You are here: / Third Department

Tag Archive for: Third Department

,

PETITIONER OPERATED HIS BARBER SHOP OUT OF HIS HOME IN MARCH 2020 AFTER THE GOVERNOR ORDERED BARBER SHOPS CLOSED DUE TO COVID-19; REVOCATION OF PETITIONER’S BARBER LICENSES WAS DEEMED TOO SEVERE A PENALTY; THERE WAS A DISSENT (THIRD DEPT). ​

The Third Department, over a dissent, determined the revocation of petitioner’s barber operator license and barber shop license was too severe a penalty for violating the state’s COVID-19 policy in early 2020. After the governor ordered barber shops closed due to COVID, petitioner opened his barber shop in his home in March 2020. He closed his home operation in May 2020 when he was hospitalized with COVID:

The Secretary is empowered to impose a range of penalties for a barber’s misconduct, with a reprimand being the least severe, then a fine of up to $500, then license suspension and, most seriously, license revocation (see General Business Law §§ 441 [a]; 443). As noted above, petitioner has been a licensed barber since 1963 and, before the proceedings at issue here, had a clean disciplinary record for nearly six decades. The ALJ found that petitioner “sincerely believed” that he was entitled to reopen his shop in March 2020 and was remorseful for having done so, as well as that he did not knowingly work while suffering from COVID-19. Further, although petitioner failed to operate in accordance with COVID-19 guidelines after he was permitted to reopen, it appears that such resulted from his lack of familiarity with the particulars of the guidelines, and it must be noted that those guidelines and other COVID-19 restrictions had been lifted by the time of the Secretary’s determination … . It is accordingly unclear how petitioner’s conduct during the COVID-19 emergency would pose an ongoing threat to the public that would warrant the maximum sanction of permanently barring him from performing the work he had otherwise done without incident for almost 60 years. “Under these circumstances, and considering petitioner’s otherwise unblemished record, revocation was too severe a penalty,” and we therefore “remit to [the Secretary] to impose a less severe penalty” … . Matter of Lalima v New York State Dept. of State, 2023 NY Slip Op 01121, Third Dept 3-2-23

Practice Point: Here revocation of petitioner’s barber licenses was deemed too severe a penalty. After the governor ordered barber shops closed in March 2020 due to COVID, petitioner continued cutting hair in his home.

 

, , ,

AN ALBANY LOCAL LAW ADDED RESTRICTIONS TO EVICTION PROCEEDINGS AND RENT INCREASES WHICH ARE NOT IN THE STATE’S REAL PROPERTY ACTIONS AND PROCEEDINGS LAW AND REAL PROPERTY LAW; THE LOCAL LAW WAS THEREFORE PREEMPTED BY THE STATE LAW (CONFLICT PREEMPTION) (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Clark, determined the Albany Local Law governing evictions conflicted with the state Real Property Actions and Proceedings Law and Real Property Law and was therefore preempted by state law. The entire Local Law F section 2 was nullified. Local Law F section 2 added sections 30-324 through 30-331 to the Code of the City of Albany:

We agree with Supreme Court that Local Law F § 2 is preempted by state law. To that end, the Code of the City of Albany § 30-327 requires a landlord seeking to evict a tenant to prove the additional element of “good cause,” which grounds are enumerated in the Code of the City of Albany § 30-328. This additional element contravenes the statutory construction of RPAPL 711, which permits a landlord to seek eviction following the expiration of a tenant’s lease or following a tenant’s default on rent. By adding an element, the Code of the City of Albany §§ 30-327 and 30-328 “prohibit[ ] conduct specifically permitted by State law or impose[ ] restrictions on rights granted by the State”… . Similarly, the Code of the City of Albany §§ 30-327 and 30-328 contradict Real Property Law § 228, as they require a landlord seeking to evict a tenant at will or by sufferance who has provided 30 days’ notice to also establish good cause for the eviction. Further, the Code of the City of Albany § 30-328 interferes with a landlord’s right to increase rent in compliance with Real Property Law § 226-c, as it imposes the additional requirement that a landlord must rebut a presumption that a rent increase of 5% or more is unconscionable. Therefore, despite defendants’ good intentions, the Code of the City of Albany §§ 30-327 and 30-328 impose restrictions on rights granted to landlords by state law and, thus, Supreme Court properly declared those provisions nullified by conflict preemption … . Pusatere v City of Albany, 2023 NY Slip Op 01124, Third Dept 3-2-23

