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PETITIONER, A NONPROFIT ORGANIZATION FOR THE PRESERVATION AND PROTECTION OF THE HEALTH OF THE FINGER LAKES, HAD STANDING TO CONTEST A PERMIT ALLOWING THE DUMPING OF TREATED WASTE IN CAYUGA LAKE; ONE OF PETITIONER’S MEMBER’S DRINKING WATER COMES FROM CAYUGA LAKE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner, a nonprofit organization for the preservation and protection of the health of the Finger Lakes, had standing to contest a permit allowing treated waste to be dumped into Cayuga Lake. Standing is conferred if one of petitioner’s members suffers harm greater than that suffered by the general public. Here a member’s drinking water comes from Cayuga Lake:

… [T]he sole issue on this appeal is whether petitioner sufficiently pleaded that at least one of its members would suffer an injury-in-fact that is different from harm suffered by the public at large, such as to confer petitioner with standing. Petitioner alleged in its petition/complaint that its members would be harmed by the leachate produced by County Line [waste treatment facility], which would be treated by the Ithaca treatment facility and then dumped into Cayuga Lake. According to petitioner, the type of solid waste that County Line would handle would create leachate that contains per- or polyfluoroalkyl substances (hereinafter PFAS), a by-product linked to adverse health outcomes and which the Ithaca treatment facility is not capable of completely filtering out of the treated leachate. Because the Ithaca treatment facility dumps treated leachate into Cayuga Lake and is incapable of completely filtering out PFAS, petitioner alleged that if County Line was permitted to operate its facility in accordance with its application, as DEC’s [*3]permit requires, PFAS would enter the lake and cause petitioner’s members harm. In setting forth this harm, petitioner specifically identified a member whose potable drinking water is only filtered through the ground in “beach wells” on Cayuga Lake. As these wells do not filter out PFAS, allowing PFAS to be dumped into the lake would render this member’s water contaminated and unsafe to drink. Matter of Seneca Lake Guardian v New York State Dept. of Envtl. Conservation, 2024 NY Slip Op 03856, Third Dept 7-18-24

Practice Point: Here a nonprofit whose purpose is to preserve and protect the health of the Finger Lakes had standing to contest a permit allowing the dumping of treated waste in Cayuga Lake. One of the member’s drinking water came from Cayuga Lake. Therefore the member suffered an injury greater than that suffered by the general public.

 

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THE REGULATION WHICH PROVIDES THAT THE TRANSCRIPTS OF PUBLIC EMPLOYMENT RELATIONS BOARD (PERB) HEARINGS ARE THE PROPERTY OF THE STENOGRAPHER CONFLICTS WITH THE ADMINISTRATIVE PROCEDURE ACT AND THE PUBLIC-ACCESS PRINCIPLES UNDERLYING FOIL (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined the Public Employment Relations Board (PERB) regulation (4 NYCRR 208.3 (c)) which provides that PERB hearing transcripts are the property of the stenographer conflicts with the Administrative Procedure Act and the public-access principles underlying FOIL:

“It is established as a general proposition that a regulation cannot be inconsistent with a statutory scheme” … . Here, 4 NYCRR 208.3 (c) is inconsistent with State Administrative Procedure Act § 302 (2), which imposes a duty on the agency to furnish a copy of the transcript to a party upon request.…  Moreover, it is inconsistent with the statutory scheme of FOIL, which “imposes a broad standard of open disclosure in order to achieve maximum public access to government documents” … . Courts must construe FOIL liberally, to “require[ ] government agencies to make available for public inspection and copying all records” … . Accordingly, Supreme Court improperly granted PERB’s motion to dismiss and we remit the matter to Supreme Court for PERB to file an answer pursuant to CPLR 7804 (f). Matter of DeWolf v Wirenius, 2024 NY Slip Op 03790,, Second Dept 7-11-24

Practice Point: A regulation cannot be inconsistent with a statutory scheme.

 

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IT WAS REVERSIBLE ERROR TO EMPANEL AN ANONYMOUS JURY; ALTHOUGH THE ERROR WAS NOT PRESERVED, NEW TRIAL GRANTED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s assault-related convictions and ordering a new trial, determined it was error to empanel an anonymous jury:

… [C]onsistent with our recent holding in People v Heidrich (226 AD3d 1096 [3d Dept 2024]), we find merit to defendant’s contention that County Court’s empaneling of an anonymous jury in his case was in error. We again note that the practice of empaneling an anonymous jury contains no statutory justification, as CPL 270.15 (1-a) merely permits the withholding of residential or business addresses of prospective jurors upon a showing of good cause … . While the Court of Appeals has not explicitly sanctioned the practice, it has suggested that, at the very least, “doing so is error where no ‘factual predicate for the extraordinary procedure’ has been shown” … . To that end, the People concede, and we agree, that the record contains no factual support for utilizing an anonymous jury in this case. Instead, the People focus their arguments on defendant’s failure to preserve the issue by consenting to the practice, alongside the contention that the error was, in any event, harmless. On the latter point, we need only note that we recently rejected the applicability of a harmless error analysis to this manner of error … . As to preservation, although defendant concedes his failure to object during pretrial proceedings, he asks that we take corrective action in the interest of justice (see CPL 470.15 [6] [a] …) Considering the totality of circumstances, including the potential effect on the fairness of trial that flows from the decision to utilize an anonymous jury without any justification … , we find such action is appropriate. We therefore exercise our interest of justice jurisdiction and grant defendant a new trial. People v Tenace, 2024 NY Slip Op 03784, Third Dept 7-11-24

Practice Point: Absent factual support for the procedure in the record, it is reversible error to empanel an anonymous jury.​

 

PETITIONER, A POLICE PARAMEDIC, INJURED HIS SHOULDER WHEN THE RETRACTABLE PORTION OF A STRETCHER JAMMED; THE UNEXPECTED EQUIPMENT MALFUNCTION WAS AN “ACCIDENT” ENTITLING PETITIONER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (THIRD DEPT).

The Third Department, over a partial concurrence and dissent, determined petitioner, a police paramedic, was entitled to accidental disability retirement benefits based on an injury caused by the malfunction of the retractable portion of a stretcher:

For purposes of accidental disability retirement benefits, “an accident is defined as ‘a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’ ” * * *. “An injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury” … . * * *

… [P]etitioner testified that when he squeezed the handle to extend the retractable head portion of the stretcher and pulled, which petitioner noted usually required “a little bit of force to push it in and out,” he was able to extend it a little bit before it unexpectedly jammed — something that petitioner testified had never happened before. Petitioner testified that thereafter it took four firefighters banging on the handle with tools to finally extend the head section to the proper position. Although extending the retractable head portion of the stretcher was no doubt part of petitioner’s job duties, the precipitating external event, i.e., the jamming of the retractable head section of the stretcher, was sudden, unexpected and not a risk in his ordinary employment duties. As petitioner’s testimony reflects, this appears to have been a malfunction in the equipment … . Matter of Hamblin v DiNapoli, 2024 NY Slip Op 03787, Third Dept 7-11-24

Practice Point: Injury caused by an equipment malfunction can constitute a compensable “accident” under the Retirement and Social Security Law.

 

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THE PROSECUTOR WHO ARGUED DEFENDANT’S APPEAL WAS A CLERK FOR THE TRIAL JUDGE; PRIOR DECISION AFFIRMING THE CONVICTION VACATED AND CASE REMITTED FOR THE APPOINTMENT OF A SPECIAL PROSECUTOR (THIRD DEPT) ​

The Third Department, vacating its prior affirmance of defendant’s conviction, determined a special prosecutor should be appointed for the appeal because the appeal was handled by a prosecutor who had been the trial judge’s law clerk:

… [T]he Chief Assistant District Attorney (hereinafter ADA) who argued the appeal on behalf of the People was the confidential law clerk to the trial judge who presided over this matter and served in this capacity at the time of the underlying trial. … [D]efendant moved to vacate our prior determination and sought the appointment of a special prosecutor, arguing that the ADA had a conflict of interest under Rule 1.12 of the Rules of Professional Conduct (22 NYCRR 1200.0) disqualifying her from representing the People on appeal … . The ADA maintained that she did not have a conflict of interest because she was not “personally and substantially” involved in this matter as the trial judge’s law clerk, revealing that her involvement consisted of drafting County Court’s decision and order on defendant’s omnibus motion as well as the decision and order on the prosecutor’s motion for consolidation of the separate indictments filed against defendant and the codefendant … . We have determined that the ADA’s involvement in this matter as the trial judge’s law clerk was personal and substantial … . Moreover, defendant did not provide written informed consent waiving the conflict and the required screening procedures were clearly not undertaken “to prevent the flow of information about the matter between the personally disqualified lawyer and the others in the [District Attorney’s office]” … . … [T]he decision on appeal is being withheld and the matter remitted to County Court for the expeditious appointment of a special prosecutor … . People v Butts, 2024 NY Slip Op 03567, Third Dept 7-3-24

Practice Point: If the prosecutor handling the appeal was a clerk for the trial judge at the time of defendant’s trial, there is a conflict requiring the appointment of a special prosecutor for the appeal. Here the decision affirming the conviction was vacated and the matter was remitted for the appointment of a special prosecutor.

 

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HERE FAMILY COURT ABUSED ITS DISCRETION BY DENYING FATHER’S “CHANGE IN CIRCUMSTANCES” PETITION WITHOUT A HEARING AND REQUIRING FATHER TO PAY MOTHER’S COUNSEL’S FEES EXCEEDING $12,000 BASED UPON A FINDING THAT FATHER HAD CONSUMED ALCOHOL IN VIOLATION OF A COURT DIRECTIVE; FAMILY COURT SHOULD HAVE FOCUSED ON THE BEST INTERESTS OF THE CHILD, NOT “THE NEED TO REGAIN MOTHER’S TRUST” (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have focused on evidence father may have consumed alcohol in violation of the court’s directive and should have focused on the best interests of the child. Based solely on finding father had consumed alcohol and in the absence of a violation petition, father’s petition for a modification of custody based upon a change in circumstances was denied without a hearing and father was required to pay mother’s counsel’s fees exceeding $12,000. The counsel’s-fee ruling was reversed and the matter was remitted for a “change in circumstances” hearing:

As we must remit the matter to Family Court, we caution the court away from directing that the father completely abstain from the consumption of alcohol or dictating the specific type of treatment method the father must utilize beyond what is necessary to protect the child during his parenting time … . However, that is not to say that if the father’s treatment plan requires abstinence from alcohol that he is not required to comply with such plan. Similarly, we must stress that “the first and paramount concern of the court” must be the best interests of the child … , and that the court should not rely upon the father’s apparent need to “regain the trust of the mother” as it had so heavily throughout the orders on appeal.

We also agree with the father’s contention that Family Court abused its discretion in awarding $12,385.55 in counsel fees to the mother based upon the foregoing conclusion. “When exercising its discretionary powers [to award counsel fees], a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions as well as the complexity of the case and the extent of legal services rendered” … . Here, despite no violation petition being filed against the father, the court found that “the father’s willful violation” of the prior custody order and his “deceptions concerning his alcohol consumption” warranted the imposition of counsel fees. Essentially this resulted in sanctioning the father for filing the modification petition based upon his subsequent consumption of alcohol … . Considering our determination as to the court’s mistaken determination that the father was unable to demonstrate a change in circumstances, we … reverse the court’s award of counsel fees to the mother as an abuse of discretion. Matter of Jacob L. v Heather L., 2024 NY Slip Op 03520, Third Dept 6-27-24

Practice Point: If a Family Court judge focuses on something other than the best interests of the child, here father’s apparent consumption of alcohol in violation of a court directive and mother’s need to trust father, an appellate court may reverse the judge’s rulings as an abuse of discretion, as it did here.

