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THE PLANNING BOARD’S GRANT OF A SPECIAL USE PERMIT AND SITE PLAN APPROVAL FOR CONSTRUCTION OF A BARN TO BE USED TO HOST SEASONAL PARTIES SHOULD NOT HAVE BEEN ANNULLED; THE PLANNING BOARD CONSIDERED ALL THE FACTORS REQUIRED BY THE TOWN CODE AND FOUND THERE WOULD BE NO SIGNIFICANT IMPACT ON TRAFFIC OR NOISE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the planning board’s granting of a special use permit and approval of respondent’s site plan was not arbitrary and capricious and should not have been annulled:

Respondent Kenneth Bailey applied for a special use permit and site plan approval so that he could construct a barn on his property that would operate as a seasonal party venue. Following hearings, respondent Planning Board of the Town of Sand Lake (hereinafter the Board) issued resolutions adopting a negative declaration under the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]) and granting Bailey’s application with conditions. Petitioners — a neighborhood association and individual members thereof — commenced this proceeding seeking to annul the Board’s resolutions. * * *

The Board’s resolutions reflect that it considered the relevant criteria as set forth in Town of Sand Lake Zoning Code § 250-80. The Board noted the various uses permitted as of right by the zoning code and found that these uses “may be more intense and affecting” than Bailey’s proposed party venue. The Board relied on the engineering report in concluding that there would be no significant impact to traffic or noise. The record also discloses that the Board entertained comments derived from multiple public hearings. In view of the foregoing, and taking into account that “[a] municipality ‘retains some discretion to evaluate each application for a special use permit, to determine whether applicable criteria have been met and to make commonsense judgments in deciding whether a particular application should be granted'” … . Matter of Barnes Rd. Area Neighborhood Assn. v Planning Bd. of the Town of Sand Lake, 2022 NY Slip Op 04205, Third Dept 6-30-22

Practice Point: Here the respondent requested a special use permit and a site plan approval for the construction of a barn to host seasonal parties. The planning board issued the special permit and the approval. Supreme Court annulled the planning board’s determination. The Third Department reversed, finding that the planning board had properly considered the environmental impact and the factors listed in the town code. Therefore the board’s decision was not arbitrary or capricious.

 

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THE NYS GAMING COMMISSION’S DUTIES TO INSPECT HORSES AND EQUIPMENT BEFORE A HARNESS RACE ARE PROPRIETARY, NOT GOVERMENTAL, IN NATURE; THEREFORE ORDINARY NEGLIGENCE PRINCIPLES APPLY AND THE IMMUNITY DEFENSE IS NOT AVAILABLE; DURING THE RACE A HORSE FELL AND CLAIMANT’S HORSE COLLIDED WITH THE FALLEN HORSE; THERE ARE QUESTIONS OF FACT ABOUT THE SAFETY OF THE FALLEN HORSE’S EQUIPMENT AND WHETHER THE HORSE EXHIBITED INDICATIONS HE WAS LAME; THERE ARE QUESTIONS OF FACT ABOUT THE APPLICABILTY OF THE ASSUMPTION OF THE RISK DOCTRINE; REGULATIONS RE: THE INSPECTION OF HORSES AND EQUIPMENT ALLOWED CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION TO BE IMPUTED (THIRD DEPT). ​

The Third Department, in a comprehensive decision which should be consulted on the issues of governmental immunity, assumption of the risk and constructive notice, reversing Supreme Court, determined the New York State Gaming Commission was exercising a proprietary, not governmental, function when its employees inspected a harness-racing horse’s (Mister Miami’s) equipment and failed to scratch the horse, which exhibited indications he was “lame,” from the upcoming race. Claimant was injured when, during the race, claimant’s horse collided with Mister Miami after Mister Miami fell. Because the state’s alleged negligence stemmed from a proprietary function, ordinary negligence principles applied and there was no need to show a special relationship between claimant and the state, and the governmental immunity affirmative defense was not available. There were questions of fact whether the assumption-of-the-risk doctrine applied because the state may have acted to unreasonably increase the risk. As for notice, the regulations requiring the state to inspect the horses and equipment allowed the state’s constructive notice of the dangerous condition to be imputed:

… [T]he duties of [the state’s] officials are fundamentally intertwined with the operation of each and every race and, while such tasks may tangentially relate to the overall function of ensuring fair and honest gambling in this state, they are more specifically directed to the goal of ensuring the safety of the participants in those races … . … [I]t is apparent that at least part of the Commission’s role in harness racing is to work hand in hand with the private racing industry to further the state’s goal of “deriv[ing] a reasonable revenue for the support of government” … . * * *

… [W]e find that there are triable issues as to whether Commission officials adequately performed their duties and whether their alleged failures unreasonably increased the risk beyond a level generally inherent in harness track racing … .  …

Because [the inspection] duties were imposed upon the Commission officials by regulation, constructive notice of Mister Miami’s health and equipment issues that would have been observable during those inspections may be imputed … . Bouchard v State of New York, 2022 NY Slip Op 04202, Third Dept 6-30-22

Practice Point: This opinion has valuable discussions of; (1) how to analyze whether a government is exercising a governmental function (to which the “special relationship” and “governmental immunity” doctrines apply) or a proprietary function (to which ordinary negligence principles apply); (2) the assumption of the risk doctrine; and (3) the imputation of constructive notice when there are regulations mandating inspections which allegedly would have revealed the dangerous condition. Here claimant was injured during a harness race when his horse collided with a fallen horse. The complaint alleged the NYS Gaming Commission did not inspect the fallen horse and the fallen horse’s equipment prior to the race as required by the relevant regulations.

 

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THE CONTRACTUAL ARRANGEMENTS MADE WITH APARTMENT OWNERS AND SERVICE PROVIDERS BY THE NYC DEPARTMENT OF HOMELESS SERVICES (DHS) DID NOT CREATE “ILLUSORY TENANCIES” SUCH THAT THE PREVIOUSLY HOMELESS TENANTS WERE ENTITLED TO VACANCY LEASES WHEN THE DHS CONTRACTS WERE TERMINATED (SECOND DEPT).

The Second Department, over a dissent, determined that the previously homeless appellants who had been placed in apartments did not demonstrate the arrangement constituted an “illusory tenancy” such that the appellants were entitled to vacancy leases. The owners of the apartments were entitled to possession after their contracts with the NYC Department of Homeless Services (DHS] were terminated:

… “[A]n illusory tenancy is defined generally as a residential leasehold created in a person who does not occupy the premises for his or her own residential use and subleases it for profit, not because of necessity or other legally cognizable reason”… . An illusory tenancy scheme exists, for example, where the “prime tenant” rents a rent-stabilized apartment, which it never intends to occupy, and then subleases it for an amount in excess of the legal rent so as to make a profit … . * * *

The leases in the present case did not lack a legitimate purpose. The subject premises were leased to, and by, both CAMBA and We Always for the “legally cognizable reason” of providing transitional housing in accordance with the terms of the Cluster Transitional Residence Program run by the City …  The leases entered into by CAMBA and We Always both specified that the agreement was entered into “for the sole purpose of providing transitional housing and services in connection with the DHS Agreement,” and the leases expired by their terms upon termination of the DHS [NYC Department of Homeless Services] Agreement (if not terminated earlier). * * *

… [T]he owners demonstrated, prima facie, that the appellants were not entitled to vacancy leases and related relief because illusory tenancies were not created to deprive them of the benefits of rent stabilization. Sapp v Clark Wilson, Inc., 2022 NY Slip Op 04184, Second Dept 6-29-22

Practice Points: The previously homeless tenants were not entitled to vacancy leases when the relevant contracts with the NYC Department of Homeless Services [DHS} were terminated. The tenants argued the contractual arrangements between the apartment owners and DHS created “illusory tenancies.” An “illusory tenancy” is created, for example, when a party leases a rent-stabilized apartment for the sole purpose of subletting it for a profit. Here the leases served a legitimate purpose, the provision of transitional housing.

