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THE DENIAL OF AN AREA VARIANCE FOR A GARAGE WHICH WAS BELOW THE MAXIMUM HEIGHT BUT WAS FOUR FEET HIGHER THAN THE RESIDENCE WAS NOT “IRRATIONAL;” THIRD DEPARTMENT REVERSED BY THE COURT OF APPEALS (CT APP).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined the denial of petitioner’s request for an area variance for a garage which was four feet higher than the residence was irrational. The Court of Appeals reversed:

From the Third Department decision:

The relevant question presented by petitioner’s application was whether a four-foot area variance would be out of character with the surrounding neighborhood in an instance, as here, where both structures are under the maximum height limit for an accessory structure and the residence is far below the height limit for a dwelling. … Respondent did not explain why this height differential, in context, would prove detrimental to the neighboring community. * * *

As to “feasible” alternatives, the difficulty here is that the garage had already been constructed before petitioner consolidated the lots and applied for the variance. While this situation may fairly be characterized as self-created, * * * neither respondent nor Supreme Court accounted for the statutory qualifier that a self-created problem, while relevant, “shall not necessarily preclude the granting of the area variance” (Town Law § 267-b [3] [b] [5]). Nor did respondent or Supreme Court address the clear benefit to petitioner of maintaining her garage, as compared to the prospect of having to remove the structure and the attendant financial loss … . Matter of Williams v Town of Lake Luzerne Zoning Bd. of Appeals, 2025 NY Slip Op 04509, Third Dept 7-31-25

Reversed by the Court of Appeals: Matter of Williams v Town of Lake Luzerne Zoning Bd. of Appeals
2026 NY Slip Op 00639, CtApp 2-11-26

 

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THE FIRST DEPARTMENT RULED THAT PLAINTIFF-TENANTS DID NOT DEMONSTRATE, AS A MATTER OF LAW, THAT DEFENDANTS ENGAGED IN A FRAUDULENT SCHEME TO DEREGULATE APARTMENTS WHILE RECEIVING J51 TAX BENEFITS; THE COURT OF APPEALS REVERSED (CT APP).

The First Department, in a full-fledged opinion by Justice Kennedy, over a comprehensive, two-justice dissenting opinion, determined plaintiff-tenants did not demonstrate, as a matter of law, a fraudulent scheme on the part of the defendants re: deregulation of apartments while receiving J51 tax benefits. The Court of Appeal reversed and remitted:

From the First Department decision:

The issues presented on this appeal are (1) what is the appropriate base date rent for calculating damages and (2) whether the record before us sets forth evidence of a fraudulent scheme to deregulate the subject apartments to permit use of the default formula pursuant to Rent Stabilization Code (RSC) (9 NYCRR) § 2526.1(g). * * *

… [W]e conclude that the record before us did not establish evidence of a fraudulent scheme to deregulate the subject apartments as a matter of law, and that it was improper to utilize the default formula to calculate damages … . Aras v B-U Realty Corp., 2023 NY Slip Op 04917, First Dept 10-3-23

Reversed by the Court of Appeals: Aras v B-U Realty Corp., 2026 NY Slip Op 00637. CtApp 2-11-26

 

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THE FOUR-MONTH STATUTE OF LIMITATIONS FOR BRINGING AN ARTICLE 78 PETITION CHALLENGING TERMINATION OF SECTION 8 RENT-SUBSIDY BENEFITS STARTS WHEN THE TENANT BECOMES AWARE OF THE TERMINATION; THE PETITION WAS TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner became aware that the Section 8 rent subsidy benefits were terminated in December 2019 triggering the four-month statute of limitations for challenging the termination. Therefore petitioner’s 2024 article 78 petition was time-barred:

The four-month statute of limitations applies to proceedings terminating Section 8 benefits, and it begins to run upon tenant’s receipt of the T3 letter advising the tenant of that termination (see CPLR 217[1] …). The statute of limitations may be triggered in the absence of actual notice where, as here, the party knew or should have known about the determination … . The record shows petitioner had actual notice in December 2019, so the statutory limitation period to challenge termination of her subsidy started no later than December 31, 2019, and expired on April 30, 2020, well before she commenced the instant proceeding. Matter of Cruz v New York City Hous. Auth. (NYCHA), 2026 NY Slip Op 00420, First Dept 1-29-26

Practice Point: The statute of limitations for bringing an article 78 petition challenging the termination of section 8 rent-subsidy benefits starts when the tenant receives the T3 letter or when the tenant knew or should have known about the termination.