Practice Point: Here an Albany Local Law added restrictions to eviction proceedings and rent increases which are not in the state’s Real Property Actions and Proceedings Law and Real Property Law. The Local Law was therefore preempted by the state law (conflict preemption). Ultimately the entire Local Law was nullified.

 

, ,

FAMILY COURT SHOULD NOT HAVE DISMISSED FATHER’S MODIFICATION OF CUSTODY PETITION WITHOUT HOLDING A BEST INTERESTS HEARING, SHOULD HAVE ACCEPTED THE FACTS ALLEGED IN THE PETITION AS TRUE, AND SHOULD NOT HAVE RELIED ON UNSWORN INFORMATION FROM THE ATTORNEYS (THIRD DEPT). ​

The Third Department, reversing Family Court, determined father’s petition for a modification of custody should not have been dismissed without holding a best interests hearing. The Third Department noted that Family Court should have accepted the facts alleged in the petition as true and should not have relied on unsworn information provided by the attorneys:

… [F]ather’s petition sufficiently alleged … changed circumstances that, if established at a hearing, would entitle him to a best interests review, including that the mother had thwarted the electronic communication to which he was entitled … , failed to keep him informed of certain health information pertaining to the child and, upon information and belief, was found to have neglected the child … . Even if such circumstances do not ultimately result in an award of joint legal custody as sought by the father, his petition also sought increased visitation and unsupervised parenting time. These changed circumstances, if established, would support a best interests review to determine whether such relief is warranted based upon the totality of the evidence. Matter of Ryan Z. v Adrianne AA., 2023 NY Slip Op 01032, Third Dept 2-23-23

Practice Point: In determining whether a best interests hearing is required when a petition for modification of custody is filed, the facts alleged must be accepted as true. The judge here should not have relied on unsworn information from the attorneys.

 

,

IN THIS OIL SPILL CLEAN UP SUIT AGAINST THE PROPERTY OWNER BROUGHT UNDER THE NAVIGATION LAW, THERE IS NO STATUTE PROHIBITING THE STATE FROM SEEKING INDEMNIFICATION FOR FUNDS EXPENDED FROM THE ENVIRONMENTAL RESTORATION PROGRAM FUND PURSUANT TO THE ENVIRONMENTAL CONSERVATION LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the complaint seeking reimbursement of oil spill clean up costs from the defendant property owner should not have been dismissed. Defendant argued the state could not seek reimbursement under the Navigation Law for funds expended from the Environmental Restoration Program Fund pursuant to the Environmental Conservation Law. The Third Department found no support for the argument in the statutes:

Nothing in the Navigation Law prohibits plaintiff from seeking indemnification for funds expended from sources other than the Oil Spill Fund. Moreover, the Environmental Conservation Law requires the state to seek recovery of the funds under any statute (see ECL 56-0507 [2]). * * *

… “[T]he state of New York and any of its political subdivisions or agents” (Navigation Law § 172 [14]). Additionally, the Legislature imposed strict liability against “[a]ny person who has discharged petroleum . . . without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained” (Navigation Law § 181 [1] … ). The language of the statute does not limit recovery solely to the Oil Spill Fund. Rather, the fund simply serves as a possible means to effectuate the statute. “[B]arring plaintiff from seeking to hold defendant strictly liable for the [remediation] expenditures would thwart the plain language of Navigation Law § 181, as well as the express purposes of Navigation Law article 12 …”. State of New York v Alfa Laval Inc., 2023 NY Slip Op 01034, Third Dept 2-23-23

Practice Point: Here the state sought recovery of oil spill clean up costs from the defendant property owner. The defendant argued the state could not be indemnified for funds expended from the Environmental Restoration Program fund (pursuant to the Environmental Conservation Law) by suing under the Navigation Law, which has its own Oil Spill Fund. The Third Department found no such statutory restriction.

 

, ,

IN THIS DIVORCE ACTION, THE SETTLEMENT AGREEMENT STATED THE WIFE’S INCOME WAS WELL BELOW THE FEDERAL POVERTY LEVEL YET SHE WAIVED SPOUSAL SUPPORT; GENERAL MUNICIPAL LAW 5-311 MAY, THEREFORE, HAVE BEEN VIOLATED; ALTHOUGH THE AGREEMENT AS A WHOLE WAS NOT UNCONSCIONABLE, THE MATTER WAS SENT BACK TO ALLOW THE JUDGE TO ENQUIRE ABOUT THE WAIVER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court in this divorce action, determined a portion of the settlement agreement may violate the General Municipal Law and sent the matter back for further inquiry by the judge. The wife’s income is well below the federal poverty guidelines yet she waived spousal support:

General Obligations Law § 5-311 prohibits spouses from contracting to dissolve a marriage and “relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge …”. * * *

… [A]rticle four of the settlement agreement, concerning spousal support, sets forth the wife’s income as $11,446, which is well below the applicable federal 2020 poverty guidelines … . As such, there is a question as to whether this provision is in violation of General Obligations Law § 5-311 in that the wife “is likely to become a public charge.” Because of this, we find that Supreme Court erred when it failed to make an inquiry into the circumstances surrounding the wife’s waiver of spousal support … .Majid v Hasson, 2023 NY Slip Op 01035, Third Dept 2-23-23

Practice Point: The settlement agreement in this divorce action was not unconscionable, but a provision may violate the General Municipal Law which prohibits agreeing to a level of support which will result in the wife becoming a public charge. The wife’s income is well below the federal poverty level, yet she waived spousal support. The matter was sent back for judicial inquiry into the waiver.

THE REASONS PROVIDED BY THE ZONING BOARD OF APPEALS FOR THE DENIAL OF A USE VARIANCE TO ALLOW CONSTRUCTION OF A SOLAR ARRAY WERE IRRATIONAL (THIRD DEPT). ​

The Third Department reversed Supreme Court and annulled the determination of the zoning board of appeals [ZBA] which denied a use variance to allow construction of a solar array by Source Renewables. The decision is fact-specific and cannot be fairly summarized here. The Third Department determined the reasons the board gave for finding certain criteria for a use variance were not met were irrational:

… [T]here is no basis in the record for the ZBA’s conclusion that Source Renewables failed to prove that the alleged hardship results from ” ‘unique conditions peculiar to and inherent in the property as compared to other properties in the zoning district’ ” or neighborhood … . … [T]he evidence before the ZBA established that the … parcel is poorly suited for residential development due its lack of access to public utilities…. . …

There is also no evidence in the record to support the ZBA’s conclusion that Source Renewables failed to satisfy the third criteria for a use variance — that the variance would not alter the essential character of the neighborhood. The ZBA acknowledged the negative SEQRA declaration, which …found that the … project would not impair the quality of aesthetic resources or of existing community or neighborhood character … , but ultimately relied upon the opinion of one of its members that the solar array would not be visually pleasing from certain vantage points, particularly in the fall and winter. …

… Supreme Court concluded that Source Renewables failed to prove that the alleged hardship was not self-created because it entered into the subject contract knowing its proposed project was prohibited. This was not the basis articulated by the ZBA … . …

… [T]he ZBA concluded that, because the property has not changed since [the seller] purchased it in 1963, any alleged hardship was self-imposed. This was an irrational reason for branding the hardship self-created. Although a hardship is considered self-created, for zoning purposes, where property is acquired subject to the restrictions from which relief is sought … , here, [the seller]  purchased the … parcel in 1963, and it was not until 1986 and 2018, respectively, that the Town adopted any zoning law … or regulated solar energy systems … . Matter of Source Renewables, LLC v Town of Cortlandville Zoning Bd. of Appeals, 2023 NY Slip Op 01036, Third Dept 2-23-23

Practice Point: Here the reasons provided by the zoning board of appeals for the denial of a use variance to allow construction of a solar array were deemed irrational.