 

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BECAUSE THE ISSUE WAS NOT PRESERVED BY OBJECTION, THE MAJORITY DID NOT CONSIDER WHETHER COUNTY COURT MADE A PROPER INQUIRY OF A JUROR WHO, DURING DELIBERATIONS, FOR THE FIRST TIME, REVEALED SHE WAS A RAPE VICTIM; DEFENDANT WAS CHARGED WITH RAPE; THE DISSENTING JUDGE WOULD HAVE CONSIDERED THE ISSUE IN THE INTEREST OF JUSTICE AND ORDERED A NEW TRIAL (THIRD DEPT).

The Third Department refused to consider whether County Court properly handled an “outburst by a juror during deliberations” because the issue was not preserved by objection. The dissenting justice would have considered the issue in the interest of justice and ordered a new trial:

From the dissent:

The foreperson said it best — “how did you get this far if that’s the case? . . . you shouldn’t be here.” The foreperson said this to one of the jurors, who was in seat No. 6, after this juror revealed during deliberations that she was a victim of rape — one of the crimes for which defendant was being tried. Juror No. 6 had not disclosed this fact during voir dire or on the juror questionnaire. In any event, County Court proceeded to question each juror, including juror No. 6, to determine if any of them was grossly unqualified. Such inquiry, however, was not “probing and tactful” … and, consequently, the court failed to ensure that the finding of guilt was the product of a fair and impartial jury. * * *

In my view, County Court’s inquiry did not meet the probing and tactful standard. Based on the allegations of rape made against defendant, juror No. 6’s revelation of being a rape victim and the doubt expressed by the foreperson about juror No. 6’s impartiality, it was incumbent upon the court, at the very least, to ask juror No. 6 about being a rape victim. Indeed, the court intended on asking juror No. 6 about being a sexual assault victim but, for some reason that is not apparent in the record, it never did. Merely asking whether juror No. 6 was a crime victim did not address the emotionally charged situation that the foreperson brought to the court’s attention. The court’s inquiry was therefore flawed from the outset. People v Rivera, 2022 NY Slip Op 04050, Third Dept 6-23-22

Practice Point: Because the issue was not preserved for appeal by objection, the majority refused to consider whether County Court made a proper inquiry when a juror revealed during deliberations, for the first time, she was a rape victim. Defendant was charged with rape. The dissenting justice would have considered the issue in the interest of justice and ordered a new trial.

 

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THE MAJORITY REFUSED TO CONSIDER WHETHER COUNTY COURT PROPERLY DISCHARGED A JUROR WHO FAILED TO APPEAR BECAUSE THE ISSUE WAS NOT PRESERVED BY OBJECTION; TWO DISSENTERS WOULD HAVE CONSIDERED THE ISSUE IN THE INTEREST OF JUSTICE AND ORDERED A NEW TRIAL (THIRD DEPT).

The Third Department refused to consider whether the court properly discharged a juror because the issue was not preserved by objection. The two dissenting justices would have ordered a new trial in the interest of justice:

From the dissent:

If a juror is unable to continue serving due to an illness, “the court shall make a reasonably thorough inquiry concerning such illness . . . and shall attempt to ascertain when such juror will be appearing in court” (CPL 270.35 [2] [a]). * * *

… [O]n the day at issue and approximately 30 minutes after the scheduled start of the trial, County Court noted that juror No. 1 was not present. The court remarked, “She did leave sick yesterday,” and, after such remark, stated that it was necessary to replace juror No. 1 with an alternate juror. …

… [T]here was no reasonably thorough inquiry — let alone, any inquiry — as to juror No. 1’s absence. Although juror No. 1 was apparently ill on the day when she was selected for service, the court did not bother to learn if she continued to be ill. It seems that the court merely speculated that, because juror No. 1 was ill the day before, she continued to be ill and that was the reason why she did not show up at the scheduled time for the start of the trial. Such speculation, however, does not meet the standard of conducting a reasonably thorough inquiry. … [E]ven if it could be said that the court did make a reasonably thorough inquiry, the court still failed to ascertain when juror No. 1 would return to court. The record discloses that, prior to discharging juror No. 1, the court neither heard from nor reached out to her to see if she would not be making it for the trial or if she was en route to the courthouse … . People v Colter, 2022 NY Slip Op 04055, Third Dept 6-23-22

Practice Point: Here the issue whether County Court properly discharged a juror was not considered by the majority because the issue was not preserved by objection. The two dissenters argued the court did not conduct a proper inquiry to determine why the juror had not appeared and whether the juror would appear. The dissenters would have considered the issue in the interest of justice and ordered a new trial.

