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Area in the Vicinity of the Indian Point Nuclear Power Facility Properly Classified as a Statutorily Protected Environmental Habitat

The Third Department affirmed the Secretary of State’s expansion of a statutory “significant coastal fish and wildlife habitat area” along the Hudson River in the vicinity of the Indian Point nuclear power facility.  The petitioner, the owner of Indian Point, sought to have the designation of the area as a statutorily protected environmental habitat annulled. The Third Department (1) explained a court’s powers when reviewing an agency’s interpretation of its own regulations; (2) determined the agency did not engage in formal rulemaking (which would be subject to the stringent procedural requirements of the State Administrative Procedure Act); and (3) determined certain documents were properly withheld re: petitioner’s Freedom of Information Law (FOIL) requests:

When an agency interprets a regulation that it promulgated, deference is afforded to that agency’s interpretive approach unless it is “irrational or unreasonable” … . To this end, the promulgating agency’s interpretation may not be adjudged irrational simply because other rational constructions of the regulatory provision in question exist …, nor because the promulgating agency’s reading of the relevant regulatory language either broadens its plain-language scope … or amounts to a “strict[ly] literal interpretation” … . Furthermore, “the determination of an agency acting pursuant to its authority and within its area of expertise is[, similarly,] entitled to judicial deference” … . In contrast, an agency’s interpretation of one of its own regulations is not entitled to deference if that interpretation contradicts the plain language of the regulation (see Matter of Elcor Health Servs. v Novello, 100 NY2d at 280), and an agency may be deemed to have acted irrationally if an interpretation of a regulation marks an unsubstantiated departure from the agency’s previous position on a given subject … . * * *

State Administrative Procedure Act § 102 (2) (a) (i), in pertinent part, defines a “[r]ule” as “the whole or part of each agency statement, regulation or code of general applicability that implements or applies law.” In contrast, State Administrative Procedure Act § 102 (2) (b) (iv) excludes from this statutory definition “forms and instructions, interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory.” While “there is no clear bright line between a ‘rule’ or ‘regulation’ and an interpretative policy,” an agency does not engage in formal rulemaking when the practical effect of an agency’s updated policy is that a discrete group of regulated entities or individuals likely will be subjected to a greater degree of regulatory scrutiny than are the majority of those regulated by the agency … . When an agency engages in a course of regulatory action that amounts to formal rulemaking but does not comply with the procedural requirements of State Administrative Procedure Act article 2, that regulatory action must be annulled … .

We agree with respondents that the habitat boundaries’ modification that gave rise to Hudson Highlands did not amount to formal rulemaking.  * * *

In response to petitioners’ discovery and Freedom of Information Law requests, respondents withheld a small number of documents pursuant to Public Officers’ Law § 87 (2) (g), which allows for “people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure” … . Supreme Court correctly concluded that “respondents’ interest in maintaining the confidentiality of the records and in allowing the candid exchange of ‘opinions, advice and criticism'” was valid and outweighed petitioners’ interest in having them. Petitioners argue that respondents waived the deliberative process privilege by describing the agencies’ decision-making process within the scientists’ affidavits. We find petitioners’ claims that respondents have waived the deliberative process privilege to be unpersuasive … . Matter of Entergy Nuclear Indian Point 2, LLC v New York State Dept. of State, 2015 NY Slip Op 05988, 3rd Dept 7-9-15

 

People Could Not Show Good Cause for the Nearly Five-Year Pre-Indictment Delay—Indictment Dismissed

The Third Department, over a dissent, determined, in a child pornography case, the nearly five-year delay between when defendant’s computer was seized and defendant questioned (2009) and the indictment (2013) required dismissal of the indictment. The case was not complex and no additional information beyond that gathered in 2009 was needed to indict. The People therefore did not demonstrate good cause for the extensive delay:

The parties agree that there has been a protracted preindictment delay that places the burden on the People to establish good cause for that delay … . The People state in their brief that there are no issues of fact regarding the issue before this Court and the record on appeal provides an adequate basis to determine whether the protracted delay was justified.

In determining whether there is an undue delay, the trial court must consider “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” … . Here, although defendant was not incarcerated during the period of delay and the nature of the charges are serious, the extent of the delay was clearly extensive. The People attribute the delay to the fact that the matter was initially referred to the office of the United States Attorney for the Northern District of New York for prosecution, and point to vague references of personnel changes within that office, as well as that office’s decision, at some point, not to prosecute.

