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Underwater Land Is Appurtenant to Adjacent Upland

The Fourth Department determined defendant had no ownership rights in underwater land appurtenant to plaintiffs’ upland property:

…[T]he court properly considered the deeds submitted by plaintiffs in support of their motion. All of those deeds, with the exception of defendant’s own quitclaim deed, are more than 10 years old and therefore are “prima facie evidence of their contents” (CPLR 4522…). With respect to defendant’s quitclaim deed, plaintiffs’ attorney swore to its authenticity …, and defendant herself relies on that deed in opposition to plaintiffs’ motion.

…[E]ven with navigable waterways, “when land under water has been conveyed by the state to the owner of the adjacent uplands, the lands under water so conveyed become appurtenant to the uplands, and will pass by a conveyance of the latter without specific description” … . Here, regardless of whether title to the underwater land merges and passes with title to adjacent uplands, or is conveyed separately, plaintiffs met their initial burden. Although the State initially conveyed uplands and underwater land to Charles Smyth by separate deeds, the underwater land thereafter passed appurtenant to Smyth’s uplands, including by deeds to plaintiffs and several other landowners on North Bay, but not to defendant. Even if the underwater land could be conveyed only separately, it would have passed to Smyth’s heirs and devisees, not directly to defendant. Kernan v Williams, 2015 NY Slip Op 01122, 4th Dept 2-6-15

 

“Falling Objects” Protection Afforded by Labor Law 240 (1) Explained

In affirming the denial of defendant's motion for summary judgment on the Labor Law 240 (1) cause of action, the Fourth Department explained the law relating to “falling objects:”

Labor Law § 240 (1) “applies to both falling worker' and falling object' cases” …, and that section 240 (1) guards “workers against the special hazards' that arise when the work site either is itself elevated or is positioned below the level where materials or load [are] hoisted or secured' ” … . To recover under section 240 (1), a worker injured by a falling object must thus establish both (1) that the object was being hoisted or secured, or that it ” required securing for the purposes of the undertaking,' ” and (2) that the object fell because of the absence or inadequacy of a safety device to guard against a risk involving the application of the force of gravity over a physically significant elevation differential … . Floyd v New York State Thruway Auth, 2015 NY Slip Op 01131, 4th Dept 2-6-15


 

Non-Supervising Property Owner Not Liable Under Common Law or Labor Law 200 for Injury Stemming from the Manner In Which the Work Is Done

The Fourth Department noted that no liability attaches to the non-supervising property owner under Labor Law 200 or common law negligence when the worker's injury stems from the manner in which the work was performed and not from the condition of the work site:

“It is settled law that where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law” … . Here, defendants met their initial burden by establishing that plaintiff's accident resulted from the manner in which the work was performed, not from any dangerous condition on the premises, and defendants exercised no supervisory control over the work… . Zimmer v Town of Lancaster Indus Dev Agency, 2015 NY Slip Op 01023, 4th Dept 2-6-15


In Proceedings Seeking the Reduction of Tax Assessments, Court Should Not Have Ordered the Inspection of the Interior of the Homes—The Assessor Did Not Demonstrate Interior Inspections Were Necessary for the Defense and Did Not Demonstrate the Need for the Inspections Outweighed the Homeowners’ Fourth Amendment Privacy Rights

The Fourth Department determined Supreme Court should not have ordered inspections of the interior of homes in proceedings where homeowners challenged the tax assessments of their properties:

“Because discovery tends to prolong a case, and is therefore inconsistent with the summary nature of a special proceeding, discovery is granted only where it is demonstrated that there is need for such relief” … . Here, in order for “respondents to establish their entitlement to conduct . . . interior inspection[s] of the petitioner[s'] home[s] for purposes of appraisal, in the absence of the petitioner[s'] consent, . . . respondents bore the burden of demonstrating that [each] particular inspection [was] reasonable' ” …, and ” that interior inspections were necessary to prepare their defense' ” … . We agree with petitioners that respondents failed to make the required showing that interior inspections were reasonable and necessary to prepare their defense … . * * *