 

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HERE, IN THIS FOIL PROCEEDING, THE REQUESTED DOCUMENTS WERE ULTIMATELY PROVIDED AFTER AN INITIAL REFUSAL RENDERING THE ACTION MOOT; THE PETITIONER’S REQUEST FOR AN AWARD OF ATTORNEY’S FEES, HOWEVER, WAS NOT PRECLUDED (THIRD DEPT).

The Third Department determined the award of attorney’s fees for a FOIL request is not precluded when the underlying action is rendered moot because the requested documents were ultimately provided (after an initial refusal):

The fact that the proceeding has been rendered moot by the disclosure of the documents does not … preclude petitioner’s request for an award of fees … .The Public Officers Law permits an award of “reasonable [counsel] fees and other litigation costs” where the petitioner “has substantially prevailed” in a FOIL proceeding and “when the agency failed to respond to a request . . . within the statutory time frame” … . Under the circumstances, as petitioner included in his petition a request for fees associated with the FOIL application, the matter must be remitted to Supreme Court for a determination of an award of costs and fees pursuant to Public Officers Law § 89 (4) (c) (i). Matter of Lewis v James, 2022 NY Slip Op 04066, Third Dept 6-23-22

Practice Point: If a FOIL request, after an initial refusal to provide the requested documents, is rendered moot by the respondent’s ultimately providing the documents, an award of attorney’s fees to the petitioner is not precluded.

 

ITHACA’S FEE SCHEDULE FOR PERMITS ALLOWING THE CLOSURE OF STREETS AND SIDEWALKS FOR CONSTRUCTION ON PRIVATE PROPERTY IS VALID, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined the respondent city demonstrated its fee schedule for permits allowing the closure of streets, sidewalks and parking spaces during construction on private property was valid. The decision is too detailed and comprehensive to be fairly summarized here:

… City officials had a rational basis for calculating the public costs arising from permitted street and sidewalk closures and … the new street permit fee structure imposed a reasonable approximation of those costs upon permit applicants. …

… [P]etitioner [owner of the property on which the construction was done] failed to raise a question of fact as to the reasonableness of the new street fee structure, respondents were entitled to summary judgment dismissing the challenge to that structure and a declaration that it is valid … .Matter of 201 C-Town LLC v City of Ithaca, N.Y., 2022 NY Slip Op 04069, Third Dept 6-23-22

​Practice Point: A city can impose daily fees for permits allowing the closure of streets and sidewalks to allow construction on private property.

 

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THE BOARD FAILED TO ADEQUATELY EXPLAIN ITS DECISION TO DENY COVERAGE OF MEDICAL BILLS ON THE GROUND THEY WERE NOT CAUSALLY RELATED TO CLAIMANT’S MEDICAL CONDITION, MAKING APPELLATE REVIEW IMPOSSIBLE; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board did not explain its decision to deny coverage of 25 medical bills based on the conclusion the bills did not relate to claimant’s medical condition:

Although, “the Board has the exclusive province to resolve conflicting medical opinions” and to evaluate medical evidence before it, and its factual determinations on causal relationship will not be disturbed if supported by substantial evidence in the record, its decision here fails to indicate what medical opinions or reports formed the basis for the conclusions reached regarding causal relationship … . It is further noted that many of the bills or supporting records include multiple diagnoses and charges, with some of the diagnoses appearing to match the established conditions, such as treatment for a urinary tract infection. No basis is provided for denying compensability for portions of the bills related to established conditions, i.e., for denying payment for the entire medical bill based upon the inclusion of non-compensable treatment in the bill or records.