This was not a complex legal matter and the record establishes that no further evidence was needed in order to charge defendant beyond that gathered in the 2009 … .  People v Montague, 2015 NY Slip Op 05721, 3rd Dept 7-2-15

 

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Defendants Ordered to Dismantle and Remove Boathouses Built Without Permits/Immediate Neighbors Had Standing to Bring an Action to Enjoin the Zoning Violations

The Third Department, in a full-fledged opinion by Justice Egan, determined that boathouses constructed without permits (required by the New York State Uniform Fire Prevention and Building Code [SBC] and the Village of Lake Placid/Town of North Elba Land Use Code [LUC]) must be completely dismantled and removed.  The defendants were aware from the start that proceeding with the building of the boathouses without permits would be at their own risk. The permits were ultimately denied. The opinion is extensive and much of it is devoted to explaining the litigation/appeal history and refuting defendants’ arguments (not addressed here).  With respect to the finding that the neighbors had standing to bring an action to enjoin the asserted zoning violations re: one of the parcels (referred to as the “children’s parcel”), the court wrote:

As a threshold matter, Supreme Court correctly concluded that the neighbors have standing to challenge the asserted zoning violations and to seek injunctive relief against the children. Although municipal officials indeed are tasked with enforcing zoning ordinances within their boundaries (see Town Law § 268 [2]), this “does not prevent . . . private property owner[s] who suffer[] special damages from maintaining an action seeking to enjoin the continuance of the violation and obtain damages to vindicate [their] discrete, separate identifiable interest[s]” … . To establish standing to maintain a private common-law action to enjoin zoning violations, a private plaintiff must establish that, due to the defendant’s activities, he or she will sustain special damages that are “different in kind and degree from the community generally” and that the asserted interests fall “within the zone of interest to be protected” by the statute or ordinance at issue … .

To that end, the neighbors both alleged and submitted proof that they own land (improved with single-family homes) on either side of the children’s parcel and that the children’s boathouse was built without the permits required by the LUC and SBC. The neighbors also demonstrated that the children’s boathouse violates various provisions of the LUC, including those governing set-backs and prohibiting accessory structures on land that lacks a principal building (see Joint Village of Lake Placid/Town of North Elba Land Use Code part IV, art III, § 4; art V, appendix F [II]). Where, as here, the offending premises are immediately adjacent to the neighbors’ property, “a loss of value may be presumed from the depreciation of the character of the immediate neighborhood, and the [neighbors] need not allege specific injury” … . We find that the neighbors’ specific allegations of close proximity give rise to an inference of damage and injury, thereby permitting them to maintain action No. 2. Moreover, the neighbors have demonstrated that their interests fall within the “zone of interest” protected by the LUC, in that violations thereof adversely affect their privacy and property values … . Indeed, we recognized as much in our prior decision permitting the neighbors to intervene, concluding that they “have an interest in the litigation by virtue of their status as owners of adjoining premises” … . Town of N. Elba v Grimditch, 2015 NY Slip Op 05740, 3rd Dept 7-2-15

 

Transcriber of Administrative Hearings Was an Employee Entitled to Unemployment Insurance Benefits—Appeals Board Not Required to Follow or to Explain Why It Didn’t Follow an “Unappealed” Ruing by an Administrative Law Judge

The Third Department determined claimant, who transcribed administrative hearings for “The Mechanical Secretary,” was an employee entitled to unemployment insurance benefits. The court noted that the unemployment insurance appeals board was not required to explain why it did not follow a prior “unappealed” ruling by an administrative law judge which went the other way:

“Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the [Board], if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion” … . “An employer- employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results” … . Here, the record establishes that The Mechanical Secretary advertised for transcriber positions. The president would interview the applicants and assess the quality of their work. The transcriber was required to have certain equipment, but The Mechanical Secretary would loan the transcriber a transcription machine if needed. The Mechanical Secretary arranged to have the work delivered to and picked up from the transcribers within a certain area. In claimant’s case, however, because she did not live in close proximity to the company, she was required to pick her work up at its office and to return the completed work to that office by 9:00 a.m. Claimant was occasionally reimbursed for her travel expenses. Significantly, The Mechanical Secretary set the nonnegotiable pay rate, supplied all the paper needed by the transcribers, and reviewed the final product for mistakes and would correct any minor mistakes or, where the mistakes were significant, send it back to be corrected by the transcriber. Furthermore, The Mechanical Secretary had to be notified if a transcriber was going to take any vacation. Given the evidence produced, we find that there is substantial evidence to support the Board’s finding that The Mechanical Secretary exercised a sufficient degree of control over claimant’s work to establish an employment relationship … .

We are unpersuaded by The Mechanical Secretary’s contention that the Board was bound by a prior unappealed Administrative Law Judge decision that found medical transcribers that it had used to be independent contractors. Claimant, who is not a medical transcriber, was not involved in that prior proceeding such that there was a full and fair opportunity for her to contest the decision, nor is the Board “required to conform to the precedent established in the prior unappealed decision or offer a rational explanation for not doing so” … . Matter of Ingle (The Mech. Secretary, Inc.–Commissioner of Labor), 2015 NY Slip Op 05553, 3rd Dept 6-25-15

 

Factory-Work Packaging Yogurt Was Not “Suitable Employment” for a Skilled Carpenter

The Third Department reversed the Unemployment Insurance Appeals Board’s determination claimant was not eligible for unemployment insurance benefits because he refused suitable employment.  Claimant is a skilled carpenter.  He refused a yogurt-packaging job in a factory.  The yogurt-packaging job was not, under the circumstances, “suitable employment” for the claimant:

Pursuant to Labor Law § 593 (2), a claimant who refuses “an offer of employment for which he or she is reasonably fitted by training and experience” will be disqualified from receiving unemployment insurance benefits … . Significantly, a “claimant need not accept every job offered but, rather[,] only those job offers which bear a reasonable relationship to [the] claimant’s skills” … . Here, it is undisputed that claimant was skilled in finish carpentry and had no experience working in a factory. Consequently, substantial evidence does not support the Board’s decision that he refused an offer of suitable employer … . The Board’s decision, in fact, runs contrary to a similar case in which the Board awarded benefits to another claimant who worked at the millwork company as a skilled craftsman and refused the same offer to work as a packager in a yogurt factory … . In view of the foregoing, the Board’s decision must be reversed. Matter of Reisen (Commissioner of Labor), 2015 NY Slip Op 05560, 3rd Dept 6-25-15

 

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Petitioner Was Entitled to a Reduction in the Assessed Value of a Home Depot Store Based Upon Its Expert’s Appraisal

The Third Department determined the trial court had properly found petitioner’s expert-appraisal of the value of a Home Depot store to be the most appropriate. Petitioner was therefore entitled to a reduction in the assessed value of the property. The Third Department carefully explained the valuation methods used by the competing experts (that discussion is not summarized here). As to the courts’ role in property-tax assessment proceedings, the Third Department explained:

A local tax assessment is presumptively valid and, to overcome that presumption, a petitioner must present substantial evidence that the property is overvalued … . Petitioner met this threshold burden here through its submission of the detailed appraisal of Harland, a certified real estate appraiser with considerable experience, who utilized accepted methodologies and adequately set forth his calculations and the necessary details regarding the properties … . The appropriateness of the comparable properties used by Harland in his analysis goes to the weight to be given to his appraisal, not, as respondents contend, the appraisal’s competency to raise a valid dispute regarding valuation … .

With petitioner having rebutted the presumptive validity of the assessments, Supreme Court was obligated to “weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued” … . “Where, as here, conflicting expert evidence is presented, we defer to the trial court’s resolution of credibility issues, and consider whether the court’s determination of the fair market value of the subject property is supported by or against the weight of the evidence” … . Matter of Home Depot U.S.A. Inc. v Assessor of the Town of Queensbury, 2015 NY Slip Op 05556, 3rd Dept 6-25-15

 

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Question of Fact Whether State Exercised Due Diligence In Addressing Recurrent Blowing-Snow Problem on Highway

The Third Department, reversing the Court of Claims, determined questions of fact had been raised about whether the state had taken adequate measures to address a recurrent “blowing snow” condition in the vicinity of plaintiff’s-decedent’s highway accident. The court rejected defendant’s argument that the “storm in progress” rule should be applied to blowing snow on a roadway. Rather the inquiry is whether the defendant exercised reasonable diligence in maintaining the roadway under the prevailing circumstances. There was evidence that the area in question was the site of several accidents and that installation of a snow fence may have prevented the problem. The state was unable to demonstrate it had undertaken a relevant study and was therefore unable to invoke qualified immunity:

… [I]t is a matter of established law that “[t]he pertinent inquiry is whether [defendant] exercised reasonable diligence in maintaining [the roadway] under the prevailing circumstances” … . Applying this analysis, ongoing adverse conditions do not excuse defendant from its duty to remediate dangerous conditions, but are relevant to the inquiry as to whether it exercised reasonable diligence in doing so … . * * *

Defendant may be held liable in negligence where it “failed to diligently remedy [a] dangerous condition[] once it was provided with actual or constructive notice or [where] it did not correct or warn of a recurrent dangerous condition of which it had notice” … . “Once [defendant] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger” … . * * *

… [A]n issue of fact exists with respect to whether defendant’s actions in seeking to remedy the recurring hazard of windblown snow by relying solely on plowing were reasonable. * * *

