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Party Who Properly Withdrew a Mistaken Bid on a Public Works Project Should Have Been Allowed to Rebid

The Fourth Department determined a party (Kandey) who withdrew a mistaken bid on a public works project should have been allowed to rebid:

The court properly concluded that a rational basis supported the County’s determination that Kandey made the showing required by General Municipal Law § 103 (11) (a) when it sought permission to withdraw its mistaken bid. The court erred, however, in concluding that the County failed to comply with General Municipal Law § 103 (11) (b) when it permitted Kandey to participate in the rebid. That section provides that the “sole remedy for a bid mistake in accordance with this section shall be withdrawal of that bid and the return of the bid bond or other security, if any, to the bidder.” That is precisely what the County did here when it permitted Kandey to withdraw the mistaken bid. The statute further provides that, after the mistaken bid is withdrawn, the County “may, in its discretion, award the contract to the next lowest responsible bidder or rebid the contract,” and the County acted within the discretion extended to it under the statute when it elected to rebid the contract.

The statute is silent on the question whether a contractor that was permitted to withdraw its bid may participate in the rebid. We agree with Kandey and the County that, had the Legislature intended to forbid a contractor in Kandey’s position from participating in the rebid, it would have done so explicitly. Further, “[a] court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit” … . Thus, we do not interpret the statute to include an implicit prohibition against Kandey’s participation in the rebid following the withdrawal of its mistaken bid. Matter of Concrete Applied Tech. Corp. v County of Erie, 2015 NY Slip Op 06087, 4th Dept 7-10-15

 

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Failure to Strictly Comply with the Procedure Mandated by the State Environmental Quality Review Act (SEQRA) Required Annulment of the Town’s Negative Declaration Re: the Construction of a Casino and Resort

The Fourth Department, with two concurring and one dissenting justice, determined that the town’s negative declaration under the State Environmental Quality Review Act (SEQRA) with respect to the construction of a casino and resort should have been annulled because the town did not strictly comply with mandated procedure. Specifically the negative declaration did not include a “reasoned elaboration” as required by the relevant regulation. A document prepared by the town’s counsel explaining the reasons for the negative declaration was never approved or adopted by the town board and therefore did not meet the statutory/regulatory “reasoned elaboration” requirement:

It is well settled that SEQRA’s procedural mechanisms mandate strict compliance, and anything less will result in annulment of the lead agency’s determination of significance … . “[L]iteral rather than substantial compliance with SEQRA is required” … . Here, 6 NYCRR 617.7 (b) (4) requires that, in making the determination of significance, the lead agency—in this case the Town Board—must “set forth its determination of significance in a written form containing a reasoned elaboration and providing reference to any supporting documentation.” We conclude that the intent of the regulation is to focus and facilitate judicial review and, of no lesser importance, to provide affected landowners and residents with a clear, written explanation of the lead agency’s reasoning at the time the negative declaration is made. We reject respondents’ contention that we should search the entire record to discern the Town Board’s reasoning as of June 12, 2014 in making the determination to issue the negative declaration. “A record evincing an extensive legislative process . . . is neither a substitute for strict compliance with SEQRA’s [written] reasoned elaboration requirement nor sufficient to prevent annulment” … . We therefore reverse the judgment and grant the petition, thereby annulling the negative declaration and vacating the site plan approval and all related resolutions. Matter of Dawley v Whitetail 414, LLC, 2015 NY Slip Op 06082 4th Dept 7-10-15

 

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Claims Against the State Based Upon Recurrent Flooding Properly In Supreme Court as Opposed to the Court of Claims/Criteria for Inverse Condemnation of Property Explained (Not Met Here)

The Fourth Department, over a two-justice dissent, determined that an action against the state alleging recurrent flooding of plaintiffs’ property was properly in Supreme Court, despite the statutory requirement that claims against the state for monetary damages be brought in the Court of Claims. The Fourth Department held that the state did not demonstrate that the essential nature of the claim was to recover money. The Fourth Department further determined that the cause of action for inverse condemnation was properly dismissed, explaining the criteria:

Contrary to defendant’s contention, the court properly denied that part of its cross motion seeking summary judgment dismissing all claims for money damages. Although defendant is correct that ” claims that are primarily against the State for damages must be brought in the Court of Claims, the Supreme Court may consider a claim for injunctive relief as long as the claim is not primarily for damages’ ” (… see Court of Claims Act § 9 [2]). “Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case” … . Here, defendant failed to establish in support of its cross motion that the essential nature of the causes of action for negligence, continuing nuisance, and continuing trespass is to recover money damages, and thus the court properly declined to grant summary judgment dismissing those causes of action.