By failing to provide the reasons for its rulings or the basis upon which the determination was made, the WCLJ [Workers’ Compensation Law Judge] and the Board “failed to satisfy [their] obligation to provide some basis for appellate review” … . Matter of Sequino v Sears Holdings, 2022 NY Slip Op 04070, Third Dept 6-23-22

Practice Point: When the Workers’ Compensation Board fails to adequately explain its denial of coverage for medical bills it concluded were not related to claimant’s medical condition, appellate review by a court is not possible and the matter must be remitted.

 

THE BOARD SHOULD HAVE CONSIDERED WHETHER A PRIOR ELBOW INJURY ADDED TO THE SCHEDULE LOSS OF USE (SLU) ASSOCIATED WITH THE SUBSEQUENT SHOULDER INJURY; THE BOARD DEPARTED FROM PRECEDENT WITHOUT EXPLANATION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the schedule loss of use (SLU) award for a shoulder injury should not have been offset by a prior award for an elbow injury. Rather, whether the second injury resulted in an increased loss of use should have been considered:

… [T]he Board credited Coniglio’s [the employer’s expert’s] opinion of a 20% SLU as being consistent with the guidelines and expressly declined to add any additional loss of use. …

… [W]e note that the Board has previously determined that adding value for posterior extension to an overall SLU award that also includes a documentation of deficits of flexion or abduction is consistent with the guidelines … . The Board did not address Coniglio’s failure to add any value for his finding of a posterior extension defect to his overall SLU calculation and, as such, has not provided a rational basis for departing from its precedent. Accordingly, its finding of a 20% SLU of the left arm must also be reversed and the matter remitted for further consideration by the Board … . Matter of Kromer v UPS Supply Chain Solutions, 2022 NY Slip Op 04072, Third Dept 6-23-22

Practice Point: Here claimant’s prior schedule loss of use (SLU) award for an elbow injury was not considered in connection with the SLU for the subsequent shoulder injury, a departure from precedent. Because the departure from precedent was not explained, the decision was reversed and remitted.

 

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AFTER TRIGGERING A SECURITY ALARM AT A SPORTING GOODS STORE, DEFENDANT WAS DETAINED IN THE STORE FOR HALF AN HOUR IN THE PRESENCE OF POLICE OFFICERS WHOSE QUESTIONS WERE NOT CONFINED TO THE PETIT LARCENY INVESTIGATION RE: AMMUNITION, BUT RATHER RELATED TO DEFENDANT’S POSSESSION OF FIREARMS; DEFENDANT’S UNWARNED STATEMENTS SHOULD HAVE BEEN SUPPRESSED; CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the questioning by the police when defendant was still in a sporting goods store where he allegedly attempted to steal ammunition constituted custodial interrogation in the absence of the Miranda warnings. The statements made by the defendant at the sporting goods store should have been suppressed:

The entire interaction at the sporting goods store was captured by the various body cameras worn by the police involved. Viewing same, it is evident that, throughout most of the interaction, four police officers were present at the sporting goods store, with at least one officer positioned between defendant and the exit. More importantly, shortly after the police arrived, defendant had been told to empty his pockets and place all of his personal property on the counter. Defendant did so. While being detained by the police, defendant asked the police multiple times if he could retrieve his possessions. The police denied each of these requests. … Additionally, the questions posed by the police to defendant exceeded that necessary for investigation. Many of their inquiries were not limited to the petit larceny, the allegation in question, but instead focused on firearms that defendant may have possessed, their location, caliber and defendant’s intent as to his usage of same. With the benefit of viewing the interaction between the police and defendant, and considering all the circumstances involved, we cannot say that a reasonable person would have felt free to leave … . People v Abdullah, 2022 NY Slip Op 04045, Third Dept 6-23-22

Practice Point: Defendant triggered a security alarm in a sporting goods store when he attempted to steal ammunition. He was detained by police in the store for half an hour and was asked questions about his possession of firearms. Because the questions exceeded the scope of the petit larceny investigation and were not preceded by the Miranda warnings, defendant’s statements should have been suppressed. His conviction was reversed.

 

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