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IN RESPONSE TO PETITIONER’S FOIL REQUESTS, THE TOWN DID NOT CITE ANY EXEMPTION FOR THE IDENTIFIED RECORDS WHICH WERE NOT PRODUCED AND DID NOT CERTIFY THOSE RECORDS DID NOT EXIST; IN ADDITION THE TOWN DID NOT EXPLAIN THE REASONS FOR THE REDACTIONS IN THE PRODUCED RECORDS; ALL IN VIOLATION OF THE PUBLIC OFFICERS LAW; MATTER REMITTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court and remitting the matter, determined that the respondent town did not explain its failure to produce the determinations made in 51 of the 54 appeals identified in response to the petitioner’s FOIL request and did not explain the reasons for redactions made in the records which were provided:

… Supreme Court erred in dismissing so much of the petition/complaint as sought, in effect, to compel the production of all responsive records or, in the alternative, to certify that the respondent does not possess the requested records and that they could not be located after a diligent search. The respondent does not dispute that it failed to produce the determinations made in 51 of the 54 appeals that were identified in response to the petitioner’s request. The respondent did not claim a specific exemption to disclosure in denying the petitioner’s request for those determinations. Accordingly, the respondent was required to either produce those records or certify that it does not possess the requested records and that they could not be located after a diligent search (see Public Officers Law § 89[3][a] …).

Supreme Court also erred by determining that the respondent’s redactions were permissible to prevent unwarranted invasions of personal privacy pursuant to Public Officers Law § 87(2)(b). In an administrative appeal of an agency’s denial of access to records, the agency is required to “fully explain in writing . . . the reasons for further denial” (Public Officers Law § 89[4][a]). “[J]udicial review of an administrative determination is limited to the grounds invoked by the agency and the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” … . Here, the respondent failed to respond to the petitioner’s administrative appeal, and failed to otherwise reference Public Officers Law § 87(2)(b) as a justification for the redactions. To provide the respondent the benefit of justifications it did not advance in the first instance “contravenes Court of Appeals precedent ‘as well as the spirit and purpose of FOIL'” … . Matter of Aron Law, PLLC v Town of Hempstead, 2025 NY Slip Op 05519, Second Dept 10-8-25

Practice Point: Under FOIL (Public Officers Law) identified records must be produced unless an exemption is demonstrated to apply or the respondent certifies that the records could not be found after a diligent search. In addition, the reasons for any redactions in produced records must be explained. Here Supreme Court should not have dismissed aspects of the FOIL petition in the absence of these required responses by the town.

 

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THE COMMISSIONER’S FAILURE TO REVIEW THE HEARING OFFICER’S DETAILED DECISION BEFORE TERMINATING THE PETITIONER’S EMPLOYMENT RENDERED THE COMMISSIONER’S DETERMINATION “UNAVOIDABLY ARBITRARY” (THIRD DEPT). ​

The Third Department, reversing Supreme Court in this Article 78 proceeding, determined the respondent Panunzio, Commissioner of the City of Albany’s Department of General Services, did not review the hearing officer’s detailed decision before terminating petitioner’s employment with the city. Therefore the Commissioner’s determination was “arbitrary” and the Article 78 petition should not have been dismissed:

… [F]ollowing a disciplinary hearing held pursuant to Civil Service Law § 75 (2), a hearing officer “shall make a record of such hearing which shall, with his [or her] recommendations, be referred to such officer or body [having the power to remove the employee] for review and decision” … . The resulting administrative]determinations are entitled to a presumption of regularity … and, “in the absence of a clear revelation that the administrative body made no independent appraisal and reached no independent conclusion, its decision will not be disturbed” … . …

Panunzio did not … review the Hearing Officer’s detailed and thorough decision, as such was read into the record at the hearing and the hearing transcript was not received until after the determination terminating petitioner had already been issued. As Panunzio was unable to review the Hearing Officer’s complete report and findings, respondents had “no basis upon which to act” and their determination was thus “unavoidably . . . arbitrary” … . To be sure, a reviewing officer need not review all evidence presented before the hearing officer or defer to his or her findings … . Nevertheless, to permit respondents to issue a determination without even having the availability of the Hearing Officer’s complete report and findings would render the requirements of Civil Service Law § 75 (2) meaningless … . Matter of Alexander v City of Albany, 2025 NY Slip Op 04949, Third Dept 9-11-25

Practice Point: Hear the Commissioner terminated petitioner’s employment without first reading the detailed decision by the hearing officer, which the Commissioner is required to do by statute. The Commissioner’s determination was thereby rendered “arbitrary.” Petitioner’s Article 78 petition should not have been dismissed.

