Articles Posted in Government & Administrative Law

by
Equitable apportionment ensuring that employers’ insurance carriers pay their equitable share of litigation expenses incurred by injured workers who obtain recoveries from a third-party tortfeasor should not turn solely on the label given to a claimant’s award but must take into account the certainty of the award at the time a third-party matter is resolved. In this case a third-party settlement was consummated before a workers’ compensation award was determined. The Workers’ Compensation Board misinterpreted the Court of Appeals’ precedents as requiring that litigation costs apportioned against all schedule loss of use awards be either assigned at the time of the third-party settlement or not at all. The Court of Appeals reversed the order of the Appellate Division concluding that the award of workers’ compensation benefits was of a type the Court of Appeals had indicated had an ascertainable present value, and therefore, the claimant was not entitled to a post-settlement apportionment of the litigation expenses contemplated for other types of awards. View "Terranova v. Lehr Construction Co." on Justia Law

by
The Court of Appeals reversed the decision of the Appellate Court affirming the judgment of Supreme Court granting Petitioners’ petition asserting that the decision of the New York City Water Board and the New York City Department of Environmental Protection (DEP) adopting a resolution approving a rate increase and bill credit and publishing a rate schedule was arbitrary, capricious, and an abuse of discretion. Petitioners commenced this N.Y. C.P.L.R. article 78 proceeding against the Water Board and DEP challenging the resolution and rate schedule. Supreme Court granted the petition, ruling that the resolution and rate schedule were ultra vires, exceeded the Water Board’s statutory authority, and were unreasonable, arbitrary, capricious and an abuse of discretion. The Appellate Division affirmed. The Court of Appeals reversed, holding that Respondents’ actions were not utterly arbitrary or unsupported by economic or public policy goals and that Respondents did not act ultra vires or levy a tax. View "Prometheus Realty Corp. v. New York City Water Board" on Justia Law

by
The New York State Department of Health (DOH) complied with its responsibilities under the New York State Environmental Quality Review Act (SEQRA) in assessing Jewish Home Lifecare’s (JHL) application to construct a new residential facility in New York City. Petitioners, parents of students attending a public elementary school next door to the proposed construction site and tenants living in apartment buildings surrounding the site, brought these two article 78 proceedings seeking to annul, vacate and set aside DOH’s determination, arguing that DOH relied on flawed assessment methodologies and failed adequately to mitigate the environmental dangers associated with the construction. Supreme Court vacated and annulled DOH’s approval of JHL’s application, concluding that DOH followed proper SEQRA procedures but failed adequately to consider all relevant mitigation measures. The appellate division reversed. The Court of Appeals affirmed, holding that DOH complied with its SEQRA responsibilities by identifying and assessing relevant environmental hazards and imposed mitigation measures to protect public health and safety. View "Friends of P.S. 163, Inc. v. Jewish Home Lifecare, Manhattan" on Justia Law

by
At issue was whether, prior to the use of affix and mail service of Notices of Violation (NOVs) issued by Department of Building inspectors who discover building code violations, the New York City Charter requires more than a single attempt to personally serve the NOV at the premises. The Environmental Control Board (ECB) sustained Petitioner’s code violations, rejecting Petitioner’s argument that the NOVs were not properly served because more than one attempt at personal service is required prior to the use of the alternative affix and mail procedure authorized in New York City Chapter 1049-a(d)(2)(a)(ii). The Appellate Division confirmed the determination. The Court of Appeals affirmed, holding (1) the agency properly interpreted New York City Charter 1049-a(d)(2)(b) to require only one attempt at personal service of an NOV at the premises prior to resorting to the affix and mail procedure; and (2) thus, the seven NOVs that were reviewed in the administrative hearings were properly served. View "Mestecky v. City of New York" on Justia Law

by
Three petitions challenged the validity of regulations of the New York State Department of Motor Vehicles (DMV) governing the relicensing of recidivist drunk driving offenders and sought restoration of their driving privileges. The first two petitioners in this case were convicted of drunk driving for a third time, and the third petitioner was convicted of drunk driving for a sixth time. The driver’s licenses of all three petitioners were revoked pursuant to the Vehicle and Traffic Law. The Court of Appeals rejected the petitioners’ challenges and affirmed, holding that the lower courts properly upheld the regulations and their application to the petitioners’ relicensing applications as a valid exercise of the delegated authority of the Commissioner of the DMV. View "Acevedo v. New York State Department of Motor Vehicles" on Justia Law

by
Defendant was charged in both Queens and Richmond Counties with committing numerous sex offenses against four children. Defendant pleaded guilty. When Defendant’s release date was approaching, the Board of Examiners of Sex Offenders prepared a case summary and risk assessment instrument (RAI) as required by the Sex Offender Registration Act (SORA). The Board did not recommend any points under risk factor seven, entitled “relationship with victim.” At the SORA hearing, the court assessed twenty points under risk factor seven and ultimately assessed Defendant a total of 125 points, rendering him a presumptive risk level three. The Appellate Division affirmed, concluding that Supreme Court did not err in assessing points under risk factor seven. The Court of Appeals reversed, holding that the lower courts erred in assessing twenty points under risk factor seven. View "People v. Cook" on Justia Law

by
The Statewide Central Register maintained by the State Office of Children and Family Services (OCFS) received information alleging educational neglect by Petitioners. OCFS referred the report to the Westchester County Department of Social Services, Office of Child Protective Services (CPS). CPS decided that the case was eligible to proceed under the Family Assessment Response Track (FAR track) but submitted the case for closure in the month after the report was received, without recommending services. Thereafter, Petitioners wrote to OCFS to request expungement of the FAR records and report. The Director of the OCFS Central Register stated that OCFS could not comply with Petitioners’ request because Petitioners had been placed on the FAR track rather than the standard investigative track. Petitioners then commenced this N.Y. C.P.L.R. 78 proceeding against OCFS and the Director, challenging OCFS’s denial of the opportunity for Petitioners to seek early expungement of the educational neglect report. The Appellate Division affirmed. The Court of Appeals affirmed, holding that the statutory procedure allowing for early expungement of reports relating to alleged child abuse does not apply when the parents are not formally investigated but instead are assigned to the FAR track pursuant to N.Y. Soc. Serv. Law 427-a. View "Corrigan v. New York State Office of Children & Family Services" on Justia Law

by
In 2013, the Orange County Department of General Services issued a request for proposals (RFP) from companies to provide transportation of children receiving preschool special education services in three transportation zones in the County. ACME Bus Corp. (ACME), which held the contract at the time, submitted two alternative proposals. Orange County awarded transportation contracts for the first two zones to Quality Bus Service, LLC and for the third zone to VW Trans, LLC. ACME subsequently commenced this proceeding against the County, Quality, and VW, seeking to vacate the award of the contracts. Supreme Court dismissed the proceeding. The Court of Appeals reversed, holding that the County’s scoring mechanism in the cost category deviated from the formula stated in the RFP, and therefore, its award was arbitrary and capricious. View "ACME Bus Corp. v. Orange County" on Justia Law

by
A hearing officer found Petitioner, a prison inmate, guilty of violating two prison disciplinary rules and imposed penalty of twelve months’ punitive confinement in a special housing unit. The Department of Corrections and Community Supervision affirmed. Petitioner commenced this N.Y. C.P.L.R. 78 proceeding challenging the determination. Supreme Court dismissed the petition, and the Appellate Division affirmed. The Court of Appeals reversed, holding that the lower courts erred in dismissing Petitioner’s article 78 petition because a violation of Petitioner’s right to call witnesses occurred at the administrative hearing where the hearing officer failed to undertake a meaningful inquiry into a requested witness’s allegation that the witness had been coerced into refusing to testify. View "Cortorreal v. Annucci" on Justia Law

by
In 1996, New York State Racing and Wagering Board (the Racing Board) reduced per diem wages for its seasonal employees by twenty-five percent. The Public Employees Federation (PEF) filed an improper practice charge with the Public Employment Relations Board (PERB), alleging that the reduction in wages violated the Racing Board’s duty to negotiate in good faith under N.Y. Civ. Serv. 209-a(1)(d). PERB dismissed the improper practice charge. Petitioner, then president of PEF, subsequently brought this N.Y. C.P.L.R. 78 proceeding, asserting that PERB’s determination was arbitrary, capricious and contrary to law. Supreme Court dismissed the petition. The Appellate Division reversed, concluding that PERB’s determination was arbitrary and capricious. The Court of Appeals reversed, holding that PERB’s decision dismissing the improper practice charge was not affected by an error of law and was not arbitrary, capricious, or an abuse of discretion. View "Kent v. Lefkowitz" on Justia Law