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HERE THE ADMINISTRATOR OF PLAINTIFF’S DECEDENT’S ESTATE BROUGHT A WRONGFUL DEATH ACTION IN SUPREME COURT AND DEFENDANTS MOVED FOR SUMMARY JUDGMENT ARGUING PLANTIFF’S EXCLUSIVE REMEDY WAS WORKERS’ COMPENSATION; RATHER THAN DECIDE THE MOTION, SUPREME COURT SHOULD HAVE REFERRED THE MATTER TO THE WORKERS’ COMPENSATION BOARD WHICH HAS PRIMARY JURISDICTION RE: THE APPLICABILITY OF THE WORKERS’ COMPENSATION LAW (SECOND DEPT).

The Second Department reversed Supreme Court’s denial of defendants’ summary judgment motion in this wrongful death action and referred the matter to the Workers’ Compensation Board. Whether, as defendants argued in their motion, plaintiff’s decedent’s exclusive remedy is Workers’ Compensation must be determined by the Workers’ Compensation Board before a court can consider the issue:

“The Workers’ Compensation Law ‘is designed to insure that an employee injured in course of employment will be made whole and to protect a coemployee who, acting within the scope of his [or her] employment caused the injury'” … . “[P]rimary jurisdiction” for determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board (hereinafter the Board) … , and it is therefore inappropriate for the courts to express views with respect thereto in the absence of a determination by the Board … . “Where the issue of the applicability of the Workers’ Compensation Law is in dispute, and a plaintiff fails to litigate that issue before the Board, a court should not express an opinion as to the availability of compensation, but should refer the matter to the Board because the Board’s disposition of the plaintiff’s compensation claim is a jurisdictional predicate to the civil action … . Guang Qi Lin v Xiaoping Lu, 2025 NY Slip Op 00309, Second Dept 1-22-25

Practice Point: Here in this wrongful death action defendants argued plaintiff’s exclusive remedy was Workers’ Compensation. Because that issue had not been determined by the Workers’ Compensation Board, Supreme Court could not rule on it and should have referred the matter to the Board which has primary jurisdiction on the applicability of the Workers’ Compensation Law.

 

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PETITIONER ADEQUATELY DESCRIBED THE RECORDS SOUGHT FROM THE POLICE DEPARTMENT AND THE DEPARTMENT DID NOT MAKE ANY EFFORT TO ASSIST PETITIONER IN IDENTIFYING THE RECORDS AS REQUIRED BY THE REGULATIONS; DENIAL OF THE PETITION REVERSED AND MATTER REMITTED (SECOND DEPT). ​

The Second Department, reversing the denial of the petition to compel the disclosure of Nassau County Police Department records and remitting the matter, noted that the applicable regulations require the Department to assist the petitioner in identifying the records sought:

… [P]etitioner made a request pursuant to the Freedom of Information Law … for certain records pertaining to the creation or maintenance of the Department’s current databases. Specifically, the petitioner requested: (1) “Any Requests for Proposals (RFPs), Requests for Qualifications (RFQs), and contracts pertaining to the creation or maintenance of the Department’s current database(s)”; (2) “The data dictionary, glossary of terms, record layout, entity relationship diagram, user guide, and any other records that describe the Department’s database(s)”; and (3) “The instruction manual or any other type of guide, distributed to law enforcement personnel dictating how they should use the database(s).”

… [T]he Department’s Legal Bureau denied the request on the ground that the petitioner did not reasonably describe the database to which he was referring. …

… [T]he petitioner’s requests were not vague or unlimited. They were circumscribed as to subject matter—the records pertaining to the creation or maintenance of the Department’s current databases—and the time period … . …

… [R]egulations enacted under FOIL by the Committee on Open Government provide that, upon receipt of a FOIL request, agency personnel are required to “assist persons seeking records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records” (21 NYCRR 1401.2[b][2]). Here, there is no evidence that, before denying the petitioner’s request, the Department made any effort to work with the petitioner to more precisely define the information desired, if possible … . Matter of Lane v County of Nassau, 2025 NY Slip Op 00220, Second Dept 1-15-24

Practice Point: Here the petitioner adequately identified the police department records at issue and the police department made no effort to assist petitioner in identifying the records as required by the applicable regulations. The FOIL petition should not have been denied.

 

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THE TREE WELL IN THE SIDEWALK WHERE PLAINTIFF TRIPPED AND FELL WAS THE RESPONSIBILTY OF THE CITY, NOT DEFENDANT ABUTTING PROPERTY OWNER (FIRST DEPT). ​

The First Department, reversing Supreme Court in this slip and fall case, determined that maintenance of the tree well within the sidewalk where plaintiff fell was the responsibility of the city, not the defendant property owner:

Defendant established its prima facie entitlement to summary judgment by submitting plaintiff’s pleadings and deposition testimony, along with photographic evidence showing the area where the sidewalk connects to the tree well and marked by plaintiff at her deposition to show where she fell. This evidence, taken together, establishes that plaintiff fell when she stepped into and out of the perimeter of the tree well, not when she stepped on an uneven sidewalk slab or other sidewalk defect … . The perimeter of the tree well is not part of the sidewalk whose maintenance is the responsibility of the abutting property owner under Administrative Code of City of NY § 7-210 … . Rather, the perimeter of the tree well is part of the tree well itself, which the City, not the property owner responsible for the sidewalk, has the obligation to maintain in a safe condition … .

Defendant also submitted an affidavit and deposition testimony from one of its owners, stating that the tree wells near the property were installed by the City and that neither defendant nor any building tenant constructed the tree well, maintained it, repaired it, or put it to special use. This evidence was sufficient to show that defendant did not affirmatively create the dangerous condition, negligently make repairs to the area, or cause the dangerous condition to occur through a special use of the area. Thus, there was no basis to impose liability on the defendant … . Cabral v Triangle, LLC, 2025 NY Slip Op 00187, First Dept 1-14-25

Practice Point: In NYC tree wells, as opposed to the surrounding sidewalks, are the responsibility of the city, not the abutting property owner. Here plaintiff tripped and fell stepping into a tree well. Defendant abutting property owner was off-the-hook.

 

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PURSUANT TO THE NEW YORK CITY HUMAN RIGHTS LAW, PROPERTY OWNERS (LANDLORDS) MAY BE HELD VICARIOUSLY LIABLE FOR THE DISCRIMINATORY CONDUCT OF THEIR AGENTS IN DEALING WITH PROSPECTIVE TENANTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kennedy, determined the owners of housing accommodations may be vicariously liable (pursuant to the NYC Human Rights Law) for discrimination by their agents who deal with prospective tenants. Here plaintiff is an indigent person with AIDS. The complaint alleges he was denied housing by defendant, who acted as an agent for defendant property owners:

… [A]bsent vicarious liability, landlords would evade liability under the City HRL except when they directly interact with a prospective tenant. This is neither the mandate of the statute, nor supported by the legislative intent behind § 8-107 of the City HRL … .

The text of the City HRL also supports the imposition of vicarious liability upon landlords. Specifically, the key statutory remedy in the City HRL for housing discrimination is to approve the rental and to provide housing (see Administrative Code § 8-120[a][7]). Moreover, §§ 8-122 and 8-502 permit a tenant allegedly aggrieved by discriminatory practices to seek injunctive relief. In the absence of vicarious liability against owners, who have title to the prospective property, these remedies would be unavailable and rendered meaningless … . Newson v Vivaldi Real Estate LTD., 2025 NY Slip Op 00052, First Dept 1-7-25

Practice Point: Pursuant to the NYC Human Rights Law, landlords may be vicariously liable for the discriminatory conduct of their agents in dealing with prospective tenants.

 

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THE SO-CALLED “LUXURY DEREGULATION” PROVISION OF THE NYC RENT STABILIZATION LAW WAS REPEALED AS OF JUNE 14, 2019; APARTMENTS WITH LEASES IN EFFECT ON THE REPEAL DATE WHICH, PRIOR TO THE REPEAL, HAD BEEN ORDERED TO BECOME DEREGULATED, WERE NO LONGER ELIGIBLE FOR DEREGULATION AS OF JUNE 14, 2019 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, determined that the NYC Division of Housing and Community Renewal (DHCR) properly interpreted a provision of the Rent Stabilization Law which repealed the so-called “luxury deregulation” of rent stabilized residences. Prior to the operative date of the repeal, June 14, 2019, landlords could deregulate apartments if the tenant’s income exceeded the statutory threshold for two years:

Our primary task on this appeal is statutory interpretation. Specifically, we are asked to determine whether the Division of Housing and Community Renewal (DHCR) properly interpreted part D of the Housing Stability and Tenant Protection Act of 2019 (HSTPA)—repealing so-called “luxury deregulation” of rent stabilized residences—as applying to apartments that, prior to the repeal, were ordered to become deregulated upon expiration of the tenants’ leases, which would not expire until after the effective date of the repeal. We answer that question in the affirmative and hold that, contrary to petitioner’s contention, DHCR’s interpretation of part D as eliminating luxury deregulation for an apartment owned by petitioner was proper and did not constitute an impermissible retroactive application. Matter of 160 E. 84th St. Assoc. LLC v New York State Div. of Hous. & Community Renewal, 2024 NY Slip Op 06377, CtApp 12-19-24

 

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THE ZONING BOARD’S DENIAL OF A USE VARIANCE FOR CONSTRUCTION OF A SOLAR ENERGY GENERATION FACILITY WAS “ARBITRARY AND CAPRICIOUS;” MATTER REMITTED FOR ISSUANCE OF THE VARIANCE (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Pritzker, determined petitioners were entitled to a use variance for the construction of a solar energy generation facility, finding the denial of the variance “arbitrary and capricious:”

… [R]espondent erred in failing to afford petitioners a reduced showing relative to their application as a public utility because of the project’s minimal impact … . That the project will have a minimal impact was not only recognized by Supreme Court, but also is fully supported by the evidence in the record, including the unanimous State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]) determination which found no significant environmental impacts … . * * *

… [O]ne cannot quarrel with the premise that New York State’s goal of transitioning to renewable energy is designed to benefit the public at large, and this project is in line with that goal … . * * *

… [P]etitioners’ submissions to respondent establish ” ‘that there are compelling reasons, economic or otherwise, which make it more feasible to [grant a use variance]’ ” than to use an alternative site … . Matter of Freepoint Solar LLC v Town of Athens Zoning Bd. of Appeals, 2024 NY Slip Op 06409, Third Dept 12-19-24

Practice Point: Consult this opinion for a rare rejection of an administrative finding as “arbitrary and capricious.” In light of the minimal environmental impact of a solar energy facility and the state policy supporting the transition to clean energy, the zoning board’s reasons for denying the use variance were deemed untenable.

 

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AN ELECTRICAL SUBCONTRACTOR WHICH IS NOT LICENSED IN NEW YORK CITY CANNOT SUE FOR PAYMENT FOR WORK DONE IN THE CITY AND CANNOT FORECLOSE ON RELATED MECHANIC’S LIENS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff electrical subcontractor, Mikoma Tech, did not prove it was licensed to perform electrical work in New York City. Therefore plaintiff could not sue for breach of contract or under a quantum meruit theory and could not foreclose on mechanic’s liens:

… [T]he complaint … failed to allege that Mikoma Tech was licensed to perform electrical work in New York City. As Mikoma Tech was not licensed to perform electrical work in the City, it may not recover against the defendants under a breach of contract or quantum meruit theory and has forfeited the right to foreclose on mechanic’s liens … . Mikoma Elec., LLC v Otek Bldrs., LLC, 2024 NY Slip Op 06332, Second Dept 12-18-24

Practice Point: The rule requiring a license to perform electrical work in New York City is strictly construed. The unlicensed contractor cannot sue for payment and cannot foreclose mechanic’s liens.

 

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NYC MUST PAY CITY EMPLOYEES, RETIREES AND DEPENDENTS THE FULL COST, UP TO THE STATUTORY CAP, OF ANY HEALTH INSURANCE PLAN THE CITY OFFERS (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined NYC was required to pay city employees, retirees and dependents the full cost, up to the statutory cap, of any health insurance plan the city offers:

At issue on this appeal are the portions of Administrative Code of the City of New York § 12-126 requiring New York City (“City”) to pay, for active employees, retirees and their dependents, “the entire cost of health insurance coverage,” defined as “[a] program of hospital-surgical-medical benefits,” in an amount “not to exceed one hundred percent of the full cost of H.I.P.-H.M.O. on a category basis.” The statute requires that the City’s program includes “hospital[,] surgical [and] medical benefits.” The statute also requires the City to pay the full cost of the program, so long as that cost does not exceed the comparator in the statute. The question in this case is what section 12-126 requires the City to do when it offers more than one health insurance plan to employees and retirees. Petitioners argue that section 12-126 requires the City to pay, up to the statutory cap, for any plan it offers. The City contends that its section 12-126 obligation is satisfied if it pays up to the cap for one health insurance plan providing hospital, surgical and medical benefits. It argues that it may offer additional plans but has no statutory obligation to pay any portion of their cost, and explains that when it has paid for additional plans in the past, it has done so because it agreed to in collective bargaining, not because it was statutorily required to do so. The parties also disagree as to which health insurance plan sets the statutory cap for Medicare-eligible retirees.

We hold that section 12-126 requires the City to pay up to the statutory cap for any plan it offers to employees and retirees. Matter of NYC Org. of Pub. Serv. Retirees, Inc. v Campion, 2024 NY Slip Op 06291, CtApp 12-17-24

 

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AFTER THE DEATH OF THE COOPERATIVE OWNER, THE BOARD REFUSED TO TREAT PETITIONER AS DECEDENT’S “SPOUSE” WHICH WOULD AUTHORIZE AN AUTOMATIC TRANSFER OF DECEDENT’S LEASE AND SHARES; THE MAJORITY, OVER TWO DISSENTING OPINIONS, DETERMINED THE BOARD’S REFUSAL TO TREAT PETITIONER, WHO WAS NOT MARRIED TO DECEDENT, AS A “SPOUSE” DID NOT CONSTITUTE DISCRIMINATION BASED ON “MARITAL STATUS” (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over two dissenting opinions, determined the cooperative board did not discriminate against the petitioner when it declined to treat petitioner as the decedent-cooperative-owner’s “spouse” for the purpose of transferring decedent’s shares to petitioner:

Petitioner Maryanne McCabe resided for 13 years in a New York City cooperative building with her “long-time romantic partner,” David Burrows. Upon Burrows’ death, he willed his real property, including his unit in the building, to petitioner, who then sought to acquire his lease and shares under a lease provision authorizing an automatic transfer to a shareholder’s “spouse.” The cooperative board declined to treat petitioner as a spouse but offered to consider whether she could retain the lease and shares under a clause covering a shareholder’s family member. Petitioner argues that the board’s failure to treat her as a spouse for purposes of the automatic transfer provision violated the prohibition against discrimination on the basis of marital status under the New York City Human Rights Law (NYCHRL) (see Administrative Code of City of New York § 8-107 [5]). We disagree. * * *

The two were neither married nor in a registered domestic partnership, and petitioner was never added as a shareholder of his unit. Burrows bequeathed his apartment to petitioner when he passed away … . * * *

The NYCHRL does not define “marital status,” but Black’s Law Dictionary defines it as “[t]he condition of being single, married, legally separated, divorced, or widowed” (Black’s Law Dictionary [12th ed 2024], marital status). Along the same lines is the general understanding: “when one is queried about one’s ‘marital status,’ the usual and complete answer would be expected to be a choice among ‘married,’ ‘single,’ etc.” … . A plain reading of the term, then, is that marital status reflects the legal condition of being single, married, legally separated, divorced, or widowed. Marital status turns on whether an individual has “participated or failed to participate in a marriage …”. Matter of McCabe v 511 W. 232nd Owners Corp., 2024 NY Slip Op 06290, CtApp 12-17-24

Practice Point: The cooperative board’s refusal to treat a “long time romantic partner” of the decedent-cooperative-owner as decedent’s “spouse” for purposes of an automatic transfer of the lease and shares did not constitute discrimination on the basis of “marital status” under the NYC Human Rights Law.

 

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THE JUDGE SHOULD NOT HAVE DENIED THE MOTION TO DISMISS THE ARTICLE 78 PETITION/COMPLAINT AND THEN CONSIDERED THE MERITS OF THE PETITION/COMPLAINT WITHOUT ALLOWING RESPONDENT TO INTERPOSE AN ANSWER; THE JUDGE SHOULD NOT HAVE DISMISSED THE PETITION/COMPLAINT ON GROUNDS NOT ADDRESSED BY THE UNDERLYING ADMINSTRATIVE RULING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge could not deny the motion to dismiss the Article 78 petition/complaint and then consider the merits and dismiss the petition/complaint before allowing the respondent to interpose an answer. In addition, the court did not have the authority to consider issues not addressed by the underlying administrative ruling. The action was brought by an owner of shares in a cooperative (petitioner) against the co-op board (respondent) which denied petitioner’s application to convert an office to a residential unit:

… Supreme Court erred by considering the merits of the petition/complaint and, in effect, denying the petition/complaint and dismissing the proceeding/action, after it denied the co-op’s motion, inter alia, pursuant to CPLR 3211(a) to dismiss the petition/complaint. In a CPLR article 78 proceeding, if a motion to dismiss the petition is denied, “the court shall permit the respondent to answer” … . Here, the court should not have decided the merits of the petition seeking relief under CPLR article 78, as the co-op had not yet filed an answer … , and it cannot be said, on this record, “that the facts are so fully presented in the parties’ papers that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer” … .

Moreover, under all the circumstances, including that issue had not been joined and that branch of the co-op’s motion which pursuant to CPLR 3211(a) to dismiss the petition/complaint was not converted into a motion for summary judgment, there was no basis for the Supreme Court, in effect, to dismiss the proceeding/action after concluding that the co-op was not entitled to dismissal of the petition/complaint pursuant CPLR 3211(a) … .

Further, it has “long been the rule that judicial review of an administrative determination is limited to the grounds presented by the agency at the time of its determination” … . A reviewing court is “powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” … . Here, when the Supreme Court, in effect, affirmed the board’s denial of the application, the court improperly “surmise[d] or [*3]speculate[d] as to how or why” the board reached its determination and improperly relied on grounds not mentioned in the denial letter … . Matter of 195 N. Vil. Ave., LLC v 195 Apts., Inc., 2024 NY Slip Op 06037, Second Dept 12-4-24

Practice Point: Once a judge denies a motion to dismiss a petition/complaint, the merits of the petition/complaint should not be considered before the respondent interposes an answer.

Practice Point: A judge reviewing an administrative ruling cannot decide the merits on grounds not addressed by the administrative ruling.

 

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