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BECAUSE SUBSTANTIAL EVIDENCE SUPPORTED THE NYC COMMISSION ON HUMAN RIGHTS’ RULING THAT CONSTRUCTION OF A HANDICAPPED ACCESSIBLE ENTRANCE WOULD NOT CAUSE UNDUE HARDSHIP TO THE PROPERTY OWNERS APPELLATE REVIEW CAN GO NO FURTHER, EXTENSIVE TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, over a two-judge dissenting opinion, determined that substantial evidence supported the NYC Commission on Human Rights’ ruling that the conversion of a window to a handicapped-accessible entrance for a tenant in petitioners’ building would not cause petitioners undue hardship. The dissent argued petitioners had carried their burden of proof on that issue by presenting evidence the conversion presented many structural issues which might necessitate evacuation of the building. The majority simply decided there was sufficient evidence to support the Commission’s ruling and an appellate court’s review power stops there:

In light of the Commission’s ruling in favor of respondents and because petitioners have the burden of demonstrating undue hardship … , the issue is whether there is substantial evidence to support the Commission’s conclusion that petitioners failed to carry that burden.

“Quite often there is substantial evidence on both sides” of an issue disputed before an administrative agency … , and the substantial evidence test “demands only that a given inference is reasonable and plausible, not necessarily the most probable” … . Applying this standard, “[c]ourts may not weigh the evidence or reject [a] determination where the evidence is conflicting and room for choice exists” … . Instead, “when a rational basis for the conclusion adopted by the [agency] is found, the judicial function is exhausted. The question, thus, is not whether [the reviewing court] find[s] the proof . . . convincing, but whether the [agency] could do so” … . Matter of Marine Holdings, LLC v New York City Commn. on Human Rights, 2018 NY Slip Op 03303, CtApp 5-8-18

​ADMINISTRATIVE LAW (EVIDENCE, BECAUSE SUBSTANTIAL EVIDENCE SUPPORTED THE NYC COMMISSION ON HUMAN RIGHTS’S RULING THAT CONSTRUCTION OF A HANDICAPPED ACCESSIBLE ENTRANCE WOULD NOT CAUSE UNDUE HARDSHIP TO THE PROPERTY OWNERS APPELLATE REVIEW CAN GO NO FURTHER, EXTENSIVE TWO-JUDGE DISSENT (CT APP))/EVIDENCE (ADMINISTRATIVE LAW, WOULD NOT CAUSE UNDUE HARDSHIP TO THE PROPERTY OWNERS APPELLATE REVIEW CAN GO NO FURTHER, EXTENSIVE TWO-JUDGE DISSENT (CT APP))/APPEALS (ADMINISTRATIVE LAW, BECAUSE SUBSTANTIAL EVIDENCE SUPPORTED THE NYC COMMISSION ON HUMAN RIGHTS’S RULING THAT CONSTRUCTION OF A HANDICAPPED ACCESSIBLE ENTRANCE WOULD NOT CAUSE UNDUE HARDSHIP TO THE PROPERTY OWNERS APPELLATE REVIEW CAN GO NO FURTHER, EXTENSIVE TWO-JUDGE DISSENT (CT APP))

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NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR) ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT RULED THE MAXIMUM COLLECTIBLE RENT FOR AN APARTMENT WAS $125 PER MONTH, THE RENT HAD REMAINED LOW FOR DECADES BECAUSE THE APARTMENT HOUSE HAD BEEN OWNED AND RESIDED IN BY FAMILY MEMBERS (SECOND DEPT).

The Second Department, over an extensive dissent, determined the New York State Division of Housing and Community Renewal (DHCR) acted arbitrarily and capriciously when it held that the current maximum collectible rent for the subject apartment is $125 per month. The apartment house had been owned and resided in by family members since 1941. The petitioner bought property in 2000:

… [E]ven assuming that the petitioner was aware or should have been aware of the subject apartment’s rent-controlled status at the time he purchased the building, this factor is not determinative. While an owner’s lack of such awareness may be considered in determining the maximum rent … , there is no requirement in 9 NYCRR 2202.7 that an owner lack prior knowledge of the regulated status of its premises in order to receive an increase in the maximum rent. Rather, … that provision solely requires “the presence of unique or peculiar circumstances” … , which are present in this case. Those circumstances have resulted in the same monthly rent of $125 being paid for the subject two-bedroom apartment since 1961, which is clearly substantially lower than rents generally prevailing in the same area for substantially similar housing accommodations … , and “there are issues of fairness and equity” that must be considered in setting an appropriate present day rent for the subject apartment … . Matter of Migliaccio v New York State Div. of Hous. & Community Renewal, 2018 NY Slip Op 03132, Second Dept 5-2-18

​LANDLORD-TENANT (NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR) ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT RULED THE MAXIMUM COLLECTIBLE RENT FOR AN APARTMENT WAS $125 PER MONTH, THE RENT HAD REMAINED LOW FOR DECADES BECAUSE THE APARTMENT HOUSE HAD BEEN OWNED AND RESIDED IN BY FAMILY MEMBERS (SECOND DEPT))/ADMINISTRATIVE LAW (LANDLORD-TENANT, NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR) ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT RULED THE MAXIMUM COLLECTIBLE RENT FOR AN APARTMENT WAS $125 PER MONTH, THE RENT HAD REMAINED LOW FOR DECADES BECAUSE THE APARTMENT HOUSE HAD BEEN OWNED AND RESIDED IN BY FAMILY MEMBERS (SECOND DEPT))/RENT CONTROL (NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR) ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT RULED THE MAXIMUM COLLECTIBLE RENT FOR AN APARTMENT WAS $125 PER MONTH, THE RENT HAD REMAINED LOW FOR DECADES BECAUSE THE APARTMENT HOUSE HAD BEEN OWNED AND RESIDED IN BY FAMILY MEMBERS (SECOND DEPT))

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CREDIT UNION WHICH HOLDS SECURITY INTERESTS IN OVER 1400 TAXICAB MEDALLIONS DID NOT HAVE STANDING TO CONTEST THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION’S (TLC’S) RULING ALLOWING UBER TO PICK UP PASSENGERS VIA SMARTPHONE (SECOND DEPT).

The Second Department determined the petitioner credit union (Progressive) which holds security interests in over 1400 taxicab medallions as collateral for over $700 million in loans did not have standing to contest the New York City Taxi and Limousine Commissions (TLC) ruling allowing Uber to pick up passengers via smartphone:

Although it is clear that Progressive would suffer an injury different from that of the public at large, it failed to adequately allege that it would suffer direct harm as a result of the TLC’s purported failure to enforce taxicab medallion owners’ exclusive right to hails. Progressive’s alleged injury—the “deteriorating financial condition of [its] medallion loan portfolio”—is an indirect consequence of the injuries that it alleged were suffered by medallion owners … . …

The alleged impairment of Progressive’s security interests in thousands of taxicab medallions does not fall within the relevant zone of interests sought to be protected by the … laws and rules [governing the TLC]. … .

… Progressive failed to demonstrate that the interests it sought to assert, i.e., protecting medallion owners’ exclusive right to hails, were germane to its organizational purposes and that its “mission makes it an appropriate representative of its members’ interests” … . Matter of Melrose Credit Union v City of New York, 2018 NY Slip Op 03131, Second Dept 5-2-18

​ADMINISTRATIVE LAW (MUNICIPAL LAW (NYC), TAXIS, UBER, CREDIT UNION WHICH HOLDS SECURITY INTERESTS IN OVER 1400 TAXICAB MEDALLIONS DID NOT HAVE STANDING TO CONTEST THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION’S (TLC’S) RULING ALLOWING UBER TO PICK UP PASSENGERS VIA SMARTPHONE (SECOND DEPT))/MUNICIPAL LAW (TAXIS, UBER, CREDIT UNION WHICH HOLDS SECURITY INTERESTS IN OVER 1400 TAXICAB MEDALLIONS DID NOT HAVE STANDING TO CONTEST THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION’S (TLC’S) RULING ALLOWING UBER TO PICK UP PASSENGERS VIA SMARTPHONE (SECOND DEPT))/CIVIL PROCEDURE (STANDING, MUNICIPAL LAW (NYC), CREDIT UNION WHICH HOLDS SECURITY INTERESTS IN OVER 1400 TAXICAB MEDALLIONS DID NOT HAVE STANDING TO CONTEST THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION’S (TLC’S) RULING ALLOWING UBER TO PICK UP PASSENGERS VIA SMARTPHONE (SECOND DEPT))/STANDING (MUNICIPAL LAW (NYC), ADMINISTRATIVE LAW, CREDIT UNION WHICH HOLDS SECURITY INTERESTS IN OVER 1400 TAXICAB MEDALLIONS DID NOT HAVE STANDING TO CONTEST THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION’S (TLC’S) RULING ALLOWING UBER TO PICK UP PASSENGERS VIA SMARTPHONE (SECOND DEPT))/TAXIS CREDIT UNION WHICH HOLDS SECURITY INTERESTS IN OVER 1400 TAXICAB MEDALLIONS DID NOT HAVE STANDING TO CONTEST THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION’S (TLC’S) RULING ALLOWING UBER TO PICK UP PASSENGERS VIA SMARTPHONE (SECOND DEPT))/UBER  CREDIT UNION WHICH HOLDS SECURITY INTERESTS IN OVER 1400 TAXICAB MEDALLIONS DID NOT HAVE STANDING TO CONTEST THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION’S (TLC’S) RULING ALLOWING UBER TO PICK UP PASSENGERS VIA SMARTPHONE (SECOND DEPT))

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ALLOWING UBER DRIVERS TO PICK UP PASSENGERS VIA SMARTPHONE APPLICATION IS NOT AN UNCONSTITUTIONAL TAKING OF THE PROPERTY OF TAXI CAB AND LIMOUSINE DRIVERS (SECOND DEPT).

The Second Department determined the decision of the New York City Taxi and Limousine Commission (TLC) to allow companies such as Uber to pick up passengers via a smartphone application did not constitute an unconstitutional taking of the property of the petitioners, taxi cab and limousine drivers. The decision is complex and comprehensive, and can not be fairly summarized here:

… [W]e agree with the Supreme Court’s determination that the TLC’s alleged decision to “allow black cars to pick up e-hails” did not, as a matter of law, constitute an unconstitutional taking of the petitioners’ property … . The crux of the petitioners’ claim is that the TLC’s decision to “allow black cars to pick up e-hails” has diminished the value of their medallions, decreased the number of taxicab trips per day, and reduced their medallion income. However, ” [p]roperty’ does not include a right to be free from competition”… . Accordingly, the TLC’s decision to allow companies such as Uber to pick up passengers via a smartphone application does not interfere with a taxicab’s use of its medallion or exclusive right to pick up passengers via street hail. Matter of Glyka Trans, LLC v City of New York, 2018 NY Slip Op 03129, Second Dept 5-2-18

ADMINISTRATIVE LAW (MUNICIPAL LAW, NEW YORK CITY TAXI AND LIMOUSINE COMMISSION, ALLOWING UBER DRIVERS TO PICK UP PASSENGERS VIA SMARTPHONE APPLICATION IS NOT AN UNCONSTITUTIONAL TAKING OF THE PROPERTY OF TAXI CAB AND LIMOUSINE DRIVERS (SECOND DEPT))/MUNICIPAL LAW (NEW YORK CITY TAXI AND LIMOUSINE COMMISSION, ALLOWING UBER DRIVERS TO PICK UP PASSENGERS VIA SMARTPHONE APPLICATION IS NOT AN UNCONSTITUTIONAL TAKING OF THE PROPERTY OF TAXI CAB AND LIMOUSINE DRIVERS (SECOND DEPT))/CONSTITUTIONAL LAW (UBER, TAXIS, ALLOWING UBER DRIVERS TO PICK UP PASSENGERS VIA SMARTPHONE APPLICATION IS NOT AN UNCONSTITUTIONAL TAKING OF THE PROPERTY OF TAXI CAB AND LIMOUSINE DRIVERS (SECOND DEPT))/UBER (MUNICIPAL LAW, NEW YORK CITY TAXI AND LIMOUSINE COMMISSION, ALLOWING UBER DRIVERS TO PICK UP PASSENGERS VIA SMARTPHONE APPLICATION IS NOT AN UNCONSTITUTIONAL TAKING OF THE PROPERTY OF TAXI CAB AND LIMOUSINE DRIVERS (SECOND DEPT))/TAXIS (MUNICIPAL LAW, NEW YORK CITY TAXI AND LIMOUSINE COMMISSION, ALLOWING UBER DRIVERS TO PICK UP PASSENGERS VIA SMARTPHONE APPLICATION IS NOT AN UNCONSTITUTIONAL TAKING OF THE PROPERTY OF TAXI CAB AND LIMOUSINE DRIVERS (SECOND DEPT))

ONE YEAR SUSPENSION OF PETITIONER’S DRIVER’S LICENSE SHOCKED ONE’S SENSE OF FAIRNESS, SUPREME COURT REVERSED, MATTER REMITTED TO THE COMMISSIONER OF MOTOR VEHICLES FOR IMPOSITION OF A 60 DAY SUSPENSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a one year suspension of petitioner’s driver’s license shocked one’s sense of fairness and remitted the matter to the Commissioner of Motor Vehicles to impose a 60 day suspension (the facts were not described):

“An administrative penalty must be upheld unless it is so disproportionate to the offense . . . as to be shocking to one’s sense of fairness,’ thus constituting an abuse of discretion as a matter of law”… . This Court has no discretionary authority or interest of justice jurisdiction to review the penalty imposed in a CPLR article 78 proceeding … . Here, under the unique facts and circumstances of this particular case, the penalty imposed of a one-year suspension of the petitioner’s driver license was so disproportionate to the offense as to be shocking to one’s sense of fairness, thus constituting an abuse of discretion as a matter of law … . Matter of Clapp v Fiala, 2018 NY Slip Op 02778, Second Dept 4-25-18

ADMINISTRATIVE LAW (ONE YEAR SUSPENSION OF PETITIONER’S DRIVER’S LICENSE SHOCKED ONE’S SENSE OF FAIRNESS, SUPREME COURT REVERSED, MATTER REMITTED TO THE COMMISSIONER OF MOTOR VEHICLES FOR IMPOSITION OF A 60 DAY SUSPENSION (SECOND DEPT))/DRIVER’S LICENSE (ONE YEAR SUSPENSION OF PETITIONER’S DRIVER’S LICENSE SHOCKED ONE’S SENSE OF FAIRNESS, SUPREME COURT REVERSED, MATTER REMITTED TO THE COMMISSIONER OF MOTOR VEHICLES FOR IMPOSITION OF A 60 DAY SUSPENSION (SECOND DEPT))/SUSPENSION, DRIVER’S LICENSE, ONE YEAR SUSPENSION OF PETITIONER’S DRIVER’S LICENSE SHOCKED ONE’S SENSE OF FAIRNESS, SUPREME COURT REVERSED, MATTER REMITTED TO THE COMMISSIONER OF MOTOR VEHICLES FOR IMPOSITION OF A 60 DAY SUSPENSION (SECOND DEPT))/MOTOR VEHICLES, COMMISSIONER  (ONE YEAR SUSPENSION OF PETITIONER’S DRIVER’S LICENSE SHOCKED ONE’S SENSE OF FAIRNESS, SUPREME COURT REVERSED, MATTER REMITTED TO THE COMMISSIONER OF MOTOR VEHICLES FOR IMPOSITION OF A 60 DAY SUSPENSION (SECOND DEPT))

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FACTS WHICH LED TO A PROCEEDING THAT WAS ULTIMATELY SEALED AND HEARSAY ARE ADMISSIBLE AT ADMINISTRATIVE HEARINGS, THE NEW YORK CITY HOUSING AUTHORITY DID NOT VIOLATE PETITIONER’S DUE PROCESS RIGHTS IN THIS DRUG ACTIVITY-DELINQUENT RENT ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, noted that an administrative tribunal can consider the facts which led up to a record which is sealed and hearsay can be considered at an administrative hearing. The matter which was before the New York City Housing Authority (NYCHA) concerned drug activity at an apartment and rent delinquency. Supreme Court had held that petitioner’s due process rights were violated (reversed by the First Department):

… [T]he IAS court erred in rejecting the arresting officer’s testimony because the underlying criminal proceeding against petitioner had been dismissed and sealed. The sealing of a criminal case will not immunize a defendant against all future consequences of the charges, and an administrative tribunal is permitted to consider evidence of the facts leading to those charges when they are independent of the sealed records… . The IAS court’s finding that the officer’s testimony was improperly based on sealed records, rather than his independent recollection, was simply not accurate. Regardless, the “reception of erroneously unsealed evidence at [an administrative] hearing does not, without more, require annulment of respondent’s determination” … .

The IAS court also improperly rejected the officer’s testimony as impermissible hearsay. It is well-settled that hearsay is admissible in administrative proceedings, that it may be the basis for an administrative determination and — if sufficiently relevant and probative — may constitute substantial evidence alone … . Petitioner did not suffer any due process violation at the hands of NYCHA. Matter of Rosa v New York City Hous. Auth., Straus Houses, 2018 NY Slip Op 02552, First Dept 4-12-18

​ADMINISTRATIVE LAW (FACTS WHICH LED TO A PROCEEDING THAT WAS ULTIMATELY SEALED AND HEARSAY ARE ADMISSIBLE AT ADMINISTRATIVE HEARINGS, THE NEW YORK CITY HOUSING AUTHORITY DID NOT VIOLATE PETITIONER’S DUE PROCESS RIGHTS IN THIS DRUG ACTIVITY-DELINQUENT RENT ACTION (FIRST DEPT))/EVIDENCE (ADMINISTRATIVE LAW, SEALED RECORDS, HEARSAY, FACTS WHICH LED TO A PROCEEDING THAT WAS ULTIMATELY SEALED AND HEARSAY ARE ADMISSIBLE AT ADMINISTRATIVE HEARINGS, THE NEW YORK CITY HOUSING AUTHORITY DID NOT VIOLATE PETITIONER’S DUE PROCESS RIGHTS IN THIS DRUG ACTIVITY-DELINQUENT RENT ACTION (FIRST DEPT))/SEALED RECORDS (ADMINISTRATIVE LAW, FACTS WHICH LED TO A PROCEEDING THAT WAS ULTIMATELY SEALED AND HEARSAY ARE ADMISSIBLE AT ADMINISTRATIVE HEARINGS, THE NEW YORK CITY HOUSING AUTHORITY DID NOT VIOLATE PETITIONER’S DUE PROCESS RIGHTS IN THIS DRUG ACTIVITY-DELINQUENT RENT ACTION (FIRST DEPT))/HEARSAY (ADMINISTRATIVE LAW, FACTS WHICH LED TO A PROCEEDING THAT WAS ULTIMATELY SEALED AND HEARSAY ARE ADMISSIBLE AT ADMINISTRATIVE HEARINGS, THE NEW YORK CITY HOUSING AUTHORITY DID NOT VIOLATE PETITIONER’S DUE PROCESS RIGHTS IN THIS DRUG ACTIVITY-DELINQUENT RENT ACTION (FIRST DEPT))