 

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THERE ARE QUESTIONS OF FACT WHETHER THE FORFEITURE OF THE VEHICLE USED FOR FOOD VENDING WITHOUT A LICENSE IS “PUNITIVE” IN NATURE AND VIOLATES THE “EXCESSIVE FINES” CLAUSES OF THE NEW YORK STATE AND UNITED STATES CONSTITUTIONS; THE FINES IMPOSED FOR THE FOOD VENDING VIOLATION WERE $2600 AND THE VALUE OF THE VEHICLE IS $40,000 (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined the forfeiture of Thomas Jones’ vehicle for food vending without a license violated the Excessive Fines clauses of both the State and Federal Constitutions. The vehicle was worth $40,000, and the fine imposed for vending without a license was $2600:

The City … commenced this proceeding in Supreme Court pursuant to Administrative Code of City of NY §§ 17-321(c) and 17-322 to seize and order forfeiture of Jones’ truck. Administrative Code § 17—321(a) permits both public health officials and the police to enforce food vending codes. Section 17-321(c)(iii) permits police or public health officials to seize a food vending vehicle being used by an unlicensed vendor and any food being offered for sale. If forfeiture proceedings are not commenced, the vendor may be charged with the “reasonable costs for removal and storage payable prior to the release of such food, vehicle or pushcart.” Section 17—322(a) provides for forfeiture of “all property seized” from unlicensed food vendors “[i]n addition to any penalties imposed” pursuant to Section 17-325. Section 17-325(a) provides that vending food without a license is a misdemeanor punishable by a fine of up to $1,000, imprisonment for up to three months, or both. Section 17-325(c) provides for additional fines for unlicensed food vendors.

The motion court denied the City’s motion for summary judgment on the grounds that there are questions of fact as to: (1) whether the forfeiture provision at issue is punitive in nature; and (2) whether the value of the property seized is so disproportional to the fines imposed and any harm to society that it violates the excessive fines clauses of the New York and United States Constitutions. We now affirm. City of New York v Jones, 2025 NY Slip Op 04842, First Dept 9-4-25

Practice Point: Consult this opinion for an in-depth discussion of when forfeiture is deemed “punitive” in nature such that forfeiture violates the Excessive Fines clauses of the State and Federal Constitutions.

 

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HERE THE ARGUMENT THAT NECESSARY PARTIES HAD NOT BEEN JOINED SHOULD NOT HAVE BEEN REJECTED; THE PROPER REMEDY IS TO SUMMON THE NECESSARY PARTIES, NOT DISMISSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the proper remedy for the failure to include a necessary party is to summon the missing party, not dismiss the action:​

The nonjoinder of necessary parties may be raised at any stage of the proceedings, by any party or by the court on its own motion, including for the first time on appeal” … . “Necessary parties are defined as ‘[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action'” … . “The rule serves judicial economy by preventing a multiplicity of suits. It also insures fairness to third parties who ought not to be prejudiced or embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard” …. “Dismissal of an action or proceeding for nonjoinder of a necessary party is only a last resort” …. Therefore, “[w]hen a necessary party has not been made a party and is ‘subject to the jurisdiction’ of the court, the proper remedy is not dismissal of the complaint or the petition, but rather for the court to direct that the necessary party be summoned” … .

Supreme Court improperly rejected the respondents’ contention that the petitioners failed to join necessary parties. The petitioners sought to annul so much of the Village Board’s resolution …  as appointed Tucci to his position [with the Village Fire Department], and the court granted that request. Since Tucci was a person “who might be”—and in fact was—”inequitably affected by a judgment” in this proceeding (CPLR 1001[a]), he was a necessary party … . Similarly, as the petitioners sought relief that could result in a change to the leadership of the Fire Department, the Board of Fire Wardens was also a necessary party … .

… [D]ismissal of this proceeding is not the appropriate remedy for nonjoinder of Tucci and the Board of Fire Wardens … . Instead, “[u]nder these circumstances, the appropriate procedure is for the Supreme Court to determine whether [those parties] can be summoned and, if joinder cannot be effectuated, to determine whether the proceeding[ ] may nevertheless proceed in [their] absence, upon consideration of the factors set forth in CPLR 1001(b)” … . Matter of Riverside Hose Co., Inc. v Village of Tarrytown Vil. Bd., 2025 NY Slip Op 04793, Second Dept 8-27-25

Practice Point: Consult this decision for a definition of “necessary parties” within the meaning of CPLR 1001(b) and an explanation of the proper procedure for dealing with the failure to join a necessary party.

