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Corporation Is a Proper Respondent in an Article 78/Mandamus to Compel Proceeding

The Third Department determined that respondent corporation (CGFNS), which contracted with the state to provide credential verification services to the Department of Education for foreign-trained nurses, was a proper respondent in an Article 78/mandamus to compel proceeding.  The proceeding was brought by the foreign nursing school after CGFNS indicated it could not verify the school’s credentials:

CGFNS argues that it is not a “body or officer” subject to CPLR article 78 (CPLR 7802 [a]) and that it did not make a “determination” reviewable in this proceeding (CPLR 7803 [3]). CPLR 7802 (a) defines a “body or officer” against whom a CPLR article 78 proceeding may be instituted to include, as relevant here, “every court, tribunal, board, [or] corporation” (emphasis added). CGFNS is a not-for-profit corporation. Courts have recognized that corporations, both public and private, may be subject to CPLR article 78 as quasi-governmental bodies because they are “beholden to the [s]tate for their franchise or charter or the exercise of their functions” (… Siegel, NY Prac § 558 at 989; § 564 at 1001-1002 [5th ed 2011]). As a corporate entity, CGFNS is a “body or officer” subject to a writ of mandamus under CPLR article 78 (CPLR 7802 [a]; see CPLR 7803 [1], [3]…). Matter of American Univ. of Antigua v CGFNS Intl., 2015 NY Slip Op 02028, 3rd Dept 3-12-15

 

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Engineer/Engineering Firm Did Not Have Standing to Contest Variance

The Third Department determined the petitioner, Klein, an engineer who claimed to be representing neighbors opposed to a variance granted by the town zoning board, did not have standing to contest the variance:

The Town Code permits appeals by “any person aggrieved” by, among other things, the zoning administrator’s decisions (Code of the Town of Queensbury § 179-14-040 [C]). As the Town Code does not define the quoted phrase, it must be interpreted according to its plain meaning … . This language seems to be taken directly from Town Law § 267-a (4). This same phrase in that statute has been consistently interpreted to mean a person who “has sustained special damage, different in kind and degree from the community generally” … . Even without establishing an injury in fact, a person is presumed to have standing if he or she falls within the statute’s zone of interests and his or her property is sufficiently proximate to the property at issue … .

The notice of appeal to the ZBA [Zoning Board of Appeals] listed Klein’s engineering firm as the appellant and Klein as the appellant’s agent. Klein and his firm did not exhibit any specialized harm and do not own property near the Kitchens’ property. Thus, Klein does not have standing in his individual capacity or as an agent for his firm. Klein asserts that at the public hearings and in letters he identified himself as appearing on behalf of neighbors. While this is true, at no point up until the day before the hearing on his appeal did he identify who his clients were. The other petitioners involved in this appeal, who later claimed that Klein was their agent, were not listed on the notice of appeal and did not file a formal designation form naming him as their agent — as the Town generally requires — prior to the expiration of the statute of limitations for appealing an administrative determination. Under the circumstances, the ZBA did not err in finding that Klein was not a duly authorized agent of an aggrieved party during the requisite limitations period for the appeal and was not himself aggrieved, so he had no standing … . Matter of Fund for Lake George, Inc. v Town of Queensbury Zoning Bd. of Appeals, 2015 NY Slip Op 518831, 3rd Dept 3-12-15

 

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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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Questions of Fact Existed Re: Whether Plaintiffs Were Entitled to Rely on Defendant’s Assurances Dog Was Not Aggressive

Plaintiff was seriously injured by a dog procured from defendant after defendant had assured plaintiffs the dog (Brutus) was not aggressive. The Third Department determined plaintiffs were entitled to rely on defendant’s assurances, in spite of three minor biting incidents when the dog was in plaintiffs’ possession:

Defendants argue that because Brutus bit plaintiffs three times prior to the attack that is the subject of the complaint, plaintiffs could not have reasonably relied on defendants’ representations as to the dog’s behavior and cannot state a claim for fraudulent or negligent misrepresentation. Defendants also argue that those causes of action must fail because plaintiffs could have learned of Brutus’ aggressive nature with due diligence. We are not persuaded. In order to establish their claims for negligent and fraudulent misrepresentation, plaintiffs must demonstrate that they justifiably relied on defendants’ misrepresentations … . Here, plaintiffs allege that they would not have adopted Brutus if they had been told the truth regarding his prior owner’s reason for turning him over to the Center. Plaintiffs also allege that, after the three biting incidents, they sought the assistance of trainers to deal with what they perceived as a minor issue. Plaintiffs, who have experience owning and training animals, note that the three prior bites did not break the skin and were far different from the aggressive nature of the later attack. Plaintiffs only learned about Brutus’ prior history when they were able to track down the prior owner by posting flyers and they submitted affidavits from the prior owner and her friend regarding their experiences with Brutus and their intent to have him euthanized when they took him to the Center. Under these circumstances, issues of fact exist as to whether plaintiffs reasonably relied on defendants’ misrepresentation and whether plaintiffs could have discovered Brutus’ dangerous nature with due diligence … . Lawrence v North Country Animal Control Ctr., Inc., 2015 NY Slip Op 01846, 3rd Dept 3-5-15

 

Agreement Created Only a Temporary License to Use Land, Not an Easement

The Third Department, over a partial dissent, determined plaintiff was granted only a license to use land for agricultural purposes pending repayment of a loan, not an easement.  The two legal concepts were explained:

We recognize that “‘it is often difficult to distinguish between an easement, which is an interest in real property, and a mere license, which implies no such interest, . . . is personal to the holder, is not assignable and is of limited duration'” … . “‘To create an easement by express grant there must be a writing containing plain and direct language evincing the grantor’s intent to create a right in the nature of an easement rather than a revocable license'” … . Aside from the word “grant,” the agreement does not use language typically utilized to convey an interest in land, such as “convey” and “forever” … . Moreover, the agreement expressly speaks to a loan and includes a clause purporting to authorize plaintiff to foreclose upon the property for nonpayment. Where, as here, there is no express time limitation for the right to use the property, that right should be deemed a license, and not an easement …, particularly given that plaintiff drafted the agreement (see 22 NY Jur 2d, Contracts § 257). Both the language of the agreement and the loan context lead us to conclude, as did Supreme Court, that Buchanan merely conferred a license upon plaintiff to use the property pending repayment. Kampfer v DaCorsi, 2015 NY Slip Op 01843, 3rd Dept 3-5-15

 

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Court Should Not Have Summarily Determined Declaratory Judgment Action In Absence of a Request to Do So/The Mootness Doctrine Precluded Court Rulings on an Expired Contract/The Open Meetings Law Was Violated by the Town

The Third Department determined Supreme Court should not have summarily considered the declaratory judgment aspect of this hybrid action without a request to do so and without converting the proceeding to a summary judgment action.  The Third Department further determined the mootness doctrine precluded the Supreme Court from ruling on the provisions of an expired contract, and the town had violated the Open Meetings Law by holding closed sessions.  The action concerned the use of property for motorcycle events. Local property owners brought the action alleging that the events violated the allowed use of the land:

It is well settled that a court’s jurisdiction extends only to live controversies” …, and a matter becomes moot “unless the rights of the parties will be directly affected by the determination of the [claim] and the interest of the parties is an immediate consequence of the judgment” … . Where, as here, the passage of time or “a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy,” the claim must be dismissed … . The 2013 agreement, by its own terms, pertained solely to Safety Track’s land uses and events that occurred during the 2013 track season and expired at the end of that year, thereby rendering the challenges to the 2013 agreement moot … . Further, we do not agree with Supreme Court’s finding that the exception to the mootness doctrine was satisfied… . …

In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those which seek declaratory relief, on the other hand” … . In the absence of a formalized motion requesting the “summary determination of the causes of action which seek . . . declaratory relief, it is error for [a court] to summarily dispose of those causes of action” … .

It is undisputed that there was no pending motion for summary disposition of the declaratory judgment action when Supreme Court rendered its 2014 judgment. Nor did the court provide notice to the parties that it was considering the summary disposition of the declaratory judgment action, such that the parties would be afforded an opportunity to further develop the evidentiary record and offer competent proof supportive of their respective positions … .

… Generally, “[e]very meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [Public Officers Law § 105]” (Public Officers Law § 103 [a]). While a governing body may enter into an executive session, it may do so only for certain purposes, including, as is relevant here, the consideration of an appointment or to engage in private discussions relating to proposed or pending litigation (see Public Officers Law § 105 [1] [f]…). However, the body must “identify the subject matter to be discussed . . . with some degree of particularity”… . * * * As the Town failed to demonstrate that it comported with the relevant statutory provisions when conducting the instant executive sessions, such sessions were violative of the Public Officers Law … . Matter of Ballard v New York Safety Track LLC. 2015 NY Slip Op 01845, 3rd Dept 3-5-15

 

“Attempted Felony Assault” Charge Jurisdictionally Defective

The Third Department determined the “attempted felony assault” charge in the indictment was jurisdictionally defective because there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended:

We do find that the conviction for attempted assault in the first degree cannot stand. Defendant was charged under the theory that, during the course of the kidnapping, he attempted to cause serious physical injury when he choked the victim a second time after she made an abortive effort to get help (see Penal Law § 120.10 [4]). An attempt to commit a crime requires that a person, “with intent to commit a crime, . . . engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00). In contrast, felony assault punishes a felon for the actual consequences of his or her actions, and “there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended” … . Accordingly, notwithstanding the fact that defendant did not advance this specific issue in his appellate brief, the count of the indictment charging him with attempted felony assault is jurisdictionally defective and must be dismissed … . People v Mccann, 2015 NY Slip Op 01830, 3rd Dept 3-5-15

 

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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