You are here: / Municipal Law
, ,

THE CITY CANNOT SEEK REIMBURSEMENT FROM WORKERS’ COMPENSATION AWARDED TO A DISABLED FIREFIGHTER WHERE THE FIREFIGHTER RECEIVED BENEFITS FROM MORE THAN ONE SOURCE WHICH, IN TOTAL, EXCEEDED THE FIREFIGHTER’S FORMER SALARY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the city (Newburgh) could not recoup payments made to a disabled firefighter (Mr. Schulze) from workers’ compensation awards. The opinion is too complex to fairly summarize here:

​Pursuant to a complicated statutory scheme, paid firefighters outside New York City who become disabled at work may receive benefits from different sources: their local governmental employer, New York State, and the Workers’ Compensation System. Adam Schulze is a retired paid firefighter who, when employed by the City of Newburgh, was disabled in the performance of duty. He received benefits from all three sources. This case concerns whether the City can compel the Workers’ Compensation Board to pay Mr. Schulze’s workers’ compensation benefits to the City, as a way to allow it to recoup an overpayment it claims to have made to Mr. Schulze. Based on the clear language of the relevant statutes, the City cannot do so. * * *

Neither Workers’ Compensation Law § 25 (4) (a) nor Workers’ Compensation Law § 30 (2) allows reimbursement from workers’ compensation awards for payments made under General Municipal Law § 207-a (2). The provision that prevents Mr. Schulze and other firefighters like him from receiving duplicative benefits is General Municipal Law § 207-a (4-a). The City of Newburgh Fire Department is therefore not entitled to reimbursement directly from Mr. Schulze’s workers’ compensation award for its prior payments to him under General Municipal Law § 207-a (2). Matter of Schulze v City of Newburgh Fire Dept., 2025 NY Slip Op 02101, CtApp 4-10-25

Practice Point: Consult this opinion for a breakdown of the sources of disability payments available to an injured firefighter who was employed outside New York City.​

 

, ,

THE BEST EVIDENCE OF THE VALUE OF REAL PROPERTY FOR PROPERTY-TAX-ASSESSMENT PURPOSES IS A RECENT ARMS-LENGTH SALE; ASSESSMENT REDUCED (THIRD DEPT).

The Third Department, reversing Supreme Court and lowering the property tax assessment of petitioners’ property, determined the best evidence of the value of the property is an arms-length sale for an amount $750,000 less than the assessment:

“In an RPTL article 7 tax certiorari proceeding, a rebuttable presumption of validity attaches to the valuation of property made by the taxing authority” … . Therefore, on a summary judgment motion, a petitioner bears the initial burden of “presenting substantial evidence to demonstrate that the subject property was overvalued” … . In considering whether this minimal threshold has been met … , “[i]t is well settled that the best evidence of market value is a recent sale of the subject property between a seller under no compulsion to sell and a buyer under no compulsion to buy” … .

Petitioners submitted evidence that the December 20, 2020 sale for $3,495,000, occurring 18 months prior to the July 1, 2022 valuation date, was carried out at arm’s length. This was sufficient to rebut the presumption of the assessment’s validity and to satisfy petitioners’ burden on summary judgment … . …

… [R]espondents provided no support for their valuation of $4,257,000, a 22% increase in value since the sale just 18 months prior … . The assessor’s broad claim that the market for properties such as this one “rose remarkably” during that time was conclusory … , and his assertion regarding the types of approaches “[g]enerally” used to establish fair market value did not indicate whether either or both of those approaches were used in this particular instance. The fact that respondents engaged an outside appraisal firm while completing their town-wide revaluation is also of no moment, as respondents did not show how that firm evaluated this particular property or what conclusions it reached. As such, petitioners’ motion should have been granted … . Matter of Robins v Board of Assessment Review, 2025 NY Slip Op 02119, Third Dept 4-9-25

Practice Point: Here the tax assessor’s claim that property values had risen “remarkably” did not raise a question of fact in this tax certiorari proceeding seeking a reduction of the property-tax assessment. The best evidence of the value of the property was deemed to be the amount of a recent arms-length sale of the property.

 

,

THE PETITIONER DID NOT DEMONSTRATE THE CITY HAD TIMELY ACTUAL NOTICE OF THE NATURE OF HER CLAIM AND HER ALLEGATION THAT HER INJURIES PREVENTED HER FROM MAKING A TIMELY CLAIM WAS NOT SUPPORTED BY MEDICAL EVIDENCE; THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against the city should not have been granted. Petitioner did not demonstrate the city had timey actual notice of the nature of the claim and did not submit medical records to support her excuse that her injuries prevented her from filing a timely notice of claim:

Petitioner failed to show that respondents had actual knowledge of the facts underlying the legal theories on which liability was predicated in the notice of claim … . Contrary to her contention, neither the police report, the NYPD complaint, nor the Department of Education occurrence report provided respondents with the facts underlying her theory of liability, as none of these documents linked the accident to any potentially actionable wrongdoing committed by them.

Although petitioner demonstrated that respondents would not suffer any prejudice by the delay in serving the notice of claim, as the alleged defect has not changed since the incident … , her assertion that the severity of her injuries precluded her from serving notice, without any supporting medical documentation or evidence, was insufficient to constitute a reasonable excuse for her delay … .

Petitioner’s submission to the motion court failed to include any medical records detailing her surgery and follow-up visits, and her petition stated that she was able to leave the apartment for her medical treatments and ultimately work remotely. Furthermore, it is not clear from the petition when she retained counsel, and a lack of due diligence in determining the identity of the parties involved is not a reasonable excuse for the failure to serve a timely notice of claim … . Matter of Kayam v City of New York, 2025 NY Slip Op 02037, First Dept 4-8-25

Practice Point: An allegation that injuries prevented the filing of a timely notice of claim should be backed up by medical records.

 

, ,

PLAINTIFF’S WORKPLACE GENDER-DISCRIMINATION CASE SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court, in a necessarily fact-specific decision, determined plaintiff’s employment-discrimination suit should not have been dismissed:

To establish a claim for gender discrimination under the Human Rights Law, a plaintiff must “show (1) that he or she was a member of a protected class, (2) that he or she suffered an adverse employment action, (3) that he or she was qualified to hold the position for which he or she suffered the adverse employment action, and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination” … . “Verbal comments can serve as evidence of discriminatory motivation when a plaintiff shows a nexus between the discriminatory remarks and the employment action at issue” … . “Employers are . . . required to provide reasonable avenues for discrimination and harassment complaints, to respond appropriately to such complaints, and to take reasonable steps to eliminate the harmful conduct; where they fail to do so, they are subject to liability under [the Human Rights Law]” … . * * *

The gravamen of plaintiff’s allegations is that Gulnick’s [plaintiff’s immediate boss’s] sexist views toward women fostered a workplace where women’s legitimate grievances were met with dismissal and ridicule, and conflicts that would otherwise have been dealt with were instead allowed to fester. When plaintiff sought to have her valid claims of harassment addressed in-house and ultimately in an outside mediation, Gulnick’s rebuke of her efforts envenomed with discriminatory commentary turned to anger, ultimately leading to plaintiff’s demotion and decrease in wages. Mikesh v County of Ulster, 2025 NY Slip Op 01987, Third Dept 4-3-25

Practice Point: Consult this decision for a detailed fact-specific analysis of the criteria for a prima facie demonstration of gender discrimination in the workplace.​

 

,

THE QUESTION WHETHER THE MUNICIPALITY TIMELY RECEIVED ACTUAL NOTICE OF THE CLAIM IS MORE IMPORTANT THAN THE QUESTION WHETHER THERE IS A REASONABLE EXCUSE FOR MISSING THE 90-DAY DEADLINE; HERE THE PETITIONER DID NOT HAVE A REASONABLE EXCUSE BUT THE MUNICIPALITY DID RECEIVE TIMELY ACTUAL NOTICE; LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, noting that the absence of a reasonable excuse is not dispositive, determined petitioner should have been granted leave to file a late notice of claim against the New York City Housing Authority (NYCHA). Petitioner, a plumber, allegedly tripped over a piece of rebar protruding from the ground at a construction site:

Here, while the petitioner concedes that his claim of clerical error does not qualify as a reasonable excuse for his delay in serving a notice of claim, “the absence of a reasonable excuse is not, standing alone, fatal to the petitioner’s application” … .

While the lack of a reasonable excuse is not dispositive on an application for leave to serve a late notice of claim, “whether the municipality acquired timely actual knowledge of the essential facts constituting the claim is of great importance” … . Here, while there is no proof that the petitioner served the notice of claim upon NYCHA on January 27, 2020, NYCHA admits to receiving the first petition on or about January 31, 2020, less than three weeks after the expiration of the 90-day notice period. NYCHA additionally admits that it was able to schedule and conduct a General Municipal Law § 50-h hearing with the petitioner on April 20, 2020. Matter of Herry v New York City Hous. Auth., 2025 NY Slip Op 01928, Second Dept 4-2-25

Practice Point: In determining a request for leave to file a late notice of claim, whether the petitioner has a reasonable excuse for failing to file the notice of claim within 90 days is less important than whether the municipality timely received actual notice of the claim. Here the excuse was not valid but the municipality received timely notice. The request for leave to file a late notice should have been granted.

 

, ,

THE NEW YORK CITY CIVILIAN COMPLAINT REVIEW BOARD (CCRB) IS NOT ENTITLED TO UNSEAL THE RECORD OF THE CRIMINAL PROSECUTION AND TRIAL OF AN OFF-DUTY POLICE OFFICER WHO SHOT A MAN IN A ROAD RAGE INCIDENT (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice McCormick, determined the NYC Civilian Complaint Review Board (CCRB) was not entitled to unseal the record of a criminal action which had resulted in the acquittal of an off-duty police officer (the defendant) who shot and killed a man during a road rage incident:

At his criminal trial, the defendant presented a justification defense … [and] the jury acquitted him of all charges. As a result, the records pertaining to the defendant’s arrest and criminal prosecution were sealed (see CPL 160.50). * * *

The CCRB charged the defendant with three counts of intentionally using force without police necessity, rising to the level of assault in the second degree, in violation of the NYPD’s Patrol Guide. * * *

… [T]he CCRB moved herein to unseal the record of this criminal action … in order to conduct its disciplinary trial … . * * *

Although the New York City Charter authorizes the CCRB to compel the attendance of witnesses and to require the production of such records and other materials as are necessary for its investigations of police misconduct, and further requires the NYPD, inter alia, to provide records and other materials that are necessary for the CCRB’s investigations, the Charter specifically exempts from such disclosure “such records or materials that cannot be disclosed by law” (NY City Charter § 440[d][1]). As such, it cannot be said that the CCRB has been given a specific grant of power that would allow it to access the sealed records … . People v Isaacs, 2025 NY Slip Op 01818, Second Dept 3-26-25

Practice Point: The NYC Civilian Complaint Review Board cannon unseal the record of the criminal prosecution of a police officer which resulted in an acquittal.

 

, ,

THE LANDLORD’S APPLICATION TO AMEND PRIOR ANNUAL REGISTRATION STATEMENTS TO PERMANENTLY EXEMPT AN APARTMENT FROM RENT STABILIZATION WAS PROPERLY DENIED BY THE DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR); ONLY MINISTERIAL AMENDMENTS TO PRIOR ANNUAL REGISTRATION STATEMENTS, SUCH AS CLERICAL ERRORS AND MISSPELLINGS, ARE ALLOWED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, over an extensive two-judge dissenting opinion, determined the Division of Housing and Community Renewal (DHCR) properly rejected petitioner-landlord’s application to amend two prior annual registration statements to permanently exempt an apartment from rent stabilization. The ability to amend the annual registration statements extends only to ministerial issues such as clerical errors, misspellings, incorrect lease terms, etc.:

DHCR’s chosen limiting principle—that amendments may correct only “ministerial” issues—does not permit amendments that seek to remove a housing accommodation’s rent-stabilized status.  The application of that rule to this case was clearly rational. Matter of LL 410 E. 78th St. LLC v Division of Hous. & Community Renewal, 2025 NY Slip Op 01672, CtApp 3-20-25

 

, , ,

TO SUFFICIENTLY ALLEGE THE APPLICABILITY OF THE FRAUD EXCEPTION TO THE FOUR-YEAR LOOKBACK FOR A “FRAUDULENT SCHEME TO INFLATE RENTS” ACTION, THE PLAINTIFF NEED NOT ALLEGE RELIANCE ON A FRAUDULENT REPRESENTATION; IT IS ENOUGH TO ALLEGE SUFFICIENT INDICIA OF FRAUD OR A COLORABLE CLAIM OF FRAUD (CT APP). ​

The Court of Appeals, reversing (modifying) the Appellate Division, in a full-fledged opinion by Judge Garcia, determined that to sufficiently allege the applicability of the fraud exception to the four-year statute of limitations (“lookback” period) in a “fraudulent scheme to inflate rents” action, a plaintiff need not allege satisfaction of each element of common-law fraud (including reliance), rather the plaintiff need only allege “sufficient indicia” of fraud:

… [T]he fraud exception serves a far different purpose than an allegation of common law fraud. The fraud exception, applicable only to an overcharge claim, simply allows for review of the rental history outside the four-year lookback period and then … “solely to ascertain whether fraud occurred—not to furnish evidence for calculation of the base date rent or permit recovery for years of overcharges barred by the statute of limitations” … . The exception operates to protect not only current tenants, who may or may not have relied on a fraudulent representation, but future tenants and the overall rent regulatory system. Requiring that a tenant show reliance on a landlord’s fraudulent representation would exempt an “unscrupulous landlord in collusion with a tenant” from the consequences of engaging in a scheme to evade the law’s protection … . Given the narrow purpose and scope of the fraud exception, there is no basis for imposing the pleading requirements of a common law fraud claim. Instead, we require plaintiffs to put forth “sufficient indicia of fraud” or a “colorable claim” of a fraudulent scheme but do not impose a burden to establish each element of a common law fraud claim.

… [T]o invoke the fraud exception, a plaintiff must allege sufficient indicia of fraud, or a colorable claim of a fraudulent scheme to evade the protections of the rent stabilization laws, to withstand a motion to dismiss on statute of limitations grounds. Such allegations must include more than an assertion that a tenant was overcharged—a mere allegation of a high rent increase is insufficient for the fraud exception to apply … We address only the reliance issue here. On remittal the Appellate Division should apply our established standard—assessing whether plaintiffs’ complaint alleges sufficient indicia of fraud or a colorable claim of a fraudulent scheme “to remove tenants’ apartment from the protections of rent stabilization” … . Burrows v 75-25 153rd St., LLC, 2025 NY Slip Op 01669, CtApp 3-20-25

Practice Point: Consult this opinion for insight into what the complaint must allege to invoke the fraud exception to the four-year lookback period for a “fraudulent scheme to inflate rents” action.

 

, ,

NEW YORK CITY LOCAL LAW 11, WHICH ALLOWS NON-CITIZENS TO VOTE, VIOLATES THE NEW YORK STATE CONSTITUTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over an extensive dissenting opinion, determined New York City Local Law 11, which allowed non-citizens to vote, violates the New York Constitution:

Local Law 11 allows “municipal voters” to vote in New York City elections for the offices of Mayor, Public Advocate, Comptroller, Borough President and City Council Member (New York City Charter §§ 1057-aa, 1057-bb). The law defines a municipal voter as “a person who is not a United States citizen on the date of the election on which he or she is voting,” and who: (1) “is either a lawful permanent resident or authorized to work in the United States”; (2) “is a resident of New York city and will have been such a resident for 30 consecutive days or longer by the date of such election”; and (3) “meets all qualifications for registering or preregistering to vote under the election law, except for possessing United States citizenship, and who has registered or preregistered to vote with the board of elections in the city of New York under this chapter” … . * * *

Whatever the future may bring, the New York Constitution as it stands today draws a firm line restricting voting to citizens. Fossella v Adams, 2025 NY Slip Op 01668, CtApp 3-20-25

Practice Point: The NYS Constitution restricts the right to vote to citizens.

 

, ,

THE COMMISSIONER OF AGRICULTURE AND MARKETS HAD JURISDICTION OVER THE DISPUTE BETWEEN THE TOWN AND A FARM IN WHICH THE TOWN ALLEGED THE FARM WAS RUNNING A COMMERCIAL MULCHING OPERATION IN VIOLATION OF THE TOWN CODE; THE COMMISSIONER PROPERLY DETERMINED THE FARM WAS NOT VIOLATING THE TOWN CODE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, determined the Commissioner of Agriculture and Markets had jurisdiction over the matter and had the authority to determine a farm located in the Long Island Pine Barrens Maritime Reserve (Central Pine Barrens) was not running a commercial mulching operation in violation of the Code of the Town of Brookhaven:

Respondent Delea Sod Farms, Inc. (hereinafter Delea Farms) operates a farm in an agricultural district in the Town of Brookhaven, Suffolk County, where it primarily produces sod for sale that is used at, among other places, Yankee Stadium. Mulch and compost are stored and sold at the farm as well. The farm also lies within the Central Pine Barrens area as defined by the Long Island Pine Barrens Maritime Reserve Act (ECL 57-0101 et seq. [hereinafter the Pine Barrens Act]), the Pine Barrens being an environmentally sensitive area of Long Island that contains an aquifer from which many locals obtain drinking water and is subject to “laws and policies . . . at all government levels to protect [it] from unbridled development” (… see also ECL 57-0107 [10]). Petitioner sued Delea Farms in March 2020 to enjoin it from running what was, in petitioner’s view, a commercial mulching operation that allegedly ran afoul of the farmland bill of rights and zoning regulations contained in the Code of the Town of Brookhaven (hereinafter the Town Code) as well as the terms of a conditional discharge entered following a 2017 guilty plea by Delea Farms in a code enforcement matter. Delea Farms reacted by requesting an informal opinion from respondent Commissioner of Agriculture and Markets as to whether its storage and sale of compost and mulch on the farm was “agricultural in nature” within the meaning of Agriculture and Markets Law § 308 (4). The Commissioner issued an opinion in July 2020 that the storage and sale of mulch and compost was an incidental agricultural use to the production and sale of sod at the farm. * * *

The Commissioner determined that Delea Farms was primarily operating the farm for sod production and harvesting, that it was not manufacturing or processing mulch at the farm and that the mulch and compost at the farm was either used on the farm itself or sold to customers who needed it to install the sod and nursery stock that was the farm’s actual focus. Matter of Town of Brookhaven v Ball, 2025 NY Slip Op 01686, Third Dept 3-20-25

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy