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RURAL CORRIDOR (RLC) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT).

The Second Department determined the town properly implemented the Rural Corridor (RLC) component of its comprehensive plan under the General Municipal Law, Town Law, State Environmental Quality Review Act (SEQRA) and the implementation was a proper exercise of the town’s zoning and police powers. The court further determined there were questions of fact whether petitioner’s development project application was completed before the new comprehensive plan was adopted, entitling petitioner to consideration of the plan under the law at the time the application was completed:

Here, the stated purpose of the RLC law was “to allow a very limited range of roadside shops and services that are compatible with the agricultural and rural setting along major arterial roads, such as New York State Route 25, leading into Downtown Riverhead and areas zoned Hamlet Center (HC) or Village Center (VC).” Contrary to the petitioner’s arguments, the RLC law’s designation of property along New York State Route 25 a few miles west of the hamlet of Riverhead as a rural corridor zone bore a rational relationship to its stated objective.

Although the general rule is that a court should apply the zoning provisions in effect at the time it renders its decision … , pursuant to the “special facts” exception, a court may apply the law in effect at the time the landowner’s application was made. The special facts exception may be applied where the landowner “establishes entitlement as a matter of right to the underlying land use application,” and “extensive delay[ ] indicative of bad faith . . . unjustifiable actions by the municipal officials . . . or abuse of administrative procedures”… .

The record contains inconsistencies as to whether the petitioner’s application was a “completed application” when it submitted the last revised version of its site plan application in September 2003. There is evidence in the record that the petitioner needed to make additional revisions before the application could be treated as a “completed application” under the Town’s rules, meaning that the petitioner was not entitled as a matter of right to the underlying land use application… . However, there is evidence in the record that the Town Board had determined the application to be a “completed application” when it was submitted in September 2003, meaning the Town Board may have delayed processing the petitioner’s application in a manner indicative of bad faith … . Matter of Calverton Manor, LLC v Town of Riverhead, 2018 NY Slip Op 02610, Second Dept 4-18-18

​ENVIRONMENTAL LAW (RURAL CORRIDOR (RLC) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/MUNICIPAL LAW (RURAL CORRIDOR (RLC) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/ZONING (RURAL CORRIDOR (RLC) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/LAND USE (RURAL CORRIDOR (RLC) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/RURAL CORRIDOR LAW (RLC)  (RURAL CORRIDOR (RLC) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/SPECIAL FACTS EXCEPTION SPECIAL FACTS EXCEPTION (ZONING, LAND USE, COMPREHENSIVE PLAN, QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))

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AGRICULTURAL PROTECTION ZONE (APZ) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT).

The Second Department determined the town properly implemented the Agricultural Protection Zone (APZ) component of its comprehensive plan under the General Municipal Law, Town Law, State Environmental Quality Review Act (SEQRA) and the implementation was a proper exercise of the town’s zoning and police powers. The court further determined there were questions of fact whether petitioner’s development project application was completed before the new comprehensive plan was adopted, entitling petitioner to consideration of the plan under the law at the time the application was completed:

Although the general rule is that a court should apply the zoning provisions in effect at the time it renders its decision … , pursuant to the “special facts” exception, a court may apply the law in effect at the time the landowner’s application was made. The special facts exception may be applied where the landowner “establishes entitlement as a matter of right to the underlying land use application,” and “extensive delay[ ] indicative of bad faith . . . unjustifiable actions by the municipal officials . . . or abuse of administrative procedures”… .

The record contains inconsistencies as to whether the petitioner’s application was a “completed application” when it submitted the last revised version of its site plan application in September 2003. There is evidence in the record that the petitioner needed to make additional revisions before the application could be treated as a “completed application” under the Town’s rules, meaning that the petitioner was not entitled as a matter of right to the underlying land use application… . However, there is evidence in the record that the Town Board had determined the application to be a “completed application” when it was submitted in September 2003, meaning the Town Board may have delayed processing the petitioner’s application in a manner indicative of bad faith … . Matter of Calverton Manor, LLC v Town of Riverhead, 2018 NY Slip Op 02609, Second Dept 4-18-18

​ENVIRONMENTAL LAW (AGRICULTURAL PROTECTION ZONE (APZ) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/MUNICIPAL LAW (AGRICULTURAL PROTECTION ZONE (APZ) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/ZONING (AGRICULTURAL PROTECTION ZONE (APZ) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/LAND USE (AGRICULTURAL PROTECTION ZONE (APZ) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/AGRICULTURAL PROTECTION ZONE (APZ)  (AGRICULTURAL PROTECTION ZONE (APZ) COMPONENT OF TOWN’S COMPREHENSIVE PLAN PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW, AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))/SPECIAL FACTS EXCEPTION (ZONING, LAND USE, COMPREHENSIVE PLAN, QUESTION OF FACT WHETHER PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS COMPLETE BEFORE THE NEW COMPREHENSIVE PLAN WAS ADOPTED, ENTITLING PETITIONER TO THE APPLICATION OF THE PRIOR LAW (SECOND DEPT))

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TOWN’S COMPREHENSIVE PLAN, WHICH WAS ADOPTED WHILE PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS PENDING AND NEGATIVELY AFFECTED IT, WAS PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), AND WAS A VALID EXERCISE OF THE TOWN’S POLICE AND ZONING POWERS (SECOND DEPT).

The Second Department determined that the town’s comprehensive plan, which was adopted while petitioner’s development project application was pending and negatively affected the project, was properly adopted under the General Municipal Law and Town Law, did not violate the State Environmental Quality Review Act (SEQRA), and was a constitutional exercise of the police and zoning powers:

Prior to adopting a comprehensive plan, a town board must “refer the proposed comprehensive plan or any amendment thereto to the county planning board or agency or regional planning council for review and recommendation as required by” General Municipal Law § 239-m (Town Law § 272-a[5][b]). General Municipal Law § 239-m, in turn, requires a town to “submit to the county planning agency a full statement of such proposed action'” … . …

We agree with the Supreme Court that the Town Board complied with the procedural and substantive requirements of SEQRA. First, ” SEQRA mandates literal compliance with its procedural requirements and substantial compliance is insufficient to discharge the responsibility of the agency under the act'” … . …

Second, ” [j]udicial review of an agency determination under SEQRA is limited to whether the agency procedures were lawful and whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination'” … .. “The agency decision should be annulled only if it is arbitrary, capricious, or unsupported by the evidence” … . …

Here, the Comprehensive Plan’s proposed designation of a largely contiguous swath of cultivated and undeveloped land as an agricultural protected zone bore a rational relationship to numerous legitimate purposes, including, but not limited to, the preservation and promotion of agriculture … . Matter of Calverton Manor, LLC v Town of Riverhead, 2018 NY Slip Op 02608, Second Dept 4-18-18