 

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THE INSTALLATION OF A TEMPORARY PEDESTRIAN TRAFFIC SIGNAL AT AN INTERSECTION IS NOT SUBJECT TO THE REQUIREMENT THAT A MUNICIPALITY HAVE WRITTEN NOTICE OF A DEFECTIVE CONDITION; THE COMPLAINT IN THIS PEDESTRIAN-VEHICLE ACCIDENT CASE SHOULD NOT HAVE BEEN DISMISSED BECAUSE THERE WAS NO “WRITTEN NOTICE” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint in this pedestrian-vehicle accident case should not have been dismissed on the ground the defendant city did not have written notice of the allegedly negligently designed temporary pedestrian signal at an intersection. The written notice requirement does not apply to the failure to maintain or install pedestrian signals. In addition, the expert evidence created a question of fact whether the city created the defect through an affirmative act of negligence:

… [T]he requirement that the municipality have prior written notice of the alleged defect before it can be held liable for injuries arising from the defect does not apply here (Administrative Code of City of NY § 7-201[c][2]). The prior written notice requirement applies to physical defects such as holes or cracks in the street, not the failure to maintain or install pedestrian signals … .

Neither plaintiff’s expert nor defendants’ expert, both professional engineers, cite a standard or regulation setting forth specific height requirements for temporary pedestrian signals. In addition, the experts disagree as to whether the temporary pedestrian signal was installed at a proper height. …

An issue of fact also exists as to whether the height or the placement of the signal proximately caused plaintiff’s accident. Although defendants’ expert opined that the temporary pedestrian signal would have been within plaintiff’s field of view, plaintiff testified that he remembered looking for a signal and not seeing one. Plaintiff’s testimony, together with the conflicting expert opinions as to whether the pedestrian signal was installed at a proper height, is sufficient to raise a triable issue of fact as to the City’s negligence … . Harelick v De La Cruz Lora, 2026 NY Slip Op 00315, First Dept 1-27-26

Practice Point: The requirement that a city have written notice of a dangerous condition before liability for an injury will attach applies to physical defects like holes or cracks in the street. It does not apply to an allegedly negligently designed temporary pedestrian traffic signal.

 

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IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT WAS EXEMPT FROM THE NYC SIDEWALK LAW (MAKING ABUTTING PROPERTY OWNERS RESPONSIBLE FOR SIDEWALK MAINTENANCE) BECAUSE HIS PROPERTY IS OWNER-OCCUPIED; HOWEVER THERE IS A QUESTION OF FACT WHETHER DEFENDANT IS LIABLE UNDER THE COMMON-LAW “SPECIAL USE” DOCTRINE; DEFENDANT USED THE SIDEWALK AS A DRIVEWAY FOR HIS GARAGE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing summary judgment in favor of defendant property owner in this slip and fall case, determined there was a question of fact whither defendant was liable for a sidewalk defect bases upon defendant’s “special use” of the sidewalk as a driveway leading to defendant’s garage. Supreme Court properly found that defendant was not liable under the NYC Sidewalk Law, which makes abutting property owners responsible for sidewalk maintenance, because of the statutory exemption for owner-occupied properties. The statutory exception was not, however, a ground for summary judgment here because defendant could be liable under the common-law “special use” doctrine:

The parties agree that the defendant/owner made “special use” of the sidewalk by using it as a driveway … . Where the parties disagree is with respect to the scope of duty under the “special use” exception to liability, and whether it contains a causation requirement that is tied to the owner’s special use. We find that it does. * * *

… [A]n owner will only be liable for a defect on the abutting sidewalk if it is tied to his special use of the property, and not if it arises from a wholly unrelated cause … . * * *

… [T]here are three distinct bases for abutting owner liability at common law: (1) when the owner derives a “special use” from the subject area, (2) when the owner causes the defect, and (3) when a statute otherwise imposes liability. * * *

We are … not persuaded by plaintiff’s argument that it is fair and reasonable to expect an abutting owner who derives a special benefit from a public sidewalk to shoulder the full responsibility for maintaining that part of the sidewalk … . It would be more unfair to saddle a property owner with the general responsibility of maintaining the sidewalk abutting its driveway when its special use did not give rise to the defect. Prete v JJ Hoyt LLC, 2026 NY Slip Op 00325, First Dept 1-22-26

Practice Point: Even where, as here, an abutting property owner is exempt from the NYC statutory requirement to maintain the abutting sidewalk, the property owner may be liable for a defect in the sidewalk based upon the owner’s special use of the sidewalk, here as a driveway leading to the owner’s garage.

 

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A TREE IS NOT A “BUILDING OR STRUCTURE” WITHIN THE MEANING OF LABOR LAW 240 (1); THEREFORE PLAINTIFF’S INJURY, INCURRED WHILE CUTTING A LIMB OFF A TREE, WAS NOT COVERED BY THE LABOR LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s injury while he was cutting a tree was not covered by Labor Law 240 (1). Plaintiff, a county parks department employee, argued that the tree cutting and removal was part of a larger construction project, i.e., setting up a holiday light show:

“Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites” … . The statute “applies where an employee is engaged ‘in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure'” … . “[T]ree cutting and removal, in and of themselves, are not activities subject to Labor Law § 240(1). Those activities are generally excluded from statutory protection because a tree is not a building or structure, as contemplated by the statute but, rather, ‘a product of nature'” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1) by submitting evidence demonstrating that, at the time of his accident, the plaintiff was engaged in tree cutting and removal, which “constituted routine maintenance outside of a construction or renovation context” … . In support of its motion, the defendant submitted, inter alia, transcripts of the deposition testimony of James Leonard, the director of general maintenance for the Department, and Russell Argila, a senior maintenance mechanic in the general maintenance department. Leonard testified that, on the date of the accident, the plaintiff and his coworkers were engaged in “thinning out, pruning trees, dead branches along . . . [a] hillside,” and that the tree the plaintiff was cutting at the time of his accident was part of that work. Argila testified that the tree crew, of which the plaintiff was a member, was “coming up there to clean it up, to do their normal tree work,” and denied that the purpose of the tree work was to prepare for the installation of the [light show]. Peterkin v Westchester Parks Found., Inc., 2026 NY Slip Op 00268, Second Dept 1-21-26

Practice Point: Here tree cutting and removal was deemed “routine maintenance” which was not covered by Labor Law 240 (1) because a tree is not a “building of structure.”

 

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THE TOWN OF BABYLON INDUSTRIAL DEVELOPMENT AGENCY PROPERLY DETERMINED THAT A SENIOR HOUSING PROJECT WAS ENTITLED TO FINANCIAL ASSISTANCE UNDER THE NEW YORK STATE INDUSTRIAL DEVELOPMENT AGENCY ACT (SECOND DEPT).