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APPLYING THE CLEAR AND CONVINCING EVIDENTIARY STANDARD, THE DEPARTMENT OF MOTOR VEHICLES’ (DMV’S) SUSPENSION OF PETITIONER BUS DRIVER’S LICENSE BASED UPON STRIKING A PEDESTRIAN WAS NOT SUPPORTED BY EVIDENCE OF THE EXTENT OF THE INJURY OR ANY CONNECTION BETWEEN THE INJURY AND THE PEDESTRIAN’S DEATH A MONTH LATER, DETERMINATION ANNULLED AND LICENSE REINSTATED (FIRST DEPT).

The First Department, annulling the determination of the Department of Motor Vehicles (DMV), over a two-justice dissenting opinion, determined the record did not support the suspension of petitioner-bus-driver’s license for a violation of Vehicle and Traffic Law 1146. The court noted that the standard of proof in the DMV hearing is “clear and convincing” and the standard of proof in the instant Article 78 proceeding is “substantial evidence.” Effectively, therefore, the “clear and convincing” standard applies to the Article 78. Here, on a dark and rainy night, an 88-year-old pedestrian apparently came into contact with the bus in the crosswalk when the bus was turning. The man died a month later. In the opinion of the majority, the hearing evidence did not demonstrate how seriously the man was injured by the bus, or a connection between any injury and the man’s death a month later:

Here, DMV was required to establish that petitioner violated Vehicle and Traffic Law § 1146(c)(1), which imposes liability on “[a] driver of a motor vehicle who causes serious physical injury as defined in article ten of the penal law to a pedestrian or bicyclist while failing to exercise due care.” The referenced definition of “serious physical injury” includes “physical injury . . . which causes death,” … which is presumably the basis for the charge against petitioner since he was not issued a summons until after the pedestrian died in the hospital. Thus, DMV was required to present clear and convincing evidence of both failure to exercise care and that such failure led to the pedestrian’s demise. * * *

To be sure, one could speculate, as does the dissent, that the pedestrian suffered a “serious physical injury.” But to engage in speculation would be to ignore the underlying standard of clear and convincing evidence, which even the dissent agrees applied in the administrative proceeding and is relevant to our review. “Clear and convincing evidence is evidence that satisfies the factfinder that it is highly probable that what is claimed actually happened . . . and it is evidence that is neither equivocal nor open to opposing presumptions”… . Given that standard, and the remarkable lack of compelling evidence before us, we would be abdicating our role were we simply to defer to the conclusions drawn by the Administrative Law Judge, and raising a serious question as to the very purpose of having any appellate review in this matter. Matter of Seon v New York State Dept. of Motor Vehs., 2018 NY Slip Op 02240, First Dept 3-29-18

 

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FINDING THAT PETITIONER HAD NONCONSENSUAL SEX WITH ANOTHER COLLEGE STUDENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND RECORD EXPUNGED (FOURTH DEPT).

The Fourth Department, annulling the respondent-college’s determination and expunging the petitioner-student’s record, determined the finding that the petitioner had nonconsensual sex with another student was not supported by substantial evidence:

Respondent sanctioned petitioner by placing him on persona non grata status, barring him from the college campus, and making a notation of a disciplinary violation on petitioner’s academic transcript. This Court may review whether “the determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence” … . “Substantial evidence” is defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”… . We conclude that respondent’s determination that the complainant lacked the ability to consent because of her incapacitation is not supported by substantial evidence. The complainant’s testimony at the disciplinary hearing contradicted her version with respect to the sequence of events made in her statement to the Buffalo Police Department, which statement was the most contemporaneous to the incident. Moreover, the affidavit and testimony of the witness who was with the complainant the morning following the incident was consistent with the complainant’s earlier version of the sequence of events, which establishes that she could not have been incapacitated at the time of the incident. Thus, considering the record as a whole, respondent’s determination is not supported by substantial evidence and must be annulled … . Matter of West v State Univ. of N.Y. at Buffalo, 2018 NY Slip Op 01839, Fourth Dept 3-16-18

EDUCATION-SCHOOL LAW (FINDING THAT PETITIONER HAD NONCONSENSUAL SEX WITH ANOTHER COLLEGE STUDENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND RECORD EXPUNGED (FOURTH DEPT))/COLLEGES AND UNIVERSITIES (FINDING THAT PETITIONER HAD NONCONSENSUAL SEX WITH ANOTHER COLLEGE STUDENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND RECORD EXPUNGED (FOURTH DEPT))/SEXUAL MISCONDUCT (COLLEGES AND UNIVERSITIES, FINDING THAT PETITIONER HAD NONCONSENSUAL SEX WITH ANOTHER COLLEGE STUDENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND RECORD EXPUNGED (FOURTH DEPT))/DISCIPLINARY PROCEEDINGS (COLLEGES AND UNIVERSITIES) (FINDING THAT PETITIONER HAD NONCONSENSUAL SEX WITH ANOTHER COLLEGE STUDENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND RECORD EXPUNGED (FOURTH DEPT))/ADMINISTRATIVE LAW (COLLEGES AND UNIVERSITIES, FINDING THAT PETITIONER HAD NONCONSENSUAL SEX WITH ANOTHER COLLEGE STUDENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND RECORD EXPUNGED (FOURTH DEPT))/EVIDENCE (ADMINISTRATIVE LAW, COLLEGES AND UNIVERSITIES, FINDING THAT PETITIONER HAD NONCONSENSUAL SEX WITH ANOTHER COLLEGE STUDENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND RECORD EXPUNGED (FOURTH DEPT))

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FORMER COMMISSIONER OF ENVIRONMENTAL CONSERVATION DID NOT HAVE THE AUTHORITY TO REVISIT A PRIOR FINDING THAT A ROAD WITHIN THE ADIRONDACK PARK HAD NOT BEEN ABANDONED AND THEREFORE COULD BE USED BY SNOWMOBILERS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, annulled the former Commissioner of Environmental Conservation’s determination that a road within the Adirondack Park had been abandoned and therefore could not be used by snowmobilers. The determination reversed an earlier determination that the road had not been abandoned. The second determination was made pursuant to the Department of Environmental Conservation’s (DEC’s) motion to clarify. The Third Department held that, although titled a motion to clarify, the motion was actually a motion to reconsider, the criteria for which were not met:

The motion was, in effect, one to reconsider the 2009 determination. Yet, no statutory authority exists for DEC to reconsider a final determination issued in an administrative enforcement proceeding. … While the regulations governing enforcement proceedings allow a Commissioner to reopen the hearing record to consider “significant new evidence,” the Commissioner may only do so “prior to issuing the final [determination]” … .

“In the absence of any statutory [or regulatory] reservation of discretionary agency authority to reconsider its determinations, New York applies a long-standing policy of finality to the . . . determinations of an administrative agency” … . “Public officers or agents who exercise judgment and discretion in the performance of their duties may not revoke their [quasi-judicial] determinations nor review their own orders once properly and finally made, however much they may have erred in judgment on the facts, even though injustice is the result” … . This is not to say, of course, that an administrative body may never reconsider a previously issued final determination. Under settled law, a final agency determination may be corrected if it suffers from an error that “was the result of illegality, irregularity in vital matters, or fraud”… . Likewise, an agency has the inherent authority to reconsider a prior determination to “correct its erroneous interpretations of the law” … , or upon a showing of new information or changed circumstances … .

