing it, at a profit, or otherwise subverts the protections of the RSL … .

DHCR’s finding that the owner may be held accountable for the overcharge is not irrational or arbitrary and capricious. DHCR is not restricted, as the owner argues, to only take into account whether the owner overcharged the subtenant and actually collected rent in excess of the lawful stabilized rent. Rather, DHCR may consider that the owner “derived substantial benefits from the scheme and was aware of the nature of [the prime tenant’s] activities” … . * * *

Rent Stabilization Code 2526.1(a)(1) imposes treble damages upon owners who “have collected any rent . . . in excess of the legal regulated rent” … . However, as noted above, RSL 26-511(c)(12)(e) merely states that “where a tenant violates the provisions of subparagraph (a)” with regard to overcharging a subtenant, “the subtenant shall be entitled to damages of three times the overcharge” … . DHCR’s interpretation of these statutes to impose treble damages upon the owner, under these circumstances, is rational and thus, entitled to deference … .  Matter of 333 E. 49th Partnership, LP v New York State Div. of Hous. & Community Renewal, 2018 NY Slip Op 05735, First Dept 8-9-18

LANDLORD-TENANT (RENT STABILIZATION LAW, OWNER PROPERLY FOUND RESPONSIBLE FOR REFUNDING OVERCHARGES COLLECTED BY THE PRIME TENANT WHICH HAD CREATED AN ILLUSORY TENANCY TO CIRCUMVENT THE RENT STABILIZATION LAW (FIRST DEPT))/MUNICIPAL LAW (NYC, RENT STABILIZATION LAW, OWNER PROPERLY FOUND RESPONSIBLE FOR REFUNDING OVERCHARGES COLLECTED BY THE PRIME TENANT WHICH HAD CREATED AN ILLUSORY TENANCY TO CIRCUMVENT THE RENT STABILIZATION LAW (FIRST DEPT))/RENT STABILIZATION LAW (NYC, OWNER PROPERLY FOUND RESPONSIBLE FOR REFUNDING OVERCHARGES COLLECTED BY THE PRIME TENANT WHICH HAD CREATED AN ILLUSORY TENANCY TO CIRCUMVENT THE RENT STABILIZATION LAW (FIRST DEPT))/ILLUSORY TENANT (RENT STABILIZATION LAW, OWNER PROPERLY FOUND RESPONSIBLE FOR REFUNDING OVERCHARGES COLLECTED BY THE PRIME TENANT WHICH HAD CREATED AN ILLUSORY TENANCY TO CIRCUMVENT THE RENT STABILIZATION LAW (FIRST DEPT))

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