We agree, however, with the further contention of defendant that the court erred in denying that part of its cross motion seeking summary judgment dismissing the cause of action for inverse condemnation, and we therefore modify the order accordingly. That cause of action alleged that the flooding intruded onto plaintiffs’ properties and interfered with their property rights to such an extent that it constituted “a constitutional taking requiring [defendant] to purchase the properties from plaintiffs.” It is well settled that such a “taking can consist of either a permanent ouster of the owner, or a permanent interference with the owner’s physical use, possession, and enjoyment of the property, by one having condemnation powers” … . “In order to constitute a permanent ouster, defendant[‘s] conduct must constitute a permanent physical occupation of plaintiff’s property amounting to exercise of dominion and control thereof’ ” … .

Here, defendant met its burden on its cross motion with respect to the cause of action for inverse condemnation by establishing as a matter of law that any interference with plaintiffs’ property rights was not sufficiently permanent to constitute a de facto taking … . Greece Ridge, LLC v State of New York, 2015 NY Slip Op 06072, 4th Dept 7-10-15

 

Demand for Jury Trial Should Not Have Been Struck Despite Request for a “Declaration” in the Complaint—Crux of the Case Was a Request for Monetary Relief

The Fourth Department determined that plaintiffs’ demand for a jury trial should not have been struck. Defendants attempted to recoup alleged overpayments made to plaintiffs for ambulance services by reducing payments for ongoing services. Plaintiffs brought suit challenging defendant’s right to recoup the alleged overpayments. As part of their complaint, the plaintiffs sought “a declaration that [defendant] is not entitled to offset or recoup any funds from [p]laintiffs.” The Fourth Department held that, despite the request for a “declaration,” the crux of the lawsuit was for monetary relief and the demand for a jury trial was therefore appropriate:

… [T]he court erred in granting defendant’s motion to strike their demand for a jury trial, and we therefore modify the order accordingly. The question whether plaintiffs are entitled to a jury trial turns on whether “the underlying claims set forth in the complaint are legal rather than equitable in nature” … . Here, we conclude that plaintiffs’ request for “a declaration that [defendant] is not entitled to offset or recoup any funds from [p]laintiffs” is incidental to their request for monetary relief. “[V]iewed in its entirety, the primary character of the case is legal” … , and “the complaint contains demands and sets forth facts which would permit a judgment for a sum of money only’ “… . Canandaigua Emergency Squad, Inc. v Rochester Area Health Maintenance Org., Inc., 2015 NY Slip Op 06056, 4th Dept 7-10-15

 

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Failure to Strictly Comply With Notice Requirement in the Civil Service Law Rendered the Involuntary Leave Imposed Upon the Petitioner-Firefighter a Nullity—Petitioner Entitled to Back Pay for Leave Period—Petitioner Properly Deemed Unfit for Active Duty Due to His Inability to Manage Diabetic Symptoms

The Fourth Department determined a firefighter was properly deemed unfit for active duty as a firefighter because of his inability to manage diabetic symptoms. During the course of the decision, the Fourth Department held that the city’s failure to strictly comply with the notice requirements of the Civil Service Law rendered the involuntary leave imposed on petitioner a nullity (entitling him to back pay for the leave period):

We conclude that the procedural protections contained in Civil Service Law § 72 (1) apply to proceedings brought pursuant Civil Service Law § 72 (5) based on the language in subdivision (1) that the provisions of notice and hearing therein apply to employees “placed on leave of absence pursuant to this section” (emphasis added), “which includes Civil Service Law § 72 (5)” … . These procedures are necessary “to afford tenured civil servant employees . . . procedural protections prior to involuntary separation from service” … . “Because of the significant due process implications of the statute, strict compliance with its procedures is required” … . Here, it is undisputed that respondents did not strictly comply with the procedures pursuant to section 72 for placing petitioner on immediate involuntary leave inasmuch as it was not until April 2012 that petitioner was provided with “[w]ritten notice of the facts providing the basis for the judgment of the appointing authority that [petitioner was] not fit to perform the duties of” his position (§ 72 [1]). Although the parties had engaged in negotiations during the period before respondents provided petitioner with written notice, respondents concede that at no time did petitioner waive his rights under section 72 … . Additionally, petitioner did not receive the final notice of determination within 75 days from the receipt of his request for review (see § 72 [1]). The absence of strict compliance with these procedural requirements renders petitioner’s alleged leave a nullity prior to September 30, 2013, when Linnertz issued his final determination after reviewing the Hearing Officer’s decision … , and petitioner is entitled to back pay and the restoration of benefits from August 26, 2011 until September 30, 2013. Matter of Williams v Troiano, 2015 NY Slip Op 05318, 4th Dept 6-19-15

 

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Town Board’s Terminating, Without Notice, Plaintiff’s Construction Project Violated Plaintiff’s Right to Substantive Due Process/Town Was Not Entitled to Qualified Immunity

The plaintiff had cleared the way for building on land which included wetlands by obtaining the necessary permits and waivers from the Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACE) when, without notice, the town board passed a resolution rescinding a previously issued sewer tap-in waiver and terminating the construction project. Among other theories, plaintiff sued under 42 USC 1983 (deprivation of property without due process of law) and won. On appeal the due process violation verdict was upheld. The Fourth Department explained the criteria for the due process cause of action and noted that the defendant town was not entitled to qualified immunity because the town board’s actions violated plaintiff’s constitutional rights:

… [W]e note that the Court of Appeals has set forth a two-part test for substantive due process violations: “[f]irst, [a plaintiff] must establish a cognizable property interest, meaning a vested property interest, or more than a mere expectation or hope to retain the permit and continue their improvements; they must show that pursuant to State or local law, they had a legitimate claim of entitlement to continue construction’ . . . Second, [a plaintiff] must show that the governmental action was wholly without legal justification” … . Under the first prong, “a legitimate claim of entitlement to a permit can exist only where there is either a certainty or a very strong likelihood’ that an application for approval would have been granted” … . “Where an issuing authority has discretion in approving or denying a permit, a clear entitlement can exist only when that discretion is so narrowly circumscribed that approval of a proper application is virtually assured’ “… . * * *

We reject defendant’s contention that the state constitutional claims should be dismissed because defendant is entitled to qualified immunity. ” A government official is entitled to qualified immunity provided his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known’ ” … . Defendant failed to establish that it was objectively reasonable for the Town Board to believe that its conduct in withdrawing the sewer tap-in waiver request on … was appropriate … . Instead, the evidence established that the Town Board members acted without knowing the history of the project and acted knowing that only the Planning Board had to take action, i.e., to give site plan approval for the property. Despite the existence of plaintiff’s constitutionally protected property interest in the … tap-in waiver request, the Town Board acted … to withdraw that waiver request, which was a violation of plaintiff’s constitutional rights. As such, defendant is not entitled to qualified immunity. Acquest Wehrle, LLC v Town of Amherst, 2015 NY Slip Op 05346, 4th Dept 6-19-15

 

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No Survivorship Language in Joint Bank Account Documents/Evidence the Joint Account Was Created as a Matter of Convenience/Summary Judgment Should Not Have Been Granted Awarding Plaintiff Half the Funds in the Account Upon the Death of the Other Person Named on the Account

The Fourth Department noted that Supreme Court erred in concluding a joint bank account was a joint tenancy with right of survivorship and granting the aspect of plaintiff’s motion for summary judgment seeking half the funds in the account upon the death of the other party named on the account. There was no survivorship language in the account documents, and there was evidence tending to rebut any statutory presumption of a joint tenancy (i.e., evidence the account was created as a matter of convenience):

Contrary to the court’s determination, we conclude that the statutory presumption of joint tenancy set forth in Banking Law § 675 does not apply to the joint account inasmuch as “the account documents do not contain the necessary survivorship language” … .