​ENVIRONMENTAL LAW (TOWN’S COMPREHENSIVE PLAN, WHICH WAS ADOPTED WHILE PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS PENDING AND NEGATIVELY AFFECTED IT, WAS PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), AND WAS A VALID EXERCISE OF THE TOWN’S POLICE AND ZONING POWERS (SECOND DEPT))/MUNICIPAL LAW (TOWN’S COMPREHENSIVE PLAN, WHICH WAS ADOPTED WHILE PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS PENDING AND NEGATIVELY AFFECTED IT, WAS PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), AND WAS A VALID EXERCISE OF THE TOWN’S POLICE AND ZONING POWERS (SECOND DEPT))/ZONING (TOWN’S COMPREHENSIVE PLAN, WHICH WAS ADOPTED WHILE PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS PENDING AND NEGATIVELY AFFECTED IT, WAS PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), AND WAS A VALID EXERCISE OF THE TOWN’S POLICE AND ZONING POWERS (SECOND DEPT))/LAND USE (TOWN’S COMPREHENSIVE PLAN, WHICH WAS ADOPTED WHILE PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS PENDING AND NEGATIVELY AFFECTED IT, WAS PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), AND WAS A VALID EXERCISE OF THE TOWN’S POLICE AND ZONING POWERS (SECOND DEPT))/COMPREHENSIVE PLAN  (TOWN’S COMPREHENSIVE PLAN, WHICH WAS ADOPTED WHILE PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS PENDING AND NEGATIVELY AFFECTED IT, WAS PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), AND WAS A VALID EXERCISE OF THE TOWN’S POLICE AND ZONING POWERS (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)  (TOWN’S COMPREHENSIVE PLAN, WHICH WAS ADOPTED WHILE PETITIONER’S DEVELOPMENT PROJECT APPLICATION WAS PENDING AND NEGATIVELY AFFECTED IT, WAS PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW, TOWN LAW AND STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), AND WAS A VALID EXERCISE OF THE TOWN’S POLICE AND ZONING POWERS (SECOND DEPT))

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COUNTY DID NOT DEMONSTRATE THAT A TOWN POLICE OFFICER WHO WAS INJURED UNDERGOING A PHYSICAL FITNESS TEST AS A CANDIDATE FOR A COUNTY SWAT TEAM WAS A SPECIAL EMPLOYEE OF THE COUNTY SUCH THAT THE POLICE OFFICER’S ONLY REMEDY WAS WORKERS’ COMPENSATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the county’s motion for summary judgment should not have been granted in this personal injury action. The plaintiff is a police officer employed by a town. He was a candidate for a position in a county counter-terrorism outfit (REACT). During a fitness test for the county plaintiff was injured (suffered heat stroke). The county moved for summary judgment arguing, inter alia, plaintiff was their special employee and therefore his only remedy was workers’ compensation:

The determination as to whether a special employment relationship exists is generally an issue of fact requiring consideration of many factors, including who controls and directs the manner of the employee’s work, who is responsible for payment of wages and benefits, who furnishes equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business … . General employment is presumed to continue, and the presumption can only be rebutted by a “clear demonstration of surrender of control by the general employer and assumption of control by the special employer” … .

Here, the County defendants failed to meet their initial burden of submitting sufficient evidence demonstrating the absence of any triable issues of fact … . They did not submit sufficient evidence to rebut the presumption that [plaintiff] remained a general employee under the control of the Town at the time of the incident. [Plaintiff] was under the control of the County defendants for the limited purpose of the physical test to evaluate his ability to join REACT. However, his general employer, the Town, paid his wages, gave him permission to attend the REACT test on his regular work day, paid his workers’ compensation benefits, and retained the authority to discharge or discipline him. Dube v County of Rockland, 2018 NY Slip Op 02597, Second Dept 4-18-18

​EMPLOYMENT LAW (COUNTY DID NOT DEMONSTRATE THAT A TOWN POLICE OFFICER WHO WAS INJURED UNDERGOING A PHYSICAL FITNESS TEST AS A CANDIDATE FOR A COUNTY SWAT TEAM WAS A SPECIAL EMPLOYEE OF THE COUNTY SUCH THAT THE POLICE OFFICER’S ONLY REMEDY WAS WORKERS’ COMPENSATION (SECOND DEPT))/NEGLIGENCE (EMPLOYMENT LAW, COUNTY DID NOT DEMONSTRATE THAT A TOWN POLICE OFFICER WHO WAS INJURED UNDERGOING A PHYSICAL FITNESS TEST AS A CANDIDATE FOR A COUNTY SWAT TEAM WAS A SPECIAL EMPLOYEE OF THE COUNTY SUCH THAT THE POLICE OFFICER’S ONLY REMEDY WAS WORKERS’ COMPENSATION (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, COUNTY DID NOT DEMONSTRATE THAT A TOWN POLICE OFFICER WHO WAS INJURED UNDERGOING A PHYSICAL FITNESS TEST AS A CANDIDATE FOR A COUNTY SWAT TEAM WAS A SPECIAL EMPLOYEE OF THE COUNTY SUCH THAT THE POLICE OFFICER’S ONLY REMEDY WAS WORKERS’ COMPENSATION (SECOND DEPT))/WORKERS’ COMPENSATION LAW (NEGLIGENCE, MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE THAT A TOWN POLICE OFFICER WHO WAS INJURED UNDERGOING A PHYSICAL FITNESS TEST AS A CANDIDATE FOR A COUNTY SWAT TEAM WAS A SPECIAL EMPLOYEE OF THE COUNTY SUCH THAT THE POLICE OFFICER’S ONLY REMEDY WAS WORKERS’ COMPENSATION (SECOND DEPT))