The Second Department, in a matter of first impression, in a full-fledged opinion by Justice Duffy, determined a senior housing project was entitled to financial assistance under the authority of the New York State Industrial Development Agency Act, affirming the ruling of the Town of Babylon Industrial Development Agency:

The issue on appeal, an issue of first impression for this Court, is whether the respondent Town of Babylon Industrial Development Agency (hereinafter the Babylon IDA) operated within its statutory authority pursuant to the New York State Industrial Development Agency Act (hereinafter the Act) (article 18-A of the General Municipal Law) when it adopted a resolution … determining that a planned affordable senior housing project is included in the type of projects eligible for certain financial assistance and benefits under the Act … . The petitioners appeal from a judgment of the Supreme Court … denying a petition pursuant to CPLR article 78 to review the resolution and dismissing the proceeding. … [W]e affirm on the ground that the court properly determined that the Babylon IDA operated within its statutory authority in granting financial assistance pursuant to the Act. … [T]he determination by the Babylon IDA that a plan to construct affordable senior housing constitutes a “project” as defined in General Municipal Law § 854(4) entitled to financial assistance and benefits under the Act because, among other things, the proposed construction will promote employment opportunities and combat economic deterioration, was rationally based and neither arbitrary and capricious or an abuse of discretion, nor affected by an error of law. The interpretation by the Babylon IDA of the relevant language of the Act comports with the plain meaning of the text contained in the Act as well as the legislative intent of the Act and related authority. Matter of Wyandanch Union Free Sch. Dist. v Town of Babylon Indus. Dev. Agency, 2026 NY Slip Op 00252, Second Dept 1-21-26

 

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THE NYC ZONING RESOLUTION WHICH ALLOWS “JOINT LIVING-WORK QUARTERS FOR ARTISTS” TO BE CONVERTED TO UNRESTRICTED RESIDENTIAL USE UPON PAYMENT OF A $100 PER-SQUARE-FOOT FEE DOES NOT VIOLATE THE “TAKINGS CLAUSE” OF THE US CONSTITUTION (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a concurrence and a dissent. determined that a New York City Zoning Resolution which allows “Joint Living-Work Quarters for Artists” units in SoHo and NoHo to be converted to unrestricted residential use upon payment of $100 per square foot did not violate the Takings Clause in the Fifth Amendment to the US Constitution. The 1971 “Joint Living-Work Quarters for Artists” (JLWQA) designation allowed certified artists to affordably reside and work in buildings formally used for manufacturing which were not zoned for residential use. Over the decades the areas have been gentrified and became predominately occupied by non-artists. The challenged 2021 zoning resolution essentially allows any JLWQA unit to be converted to unrestricted residential unit by paying a fee. The petitioners argued the fee violates the Takings Clause:

We conclude that petitioners do not have a compensable property interest within the meaning of the Takings Clause, as the United States Supreme Court has interpreted it, and that the fee therefore does not constitute a taking. The Takings Clause protects property owners against exploitative governmental conduct that seeks to take property without paying for it … . The newly granted opportunity to transform the essential nature of a restricted JLWQA unit into a different, unrestricted interest is not in itself a property interest. Rather, it is the restricted JLWQA unit itself, and the concomitant bundle of property rights resulting from the City’s designation as such, that constitutes the property that the government cannot take without just compensation. The creation of an optional pathway to convert to unrestricted residential use upon payment of the fee has not extinguished or diminished petitioners’ property rights in their JLWQA units. The City gains no interest in the units upon conversion, and even if petitioners held a constitutionally protected property interest in converting their property, the rezoning plan does not subject petitioners to any governmental coercion to transfer property that they would otherwise retain.

Furthermore, a typical Takings Clause case involves the government’s physical acquisition or use of private land without compensation, or its monetary exaction from a property owner in lieu of a transfer of their private property interest. By contrast, a standalone monetary fee such as the one in this case does not implicate the Takings Clause merely because it is levied upon a property owner. Matter of Coalition for Fairness in Soho & Noho, Inc. v City of New York, 2026 NY Slip Op 00076, CtApp 1-13-26

 

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THE DISMISSAL OF PLAINTIFF’S FEDERAL EMPLOYMENT DISCRIMINATION (RETALIATION) ACTION PURSUANT TO THE NEW YORK STATE HUMAN RIGHTS LAW PRECLUDED A RELITIGATION OF THE RETALIATION CLAIMS IN STATE COURT PURSUANT TO THE NEW YORK CITY HUMAN RIGHTS LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Shulman, determined plaintiff’s employment discrimination (retaliation) cause of action pursuant to the New York City Human Rights Law (NYCHRL) was collaterally estopped by the dismissal of plaintiff’s action in federal court pursuant to the New York State Human Rights Law (NYSHRL):

Plaintiff asserts that his cooperation in [an] investigation [of another employee] provoked animus from his supervisors … who allegedly retaliated by reducing his business opportunities and ultimately terminating him.