 

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THE EDUCATION LAW PROVISIONS AND RELATED REGULATIONS (1) REQUIRING NONPUBLIC SCHOOLS TO PROVIDE EDUCATION EQUIVALENT TO THAT PROVIDED BY PUBLIC SCHOOLS, AND (2) ALLOWING PUBLIC FUNDING TO BE CURTAILED AND REQUIRING STUDENTS TO ATTEND A DIFFERENT SCHOOL IF THE EQUIVALENCY TEST IS NOT MET ARE VALID AND ENFORCEABLE; THERE WAS A DISSENT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Garry, over a dissent, determined the regulations promulgated by the Commissioner of Education concerning the evaluation of nonpublic schools and the cutting-off of services provided to those schools if they don’t meet the “equivalent-to-public-schools” test are valid and enforceable. The petitioners here are five yeshivas and related organizations:

Petitioners contend that the subject regulation provisions impose a penalty upon nonpublic schools that fail to meet the statute’s educational standard, an argument accepted by the dissent — but “penalty” is not an accurate characterization. First, prior to any negative substantial equivalency determination, nonpublic schools under review are engaged in a lengthy collaborative process, specifically designed to assist them in meeting the basic educational standards set forth within the Education Law (see 8 NYCRR 130.6 [a] [1] [iii]; 130.8 [d] [2]). To be sure, the Commissioner is statutorily authorized to impose civil and criminal penalties against a parent or guardian who fails to fulfill their duty under the compulsory education requirement (see Education Law §§ 3233, 3234), and to withhold certain public moneys from any city or district that “wil[l]fully omits and refuses to enforce” relevant statutory provisions (Education Law § 3234 [1]). The Education Law does not provide for any direct penalty upon nonpublic schools.

… By definition, a nonpublic school that fails to demonstrate substantial equivalency necessarily fails to fulfill the requirements of the compulsory education mandate … . Parents are obligated to comply with this mandate and, as such, the Commissioner’s declaration that a particular institution fails to meet the statutory standards required to meet that duty is no more, or less, than a necessary advisory to parents.

… [T]he loss of status as a substantially equivalent nonpublic school is not equivalent to closure; the institutions … continue to operate and provide some form of instruction. … [T]he Education Law, and the corresponding regulations, do not limit the parents’ opportunity to enroll their children in any extracurricular instruction or activities that they deem appropriate and helpful, and nothing in the regulations prohibits the children from being enrolled in such institutions — the sole limitation is that the statutory mandate must be met … . Matter of Parents for Educ. & Religious Liberty in Schs. v Young, 2024 NY Slip Op 03523, Third Dept 6-27-24

Practice Point: If a nonpublic school does not provide a level of education equivalent to that provided by the public schools, public funding of those schools can be curtailed and students can be required to attend a different school.

 

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THE “ESSENTIAL ELEMENTS” TEST SHOULD BE USED TO DETERMINE WHETHER AN OUT-OF-STATE NON-SEXUAL CONVICTION CAN BE USED TO ASSESS RISK-LEVEL POINTS UNDER SORA (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, determined the “essential elements” test must be used to determine whether a defendant should be assessed risk-level points for non-sexual offenses committed out-of-state. Defendant relocated to New York and was subject to a SORA risk-level assessment based upon a Washington child molestation conviction. Defendant had been convicted of driving while intoxicated in Texas for driving in circles in a grassy area in a park. New York’s DWI statutes do not criminalize such off-road driving. Therefore the Texas conviction should not have been used to assess risk-level points under SORA: In addition the commission of the Washington child molestation offense predated a Washington DWI conviction. Therefore the Washington DWI should not have been used to calculate the risk-level because it was not part of defendant’s “prior criminal history:”

Pursuant to the essential elements test, a court must “compare the elements of the foreign offense with the analogous New York offense to identify points of overlap” and, “where the offenses overlap but the foreign offense also criminalizes conduct not covered under the New York offense, the [court] must review the conduct underlying the foreign conviction to determine if that conduct is, in fact, within the scope of the New York offense” … . … This Court and the other Departments previously have deemed it appropriate to utilize the essential elements test to determine whether a foreign conviction falls within the scope of a New York offense to assess points under any category of risk factor 9 … .. Such application ensures that courts properly assess “prior crimes” and accurately determine a sex offender’s risk level in accordance with acts that the Legislature has deemed apt to criminalize (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 6 [2006]). Consequently, to the extent that we have not expressly held that the essential elements test should be utilized to determine whether a foreign conviction supports the assessment of any points under risk factor 9, we hold so now. People v Pardee, 2024 NY Slip Op 03360, Third Dept 6-20-24

Practice Point: Here the Third Department expressly adopted the “essential elements” test for determining whether an out-of-state DWI can be used to assess risk-level points under SORA. The elements of the Texas DWI statute are different from the elements of New York’s DWI statutes. Defendant’s driving in circles on a grassy area of a park would not constitute DWI in New York. Therefore the Texas conviction should not have been used to assess points.

 

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THE PUBLIC HEALTH LAW REGULATIONS CONTROLLING HOW NURSING HOMES MUST ALLOCATE THEIR INCOME AND HOW MUCH PROFIT THEY CAN MAKE WERE DEEMED CONSTITUTIONAL TO THE EXTENT THEY WERE RIPE FOR CONSTITUTIONAL REVIEW (THIRD DEPT).

The Third Department, in a comprehensive full-fledged opinion by Justice Mackey too detailed to fairly summarize here, determined the Public Health Law regulations controlling how nursing homes must allocate their income and how much profit they can make are constitutional to the extent they are ripe for constitutional review:

On November 17, 2022, the [Public Health] Commissioner adopted a regulation, 10 NYCRR 415.34, to implement the provisions of Public Health Law § 2828, including the spending mandate and the excess-revenue cap, which applied retroactively to April 1, 2022. The regulation provides:

“By January 1, 2022, residential health care facilities shall comply with the following minimum expenditures:

(1) 70[%] of revenue shall be spent on direct resident care; and

(2) 40[%] of revenue shall be spent on resident-facing staffing.

(i) All amounts spent on resident-facing staffing shall be included as a part of amounts spent on direct resident care;

(ii) 15[%] of costs associated with resident-facing staffing that are contracted out by a facility for services provided by registered professional nurses, licensed practical nurses, or certified nurse aides shall be deducted from the calculation of the amount spent on resident-facing staffing and direct resident care” … .

The regulation further provides for recoupment by the Commissioner of “excessive total operating revenue” where “the facility’s total operating revenue exceeds total operating and non-operating expenses by more than five percent of total operating revenue” … . Grand S. Point, LLC v Bassett, 2024 NY Slip Op 03364, Third Dept 6-20-24

Practice Point: The Public Health Law regulations controlling how nursing homes must allocate their income and how much profit they can make were deemed constitutional or unripe for constitutional review.

 

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THE CLAIM IN THIS CHILD VICTIMS ACT PROCEEDING DID NOT SET FORTH ANY FACTUAL BASIS FOR THE ALLEGATION THE STATE WAS OR SHOULD HAVE BEEN AWARE OF SEXUAL ABUSE BY ANOTHER CHILD IN A FOSTER HOME AND BY AN EMPLOYEE OF A CHILDREN’S FACILITY; THE CLAIM SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing the Court of Claims in this Child Victims Act proceeding, determined the claim did not set forth any factual basis for the allegation defendants were or should have been aware of the abuse by a child in a foster home and by a staff member of a children’s facility. The claim, therefore, should have been dismissed:

Here, as to the abuse alleged at the foster home, the verified claim alleges only bare legal conclusions and lacks any factual specificity as to how defendant was put on notice of the danger posed by the minor perpetrator. As to the facility, the allegation that other staff members knew about the adult perpetrator’s participation in the off-campus overnight trips would not have put defendant on notice about the adult perpetrator’s propensity to sexually abuse children … . Although the allegation that a counselor discovered the sexual abuse may suffice to provide actual notice about the foreseeability of future abuse, the claim fails to allege that any such subsequent abuse took place … . Even granting the verified claim a liberal construction, presuming its allegations true and providing claimant the benefit of every possible inference, said claim failed to set forth any factual basis upon which defendant could have reasonably anticipated the perpetrators’ harmful conduct and, thus, it failed to “provide a sufficiently detailed description of the particulars of the claim to enable defendant to investigate and promptly ascertain the existence and extent of its liability” … . As such, the Court of Claims erred in denying defendant’s motion to dismiss … . Berg v State of New York, 2024 NY Slip Op 03206, Third Dept 6-13-24

Practice Point: Here the allegation that the state was aware or should have been aware of the sexual abuse of the claimant by another child in a foster home and by a staff member of a children’s facility were not supported by any facts which would allow the state to investigate. Therefore the claim should have been dismissed by the Court of Claims.

 

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