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No Investment Tax Credit for Company which Delivered Natural Gas, as Opposed to Processing or Manufacturing a Product

The Third Department upheld the NYS Tax Appeals Tribunal’s determination that the petitioner, Brooklyn Union Gas Company, was not entitled to an investment tax credit (ITC) because it was in the business of delivering natural gas, not producing or processing a product as those terms are construed for an ITC under the Tax Law:

The record amply supports, for purposes of our limited review, the Tribunal’s determination that petitioners’ integrated system  was  primarily one  of  distribution and  delivery  rather than processing or manufacturing.  The  vast  majority  of petitioners’ 11,000-mile system, both  in terms  of size and  cost, is comprised of pipes and  mains  through  which  natural gas  flows.  No material change occurs to the natural gas while in the pipes and mains, as these serve as the primary means for delivering the product. Viewing the system as a whole, the modifications made by petitioners to the gas  –  while important –  do  not  result in a significant change  in the product.  Matter of Brooklyn Union Gas Company v NYS Tax Appeals Tribunal, 514825, 3rd Dept, 6-6-13

 

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Lane Abutting Properties Was Not Owned by Property-Owners

The Third Department upheld Supreme Court’s determination that the owners of property which abutted a street or lane did not privately own the lane, because no map was referenced in the relevant deeds, and because of the public use of the lane for more than ten years and maintenance of the street by the village:

Fiebelkorn [a leading case] and its progeny stand for the general proposition that “[w]hen an owner of property sells a lot with reference to a map, and the map shows that the lot abuts upon a street, the conveyance presumptively conveys fee ownership to the center of the street on which the lot abuts, subject to the rights of other lot owners and their invitees to use the entire area of the street for highway purposes”….    This general proposition of law is of no aid to plaintiffs, however, in view of the fact that, among other things, plaintiffs’ deeds contain no reference to a map. * * *

Here, plaintiffs argue that the lane cannot be deemed a village street because (a) it does not qualify as a public street by dedication (see Village Law § 6-610), (b) it does not appear on the state Department of Transportation’s inventory of local roads lying within the Village’s jurisdiction, and (c) the  Village  “has  never  maintained”  it.  Plaintiffs’ dedication argument is misplaced because…dedication is not the sole means by which a village street may be created (see Village Law  § 6-626). …  Kingsley v Village of Cooperstown, 515535, 3rd Dept, 6-6-13

 

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Qualified Privilege in Defamation Action Against School District Explained

In the course of a lengthy decision dealing with many issues raised by a defamation/stigma-plus proceeding brought by a school district employee against a school district, the Third Department explained qualified privilege in this context. The plaintiff was a coach whose boyfriend [Broxmeyer] had raped a student at another school.  Plaintiff alleged that defendant Arbes, principal of the high school, “stated at a meeting with several staff members that plaintiff should avoid private one-on-one  conversations with students and should take a leave of absence ‘for the safety of the students.’ “.  The Third Department wrote:

Qualified privilege provides a  complete defense to a claim of slander, and attaches to an otherwise defamatory statement “made to persons who have some common interest in the subject matter” … .  A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable'”….The  defense does  not apply, however,  “where the motivation for making such statements was spite or ill will (common-law malice) or where the ‘statements [were] made with [a] high degree of awareness of their probable falsity’ … .Arbes made the statement at issue at a meeting where she, plaintiff and three other individuals were present. Plaintiff acknowledges that Keeler, the junior varsity field hockey coach and union president, had a common interest in the subject, as did a union employee who was present.  The third individual may have had the same interest because Keeler averred that the individual was a union representative. Additionally, she was a guidance counselor, and Arbes averred that guidance counselors were being made available to students who may have had difficulty dealing with the situation surrounding  Broxmeyer’s arrest, the police investigation and plaintiff’s suspension and later termination.  As all of the persons present for the meeting had a common interest in the subject matter and the record lacks any evidence of malice, Supreme Court correctly determined that Arbes’ statement at the meeting was not actionable based on the qualified privilege.  Wilcox v Newark Valley Central School District, 515906, 3rd Dept, 6-6-13

 

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Failure to Contest Referral of Support-Arrearages to Tax Department Precluded Further Court Action

The Third Department determined plaintiff’s failure to administratively challenge the referral of his support-arrearages case to the Department of Taxation and Finance and the subsequent issuance of a tax warrant (pursuant to provisions of the Social Services Law) barred his action against the Department in Supreme Court.  Plaintiff was seeking a declaratory judgment and injunctive relief after the Department seized his vehicles to satisfy the judgment for support arrearages.  Koziol v State of New York…, 514767, 3rd Dept, 6-6-13

 

Wife Deemed Not Entitled to Maintenance

In reversing Supreme Court and determining the wife was not entitled to maintenance, the Third Department wrote:

While “[t]he amount and duration of [a maintenance] award are addressed to the sound  discretion of the trial court” (…see Domestic  Relations Law  §  236  [B] [6] [a]), “this Court’s authority is as broad as Supreme  Court’s in resolving questions of maintenance”….  Accordingly, we  find that under  the circumstances of this case – where  the marriage was not of particularly long duration, the parties had no  children, the wife has stable employment  that provides her a significant salary, the  wife  is not  losing  retirement  or  health benefits and  the parties’ predivorce standard of living was falsely inflated by  overextended lines of credit – the statutory factors do  not support an  award  of maintenance  (see Domestic Relations Law  §  236  [B] [6] [a] [1]-[20]…).  McCaffrey v McCaffrey, 515718, 3rd Dept, 6-6-13

 

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30-Day Time-Limit for Bringing Article 78 Proceeding Pursuant to Public Health Law Runs from Date of Determination, Not Date of Written Notice of Determination

The Third Department upheld the Appalachian Regional Emergency Medical Services Council’s determination that petitioner’s Article 78 action was untimely. Although the proceeding was brought within 30 days of the written notice of the Council’s determination, and the Council had a policy of issuing written notice, the Third Department determined the 30 day time-limit started when the determination was made, not when written notice was received:

Public Health Law  §  3008  (5) requires that an appeal be taken within 30 days of when a regional council makes its determination, and there is no statutory requirement that the determination be  in writing (see Public Health Law § 3008 [4]… .  Matter of Richmondville Volunteer Emergency Squad, Inc v NYS Department of Health…, 515688, 3rd Dept, 6-6-13

 

Nature of Motion to Resettle Explained

In dismissing the appeal from the denial of a motion to resettle or clarify, the Third Department explained the nature of a motion to resettle and some aspects of motions to reargue and renew:

Petitioner’s motion was one to resettle and/or clarify Supreme Court’s prior judgment regarding back pay. Such a motion is designed “not for substantive changes [in, or to amplify a prior decision of, the court], but to correct errors or omissions in form, for clarification or to make the [judgment] conform more accurately to the decision” … .  Such  motions  rest on  the inherent power  of courts to  “‘cure mistakes,  defects  and  irregularities that  do  not  affect substantial rights of [the] parties'” Here, petitioners’ motion  sought, unsuccessfully, to amplify and substantively amend, not merely to clarify, Supreme Court’s prior judgment  … Under established precedent, no appeal lies from the “‘denial of a motion to resettle [or clarify] a substantive portion of an order'” … .Moreover, even were we to view petitioners’ motion as one to reargue, which Supreme Court indicated would have been untimely (see CPLR 2221 [d] [3]), the motion was not “identified specifically as such” (CPLR  2221  [d] [1]), as required, and, in any event, no appeal lies from the denial of a motion to reargue ….  The motion likewise was not denominated as one seeking renewal (see CPLR 2221 [e] [1]) and was not based upon “new facts” or “a change in the law” (CPLR 2221 [e] [2]).  Accordingly, the appeal must be dismissed.  Matter of Torpey v Town of Colonie, 515902, 3rd Dept, 6-6-13

 

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In Court of Claims Case, Inability to Prove State Was Served with Notice of Claim Required Dismissal

In affirming the Court of Claims’ dismissal of a claim because claimant was unable to demonstrate the state was properly served, the Third Department explained the relevant law as follows:

“A claimant seeking to recover damages  for personal injuries caused by  the negligence . . . of an  officer or employee  of [defendant] must  file and  serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof”….  Both filing with the court and service upon the Attorney General must take place within the relevant statutory period … and, as suits against defendant are permitted only by virtue of its waiver of sovereign immunity and  are in derogation of the common law, “the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction”….   Notably, “a defect in subject matter jurisdiction may be raised at any time, even for the first time  on appeal, because it relates to the competence of the court to consider [the] matter”… .and, therefore, such defect “cannot be overlooked or remedied by either waiver or estoppel” … .  Caci v State of New York, 515844, 3rd Dept, 6-6-13

BICYCLES

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Notice of Claim (Pursuant to Court of Claims Act) Not Specific Enough

The Third Department upheld the Court of Claims’ dismissal of a claim because the notice of claim was not specific enough.  In describing the statutory criteria, the Third Department wrote:

Pursuant to Court of Claims Act § 11 (b), a claim must set forth the nature of the claim, the time when and place where it arose, the damages or injuries and  the total sum  claimed. “Because suits against [defendant] are allowed only by [defendant’s] waiver of sovereign immunity and  in derogation of the common law, statutory requirements conditioning suit must be strictly construed”….   Although “absolute exactness” is not required…, the claim must “‘provide a  sufficiently detailed  description  of  the  particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and  extent of its liability'” … .  Morra v State of New York, 515751, 3rd Dept, 6-6-13

NEGLIGENT SUPERVISION, EMPLOYEE

Question of Fact Re: Duty Owed to Developmentally Disabled Plaintiff for Injury Incurred After Plaintiff Left Facility for a Bus Ride Home

In affirming the denial of summary judgment to the defendant, which provided services to developmentally disabled people, the Third Department determined there was a question of fact about whether defendant owed plaintiff a duty and whether the breach of that duty was the proximate cause of plaintiff’s injuries.  Plaintiff was placed on a bus to take her home from defendant’s premises, after plaintiff’s mother had instructed a respite worker that plaintiff should be driven home.  Plaintiff was struck by a car as she crossed the road after getting off the bus.  The Third Department wrote:

… [W]e agree with Supreme Court that summary judgment in defendant’s favor is precluded by  material issues of fact as to the degree  of care that  defendant  owed  to  plaintiff and  its compliance  with that duty… .  Further, given the record evidence regarding defendant’s knowledge of plaintiff’s abilities and limitations, we  find that it did not establish as a matter of law that its conduct in sending plaintiff to an unsupervised location along a highway was not the proximate cause of her injuries or that plaintiff’s actions  constituted  an  intervening  cause  ….  Warley v Grampp, et al, 515724, 3rd Dept, 6-6-13

PEDESTRIANS, TRAFFIC ACCIDENTS

 

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