In our view, [the former Commissioner of Environmental Conservation’s] actions here ran afoul of the principle of finality attached to administrative determinations. Matter of Town of N. Elba v New York State Dept. of Envtl. Conservation, 2018 NY Slip Op 01369, Third Dept 3-1-18

ADMINISTRATIVE LAW (DEPARTMENT OF ENVIRONMENTAL CONSERVATION, ADIRONDACK PARK, FORMER COMMISSIONER OF ENVIRONMENTAL CONSERVATION DID NOT HAVE THE AUTHORITY TO REVISIT A PRIOR FINDING THAT A ROAD WITHIN THE ADIRONDACK PARK HAD NOT BEEN ABANDONED AND THEREFORE COULD BE USED BY SNOWMOBILERS (THIRD DEPT))/ENVIRONMENTAL LAW (ADIRONDACK PARK, FORMER COMMISSIONER OF ENVIRONMENTAL CONSERVATION DID NOT HAVE THE AUTHORITY TO REVISIT A PRIOR FINDING THAT A ROAD WITHIN THE ADIRONDACK PARK HAD NOT BEEN ABANDONED AND THEREFORE COULD BE USED BY SNOWMOBILERS (THIRD DEPT))/ADIRONDACK PARK ( FORMER COMMISSIONER OF ENVIRONMENTAL CONSERVATION DID NOT HAVE THE AUTHORITY TO REVISIT A PRIOR FINDING THAT A ROAD WITHIN THE ADIRONDACK PARK HAD NOT BEEN ABANDONED AND THEREFORE COULD BE USED BY SNOWMOBILERS (THIRD DEPT))/HIGHWAYS AND ROADS (ADIRONDACK PARK,  FORMER COMMISSIONER OF ENVIRONMENTAL CONSERVATION DID NOT HAVE THE AUTHORITY TO REVISIT A PRIOR FINDING THAT A ROAD WITHIN THE ADIRONDACK PARK HAD NOT BEEN ABANDONED AND THEREFORE COULD BE USED BY SNOWMOBILERS (THIRD DEPT))/FINALITY, POLICY OF (ADMINISTRATIVE DETERMINATIONS, FORMER COMMISSIONER OF ENVIRONMENTAL CONSERVATION DID NOT HAVE THE AUTHORITY TO REVISIT A PRIOR FINDING THAT A ROAD WITHIN THE ADIRONDACK PARK HAD NOT BEEN ABANDONED AND THEREFORE COULD BE USED BY SNOWMOBILERS (THIRD DEPT))

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tenant’s failure to report income from a new job to the new york city housing authority was a sufficient reason to terminate her tenancy.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversing the Appellate Division, determined a tenant’s failure to report her income to the New York City Housing Authority (NYCHA) was sufficient reason to terminate her tenancy, The tenant had pled guilty to petit larceny and agreed to repay the NYCHA $20,000 in installments:

Petitioner is a tenant in a New York City Housing Authority (NYCHA) public housing apartment in Manhattan. In the late 1990s, she became employed, for the first time, as a bookkeeper. She failed to disclose her new earnings to her landlord, each year stating in an affidavit of income that she did not work. This omission allowed petitioner to pay a substantially lower rent than she would have had she revealed the income. …

A vital public interest underlies the need to enforce income rules pertaining to public housing. Despite petitioner’s alleged difficulties if her tenancy is terminated, public housing is of limited availability and there are waiting lists of other families in need of homes, whose situations may be equally sympathetic. If income reporting violations were to be ignored by the NYCHA, there would be … no meaningful deterrent to residents of income-based public housing who misstate their earnings. If residents believe that the misrepresentation of income carries little to no chance of eviction, the possibility of restitution after criminal conviction may not serve adequately to discourage this illegal practice. The deterrent value of eviction, however, is clearly significant and supports the purposes of the limited supply of publicly-supported housing. It follows, then, that NYCHA’s decision to terminate petitioner’s tenancy is not so disproportionate to her misconduct as to shock the judicial conscience. Matter of Perez v Rhea, 2013 NY Slip Op 00953 [20 NY3d 399], CtApp 2-14-13

 

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