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PROPOSED 2019 ELECTION REFERENDUM REGARDING PUBLIC EDUCATION OFFICIALS IN THE CITY OF ROCHESTER IS IMPERMISSIBLY ADVISORY AND WAS PROPERLY DECLARED VOID (FOURTH DEPT).

The Fourth Department determined the proposed 2019 referendum on amendments to City of Rochester Local Laws regarding the Board of Education, Commissioners and the salaries of School Board Members was impermissibly advisory:

Any local law that “[a]bolishes an elective office” or “reduces the salary of an elective officer during his [or her] term of office” is subject to mandatory referendum (Municipal Home Rule Law § 23 [2] [e]), but an “advisory” referendum—i.e., one that lacks legal effect or consequence—is not permitted in the absence of express constitutional or statutory authority for it … .

Contrary to respondents’ contention, we conclude, for two independent reasons, that the referendum on the Local Law is impermissibly advisory and, thus, that the court properly declared the Local Law invalid and the referendum void. First, the language of section 5 of the Local Law, which conditions its effectiveness on subsequent action by the New York State Legislature, strips the referendum of any binding legal effect (…see … Municipal Home Rule Law § 23 [1]). Second, as the court correctly noted, a local government may not legislate in areas “where the State has evidenced its intent to occupy the field” … , and it is well established that the State has preempted local action in the field of public education … . Matter of Rochester City Sch. Dist. v City of Rochester, 2019 NY Slip Op 06449, Fourth Dept 9-4-19

 

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TOWN LAW DID NOT PROHIBIT PETITIONER FROM RUNNING FOR TOWN JUSTICE IN TWO DIFFERENT TOWNS SIMULTANEOUSLY (THIRD DEPT).

The Third Department determined the Town Law did not prohibit simultaneously running for Town Justice in two different towns:

At issue is the portion of Town Law § 20 (4) providing that “[n]o person shall be eligible to hold more than one elective town office.” Petitioner interprets this to mean that no person may hold more than one elective office, even if those offices are in separate towns. Bacon [respondent] asserts that this language prohibits a person from holding more than one elective office only within the same town. Because the quoted language is ambiguous and both proffered interpretations are reasonable, we must view the language in the context of the whole statute … . …

Viewing the prohibition in context, Town Law § 20 makes provision for town offices for each town, by class, and contains no other language suggesting that one person cannot fulfill elective town offices in more than one town. Moreover, the prohibition is contained in the same sentence as a provision allowing a town board to consolidate its own town offices and positions, strongly suggesting that the entire subdivision (4) of Town Law § 20 refers to what is permitted in an individual town. …

We further agree with Supreme Court that the offices of town justice in separate towns are not incompatible offices. …Serving as town justice in two separate towns involves jurisdiction over separate, defined geographic town boundaries and each town court thereof (see Town Law § 2). Moreover, the Legislature has expressly recognized that one person may, under certain circumstances, serve as town justice in more than one town (see UJCA 106 [2]; 106-a, 106-b). Although those circumstances are not present here, these statutes indicate the Legislature’s view that no conflict exists to prevent a person from serving as town justice in two towns simultaneously. Matter of Nichols v Bacon, 2019 NY Slip Op 06434, Third Dept 8-29-19

 

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UNDER THE TERMS OF THE LEASE AND VILLAGE REGULATIONS, THE HERKIMER COUNTY INDUSTRIAL DEVELOPMENT AGENCY, AS THE OWNER OF PROPERTY ABANDONED BY THE TENANT, IS RESPONSIBLE FOR THE UNPAID WATER CHARGES INCURRED BY THE TENANT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined Herkimer County Industrial Development Agency (HCIDA) as the owner of property which had been abandoned by the tenant was responsible to the Village for water charges incurred by the tenant:

… [W]here, as here, an owner “consents to the tenant’s using water in [a] building, supplied through pipes installed by the owner, or continued by the owner, for the purpose of connecting the building with the [municipality’s] water main, the owner assents to the [municipality’s] supplying water to the tenant for use in the building” … . In the case before us, it appears that the water pipes of the facility that were connected to the Village’s water mains “were installed by the owner of the [facility], if not by the present owner, [HCIDA], then by [its] predecessor in title and the connection was never shut off or disconnected by [HCIDA],” and we note that “[t]he only purpose of maintaining a connection between [the facility] and the [Village’s] water mains [was] to have the [Village] supply the [facility] with water”… . Moreover, the lease contemplated that the tenant would incur utility charges as part of its operation, use, and occupancy of the leased facility. “When such assent [to] or arrangement [for the tenant’s use of water] is made, it must be deemed to be made with a view to the existing law” … . We therefore must evaluate the existing law at the time of HCIDA’s assent to the Village supplying water to the tenant in order to determine whether liability for the unpaid water rents may be imposed upon HCIDA. …

