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Involuntary Retention Appropriate—Respondent Suffered from Developmental Disability Which Originated Before the Age of 22

The Third Department reversed Supreme Court, finding the petitioner demonstrated respondent suffered from developmental disabilities justifying involuntary retention in a mental health facility:

Pursuant to Mental Hygiene Law article 15, when a facility seeks to retain an individual against his or her will, such retention may occur when the person has an alleged developmental disability that, as is relevant here, can be attributed to mental retardation that originated before he or she turned 22 years of age, has existed on a continuous basis and has severely limited his or her ability to function in society (see Mental Hygiene Law §§ 1.03 [22]; 15.01, 15.27 [a]). Further, the individual will be subject to involuntary care and treatment if it is “essential to his [or her] welfare, and . . . his [or her] judgment is so impaired that he [or she] is unable to understand the need for such care and treatment” (Mental Hygiene Law § 15.01; see Matter of Robert OO., 57 AD3d 1304, 1305 [2008]…). Our authority to review factual findings made in retention cases of this nature is as broad as that of the trial court … and “we may make our own findings of fact if ‘no fair interpretation of the evidence . . . can support the [court’s] determination'” … . Matter of William T., 2015 NY Slip Op 01857, 3rd Dept 3-5-15

 

Criteria for Intervention as of Right and Permission to Intervene Explained (Not Met Here)

The Third Department determined a fund, which was entitled to reimbursement from any damages awarded plaintiff in a pending medical malpractice action, did not have the right to intervene and was properly denied permission to intervene in the medical malpractice action.  The court explained the relevant analytical criteria:

As relevant here, any person may intervene as of right “when the representation of the person’s interest by the parties is or may be inadequate and the person is or may be bound by the judgment” (CPLR 1012 [a] [2]). The Fund would be bound by any judgment because plaintiff has sought to recover medical costs, as well as other damages, in his complaints in these actions. Despite the Fund’s argument, however, it appears that plaintiff is and will adequately represent the Fund’s interests. At oral argument, the Fund acknowledged that plaintiff’s counsel is competent and will act in good faith. Plaintiff has an incentive to maximize his recovery, considering that he will not receive anything personally if he obtains a settlement or verdict of $537,273.12 or less. Plaintiff is also contractually bound to protect the Fund’s right to subrogation and has agreed to a lien on any recovery … . Supreme Court correctly found that plaintiff is adequately representing the Fund’s interests, and any argument that plaintiff may not do so in the future is pure speculation … .

A court may permit intervention, in its discretion, when the person’s claim has a common question of law or fact with the main action, but “the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party” (CPLR 1013). Although the Fund’s asserted claim has common questions of law and fact with plaintiff’s claims, intervention was properly denied. Intervention would cause some delay because it would lead to duplicative discovery and motion practice, as the Fund and plaintiff could each separately seek demands and relief from the multiple defendants … . This could also cause some prejudice to defendants, who would be required to respond to similar repetitive demands and motions, as well as the possibility of the Fund calling additional witnesses or even experts at trial. The Court of Appeals has even acknowledged that allowing a provider of medical benefit payments to intervene could create tension between the injured party and his or her insurer,… and “inevitably complicates settlement negotiations” … . Mavente v Albany Med. Ctr. Hosp., 2015 NY Slip Op 01849, 3rd Dept 3-5-15

 

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Time Constraints, In Workers’ Compensation Law 25, for Seeking Reimbursement for Compensation Paid by Self-Insured Employer Applied to Workers’ Compensation Law 30 As Well

The Third Department determined the self-insured employer waived its right to reimbursement for compensation payments made to its employee because it failed to make a timely claim under Workers’ Compensation Law 25(4)(a).  The court concluded that the wording of Workers’ Compensation Law 30 did not require a different result.  Section 30 was interpreted to include the time constraints imposed by section 25:

Here, the Board correctly determined that the employer was required to file timely requests for reimbursement, but did not do so. Workers’ Compensation Law § 25 (4) (a) provides that “[i]f the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, [the employer] shall be entitled to be reimbursed out of an unpaid instalment or instalments of compensation due, provided [the employer’s] claim for reimbursement is filed before award of compensation is made.” If this statute alone is applied here, the employer is precluded from recovering the full wages paid to claimant pursuant to General Municipal Law § 207-c because the employer did not file requests for reimbursement prior to the initial awards of compensation benefits for the relevant time periods … .

