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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

 

Transportation-Contract Bidding Requirement that the Carrier Have an “Out of Service” Rate Less than that Required by the State Was Not Preempted by State Law/The Requirement Was Not Anti-Competitive Merely Because It Excluded Petitioner from Consideration—Analytical Criteria Discussed

The Third Department determined the county’s requirement that carriers bidding for a county transportation contract must have an “out of service rate” of less than 15% was not preempted by state law (which allows a 25% out of service rate) and was not “anti-competitive” because the requirement excluded petitioner from consideration.  The court explained the relevant analytical criteria:

Preemption applies where there is “express conflict between local and [s]tate law” or “where the [s]tate has evidenced its intent to occupy the field” … . In the Transportation Law, the Legislature has indicated an intention for the state “to regulate transportation by motor carriers,” for both safety and economic reasons (Transportation Law § 137; see Transportation Law § 140 [2]…), and granted exclusive jurisdiction over safety regulations for motor carriers to the Commissioner of Transportation (see Transportation Law § 140 [8]), thereby preempting the field of safety regulations for motor carriers. Although the County’s RFB specification of an out of service rate exceeded the inspection pass rate in DOT [Department of Transportation] regulations, which provide that a motor carrier’s authority to carry passengers within the state may be suspended or revoked for an out of service rate of 25% or more (see 17 NYCRR 720.32 [a] [2]; see also Transportation Law §§ 145 [1]; 156 [2]), preemption does not apply under the circumstances here. * * *

General Municipal Law § 103 (1) requires that municipalities award purchase contracts above a certain monetary threshold to the “lowest responsible bidder” to protect the public’s finances and prevent corruption or favoritism in the awarding of public contracts … . Municipalities are permitted to include bid specifications that may be more favorable to some bidders over others, as long as the public interest is served and the specifications are not intended to ensure that one particular bidder be awarded the contract … . Including specifications in a request for bids often has the effect of disqualifying some potential bidders who cannot meet those specifications, but this reality does not invalidate those specifications. If a challenged specification is not facially anticompetitive, courts apply “ordinary rational basis review” in assessing its validity … . A petitioner bears the burden of demonstrating that the inclusion of the challenged specifications, and the ultimate award of the contract, was the product of actual impropriety, unfair dealing or statutory violation … . …

The County’s bid specification requiring an out of service rate of less than 15% is not facially anticompetitive, as that standard does not, in and of itself, guarantee the award of the contract to a particular bidder … . The bid specification here, requiring a safety rating higher than the minimum allowed by DOT for a motor carrier to continue operating within the state, does have some rational basis rooted in the public interest, namely, attempting to assure the safety of children being transported under the County’s care. Matter of Blueline Commuter, Inc. v Montgomery County, 2015 NY Slip Op 519277, 3rd Dept 3-12-15

 

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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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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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