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Termination Shocks One’s Sense of Fairness

The Fourth Department determined the termination of a city employee shocked one’s sense of fairness.  The court explained the relevant criteria:

“[A] result is shocking to one’s sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally” … . “Where, as here, there is no grave moral turpitude’ and no grave injury to the agency involved or to the public weal,’ courts may ameliorate harsh impositions of sanctions by administrative agencies . . . in order to accomplish what a sense of justice would dictate’ ” … . Matter of Harwood v Addison, 2014 NY Slip Op 04660, 4th Dept 6-20=14

 

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NYS Department of Environmental Protection (DEC) Has Authority to Address the Pollution of New York Waters by Oil and Gas Producer Operating Across the Border in Pennsylvania/DEC’s Authority Not Demonstrated to Be Preempted by Federal Clean Water Act

The Fourth Department affirmed Supreme Court’s dismissal of a petition brought by an oil and gas producer seeking to prohibit the New York State Department of Environmental Protection (DEC) from enforcing consent orders which concern the pollution of Yeager Brook in the Allegany State Park.  The oil and gas producer is operating across the border in Pennsylvania on land owned by the US Forest Service.  The court held that the DEC has the authority to address the pollution of New York waters and rejected the argument that the DEC’s authority to act was preempted by the Federal Clean Water Act (CWA):

Beginning in 2010, personnel of the New York State Office of Parks, Recreation, and Historic Preservation reported pollution, including turbidity, color change, and suspended sediment, in New York’s Yeager Brook, downstream from and caused by petitioner’s operations in Pennsylvania, in contravention of New York’s water quality standards. Subsequently, the New York State Department of Environmental Conservation (DEC) entered into two consent orders with petitioner concerning the aforementioned pollution. Because of alleged continued and ongoing violations, the DEC commenced an administrative proceeding in New York seeking to enforce the consent orders and the penalties for the violations thereof. Petitioner commenced the instant proceeding contending, inter alia, that the DEC is acting in excess of its jurisdiction because the federal Clean Water Act ([CWA] 33 USC § 1251 et seq.) preempts the application of an affected state’s laws and regulations to an out-of-state point source … .

As the party seeking a writ of prohibition, petitioner bears a “heavy burden” of establishing a “clear legal right to relief or that prohibition would provide a more complete and efficacious remedy than the administrative proceeding and resulting judicial review” … . We conclude that respondents in support of their motion to dismiss established as a matter of law that petitioner could not meet that burden, and Supreme Court therefore properly granted the motion. The DEC had the statutory authority and jurisdiction to enter into the consent orders at issue and to commence the administrative proceeding to enforce those orders (see ECL 17-0303 [2], [4] [a], [b]; [5] [a]; see also ECL 17-0105 [1]; ECL 17-0501). Petitioner has failed to establish in this proceeding that the DEC’s exercise of such authority and jurisdiction is clearly preempted by the CWA, inasmuch as it has not shown that enforcement of the consent orders would “stand[] as an obstacle to the full implementation of the CWA” … . Moreover, the preemptive effect of the CWA “should be determined, in the first instance, through the administrative process”… . “[E]ven as to a clearly ultra vires act, prohibition does not lie against an administrative agency if another avenue of judicial review is available, absent a demonstration of irreparable injury to the applicant if [it] is relegated to such other course” … . No such irreparable injury has been demonstrated here.  Matter of US Energy Dev Corp v NYS Department of Environmental Protection, 2014 NY Slip Op 04591, 4th Dept 6-20-14

 

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NYC Taxi & Limousine Commission Had the Authority to Mandate the Use of a Particular Vehicle as a NYC Taxi

The First Department, in a full-fledged opinion by Justice Saxe, over a dissent, determined that the New York City Taxi and Limousine Commission (TLC) did not exceed its grant of authority under the NYC Charter and did not violate the separation of powers doctrine when it mandated the use of a particular vehicle for taxis in NYC. The TLC essentially designed a vehicle, to be used as New York City medallion taxicabs, which met all of its criteria and then chose a manufacturer, Nissan, to build it. Under the “Taxi of Tomorrow Rules…”, after October 31, 2013, holders of unrestricted medallions who  were scheduled to replace their taxi vehicles were required to buy the Nissan (called the Nissan NV200).  An association of taxi fleet owners brought an action for a declaratory judgment asking the court to find the “Taxi of Tomorrow Rules…” invalid. Supreme Court did so, holding that the TLC had exceeded its powers under the NYC Charter and had essentially crossed the line between administration and legislation. The First Department disagreed and reversed:

Ultimately, the key to determining whether an agency has exceeded the scope of its authority is …in examining the enabling legislation. The scope of the mandate established by City Charter § 2300 is sufficiently expansive to permit the TLC to act as it did. * * *

…[H]ere …the Legislature had clearly articulated its policy regarding the TLC’s assigned task, namely, the goal of ensuring and optimizing the comfort of riders, while protecting the public, the environment, the drivers, and the rights of medallion owners. The TLC was not left to take action based on its own ideas of sound public policy. Even if, arguendo, the TLC’s adoption of the revised Taxi of Tomorrow rules may be characterized as involving policy-making, here, the parameters of that policy-making were set by the City Council in the City Charter.  Greater NY Taxi Assn v New York City Taxi & Limousine Commn, 2014 NY Slip Op 04156, 1st Dept 6-10-14

 

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Probationary Employee Fired in Bad Faith for Union Work—Supreme Court Had the Power to Reinstate Her But Not to Grant Her Tenure

The Second Department determined a probationary teacher demonstrated she was terminated in bad faith.  The court noted that Supreme Court did not have the power to grant the probationary teacher tenure, something only the administrative agency has the power to do:

A probationary employee may be discharged without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law … . The petitioner bears the burden of presenting competent proof of the alleged bad faith, the violation of statutory or decisional law, or the constitutionally impermissible or illegal purpose … . Here, the petitioner met her burden of demonstrating that the discontinuation of her probationary employment was made in bad faith, showing that the discontinuation followed a letter she wrote to the principal, in her capacity as a union chapter leader, requesting to make up her missed preparation periods. Although, generally, evidence of unsatisfactory performance rebuts a showing of bad faith …, in response to the petitioner’s showing, the appellants failed to establish that the discontinuance of the petitioner’s probationary employment was the result of poor performance. The record demonstrates that the petitioner began [*2]to receive “Unsatisfactory” ratings only after she asked the principal to make up her missed preparation periods, and it was at that point that the evaluations of the petitioner’s performance began to precipitously decline. Accordingly, the Supreme Court properly annulled the determination and reinstated the petitioner to her former position, with retroactive seniority, backpay, and benefits … .

However, the appellants correctly contend that the Supreme Court exceeded its authority by granting the petitioner tenure effective as of January 25, 2009. ” While the court is empowered to determine whether the administrative body acted arbitrarily, it may not usurp the administrative function by directing the agency to proceed in a specific manner, which is within the jurisdiction and discretion of the administrative body in the first instance'” … . Matter of Capece v Schultz, 2014 NY Slip Op 03834, 2nd Dept 5-28-14

 

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Collateral Estoppel Doctrine Will Not Be Invoked Unless there Has Been at Least One Full Hearing on the Issues Involved

The Second Department, in determining collateral estoppel did not apply to a Notice of Determination that plaintiff was not entitled to unemployment insurance benefits, explained that the collateral estoppel doctrine will not be invoked  unless there has been at least one full hearing on the issues involved:

Pursuant to the doctrine of collateral estoppel, which is otherwise known as issue preclusion, a party may be barred from relitigating an issue which has been decided in another proceeding by a court or in a quasi-judicial administrative forum … . In addition, … “[a];s the consequences of a determination that a party is collaterally estopped from litigating a particular issue are great, strict requirements for application of the doctrine must be satisfied to insure that a party not be precluded from obtaining at least one full hearing on his or her claim” … .

Here, the record does not demonstrate that the Notice of Determination was rendered after a hearing or that it otherwise constitutes a quasi-judicial determination … . Twaddell v Drop & Lock Stor Co Inc, 2014 NY Slip Op 03678, 2nd Dept 5-21-14

 

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Voluntary Firefighter Should Not Have Been Suspended Without a Hearing Pursuant to the General Municipal Law

The Second Department determined a voluntary firefighter was entitled to a hearing pursuant to the General Municipal Law.  The firefighter was suspended (without a hearing) for six months for acting in a disorderly manner in an a manner unbecoming a member of the fire department:

…[T]here is no merit to the appellants’ contention that they did not have to comply with the hearing requirements of General Municipal Law § 209-l because this matter did not involve the petitioner’s “removal” from the Fire Company. Subsection (3) of General Municipal Law § 209-l provides that:

“[r]emovals on the ground of incompetence or misconduct, except for absenteeism at fires or meetings, shall be made only after a hearing upon due notice and upon stated charges and with the right to such officer or member to a review pursuant to article seventy-eight of the civil practice law and rules. Such charges shall be in writing and may be made by any such authority. The burden of proving incompetency or misconduct shall be upon the person alleging the same.”

