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DESPITE THE TERMS OF THE REAL PROPERTY PURCHASE CONTRACT, WHICH PURPORTED TO REQUIRE THE DEFENDANT PURCHASER TO FORFEIT ALL MONTHLY PAYMENTS WHICH HAD BEEN MADE AND VACATE THE PROPERTY UPON DEFAULT, DEFENDANT HAD ACQUIRED EQUITABLE TITLE TO THE PROPERTY, PLAINTIFFS’ ONLY AVAILABLE REMEDIES ARE TO BRING AN ACTION TO FORECLOSE OR AN ACTION FOR THE PURCHASE PRICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiffs, who had effectively taken back a mortgage on property sold to defendant, could not enforce the purchase contract which purported to declare the contract null and void and require the defendant to vacate the property upon default. Defendant, by making substantial monthly payments pursuant to the contract, had acquired equitable title to the property. Plaintiffs only available remedies are foreclosure or an action at law for the purchase price:

A rider to the [purchase] contract contained a provision providing that in the event the defendant defaulted in making payments under the contract and failed to cure, and that said default resulted in the plaintiffs' inability to pay an existing mortgage on the property, the defendant forfeited all monies paid as liquidated damages, the contract was deemed null and void, and the premises were to be vacated in good condition. * * *

“The execution of a contract for the purchase of real estate and the making of a partial payment gives the contract vendee equitable title to the property” … . “[T]he vendor merely holds the legal title in trust for the vendee, subject to the vendor's equitable lien for the payment of the purchase price in accordance with the terms of the contract” … . Accordingly, the vendee under a land sale contract has acquired an interest in the property that must be extinguished before the vendor can resume possession, notwithstanding whether a provision in the contract provides that in the event of the vendee's uncured default in payment, the vendor has the right to declare the contract terminated and repossess the premises… . A vendor may not enforce his rights by an action in ejectment, but must instead proceed to foreclose the vendee's equitable title or bring an action at law for the purchase price … .

The defendant, having executed a contract for the purchase of property from the plaintiffs, and having made substantial payments to the plaintiffs pursuant to the contract, held equitable title to the property… . Under these circumstances, upon the defendant's default in making payments under the contract, the plaintiffs could not seek relief pursuant to the provision of the rider that provided for the contract to be deemed null and void, the premises vacated, and the defendant to forfeit all monies paid as liquidated damages. The plaintiffs were required to proceed to foreclose the defendant's equitable title or bring an action at law for the purchase price … . Russell v Pisana, 2018 NY Slip Op 05789, Second Dept 8-15-18

FORECLOSURE (DESPITE THE TERMS OF THE REAL PROPERTY PURCHASE CONTRACT, WHICH PURPORTED TO REQUIRE THE DEFENDANT PURCHASER TO FORFEIT ALL MONTHLY PAYMENTS WHICH HAD BEEN MADE  AND VACATE THE PROPERTY UPON DEFAULT, DEFENDANT HAD ACQUIRED EQUITABLE TITLE TO THE PROPERTY, PLAINTIFFS' ONLY AVAILABLE REMEDIES ARE TO BRING AN ACTION TO FORECLOSE OR AN ACTION FOR THE PURCHASE PRICE (SECOND DEPT))/REAL PROPERTY LAW  (DESPITE THE TERMS OF THE REAL PROPERTY PURCHASE CONTRACT, WHICH PURPORTED TO REQUIRE THE DEFENDANT PURCHASER TO FORFEIT ALL MONTHLY PAYMENTS WHICH HAD BEEN MADE  AND VACATE THE PROPERTY UPON DEFAULT, DEFENDANT HAD ACQUIRED EQUITABLE TITLE TO THE PROPERTY, PLAINTIFFS' ONLY AVAILABLE REMEDIES ARE TO BRING AN ACTION TO FORECLOSE OR AN ACTION FOR THE PURCHASE PRICE (SECOND DEPT))/REAL ESTATE  (DESPITE THE TERMS OF THE REAL PROPERTY PURCHASE CONTRACT, WHICH PURPORTED TO REQUIRE THE DEFENDANT PURCHASER TO FORFEIT ALL MONTHLY PAYMENTS WHICH HAD BEEN MADE  AND VACATE THE PROPERTY UPON DEFAULT, DEFENDANT HAD ACQUIRED EQUITABLE TITLE TO THE PROPERTY, PLAINTIFFS' ONLY AVAILABLE REMEDIES ARE TO BRING AN ACTION TO FORECLOSE OR AN ACTION FOR THE PURCHASE PRICE (SECOND DEPT))/CONTRACT LAW (REAL ESTATE, DESPITE THE TERMS OF THE REAL PROPERTY PURCHASE CONTRACT, WHICH PURPORTED TO REQUIRE THE DEFENDANT PURCHASER TO FORFEIT ALL MONTHLY PAYMENTS WHICH HAD BEEN MADE  AND VACATE THE PROPERTY UPON DEFAULT, DEFENDANT HAD ACQUIRED EQUITABLE TITLE TO THE PROPERTY, PLAINTIFFS' ONLY AVAILABLE REMEDIES ARE TO BRING AN ACTION TO FORECLOSE OR AN ACTION FOR THE PURCHASE PRICE (SECOND DEPT))