 

,

THE SUBSTANCE FOUND ON PETITIONER-INMATE’S PERSON WAS NOT TESTED OR OTHERWISE IDENTIFIED AS A DRUG; THE DRUG POSSESSION AND DISTRIBUTION, AS WELL AS THE SMUGGLING, DETERMINATIONS ANNULLED (THIRD DEPT).

The Third Department, held the drug possession and distribution, as well as the smuggling, determinations should be annulled. A drug sniffing dog alerted to a substance on petitioner-inmate’s person but no testing or other identification of the substance was done:

At the prison disciplinary hearing, it was established that the suspected substance was not subjected to chemical testing, nor was there any evidence indicating that facility pharmacy or nursing staff inspected or visually identified the substance ,,, . Rather, the substance was visually identified as synthetic marihuana by the OSI K-9 officer. However, the regulation does not authorize an OSI officer to identify suspected substances as drugs. Similarly, testimony regarding the K-9 alerting to petitioner’s groin area did not suffice to comply with the regulation. While there was testimony that petitioner admitted that he possessed K2, this would, at most, establish a charge of possession of contraband, but not drug possession. Unlike a drug-related disciplinary charge, which requires compliance with the aforementioned identification procedures … , the prohibition on contraband merely depends on whether or not an item is authorized … . In light of the lack of compliance with regulatory procedures, the identity of the substance was not properly established …

As for the remaining charge of smuggling, this charge only requires that “any item” be smuggled in or out of the facility or from one area to another … , and does not require proof that the item was a drug or contraband. However, in finding petitioner guilty of this charge, the Hearing Officer expressly based his finding on the OSI K-9 officer’s conclusion that the substance was synthetic marihuana, and therefore must have been smuggled in from outside the facility. As noted above, this conclusion was flawed. Given that, and because there was no proof at the hearing that the substance in question was moved from one area to another, the finding as to this charge is also unsupported by substantial evidence and must be annulled. Matter of Then v Annucci, 2023 NY Slip Op 01037, Third Dept 2-23-23

Practice Point: The substance must be tested or otherwise identified by a professional as a drug before a drug possession or distribution determination against an inmate will be upheld.

, ,

HERE THE STUDENT WITH DISABILITIES WAS UNSUPERVISED IN GYM CLASS WHEN SHE WAS INJURED; THE DEFENDANT SCHOOL DISTRICT SUCCESSFULLY EXCLUDED EVIDENCE THAT MORE SUPERVISION OF THE STUDENT WAS NEEDED BECAUSE SUCH EVIDENCE PURPORTEDLY CONFLICTED WITH THE STUDENT’S “AMERICANS WITH DISABILITIES ACT 504 PLAN” (WHICH DID NOT CALL FOR EXTRA SUPERVISION) AND THEREFORE EXTRA SUPERVISION WOULD HAVE AMOUNTED TO DISCRIMINATION; THE THIRD DEPARTMENT REJECTED THE ARGUMENT FINDING THAT THE 504 PLAN DID NOT ACT AS A CEILING FOR THE LEVEL OF SUPERVISION TO BE AFFORDED THE STUDENT AND ORDERED A NEW TRIAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, reversing the judgment and ordering a new trial, determined expert evidence and lay-witness testimony should not have been excluded from this negligent-supervision-of-a-student trial. The student had some physical disabilities and a “504 plan” had been developed for her pursuant to the Americans with Disabilities Act (ADA). The plan did not explicitly call for extra supervision. The student was injured when she was practicing jumps in gym class while the teacher was working with other students. The school district successfully argued to the judge that any evidence that the “504 plan” was inadequate to protect the student amounted to discrimination because the plan did not call for extra supervision. That argument was rejected by the Third Department:

… [A] school district’s written 504 plan does not operate as a supervision ceiling in all respects and circumstances.The central purpose of Section 504 is to assure that students with disabilities receive equal treatment in relation to their peers … , that is, that they receive support, based on their individual needs, so that they may also meaningfully access a given educational experience … . This stands in stark contrast to defendant’s reliance upon federal antidiscrimination law as a shield from liability. Plainly put, if two kindergarteners have difficulty performing a skill in a mainstream physical education class, adequate support should be provided to both of them — not, illogically, only the one who does not have a 504 plan. Yet that is precisely what defendant’s argument devolves to. Jaquin v Canastota Cent. Sch. Dist., 2023 NY Slip Op 01039, Third Dept 2-23-23

Practice Point: Here the injured student had certain disabilities and the school district put in place a 504 Plan pursuant to the Americans with Disabilities Act to accommodate for her disabilities. The plan did not call for extra supervision. The student was injured while unsupervised in gym class. The school district successfully argued evidence that more supervision was needed conflicted with the 504 plan. The argument was rejected and a new trial ordered.

,

THE RECORD DID NOT SUPPORT THE FINDING THAT FATHER NEGLECTED THE CHILD BASED ON MOTHER’S DRUG USE WHEN SHE WAS PREGNANT; ALTHOUGH FATHER DID NOT REPORT MOTHER’S DRUG USE TO HER PROBATON OFFICER, FATHER MADE EFFORTS TO INTERVENE RE: MOTHER’S DRUG USE DURING THE PREGNANCY (THIRD DEPT).

The Third Department, reversing Family Court, determined the record did not support a finding that father (respondent) neglected the child based on mother’s drug use when she was pregnant:

Respondent argues that Family Court erred when it found that, knowing that the mother was abusing drugs while pregnant with the daughter, respondent failed to exercise a minimum degree of care when he failed to report the mother’s drug use to her probation officer In its decision, Family Court found that respondent made “some efforts to intervene as to the mother’s drug use,” by enrolling her in an inpatient drug treatment facility, attending drug treatment sessions and drug court proceedings with the mother and preventing her from residing with the son and limiting her contact with him. Indeed, the court stated that respondent had “failed to do the one thing that would have ensured that [the mother did] not have access to drugs while pregnant, reporting her to her probation officer,” and it found that this single failure constituted neglect. Under the circumstances of this case, we disagree.

Respondent testified that … he … learned that the mother had a warrant for her arrest due to her issues with probation. … [H]e and the mother agreed that the mother would engage in an inpatient treatment program to address her addiction and that she would then turn herself in to probation. … [F]our days after entering inpatient treatment, the mother signed herself out and absconded. … [P]etitioner failed to prove by a preponderance of the evidence that respondent failed to exercise a minimum degree of care required of a reasonable and prudent parent … . While respondent could have contacted the mother’s probation officer and reported her drug use, a warrant for the mother’s arrest was already in place, and respondent seemingly lacked any information to assist probation in locating her. Matter of Leo RR. (Joshua RR.), 2023 NY Slip Op 01041, second Dept 2-23-23

Practice Point: Father made efforts to intervene re: mother’s drug use during pregnancy. The record did not support a finding that father neglected the child because he did not report mother’s drug use to her probation officer.

 

THE MURDER SECOND DEGREE COUNTS MUST BE DISMISSED AS INCLUSORY CONCURRENT COUNTS OF THE MURDER FIRST DEGREE CONVICTION (THIRD DEPT).

The Third Department, affirming defendant’s convictions in this arson-murder case, noted that the two murder second degree counts were conclusory concurrent counts of the murder first degree count and must be dismissed:

… [T]he judgment must be modified, as the two counts of murder in the second degree upon which defendant was convicted are inclusory concurrent counts of the count of murder in the first degree, upon which he was also convicted (see CPL 300.40 [3] [b]). We therefore reverse his convictions for murder in the second degree and dismiss the corresponding counts in the indictment … . People v Truitt, 2023 NY Slip Op 01028, Third Dept 2-23-23

Practice Point: Here the murder second degree counts were dismissed as inclusory concurrent counts of murder first degree.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy