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Solid Waste Facility Operating Agreement Not a Lease—No Permissive Referendum Required

The Third Department determined that a Solid Waste Facility Operating Agreement between the Town of Colonie and Capital Region Landfills, Inc (CRL) was not a lease, and therefore a permissive referendum was not a pre-requisite to the agreement.  The Third Department wrote:

Town  Law  § 64 (2) provides that, upon adopting a resolution, a town board may “convey or lease real property in the name  of the town, which resolution shall be subject to a permissive referendum.” The petition and amended petition  allege  that, as  the  agreement  is “the  functional equivalent of a lease,” the Town violated Town Law § 64 (2) by adopting  the resolution and  entering into the agreement  without first conducting  a  permissive referendum … . * * *

In view of the significant restrictions on CRL’s authority and control of the landfill and the rights and powers retained by the Town, the agreement does not convey “absolute control and possession” to CRL and is not a lease as a matter of law….

Accordingly, petitioners’ claim  that a  permissive referendum was required by Town Law § 64 (2) is without merit. Matter of Connors v Town of Colonie, 516058, 3rd Dept 7-3-13

 

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Arbitrator Exceeded Powers Afforded by Collective Bargaining Agreement Re: Time Limitations for Filing Grievances

In affirming Supreme Court’s determination that an arbitrator had exceeded a limitation on his power enumerated in the collective bargaining agreement (CBA), the Third Department explained:

It is well established that an arbitrator’s award is largely unreviewable….  However, such an award may be      vacated upon a showing that it “‘violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on  the arbitrator’s power'” ….  Here, Supreme Court properly concluded that the arbitrator exceeded a specifically enumerated limitation on his power by failing to recognize the grievance and arbitration procedures as outlined in the CBA and, more particularly, the time limitation for filing grievances that is contained therein.  Matter of Adirondack Beverages Corporation…, 516022, 3rd Dept 7-3-13

 

Career-Related Relocations Did Not Result in Change of Domicile

In affirming Supreme Court’s finding that the plaintiff in a divorce action met the durational residency requirements of Domestic Relations Law section 230, in spite of several career-related relocations, the Third Department wrote:

Given the absence of any proof that plaintiff intended to abandon her existing New York domicile and adopt any of the temporary locations as her new  permanent  home,  neither the fact that the parties – of necessity or convenience – established homes  and  all of the accouterments of family and  community  life in each location where  defendant’s career took the family nor that they generally paid income  taxes as residents of the respective locations demonstrates a change of domicile. Black v Black, 516094, 3rd Dept 7-3-13

 

Neglect Based on Failure to Provide Child with Cleft Palate Proper Nutrition

The Third Department affirmed Family Court’s finding of neglect based upon the father’s failure to ensure that the child (born with a cleft palate) was receiving adequate nutrition and medical care.

Here, the record establishes that the father attended many of the  child’s pediatric appointments,  as  well as  the  evaluation conducted by the feeding and swallowing specialist, during the course of which medical professionals repeatedly explained that the child’s cleft palate made  it difficult for her to feed, stressed the importance of ensuring that the child was fed consistently and gained weight at a steady rate and offered instruction and specific recommendations for different feeding techniques. Matter of Mary YY, 514692, 3rd Dept 7-3-13

 

Violation of Inmate’s Right to Call a Witness Required Expungement

The Third Department expunged a disciplinary determination because the inmate’s right to call a witness was violated and a rehearing was not possible:

Although  [the] witness  agreed  to testify, the  Hearing Officer denied  the  request  for this witness  on  the  basis that the conversation  took  place  after the  incident that is the  subject of the administrative segregation recommendation. Under the circumstances  presented,  we  conclude  that the  testimony  of this witness  was  not  irrelevant and thus the request  was  improperly denied….  As such, the Hearing Officer’s ruling constituted a violation of petitioner’s conditional, regulatory right to call witnesses …. Matter of DeBoue, 515486, 3rd Dept, 7-3-13

 

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Denial of Inmate’s Request for Evidence and Failure to Include Confidential Testimony Required Annulment

In annulling the disciplinary determination, the Third Department noted the Hearing Officer’s failure to explain the denial of the inmate’s request for evidence and failure to include confidential testimony which was relied upon:

Inasmuch as the record before us fails to include any  explanation for the denial of the requested evidence, which may have prejudiced his defense, and is incomplete in that it does not include the confidential testimony taken and relied upon by the Hearing Officer in reaching the determination, we  are unable to undertake meaningful review… .  Matter of Gallagher, 514650, 3rd Dept 7-3-13

 

Failure to Transcribe Entire Hearing Required Annulment

In annulling the disciplinary determination, the Third Department explained that the apparent failure to transcribe the entire tape recording of the hearing made it impossible to know whether evidence favorable to the inmate’s defense was presented:

It appears from the transcript that only the first side of the audiotape was transcribed as the stenographer made a notation, “[s]econd side of tape not audible-runs on fast speed only,” and then abruptly ended the transcript.    We cannot ascertain what was on the second side of the tape or if it would have been beneficial to petitioner’s defense… ..Notably, the transcript does not reveal the disposition of petitioner’s request to have his wife and family members testify as witnesses at the hearing. In view of this, and given the potentially significant testimony that may be missing, the determination must be annulled… . Matter of Farrell, 514504, 3rd Dept 7-3-13

 

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Finding that No Environmental Impact Statement (EIS) Needed for Proposed Wind Turbines Reinstated; But Denial of Special Use Permit Upheld

The Third Department reversed Supreme Court’s annulment of a negative declaration with respect to the need for an environmental impact statement (EIS) for a proposed wind turbine installation, but upheld Supreme Court’s denial of a special use permit based on violations of the Town Law’s public hearing and notice requirements (among other grounds).  In describing the review standards for the respondent planning board’s determination an EIS was not required, the Third Department wrote:

….[W]e begin our analysis by noting that an environmental impact statement (hereinafter EIS) is required “‘on any action . . . which may have a significant effect on the environment'”….   A  type I action, such as the project here, “carries with it the presumption that it is likely to have a significant adverse impact on  the environment” (6  NYCRR  617.4 [a] [1];…).   However,  when  a lead agency  “‘determine[s] either that there will be no adverse environmental impacts or that the identified adverse environmental impacts will not be significant,'” it may  issue a negative declaration and, in such instance, no  EIS is required…. “Although the threshold triggering an EIS is relatively low”…, judicial review of a negative declaration is limited to whether “the [lead] agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination”….  In this regard, “[i]t is not the province of the courts to second-guess thoughtful agency decision making and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence”…. Matter of Frigault v Town of Richfield Planning Board, et al, 515528, 3rd Dept 6-27-13

 

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Plaintiffs Demonstrated They Acquired Title to Property with Cabin by Adverse Possession

The Third Department affirmed Supreme Court’s grant of summary judgment to plaintiffs in their RPAPL article 15 action to quiet title under the doctrine of adverse possession.  The owner of the property, which included a cabin, died intestate and plaintiffs, who allegedly were close personal friends with the owner’s brother (who used the cabin and also died intestate), took possession of the property.  The Third Department wrote:

…[T]o successfully acquire title by adverse possession, plaintiffs must establish by clear and convincing evidence that their occupation of the property was “(1) hostile and under a claim of right . . ., (2) actual, (3) open and notorious, (4) exclusive, and  (5) continuous for the statutory period (at least ten years)” … .  Additionally, because plaintiffs’ “claim was not founded upon a written instrument describing the boundaries of the property,” they were required to “establish that the land was usually cultivated or improved or protected by  a substantial inclosure….In support of their motion for summary judgment, plaintiffs submitted evidence that, since the time of [the owner’s brother’s] death in 1976, they have enjoyed the exclusive use and possession of the property, have paid the taxes and made repairs upon the property, and have permitted various family members to use and reside upon the property.  In 1990, plaintiffs improved the cabin to make it suitable for year-round use, and have used it throughout the year since that  time.  According to plaintiffs, no one  else has had  possession or control of the property since they first took it more than 35 years ago.  Quinlan v Doe, 516140, 3rd Dept 6-27-13

 

Validity of Easement for Access to Lake Affirmed

In affirming Supreme Court’s determination that the relevant deed allowed recreational use of a parcel of land (parcel 4) for access to a lake, and Supreme Court’s order to remove a fence which blocked access, the Third Department explained the relevant legal principles as follows:

“[T]he construction of a  deed, including  any  easements  set  forth  therein,  is generally  a question of law for the court, with extrinsic evidence being considered only if there are ambiguities”….  As owners  in the subdivision, plaintiffs’ deed sets forth various rights regarding parcel 4, including swimming privileges, docking privileges and – as relevant here – recreational  privileges. The recreational right is broadly set forth as having “the right to use, for recreational purposes, Parcel #4.” Significantly, this is not a  right merely  to cross parcel 4 to reach the lake. Consistent with the expansive right granted, subdivision owners exercised the recreational right in sundry manners, such as having picnics in various places on parcel 4 or placing chairs on the parcel to enjoy the view. Once on parcel 4, there is no relevant limitation – other than reasonableness and safety – as to where on the parcel subdivision owners  exercised their recreational rights (see generally Bruce and Ely, The Law of Easements and Licenses in Land, Location and Dimensions  of  Easements  §  7:3).  Jankowski v Lake Forest Homeowners, Inc, 516015, 3rd Dept 6-27-13

 

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