“[A] volunteer firefighter must be afforded due process in disciplinary proceedings” … . This is true whether the penalty that is ultimately imposed entails the firefighter’s permanent removal from his or her position, or a suspension from the position. As set forth in General Municipal Law § 209-l(5), “[t];he officer or body having the power to remove the person charged with incompetence or misconduct may suspend such person after charges are filed and pending disposition of the charges, and after the hearing may remove such person or may suspend him or her for a period of time not to exceed one year” (emphasis added). The plain meaning of this provision is that a volunteer firefighter may only be temporarily suspended, without a hearing, from the time that the charges are filed until the ultimate disposition of the charges, but that a hearing is required to actually dispose of the charges, and that a final penalty of suspension, not to exceed one year, may only be imposed after that hearing. Consequently, the appellants were required to comply with the procedures set forth in General Municipal Law § 209-l … . Matter of McEvoy v Oyster Bay Fire Co No 1, 2014 NY Slip Op 03688, 2nd Dept 5-21-14

 

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Low-Income Families’ Challenges to Child Care Copayment Regulation Rejected

The Fourth Department rejected challenges to a copayment regulation by low-income families who are eligible for child care assistance but who are required to pay more than 10% of their gross incomes for the care.  The families alleged that the co-payment regulation, 18 NYCRR 415.3 (e), violated Social Services Law 410-x because it did not provide for a single sliding fee scale, the existing sliding fee scales are not based upon the family’s ability to pay, and the regulation failed to provide equitable access to child care as required by statute.  The families further alleged the copayment regulation violated the families’ right to travel within the state and their right to equal protection of the law.  With respect to the sliding scale aspect of the argument, the court wrote:

Plaintiffs …contend that the copayment regulation violates Social Services Law § 410-x (6) because it does not provide for a single sliding fee scale, as required by statute, and instead allows each of the 58 social services districts to set its own sliding fee scale. We reject that contention as well. “It is well settled that the Legislature may authorize an administrative agency to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation’ ” … . “In so doing, an agency can adopt regulations that go beyond the text of that legislation, provided they are not inconsistent with the statutory language or its underlying purposes” … . An agency’s interpretation of a governing statute will not be disturbed unless it is unreasonable or irrational … .

Here, section 410-x (6) delegates regulatory authority to the Office of Children and Family Services, of which defendant is Commissioner, by providing that, “[p]ursuant to department regulations, child care assistance shall be provided on a sliding fee basis based on the family’s ability to pay.” The statute does not expressly require defendant to adopt a single state-wide sliding fee scale, and we do not consider it unreasonable or irrational for defendant to adopt a regulation that gives flexibility to social services districts to choose a multiplier between 10% and 35% to use in calculating an eligible family’s share of child care costs. Williams v Carrion, 2014 NY Slip Op 03044, 4th Dept 5-2-14

 

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Penalty Which Effectively Made It Impossible for an Architect to Practice His Profession Too Severe

The First Department found the punishment imposed by the Department of Buildings (DOB) on an architect for falsely representing he was licensed during a six-month suspension from practice was too severe:

…[W]e find that the penalty imposed is excessive upon considering the following factors: DOB did not place any temporal limitation on the prohibition of petitioner filing documents, nor did it explain why such a permanent penalty was imposed; petitioner is a solo practitioner for whom over ninety percent of his business is in New York City; the prohibition applies to the entire city, and would essentially end petitioner’s independent architectural business, thus depriving him of his livelihood; and respondent has never alleged, much less made any showing, that the falsehood at issue pertained to the substance or content of the building plans and thus presented potential safety risks which Administrative Code of City of NY § 28-211.1.2 was designed to address… . Matter of Benlevi v New York City Dept of Bldgs, 2014 NY Slip Op 02396, 1st Dept 4-8-14

 

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Owners of Land Slated for Development Had Standing to Challenge Procedures Used by the NYS Department of Environmental Conservation to Amend Regulations Affecting Endangered Species/The Land In Question Was Home to Two Endangered Species/Therefore the Amendments Affected the Land Owners Differently from the Public at Large

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that the petitioners (land owners) had standing to raise claims that the NYS Department of Environmental Conservation failed to adhere to certain procedural requirements before adopting amendments aimed at protecting endangered species.  The land, which was designated for economic development, was home to two endangered species.  The Court explained why the petitioners had alleged a unique “injury,” different from injury to the public at large, which comported standing to raise the procedural claims:

Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria” … . Petitioner has the burden of establishing both an injury in fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated … . In land use matters, moreover, petitioner “must show that it would suffer direct harm, injury that is in some way different from that of the public at large” … . These requirements ensure that the courts are adjudicating actual controversies for parties that have a genuine stake in the litigation … . * * *

Petitioners, governmental entities titled to land for the purpose of redevelopment, whose property is subject to the amended regulations, have alleged a sufficient injury in fact for these purposes. We do not, and need not, decide whether land ownership, by itself, could satisfy the injury requirement. As the United States Supreme Court has recognized, a litigant’s ” some day’ intentions -— without any description of concrete plans, or indeed even any specification of when the some day will be —- do not support a finding of the actual or imminent’ injury that our cases require” … . Here, however, there is more than an amorphous allegation of potential future injury. Petitioners have asserted a concrete interest in the matter the agency is regulating, and a concrete injury from the agency’s failure to follow procedure. Moreover, in connection with [a] prior proposal to subdivide the land at issue, DEC provided them with an outline for a comprehensive habitat protection plan and indicated its intention to serve as lead agency for the purposes of SEQRA (State Environment Quality Review Act) review. Petitioners’ allegations are sufficient to satisfy the requirements that they have an actual stake in the litigation and suffer a harm that is different from that of the public at large… .

Petitioners further allege that the violation of these procedural statutes deprived them of an adequate “airing” of the relevant issues and impacts of the proposed amendments, as well as an accurate assessment of the projected costs involved. The asserted statutory provisions set forth certain procedural steps to be followed when promulgating rules or regulations. The alleged violations, including the deprivation of an opportunity to be heard, constitute injuries to petitioners within the zone of interests sought to be protected by the statutes. Most significantly, to deny petitioners standing in this case would have the effect of insulating these amendments from timely procedural challenge — a result that is contrary to the public interest … . Given the compressed four-month statute of limitations (see SAPA 202 [8]), we would be erecting an “impenetrable barrier” to any review of this facet of the administrative action… .  Matter of Association for a Better Long Is Inc v New York State Dept of Envtl Conservation 2014 NY Slip Op 02216, CtApp 4-1-14

 

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Criteria for Judicial Review of Agency’s Action Under the State Environmental Quality Review Act Explained

The First Department determined Supreme Court should not have declared that the NYC Industrial Development Agency’s [IDA’s] issuance of a negative declaration (finding no further environmental review necessary for a project in the Bronx) violated the State Environmental Quality Review Act (SEQRA).  In so finding, the First Department explained the criteria for court review in this context:

“‘[J]udicial review of a SEQRA determination is limited to determining whether the challenged determination was affected by an error of law or was arbitrary and capricious, an abuse of discretion, or was the product of a violation of lawful procedure'” …. “[T]he courts may not substitute their judgment for that of the agency for it is not their role to weigh the desirability of any action or [to] choose among alternatives'” … .

Our review of the record establishes that the determination of IDA not to require a Supplemental Environmental Impact Study (SEIS) was not affected by an error of law, arbitrary and capricious, or an abuse of discretion … . Likewise, the record reflects that, as the lead agency, IDA identified the relevant areas of environmental concern related to the proposed action (including traffic, air quality and noise impact), took the requisite “hard look” at them and, in its negative declaration, set forth a reasoned elaboration of the basis for its determination that a SEIS [Supplemental Environmental Impact Statement] was not required … . Thus, Supreme Court should have declared that IDA’s issuance of a negative declaration did not violate SEQRA, was not arbitrary and capricious, and was not an abuse of discretion. Matter of South Bronx Unitd! v New York City Indus Dev Agency, 2014 NY Slip 02132, 1st Dept 3-27-14

 

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