Administrative Law – Page 32 – New York Appellate Digest

NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS TO PROVIDE INFORMATION ABOUT THE LEVEL OF SODIUM IN THE RESTAURANT FOOD.

The First Department, in a full-fledged opinion by Justice Gesmer, determined the NYC Board of Health properly issued a regulation requiring certain restaurant to provide factual information about the level of sodium in the restaurant food. The decision is comprehensive and cannot fairly be summarized here. Applying the Boreali factors, the First Department held the rule was well within the board’s rule-making authority. In addition, the court found the rule did not violate the First Amendment (commercial speech):

Salt is both an essential ingredient of our diet and, when consumed in excess, a significant health hazard. Excess consumption of sodium, the primary ingredient of salt, can cause high blood pressure, which is in turn correlated with a higher risk of cardiovascular disease, congestive heart failure and kidney disease, according to the overwhelming consensus among scientists and the federal agencies charged with protecting the nation’s health. To address this issue, defendant New York City Board of Health (the Board) adopted a rule requiring certain restaurants to provide factual information to consumers on this issue. That rule is challenged in this appeal by the National Restaurant Association (NRA). We affirm the trial court’s rejection of that challenge, since the Board acted legally, constitutionally and well within its authority in adopting this limited yet salutary rule. National Rest. Assn. v New York City Dept. of Health & Mental Hygiene. 2017 NY Slip Op 01140, 1st Dept 2-10-17

MUNICIPAL LAW (NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS TO PROVIDE INFORMATION ABOUT THE LEVEL OF SODIUM IN THE RESTAURANT FOOD)/ADMINISTRATIVE LAW (NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS TO PROVIDE INFORMATION ABOUT THE LEVEL OF SODIUM IN THE RESTAURANT FOOD)/SODIUM (NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS TO PROVIDE INFORMATION ABOUT THE LEVEL OF SODIUM IN THE RESTAURANT FOOD)/RESTAURANTS (NYC BOARD OF HEALTH PROPERLY ISSUED REGULATION REQUIRING CERTAIN RESTAURANTS TO PROVIDE INFORMATION ABOUT THE LEVEL OF SODIUM IN THE RESTAURANT FOOD)

February 10, 2017

Administrative Law, Medicaid

COUNTY’S INTERPRETATION OF REGULATION WAS RATIONAL AND COULD NOT, THEREFORE, BE DISTURBED BY THE COURT; TIME LIMITS APPLICABLE TO ADMINISTRATIVE DECISIONS ARE DISCRETIONARY.

The Fourth Department determined Supreme Court properly determined the respondent county had timely notified petitioner of the denial of petitioner’s request for Medicaid overburden expenditures. If the denial had been deemed untimely, petitioner argued, the county would be required to pay. The court noted that the county’s interpretation of the relevant time limits was rational and therefore could not be disturbed by a court. The court further noted that, even if the time limits had been exceeded, denial of the claim would still have been proper because the time limits are discretionary in this context:

It is well settled that “the interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference if that interpretation is not irrational or unreasonable” … . * * *

… [I]t is well settled that, “[a]bsent an express limitation upon the power of a particular agency to act after the expiration of the relevant statutory period, the time limits within which an administrative agency must act generally are construed as discretionary” … . As the Court of Appeals noted, ” [a] rule that rendered every administrative decision void unless it was determined in strict literal compliance with statutory [or regulatory] procedure would not only be impractical but would also fail to recognize the degree to which broader public concerns, not merely the interests of the parties, are affected by administrative proceedings’ ” … . Matter of County of Oneida v Zucker, 2017 NY Slip Op 00785, 4th Dept 2-3-16

MEDICAID (OVERBURDEN EXPENDITURES, COUNTY’S INTERPRETATION OF REGULATION WAS RATIONAL AND COULD NOT BE DISTURBED BY THE COURT, TIME LIMITS APPLICABLE TO ADMINISTRATIVE DECISIONS ARE DISCRETIONARY)/ADMINISTRATIVE LAW (COUNTY’S INTERPRETATION OF REGULATION WAS RATIONAL AND COULD NOT BE DISTURBED BY THE COURT, TIME LIMITS APPLICABLE TO ADMINISTRATIVE DECISIONS ARE DISCRETIONARY)

February 3, 2017

Administrative Law, Evidence

FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF.

The First Department, over an extensive two-justice dissent, determined the evidence did not support the finding, by the New York State Liquor Authority, the licensee was aware of the presence of illegal drugs on the licensed premises. The decision is instructive about the “substantial evidence” standard of proof in administrative proceedings. The majority held the “substantial evidence” standard was not met:

The dissent points to the testimony of petitioner’s head of security that when security guards were on patrol they would sometimes have a staff member, who was not trained to pat people down, watch the door, as allowing an inference to be drawn that lax security measures led to the presence of drugs at the scene. This however, is purely speculative and not based on the record. The quantity of drugs recovered was very small. The uncontroverted police testimony was that the drugs could easily been have secreted on an individual. There was no evidence that the patrons entering the premises were not subjected to a patdown or that given the packaging, a patdown would have detected drugs. Substantial evidence, which has been characterized as a “minimal standard” or as comprising a “low threshold,” must consist of such relevant proof, within the whole record, “as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … , it does not, however, “rise from bare surmise, conjecture, speculation or rumor” … . Matter of Home Run KTV Inc. v New York State Liq. Auth., 2016 NY Slip Op 05834, 1st Dept 8-18-16

ADMINISTRATIVE LAW (FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF)/EVIDENCE (ADMINISTRATIVE LAW, FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF)/NYS LIQUOR AUTHORITY (ADMINISTRATIVE LAW, FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF)/LIQUOR LICENSE (ADMINISTRATIVE LAW, FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF)

August 18, 2016

Administrative Law, Environmental Law, Land Use

TOWN’S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERY WHICH COULD BE REVIEWED BY A COURT.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the town board's issuing a positive declaration under the State Environmental Quality Review Act (SEQRA) and imposing a DEIS (draft environmental impact statement) requirement on a landowner seeking a nonconforming use did not raise a justiciable controversy. Although the creation of a DEIS imposes a financial cost on the landowner, it is only the initial step in the SEQRA review process and is not, therefore, ripe for review. The landowner relied on Matter of Gordon v Rush, 100 NY2d 236, to argue review was appropriate. The court explained why Gordon did not apply:

This Court [in Gordon] concluded that the Board's administrative action was ripe for judicial review because the Board's SEQRA declaration imposed an obligation on the petitioners to prepare and submit a DEIS, after they “had already been through the coordinated review process and a negative declaration had been issued by the DEC as lead agency,” and where no apparent further proceedings would remedy the injury caused by the unnecessary and unauthorized expenditures associated with conducting a DEIS … . Thus, Gordon's analysis and its import must be considered in light of the Court's recognition that the administrative action in that case was potentially unauthorized because “the Board may not have had jurisdiction to conduct its own SEQRA review,” given the existence of a prior negative declaration by a facially appropriate lead agency … . Matter of Ranco Sand & Stone Corp. v Vecchio, 2016 NY Slip Op 02477, CtApp 3-31-16

ENVIRONMENTAL LAW (TOWN'S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERSY WHICH COULD BE REVIEWED BY A COURT)/LAND USE (TOWN'S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERSY WHICH COULD BE REVIEWED BY A COURT)/ADMINISTRATIVE LAW (STATE ENVIRONMENTAL QUALITY REVIEW ACT, TOWN'S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERSY WHICH COULD BE REVIEWED BY A COURT)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (TOWN'S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERSY WHICH COULD BE REVIEWED BY A COURT)/ENVIRONMENTAL IMPACT STATEMENT (TOWN'S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERSY WHICH COULD BE REVIEWED BY A COURT)

March 31, 2016

Administrative Law

NYS OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION DID NOT EXCEED ITS AUTHORITY WHEN IT PROHIBITED SMOKING IN SOME SMALL PARKS WITHIN NEW YORK CITY AND ON A SMALL PERCENTAGE OF THE 330,000-ACRE PARK SYSTEM.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined the NYS Office of Parks, Recreation and Historic Preservation (OPRHP) did not exceed its authority when it prohibited smoking in seven small parks in New York City and in less than five percent of the 330,000-acre state park system. The court went through the factors outlined in Boreali v Axelrod, 71 NY2d 1, which were described as follows:

… [Under Boreali] the circumstances to be considered are whether (1) “the agency did more than balanc[e] costs and benefits according to preexisting guidelines,' but instead made value judgments entail[ing] difficult and complex choices between broad policy goals' to resolve social problems” … ; (2) “the agency merely filled in details of a broad policy or if it wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance' ” …; (3) “the legislature has unsuccessfully tried to reach agreement on the issue, which would indicate that the matter is a policy consideration for the elected body to resolve” …; and (4) “the agency used special expertise or competence in the field to develop the challenged regulation[]” … .

Our statement of the relevant principles of law does not end with the articulation of the Boreali factors. Those considerations, we have observed, are not to be applied rigidly … . In fact, they “are not mandatory, need not be weighed evenly, and are essentially guidelines for conducting an analysis of an agency's exercise of power” … . Indeed, “we treat the circumstances as overlapping, closely related factors that, taken together, support the conclusion that an agency has crossed th[e] line [into legislative territory]” … . We also “center [any Boreali analysis] on the theme that it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends' “… . Matter of NYC C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation & Historic Preserv., 2016 NY Slip Op 02479, CtApp 3-31-16

ADMINSITRATIVE LAW (NYS OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION DID NOT EXCEED ITS AUTHORITY WHEN IT PROHIBITED SMOKING IN SOME SMALL PARKS WITHIN NEW YORK CITY AND ON A SMALL PERCENTAGE OF THE 330,000-ACRE PARK SYSTEM)/STATE PARKS (NYS OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION DID NOT EXCEED ITS AUTHORITY WHEN IT PROHIBITED SMOKING IN SOME SMALL PARKS WITHIN NEW YORK CITY AND ON A SMALL PERCENTAGE OF THE 330,000-ACRE PARK SYSTEM)/SMOKING PROHIBITION (NYS OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION DID NOT EXCEED ITS AUTHORITY WHEN IT PROHIBITED SMOKING IN SOME SMALL PARKS WITHIN NEW YORK CITY AND ON A SMALL PERCENTAGE OF THE 330,000-ACRE PARK SYSTEM)

March 31, 2016

Administrative Law, Education-School Law

COLLEGE’S DETERMINATION WAS NOT ARBITRARY AND CAPRICIOUS; AGENCY’S RATIONAL RULING MUST BE UPHELD EVEN IF THE REVIEWING COURT WOULD HAVE DECIDED DIFFERENTLY.

The Fourth Department determined Supreme Court should not have anulled the respondent college’s ruling as arbitrary and capricious. The controversy concerned the hiring of a business manager by the student government (Brockport Student Government or BSG). Although BSG had the power to hire a manager at approximately $50,000 a year, the college, which must ultimately approve the hiring, rejected it and engaged a managing service for $20,000 less. Because the college’s ruling had a rational basis, it could not be deemed arbitrary and capricious simply because the reviewing court would have decided differently. The Fourth Department explained what “arbitrary and capricious” means:

…[T]the court erred in determining that their denial of BSG’s budget allocation for a business manager was arbitrary and capricious. It is well established that “[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts . . . An agency’s determination is entitled to great deference and, [i]f the [reviewing] court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency” … . Here, we conclude that respondents’ discretionary determination to reject BSG’s proposed $49,800 salary for a business manager which was based on a comparison of the “hiring practices and compensation rates of other campus-affiliated organizations”… . Matter of Brockport Student Govt. v State Univ. of N.Y. at Brockport, 2016 NY Slip Op 01099, 4th Dept 2-11-16

ADMINISTRATIVE LAW (AGENCY’S RATIONAL RULING MUST BE UPHELD EVEN IF REVIEWING COURT WOULD HAVE DECIDED DIFFERENTLY)/EDUCATION-SCHOOL LAW (COLLEGE’S REJECTION OF REQUEST BY STUDENT GOVERNMENT HAD A RATIONAL BASIS AND THEREFORE WAS NOT ARBITRARY AND CAPRICIOUS)/ARBITRARY AND CAPRICIOUS (RATIONAL RULING MUST BE UPHELD EVEN IF REVIEWING COURT WOULD HAVE DECIDED DIFFERENTLY)

February 11, 2016

Administrative Law, Vehicle and Traffic Law

SUBSTANTIAL EVIDENCE DID NOT SUPPORT REVOCATION OF PETITIONER’S DRIVER’S LICENSE FOR REFUSING TO SUBMIT TO A CHEMICAL BLOOD-ALCOHOL TEST; TROOPER DID NOT HAVE REASONABLE GROUNDS TO BELIEVE PETITIONER OPERATED HIS MOTORCYCLE UNDER THE INFLUENCE.

The Second Department annulled the determination by the Department of Motor Vehicles that petitioner’s license was properly revoked for refusing to submit to a chemical blood-alcohol test. Petitioner had an accident while riding his motorcycle which, he alleged, was caused by a coyote running into his bike. No other vehicles were involved. The trooper who charged petitioner with driving while intoxicated did not witness the accident or conduct any sobriety tests. The trooper based the charge solely on detecting the odor of alcohol on petitioner’s breath two hours after the accident at the hospital. The Second Department determined substantial evidence did not support the Department’s finding the trooper had reasonable grounds to believe petitioner was operating the motorcycle while under the influence:

As a prerequisite to the chemical test, the Trooper had to have reasonable grounds to believe that the petitioner was operating his motorcycle while under the influence of alcohol (see Vehicle Traffic Law § 1194[2]). Reasonable grounds are to be determined on the basis of the totality of the circumstances (see Vehicle and Traffic Law § 1194[2][a][3]). Here, the Trooper did not witness the circumstances leading to the accident or the accident itself, and his report states that no field sobriety tests were conducted at the scene. Other than the statement in the report that there was a strong odor of alcoholic beverage on the petitioner’s breath, there was no evidence that would suggest the petitioner operated his vehicle in an intoxicated state … . Accordingly, the totality of circumstances did not warrant the determination that the petitioner violated Vehicle and Traffic Law § 1194 by refusing to submit to a chemical test and to revoke the petitioner’s driver license. Matter of DeMichele v Department of Motor Vehs. of N.Y. State, 2016 NY Slip Op 00652, 2nd Dept 2-3-16

ADMINSTRATIVE LAW (VEHICLE AND TRAFFIC LAW, SUBSTANTIAL EVIDENCE DID NOT SUPPORT REVOCATION OF LICENSE BASED ON CHEMICAL TEST REFUSAL)/DRIVING WHILE INTOXICATED (SUBSTANTIAL EVIDENCE DID NOT SUPPORT REVOCATION OF LICENSE BASED ON CHEMICAL TEST REFUSAL)/CHEMICAL TEST (DRIVING WHILE INTOXICATED, SUBSTANTIAL EVIDENCE DID NOT SUPPORT REVOCATION OF LICENSE BASED ON CHEMICAL TEST REFUSAL)

February 3, 2016

Administrative Law, Land Use, Zoning

EXCEPTION TO FINALITY RULE WHERE IT IS CLEAR FURTHER ADMINISTRATIVE PROCEEDINGS WOULD BE FUTILE; DEVELOPER DID NOT HAVE A PROPERTY INTEREST IN A SITE PLAN APPROVAL WHICH WOULD SUPPORT A VIOLATION-OF-DUE-PROCESS CAUSE OF ACTION.

In finding the town planning board’s motion for summary judgment on several causes of action brought by respondent developer should have been granted, the Second Department explained (1) the finality rule need not be mechanically applied where it is clear further administrative proceedings would be futile, and (2) the developer did not have a property interest in a site plan approval which would support a violation-of-due-process cause of action:

“To determine whether a matter is ripe for judicial review, it is necessary first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied'” … . “The concept of finality requires an examination of the completeness of the administrative action and a pragmatic evaluation of whether the decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury'” … .

In the area of land use, “[a] final decision exists when a development plan has been submitted, considered and rejected by the governmental entity with the power to implement zoning regulations” … . In this regard, “[a] property owner, for example, will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile. That is, a property owner need not pursue such applications when a zoning agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied” … . Additionally, an exception to the finality requirement exists where the municipal entity uses “repetitive and unfair procedures in order to avoid a final decision” … . …

[Respondent developer] alleged that it had a cognizable property interest in the approval of the application that was injured in violation of its right to due process under both the United States and New York State Constitutions. However, as the Planning Board has significant discretion in reviewing site plan applications … , East End does not have a cognizable property interest in the approval of a particular site plan application …. . East End Resources, LLC v Town of Southold Planning Bd., 2016 NY Slip Op 00476, 2nd Dept 1-27-16

ADMINISTRATIVE LAW (FINALITY RULE NOT APPLIED WHERE FURTHER PROCEEDINGS FUTILE)/ZONING (DEVELOPER DID NOT HAVE PROPERTY INTEREST IN SITE PLAN APPROVAL)/DUE PROCESS (DEVELOPER DID NOT HAVE PROPERTY INTEREST IN SITE PLAN APPROVAL)/SITE PLAN (DEVELOPER DID NOT HAVE PROPERTY INTEREST IN SITE PLAN APPROVAL)

January 27, 2016

Administrative Law, Social Services Law

DEPARTMENT OF HEALTH EXECUTIVE-COMPENSATION-CAP AND CONFLICT-OF-INTEREST RULES FOR AGENCIES PROVIDING SERVICES TO DEVELOPMENTALLY DISABLED CHILDREN DO NOT VIOLATE THE SEPARATION OF POWERS DOCTRINE.

The First Department, in a full-fledged opinion by Justice Dickerson, reversing Supreme Court, determined that two Department of Health (DOH) rules concerning services provided to developmentally disabled children did not violate the separation of powers doctrine. One rule placed a cap on executive compensation, and the other prohibited an agency which evaluates a child’s need for services from itself providing those services (“conflict of interest” rule). The First Department explained the underlying general principles and then went through each of the Boreali [71 NY2d 1] “separation of powers” factors for each rule:

“The cornerstone of administrative law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation” … . “The constitutional principle of separation of powers . . . requires that the [L]egislature make the critical policy decisions, while the executive branch’s responsibility is to implement those policies” … . “The branches of government cannot always be neatly divided, however, and common sense must be applied when reviewing a separation of powers challenge. As long as the [L]egislature makes the basic policy choices, the legislation need not be detailed or precise as to the agency’s role” … . Where an agency has been endowed with broad power to regulate in the public interest, courts generally will uphold reasonable acts that further the regulatory scheme … .

[The Boreali] factors are (1) “whether the agency did more than balanc[e] costs and benefits according to preexisting guidelines, but instead made value judgments entail[ing] difficult and complex choices between broad policy goals to resolve social problems”; (2) “whether the agency merely filled in details of a broad policy or if it wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance”; (3) “whether the [L]egislature has unsuccessfully tried to reach agreement on the issue, which would indicate that the matter is a policy consideration for the elected body to resolve”; and (4) “whether the agency used special expertise or competence in the field to develop the challenged regulations” … . The “central theme” of a Boreali analysis is that “an administrative agency exceeds its authority when it makes difficult choices between public policy ends, rather than find[ing] means to an end chosen by the Legislature” … . Agencies for Children’s Therapy Servs., Inc. v New York State Dept. of Health, 2015 NY Slip Op 09647, 2nd Dept 12-30-15

ADMINISTRATIVE LAW (SERVICES FOR DEVELOPMENTALLY DISABLED CHILDREN, DOH EXECUTIVE COMPENSATION CAP AND CONFLICT OF INTEREST RULES DO NOT VIOLATE SEPARATION OF POWERS DOCTRINE)/DEVELOPMENTALLY DISABLED CHILDREN, SERVICES FOR (DOH EXECUTIVE COMPENSATION CAP AND CONFLICT OF INTEREST RULES DO NOT VIOLATE SEPARARY OF POWERS)/DEPARTMENT OF HEALTH (EXECUTIVE COMPENSATION CAP AND CONFLICT OF INETERST RULES DO NOT VIOLATE SEPARATION OF POWERS DOCTRINE)/SEPARATION OF POWERS DOCTRINE (SERVICES FOR DEVELOPMENTALLY DISABLED CHILDREN, DOH EXECUTIVE COMPENSATION CAP AND CONFLICT OF INTEREST RULES DO NOT VIOLATE SEPARATION OF POWERS DOCTRINE)

December 30, 2015

Administrative Law, Landlord-Tenant

INCONSISTENCIES IN TWO FINAL RENT-ADJUSTMENT ORDERS ALLOWED RECONSIDERATION OF THE NATURE OF THE MAJOR CAPITAL IMPROVEMENTS [MCI’S] DESCRIBED IN THE ORDERS

In a rent-increase matter which was before the NYS Division of Housing and Community Renewal (DHCR), the First Department, over an extensive two-justice dissent, determined a discrepancy between two prior rent-adjustment orders constituted “an irregularity in a vital matter” which allowed the DHRC, on remand, to reconsider the two (final) orders. The discrepancy related to the nature of the “major capital improvement [MCI]” (purportedly justifying a rent increase) to which each order referred. The dissent argued that the two orders were final orders and collateral estoppel prohibited further reexamination of them. Matter of 60 E. 12th St. Tenants’ Assn. v New York State Div. of Hous. & Community Renewal, 2015 NY Slip Op 09599, 1st Dept 12-29-15

ADMINISTRATIVE LAW (RECONSIDERATION OF INCONSISTENT FINAL ORDERS BY NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL)/DIVISION OF HOUSING AND COMMUNITY RENEWAL [DHCR] (RECONSIDERATION OF INCONSISTENT FINAL RENT-ADJUSTMENT ORDERS) ADMINISTRATIVE LAW; LANDLORD-TENANT. .

December 29, 2015