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STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER’S DISCRETIONARY ACTS.

The Third Department, reversing (modifying) Supreme Court, determined a state trooper, defendant Begeal, was entitled to summary judgment in this personal injury case because he was immune from suit for his actions, which were discretionary. Plaintiff physician assistant was injured by a patient (Lacey) brought into the hospital by law enforcement officers, including Begeal. Plaintiff was kicked by the patient and alleged Begeal negligently failed to restrain the patient’s legs:

Although Begeal had access to plastic leg restraints, the undisputed evidence established that, at the time that he left the examination room, Lacey was still handcuffed, was “extremely calm” and had allowed a nurse to remove pieces of glass from his feet without kicking or otherwise resisting the nurse’s efforts. Begeal thus made a “reasoned judgment” not to utilize the leg restraints … . Accordingly, “[t]he decision to employ [only handcuffs] was a discretionary one . . ., and [Begeal] may not be held liable for that determination” … . …

Begeal’s decision to leave the examination room to permit the medical personnel to examine Lacey in private was likewise discretionary. Although Lacey was combative when he first arrived at the hospital, Begeal did not leave the examination room until approximately 20 minutes after that time and only after ensuring that Lacey had calmed down. Based on these circumstances, Begeal “did not feel that [the hospital personnel and Feeney] were in any immediate danger” and concluded that he could safely leave the room and go to the main area in order to, among other things, wash off Lacey’s blood from his clothes. While Begeal’s judgment call proved to be incorrect, “it is not for courts to second-guess the wisdom of discretionary governmental choices, troubling though they may sometimes seem in the glaring clarity of hindsight” … . Feeney v County of Del., 2017 NY Slip Op 03583, 3rd Dept 5-4-17

 

NEGLIGENCE (STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER’S DISCRETIONARY ACTS)/MUNICIPAL LAW (IMMUNITY, STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER’S DISCRETIONARY ACTS)/IMMUNITY (STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER’S DISCRETIONARY ACTS)/GOVERNMENTAL IMMUNITY (STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER’S DISCRETIONARY ACTS)

PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED.

The Third Department, reversing Family Court, determined petitioner, the maternal aunt, did not meet the heavy burden of demonstrating extraordinary circumstances warranting the removal of the child from the parents’ custody and the award of custody to petitioner. Temporary custody was awarded to petitioner on the basis of an abuse allegation that was deemed unfounded. The decision to remove the child from the parents’ custody was made after an investigation revealed the parents’ home was filthy, with feces on the floor and walls and a flea infestation. However, after the home was cleaned up and the parents moved back in the condition of the home remained acceptable. The parents arranged to move in with grandparents and the grandparents agreed to supervise and help the parents:

The ground of persistent neglect warranting disruption of parental custody rights at issue here requires a showing “that the parents engaged in gross misconduct or other behavior evincing an utter indifference and irresponsibility” relative to the parental role …  . This Court has previously held that “allowing . . . children to live in squalor” is among the parental behaviors that, considered together with other undesirable conduct, may constitute gross misconduct rising to the level of extraordinary circumstances … . At the outset, it bears noting that we are sympathetic to Family Court’s determination. The evidence at the fact-finding hearing revealed no mitigating explanation for respondents’ failure to maintain minimum sanitary standards in their home; both were unemployed during the time period before the inspection, and there was no evidence that either was hampered by any illness or disability. Joblessness and poverty undeniably lead to significant difficulties in maintaining adequate housing and hardships in raising children, but are not any cause for subjecting children to feces-strewn homes; such conditions result solely from lack of care. Nevertheless, … based upon all of the record evidence, we cannot find that petitioner satisfied her “heavy burden” to establish the existence of extraordinary circumstances … , and are thus constrained to reverse.

The record reveals that respondents immediately corrected the unsanitary conditions when directed to do so, such that child protective authorities permitted the younger children to return to live there. A caseworker testified that the house “exceeded minimal standards” after this intervention, and that respondents cooperated with child protective authorities throughout the investigation and followed through on everything that was asked of them. The father acknowledged that the previous conditions in the home were unacceptable, and both he and the mother testified that they would not let this happen again. The record does not reveal any further problems or complaints about respondents’ care of their children after the initial home visit. No further child protective actions were taken, the child was permitted to return to respondents’ home for regular visits during the pendency of the fact-finding hearing, and the younger children remained in respondents’ custody without interruption. Matter of Jennifer BB. v Megan CC., 2017 NY Slip Op 03576, 3rd Dept 5-4-17

FAMILY LAW (PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)/CUSTODY (NON-PARENT, PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)/NEGLECT (FILTHY LIVING CONDITIONS, PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)/NON-PARENTS (CUSTODY, PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)

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ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW.

The Third Department determined the action pursuant to the Civil Service Law was not precluded because an action based on the same facts was still pending under the grievance procedure of the collective bargaining agreement (CBA). The Civil Service Law action was not dependent in any way on the CBA action. The petition challenged the hiring of Walsh as a part-time university police officer (UPO) by the State University of New York (SUNY):

… [T]he petition before us does not challenge any grievance determination by SUNY, nor does it cite a breach of any provision of the CBA as a basis for relief … . Instead, it challenges the appointment of Walsh on the ground that it violated Civil Service Law § 64. Although the remedies sought include an award of back pay for lost overtime assignments, available only under the CBA, counsel for petitioner confirmed, at oral argument of this appeal, that petitioner was no longer seeking such an award. Because petitioner does not allege that SUNY violated the CBA, but instead alleges a statutory violation, it was not required to use the CBA’s grievance procedure … . Article 7 of the CBA limits the grievance process to three types of disputes: first, concerning the application and/or interpretation of the CBA [7.1 (a)]; second, concerning a term or condition of employment [7.1 (b)]; and third, concerning a claim of improper or unjust discipline [7.1 (c)]. None of these provisions can be reasonably viewed as applicable to an (alleged) unlawful appointment by SUNY. Since these provisions are inapplicable, use of the grievance process to challenge the appointment on statutory grounds would have been futile … . Given that the appointment of Walsh is final, is alleged to have resulted in an actual, concrete injury to petitioner and because the question presented is “purely legal,” we find that the matter is ripe for judicial review … . Matter of Police Benevolent Assn. of N.Y. State, Inc. v State of New York, 2017 NY Slip Op 03588, 3rd Dept 5-4-17

EMPLOYMENT LAW (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/ADMINISTRATIVE LAW (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/CIVIL SERVICE LAW (EMPLOYMENT LAW, ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/COLLECTIVE BARGAINING AGREEMENT (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)

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PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED.

The Third Department, reversing Supreme Court, determined plaintiff’s motion to conform the pleadings to the proof should have been granted in this medical malpractice action. Defendants submitted proof on the relevant issues (the treatment of plaintiff by defendant Slavin on January 26, 2009) and did not demonstrate amending the pleadings would result in any prejudice to them:

As the parties opposing such amendment, defendants had the burden of establishing that they had been prejudiced, that is that they “ha[d] been hindered in the preparation of [their] case or ha[d] been prevented from taking some measure in support of [their] position” … . That burden cannot be met when the difference between the original pleading and the evidence results from “‘proof admitted at the instance or with the acquiescence of [the opposing] party'”… . * * *

… [A]s defendants acquiesced to the introduction of the evidence of Slavin’s negligence on January 26, 2009, they could not meet their burden when they later opposed plaintiff’s cross motion to conform the pleadings to the proof adduced at trial … . Even if this were not the case, defendants failed to meet their burden of establishing prejudice. Defendants’ contentions that they had been unprepared for cross-examination of plaintiff’s expert was conclusory, as defendants failed to offer a single example as to the manner in which the introduction of evidence that Slavin was negligent on January 26, 2009 hindered their cross-examination. Morever, defendants’ claims that they were prejudiced by the introduction of the January 26, 2009 negligence were unsupported by specific examples or proof in the record. More generally, the record establishes that plaintiffs had plainly notified defendants by their bills of particulars that plaintiff had been treated by Slavin on January 26, 2009 and that Slavin’s negligence included his failure to recognize, from imaging studies, the need to perform a closed reduction on plaintiff’s injured leg. Noble v Slavin, 2017 NY Slip Op 03578, 3rd Dept 5-4-17

CIVIL PROCEDURE (AMEND PLEADINGS TO CONFORM TO THE PROOF, PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/PLEADINGS, MOTION TO CONFORM TO PROOF (PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/PLEADINGS, AMENDMENT OF (PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (CIVIL PROCEDURE, PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)

NON-PROFIT PROVIDING WORK TRAINING TO PSYCHIATRIC PATIENTS IS EXEMPT FROM UNEMPLOYMENT INSURANCE COVERAGE.

The Third Department determined claimant was not eligible for unemployment insurance benefits and the statute which exempts rehabilitative non-profits is constitutional. Claimant was employed by a non-profit which provided work-training for psychiatric patients. Claimant worked 20 hours per week and sought unemployment benefits when the non-profit temporarily closed:

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To file a valid original claim, a claimant must meet certain qualifications and satisfy employment requirements (see Labor Law § 527 [1]). Labor Law § 563 (2) (d) excludes certain employment from unemployment insurance coverage, including “services rendered for a non-profit organization by a person who (1) receives rehabilitative services in a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury or (2) is given remunerative work in a facility conducted for the purpose of providing such work for persons who cannot be readily absorbed in the competitive labor market because of their impaired physical or mental capacity.” The Board credited the hearing testimony establishing that, as part of his vocational rehabilitation, claimant worked for Landmark, a non-profit organization that operates workshops and rehabilitative programs open exclusively to RPC [Rochester Psychiatric Center] patients. Matter of Janakievski (Commissioner of Labor), 2017 NY Slip Op 03253, 3rd Dept 4-27-17

UNEMPLOYMENT INSURANCE (NON-PROFIT PROVIDING WORK TRAINING TO PSYCHIATRIC PATIENTS IS EXEMPT FROM UNEMPLOYMENT INSURANCE COVERAGE)/NON-PROFITS (UNEMPLOYMENT INSURANCE, NON-PROFIT PROVIDING WORK TRAINING TO PSYCHIATRIC PATIENTS IS EXEMPT FROM UNEMPLOYMENT INSURANCE COVERAGE)

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EXCLUSION OF INJURY FROM ASSAULT CONTROLLED, NEGLIGENCE CAUSES OF ACTION STEMMING FROM ASSAULT NOT COVERED.

The Third Department determined the policy exclusion for injury stemming from an assault controlled and defendant insurer was not required to defend the action by defendant bar patron, Christian, who alleged-plaintiff bar’s employee injured him when ejecting him from the bar. The language of the exclusion took precedence over the general liability provisions. Any negligence causes of action were not covered because the negligence claims stemmed from the assault:

The exclusion, which states that it “is subject to the terms contained in the General Liability Coverage,” provides that “[n]otwithstanding anything contained herein to the contrary, . . . this policy excludes any and all claims arising out of any assault, battery, fight, altercation, misconduct or other similar incident,” including claims of negligent hiring and supervision. * * *

Here … Supreme Court properly found that the terms of the exclusion controlled over those in the general liability coverage, as “language such as a ‘notwithstanding’ provision ‘controls over any contrary language’ in a contract” … .

Christian asserts that the assault and battery exclusion does not apply because the underlying action alleges acts of negligence. We disagree. “[I]f no cause of action would exist but for the assault, the claim is based on assault and the exclusion applies” and the fact that an insured might be liable under a theory of negligence does not change this … . Graytwig Inc. v Dryden Mut. Ins. Co., 2017 NY Slip Op 03229, 3rd Dept 4-27-17

INSURANCE LAW (EXCLUSION OF INJURY FROM ASSAULT CONTROLLED, NEGLIGENCE CAUSES OF ACTION STEMMING FROM ASSAULT NOT COVERED)/CONTRACT LAW (INSURANCE LAW, EXCLUSION OF INJURY FROM ASSAULT CONTROLLED, NEGLIGENCE CAUSES OF ACTION STEMMING FROM ASSAULT NOT COVERED)/ASSAULT (INSURANCE LAW, EXCLUSION OF INJURY FROM ASSAULT CONTROLLED, NEGLIGENCE CAUSES OF ACTION STEMMING FROM ASSAULT NOT COVERED)/EXCLUSIONS  (INSURANCE LAW, EXCLUSION OF INJURY FROM ASSAULT CONTROLLED, NEGLIGENCE CAUSES OF ACTION STEMMING FROM ASSAULT NOT COVERED)/THIRD PARTY ASSAULT

INMATE’S REQUESTS FOR UNIDENTIFIED WITNESSES IMPROPERLY DENIED.

The Third Department determined some of petitioner’s requests for testimony from unidentified witnesses to the underlying incident were improperly denied. The hearing officer should have checked logs before denying the request for an unidentified corrections officer alleged to have been present. And petitioner’s request for testimony from unidentified inmates who allegedly were delayed by the incident should not have been denied simply because of the number of potential inmate witnesses (50):

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Petitioner requested the testimony of a correction officer that he believed was present with the sergeant during the incident. Petitioner did not know the name of the witness, but gave the Hearing Officer a description and requested that the Hearing Officer review the logbooks to identify the witness. The Hearing Officer denied the witness, based upon the testimony of the sergeant that he was alone during the incident with petitioner. Inasmuch as the record does not reflect that the Hearing Officer reviewed the logbooks or made any other effort to identify the witness, we cannot say that a diligent effort was made to locate the witness … . …

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Petitioner also requested the testimony of 50 unidentified inmates who, according to the misbehavior report and hearing testimony, were delayed in returning to their cells from breakfast because of the incident involving petitioner. A correction officer testified that, because of the incident, she was unable to release those inmates to return to petitioner’s cellblock for approximately five to seven minutes. The Hearing Officer denied petitioner’s request, stating that he was not going to call 50 witnesses. We disagree with respondents’ contention that the requested testimony was irrelevant because the inmates did not witness the incident involving petitioner, inasmuch as their testimony was relevant to the charge of interfering with staff. In our view, petitioner was improperly denied the right to call a reasonable number of these witnesses, who were all housed on the same cellblock and should have been easily identifiable. Although calling all 50 witnesses would be impractical and unnecessary, the requested testimony was not irrelevant or redundant, and the Hearing Officer’s blanket denial of these witnesses was therefore improper … . Matter of Harriott v Koenigsmann, 2017 NY Slip Op 03240, 3rd Dept 4-27-1

 

DISCIPLINARY HEARINGS (INMATES) (INMATE’S REQUESTS FOR UNIDENTIFIED WITNESSES IMPROPERLY DENIED)

SENTENCE NOT CONTEMPLATED BY THE PLEA AGREEMENT MUST BE VACATED AS THE RESULT OF AN INVOLUNTARY PLEA.

​The Third Department determined the sentence imposed was not in accordance with the plea agreement. Therefore defendant’s plea was not voluntarily made and must be vacated. Defendant was initially sentenced as a persistent felon and that sentence was overturned on appeal. The plea agreement contemplated sentencing either as a persistent felon, or, if the appeal succeeded, as a second felony offender. After the successful appeal, however, defendant was sentenced as a first-time felon:

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The People concede, and we agree, that the parties’ plea agreement, as set forth in the record before us, did not contemplate the possibility that defendant would be sentenced as a first-time felony offender in the event of a successful appeal to this Court … . Indeed, the record before us establishes that the parties’ contingent plea agreement and ensuing plea colloquy were limited to whether defendant could be sentenced as a second felony offender — versus sentencing as a mandatory persistent felony offender — upon a successful appeal. Accordingly, because the record reflects a mutual mistake at the time of defendant’s plea regarding his predicate status and potential sentencing exposure in the event that he was successful on appeal, his decision to plead guilty was not a knowing, voluntary and intelligent one and, therefore, the plea must be vacated … . People v Brewington, 2017 NY Slip Op 03224, 3rd Dept 4-27-17

CRIMINAL LAW (SENTENCE NOT CONTEMPLATED BY THE PLEA AGREEMENT MUST BE VACATED AS THE RESULT OF AN INVOLUNTARY PLEA)/SENTENCING (SENTENCE NOT CONTEMPLATED BY THE PLEA AGREEMENT MUST BE VACATED AS THE RESULT OF AN INVOLUNTARY PLEA)/GUILTY PLEAS (SENTENCE NOT CONTEMPLATED BY THE PLEA AGREEMENT MUST BE VACATED AS THE RESULT OF AN INVOLUNTARY PLEA)

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UNDER THE CRITERIA OF THE FAIR PLAY ACT, WINDOW, GUTTER, SIDING INSTALLERS WERE EMPLOYEES, NOT INDEPENDENT CONTRACTORS.

The Third Department determined the installers of windows, siding, gutters, etc. sold by Barrier were employees of Barrier, not independent contractors. The decision has a clear explanation of the “substantial evidence” standard for court review of an administrative agency’s ruling and a substantive discussion of the employee/independent contractor criteria of the Fair Play Act (Labor Law 861-c):

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The Fair Play Act, codified in Labor Law article 25-B, was enacted as a measure to curb widespread abuses in the construction industry stemming from the misclassification of workers as independent contractors resulting in unfavorable consequences for both the workers and the public (see Labor Law § 861-a). In accordance therewith, the Fair Play Act contains a statutory presumption that a person performing services for a contractor engaged in construction shall be classified as an employee unless it is demonstrated that such person is an independent contractor or a separate business entity … . In order to be considered an independent contractor, a person must satisfy three criteria set forth in the statute: (a) the person must be free from the contractor’s direction and control in performing the service; (b) the service performed must be outside the usual course of the contractor’s business; and (c) the person must be customarily engaged in an independently established occupation similar to the service performed … . This new statutory test is sometimes referred to as the ABC test … . The separate business entity test, codified in Labor Law § 861-c (2), sets forth 12 criteria to be used to determine whether a person is a separate business entity and, thus, not subject to the presumption that he or she is an employee of the contractor. Notably, in each test, all of the criteria must be met to overcome the statutory presumption of an employment relationship. Matter of Barrier Window Sys., Inc. (Commissioner of Labor), 2017 NY Slip Op 03093, 3rd Dept 4-20-17

UNEMPLOYMENT INSURANCE (UNDER THE CRITERIA OF THE FAIR PLAY ACT, WINDOW, GUTTER, SIDING INSTALLERS WERE EMPLOYEES, NOT INDEPENDENT CONTRACTORS)/WINDOW INSTALLERS  (UNDER THE CRITERIA OF THE FAIR PLAY ACT, WINDOW, GUTTER, SIDING INSTALLERS WERE EMPLOYEES, NOT INDEPENDENT CONTRACTORS)/FAIR PLAY ACT  (UNDER THE CRITERIA OF THE FAIR PLAY ACT, WINDOW, GUTTER, SIDING INSTALLERS WERE EMPLOYEES, NOT INDEPENDENT CONTRACTORS)/INDEPENDENT CONTRACTORS (UNDER THE CRITERIA OF THE FAIR PLAY ACT, WINDOW, GUTTER, SIDING INSTALLERS WERE EMPLOYEES, NOT INDEPENDENT CONTRACTORS)

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RECORD DID NOT SUPPORT DENIAL OF SPECIAL USE PERMIT, ZONING BOARD IMPROPERLY BOWED TO THE OBJECTIONS BY TWO NEIGHBORS.

The Third Department, reversing Supreme Court, determined the record did not support the zoning board of appeals’ (ZBA’s) denial of a special use permit for keeping dogs on petitioner’s property. The Third Department found the only competent evidence of the noise level was petitioner’s scientific measurement and the neighbors’ complaints about the noise were not a proper basis for denial of the permit:

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The record shows that the ZBA advised petitioner that the noise from her property should not exceed 80 decibels … . At the public hearing, petitioner explained that she was certified as a nurse to take sound readings and had done so at the property line over a period of approximately one month at different intervals of the day. She claimed that the noise from her property had not exceeded 70 decibels … . She also offered at least two proposals to address the concerns of the neighbors regarding any noise issue. She proposed a six-foot-high stockade fence and moving the outside pens so that they would be blocked by a building. The nearest neighbor, located across the road from petitioner’s property, played a recording at the public hearing that he claimed was a recording that he made of noise emanating from petitioner’s property. He also claimed that the noise was cited by a prospective purchaser of his property … . Another neighbor, who has a horse training and boarding business approximately 500 feet from petitioner’s property, claimed that some of her customers expressed concerns about the noise from petitioner’s property, and she allegedly provided copies of emails from those customers. …

In its determination, the ZBA did not identify any specific shortcomings in petitioner’s mitigation measures, but summarily determined that petitioner had not offered measures that would sufficiently mitigate the dog noise impact from her business. We view this determination of the ZBA to be without sufficient support in the record. Petitioner offered scientific measurement of the noise level and there was no other objective measure of the noise offered at the public hearing. The neighbor’s recording of the noise is subject to an unreliable interpretation of its level based upon the ability to control the volume of the recording, and reliance on the recording would be unreasonable. Absent reliable proof that rebuts petitioner’s offer of her measurement of the sound level and her offer of measures to address any noise concerns, there is no basis in the record to determine that petitioner did not meet the conditions imposed by the Land Use Law, and it appears that the ZBA bowed to generalized objections from two neighbors … . Matter of Blanchfield v Hoosick, 2017 NY Slip Op 03097, 3rd Dept 4-20-17

 

ZONING (RECORD DID NOT SUPPORT DENIAL OF SPECIAL USE PERMIT, ZONING BOARD IMPROPERLY BOWED TO THE OBJECTIONS BY TWO NEIGHBORS)/SPECIAL USE PERMITS (RECORD DID NOT SUPPORT DENIAL OF SPECIAL USE PERMIT, ZONING BOARD IMPROPERLY BOWED TO THE OBJECTIONS BY TWO NEIGHBORS)/NEIGHBOR OBJECTIONS (ZONING, RECORD DID NOT SUPPORT DENIAL OF SPECIAL USE PERMIT, ZONING BOARD IMPROPERLY BOWED TO THE OBJECTIONS BY TWO NEIGHBORS)

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