In addition to establishing that their request for interior inspections was reasonable and necessary to prepare their defense, respondents were also required to show that their interest in conducting them outweighed petitioners' Fourth Amendment privacy rights … . In determining whether respondents made such a showing, the court was required to “balanc[e] respondents' need for interior inspections [of the homes] against the invasion of petitioners' privacy interests that such inspections would entail” … . Upon our review of the record, we conclude that respondents failed to establish that their interest in interior inspections outweighed petitioners' Fourth Amendment privacy rights … . Matter of Aylward v Assessor, City of Buffalo…, 2015 NY Slip Op 01065, 4th Dept 2-6-15


“Case Management Fee” Imposed Upon Property Owners Who Do Not Correct a Code Violation Within One Year Is an Unconstitutional Penalty Which Requires Due Process Protections

The Fourth Department determined a so-called “case management fee” (CMF) authorized by City of Rochester Municipal Code 90-21 is an unconstitutional penalty imposed without adequate due process.  The code provisions allows the assessment of $100 against a property owner who fails to correct a code violation within one year:

Although “[t]he exceedingly strong presumption of constitutionality applies . . . to ordinances of municipalities[,] . . . [that] presumption is rebuttable” …, and we conclude that petitioners have rebutted the presumption of constitutionality.

A determination whether the CMF is a fee or a fine imposed as a penalty is critical to our analysis because “[p]rocedural due process rights do not apply to legislation of general applicability,” and thus the imposition of fees such as licensing fees are “not subject to attack on grounds of procedural due process. Fines [that are imposed as a penalty], however, can implicate procedural due process rights” … . * * *

Having concluded that the CMF is a fine imposed as a penalty on the property owner, we must determine whether the ordinance provides property owners with due process of law. As the Court of Appeals wrote in Morgenthau v Citisource, Inc. (68 NY2d 211), “[w]e have long recognized that due process is a flexible constitutional concept calling for such procedural protections as a particular situation may demand' . . . [,] and in determining whether [f]ederal due process standards have been met, we look to the three distinct factors that form the balancing test enunciated by the Supreme Court in Mathews v Eldridge (424 US 319, 335): First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail' ” (id. at 221).

While we agree with the court that the private interest at stake, i.e., $100, “is relatively insubstantial,” we conclude that there is a significant risk of erroneous deprivation of that interest through the procedures established by the ordinance. * * *

Although ” [d]ue process does not, of course, require that the defendant in every civil case actually have a hearing on the merits' ” …, we conclude that due process requires some type of hearing at which the City should be required to establish that property owners did not abate the violation within the one-year period. Matter of D'Alessandro v Kirkmire, 2015 NY Slip Op 01018, 4th Dept 2-6-15


Question of Fact Whether Fight Which Broke Out at a Youth Hockey Game Was Foreseeable

The Fourth Department, over a dissent, determined there was question of fact whether a fight at a youth hockey game, in which plaintiffs were injured, was foreseeable from the perspective of the Rome Youth Hockey Association (RYHA) which leased part of the facility where the fight broke out:

…[T]here is an issue of fact whether the duty of RYHA to plaintiffs included the duty to protect plaintiffs from Ricci's conduct … . “Foreseeability . . . determines the scope of [a] duty once it is determined to exist” … and, given the hostile environment in the arena before the fight, there is an issue of fact whether RYHA knew or should have known of the likelihood of the fight … . Here, the tensions in the stands built throughout the game such that we conclude that a trier of fact should determine whether RYHA had a duty to intercede and protect plaintiff … . Pink v Ricci, 2015 NY Slip Op 01077, 4th Dept 2-6-15


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“Arbitrary and Capricious” Defined/Criteria for Elimination of a Public-Employee Position Explained

In affirming the school district's actions in creating a new position and eliminating an existing position, the Fourth Department explained the relevant review standards:

“The arbitrary or capricious test chiefly relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact' . . . Arbitrary action is without sound basis in reason and is generally taken without regard to the facts… . * * *

“It is well established that a public employer may abolish civil service positions for the purposes of economy or efficiency . . . , but it may not act in bad faith in doing so . . . , nor may it abolish positions as a subterfuge to avoid the statutory protection afforded civil servants before they are discharged . . . A petitioner challenging the abolition of his or her position must establish that the employer in question acted in bad faith” … . Matter of Ifedigbo v Buffalo Pub Schools, 2015 NY Slip Op 01125, 4th Dept 2-6-15


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Lowering Health Insurance Benefits for School-District Retirees Below Level Afforded Active Employees Violated the Insurance Moratorium Statute

The Fourth Department determined lowering the health insurance benefits for retired school district employees below the level of benefits afforded active employees violated the Insurance Moratorium Statute:

The moratorium statute sets a minimum baseline or “floor” for retiree health benefits, and that “floor” is measured by the health insurance benefits received by active employees … . In other words, the moratorium statute does not permit an employer to whom the statute applies to provide retirees with lesser health insurance benefits than active employees … . Matter of Anderson v Niagara Falls City School Dist, 2015 NY Slip Op 01098, 4th Dept 2-6-15


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Order Granting a Motion In Limine Is Appealable If It Effectively Limits the Presentation of a Legal Theory at Trial

The Fourth Department determined the order granting defendant's motion in limine was appealable because the order limited the theories available for use at trial, not merely the admissibility of evidence (which would not be appealable).  The Fourth Department found that the motion in limine should not have been granted because it effectively precluded plaintiffs from introducing evidence of continuous representation which may have tolled the statute of limitations in this legal malpractice action:

In the order on appeal, the court granted defendants' motions to preclude plaintiffs from introducing evidence that any of the defendants represented plaintiffs with respect to any issue other than an issue in the context of a medical malpractice action against a physician. The effect of that order was to limit plaintiffs to introducing evidence that, in 1994, one of the defendants made a statement to Gary M. Dischiavi (plaintiff) indicating that the medical malpractice action was not viable.

We note at the outset that, although the parties do not address the appealability of this order determining a motion in limine, we conclude that plaintiffs may appeal from the order at issue … . “Generally, an order ruling [on a motion in limine], even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . This Court has noted, however, that “there is a distinction between an order that limits the admissibility of evidence,' which is not appealable . . . , and one that limits the legal theories of liability to be tried' or the scope of the issues at trial, which is appealable” … . Here, the order precluded the introduction of the vast majority of the evidence on the issue whether defendants continued to represent plaintiffs so as to toll the statute of limitations, and thus it is appealable because it limits the scope of the issues at trial … . Dischiavi v Calli, 2015 NY Slip Op 01116, 4th Dept 2-6-15

 

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Regulation Properly Promulgated—Analytical Criteria Described in Some Depth

In finding that a regulation promulgated by the Department of Health (DOH) was a valid exercise of regulatory authority, the Fourth Department noted that an agency need not rely on empirical studies when it adopts a regulation, but rather can rely on the expertise and experience of the agency.  The challenged regulation limited a specific type of Medicaid-reimbursement to nursing homes pending an audit:

…DOH had statutory authority to promulgate 10 NYCRR 86-2.40 (m) (10) under Public Health Law § 2808 (2-c) (d) and … the regulation was not ” out of harmony' with an applicable statute” … . Although section 2808 (2-c) (d) does not explicitly authorize prepayment audits of residential health care facilities, “an agency can adopt regulations that go beyond the text of that legislation, provided that they are not inconsistent with the statutory language or its underlying purposes” … . Moreover, we reject petitioners' contention that DOH usurped the role of the legislature by adopting 10 NYCRR 86-2.40 (m) (10). DOH has “inherent authority to protect the quality and value of services rendered by [Medicaid] providers” … and, therefore, we conclude that DOH did not “stretch[ ] [the enabling statute] beyond its constitutionally valid reach” by adopting a regulation that allows a prepayment audit of Medicaid claims under certain circumstances … .

…10 NYCRR 86-2.40 (m) (10) “has a rational basis and is not unreasonable, arbitrary or capricious” … . Contrary to petitioners' contention, DOH is not required to rely upon empirical studies when it adopts a regulation. “Although documented studies often provide support for an agency's rule making, such studies are not the sine que non of a rational determination” … . Thus, “the commissioner [of DOH] . . . is not confined to factual data alone but also may apply broader judgmental considerations based upon the expertise and experience of the agency he [or she] heads” … . Here, DOH adopted 10 NYCRR 86-2.40 (m) (10) to “[e]nsure the accuracy and integrity of Medicaid rates that are adjusted for case mix data” (NY Reg, Jan. 2, 2013, at 16), and we conclude that adoption of the regulation was within DOH's authority in order to ” assure[] that the funds which have been set aside for (providing medical services to the needy) will not be fraudulently diverted into the hands of an untrustworthy provider of services' ” … . Matter of Adirondack Health-Uijlein Living Ctr v Shah, 2015 NY Slip Op 01073, 4th Dept 2-6-15


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