Administrative Law – Page 9 – New York Appellate Digest

THE EMPLOYER’S REQUEST, AT THE HEARING, TO CROSS-EXAMINE CLAIMANT’S PHYSICIAN SHOULD HAVE BEEN GRANTED; THE LANGUAGE IN THE RELEVANT REGULATION IS MANDATORY (THIRD DEPT).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, determined the Workers’ Compensation Law Judge (WCLJ) should have granted the employer’s request, made at the hearing, to cross-examine the claimant’s physician, who had submitted a report. The Court of Appeals noted that the relevant language in the regulation was mandatory (“shall”):

The rule at issue here provides that, if “the employer or its carrier or special fund desires to produce for cross-examination an attending physician whose report is on file, the referee shall grant an adjournment for such purpose” (12 NYCRR 300.10 [c] …). The mandatory nature of this language contrasts with the language used in the Board’s other rules governing adjournment of hearings, which afford referees discretion and create exceptions to otherwise mandatory rules. For example, if the employer fails to present evidence as directed by the Board, the referee “may adjourn the hearing” and, if the employer fails to present evidence on the adjourned date, the referee “shall proceed to make a decision unless” the referee finds “extraordinary circumstances” warranting “a further adjournment” … . Under the plain language of the rule, the employer properly exercised its rights by making its request at a hearing on the claim prior to the WCLJ’s ruling on the merits … . Matter of Lazalee v Wegman’s Food Mkts., Inc., 2023 NY Slip Op 06343, CtApp 12-12-23

Practice Point: In a Workers’ Compensation hearing, the employer’s request for an adjournment to cross-examine the claimant’s physician must be granted.

December 12, 2023

PETITIONER, A NOT-FOR-PROFIT LOCAL DEVELOPMENT CORPORATION, WAS PROPERLY FOUND TO BE SO CLOSELY AFFILIATED WITH LOCAL GOVERNMENT AS TO MEET THE DEFINITION OF A “LOCAL AUTHORITY” SUBJECT TO THE REPORTING AND OVERSIGHT REQUIREMENTS OF THE STATE OF NEW YORK AUTHORITIES BUDGET OFFICE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the petitioner, a non-for-profit local development corporation, was a “local authority” subject to the reporting and oversight requirements of the respondent State of New York Authorities Budget Office:

… [W]e find that respondent rationally concluded that petitioner is a local authority, in that there is a “close relationship between petitioner and local governments” and petitioner “is the type of entity that the Legislature intended to subject to the provisions of the PAAA” [Public Authorities Accountability Act]. Notably, the purposes of the PAAA and the PARA [Public Authorities Reform Act] include remedying public concerns about transparency and accountability of entities that, like petitioner, “work[ ] with public and private sector partners to spur economic development and meet public needs” … . Matter of Saratoga Economic Dev. Corp. v State of N.Y. Auths. Budget Office, 2023 NY Slip Op 06292, 11-7-23

Practice Point: The State of New York Authorities Budget Office’s administrative determination that petitioner not-for-profit development corporation was a “local authority” subject to the Budget Office’s oversight was not arbitrary and capricious. Supreme Court should not have annulled the determination.

December 7, 2023

Administrative Law, Constitutional Law, Criminal Law, Municipal Law

THE NEW YORK CITY ADMINSTRATIVE CODE PROVISION CRIMINALIZING THE USE OF CERTAIN RESTRAINTS WHICH RESTRICT AIR AND BLOOD FLOW IS VALID (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Garcia, determined the New York City Administrative Code provision which criminalizes the use of restraints which restrict air or blood flow is valid:

We are asked to determine whether section 10-181 of the Administrative Code of the City of New York, which makes criminal the use of certain restraints by police officers during an arrest, violates the New York Constitution on either preemption or due process grounds. Because section 10-181 does not conflict with state law or regulate in a field in which the state has expressly or impliedly precluded local legislation, it is a permissible exercise of local lawmaking authority. The language of the section also provides fair notice of the conduct prohibited and is sufficiently definite to avoid arbitrary or discriminatory enforcement and is therefore not void for vagueness.

In July 2020, New York City Administrative Code § 10-181 became law, making it a misdemeanor offense for any “person” to “restrain an individual in a manner that restricts the flow of air or blood by compressing the windpipe or the carotid arteries on each side of the neck, or sitting, kneeling, or standing on the chest or back in a manner that compresses the diaphragm, in the course of effecting or attempting to effect an arrest” (Administrative Code of City of NY § 10-181 [a], [b]).

… [T]he enactment of section 10-181 was spurred, in large part, by the widely publicized deaths of Eric Garner and George Floyd following the use of force by police officers during their arrests … . Police Benevolent Assn. of the City of New York, Inc. v City of New York, 2023 NY Slip Op 05960, CtApp 11-21-23

Practice Point: A NYC Administrative Code provision criminalizing restraints which restrict blood or air flow is valid and enforceable.

November 20, 2023

Administrative Law, Appeals, Municipal Law, Zoning

THE TOWN ZONING BOARD SHOULD NOT HAVE INTERPRETED THE TERM “SINGLE FAMILY DWELLINGS” SUCH THAT SHORT TERM RENTALS WERE PROHIBITED BECAUSE TRANSIENT TENANTS DO NOT MEET THE DEFINITION OF “FAMILY” (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and annulling the zoning board’s (ZBA’s) ruling, determined the term “single family dwellings” should not have been interpreted to prohibit short-term rentals. The ZBA reasoned that short-term, transient tenants do not meet the definition of “family:”

“[L]ocal zoning boards have broad discretion, and [a] determination of a zoning board should be sustained on judicial review if it has a rational basis and is supported by substantial evidence” … . So long as a zoning board’s interpretation of its governing code “is neither ‘irrational, unreasonable nor inconsistent with the governing [code],’ it will be upheld” … . However, where, as here, the issue presented “is one of pure legal interpretation of [the code’s] terms, deference to the zoning board is not required” … . * * *

… [U]nder the Zoning Ordinance, the transient or temporary nature of a group is but one factor that “may” be considered to determine whether four or more persons who are not related by blood, marriage, or adoption are the “functional equivalent” of a “traditional family.” … [I]f petitioner rented her property to three or fewer persons, or to four or more persons who are related by blood, marriage, or adoption, those groups would meet the Zoning Ordinance’s definition of a “[f]amily” without regard to whether their tenancy was transient or temporary in nature. The ZBA’s determination to the contrary lacked a rational basis … , and the court erred in sustaining the determination. Matter of Friedman v Town of Dunkirk, 2023 NY Slip Op 05912, Fourth Dept 11-17-23

Practice Point: Where a zoning board purports to make a pure legal interpretation of terms used in the zoning code, a court’s deference to the zoning board is not required.

Practice Point: Here the zoning board’s interpretation of the term “family” within the phrase “single family residences” to exclude short-term rentals to transient tenants was irrational.

November 17, 2023

Administrative Law, Civil Procedure

THE PETITIONERS (THREE NYS LEGISLATORS AND AN ADVOCACY GROUP) DID NOT HAVE STANDING TO CHALLENGE THE DEPARTMENT OF HEALTH REGULATIONS ALLOWING ISOLATION AND QUARANTINE DURING THE COVID-19 PANDEMIC (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the three New York State legislators (the legislator petitioners) and the advocacy group (the organizational petitioner) challenging the Department of Health regulations allowing isolation and quarantine during the COVID pandemic did not have standing to bring the petition. Legislators have standing where there has been a usurpation of power by the challenged regulations, not the case here. Advocacy groups have standing if any of its members suffered an injury not suffered by the public at large, not the case here:

… “[C]ases considering legislator standing generally fall into one of three categories: lost political battles, nullification of votes and usurpation of power” … . … “in limited circumstances, legislators do have . . . standing to sue when conduct unlawfully interferes with or usurps their duties as legislators” … . Nonetheless, to confer legislator standing, the alleged action must have caused “a direct and personal injury [that] is . . . within a legislator’s zone of interest and . . . represents a concrete and particularized harm” … . * * *

… [T]he organization petitioner failed to “articulate any direct injury to its [members], other than the injury every citizen allegedly suffers by reason of the challenged [action] of the . . . executive branch[ ]” … . … [W]e conclude … that the organization petitioner lacks standing to bring the challenge in its own name inasmuch as it “has failed to allege a personally concrete and demonstrable injury distinct from that suffered by the public at large” … . Matter of Borrello v Hochul, 2023 NY Slip Op 05834, Fourth Dept 11-17-23

Practice Point: Essentially, to have standing to challenge a regulation, a legislator and/or an advocacy group must be able to point to a harm separate and apart from harm suffered by other legislators (re: the legislator petitioners) or the public at large (re: the organizational petitioner). Here the legislators and the advocacy group challenging the COVID isolation and quarantine regulations were unable to demonstrate any unique harm.

November 17, 2023

Administrative Law, Municipal Law, Negligence

ALTHOUGH DEFENDANT, A DOCTOR, USED A PORTION OF THE TWO-FAMILY HOUSE AS A STUDY OR HOME OFFICE, THE EXCLUSION OF OWNER-OCCUPIED TWO-FAMILY RESIDENCES FROM LIABILITY FOR SIDEWALK DEFECTS APPLIED; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this sidewalk slip and fall case was entitled to summary judgment pursuant to the exclusion of one, two, and three- family residences from liability for sidewalk defects. Although defendant was a doctor and used space in the basement as a study, the residential character of the building was controlling:

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner … . “However, this liability-shifting provision does not apply to ‘one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes'” … . …

… [T]he defendant established … that the premises abutting the public sidewalk was a two-family, owner-occupied residence, and thus, that she is entitled to the exemption from liability for owner-occupied residential property. Contrary to the Supreme Court’s determination, the defendant’s partial use of the basement as an office space was merely incidental to her residential use of the property … . While the defendant testified at her deposition that she was a doctor and used a portion of the basement apartment as a study or home office and that it held office equipment, no evidence indicated that she used the space with regularity or that she claimed the premises as her business address or as a tax deduction. McCalla v Piris-Fraser, 2023 NY Slip Op 05722, Second Dept 11-15-23

Practice Point: Here the owner of the two-family residence abutting the sidewalk where plaintiff slipped and fell was a doctor who had a study or home office in the basement. The home office or study did not transform the property to a business and the doctor was entitled to the “owner-occupied, two-family-residence” exclusion from liability in the NYC Administrative Code re: sidewalk defects.

November 15, 2023

Administrative Law, Education-School Law

THE UNIVERSITY REVIEW BOARD’S FINDING THAT PETITIONER VIOLATED THE STUDENT CODE BY ENGAGING IN SEXUAL MISCONDUCT REVERSED, VIOLATIONS DISMISSED, RECORD EXPUNGED; THERE WAS A DISSENT (SECOND DEPT).

The Second Department, over a dissent, reversing the University Review Board, determined it was not demonstrated that petitioner, a student at Stony Brook University, violated the Student Code by engaging in sexual misconduct. The only issue before the Board and the court was whether S.G., a fellow student, consented to sex. The facts are far to detailed to fairly summarize here. The majority concluded the evidence supported S.G.’s “affirmative consent” to sex. The Student Code violations were dismissed and all references to the Board’s finding are to be expunged from the petitioner’s academic record. Matter of P. C. v Stony Brook Univ., 2023 NY Slip Op 05604, Second Dept 11-8-23

November 8, 2023

Administrative Law, Constitutional Law, Criminal Law, Evidence

THE REGULATIONS ALLOWING FAMILIAL DNA SEARCHES WERE VALIDLY PROMULGATED; THE REGULATIONS ALLOW DNA SEARCHES WHICH REVEAL THE IDENTITY OF FAMILY MEMBERS OF PERSONS IN THE CRIMINAL DNA DATABASE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over an extensive three-judge dissenting opinion, determined the Commission on Forensic Sciences properly promulgated the Familial DNA Search (FDS) Regulations. The regulations allow DNA searches which may reveal the identity of relatives of a persons whose DNA is in the database. The underlying Article 78 petition was brought by two men, never convicted of a crime, whose brothers were in the DNA database as a result of a felony conviction:

There is no provision in the FDS for an identified relative to be notified and/or challenge the search before law enforcement officials may proceed with an investigation based on a familial match from the Databank. Petitioners Terrence Stevens and Benjamin Joseph are two Black men living New York who have never been convicted of a crime. Each has a brother whose genetic information has been collected and stored in the DNA Databank as the result of a felony conviction, in accordance with Databank Act requirements. Mr. Stephens and Mr. Joseph brought this CLPR article 78 proceeding against respondents … alleging … that respondents lacked statutory authority to promulgate the FDS Regulations and therefore violated the separation of powers doctrine under the New York Constitution. Respondents denied petitioners’ allegations and asserted that petitioners lacked standing to challenge the FDS Regulations. * * *

Given the clarity and specificity of the guidelines provided in the Databank Act, respondents acted within their delegated authority. The FDS Regulations are a result of “administrative rule-making,” not “legislative policy-making” … . Here, the legislature made the policy determination that New York State should have well-developed DNA testing programs to assist law enforcement, that the use of the information should be limited, and the data and results secure. Matter of Stevens v New York State Div. of Criminal Justice Servs., 2023 NY Slip Op 05351, CtApp 10-24-23

Practice Point: The regulations allowing familial DNA searches which reveal the identity of relatives of persons in the criminal DNA database are constitutional. There was an extensive three-judge dissent.

October 24, 2023

Administrative Law, Appeals, Civil Procedure

RATHER THAN ADDRESS WHETHER THE REGULATION REQUIRING HOSPITAL PERSONNEL TO BE VACCINATED AGAINST COVID WAS VALID AND ENFORCEABLE, THE FOURTH DEPARTMENT REFUSED TO APPLY THE EXCEPTION TO THE MOOTNESS DOCTRINE TO CONSIDER THE MERITS OF THE APPEAL, FLATLY STATING THE PANDEMIC IS OVER AND IS UNLIKELY TO OCCUR AGAIN (FOURTH DEPT).

The Fourth Department determined the appeal of Supreme Court’s ruling that the regulation requiring hospitals to mandate COVID vaccines for certain personnel exceeded the state’s authority has been rendered moot. The state has repealed the regulation. The exception to the mootness doctrine did not apply:

“[A]lthough the issue of the lawfulness of the [regulation] implemented as part of the extraordinary response to the COVID-19 pandemic is substantial and novel, that issue is not likely to recur” given the once-in-a-century nature of the pandemic and the emergency governmental response thereto … . Moreover, “the issue is not of the type that typically evades review” … . Indeed, the regulation at issue here received significant review from numerous state and federal courts … . In any event, under the circumstances of this case, we would “decline to invoke the mootness exception” … . Matter of Medical Professionals for Informed Consent, Individually & On Behalf of Its Members, Kristen Robillard, M.D., Zarina Hernandez-schipplick, M.D., Margaret Florini, A.S.C.P., Olyesya Girich, Rt (r), & Elizabeth Storelli, R.N., Individually & On Behalf of Others Similarly Situated v Bassett, 2023 NY Slip Op 05052, Fourth Dept 10-6-23

Practice Point: Health care workers lost their jobs if they refused to be vaccinated against COVID-19 based upon the regulation at issue here. At this writing, the COVID booster campaign continues unabated for everyone over six months of age. Yet the Fourth Department refused to consider whether the regulation was valid and enforceable, instead declaring the pandemic over and unlikely to occur again.

October 6, 2023

Administrative Law, Education-School Law

THE PROCEDURE SUNY BUFFALO USED TO QUESTION PARTIES AND WITNESSES ABOUT ALLEGATIONS OF PETITONER-STUDENT’S SEXUAL MISCONDUCT (SUBMITTED WRITTEN QUESTIONS) VIOLATED THE SCHOOL’S TITLE IX POLICY (LIVE CROSS-EXAMINATION); THE SCHOOL’S DETERMINATION WAS ANNULLED AND THE RECORD WAS EXPUNGED (FOURTH DEPT).

The Fourth Department, reversing the State University of New York at Buffalo (SUNY Buffalo) (respondent), held that the determination finding petitioner, a former student, violated the prohibition against sexual violence in the student code of conduct was arbitrary and capricious. The determination was annulled and the record expunged:

… [R]espondent departed from its own published rules and guidelines by adjudicating the alleged misconduct under the Code of Conduct rather than its Title IX Grievance Policy (Title IX Policy). Respondent’s Title IX Policy was established pursuant to 34 CFR 106.44 (b) (1), which requires as relevant here that respondent, in response to a formal complaint, follow a grievance process that complies with 34 CFR 106.45 if it seeks to impose disciplinary sanctions against someone accused of “sexual harassment,” a term that encompasses petitioner’s alleged misconduct … . Although respondent was permitted to dismiss the formal Title IX complaint against petitioner after his withdrawal from the university (see id. § 106.45 [b] [3] [ii]), respondent was nevertheless bound to apply the grievance procedure set forth in § 106.45 if it sought to impose a disciplinary sanction for the alleged misconduct … .

… [T]he questioning procedure provided at the Code of Conduct hearing substantially departed from the questioning procedure set forth in the Title IX Policy, and that the departure rendered respondent’s disciplinary determination arbitrary and capricious … . Respondent’s Title IX Policy, which codifies the regulatory requirements in 34 CFR 106.45 (b) (6) (i), entitles “[e]ach party’s advisor [to] conduct live cross-examination of the other party or parties and witnesses . . . in real time.” However, respondent made the disciplinary determination based on its Code of Conduct questioning procedure, which prohibits live cross-examination and instead limits the parties to submitting written questions to hearing officers in advance of the hearing. “Inasmuch as the United States Supreme Court has recognized that the right to ask questions of an accuser or witness is a significant and critical right” … , and inasmuch as the application of the procedure set forth in the Code of Conduct significantly impeded that right as outlined in the Title IX Policy, we conclude that respondent failed to substantially adhere to its own published rules and guidelines. Matter of Doe 1 v State Univ. of N.Y. at Buffalo, 2023 NY Slip Op 04838, Fourth Dept 9-29-23

Practice Point: SUNY Buffalo’s Title IX policy required live cross-examination of parties and witnesses in a sexual harassment investigation. The school followed its code of conduct which limits the questioning to written questions submitted to the hearing officers. The Title IX policy should have been followed. The determination was annulled and the record was expunged.

September 29, 2023