… [U]nder the section entitled “Liability for Water Service,” Rule No. 7 of the [Village] regulations provides that “[a]ll bills, whether for use of water or repairs to water service, are a charge against the owner of the premises or property where the water is used, and said bills will be rendered to the owner or occupant of said premises.” Under the same section, Rule No. 8 provides, in pertinent part, that “[a]ll bills for the use of water become due and payable and are a lien on the premises where the water is used” and that “[f]ailure to receive bills for said water services . . . does not relieve the owner and/or consumer from liability to pay.” … Upon construing the regulations as a whole and according to the ordinary and plain meaning of the words therein, we conclude that the regulations provide for the imposition of liability on property owners for water consumed on such property and supplied by the Village.  Herkimer County Indus. Dev. Agency v Village of Herkimer, 2019 NY Slip Op 06237, Fourth Dept 8-22-19

 

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COUNTY COURT SHOULD NOT HAVE ACCEPTED GRAND JURY REPORTS RE: THE ALLEGED MISCONDUCT, NONFEASANCE OR NEGLECT IN OFFICE OF THREE PUBLIC OFFICIALS; THE PROSECUTOR DID NOT INSTRUCT THE GRAND JURY ON THE SUBSTANTIVE ASPECTS OF THE PUBLIC OFFICIALS’ DUTIES (FOURTH DEPT).

The Fourth Department, reversing County Court, determined that the grand jury reports concerning the alleged misconduct, nonfeasance or neglect in office of three public officials should not have been accepted by County Court. The reports were therefore sealed:

… County Court erred in directing the public filing of three grand jury reports that accused each appellant respectively of misconduct, nonfeasance, or neglect in office (see generally CPL 190.85 [1] [a]). …

“It is incumbent upon the prosecutor to instruct the [g]rand [j]ury regarding the duties and responsibilities of the public servant . . . target[ed by] the probe’ ” … .”Without a charge as to the substantive aspects of the official’s duties, it [is] not only impossible for the [g]rand [j]ury to determine that the public servant was guilty of misconduct, nonfeasance or neglect, but impermissible as well, for it allow[s] the [g]rand [j]ury to simply substitute its judgment for that of the public servant” … . Here, the prosecutor failed to provide the grand jury with any instructions regarding appellants’ substantive duties in office. Matter of May/June 2018 Oneida County Grand Jury Report (John Doe #1), 2019 NY Slip Op 06356, Fourth Dept 8-22-19

 

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MAINTENANCE FEES IMPOSED BY THE TOWN FOR TRIMMING AND REMOVING BRUSH ON PRIVATE PROPERTY ARE NOT TAXES, THEREFORE THE TOWN IS NOT ENTITLED TO CREDIT FROM THE COUNTY FOR UNPAID MAINTENANCE FEES, TWO JUSTICE DISSENT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, over a two justice dissent, determined that maintenance fees imposed by the town for trimming and removing brush from private property are not taxes. Therefore the town cannot seek credit from the county for unpaid maintenance fees:

Section 936 (1) of the RPTL [Real Property Tax Law] provides that the county guarantees the town’s “taxes” by crediting the town “with the amount of . . . unpaid delinquent taxes.” The question raised on this appeal is whether the maintenance charges are “taxes” for the purposes of RPTL 936 and thus whether the County respondents must credit the Town petitioners for the amount of any such charge that goes unpaid or is delinquent.

The maintenance charges are assessed against individual properties for their benefit and thus do not fall within the general definition of “tax,” which instead contemplates ” public burdens imposed generally for governmental purposes benefitting the entire community’ ” … . Nor do those charges constitute “special ad valorem levies” as defined by RPTL 102 (14). A ” [s]pecial ad valorem levy’ ” is “a charge imposed upon benefitted real property in the same manner and at the same time as taxes for municipal purposes to defray the cost, including operation and maintenance, of a special district improvement or service” (id.). Although the definition of “tax” does, in certain enumerated circumstances, include “special ad valorem levies” (RPTL 102 [20]), the maintenance charges are not special ad valorem levies because they are not used to defray the cost of a “special district improvement or service” (RPTL 102 [14]). Maintenance charges also are not assessed “ad valorem” because the amount of the charge is not based on property value but is instead based on the actual expense to the town. Moreover, assuming, arguendo, that the charges are “special assessments” as defined by RPTL 102 (15), we note that the definition of “tax” specifically excludes “special assessments” (RPTL 102 [20]). Matter of Town of Irondequoit v County of Monroe, 2019 NY Slip Op 06235, Fourth Dept 8-22-19

 