 

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PLAINTIFF SLIPPED AND FELL ON SNOW FIVE HOURS AFTER THE “EXTRAORDINARY SNOWSTORM” HAD ENDED; THE STORM-IN-PROGRESS RULE APPLIED AND DEFENDANT TRANSIT AUTHORITY WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant transit authority’s motion for summary judgment in this slip and fall case should have been granted pursuant to the “storm in progress” rule. :Plaintiff slipped an fell on an uncovered staircase at a subway station. The fall happened five hours after the end of “an extraordinary snowstorm:”

Under the storm in progress rule, a property owner will not be held liable for accidents caused by accumulation of snow unless “an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” … . “[T]he question of whether a reasonable time has elapsed may be decided as a matter of law by the court, based upon the circumstances of the case” … .

Here, the defendant made a prima facie showing of its entitlement to judgment as a matter of law by submitting an affidavit of a meteorologist, with attached certified climatological data, which demonstrated that at the time of the plaintiff’s accident, less than five hours had passed since the end of an extraordinary snowstorm … . In opposition, the plaintiff failed to raise a triable issue of fact … . Harris v New York City Tr. Auth., 2025 NY Slip Op 04635, Second Dept 8-13-25

Practice Point: The storm in progress rule applies for a period of time after the precipitation stops. Here the rule was applied to a slip and fall which occurred five hours after an “extraordinary snowstorm.”

 

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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 DEEMED “IRRATIONAL” (THIRD DEPT).

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 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

 

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THE ZONING BOARD’S DENIAL OF A STREET FRONTAGE VARIANCE WAS NOT SUPPORTED BY SPECIFIC FACTUAL FINDINGS MAKING COURT-REVIEW IMPOSSIBLE; MATTER REMITTED TO THE BOARD (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting the matter to the town Zoning Board of Appeals, determined the Board must set forth its reasons for denying a variance. Without specific factual support for the denial in the record, court review is impossible:

… [T]he Board failed to sufficiently set forth the specific factual support in the record, or the specific findings, upon which it relied in denying the requested street frontage variance … . Although at the hearing, certain Board members put on the record their individual grounds for denying a street frontage variance, the Board granted the request for an area variance for the same proposed lot, approving the three-lot subdivision. Thus, the record contains inconsistencies between the written determination and the hearing transcript with respect to the grounds for the Board’s determination.

When the Supreme Court, in effect, affirmed the Board’s denial of a street frontage variance, the court improperly “surmised or speculated as to how or why the board reached its determination” … . Accordingly, absent adequate grounds to support the challenged determination, the judgment must be reversed and the matter remitted to the Board so that it may set forth factual findings in proper form … . Matter of Mancuso v Zoning Bd. of Appeals of the Town of Mount Pleasant, 2025 NY Slip Op 04479, Second Dept 7-30-25

Practice Point: A Zoning Board of Appeals must support its ruling with a specific factual record to allow court review. If the record does not support the ruling, the court is forced to speculate. Here the matter was remitted to the Board to make factual findings.​

 

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BEFORE GRANTING THE AREA VARIANCE, THE ZONING BOARD OF APPEALS DID NOT REFER THE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW; THE DETERMINATION WAS ANNULLED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the petition contesting the area variance granted by the Village of Brockport Zoning Board of Appeals (ZBA) should not have been dismissed on statute of limitations grounds. The General Municipal Law requires that the ZBA first refer a variance application to the planning board, which was not done. Therefore the ZBA ‘s determination was annulled and the petition reinstated:

… General Municipal Law § 239-m requires that a village zoning body, before taking final action on specified proposed actions, refer such proposed actions to a county planning agency for its recommendation (see § 239-m [2]-[4] …). Use and area variances, if they apply to real property set forth in the statute, are proposed actions for which referral is required … . Nevertheless, a county planning agency may enter into an agreement with a village “to provide that certain proposed actions . . . are of local, rather than inter-community or county-wide concern, and are not subject to referral” under the statute … . * * *

Inasmuch as the agreement does not exempt [the] application for an area variance from the referral requirement … and the ZBA did not refer the application to the county planning agency, the ZBA’s approval of the application is jurisdictionally defective … . Consequently, the statute of limitations did not begin to run upon the filing of the jurisdictionally defective document with the village clerk, and the court thus erred in granting the motion to dismiss the petition as untimely … . Moreover, the ZBA’s failure to refer [the] application for an area variance to the county planning agency under these circumstances renders its approval of the application ” ‘null and void’ ” … . Inasmuch as the ZBA’s approval of the area variance is null and void, the further appropriate remedy is to remit the matter to the ZBA for a new determination on [the] application … . … [W]e reverse the judgment, deny the motion, reinstate the petition, grant the petition in part, annul the ZBA’s determination granting the area variance, and remit the matter to the ZBA for a new determination on the application. Matter of Johnson v Zoning Bd. of Appeals of Vil. of Brockport, 2025 NY Slip Op 04326, Fourth Dept 7-25-25

Practice Point: When dealing with local zoning issues, read the applicable statutes and rules carefully. The municipality’s failure to comply with them may provide an opening for judicial action. Here the ZBA’s failure to refer an area variance application to the planning board before granting the application rendered the ZBA determination null and void.​

 

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ALTHOUGH THE NOTICE OF CLAIM IN THIS SLIP AND FALL ACTION AGAINST THE CITY WAS SERVED ONE DAY LATE, AND PLAINTIFF WAS SO NOTIFIED BY THE CITY, THE CITY ALSO INDICATED IN SEVERAL COMMUNICATIONS THAT IT WAS CONSIDERING THE CLAIM; THE CITY WAS THEREFORE EQUITABLY ESTOPPED FROM ASSERTING THE NOTICE OF CLAIM WAS NOT TIMELY SERVED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case against NYC, determined the city was equitably estopped from asserting the notice of claim was untimely served. Although the notice of claim was served one day after the 90-day deadline, and the city initially notified plaintiff that service was untimely, subsequent communication from the city indicated the claim was being considered:

The plaintiff’s submissions established that although the Comptroller sent the plaintiff a letter dated March 6, 2020, indicating that a notice of claim was not timely filed within 90 days from the date of occurrence, the Comptroller sent the plaintiff another letter, also dated March 6, 2020, acknowledging receipt of the notice of claim, which was assigned a claim number, and stating that “[w]e will do our best to investigate and, if possible, settle your claim.” That letter also stated that “if we are unable to resolve your claim, any lawsuit against the City must be started within one year and ninety days from the date of the occurrence,” without any reference to the claim being untimely … . Further, the plaintiff’s attorney averred that on March 21, 2021, the City sent a letter requesting certain documents from the plaintiff “to evaluate the claim for settlement purposes” and that the plaintiff’s attorney emailed the requested documents the following day. The plaintiff also submitted an email dated March 25, 2021, from Millicent Nicholas-Richards, Negotiation and Settlement Supervisor for the New York City Law Department, acknowledging receipt of the requested documents, and stating that “[w]e are reviewing” and that the plaintiff’s attorney would be contacted if any additional documents were needed. Thus, the plaintiff demonstrated that the defendants made representations that the plaintiff’s claim was under consideration for settlement and that the plaintiff did not need to take any action other than providing documents “for settlement purposes” or to commence an action against the City within one year and 90 days if a settlement was not possible. Under these circumstances, the plaintiff, who did not move to deem the notice of claim timely served or to extend the time to serve the notice of claim within the one year and 90 day limitations period, was “lulled . . . into sleeping on [his] rights to [his] detriment” … .Guo En Tan v City of New York, 2025 NY Slip Op 04161, Second Dept 7-16-25

Practice Point: The notice of claim in this slip and fall action against the city was served one day late. Communications from the city indicated the city was considering the claim. The deadline for making a motion for leave to serve and file a late notice of claim passed. At that point, the city was equitably estopped from asserting the notice of claim was not timely served as a defense to the action.​.

 

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CLAIMANT MADE AN APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM CONCERNING INJURIES INCCURRED WHEN WORKING FOR THE CITY; CLAIMANT WAS ENTITLED TO PRE-ACTION DISCOVERY TO ESTABLISH WHEN THE CITY GAINED ACTUAL KNOWLEDGE OF THE FACTS UNDERLYING THE CLAIM (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimant was entitled to pre-action discovery to support his allegation that the city had timely notice of his accident which would warrant leave to file a late notice of claim:

In determining whether to grant an application for leave to serve a late notice of claim, “the court must consider, inter alia, whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality” … . ” ‘While the presence or absence of any single factor is not determinative, one factor that should be accorded great weight is whether the [municipality] received actual knowledge of the facts constituting the claim in a timely manner’ ” … .

… In support of his application, claimant sought, inter alia, any incident reports concerning the accident and any correspondence between respondents concerning the accident. Claimant alleged that he told his employer about the incident five days after it occurred and believed that his employer notified the City of the accident at that time.

… Supreme Court abused its discretion in denying that part of his application seeking pre-action discovery (see CPLR 3102 [c]). Under the circumstances of this case, claimant demonstrated that pre-suit discovery is needed in support of his application for leave to serve a late notice of claim for the purpose of establishing when the City had actual knowledge of the facts constituting the claim … . Matter of Wisnowski v City of Buffalo, 2025 NY Slip Op 03886, Fourth Dept 6-27-25

Practice Point: When applying for leave to file a late notice of claim, demonstrating the municipality had actual knowledge of the facts underlying the claim within 90 days of the accident is crucial. Here the claimant alleged his employer told the city about the accident five days after it occurred. Claimant was entitled to pre-action discovery on that issue.​

 

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