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SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS STUDENT ON STUDENT ASSAULT CASE SHOULD HAVE BEEN GRANTED, THE STUDENT’S ACTIONS WERE IMPULSIVE AND COULD NOT HAVE BEEN ANTICIPATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the school district's motion for summary judgment in this student on student assault case should have been granted. The student's pushing plaintiff's daughter was an impulsive act which could not have been anticipated or prevented by supervision:

… [T]he District established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging negligent supervision of the plaintiff's daughter by submitting evidence demonstrating that it did not have actual or constructive notice of the dangerous conduct that caused the injury, and that the other student's act of running up behind the daughter and pushing her as she was walking down the hallway at dismissal time was impulsive and could not have been anticipated … . In opposition, the plaintiff failed to raise a triable issue of fact.

The District also established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging negligent hiring, training, and supervision of its employees … . Ramirez v Brentwood Union Free Sch. Dist., 2018 NY Slip Op 05788, Second Dept 8-15-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, SCHOOL DISTRICT'S MOTION FOR SUMMARY JUDGMENT IN THIS STUDENT ON STUDENT ASSAULT CASE SHOULD HAVE BEEN GRANTED, THE STUDENT'S ACTIONS WERE IMPULSIVE AND COULD NOT HAVE BEEN ANTICIPATED (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, SCHOOL DISTRICT'S MOTION FOR SUMMARY JUDGMENT IN THIS STUDENT ON STUDENT ASSAULT CASE SHOULD HAVE BEEN GRANTED, THE STUDENT'S ACTIONS WERE IMPULSIVE AND COULD NOT HAVE BEEN ANTICIPATED (SECOND DEPT))/EDUCATION-SCHOOL LAW (STUDENT ON STUDENT ASSAULT,  SCHOOL DISTRICT'S MOTION FOR SUMMARY JUDGMENT IN THIS STUDENT ON STUDENT ASSAULT CASE SHOULD HAVE BEEN GRANTED, THE STUDENT'S ACTIONS WERE IMPULSIVE AND COULD NOT HAVE BEEN ANTICIPATED (SECOND DEPT))/ASSAULT, LIABILITY IN NEGLIGENCE FOR (EDUCATION-SCHOOL LAW,  SCHOOL DISTRICT'S MOTION FOR SUMMARY JUDGMENT IN THIS STUDENT ON STUDENT ASSAULT CASE SHOULD HAVE BEEN GRANTED, THE STUDENT'S ACTIONS WERE IMPULSIVE AND COULD NOT HAVE BEEN ANTICIPATED (SECOND DEPT))

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TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT’S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT).

The Second Department determined the town planning board's rescission of a 1987 negative declaration under the State Environmental Quality Review Act (SEQRA) was proper. The board found that the regulatory landscape in 2013 constituted new information or a change in circumstances justifying rescission. The court noted that its review powers are limited to whether the board's action satisfied SEQRA procedurally and substantively, and cannot include determining whether the board was “correct:”

The record supports the Planning Board's conclusion that changes in the regulatory landscape for environmental matters constituted new information or a change in circumstances … . Moreover, in determining that the project may result in significant adverse environmental impacts, the Planning Board identified specific environmental concerns relevant to the criteria for determining significance … .

The petitioners argue that the Planning Board's conclusion was incorrect. However, “it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively” … . Our review 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” … . Here, the Planning Board satisfied this standard. Leonard v Planning Bd. of the Town of Union Vale, 2018 NY Slip Op 05757, Second Dept 8-15-18

ENVIRONMENTAL LAW (TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT'S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT'S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT))/ADMINISTRATIVE LAW (ENVIRONMENTAL LAW, TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT'S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT))/APPEALS (ADMINISTRATIVE LAW, ENVIRONMENTAL LAW, TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT'S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT))

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SNOW-REMOVAL EFFORTS NOT PARTICULARIZED, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant school district's motion for summary judgment in this slip and fall case was properly denied. The evidence demonstrated 19 inches of snow had fallen in the days preceding the slip and fall and the school district did not demonstrate the nature of the snow and ice removal efforts it made. The Second Department noted Supreme Court should not have considered the inadequate-lighting allegation because it was not in the notice of claim or the amended bill of particulars:

In support of its motion, the district submitted a certified weather report, which demonstrated that there was a snowstorm on February 13, 2014, resulting in a snow/ice accumulation of 11.8 inches, a snowstorm on February 14, 2014, with an additional snow/ice accumulation of 9.2 inches, and another inch of snow falling on February 15, 2014, followed by trace amounts on February 16, 2014, culminating in a snow/ice cover totaling 19 inches on the date of the accident. Moreover, the [*2]affidavits of the district's director of facilities and operations and middle school principal failed to provide any information about the district's snow and ice removal practices, or what was done to remove snow and ice from the premises prior to the accident, except to state generally that a facilities and operations staff member finished “all maintenance efforts” at the middle school by 2:59 p.m. on the date of the accident … .  Pickles v Hyde Park Cent. Sch. Dist., 2018 NY Slip Op 05787, Second Dept 8-15-18

NEGLIGENCE (SLIP AND FALL, SNOW-REMOVAL EFFORTS NOT PARTICULARIZED, SCHOOL DISTRICT'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (SNOW-REMOVAL EFFORTS NOT PARTICULARIZED, SCHOOL DISTRICT'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/EDUCATION-SCHOOL LAW (SLIP AND FALL, SNOW-REMOVAL EFFORTS NOT PARTICULARIZED, SCHOOL DISTRICT'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))

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PLAINTIFF WAS A SPECIAL EMPLOYEE OF OWNER OF THE PROPERTY ON WHICH PLAINTIFF WAS INJURED, PLAINTIFF’S RECOVERY RESTRICTED TO WORKERS’ COMPENSATION BENEFITS (SECOND DEPT).

The Second Department determined plaintiff, who worked for Manpower Group and was injured on property owned by Crystal Springs, was not able to sue Crystal Springs. Plaintiff was deemed to be a special employee of Crystal Springs and his only remedy was Workers' Compensation:

Pursuant to Workers' Compensation Law §§ 11 and 29(6), an employee who is entitled to receive workers' compensation benefits may not sue his or her employer based on injuries sustained by the employee. “For purposes of the Workers' Compensation Law, a person may be deemed to have more than one employer—a general employer and a special employer”… . “The receipt of Workers' Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer” … .

“A special employee is one who is transferred for a limited time of whatever duration to the service of another'”… . ” [A] person's categorization as a special employee is usually a question of fact'” … “However, the determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact'” … . ” Many factors are weighed in deciding whether a special employment relationship exists, and generally no single one is decisive. . . . Principal factors include who has the right to control the employee's work, who is responsible for the payment of wages and the furnishing of 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. . . . The most significant factor is who controls and directs the manner, details, and ultimate result of the employee's work.'”  James v Crystal Springs Water, 2018 NY Slip Op 05756, Second Dept 8-15-18

WORKERS' COMPENSATION (PLAINTIFF WAS A SPECIAL EMPLOYEE OF OWNER OF THE PROPERTY ON WHICH PLAINTIFF WAS INJURED, PLAINTIFF'S RECOVERY RESTRICTED TO WORKERS' COMPENSATION BENEFITS (SECOND DEPT))/EMPLOYMENT LAW (SPECIAL EMPLOYEE, WORKERS' COMPENSATION, PLAINTIFF WAS A SPECIAL EMPLOYEE OF OWNER OF THE PROPERTY ON WHICH PLAINTIFF WAS INJURED, PLAINTIFF'S RECOVERY RESTRICTED TO WORKERS' COMPENSATION BENEFITS (SECOND DEPT))/SPECIAL EMPLOYEE (WORKERS' COMPENSATION, PLAINTIFF WAS A SPECIAL EMPLOYEE OF OWNER OF THE PROPERTY ON WHICH PLAINTIFF WAS INJURED, PLAINTIFF'S RECOVERY RESTRICTED TO WORKERS' COMPENSATION BENEFITS (SECOND DEPT))

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DEFENDANT DEMONSTRATED THE ABSENCE OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE ALLEGEDLY SLIPPERY CONDITION IN THIS SLIP AND FALL CASE (FIRST DEPT).

The Second Department determined defendant demonstrated the absence of actual or constructive notice of the allegedly slippery condition on the staircase in this slip and fall case:

Defendant established its entitlement to judgment as a matter of law by establishing that it did not have actual or constructive notice of the urine on the staircase that allegedly caused plaintiff to fall. Defendant submitted, inter alia, the affidavit of its caretaker, who averred that it was his practice to inspect the staircase at issue twice each day, in the morning and at around 3:30 p.m., and to mop up any urine or other wet or slippery condition that he observed. He also stated that it was his practice to complete a checklist with regard to his morning inspection, and he attached and identified a copy of the checklist that he had completed as to the morning inspection on July 2, 2012, the day before plaintiff’s fall. In addition, he specifically stated that no one had complained to him about urine in a stairwell between his afternoon inspection on July 2 and the time his shift ended… .

Plaintiff’s opposition failed to raise a triable issue of fact. The evidence she submitted failed to demonstrate a recurring dangerous condition routinely left unaddressed by defendant, as opposed to a mere general awareness of such a condition, for which defendant is not liable … . Canteen v New York City Hous. Auth., 2018 NY Slip Op 05733, First Dept 8-9-18

NEGLIGENCE (SLIP AND FALL, DEFENDANT DEMONSTRATED THE ABSENCE OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE ALLEGEDLY SLIPPERY CONDITION IN THIS SLIP AND FALL CASE (FIRST DEPT))/SLIP AND FALL (NOTICE, DEFENDANT DEMONSTRATED THE ABSENCE OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE ALLEGEDLY SLIPPERY CONDITION IN THIS SLIP AND FALL CASE (FIRST DEPT))

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ATTORNEYS FOR THE EXECUTOR OF THE ESTATE IN A REMOVAL PROCEEDING SHOULD NOT HAVE BEEN DISQUALIFIED BASED UPON THEIR PRIOR REPRESENTATION OF DECEDENT’S WIFE FOR HER ESTATE PLANNING (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the law firm representing the executor and trustee of the estate in a removal proceeding should not have been disqualified based upon the firm’s prior representation of the decedent’s wife, Sandra, for Sandra’s estate planning:

” A party seeking disqualification of it[s] adversary’s counsel based on counsel’s purported prior representation of that party must establish (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse'” … . “When the moving party is able to demonstrate each of these factors, an irrebuttable presumption of disqualification follows”… . ” A party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted'”… .

Here, although the law firm had a prior attorney-client relationship with Sandra in connection with her own estate planning, which may have been intertwined somewhat with that of the decedent, the record does not reveal that the law firm’s prior representation of Sandra is substantially related or materially adverse to the removal proceedings. In the removal proceedings, Sandra’s estate is not being administered or litigated, and there is nothing to suggest that any confidences with Sandra might be breached by the law firm’s representation of the appellant in his capacity as executor and trustee of the decedent’s estate … . Matter of Kopet, 2018 NY Slip Op 05678, Second Dept 8-8-18

ATTORNEYS (DISQUALIFICATION, ATTORNEYS FOR THE EXECUTOR OF THE ESTATE IN A REMOVAL PROCEEDING SHOULD NOT HAVE BEEN DISQUALIFIED BASED UPON THEIR PRIOR REPRESENTATION OF DECEDENT’S WIFE FOR HER ESTATE PLANNING (SECOND DEPT))/TRUSTS AND ESTATES (ATTORNEYS, DISQUALIFICATION, ATTORNEYS FOR THE EXECUTOR OF THE ESTATE IN A REMOVAL PROCEEDING SHOULD NOT HAVE BEEN DISQUALIFIED BASED UPON THEIR PRIOR REPRESENTATION OF DECEDENT’S WIFE FOR HER ESTATE PLANNING (SECOND DEPT))/DISQUALIFICATION (ATTORNEYS, TRUSTS AND ESTATES,  ATTORNEYS FOR THE EXECUTOR OF THE ESTATE IN A REMOVAL PROCEEDING SHOULD NOT HAVE BEEN DISQUALIFIED BASED UPON THEIR PRIOR REPRESENTATION OF DECEDENT’S WIFE FOR HER ESTATE PLANNING (SECOND DEPT))