We note in any event that the statutory presumption may be rebutted “by providing direct proof that no joint tenancy was intended or substantial circumstantial proof that the joint account[s] had been opened for convenience only” … . Even assuming, arguendo, that the statutory presumption of joint tenancy applies to the joint accounts, we conclude that defendant submitted evidence tending to rebut the statutory presumption that is sufficient to raise a triable issue of fact whether, “at the time the accounts were created, the accounts were opened as a matter of convenience” … . In particular, defendant submitted evidence establishing, inter alia, that decedent was the sole depositor of the joint accounts, and that plaintiff never withdrew funds from the joint accounts during decedent’s lifetime … . In addition, defendant submitted evidence establishing that decedent’s creation of a joint tenancy with the right of survivorship in the joint accounts “would represent a substantial deviation from [her] previously expressed testamentary plan” … , Harrington v Brunson, 2015 NY Slip Op 05309, 4th Dept 6-19-15

 

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Parties’ Agreement to “Litigate” Their Entitlement to Interest on a judgment Did Not Constitute a Waiver of the Relevant Insurance Policy’s Arbitration Clause—The Arbitrability of the Claims Must Be Determined by the Arbitrator Not the Courts

The Fourth Department determined an agreement to litigate the parties’ entitlement to interest on a judgment did not constitute a waiver of the relevant insurance policy’s arbitration clause. The issue whether the parties’ claims are arbitrable, therefore, must be determined by the arbitrator, not the courts:

“Once the parties to a broad arbitration clause have made a valid choice of forum, as here, all questions with respect to the validity and effect of subsequent documents purporting to work a modification or termination of the substantive provisions of their original agreement are to be resolved by the arbitrator” … . This is not a situation in which the parties engaged in litigation to such an extent that they “manifested a preference clearly inconsistent with [a] later claim that the parties were obligated to settle their differences by arbitration’ ” … . Nor is this a situation in which the entire contract containing the arbitration provision has been cancelled or terminated, such that “the designation of the arbitration forum for the resolution of disputes is no longer binding upon the parties” … . We thus conclude that the determination of the arbitrability of the parties’ claims under the Policy should be made by an arbitrator. Town of Amherst v Granite State Ins. Co., Inc., 2015 NY Slip Op 05352, 4th Dept 6-19-15

 

Court Properly Awarded Sole Custody to Mother, Despite Expressed Wishes of Adolescent Child

The Fourth Department, over a two-justice dissent, determined Family Court properly awarded custody to mother, despite the wishes of the adolescent child.  The dissenters argued that great weight should have been given to the expressed wishes of the child.  Sheridan v Sheridan, 2015 NY Slip Op 05301, 4th Dept 6-19-15

 

 

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Evidence of Prior Uncharged Offenses Involving the Same Behavior and Against the Same Victim as Alleged in the Charged Offense Deemed Admissible to Prove Motive, Intent and to Provide Necessary Background Information About the Nature of the Relationship Between the Victim and Defendant

The Fourth Department determined evidence of prior uncharged sexual abuse of the victim, which included actions attributed to the defendant in the charged offense (abuse when the victim was unconscious from alcohol intoxication), was properly admitted. The court found the uncharged crime evidence was admissible to prove intent and motive, and to provide background information about the nature of the relationship between the victim and defendant:

We reject defendant’s contention … that the court erred in admitting evidence of defendant’s prior uncharged sexual abuse of the victim which, according to the victim’s testimony, also occurred while she was unconscious from alcohol intoxication. “The general rule is that evidence of . . . uncharged crimes may not be offered to show defendant’s bad character or his propensity towards crime but may be admitted only if the acts help establish some element of the crime under consideration or are relevant because of some recognized exception to the general rule” … . Here, we conclude that the evidence of uncharged crimes was admissible to establish intent and motive under the first two exceptions specifically identified in Molineux’s illustrative and nonexhaustive list … . Specifically, the disputed evidence was relevant to the issue whether defendant intended to commit the instant crime for the purpose of sexual gratification (see Penal Law §§ 130.00 [3]; 130.65 [2]), and to establish defendant’s motive in providing a large quantity of alcohol to the victim. Consequently, “the evidence in this case was not propensity evidence, but was probative of [defendant’s] motive and intent to [sexually] assault his victim” … . Moreover, the evidence was also admissible under a more recently recognized Molineux exception, i.e., to “provide[] necessary background information on the nature of the relationship” between defendant and the victim … and thus, we conclude that the court did not abuse its discretion in allowing the People to present the evidence at issue … . People v Leonard, 2015 NY Slip Op 05314. 4th Dept 6-19-15

 

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