The employer contends that Workers’ Compensation Law § 30 applies instead. That statute provides that “any salary or wages paid to . . . [a claimant] under and pursuant to [General Municipal Law § 207-c] shall be credited against any award of compensation . . . under this chapter” (Workers’ Compensation Law § 30 [3]). To analyze these provisions, “the text of a statute is the best evidence of legislative intent and, where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” … . Because these two provisions are related statutes in the Workers’ Compensation Law, they “must be construed together unless a contrary legislative intent is expressed, and courts must harmonize the related provisions in a way that renders them compatible” … . Workers’ Compensation Law §§ 25 and 30 both provide a right to reimbursement out of future benefits, with section 30 being more specific regarding the statutory basis for the wage replacement payments sought to be reimbursed. Workers’ Compensation Law § 25 (4) (a) additionally provides that the employer will waive that right if it fails to timely submit a claim for reimbursement. “If by any fair construction, a reasonable field of operation can be found for [both of these related] statutes, that construction should be adopted” … . A reasonable construction of these two statutes is to read them together and conclude that the right of reimbursement granted by both statutes will be waived if the employer fails to submit a timely request for reimbursement. Matter of O’Brien v Albany County Sheriff’s Dept., 2015 NY Slip Op 01842, 3rd Dept 3-5-15

 

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Negligent Highway Design Not Demonstrated/Plaintiff’s Amnesia Did Not Excuse Submission of Proof of Proximate Cause

The Third Department determined summary judgment was properly awarded to county in case alleging negligent highway design.  Plaintiff’s vehicle left the roadway and went down an embankment, incurring traumatic brain injury resulting in amnesia re: the accident.  The complaint alleged there should have been a guide rail where plaintiff’s vehicle left the road.  However, there was a twenty-foot wide flat area between the edge of the road and the embankment. The court noted that the plaintiff’s amnesia did not excuse her from submitting proof of proximate cause:

“Municipalities owe a nondelegable duty to the public to construct and maintain their roads in a reasonably safe condition” … . While this duty includes providing adequate warning signs and guide rails or other barriers in appropriate circumstances, a municipality will not be held liable for a breach of duty unless the breach proximately caused the accident … . Accordingly, to establish a cause of action for negligent highway design, plaintiffs were required to provide evidentiary facts that could support a finding that defendant breached its duty to maintain the road in a reasonably safe condition, and that this breach was a proximate cause of the accident. * * *

Plaintiff’s amnesia as to the cause of the accident does not excuse her from submitting prima facie proof of proximate cause. In a proper case, an amnesiac plaintiff may be held to a lesser burden of proof as to proximate cause than a party who is able to provide an account of events … . However, that doctrine is inapplicable where, as here, the defendant has no greater access to the underlying facts than the amnesiac plaintiff … . Moreover, even when the doctrine applies, the burden remains on the amnesiac plaintiff to present prima facie proof of the defendant’s negligence to permit a jury to base its verdict on evidence rather than speculation … . This burden may not be satisfied by “inferences as to causation which are based solely upon speculation” … . As plaintiffs neither made an evidentiary showing that defendant breached its duty to construct and maintain the road in a safe condition nor that such a breach proximately caused the accident, summary judgment was properly granted to defendant on the ground that plaintiffs failed to establish a cause of action for negligent highway design.  Lindquist v County of Schoharie, 2015 NY Slip Op 01852, 3rd Dept 3-5-15

 

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Tax Exemption Properly Eliminated for Airplane Hangar Not Held for Public Use