SUPREME COURT SHOULD NOT HAVE REVERSED THE ZONING BOARD OF APPEALS AND GRANTED THE PETITION FOR A VARIANCE TO CONSTRUCT AN IN-LAW APARTMENT, COURT’S LIMITED REVIEW POWERS EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the petition for a variance to allow construction of an in-law apartment should not have been granted:

To obtain a use variance, an applicant must demonstrate to the zoning board of appeals that “applicable zoning regulations and restrictions have caused unnecessary hardship” (Village Law § 7-712-b[2][b]). This imposes a “heavy burden” on the applicant …, who is required to establish: “[F]or each and every permitted use under the zoning regulations for the particular district where the property is located, (1) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; (2) that the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; (3) that the requested use variance, if granted, will not alter the essential character of the neighborhood; and (4) that the alleged hardship has not been self-created” (Village Law § 7-712-b[2][b]).

“Under a zoning ordinance which authorizes interpretation of its requirements by a board of appeals, such as Village of Patchogue Code § 93-47(B), specific application of a term of the ordinance to a particular property is governed by that body’s interpretation, unless unreasonable or irrational . . . [J]udicial review is generally limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion” …

The petitioner failed to make the requisite showing of “unnecessary hardship” for a use variance … . Additionally, there is no evidence that the ZBA [zoning board of appeals] failed to adhere to any prior precedent of granting use variance applications in similar situations … . Matter of Gray v Village of Patchogue, 2018 NY Slip Op 05677, Second Dept 8-8-18

ZONING (SUPREME COURT SHOULD NOT HAVE REVERSED THE ZONING BOARD OF APPEALS AND GRANTED THE PETITION FOR A VARIANCE TO CONSTRUCT AN IN-LAW APARTMENT, COURT’S LIMITED REVIEW POWERS EXPLAINED (SECOND DEPT))/VARIANCES (ZONING, SUPREME COURT SHOULD NOT HAVE REVERSED THE ZONING BOARD OF APPEALS AND GRANTED THE PETITION FOR A VARIANCE TO CONSTRUCT AN IN-LAW APARTMENT, COURT’S LIMITED REVIEW POWERS EXPLAINED (SECOND DEPT))

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BECAUSE THE DETERMINATION THAT THE PROPOSED CONSTRUCTION WAS ZONING COMPLIANT WAS NEVER FILED THE 30-DAY APPEAL PERIOD NEVER RAN, BECAUSE A NOTICED HEARING WAS NEVER HELD THE APPROVAL OF THE CONSTRUCTION WAS JURISDICTIONALLY DEFECTIVE (SECOND DEPT).

The Second Department determined Supreme Court properly granted summary judgment in favor of plaintiff property owners who sought to contest the approval of the construction of condominiums near their properties. Because the approval of the project was never filed within the meaning of the Village Code, the 30-day period for appeal never began to run and plaintiffs’ action should not have been dismissed as untimely. In addition, because no duly noticed public hearing (as required by the Village Code) was held, the site plan approval was jurisdictionally defective:

… the ZBA [zoning board of appeals] determined that the 30-day period set forth in Village Code § 300-23(A)(2) began to run in November 2012, when the Building Inspector forwarded [the] application to the Planning Board, an act that was not disclosed to the public. It is undisputed that any determination of the Building Inspector in November 2012 that [the] proposed use was zoning-compliant was not “filed” anywhere at that time. Thus, we agree with the Supreme Court’s conclusion that the ZBA’s determination in this respect was contrary to the plain language of Village Code § 300-23(A)(2). Since this is a purely legal conclusion based on arguments raised in the motions to dismiss, and based on undisputed facts, contrary to the appellants’ contentions, the conversion of their motions into motions for summary judgment was proper, and we agree with the court’s determination granting summary judgment to the petitioners on this issue prior to the filing of an answer … . …

We also agree with the Supreme Court’s determination granting summary judgment to the petitioners on the second cause of action to the extent of declaring that the determination of the BOT dated December 18, 2013, granting site plan approval, was jurisdictionally defective and thus void in that no duly noticed public hearing was held thereon in accordance with Village Code § 300-28(G). Contrary to the appellants’ contention, Village Code § 300-28(G)(1) plainly requires that public hearings be held on site plan applications. That section further provides that the applicant shall be required to send notices of the hearing to owners of properties within 200 feet of the subject property by certified mailing. Since no notice of a public hearing was given, the BOT acted without jurisdiction in granting site plan approval … . Matter of Corrales v Zoning Bd. of Appeals of the Vil. of Dobbs Ferry, 2018 NY Slip Op 05676, Second Dept 8-8-18

