Municipal Law – Page 147 – New York Appellate Digest

Village Ordinance Prohibiting Crematory Not Preempted by State Law Under Either Express or Conflict Preemption Criteria

The Second Department determined that the Not-for-Profit Corporation Law, which includes “crematory” in the definition of cemetery, did not pre-empt a village ordinance prohibiting the construction of a crematory in petitioner’s cemetery. Both express preemption and conflict preemption were addressed by the court:

The Supreme Court correctly determined that Not-for-Profit Corporation Law article 15 did not preempt any attempt at local regulation of cemeteries under the doctrine of “field preemption.” That doctrine “applies under any of three different scenarios. First, an express statement in the state statute explicitly avers that it preempts all local laws on the same subject matter. Second, a declaration of state policy evinces the intent of the Legislature to preempt local laws on the same subject matter. And third, the Legislature’s enactment of a comprehensive and detailed regulatory scheme in an area in controversy is deemed to demonstrate an intent to preempt local laws” … . * * *

Thus, although Not-for-Profit Corporation Law article 15 governs the operation of corporations which own and manage cemeteries, it does not expressly preempt zoning ordinances relating to land use by cemeteries. Further, there is no declaration of State policy in either Not-for-Profit Corporation Law article 15 or the rules and regulations promulgated under it that evinces any such intent (see N-PCL 1501…). Finally, the regulatory scheme under Not-for-Profit Corporation Law article 15 does not evince the Legislature’s desire to preempt the local zoning law … . Accordingly, the Not-for-Profit Corporation Law did not preempt the field of cemetery regulation.

The Supreme Court properly determined that Not-for-Profit Corporation Law § 1502(d) does not invalidate the Village’s more restrictive definition of “cemetery” under the doctrine of conflict preemption. The Not-for-Profit Corporation Law is addressed to the management of cemetery corporations, and the definition contained in the Not-for-Profit Corporation Law addresses the scope of that law. By contrast, the Village Code’s definition of “cemetery,” which excludes crematories, is addressed to land use, which is another matter entirely. Since the differing definitions of “cemetery” are addressed to differing purposes, they are not in direct conflict … . Matter of Oakwood Cemetery v Village/Town of Mount Kisco, 2014 NY Slip Op 01616, 2nd Dept 3-12-14

March 12, 2014

Use of Church Property Sufficient to Maintain Tax-Exempt Status

The Third Department determined the City (respondents) did not demonstrate church-owned property was no longer used for religious purposes. Therefore the City could not revoke the tax-exempt status of the property:

Although the burden of proof in tax exemption matters ordinarily lies with the party seeking an exemption, a municipality seeking to withdraw an existing exemption bears the burden of proving that the real property in question has become subject to taxation … . Here, although it is undisputed that petitioners continue to be organized exclusively for tax-exempt religious purposes, respondents contend that their properties are not entitled to tax exemptions because they are no longer “used primarily for the furtherance of [religious] purposes” … . To meet their burden in this regard, respondents contend that statements made by the Diocese establish that the properties no longer function as churches, that regular worship services and religious activities that were formerly conducted on the properties now take place elsewhere, and that the parcels are now investment properties being marketed for sale for the non-exempt purpose of generating income.

… Petitioners … submitted affidavits from church officials stating that both properties continue to be used for religious services conducted to serve the spiritual needs of the parish faithful, in the form of monthly morning prayers on one of the properties and periodic prayer services that include scripture readings and communion services on the other. Contrary to respondents’ contention that such occasional or periodic use cannot be deemed to be primary,”[i]t is the actual or physical use of the property” that determines whether it is exempt from real property taxation … . Here, the record reveals that petitioners’ only actual or physical use of their properties is for religious purposes. Absent any showing by respondents that the properties are used for anything other than the religious purposes for which petitioners were organized, the mere fact that this use is now less frequent does not alter the properties’ tax-exempt status … . The record also includes a letter from a Diocese official to the Assessor averring that the properties are used to store religious artifacts and fixtures. Matter of St Williams Church of Troy…, v Dimitriadis…, 516532, 3rd Dept 3-6-14

March 6, 2014

Eminent Domain, Municipal Law

Criteria for Valuation of Vacant Land Explained

The Second Department determined Supreme Court properly valued the condemned vacant land. Supreme Court rejected the village’s contention that Supreme Court had improperly incorporated the enhancement of value resulting from the inclusion of the property in the village’s urban redevelopment plan. The court explained the criteria for determining the value of vacant land:

In a case involving the taking of property, “[t]he measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time” … .Where an increment is added to the value of vacant land to reflect its development potential, “the specific increment which is selected and applied must be based on sufficient evidence and be satisfactorily explained” … . Moreover “[i]t is … necessary to show that there is a reasonable possibility that the property’s highest and best asserted use could or would have been made within the reasonably near future, and a use which is no more than a speculative or hypothetical arrangement may not be accepted as the basis for an award” … .”[A] condemnee may not receive an enhanced value for its property where the enhancement is due to the property’s inclusion within a redevelopment plan” … . Thus, for example, property zoned for industrial use “should be valued in accordance with the industrial zoning designation which would apply if the redevelopment plan did not exist,” for “[a] condemnee is only entitled to compensation for what it has lost, not for what the condemnor has gained”… . Matter of Village of Haverstraw (AAA Electricians Inc), 2014 NY Slip Op 01332, 2nd Dept 2-26-14

February 26, 2014

Administrative Law, Landlord-Tenant, Municipal Law

Termination of Petitioner’s Tenancy Based Upon An Isolated Angry Outburst Targeting a Housing Authority Employee Is “Shocking to the Conscience”

The First Department, after finding substantial evidence to substantiate the charges made by the housing authority (NYCHA) against the tenant-petitioner, determined the termination of the tenancy was “shocking to the conscience.” Petitioner had acted out angrily in a confrontation with a housing authority employee:

…[W]e find that termination of petitioner’s tenancy, is, based on the reviewable facts in this record, a penalty that is shocking to the conscience and that must be vacated. We have found this to be so in similar cases of tenants engaging in fits of rage targeted at NYCHA employees, where the conduct was isolated or specifically related to circumstances that gave some explanation for the behavior. For example, in Matter of Winn v Brown …, this Court found that, while NYCHA’s determination of nondesirability was supported by substantial evidence of the petitioner’s actions, which “[included] screaming profanities, racial epithets and making threats to respondent’s employees,” the termination of the petitioner’s tenancy was shocking to the conscience given that the incidents in question occurred when the tenant was having difficulty securing a transfer despite threats being made against the life of her son. In Matter of Spand v Franco …, this Court remanded to NYCHA for imposition of a lesser penalty where the tenant engaged in conduct that was “serious” and “appropriately condemned,” but eviction was disproportionate because the incident was isolated, the tenant was the mother of three small children and there was no evidence of other problems which posed a risk to other people or property. Even where a tenant “accosted” a NYCHA representative, termination was considered too harsh because the incident was isolated and because, like here, the target of the tenant’s wrath was not seriously injured … . Matter of Rock v Rhea, 2014 NY Slip Op 01268, 1st Dept 2-25-14

February 25, 2014

Landlord-Tenant, Municipal Law, Real Property Law, Trusts and Estates

Public Trust Doctrine Re: Allowing a Restaurant in a Public Park/License and Lease Characteristics Compared

In a full-fledged opinion by Judge Graffeo, the Court of Appeals determined that a the city’s allowing a restaurant to operate in a public park did not violate the public trust doctrine and the arrangement between the city and the restaurant was a valid license, not a lease (which would have required approval by the legislature):

Under the public trust doctrine, dedicated parkland cannot be converted to a non-park purpose for an extended period of time absent the approval of the State Legislature … . * * * … [A]lthough it is for the courts to determine what is and is not a park purpose, … the Commissioner enjoys broad discretion to choose among alternative valid park purposes. Observing that restaurants have long been operated in public parks, we [in 795 Fifth Ave Corp v City of New York, 15 NY2d 221] rejected plaintiffs' public trust claim, holding that they could show only a “difference of opinion” as to the best way to use the park space and that this “mere difference of opinion [was] not a demonstration of illegality”… . * * *

We have stated that parkland cannot be leased, even for a park purpose, absent legislative approval … . * * *

A document is a lease “if it grants not merely a revocable right to be exercised over the grantor's land without possessing any interest therein but the exclusive right to use and occupy that land” … . It is the conveyance of “absolute control and possession of property at an agreed rental which differentiates a lease from other arrangements dealing with property rights” …. . A license, on the other hand, is a revocable privilege given “to one, without interest in the lands of another, to do one or more acts of a temporary nature upon such lands” … . That a writing refers to itself as a license or lease is not determinative; rather, the true nature of the transaction must be gleaned from the rights and obligations set forth therein. Finally, a broad termination clause reserving to the grantor “the right to cancel whenever it decides in good faith to do so” is strongly indicative of a license as opposed to a lease … . Union Square Park Community Coalition Inc v New York City Department of Parks and Recreation, 17, CtApp 2-20-14

February 20, 2014

False Arrest, Malicious Prosecution, Municipal Law

Elements of False Arrest and Malicious Prosecution Explained

The Second Department reversed Supreme Court and dismissed plaintiff’s false arrest and malicious prosecution action. The court explained the elements of the two intentional torts:

“In order to prevail on a cause of action seeking to recover damages for false arrest or imprisonment, a plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged” … . “The existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim of false imprisonment or false arrest”… . Generally, information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest'” … . * * *

“The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” … . “Once a suspect has been indicted, . . . the indictment creates a presumption of probable cause to believe that the suspect committed the crime” … . “The presumption may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, [or] that they have withheld evidence or otherwise acted in bad faith” … . Williams v City of New York, 2014 NY Slip Op 01165, 2nd Dept 2-19-14

February 19, 2014

Constitutional Law, Municipal Law, Real Property Tax Law

County Could Not Shift Obligation to Pay Property Tax Refunds to Taxing Districts

In a full-fledged opinion by Judge Abdus-Salaam, which includes extensive historical, theoretical, constitutional and statutory discussions of the issues involved, the Court of Appeals determined Nassau County could not shift its obligation to pay real property tax refunds from the county to its individual taxing districts. The county’s attempt to supersede a special state tax law exceeded its statutory and constitutional authority:

As limited by the State and Federal Constitutions' protection of individual rights and restriction of State power, the State Constitution establishes the State government as the preeminent sovereign of New York, and the three coordinate branches of the State government may exercise the entire legislative, executive and judicial power of the State, as entrusted to them by the people … .Given that the authority of political subdivisions flows from the State government and is, in a sense, an exception to the State government's otherwise plenary power, the lawmaking power of a county or other political subdivision “can be exercised only to the extent it has been delegated by the State”… .. Furthermore, because the Constitution expressly imbues the State government, rather than any locality, with “[t]he power of taxation” (NY Const art XVI, § 1), State law governs the tax field unless the State Legislature or the Constitution unambiguously delegates certain taxation authority to a political subdivision… . Matter of Baldwin Union Free School District v County of Nassau, 9, CtApp 2-18-14

February 18, 2014

Employment Law, Human Rights Law, Municipal Law

Plaintiff Raised a Question of Fact About Whether Her Employment Was Terminated in Retaliation for Protected Activity

The Fourth Department concluded plaintiff had raised a question of fact about whether the termination of her employment with the county was in retaliation for protected activity. The wife of plaintiff’s boss was a special education teacher working with plaintiff’s son. Shortly after complaining to the school district about the special education plaintiff’s son was receiving, plaintiff’s job was eliminated. The Fourth Department summarized the applicable law as follows:

In order to make out a claim for unlawful retaliation under state or federal law, a plaintiff must show that “(1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action” … .In order to establish entitlement to summary judgment in a retaliation case, a defendant may “demonstrate that the plaintiff cannot make out a prima facie claim of retaliation” or, alternatively, a defendant may “offer legitimate, nonretaliatory reasons for the challenged actions,” and show that there are “no triable issue[s] of fact . . . whether the . . . [reasons are] pretextual”… . * * *With respect to the element of a causal connection, we note that such element “may be established either ‘indirectly by showing that the protected activity was followed closely by [retaliatory] treatment, . . . or directly through evidence of retaliatory animus directed against a plaintiff by the defendant’ ”… . Calhoun v County of Herkimer, 1303, 4th Dept 2-14-14

February 14, 2014

Municipal Law, Negligence

Fall from Subway Platform Not the Result of Negligent Crowd Control

The Second Department reversed Supreme Court and dismissed a lawsuit stemming from plaintiff’s decedent’s fall from a subway platform to the tracks below. The court explained the negligence criteria with respect to the crowd on a subway platform:

“A subway company is not negligent merely because it permits crowds to gather on its platform. Before proof of negligence in this regard may be said to exist, it must be shown that the crowd was so large and unmanaged that a user of the platform was restricted in his free movements or was unable to find a safe standing place, and that as a result of either of those conditions an injury was sustained” … .Here, there is no evidence that the crowd on the subway platform was so large and unmanaged that it restricted the decedent’s freedom of movement to the extent necessary to impose liability on the Transit Authority. The evidence in the record was insufficient to make out a prima facie case of negligence against the Transit Authority and, in effect, was insufficient to establish that any negligence was a proximate cause of the decedent’s injuries… . Garcia v New York Tr Auth, 2014 NY Slip Op 00961, 2nd Dept 2-13-14

February 13, 2014

Municipal Law, Zoning

Criteria for Review of a Zoning Amendment Explained

In upholding the propriety of the amendment, the Fourth Department explained the criteria for review of a zoning amendment:

It is well settled that a zoning amendment enjoys a “strong presumption of validity” …, and the decision of defendant Common Council of the City to amend the zoning ordinance should not be disturbed where, as here, the amendment is in accordance with the City’s comprehensive plan … . Further, “[c]ompliance with the statutory requirement is measured . . . in light of the long-standing principle that one who challenges such a legislative act bears a heavy burden” … . “ ‘If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control’ ” … . “Thus, where the plaintiff fails to establish a clear conflict with the comprehensive plan, the zoning classification must be upheld” … . Restuccio…v City of Oswego…, 1284, 4th Dept 2-7-14

February 7, 2014