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HEARING OFFICER’S REFUSAL TO CALL A REQUESTED WITNESS REQUIRED ANNULMENT OF THE DETERMINATION.

The Third Department determined the hearing officer’s refusal to call a witness requested by the inmate required annulment:

Petitioner contends, among other things, that he was improperly denied the right to call as a witness an inmate who allegedly overheard a conversation between petitioner and the author of the misbehavior report establishing that the author lied about seeing petitioner place drugs on the food tray. According to petitioner, during this conversation the correction officer admitted that he reported that he saw petitioner put the drugs in the food tray in order to “cover his ass” after being advised to do so by another correction officer. At the hearing, petitioner maintained that the verbal exchange between the two officers revealing that the author was advised to make this misrepresentation was captured on a videotape of the area outside the observation room. When the videotape was played at the hearing, however, the audio was not working. Consequently, the only evidence that could potentially corroborate petitioner’s defense was the testimony of the other inmate.  Matter of McFarlane v Annucci, 2016 NY Slip Op 08432, 3rd Dept 12-15-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S REFUSAL TO CALL A REQUESTED WITNESS REQUIRED ANNULMENT OF THE DETERMINATION)

SUPREME COURT CANNOT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE ZONING BOARD, EVEN IN AFFIRMING THE BOARD’S DETERMINATION, CRITERIA FOR ALLOWING THE CONTINUATION OF A NONCONFORMING USE EXPLAINED.

The Third Department upheld the zoning board’s (ZBA’s) determination that the application for the nonconforming use of the property as a boarding house was properly denied. There was evidence that the initial nonconforming use was a nursing home, not a boarding house. The court noted that Supreme Court, which affirmed on different grounds, should not have substituted its own judgment for that of the board. The court further explained the criteria for allowing nonconforming use of property:

Supreme Court, apparently rejecting the ZBA’s conclusion that the property was a nursing home at the time that the zoning law was enacted in 1963, independently determined that the property was used as a boarding house in 1963, but that its current use as a boarding house was nonetheless a nonconforming use because its “ownership, occupancy and usage . . . [was] far removed from what it was in 1963.” This was improper. A reviewing court cannot, as the court did here, “search the record for a rational basis to support [an administrative agency’s] determination, substitute its judgment for that of the [agency] or affirm the underlying determination upon a ground not invoked . . . in the first instance” … . …

In recognition of the “undue financial hardship that immediate elimination of nonconforming uses would cause to property owners,” nonconforming uses that predate the enactment of a zoning ordinance are constitutionally protected and will grudgingly be permitted to continue notwithstanding the contrary law of the ordinance … . However, “[t]he law . . . generally views nonconforming uses as detrimental to a zoning scheme, and the overriding public policy of zoning in New York State and elsewhere is aimed at their reasonable restriction and eventual elimination” … . A preexisting nonconforming use is “closely restricted” such that it cannot be restored after substantial damage or conversion to a different nonconforming use and may be deemed abandoned following substantial discontinuation … . Matter of Tri-Serendipity, LLC v City of Kingston, 2016 NY Slip Op 08292, 3rd Dept 12-8-16

 

ZONING (SUPREME COURT CANNOT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE ZONING BOARD, EVEN IN AFFIRMING THE BOARD’S DETERMINATION, CRITERIA FOR ALLOWING THE CONTINUATION OF A NONCONFORMING USE EXPLAINED)/NONCONFORMING USE (ZNONING, SUPREME COURT CANNOT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE ZONING BOARD, EVEN IN AFFIRMING THE BOARD’S DETERMINATION, CRITERIA FOR ALLOWING THE CONTINUATION OF A NONCONFORMING USE EXPLAINED)

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DEPOSITION OF TOWN ASSESSOR PROPERLY ALLOWED IN THIS SELECTIVE REASSESSMENT PROCEEDING.

The Third Department, affirming Supreme Court, determined the deposition of the town tax assessor was properly allowed in this proceeding challenging a tax assessment of a golf course as “selective reassessment:”

“A property owner may challenge an assessment pursuant to RPTL article 7 on several grounds, including that the assessment is excessive, unequal or unlawful” … . Furthermore, “[i]t is well settled that a system of selective reassessment that has no rational basis in law violates the equal protection provisions of the constitutions of the United States and the State of New York” … .

“[D]iscovery in a RPTL article 7 proceeding is governed by CPLR 408, pursuant to which trial courts have broad discretion in directing the disclosure of material and necessary information” … . The trial court’s decision to compel discovery is accorded deference on appeal and should not be disturbed absent an abuse of discretion as a matter of law … . Additionally, to obtain discovery, a party must submit an affirmation showing “a good faith effort to resolve the issues raised by the [discovery] motion” or indicating “good cause” why no communications occurred between the parties in this regard (22 NYCRR 202.7 [a] [2]; [c]…). Matter of City of Troy v Assessor of The Town of Brunswick, 2016 NY Slip Op 08280, 3rd Dept 12-8-16

REAL PROPERTY TAX LAW (DEPOSITION OF TOWN ASSESSOR PROPERLY ALLOWED IN THIS SELECTIVE REASSESSMENT PROCEEDING)/CIVIL PROCEDURE (REAL PROPERTY TAX LAW, DEPOSITION OF TOWN ASSESSOR PROPERLY ALLOWED IN THIS SELECTIVE REASSESSMENT PROCEEDING)

DEFENDANTS’ ERRONEOUSLY DESCRIBED EASEMENT PROPERLY RELOCATED BY PLAINTIFF.

The Third Department affirmed Supreme Court’s determination that defendants had an easement over plaintiff’s land and, because the description of the easement erroneously placed it on another’s land, the easement was properly relocated by plaintiff:

“[I]n the absence of a claim for reformation, courts may as a matter of interpretation” transpose, reject or supply words in a contract or conveyance in order to effectuate the intent of the agreement if “some absurdity has been identified or the contract would otherwise be unenforceable either in whole or in part” … . Supreme Court did so here because the use of the metes and bounds description in the 1988 conveyance would have led to the absurd result of a right-of-way being granted over property that the grantor did not own, and preserved the stated intent of creating a right-of-way “for the purpose of ingress and egress” by jettisoning the defective description … . …

Defendants accordingly have a right-of-way over plaintiff’s property but, inasmuch as it lacks a specific metes and bounds description or other expression to the contrary, plaintiff is free to unilaterally relocate it “so long as the change does not frustrate the parties’ intent or object in creating the right of way, does not increase the burden on the easement holder, and does not significantly lessen the utility of the right of way”… . Anzalone v Costantino, 2016 NY Slip Op 08277, 3rd Dept 12-8-16

 

REAL PROPERTY (DEFENDANTS’ ERRONEOUSLY DESCRIBED EASEMENT PROPERLY RELOCATED BY PLAINTIFF)/EASEMENTS (DEFENDANTS’ ERRONEOUSLY DESCRIBED EASEMENT PROPERLY RELOCATED BY PLAINTIFF)

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TRANSFERS MADE WITHIN FIVE YEARS JUSTIFIED FIVE MONTH PERIOD OF INELIGIBILITY FOR MEDICAID BENEFITS.

The Third Department confirmed the determination of the Department of Health that petitioner was ineligible for Medicaid coverage for a period of five months based upon transfers of property made during the five-year look-back period:

“In reviewing a Medicaid eligibility determination rendered after a hearing, this Court must review the record, as a whole, to determine if the agency’s decisions are supported by substantial evidence and are not affected by an error of law” … . For purposes of determining Medicaid eligibility, “any transfer of an asset by the individual or the individual’s spouse for less than fair market value made within or after the look-back period shall render the individual ineligible for nursing facility services” for a period of time based on the amount transferred … . Such a transfer will not result in a penalty period where the applicant has made a satisfactory showing that the individual intended to dispose of the assets at fair market value or the assets were transferred exclusively for a purpose other than to qualify for medical assistance … . The burden is on the applicant to demonstrate his or her eligibility for Medicaid by rebutting the “presumption that the transfer of funds was motivated, in part if not in whole, by . . . anticipation of a future need to qualify for medical assistance” … . …

Substantial evidence is “less than a preponderance of the evidence” and “demands only that a given inference is reasonable and plausible, not necessarily the most probable” … . * * * We cannot say that respondents erred in rejecting [the] proof as inadequate and note that the Department of Social Services duly credited petitioner for expenses in which receipts were provided. Matter of Krajewski v Zucker, 2016 NY Slip Op 08287, 3rd Dept 12-8-16

MEDICAID (TRANSFERS MADE WITHIN FIVE YEARS JUSTIFIED FIVE MONTH PERIOD OF INELIGIBILITY FOR MEDICAID BENEFITS)

RESTRICTIONS ON PARTICIPATION IN HIGH SCHOOL SPORTS BY TRANSFER STUDENTS UPHELD.

The Third Department determined the rules promulgated by respondent NY Public High School Athletic Association concerning restrictions on the eligibility of transfer students to participate in school sports were valid:

… [I]t is settled that “courts should not interfere with the internal affairs, proceedings, rules and orders of a high school athletic association unless there is evidence of acts which are arbitrary, capricious or an abuse of discretion” … . Such “determination rests on whether the athletic association’s actions have a sound basis in reason and a foundation in fact” … .

We find that petitioners have failed to demonstrate that the actions taken by respondent warrant our interference. The purpose of the transfer rule, which was promulgated by respondent pursuant to its constitution and by authority delegated to it through the regulations of the Commissioner of Education … , is to deter athletic school-shopping and the recruitment of high school athletes by schools. By establishing an objective standard for eligibility that prohibits, with certain limited exceptions, immediate eligibility upon a transfer not accompanied by a parental change of residence, the transfer rule reasonably and rationally furthers these legitimate goals. Indeed, “[t]he absence of such a rule might reasonably invite strategically motivated transfers thinly disguised as transfers in the best (nonathletic) interest of the student” … . Matter of Albany Academies v New York State Pub. High Sch. Athletic Assn., 2016 NY Slip Op 08290, 3rd Dept 12-8-16

 

EDUCATION-SCHOOL LAW (RESTRICTIONS ON PARTICIPATION IN HIGH SCHOOL SPORTS BY TRANSFER STUDENTS UPHELD)/TRANSFER STUDENTS (RESTRICTIONS ON PARTICIPATION IN HIGH SCHOOL SPORTS BY TRANSFER STUDENTS UPHELD)

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TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL.

The Third Department, over a two-justice dissent, determined the probation violation petition gave sufficient notice of the charges and a woman (Nichols) who had been convicted of misdemeanor DWI was a “convicted criminal” within the meaning of a condition of probation (prohibiting association with convicted criminals). The court held that it was not necessary to prove petitioner knew of the DWI conviction. The probationer apparently went to the Nichol’s apartment for the purpose of taking a dog for a walk. The dissent argued that simply taking a dog for a walk  was not “contact” or “association” with a convicted criminal:

Special condition No. 17 required defendant to refrain from associating with “convicted criminals” — as opposed to “known criminals.” Accordingly, defendant cannot avoid a violation of the subject condition simply by claiming either that he did not know that a particular individual had been convicted of a crime or that he believed that said individual was guilty of only a traffic violation. …

With respect to the issue of whether defendant “associate[d]” with Nichols within the meaning of special condition No. 17, the testimony at the hearing further demonstrated that, on approximately four occasions … , defendant called either Nichols or her daughter and thereafter went to Nichols’ apartment for the purpose of picking up and walking the dog that defendant and Nichols once shared. Notably, Nichols confirmed that she spoke with defendant, with whom she remained friends, on the telephone to make arrangements regarding the dog and testified that she personally exchanged the dog with defendant “[a]bout four times,” stating, “I would hand him the dog and he would take the dog and go down the street.” People v Kislowski, 2016 NY Slip Op 08261, 3rd Dept 12-8-16

 

CRIMINAL LAW (TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL)/EVIDENCE (CRIMINAL LAW, TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL)/PROBATION (VIOLATION, TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL)

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STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY.

The Third Department affirmed the Court of Claim’s determination that the absence of a guide rail was not the proximate cause of claimant’s injuries, and the state was entitled to qualified immunity because it had reasonably concluded after a study that a guide rail was not necessary. Claimant was injured when the ambulance in which he was riding struck a stone wall near the roadway:

Defendant’s duty to maintain roads in a reasonably safe condition includes the installation of guide rails when necessary … . With respect to highway safety and design, defendant is “accorded a qualified immunity from liability arising out of a highway planning decision” … . “Under this doctrine of qualified immunity, a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan” … . Schroeder v State of New York, 2016 NY Slip Op 08263, 3rd Dept 12-8-16

COURT OF CLAIMS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/IMMUNITY (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/QUALIFIED IMMUNITY (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/HIGHWAYS AND ROADS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/GUIDE RAILS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/GUARD RAILS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)

FAILURE TO INFORM CARRIER OF LAWN CARE WORK WARRANTED RETURN OF BENEFITS PAID, BUT NOT A PERMANENT BAR ON FUTURE BENEFITS.

The Third Department upheld the board’s determination that claimant knowingly failed to inform the carrier he was doing some lawn care work while collecting workers’ compensation benefits. The omission was deemed a knowing false statement or misrepresentation warranting return of the benefits paid. However, the board’s ruling claimant was permanently barred from seeking benefits was not warranted by the facts:

… [A]n omission of material information may constitute a knowing false statement or misrepresentation … . We thus find that substantial evidence supports the Board’s credibility determination that claimant’s failure to fully describe and disclose his lawn mowing activities to the carrier and the carrier’s consultant at the time of the medical examination constituted knowing false statements to obtain workers’ compensation benefits in violation of Workers’ Compensation Law § 114-a (1) … .

We reach a different conclusion as to the Board’s determination permanently disqualifying claimant from receiving any future wage replacement benefits. The applicable standard is that the penalty imposed may not be disproportionate to the underlying misconduct … . In cases where this very significant sanction has been approved, the underlying deception has been deemed “egregious” or severe, or there was a lack of mitigating circumstances … . Here, the Board provided no rationale supporting its determination that this onerous penalty was warranted, and we find inadequate support for such a finding upon review. Matter of Kodra v Mondelez Intl., Inc., 2016 NY Slip Op 08136, 3rd Dept 12-1-16

 

WORKER’S COMPENSATION LAW (FAILURE TO INFORM CARRIER OF LAWN CARE WORK WARRANTED RETURN OF BENEFITS PAID, BUT NOT A PERMANENT BAR ON FUTURE BENEFITS)

ZONING BOARD OF APPEALS’ RULING THAT A NONCONFORMING USE HAD NOT BEEN DISCONTINUED OR ABANDONED SHOULD NOT HAVE BEEN REVERSED.

The Third Department, reversing Supreme Court, determined the zoning board of appeals’ (ZBA’s) ruling that a nonconforming use had not been discontinured or abandoned should be affirmed. The court explained the role of the reviewing court when the controversy is fact-based and does not involve the interpretation of a statute or ordinance:

It is well settled that unless the issue presented is one of pure legal interpretation, “[a] zoning board’s interpretation of a local zoning ordinance is afforded deference and will only be disturbed if irrational or unreasonable” … . Here, the issue of whether the preexisting nonconforming use was discontinued is largely a fact-based inquiry, rather than a purely legal interpretation of the zoning law. As such, the ZBA’s determination is entitled to deference … . Matter of Lumberjack Pass Amusements, LLC v Town of Queensbury Zoning Bd. of Appeals, 2016 NY Slip Op 08142, 3rd Dept 12-1-16

 

ZONING (ZONING BOARD OF APPEALS’ RULING THAT A NONCONFORMING USE HAD NOT BEEN DISCONTINUED OR ABANDONED SHOULD NOT HAVE BEEN REVERSED)/NONCONFORMING USE (ZONING BOARD OF APPEALS’ RULING THAT A NONCONFORMING USE HAD NOT BEEN DISCONTINUED OR ABANDONED SHOULD NOT HAVE BEEN REVERSED)

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