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Appeal Board Was Bound by Arbitrator’s Findings of Fact Re: Employee’s Serious Safety-Rule Violations

The Third Department reversed the Unemployment Insurance Appeal Board after the Board determined petitioner should not have been terminated for rule violations.  Pursuant to arbitration under a collective bargaining agreement, the arbitrator had made factual findings re: serious rule violations.  The Third Department explained that the Board was bound by those factual findings:

[“While the Board was free to make ‘independent additional factual findings’ and draw its own independent conclusion as to whether claimant’s behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the [arbitrator’s] ‘factual findings regarding claimant’s conduct and [her] conclusion’ that claimant had” committed serious violations of safety rules … . The arbitrator here found that claimant had committed grave violations of the employer’s policies that had endangered the safety of his passengers, violations that were rendered even more egregious by the fact that he had previously been disciplined for similar conduct. The Board, in contrast, inexplicably found that claimant had “substantially complied with” the employer’s policies and made no effort to consider claimant’s behavior within the context of his prior disciplinary history. Thus, as the Board improperly contradicted factual findings of the arbitrator, remittal is necessary for it to “reconsider[] upon appropriate findings” … . Matter of Boretsky …, 2014 NY Slip Op 07414, 3rd Dept 10-30-14

 

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The Prevailing Wage Statute Applies To All Work Reasonably Interpreted to Be Covered by the Statute—The Fact that the Application of the Statute Is Unsettled At the Time the Public Works Contract Is Entered Does Not Allow the Employer to Escape Its Reach Once the Law Is Settled

The Court of Appeals, in an opinion by Judge Smith, answered two certified questions posed by the Second Circuit about the application of the prevailing wage statute to workers engaged in the testing and inspection of fire protection equipment.  The statute requires employees doing construction, maintenance or repair on public works be paid not less than the prevailing rate of wages. The Second Circuit was asked to review the Labor Department Commissioner's ruling that the statute applied to the testing and inspection of fire protection equipment, but only prospectively.  The Second Circuit asked the Court of Appeals whether deference to the Labor Department's prospective application should be accorded, and further asked whether an employer who agrees to be bound to pay prevailing wages pursuant to section 220 has agreed to pay such wages for all work covered by the statute as the statute is reasonably interpreted, as opposed to only the types of work about which the law is settled at the time of the agreement.  The Court of Appeals determined the law should apply as it is correctly understood, not as the parties may have misunderstood it.  Ramos v SimplexGrinnell LP, 2014 NY Slip Op 07198, CtApp 10-23-14

 

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Denial of Property Tax Refunds by Director of Tax Commission Was Not Final—Article 78 Claims Not Ripe for Judicial Review

The Second Department determined the Article 78 proceedings seeking property tax refunds were not ripe for judicial review because the denial of the refunds by the Director of the county Tax Commission was not final:

…[T]he Supreme Court properly determined that his claims seeking CPLR article 78 relief relating to his tax refund applications were not ripe for judicial review. Administrative determinations may only be challenged via CPLR article 78 review after the determination is final (see CPLR 7801[1]). “For a challenge to administrative action to be ripe, the administrative action sought to be reviewed must be final, and the anticipated harm caused by the action must be direct and immediate” … . Moreover, a matter is not ripe where the claimed harm may be prevented or significantly ameliorated by further administrative action … . Here, the issuance of written recommendations by the Executive Director of the Westchester County Tax Commission was not a final approval or denial of the appellant’s tax refund applications (see RPTL 5565])… . Matter of Greenberg v Assessor of Town of Scarsdale, 2014 NY Slip Op 07160, 2nd Dept 10-22-14

 

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Permit Allowing the Killing of 62 Deer Properly Issued/Exception to the Mootness Doctrine Applied

The Second Department determined an Article 78 proceeding contesting a permit issued by the Department of Environmental Conservation (DEC) allowing Vassar College to kill 62 deer was properly dismissed.  At the time of the appeal, the permit had already expired and the deer had been killed.  The court determined the appeal as an exception to the mootness doctrine because the issue is likely to reappear:

 …[A]n exception to the mootness doctrine permits courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable … .

Here, although the subject deer cull has been completed and the challenged permit has expired, the appellants raise a substantial and novel issue as to whether the DEC is fulfilling its statutory responsibilities under SEQRA [State Environmental Quality Review Act] related to the issuance of nuisance deer permits. The issue is likely to recur and to evade appellate review, given the extremely short period of time during which such permits are valid … . * * *

Judicial review of an agency determination under SEQRA 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” … . “In a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, 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” … . The agency decision should be annulled only if it is arbitrary and capricious, or unsupported by the evidence … . Further, an agency’s interpretation of its own regulation is entitled to deference unless it is unreasonable or irrational … .

Here, the Supreme Court properly determined that the DEC’s issuance of a nuisance deer permit to Vassar pursuant to Environmental Conservation Law § 11-0521 complied with the requirements of SEQRA and its implementing regulations. The DEC’s use of a generic EIS, updated with a supplemental findings statement, to assess the impacts of the issuance of nuisance deer permits as a part of its wildlife game species management program was proper… . Matter of In Defense of Animals v Vassar College, 2014 NY Slip Op 07162, 2nd Dept 10-22-14

 

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The Language of the NYC Rent Control Law, Unlike the Language of the NYC Rent Stabilization Law, Does Not Allow “Luxury Deregulation” After the Expiration of J-51 Tax Benefits

The First Department, in a full-fledged opinion by Justice Sweeny, determined that the relevant provision of the NYC Rent and Rehabilitation Act (Rent Control Law or RCL) could not be interpreted to allow “luxury deregulation” of a rent-controlled apartment upon the expiration of “J-51” tax benefits.  “Luxury deregulation” refers to the removal of rent controls where the tenant can afford to pay market rates. The opinion focused upon the wording of the Rent Stabilization Law (RSL) versus the wording of the Rent Control Law (RCL) .  The RSL specifically allows the owner of an apartment to apply for luxury deregulation upon the expiration of the J-51 tax benefits, while the RCL (the controlling regulation here) does not.  The opinion includes a discussion of court-review of an administrative agency’s interpretation of a statute where specialized knowledge is not involved, and statutory-interpretation criteria:

At the outset, we note that the question before us turns purely on statutory interpretation. As such, we need not defer to the agency’s interpretation of the statutes in question, as we are not called upon “to interpret a statute where specialized knowledge and understanding of underlying operational practices or . . . an evaluation of factual data and inferences to be drawn therefrom’ is at stake” … . * * *

The owner argues that the rationale of [the RSL] should also apply to apartments subject to rent control, because, inter alia, to hold otherwise would be inconsistent with the purpose of the luxury deregulation law, which attempted to “restore some rationality to a system which provides the bulk of its benefits to high income tenants” … . We are not unmindful that the legislative history indicates a preference not to have people who can easily afford market value rental property inhabit rent-regulated housing. However, this history does not offer sufficient evidence to alter the unambiguous language of Administrative Code § 26-403(e)(2)(j). To do so would require us to import new language into the RCL and “give it a meaning not otherwise found therein” … . Indeed, “where the language of a statute is clear, there is little room to add to or take away from that meaning'” … . If the application of such long-established principles of statutory construction produces “an undesirable result, the problem is one to be addressed by the Legislature” … . Matter of RAM I LLC v NYS Div of Hous & Community Renewal, 2014 NY Slip Op 06784, 1st Dept 10-7-14

 

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In a Hybrid Action, the Causes of Action Seeking Money Damages Were Distinct from the Causes of Action Seeking Annulment of Town a Resolution/Four-Month Statute of Limitations Did Not Apply to Causes of Action Seeking Money Damages

The First Department determined that certain causes of action in a hybrid proceeding were not time-barred by the four-month statute of limitations for Article 78 proceedings. When the plaintiffs did not repair the property which was alleged to endanger a drinking water source, the town had the property repaired pursuant to a town resolution and a special tax assessment was imposed to pay for the repairs.  The plaintiffs brought a hybrid proceeding challenging the resolution and tax assessment and seeking damages for the destruction of plaintiffs’ property and the interruption of plaintiffs’ business. The causes of action seeking damages were not barred by the four-month statute:

In the fourth, fifth, sixth, and seventh causes of action, the plaintiffs sought, in effect, to annul the tax assessment referable to the cost of demolition of the retaining wall and rear wall of the building and the rebuilding of the retaining wall and, by implication, sought to annul the Resolution authorizing the demolition and the assessment against the property. They likewise contended that the Town failed to give them proper notice and an opportunity to be heard, as required by section 66-11. Since the substance of these causes of action was a challenge to administrative decisions and a special tax assessment, the court properly concluded that these causes of action constituted requests for relief pursuant CPLR article 78, regardless of the form in which they were pleaded … . * * *

The court erred … in granting those branches of the Town’s motion which were for summary judgment dismissing the first, second, third, and eighth causes of action. These causes of action assert claims, inter alia, for damages resulting from the destruction of a portion of the garage building and the interruption of the plaintiffs’ business. Pursuant to CPLR 7806, where a CPLR article 78 petitioner seeks damages as well as the annulment of a governmental determination, “[a]ny restitution or damages granted to the petitioner must be incidental to the primary relief sought by the petitioner, and must be such as he [or she] might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court against the same body or officer in its or his official capacity” (CPLR 7806). “[W]here the thrust of the lawsuit is the review of an adverse . . . agency determination, with the monetary relief incidental, [the] Supreme Court may entertain the entire case under CPLR article 78” … . “Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case” … . Contrary to the Supreme Court’s determination, the claims asserted in the first, second, third, and eighth causes of action, in which the plaintiffs sought money damages, were not incidental to the plaintiffs’ CPLR article 78 challenges to the Resolution and the special tax assessment … . Therefore, these causes of action were not asserted in connection with the CPLR article 78 portion of this hybrid action/proceeding, and were not barred by the four-month statute of limitations applicable to CPLR article 78 proceedings (see CPLR 217). Hertzel v Town of Putnam Val, 2014 NY Slip Op 06558, 2nd Dept 10-1-14

 

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“Substantial Evidence” Standard of Court Review Explained

The Second Department explained the “substantial evidence” standard of court review of an administrative agency’s determination after a disciplinary hearing:

Substantial evidence “is related to the charge or controversy and involves a weighing of the quality and quantity of the proof”; the term “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … . “Where there is conflicting evidence or different inferences may be drawn from the evidence, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'” … . Matter of Sullivan v County of Rockland, 2014 NY Slip Op 06593, 2nd Dept 10-1-14

 

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Failure to Strictly Comply with the Statutory Requirements for the Contents of a Parking Ticket Invalidates the Ticket

The First Department, in a full-fledged opinion by Justice Renwick, determined that the failure to strictly comply with the statutory requirements for a parking ticket rendered the tickets invalid and unenforceable.  Specifically, the type of license plate on the trucks in question was described on the ticket as “IRP” when the plates should have been described as “Apportioned” or “APP” (“IRP” and “APP” are related terms used interchangeably by the NYC Parking Violations Board).  The decision is noteworthy because of the strictness with which the statutory requirements for the contents of a parking ticket are applied:

…[T]his Court is bound by the plain language of VTL 238(2). We must conclude that the New York City Parking Violations Bureau’s policy of deeming “IRP” an accurate description of out-of-state “APPORTIONED” license plates for purposes of adjudicating parking violations violates the statute. As indicated, VTL § 238(2) requires that a notice of parking violation shall include the “plate type as shown by the registration plates of said “vehicle” (emphasis added). It is undisputed that each ticket here described the “vehicle type” as “IRP,” while the corresponding license plate described the vehicle type as “APPORTIONED.” The choice of the words in the statute “as shown” by the vehicle plate is evidence that the legislature intended strict compliance with the statute, and “new language cannot be imported into a statute to give it a meaning not otherwise found therein” … . Matter of Nestle Waters N Am Inc v City of New York, 2014 NY Slip Op 05609, 1st Dept 7-31-14

 

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Ambiguity About the Timing of a Final Decision from an Administrative Agency Precluded Dismissal Based Upon the Statute of Limitations Defense

In the course of a decision finding the Commissioner of Health had properly determined Medicaid reimbursement rates for residential health care facilities, the Third Department determined ambiguity about when a final decision had been made precluded dismissal based on the statute of limitations defense:

“[W]hen an administrative body itself creates ambiguity and uncertainty” concerning the finality of a determination, however, “affected [parties] should not have to risk dismissal for prematurity or untimeliness by necessarily guessing when a final and binding determination has or has not been made. Under these circumstances, ‘the courts should resolve any ambiguity created by the public body against it in order to reach a determination on the merits and not deny a party his [or her] day in court'”… . Matter of Adirondack Med Center-Uihlein v Daines, 2014 NY Slip Op 05386, 2nd Dept 7-16-14

 

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Termination of Teacher for Failure to Control Special-Education Class to Which He Was Assigned After an Unblemished 18-Year Career Shocked the Court’s Sense of Fairness

The First Department, over a two-justice dissent, determined that the termination of a teacher shocked the court’s sense of fairness. The teacher had an unblemished 18-year record before being assigned to a special-education class.  Although the court agreed that the teacher’s inability to control the class had been demonstrated, the punishment was deemed too severe:

While we do not dispute the specific findings of the Hearing Officer concerning petitioner’s deficiencies in the management of this one special education class, we find that under the circumstances presented here the penalty of termination shocks our sense of fairness … . Matter of Russo v New York City Department of Educ, 2014 NY Slip Op 05032, 1st Dept 7-3-14

 

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