… [D]efendant failed to show that it was entitled to summary judgment on the basis of qualified immunity. When defendant undertakes a “stud[y] [of] a dangerous condition and determines as part of a reasonable plan of governmental services that certain steps need not be taken, that decision may not form the basis of liability” … . Although defendant contends that its decision not to utilize a snow fence or other measures intended to mitigate the hazard of windblown snow resulted from a “reasoned plan or study,” the record is inadequate to demonstrate, as a matter of law, that such a study was undertaken … . Frechette v State of New York, 2015 NY Slip Op 05538, 3rd Dept 6-25-15

 

Superior Court Information Was Jurisdictionally Defective—The Offenses Were Not the Same As, or Lesser Included Offenses of, Those In the Felony Complaint

The Third Department determined defendant’s plea to a superior court information (SCI) could not stand because the crimes in the information were not the same as, or lesser included offenses of, those in the felony complaint:

… [T]he SCI was jurisdictionally defective in this case. The crimes charged in the SCI, to which defendant pleaded guilty, were required to be the same or lesser included offenses of those listed in the felony complaint … . However, the only crimes listed in the felony complaint were the class E felony of possessing a sexual performance by a child and two class A misdemeanors. The SCI, on the other hand, charged defendant with the class C felony of use of a child in a sexual performance and the class B felony of course of sexual conduct against a child in the first degree. Clearly, the latter crimes were not lesser included offenses of the former. Accordingly, due to this jurisdictional defect, we are constrained to conclude that the guilty plea must be vacated and the matter remitted to County Court for further proceedings. People v O’Neill, 2015 NY Slip Op 05517, 3rd Dept 6-24-15

 

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Failure to Take Steps to Verify and Corroborate the Information from a Confidential Source Required Annulment and Expungement of the Misbehavior Determination

The Third Department determined the absence of information corroborating the confidential-source allegations which were the basis for the misbehavior report, coupled with the hearing officer’s failure to interview either the source or the sergeant who obtained the confidential information, required annulment and expungement of the misbehavior determination:

… [C]onfidential information may provide substantial evidence supporting a prison disciplinary determination as long as it is sufficiently detailed and probative that the Hearing Officer may make an independent assessment of the reliability of the information … . Petitioner contends that the Hearing Officer failed to independently assess the reliability of the confidential information considered here. Based upon our review of the record, we must agree. The misbehavior report was the primary evidence supporting the disciplinary determination, as the sergeant who prepared it did not testify at the hearing. The sergeant based the report upon confidential memoranda that she prepared after obtaining incriminating information directly from the confidential source. The memoranda, however, do not contain additional information or corroborating details to facilitate verification of the source’s reliability … . Moreover, the Hearing Officer did not personally interview either the source or the sergeant who obtained the information. In view of this, we agree with petitioner that the necessary independent assessment of the confidential information was lacking and that the determination must be annulled and all references thereto expunged from petitioner’s institutional record … . Matter of Cooper v Annucci, 2015 NY Slip Op 05548, 3rd Dept 6-25-15

 

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Contract Merged with the Deed and Any Rights Afforded Purchaser by the Uniform Vendor and Purchaser Risk Act Were Extinguished Upon Transfer of Title

After transfer of title, the purchaser alleged that the property had been damaged between the execution of the purchase contract and the transfer of title. The Third Department determined summary judgment was properly awarded the seller. The property was sold “as is” and the contract did not survive the transfer of title.  Any rights granted purchaser under the Uniform Vendor and Purchaser Risk Act (UVPRA), which allows for rescission in some cases, were extinguished upon the transfer of title:

Unless a land sale contract expressly provides otherwise, a vendor bears the risk of loss until legal title or possession has been transferred to the purchaser … . However, a contract for the sale of real property merges with the deed and, as a result, the terms of the contract do not survive transfer of title unless the parties clearly specify otherwise … . Here, the terms and conditions of the auction provided that the sale would be governed by the Uniform Vendor and Purchaser Risk Act (hereinafter UVPRA), which provides a purchaser with the right to rescind the sale contract or recover money paid toward the purchase price under certain circumstances (see General Obligations Law § 5-1311 [1] [a]). However, there was no indication that plaintiff’s rights under the UVPRA would survive transfer of title. In fact, the terms and conditions provided that the property would be sold “as is” and that a purchaser would not have recourse against defendant for any defects stemming from the sale. Therefore, any rights that plaintiff may have asserted under the UVPRA were extinguished when title was transferred to plaintiff. Burkins & Foley Trucking & Stor., Inc. v County of Albany, 2015 NY Slip Op 05252, 3rd Dept 6-18-15

 

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