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THE SOIL CONSERVATION AND WATERSHED BOARD’S MOTION FOR SUMMARY JUDGMENT IN THIS DROWNING CASE WAS PROPERLY DENIED, PLAINTIFF’S DECEDENT DIED AFTER GOING OVER A SUBMERGED DAM; ALTHOUGH THE BOARD WAS NOT LIABLE PURSUANT TO A CONTRACT TO MAINTAIN AND OPERATE THE DAM UNDER AN ESPINAL EXCEPTION, THERE WAS A QUESTION OF FACT WHETHER THE BOARD OWNED THE DAM (A DANGEROUS CONDITION); THE BOARD IS SEPARATE AND DISTINCT FROM THE CONSERVATION DISTRICTS; THE ASSUMPTION OF THE RISK DOCTRINE IS NOT APPLICABLE (FOURTH DEPT).

The Fourth Department determined soil the soil conservation and watershed board’s motion for summary judgment in this wrongful death case was properly denied. The board operated and maintained a dam pursuant to a contract with a federal agency, the Natural Resources Conservation Service (NRCS). The dam was submerged and plaintiff’s decedent sustained drowning injuries which led to his death after he waded into the water and went over the dam. Supreme Court should not have held that the board had entirely displaced the NRCS responsibilities for operation and maintenance of the dam (and therefore was liable under contract pursuant the third Espinal exception). However the board did not demonstrate it did not own the dam and summary judgment was properly denied on that ground. In addition the board was separate and distinct from the conservation districts. So granting summary judgment to the districts did not require the same relief for the board. Finally the court noted that the assumption of risk doctrine applies only to sporting events and had no applicability to these facts:

… “[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal, 98 NY2d at 138) although, as relevant here, the third exception to that rule applies where the contracting party has “entirely displaced the other party’s duty to maintain the premises safely” … . * * * We … conclude that “the contract between [the Board] and the [NRCS] was not so comprehensive and exclusive that it entirely displaced the [NRCS’s] duty to maintain the premises safely, such that [the Board] owed a duty to [decedent]” … . …

While the Board established that it did not own the creek or the banks adjacent thereto … , its submissions are insufficient to establish as a matter of law that it did not own the subject dam, which allegedly constituted and created the dangerous condition … .

The Court of Appeals has made clear that, “[a]s a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues” … . Here, decedent was not engaging in a sporting event or recreative activity that was sponsored or otherwise supported by the Board, nor was he wading and swimming at a designated venue … . Suzanne P. v Joint Bd. of Directors of Erie-Wyoming County Soil Conservation Dist., 2019 NY Slip Op 06343, 8-22-19

 

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REFUSING SECTION 8 VOUCHERS AS RENT PAYMENT VIOLATES THE WEST SENECA FAIR HOUSING CODE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, reinstated a permanent injunction prohibiting the landlord from refusing “Section 8” vouchers for rent, The refusal violated the West Seneca Fair Housing Code (WSFHC) which prohibits discrimination based upon a person’s source of income:

WSFHC § 71-3 (A) provides that “[i]t shall be unlawful . . . [t]o refuse to sell or rent or refuse to negotiate for the sale or deny a dwelling to any person because of race, color, religion, sex, age, marital status, handicap, national origin, source of income or because the person has a child or children” (emphasis added). Remedial legislation such as WSFHC § 71-3 (A) ” should be liberally construed to carry out the reforms intended and to promote justice’ ” … . ” A liberal construction . . . is one [that] is in the interest of those whose rights are to be protected, and if a case is within the beneficial intention of a remedial act it is deemed within the statute [or ordinance], though actually it is not within the letter of the law’ ” … .

We conclude … that Section 8 vouchers constitute a “source of income” under WSFHC § 71-3 (A). Such vouchers are plainly a recurrent benefit, measured in terms of money, that constitute financial gain to the recipient. Although the term “source of income” is undefined in the WSFHC, similar ordinances enacted in other local codes have expressly included Section 8 vouchers as a source of income … , which suggests that such vouchers are a “source of income” under the broad language of the WSFHC. People v Ivybrooke Equity Enters., LLC, 2019 NY Slip Op 06299, Fourth Dept 8-22-19

 

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FAILURE TO PAY TAXES UNDER PROTEST PRECLUDES AN ACTION TO RECOVER THE PAYMENTS WHEN THE RELEVANT TAX RULE IS INVALIDATED (SECOND DEPT).

The Second Department determined plaintiff’s putative class action to have Nassau County disgorge fees collected pursuant to the Nassau County Administrative Code for tax map certification letters issued by the County Clerk for real estate closings was properly dismissed. It is not explicitly stated, but apparently the taxing rule under which the fees were collected had been invalidated at some point:

“The settled law is that the payment of a tax or fee cannot be recovered subsequent to the invalidation of the taxing statute or rule, unless the taxpayer can demonstrate that the payment was involuntary” … . Where the payment is “necessary to avoid threatened interference with present liberty of person or immediate possession of property, the failure to formally protest will be excused” … . “Further, where the payment of a tax or fee is based on a material mistake of fact, the payment may be recovered even if it was made without protest” … .

Here, it is undisputed that the plaintiff did not pay the fees under protest. Falk v Nassau County, 2019 NY Slip Op 06202, Second Dept 8-21-19

 

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THE NYC ADMINISTRATIVE RULES PLACING CERTAIN RESTRICTIONS ON EXPRESSIVE MATTER VENDORS IN CITY PARKS ARE VALID AND ENFORCEABLE (FIRST DEPT).

The First Department, modifying Supreme Court, in a full-fledged opinion by Justice Kapnick, determined that the restrictions placed on expressive matter vendors’ (EMV’s) use of public parks were valid and enforceable. “Expressive matter is defined as ‘materials or objects with expressive content, such as newspapers, books or writings, or visual art such as paintings, prints, photography, sculpture, or entertainment’ …”.

… DPR [NYC Department of Parks and Recreation] published proposed revisions to the rules applicable to EMVs. It held a public hearing, and based on comments at the hearing as well as written comments, revised the proposed rules. … Under the revised EMV Rules, while EMVs may sell in almost all City parks if they comply with certain requirements, they are restricted in Union Square Park, Battery Park, High Line Park, and portions of Central Park below 86th Street, where they may only sell their items, on a first-come, first-serve basis, in certain designated areas, and only one vendor is allowed to sell at each spot. The EMVs may always sell in the nonenumerated areas, including other City parks and sidewalks.  * * *

I. The EMV Rules do not conflict with the City Council’s legislative intent, as expressed in Local Law No. 33 of 1982. * * *

II. The EMV Rules do not violate vendors’ rights under the New York Constitution. * * *

III. Defendants are entitled to summary judgment dismissing the discrimination claims under the State and City Human Rights Law. * * *

IV. Supreme Court erred in granting plaintiffs leave to amend to add a separation of powers claim. * * * Dua v New York City Dept. of Parks & Recreation, 2019 NY Slip Op 06154, First Dept 8-20-19

 

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PLAINTIFF’S VERDICT IN THIS PERSONAL INJURY ACTION BROUGHT BY A FIREFIGHTER PURSUANT TO GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a SHOULD NOT HAVE BEEN SET ASIDE, CRITERIA FOR SETTING ASIDE A VERDICT EXPLAINED IN DEPTH (SECOND DEPT).

The Second Department reversed Supreme Court’s setting aside the verdict in this personal injury action brought by a firefighter pursuant to General Municipal Law 205-a and Labor Law 27-a. The firefighter alleged he tripped over a torn rug in the fire department office. The torn rug violated provisions of the NYC Administrative Code. The Second Department took great pains to explain the criteria for setting aside a verdict as a matter of law and as against the weight of the evidence pursuant to CPLR 4404:

Although there were no other individuals present when the plaintiff fell, his supervisor immediately responded to “the loud bang” that resulted from the accident. The plaintiff’s supervisor prepared a report that morning, which stated that the plaintiff had tripped on a piece of loose rug. Another one of the plaintiff’s supervisors testified that he responded to the location of the accident and observed “a ripped carpet there.” Photographs of the tear in the carpet that caused the plaintiff to fall were admitted into evidence and identified by the plaintiff’s witnesses. * * *

The plaintiff testified that at the time of the accident, he felt a “popping in [his] leg.” A doctor who examined the plaintiff after the accident, Leonard Harrison, testified that the plaintiff tore his hamstring as the result of the subject accident.

The City did not present any evidence to show that the plaintiff’s accident was caused by something other than the tear in the carpet, or that the accident did not occur at all. Although the jury was not required, as a matter of law, to credit the plaintiff’s uncontradicted testimony …  the City’s efforts to impeach the plaintiff as to the cause of the accident were particularly weak.  * * *

Despite the City’s attacks, the plaintiff’s testimony as to the cause of the accident was consistent throughout the course of the trial. Moreover, his testimony regarding the cause of the accident was consistent with the testimony he gave at his deposition, in which he repeatedly testified that “[his] foot got caught on a piece of torn rug, where [he] los[t] [his] balance and tripped.” The plaintiff’s trial testimony was also consistent with the reports he gave to his supervisor and to doctors shortly after the accident occurred.

On this record, any conclusion that the plaintiff’s accident was the result of some other unidentified cause, or that the entire incident was fabricated, could only be based upon mere speculation … . Annunziata v City of New York, 2019 NY Slip Op 06055, Second Dept 8-7-19

 

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