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Criteria for Review of State Liquor Authority (SLA) Determination Explained

In affirming Supreme Court’s determination that the State Liquor Authority (SLA) should have granted petitioner’s application for a liquor license, the Second Department explained its review powers:

In reviewing the SLA’s determination of whether the public convenience and advantage would be served by granting or denying an application for a retail liquor license, the inquiry of the court is strictly limited to whether the SLA acted arbitrarily and capriciously … . A determination is “arbitrary and capricious when it is taken without sound basis in reason or regard to the facts” … .

Judicial review of a determination by the SLA “is limited to the grounds invoked by the agency” … . “If those grounds are inadequate or improper, the court is powerless to affirm the administrative [determination] by substituting what it considers to be a more adequate or proper basis” … . Furthermore, reliance upon an improper basis for its determination requires that the determination be annulled, regardless of whether the SLA also relied, in part, upon valid considerations … . Matter of Costco Wholesale Corp v New York State Liquor Auth, 2015 NY Slip Op 01274, 2nd Dept 2-11-15

 

Appendix Incomplete—Appeal Dismissed

The Second Department dismissed an appeal because the appendix did not include necessary documents:

“An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal” … . “The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent” (22 NYCRR 670.10-b[c][1]; see CPLR 5528[a][5]…), including “material excerpts from transcripts of testimony or from papers in connection with a motion” …, and critical exhibits (see 22 NYCRR 670.10-b[c][1][vi]). Here, the plaintiff omitted from her appendix critical exhibits and material excerpts from transcripts of testimony. These omissions “inhibit the court’s ability to render an informed decision on the merits of the appeal” … . Accordingly, the appeal must be dismissed. Beizer v Swedish, 2015 NY Slip Op 01229, 2nd Dept 2-11-15

 

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Failure to Inform Defendant of His Right to Counsel for an Appeal Taken by the People Deprived Defendant of that Right

The Second Department determined that a defendant must be informed of his right to counsel on an appeal taken by the People:

A defendant has important interests at stake on an appeal by the People, and is thus entitled to certain protections, including “the right to appellate counsel of defendant’s choice and the right to seek appointment of counsel upon proof of indigency” … . “The ultimate duty of informing the defendant of his right to have counsel on appeal rests with the State” … and, absent record evidence that the defendant was informed of the right to counsel and waived that right, the Appellate Division should not proceed to consider and decide an appeal by the People … . Since there is no such record evidence in this case, we agree with the defendant’s contention that he was deprived of his constitutional right to counsel on the People’s appeal to this Court … . Accordingly, we assign counsel to represent the defendant on the People’s appeal …, and will consider and decide the remainder of the application upon the submission of all briefs. People v Clemente, 2015 NY Slip Op 01287, 2nd Dept 2-11-15

 

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Newspaper Carriers Were Employees Despite Reference to Them as Independent Contractors In Employment Agreement

The Third Department affirmed the Appeal Board's determination that claimant newspaper-carrier was an employee, not an independent contractor. and therefore was entitled to unemployment insurance benefits, despite the “independent contractor” language in the contract:

“Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the. . . [B]oard, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion” … . “An employer-employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results [although] control over the means is the more important factor to be considered” … .

The evidence provided ample support for the Board's finding that [the employer] exercised control over significant aspects of the carriers' work and the means used to achieve timely and proper deliveries, and the Board's determination that the carriers were its employees is consistent with prior cases involving essentially similar facts … . … “[a] different finding is not compelled by the existence of a written agreement that identifies claimant as an independent contractor” … . Matter of Isaacs…, 2015 NY Slip Op 01215, 3rd Dept 2-11-15

 

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Order Granting a Motion In Limine Is Appealable If It Effectively Limits the Presentation of a Legal Theory at Trial

The Fourth Department determined the order granting defendant's motion in limine was appealable because the order limited the theories available for use at trial, not merely the admissibility of evidence (which would not be appealable).  The Fourth Department found that the motion in limine should not have been granted because it effectively precluded plaintiffs from introducing evidence of continuous representation which may have tolled the statute of limitations in this legal malpractice action:

In the order on appeal, the court granted defendants' motions to preclude plaintiffs from introducing evidence that any of the defendants represented plaintiffs with respect to any issue other than an issue in the context of a medical malpractice action against a physician. The effect of that order was to limit plaintiffs to introducing evidence that, in 1994, one of the defendants made a statement to Gary M. Dischiavi (plaintiff) indicating that the medical malpractice action was not viable.

We note at the outset that, although the parties do not address the appealability of this order determining a motion in limine, we conclude that plaintiffs may appeal from the order at issue … . “Generally, an order ruling [on a motion in limine], even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . This Court has noted, however, that “there is a distinction between an order that limits the admissibility of evidence,' which is not appealable . . . , and one that limits the legal theories of liability to be tried' or the scope of the issues at trial, which is appealable” … . Here, the order precluded the introduction of the vast majority of the evidence on the issue whether defendants continued to represent plaintiffs so as to toll the statute of limitations, and thus it is appealable because it limits the scope of the issues at trial … . Dischiavi v Calli, 2015 NY Slip Op 01116, 4th Dept 2-6-15

 

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Whether Arbitrator Erred In Applying the Applicable Law Is Beyond the Courts’ Review Powers

In affirming the arbitrator's award re: no-fault benefits, the Second Department explained the courts' limited review powers (re: arbitration awards):

“Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly applied” … . Here, Allstate failed to demonstrate the existence of any of the statutory grounds for vacating the master arbitrator's award. In addition, the determination of the master arbitrator confirming the original arbitration award had evidentiary support and a rational basis … . “It is not for [the court] to decide whether [the master] arbitrator erred [in applying the applicable law]” … . Matter of Allstate Ins v Westchester Med Group, 2015 NY Slip Op 00876, 2nd Dept 2-4-15


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Criteria for Determining the Clarity or Ambiguity of the Terms of a Contract Explained

In affirming the verdict after a bench trial (finding the relevant terms of a contract unambiguous), the Second Department explained its review powers and outlined the analytical criteria re: the determination of the clarity or ambiguity of the terms of a contract:

“In reviewing a determination rendered after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing the witnesses and hearing the testimony” … . “The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry of whether the writing is ambiguous in the first instance. If the language is free from ambiguity, its meaning may be determined as a matter of law on the basis of the writing alone without resort to extrinsic evidence” … . “When interpreting a contract, the construction arrived at should give fair meaning to all of the language employed by the parties, to reach a practical interpretation of the parties' expressions so that their reasonable expectations will be realized” … . “The terms of a contract are clear and unambiguous when the language used has a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion” … . Palumbo Group v Poughkeepsie City Sch Dist, 2015 NY Slip Op 00857, 2nd Dept 2-4-15


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Appellate Court Defers to Agency Interpretation of a Statute When Specialized Knowledge Required

The Third Department affirmed the State Budget Director’s determination that state employees normally not entitled to overtime pay are eligible for overtime pay if they worked more than 47.5 hours in a week as a result of Hurricane Sandy.  Petitioners sought overtime pay for those who worked more than 40 hours per week.  The Third Department explained when an appellate court must defer to the statutory interpretation made by a state agency (the court so deferred here):

Initially, we must determine whether the Budget Director’s interpretation of Civil Service Law § 134 (6) is entitled to deference. This Court will defer to the governmental agency responsible for the administration of a statute when interpretation of the language at issue requires the agency’s expertise in the matters covered by the statute, but will accord no such deference when “the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent” … . Although the Civil Service Law provides that the “workweek for basic annual salary” for employees who are eligible for overtime shall not exceed 40 hours (Civil Service Law § 134 [1]), overtime-ineligible employees are expressly excluded from the coverage of that section, and nothing else in the legislation defines the phrase “normal workweek” as used in Civil Service Law § 134 (6) for such employees or prescribes the number of hours contained in such a workweek. Under these circumstances, in our view, the number of hours in the “normal workweek” of an overtime-ineligible state employee necessarily implicates the Budget Director’s specialized knowledge of state employment practices and “involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom” … . Accordingly, this Court will defer to the Budget Director’s determination and uphold it if it is not irrational or unreasonable … . Matter of Kent v Cuomo, 2015 NY Slip Op 00680, 3rd Dept 1-29-15

 

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Revocation of Pistol Permit Upheld Despite Petitioner’s Acquittal on Related Criminal Charges—No Formal Revocation Hearing Is Required

In affirming the revocation of a pistol permit, the Third Department explained the criteria for review.  Here the petitioner had displayed a weapon during an altercation with a neighbor and had been acquitted of the related menacing charges.  The Third Department noted that no formal revocation hearing is required as long as petitioner has notice of the charges and an opportunity to respond:

There is no question that “[r]espondent [the judge who revoked the permit] is vested with broad discretion in determining whether to revoke a pistol permit and may do so for any good cause, including a finding that the petitioner lack[s] the essential temperament or character which should be present in one entrusted with a dangerous instrument. . . , or that he or she does not possess the maturity, prudence, carefulness, good character, temperament, demeanor and judgment necessary to have a pistol permit” … . No formal revocation hearing is required, and due process will be satisfied where the petitioner has been provided with notice of the charges and afforded an adequate opportunity to respond thereto … . Upon review, “respondent’s resolution of factual issues and credibility assessments are accorded deference, and the determination will not be disturbed absent an abuse of discretion or a showing that [such determination] was made in an arbitrary and capricious manner” … . Matter of DeAngelo v Burns, 2015 NY Slip Op 00669, 3rd Dept 1-29-15

 

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Criteria for Piercing the Corporate Veil Explained/Appellate Review Powers Re: a Bench Trial Described

The Second Department determined Supreme Court (in a bench trial) had properly pierced the corporate veil to find the owner personally liable.  The court described the criteria for piercing the corporate veil and noted that, in reviewing a bench trial, the appellate court has the same fact-finding powers as the trial court:

“In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and we may render a judgment we find warranted by the facts, bearing in mind that in a close case, the trial court had the advantage of seeing and hearing the witnesses” … .

“The general rule . . . is that a corporation exists independently of its owners, who are not personally liable for its obligations, and that individuals may incorporate for the express purpose of limiting their liability” … . The doctrine of piercing the corporate veil is an exception to this general rule, allowing the imposition of individual liability on owners for the obligations of their corporation “to prevent fraud or to achieve equity” … . “A plaintiff seeking to pierce the corporate veil must demonstrate that a court in equity should intervene because the owners of the corporation exercised complete domination over it in the transaction at issue and, in doing so, abused the privilege of doing business in the corporate form, thereby perpetrating a wrong that resulted in injury to the plaintiff” … . AZTE Inc v Auto Collection Inc, 2015 NY Slip Op 00711, 2nd Dept 1–28-15

 

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