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A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

The Second Department determined Supreme Court properly denied the petition for leave to file a late notice of claim. Petitioner alleged she fell and was injured while riding a bus owned by the county. A county police report was made about the incident. The Second Department held that the fact that the county was aware of the accident does not demonstrate the county was aware of the essential facts constituting the claim:

“In determining whether to grant a petition for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, [the] court must consider all relevant circumstances, including whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the delay would substantially prejudice the public corporation in its defense, and whether the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim”… . “While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance”… . “The determination of an application for leave to serve a late notice of claim is left to the sound discretion of the court” … .

The petitioner failed to establish that the respondents received timely, actual notice of the essential facts constituting the claim by reason of a police accident report filled out by an officer who responded to the scene of the petitioner’s accident. “Generally, knowledge of a police officer or of a police department cannot be considered actual knowledge of the public corporation itself regarding the essential facts of a claim” … . The fact that the Nassau County Police Department had actual knowledge of the accident, without more, cannot be considered actual knowledge of the essential facts underlying the claim against the respondents … . Matter of Cruz v Transdev Servs., Inc., 2018 NY Slip Op 02463, Second Dept 4-11-18

​MUNICIPAL LAW (NOTICE OF CLAIM, A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/BUSES (NEGLIGENCE, MUNICIPAL LAW, NOTICE OF CLAIM, A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

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FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT).

The First Department determined plaintiff probationary firefighter’s death from dehydration during fire department training (functional skills training or FST) was not the type of occupational injury which is actionable under General Municipal Law 205-a and Labor Law 27-a:

Decedent … , a probationary firefighter, passed away due to dehydration while performing the Fire Academy’s physically demanding Functional Skills Training (FST) exercise course, which was designed to simulate actual firefighting tasks under a controlled environment.

Plaintiff is not entitled to recover under GML § 205-a, as the injuries decedent sustained were not the type of occupational injury that Labor Law § 27-a was designed to protect, but rather, arose from risks unique to firefighting work … . While the performance of the FST course was part of training, and not part of firefighting per se, the ability to perform it efficiently was a necessary and important part of the job, as it ensures that a firefighter could effectively perform the tasks during an actual fire. The risks of dehydration and other physiological conditions experienced during FST training are the same as those inherent in actual firefighting. Given the special dangers firefighters face, and their responsibility to protect the public, judgments as to how they should be trained are better left for the FDNY supervisors and not second-guessed by the Department of Labor. Sears v City of New York, 2018 NY Slip Op 02430, First Dept 4-10-18

​MUNICIPAL LAW (FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT))/LABOR LAW (FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, LABOR LAW, FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT))/LABOR LAW (FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT))/FIREFIGHTERS (MUNICIPAL LAW, LABOR LAW, EMPLOYMENT LAW , FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT))

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CITY OF NEW YORK PROGRAM TO MOVE HOMELESS INTO APARTMENTS VIOLATES THE URSTADT LAW BY IMPOSING RENT CONTROLS ON BUILDINGS NOT PREVIOUSLY SUBJECT TO CONTROL (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Sweeney, determined the City of New York’s Living in Communities (LINC) Program, designed to move homeless persons into apartments, violated the Urstadt Law, which prohibits the expansion (by a city) of rent controls to buildings beyond those subject to controls at the time the law was enacted (1971):

The “Urstadt Law was intended to check City attempts, whether by local law or regulation, to expand the set of buildings subject to rent control or stabilization, and particularly to do so in the teeth of State enactments aimed at achieving the opposite effect” … . * * *

Where the LINC Program runs afoul of the Urstadt Law … is in its use of mandatory riders that compel a landlord to renew a lease for up to five years at a minimum increase specifically tied to other City rent regulatory programs to which the housing unit is not presently subject. The application of Local Law 10 to compel acceptance of LINC Program rent vouchers as presently structured effectively expands the number of buildings subject to City control by imposing on those housing units a more stringent control than presently exists. This creates exactly the situation which the Urstadt Law forbids … . In determining whether a local law imposes more stringent or restrictive control over a housing unit than presently existed, the “substance rather than the form of the local law is determinative”… . Here, the effect of the LINC lease riders clearly and improperly expands City regulatory control to housing units not presently subject to that control. Alston v Starrett City, Inc., 2018 NY Slip Op 02420, First Dept 4-5-18

​MUNICIPAL LAW (LANDLORD-TENANT, CITY OF NEW YORK PROGRAM TO MOVE HOMELESS INTO APARTMENTS VIOLATES THE URSTADT LAW BY IMPOSING RENT CONTROLS ON BUILDINGS NOT PREVIOUSLY SUBJECT TO CONTROL (FIRST DEPT))/LANDLORD-TENANT (RENT CONTROL, CITY OF NEW YORK, PROGRAM TO MOVE HOMELESS INTO APARTMENTS VIOLATES THE URSTADT LAW BY IMPOSING RENT CONTROLS ON BUILDINGS NOT PREVIOUSLY SUBJECT TO CONTROL (FIRST DEPT))/RENT CONTROL (URSTADT LAW, CITY OF NEW YORK PROGRAM TO MOVE HOMELESS INTO APARTMENTS VIOLATES THE URSTADT LAW BY IMPOSING RENT CONTROLS ON BUILDINGS NOT PREVIOUSLY SUBJECT TO CONTROL (FIRST DEPT))/LINC PROGRAM  (LANDLORD-TENANT, CITY OF NEW YORK PROGRAM TO MOVE HOMELESS INTO APARTMENTS VIOLATES THE URSTADT LAW BY IMPOSING RENT CONTROLS ON BUILDINGS NOT PREVIOUSLY SUBJECT TO CONTROL (FIRST DEPT))/URSTADT LAW (LANDLORD-TENANT, CITY OF NEW YORK PROGRAM TO MOVE HOMELESS INTO APARTMENTS VIOLATES THE URSTADT LAW BY IMPOSING RENT CONTROLS ON BUILDINGS NOT PREVIOUSLY SUBJECT TO CONTROL (FIRST DEPT))

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TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the town’s Site Plan Review Law was a valid substitute for zoning ordinances and explained the difference. The court also explained the meaning of a “comprehensive plan” in this context. In the underlying action the petitioners contested certain conditions placed upon the storage and sale of firewood imposed by the town planning board and argued that the planning board did not have the authority, under the Site Plan Review Law, to impose the conditions:

The primary goal of a zoning ordinance must be to provide for the development of a balanced, cohesive community which will make efficient use of the town’s available land” … . In contrast, site plan review reflects “public interest in environmental and aesthetic considerations, the need to increase the attractiveness of commercial and industrial areas in order to invite economic investment, and the traditional impulse for controls that might preserve the character and value of neighboring residential areas” … . Site plan review furthers those ends by “permit[ting] municipalities to regulate the development and improvement of individual parcels in a manner not covered under the usual provisions of building and zoning codes which establish specific standards for construction of buildings, provide for specific limitations on use, and fix definite numerical criteria for density, building set backs and frontage and height requirements” … .

There is no statutory directive that a municipality employ both zoning and site plan review as mechanisms of land-use control. …

The trial court … relied upon the absence of zoning or other land use policies to determine that the Site Plan Review Law ran afoul of the requirement that “[a]ll town land use regulations must be in accordance with a comprehensive plan” … . A comprehensive plan “need not be contained in a single document; indeed, it need not be written at all”… . Rather, “[t]he court may satisfy itself that the municipality has a [comprehensive] plan and that authorities are acting in the public interest to further it by examining all available and relevant evidence of the municipality’s land use policies” … . Matter of Bovee v Town of Hadley Planning Bd., 2018 NY Slip Op 02387, Third Dept 4-5-18

​MUNICIPAL LAW (LAND USE, TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))/LAND USE ( TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))/ENVIRONMENTAL LAW (LAND USE, OWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))/ZONING (TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))/SITE PLAN REVIEW LAW (LAND USE, TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))/COMPREHENSIVE PLAN (MUNICIPAL LAW, LAND USE, TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT))

, ,

VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined Supreme Court abused its discretion in dismissing a case in the interest of justice pursuant to Criminal Procedure Law 210.40. Defendant, a village code enforcement officer, was charged (along with the village mayor) with receiving a bribe and endangering the public health (among several other charges) in connection with the demolition of a building containing asbestos without proper abatement and approval. The mayor had pled guilty to three misdemeanors:

… [O]ur review of the record discloses that some factors certainly militate in favor of defendant — his lack of a criminal record or history of misconduct and the fact that he was removed from his position as the Code Enforcement Officer for the Village. They are, however, not wholly dispositive in this case … . … [W]e find that the court improvidently exercised its discretion in granting defendant’s motion inasmuch as this case does not present “extraordinary and compelling circumstance[s] . . . which cry out for fundamental justice” … . …

We do not … share the court’s view that it was unclear from the record that there was no harm to the environment or to individuals in the vicinity of the demolished building … . The record evidence demonstrates that due to the demolition, the asbestos — a legislatively-recognized carcinogenic agent …  — became friable, meaning that it could crumble and create a dust. More to the point, the record evidence reveals that not only did the dust that was created as a consequence of the demolition lead to the stopping of nearby traffic, workers associated with the demolition were exposed to it. Indeed, one worker stated that, based on his experience as a contractor, he believed that asbestos was present. …

We also find that Supreme Court incorrectly assessed that dismissing the indictment would have a minimal impact upon the confidence of the public in the criminal justice system … inasmuch as permitting a public servant to elude prosecution for an alleged abuse of his or her position’s power cannot be said to foster public confidence … . …

We do not agree with Supreme Court that imposing an authorized sentence upon defendant “would serve absolutely no purpose” had he been tried and convicted of the charged crimes … . To the contrary, deterring individuals from committing a similar crime in the future is a goal served by sentencing a defendant who has been convicted of a crime … . People v Snowden, 2018 NY Slip Op 02369, Third Dept 4-5-18

​CRIMINAL LAW (INTEREST OF JUSTICE DISMISSAL, VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT))/ENVIRONMENTAL LAW (CRIMINAL LAW, VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT))/MUNICIPAL LAW (CRIMINAL LAW,  VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT))/INTEREST OF JUSTICE (CRIMINAL LAW, VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT))/CRIMINAL PROCEDURE LAW 240.10 (INTEREST OF JUSTICE DISMISSAL, VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT))

,

PLAINTIFF’S MOTION TO AMEND HER COMPLAINT TO ADD NAMES OF POLICE OFFICERS SUED AS JOHN DOES SHOULD NOT HAVE BEEN GRANTED, THE OFFICERS ARE NOT UNITED IN INTEREST WITH THE CITY DEFENDANT, FAILURE TO NAME THE OFFICERS WAS NOT A MISTAKE, AND PLAINTIFF FAILED TO MAKE A DILIGENT EFFORT TO LEARN THE OFFICERS’ NAMES BEFORE THE STATUTE OF LIMITATIONS EXPIRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to amend her complaint to add the names of police officers originally sued a John Does should not have been granted:

The motion court erred in granting plaintiff leave to amend her complaint and substitute the officers’ names under the relation back doctrine, because the officers are not “united in interest” with the City of New York, the original defendant … . Moreover, plaintiff failed to show that the failure to name defendants was a mistake… . Further, as for those claims where plaintiff was unaware of the officers’ identities prior to the statute of limitations running, she failed to show that she conducted a diligent inquiry into the actual identities of the intended defendants before the expiration of the statutory period … . Diaz v City of New York, 2018 NY Slip Op 02419, First Dept 4-5-18

​CIVIL PROCEDURE (AMEND COMPLAINT, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT TO ADD NAMES OF POLICE OFFICERS SUED AS JOHN DOES SHOULD NOT HAVE BEEN GRANTED, THE OFFICERS ARE NOT UNITED IN INTEREST WITH THE CITY DEFENDANT, FAILURE TO NAME THE OFFICERS WAS NOT A MISTAKE, AND PLAINTIFF FAILED TO MAKE A DILIGENT EFFORT TO LEARN THE OFFICERS’ NAMES BEFORE THE STATUTE OF LIMITATIONS EXPIRED (FIRST DEPT))/MUNICIPAL LAW (POLICE OFFICERS SUED AS JOHN DOES, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT TO ADD NAMES OF POLICE OFFICERS SUED AS JOHN DOES SHOULD NOT HAVE BEEN GRANTED, THE OFFICERS ARE NOT UNITED IN INTEREST WITH THE CITY DEFENDANT, FAILURE TO NAME THE OFFICERS WAS NOT A MISTAKE, AND PLAINTIFF FAILED TO MAKE A DILIGENT EFFORT TO LEARN THE OFFICERS’ NAMES BEFORE THE STATUTE OF LIMITATIONS EXPIRED (FIRST DEPT))/POLICE OFFICERS (CIVIL PROCEDURE, JOHN DOES, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT TO ADD NAMES OF POLICE OFFICERS SUED AS JOHN DOES SHOULD NOT HAVE BEEN GRANTED, THE OFFICERS ARE NOT UNITED IN INTEREST WITH THE CITY DEFENDANT, FAILURE TO NAME THE OFFICERS WAS NOT A MISTAKE, AND PLAINTIFF FAILED TO MAKE A DILIGENT EFFORT TO LEARN THE OFFICERS’ NAMES BEFORE THE STATUTE OF LIMITATIONS EXPIRED (FIRST DEPT))/RELATION BACK (AMEND COMPLAINT, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT TO ADD NAMES OF POLICE OFFICERS SUED AS JOHN DOES SHOULD NOT HAVE BEEN GRANTED, THE OFFICERS ARE NOT UNITED IN INTEREST WITH THE CITY DEFENDANT, FAILURE TO NAME THE OFFICERS WAS NOT A MISTAKE, AND PLAINTIFF FAILED TO MAKE A DILIGENT EFFORT TO LEARN THE OFFICERS’ NAMES BEFORE THE STATUTE OF LIMITATIONS EXPIRED (FIRST DEPT))/STATUTE OF LIMITATIONS (AMEND COMPLAINT, POLICE OFFICERS SUED AS JOHN DOES, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT TO ADD NAMES OF POLICE OFFICERS SUED AS JOHN DOES SHOULD NOT HAVE BEEN GRANTED, THE OFFICERS ARE NOT UNITED IN INTEREST WITH THE CITY DEFENDANT, FAILURE TO NAME THE OFFICERS WAS NOT A MISTAKE, AND PLAINTIFF FAILED TO MAKE A DILIGENT EFFORT TO LEARN THE OFFICERS’ NAMES BEFORE THE STATUTE OF LIMITATIONS EXPIRED (FIRST DEPT))

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