The Third Department determined an airplane hangar, previously tax-exempt, was properly deemed taxable by the town assessor because it was not held for public use:

Where, as here, a municipality decides to eliminate a previously granted tax exemption, it has the burden of “‘proving that the real property is subject to taxation'” … . Faced with the burden of demonstrating that petitioner was not eligible for an exemption inasmuch as the hangar, as is relevant here, was not “held for a public use” (RPTL 406 [1]), respondents had to show that the hangar was not “‘occupied, employed, or availed of, by and for the benefit of the community at large'” … . That a private corporation “derives a benefit or that [a] county has leased the property to a private party does not by itself defeat the exemption” … . A determination that a parcel is exempt from real property taxation turns on whether it has a “‘public use’ . . . that enhances the health, education, safety, or welfare of the residents of the municipality” … .

The record reveals that the hangar is locked at all times and is not accessible to members of the general public; access to the bays is strictly limited to petitioner’s three members and parties who execute rental agreements with petitioner. Matter of Hangair, LLC v Hillock, 2015 NY Slip Op 01850, 3rd Dept 3-5-15

 

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Criteria for Negligent Highway Design Explained—Qualified Immunity Is Part of the Analysis of Liability

The Third Department explained the analytical criteria associated with allegations of negligent highway design, including qualified immunity. Here it was alleged that a rock outcropping obscured on-coming traffic and the measures taken by the state to reduce the hazard were inadequate.  The case was dismissed because the plaintiff was unable to demonstrate the highway-design problems constituted the proximate cause of the collision:

“[I]n the field of traffic design engineering, [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. Once [defendant] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger” … . If defendant’s response to an identified hazard is unreasonably delayed, defendant must demonstrate either that the delay “was necessary in order to study and formulate a reasonable safety plan, that the delay was itself part of a considered plan of action taken on the advice of experts, or that the delay stemmed from a legitimate ordering of priorities with other projects based on the availability of funding” … .

Although the parties continue to debate whether, consistent with the foregoing principles, defendant’s response to the acknowledged hazard was adequate and, further, whether the documented delay in cutting back the offending outcropping was unreasonable, these issues need not detain us. Assuming, without deciding, that defendant’s efforts in this regard indeed were inadequate and/or unreasonably delayed, thereby establishing that defendant was negligent, claimant failed to demonstrate that such negligence was the proximate cause of decedent’s accident. Graff v State of New York, 2015 NY Slip Op 01847, 3rd Dept 3-5-15

 

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Testing and Monitoring Costs Associated with Remediation of a Petroleum Spill Are Taxable/Deference Is Accorded an Agency’s Interpretation of a Broadly-Worded Statute

The Third Department determined that the costs of monitoring and testing done as part of a remediation effort at the site of a petroleum spill are taxable pursuant to Tax Law 1105(c)(5).  The Third Department explained the courts’ review powers where an agency has interpreted a statute that is broadly worded:

Tax Law § 1105 (c) (5) imposes a sales tax on purchases of services related to “[m]aintaining, servicing or repairing real property, property or land . . . as distinguished from adding to or improving such real property, property or land, by a capital improvement.” 20 NYCRR 527.7 (a) (1) further defines “[m]aintaining, servicing and repairing” as “all activities that relate to keeping real property in a condition of fitness, efficiency, readiness or safety or restoring it to such condition.” Petitioner [Exxon Mobil] asserts that the monitoring and testing services paid for here were not taxable, as they were only intended to ascertain the condition of the affected property and not to remediate the petroleum spills. We disagree.

Under well-established principles of law, “an agency’s interpretation of the statutes it administers must be upheld absent demonstrated irrationality or unreasonableness” … . Petitioner points out that no deference will generally be afforded to administrative agencies in matters of pure statutory interpretation … . Inasmuch as the present case involves the specific application of broad statutory language, however, deference to the agency that is charged with administering the statute is appropriate … . Contrary to petitioner’s further assertion, the burden rested upon it to establish that the specific sales at issue here were not taxable (see Tax Law § 1132 [c] [1]…).

As this Court and the Court of Appeals have “noted, both the statute and regulation contain broad language” … . The removal of hazardous waste from a property constitutes a taxable maintenance service and, indeed, petitioner does not dispute that a purchase of services related to the remediation of spilled petroleum is taxable … . Petitioner claims that the services at issue here are not related to the improvement of property affected by a petroleum spill, but that claim is not borne out by the record. Petroleum discharges are prohibited in New York and, when a spill occurs, petitioner is obliged to notify the Department of Environmental Conservation and may coordinate with that Department to remediate the spill (see Navigation Law §§ 173, 175, 176 [7]). Petitioner is required to conduct an environmental investigation of the spill area, including the monitoring and testing services at issue here, as part of its remediation effort. While an active cleanup of a spill site is not required in every case, the same monitoring and testing procedures are always employed, and it may take years for those procedures to reveal what type of remediation is required. Moreover, if active remediation is conducted, further monitoring and testing is required to ensure that the remedial system may be safely removed. Under these circumstances, there was nothing irrational in the finding that the monitoring and testing services at issue constituted an “integral part of the” taxable remediation efforts, even if they were billed separately … .  Matter of Exxon Mobil Corp. v State of New York Tax Appeals Trib.. 2015 NY Slip Op 01840, 3rd Dept 3-5-15

 

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ALTHOUGH THE STATUTE STATES THAT EMPIRE ZONE REAL PROPERTY TAX CREDITS ARE AVAILABLE WHEN THE TAX PAYER MAKES DIRECT PAYMENTS TO THE TAXING AUTHORITY, PETITIONERS WERE ENTITLED TO THE TAX CREDITS EVEN THOUGH THE PAYMENTS WERE MADE FROM A MORTGAGE TAX ESCROW ACCOUNT (THIRD DEPT).

The Third Department, reversing the Tax Appeals Tribunal, determined petitioners’ were entitled to Empire Zone real property tax credits even though the tax payment were mortgage by Wells Fargo from a mortgage tax escrow account. The Tax Law requires “direct payment” to the taxing authority:

… [A]lthough Tax Law § 15 (e) (3) contemplates a “direct payment” of real property taxes from the lessee to the taxing authority, we find that, under the particular circumstances presented here, [the lessee’s] use of a mortgage tax escrow account for the payment of real property taxes did not preclude petitioners from claiming the subject [Empire Zone] real property tax credits. Matter of Balbo v New York State Tax Appeals Trib., 2018 NY Slip Op 05540, Third Dept 7-26-18​

TAX LAW (EMPIRE ZONE, ALTHOUGH THE STATUTE STATES THAT EMPIRE ZONE REAL PROPERTY TAX CREDITS ARE AVAILABLE WHEN THE TAX PAYER MAKES DIRECT PAYMENTS TO THE TAXING AUTHORITY, PETITIONERS WERE ENTITLED TO THE TAX CREDITS EVEN THOUGH THE PAYMENTS WERE MADE FROM A MORTGAGE TAX ESCROW ACCOUNT (THIRD DEPT))/MUNICIPAL LAW (EMPIRE ZONE, ALTHOUGH THE STATUTE STATES THAT EMPIRE ZONE REAL PROPERTY TAX CREDITS ARE AVAILABLE WHEN THE TAX PAYER MAKES DIRECT PAYMENTS TO THE TAXING AUTHORITY, PETITIONERS WERE ENTITLED TO THE TAX CREDITS EVEN THOUGH THE PAYMENTS WERE MADE FROM A MORTGAGE TAX ESCROW ACCOUNT (THIRD DEPT))/REAL PROPERTY TAX LAW  (EMPIRE ZONE, ALTHOUGH THE STATUTE STATES THAT EMPIRE ZONE REAL PROPERTY TAX CREDITS ARE AVAILABLE WHEN THE TAX PAYER MAKES DIRECT PAYMENTS TO THE TAXING AUTHORITY, PETITIONERS WERE ENTITLED TO THE TAX CREDITS EVEN THOUGH THE PAYMENTS WERE MADE FROM A MORTGAGE TAX ESCROW ACCOUNT (THIRD DEPT))/EMPIRE ZONE (EMPIRE ZONE, ALTHOUGH THE STATUTE STATES THAT EMPIRE ZONE REAL PROPERTY TAX CREDITS ARE AVAILABLE WHEN THE TAX PAYER MAKES DIRECT PAYMENTS TO THE TAXING AUTHORITY, PETITIONERS WERE ENTITLED TO THE TAX CREDITS EVEN THOUGH THE PAYMENTS WERE MADE FROM A MORTGAGE TAX ESCROW ACCOUNT (THIRD DEPT))

Question of Fact Re: the “Hostility” Element of a Prescriptive Easement

In finding that the prescriptive easement cause of action should not have been dismissed, the Third Department explained the proof requirements:

A party claiming a prescriptive easement must show, by clear and convincing evidence, that the use of the easement was open, notorious, hostile and continuous for a period of 10 years … . Although the element of hostility is presumed upon a showing of the other elements, where “the relationship between the parties is one of neighborly cooperation and accommodation,” no such presumption arises and, rather, permission will be inferred … . “Generally, the question of implied permission is one for the factfinder to resolve” … .

Here, the evidence submitted on the summary judgment motions indicates that a neighborly relationship existed between plaintiff, individually, the Trust’s tenants and defendants’ predecessors in title. However, inasmuch as there is no evidence of express permission granted to use defendants’ property, and the relevant parties are not “related by blood or part of a select group of friends,” summary judgment dismissing the claim for a prescriptive easement on the ground that plaintiff was unable to establish hostility was not warranted … . Gulati v O’Leary, 2015 NY Slip Op 01693, 3rd Dept 2-26-15

 

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Charitable Trust’s Challenge to Tax Foreclosure Time-Barred—Four-Month Statute of Limitations Applies to Action for Declaratory Judgment—RPTL, not the EPTL, Controls

The Third Department determined the action challenging the tax foreclosure on parcels of land owned by a charitable trust set up to hold land for Native Americans must be dismissed as time-barred.  The court further determined that County Court had subject matter jurisdiction because the matter was subject to the Real Property Tax Law (RPTL), not the Estates Powers and Trust Law (EPTL), and there was, therefore, no requirement that the Attorney General be notified of the tax foreclosure proceedings:

Under RPTL article 7, a property owner claiming to be aggrieved by an assessment of real property on the basis that the assessment is excessive, unequal or unlawful, or that the property is misclassified, may file a petition challenging the assessment, but “such a proceeding shall be commenced within thirty days after the final completion and filing of the assessment roll containing such assessment” (RPTL 702 [2]; see RPTL 704 [1]; 706 [1]). Where a party is alleging that the assessment is void — either through a challenge to the methodology of assessment or the jurisdiction of the taxing authority to assess particular property — the party may instead bring a proceeding pursuant to CPLR article 78 or a declaratory judgment action … . Both of those options are governed by a four-month statute of limitations … . The Court of Appeals has expressly rejected plaintiffs’ argument that, because the property is allegedly mandatorily exempt from taxes, the assessment is illegal and void and may be challenged at any time … . Plaintiffs concede that they had notice of the Town’s determination regarding the taxable status of the parcels, and filed a grievance to administratively challenge the tax bills when the property was first listed as not tax exempt, but they failed to appeal when the Town denied the grievance. Plaintiffs did not file any further grievances, actions or proceedings until they commenced this action more than a year after the final foreclosure proceeding was concluded. Accordingly, while an action for declaratory judgment was a proper method, the statute of limitations bars plaintiffs’ challenges to their tax assessments … . Turtle Is Trust v County of Clinton, 2015 NY Slip Op 01698, 3rd Dept 2-26-15

 

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