ZONING (BECAUSE THE DETERMINATION THAT THE PROPOSED CONSTRUCTION WAS ZONING COMPLIANT WAS NEVER FILED THE 30-DAY APPEAL PERIOD NEVER RAN, BECAUSE A NOTICED HEARING WAS NEVER HELD THE APPROVAL OF THE CONSTRUCTION WAS JURISDICTIONALLY DEFECTIVE (SECOND DEPT))

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COVENANT NOT TO COMPETE WHICH EFFECTIVELY PRECLUDED DEFENDANT SURGEON FROM PRACTICING MEDICINE IN METROPOLITAN NEW YORK WAS INVALIDATED, ARGUMENT FOR PARTIAL ENFORCEMENT REJECTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined a covenant not to compete which prohibited defendant surgeon from practicing within a ten-mile radius of his former employer was unreasonable and was properly invalidated. The argument that the covenant should be partially enforced was rejected as well:

“Agreements restricting an individual’s right to work or compete are not favored and thus are strictly construed” … ” [A] restrictive covenant will only be subject to specific enforcement to the extent that it is reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee'” … . The determination of whether a restrictive covenant is reasonable involves the application of a three-pronged test. “A restraint is reasonable only if it: (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public” … . The “violation of any prong renders the covenant invalid” … . “With agreements not to compete between professionals . . . [courts] have given greater weight to the interests of the employer in restricting competition within a confined geographical area” … . That said, “the application of the test of reasonableness of employee restrictive covenants focuses on the particular facts and circumstances giving context to the agreement” … . “The rationale for the differential application of the common-law rule of reasonableness . . . was that professionals are deemed to provide unique or extraordinary'” services … .

Here, the defendants made a prima facie showing that the provision of the covenant prohibiting Andrade for a period of two years from practicing surgery of any kind, within a 10-mile radius of all of the plaintiff’s offices and affiliated hospitals, even those at which he had never worked, was geographically unreasonable, because it effectively barred him from performing surgery, his chosen field of medicine, in the New York metropolitan area … . …

Contrary to the plaintiff’s contention, the Supreme Court did not err in declining to modify the covenant rather than invalidating it. The determination of whether an overly broad restrictive covenant should be enforced to the extent necessary to protect an employer’s legitimate interest involves “a case specific analysis, focusing on the conduct of the employer in imposing the terms of the agreement” … . Partial enforcement may be justified if an employer demonstrates, in addition to having a legitimate business interest, “an absence of overreaching, coercive use of dominant bargaining power, or other anti-competitive misconduct” … . “Factors weighing against partial enforcement are the imposition of the covenant in connection with hiring or continued employment—as opposed to, for example, imposition in connection with a promotion to a position of responsibility and trust—the existence of coercion or a general plan of the employer to forestall competition, and the employer’s knowledge that the covenant was overly broad”… . Long Is. Minimally Invasive Surgery, P.C. v St. John’s Episcopal Hosp., 2018 NY Slip Op 05674, Second Dept 8-8-18

EMPLOYMENT LAW (COVENANT NOT TO COMPETE WHICH EFFECTIVELY PRECLUDED DEFENDANT SURGEON FROM PRACTICING MEDICINE IN METROPOLITAN NEW YORK WAS INVALIDATED, ARGUMENT FOR PARTIAL ENFORCEMENT REJECTED, CRITERIA EXPLAINED (SECOND DEPT))/CONTRACT LAW (EMPLOYMENT LAW, COVENANT NOT TO COMPETE WHICH EFFECTIVELY PRECLUDED DEFENDANT SURGEON FROM PRACTICING MEDICINE IN METROPOLITAN NEW YORK WAS INVALIDATED, ARGUMENT FOR PARTIAL ENFORCEMENT REJECTED, CRITERIA EXPLAINED (SECOND DEPT))/COVENANT NOT TO COMPETE (EMPLOYMENT LAW, COVENANT NOT TO COMPETE WHICH EFFECTIVELY PRECLUDED DEFENDANT SURGEON FROM PRACTICING MEDICINE IN METROPOLITAN NEW YORK WAS INVALIDATED, ARGUMENT FOR PARTIAL ENFORCEMENT REJECTED, CRITERIA EXPLAINED (SECOND DEPT))

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