Plaintiff alleged seven discrete adverse employment actions: (1) the artificial depression of his revenue; (2) denial of his request to transfer to a new position; (3) reassignment of his clients; (4) denial of funding to attend conferences; (5) a negative performance review; (6) no bonus in 2015; and (7) termination in August 2016. * * *

The City HRL is “uniquely broad and remedial,” requiring courts to construe its provisions “independently from similar or identical provisions of New York state or federal statutes” … . However, the requirement to interpret the City HRL under a more liberal lens does not relieve plaintiff of his burden to produce evidence of a retaliatory motive behind the adverse actions.

* * * Plaintiff’s arguments … invite relitigating facts already adjudicated by two federal courts after full and fair litigation. The federal courts expressly found no retaliatory animus after reviewing extensive evidence. … [T]his compels preclusion.

We emphasize that the City HRL’s liberal construction rule lowers the causation threshold, not the evidentiary one. Once the federal record established the absence of any retaliatory motive, no genuine factual issue remained even under the City HRL’s mixed-motive framework. To allow this case to go to a jury under the guise of liberal construction finds no support in the record. Abromavage v Deutsche Bank Sec. Inc., 2026 NY Slip Op 00052, First Dept 1-8-25

Practice Point: Here the federal courts’ dismissal of plaintiff’s employment discrimination (retaliation) claims pursuant to the New York State Human Rights Law (NYSHRL) precluded relitigation of those claims in state court pursuant to the New York City Human Rights Law (NYCHRL). Consult this opinion for insight into when collateral estoppel will be invoked to preclude a state action under the NYCHRL which raises retaliation claims identical to those dismissed by the federal courts under the NYSHRL. Although the NYCHRL lowers the causation threshold in comparison with the NYSHRL, it does not lower the evidentiary threshold.

 

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IN THIS CHILD VICTIMS ACT CASE, DEFENDANT COUNTY, WHICH HAD ASSUMED CUSTODY OF PLAINTIFF FOSTER CHILD, PLACED PLAINTIFF IN DEFENDANT SCHOOL WHERE SHE ALLEGEDLY WAS SEXUALLY ABUSED BY A TEACHER DAILY FOR SIX MONTHS; THE ALLEGED FREQUENCY OF THE ABUSE RAISED A QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF IT (SECOND DEPT).

he Second Department, reversing Supreme Court, determined this Child Victims Act (CPLR 214-g) action against the county and a school should not have been dismissed. The county had assumed custody over plaintiff, a foster child, and placed her in defendant school. Plaintiff alleged she was sexually abused by a teacher daily for six months. The alleged frequency of the abuse raised a question of fact whether defendants should have known of the abuse (constructive notice):

“By assuming legal custody over [a] foster child, the applicable government official steps in as the sole legal authority responsible for determining who has daily control over the child’s life” … . Therefore, “a municipality owes a duty to a foster child over whom it has assumed legal custody to guard the child from foreseeable risks of harm arising from the child’s placement with the municipality’s choice of foster [home]” … . “In order to find that a child care agency breached its duty to adequately supervise the children entrusted to its care, a plaintiff must establish that the agency had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . “Where the complaint alleges negligent supervision due to injuries related to an individual’s [*2]intentional acts, the plaintiff generally must allege that the entity knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable” … . M.F. v Putnam County, 2025 NY Slip Op 07283, Second Dept 12-24-25

Practice Point: In Child Victims Act cases alleging sexual abuse by a teacher, courts are finding that allegations of frequent abuse raise a question of fact about whether defendants should have been aware of it.

 

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