MBIA Trial Docs1

FILED: NEW YORK COUNTY CLERK 06/11/2012
NYSCEF DOC. NO. 307
INDEX NO. 601846/2009 RECEIVED NYSCEF: 06/11/2012
Granting Article 78 Petitions Based on Expert Testimony

1. Justice Yates: Its going to come down to what the experts say. Aug. 5, 2010 Tr. at 64. 2. De Long v. Erie Cnty., 60 N.Y.2d 296, 307 (1983): [E]xpert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge. (Non-Article 78 case explaining the general rule.) 3. McIntosh v. State, 7 A.D.3d 890, 895 (3d Dept 2004): Petitioner submitted proof, including an affidavit from a military expert, to challenge his dismissal from Division of Military and Naval Affairs, even though respondent claimed it was a nonreviewable exercise of military discretion. The court granted the petition. 4. Buffalo Dev. Corp. v. N.Y.S. Dept of Envtl. Conservation, No. 4350/2008, 2009 WL 1438213, at *1, 4 (Sup. Ct. Erie Cnty. May 22, 2009): Petitioner challenged exclusion of properties from Brownfield Cleanup program and submitted an experts affidavit testifying that petitioners properties qualified under the DECs own regulation and, therefore, the DEC may not exclude [them] on the basis that they are off-site parcels. The court held that the decision to exclude [the properties] from eligibility as Brownfield sites was arbitrary and capricious and its interpretation of its own regulations was erroneous. 5. Downey Farms Dev. Corp. v. Town of Cornwall Planning Bd., 20 Misc. 3d 566, 578 (Sup. Ct. Orange Cnty. 2008): Petitioner challenged respondents denial of subdivision application due to delay. At trial, petitioner offered testimony of a municipal law expert to testify as to the time frame in which petitioners application could have been approved and a professional engineer [t]o provide an engineers perspective of what could be a reasonable timeline. The court granted the petition. 6. Waldbaum, Inc. v. Inc. Vill. of Great Neck, 2006 WL 250520, at *11 (Sup. Ct. Nassau Cnty. Jan. 9, 2006): Petitioner challenged respondents rezoning determination under SEQRA, and the court annulled the determination based on Expert Affidavits . . . submitted in support and in opposition to the within Article 78 petition. 7. Mark v. Lang, 52 Misc. 2d 469, 471, 477 (Sup. Ct. N.Y. Cnty. 1967): Petitioners challenged their scores on a New York City Police Department examination. At trial, they offered a former Police Department Chief of Staff, a recognized expert with broad police and law enforcement experience, to defend their response to a question. The credible testimony and documentary evidence adduced by petitioners upon the trial of this matter clearly and overwhelmingly support their contentions with respect to each of the essay questions. The court granted the petition.
8. Lese v. Temp. State Hous. Rent Commn, 15 Misc. 2d 143, 145 (Sup. Ct. N.Y. Cnty. 1958): Petitioner challenged State Rent Administrators refusal to accept sale price as a basis for calculating rent increase on the grounds that the price was speculative. Petitioner offered proof by a competent real estate appraiser that the terms of the sale were normal, and the court granted the petition, observing that respondent failed to offer expert testimony to the contrary. 9. Basile v. Albany Coll. of Pharmacy of Union Univ., 279 A.D.2d 770, 77172 (3d Dept 2001): At administrative hearing, petitioners submitted an affidavit from an expert statistician. During the Article 78 proceeding, the court held that the expert established that respondents analysis is based upon false assumptions and therefore does not provide a rational basis. 10. St. James Nursing Home v. DeBuono, 12 A.D.3d 921, 923 (3d Dept 2004): Supreme Court reviewed the parties submission of the record of the [an earlier administrative hearing] and found the regression analysis insufficient to support the [respondent]. The Third Department affirmed, noting that petitioners expert testified [at the hearing] that while regression analysis is a well-accepted statistical tool, it was used improperly by respondents.
Other Cases Supporting the Admissibility of Experts in Article 78

11. George Moore Truck & Equipment Corp. v. N.Y.S. Dept of Envtl. Conservation, 2006 WL 1867325, at *3 (Sup. Ct. Cortland Cnty. July 3, 2006): Petitioner offered affidavits of experts with Article 78 petition, and [t]he conflicting proof submitted by respondent merely raises factual questions which cannot be resolved in summary fashion. 12. Montgomery v. Bd. of Assessment Review of Town of Union, 30 A.D.3d 747, 749 (3d Dept 2006): Petitioners have adequately stated a viable claim and presented evidence which creates significant material issues of fact which should be resolved at trial. Petitioners expert affidavit supports both the claim of different treatment to comparable properties and petitioners request for additional discovery. 13. Town of Greenville v. N.Y.S. Bd. of Real Prop. Servs., 251 A.D.2d 788, 789 (3d Dept 1998): The court faulted petitioner for not providing expert analysis based on professional or technical knowledge documenting and detailing the deficiencies in respondents valuations. 14. Shafran v. St. Vincents Hosp. & Med. Ctr., 264 A.D.2d 553, 558 (1st Dept 1999): [B]lanket preclusion of . . . expert . . . witness[es is] an improvident exercise of discretion that could require a new trial as to all defendants. (Non-Article 78 case explaining the general rules.)
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : PART 49
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THIRD AVENUE TRUST AND THIRD AVENUE VARIABLE SERIES TRUST , Plaintiffs , INDEX NO. 650756/09 - against -
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10 11 12 13 MBIA INSURANCE CORP . , MBIA INC. and NATIONAL PUBLIC FINANCE GUARANTEE CORP. (f/k/a MBIA INSURANCE CORP . OF ILLINOIS) . Defendants .
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August 5, 2010 60 Centre Street New York, New York
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B E F 0 R E:
HONORABLE JAMES A. YATES, JSC
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Donna Evans , Official Court Reporter
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Proceedings expert r eports are provided, Mr . Kasowitz and I can work something out that we think is reasonable . THE COURT : Let's think about this . When a l l
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is said and done at the end of the day , I'm not sure t his hearing is goi ng to have a lot of factual contents , it ' s goin g to come down to expert anal ysis. There may be some people having conflicting memories or views , i t seems with all the discovery , when all is said and done , it ' s all going to be flushed out , it won't come down to credibi lity of a particular witnes s , or fact unknown to someone , it ' s g oing to come down to what the experts say , which means I don't think we should get h ung up on the CPLR timing, we should try to accelerate it . If, as a practical matter , ther e ' s a r eason to hold off , because they are not prepared yet , that ' s one thing , but let's not make the CPLR a reason to not expedite the expert disclosure . forward . I would say move
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You said you can work something out , I'll
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leave it to you to work out , b ut please d o n ' t come in here and tel l me the CPLR says you can do it a little later . Doing a special p r oceeding, it ' s very
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informing, we can adjust . MR . GIUFFRA: out. I agree, we' l l wor k something
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The difficulty we face is , we have depos i t ions Donna Evans , Official Court Reporter
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457 N.E.2d 717 60 N.Y.2d 296, 457 N.E.2d 717, 469 N.Y.S.2d 611 (Cite as: 60 N.Y.2d 296, 457 N.E.2d 717, 469 N.Y.S.2d 611)
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Cited Cases FIND Request: 60 N.Y.2d 296, 307 Municipal Corporations 268 Court of Appeals of New York. Dennis S. DE LONG, Individually and as Administrator of the Estate of Amalia De Long, Deceased, Respondent, v. COUNTY OF ERIE et al., Appellants. Nov. 1, 1983. City and county appealed from an order of the Supreme Court, Appellate Division, 89 A.D.2d 376, 455 N.Y.S. 2d 887, affirming a judgment of the Supreme Court, Erie County, Trial Term, Roger T. Cook, J., in favor of burglary victim's estate in action for her wrongful death at hands of burglar. The Court of Appeals, Wachtler, J., held that: (1) city's and county's creation of special 911 emergency assistance telephone number, accepting burglary victim's call for emergency assistance, and assuring her that help was on the way established special relationship with and duty to burglary victim, sufficient to hold city and county liable for negligently directing police cars to wrong locality and taking no further action when responding officers reported no such address; (2) evidence was sufficient to support conclusion that neither city nor county exercised ordinary care in handling of victim's call and should share responsibility for foreseeable consequences; and (3) admission of expert testimony as to market value of types of services performed by average housewife in burglary victim's circumstances was not an abuse of discretion. Order affirmed. West Headnotes [1] Counties 104 146 747(3)
268 Municipal Corporations 268XII Torts 268XII(B) Acts or Omissions of Officers or Agents 268k747 Particular Officers and Official Acts 268k747(3) k. Police and fire. Most Cited Cases City's and county's creation of 911 emergency assistance telephone number, accepting call for emergency assistance from woman whose home was in process of being burglarized, and assuring her that help was on the way established special relationship with and duty to woman, who was subsequently killed by burglar in her home, sufficient to hold city and county liable for negligently directing police cars to wrong locality and taking no further action when responding officers reported no such address. [2] Municipal Corporations 268 723
268 Municipal Corporations 268XII Torts 268XII(A) Exercise of Governmental and Corporate Powers in General 268k723 k. Nature and grounds of liability. Most Cited Cases A city may be held liable for neglecting to provide crossing guards for school children when it has voluntarily undertaken the task, which the children's parents could justifiably expect to be regularly and properly performed. [3] Municipal Corporations 268 723
104 Counties 104VII Torts 104k146 k. Acts of officers or agents. Most
268 Municipal Corporations 268XII Torts 268XII(A) Exercise of Governmental and Corporate Powers in General 268k723 k. Nature and grounds of liabil-
2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
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ity. Most Cited Cases A municipality which has affirmatively certified a building as safe may be held liable to the owners for injury caused by known, blatant and dangerous violations. [4] Municipal Corporations 268 742(6)
have dire consequences, it will not always justify an award of damages. [7] Counties 104 223
104 Counties 104XII Actions 104k223 k. Evidence. Most Cited Cases Municipal Corporations 268 742(5)
268 Municipal Corporations 268XII Torts 268XII(A) Exercise of Governmental and Corporate Powers in General 268k742 Actions 268k742(6) k. Trial, judgment, and review. Most Cited Cases Whether a special duty between municipality and injured party has been breached, for purpose of holding municipality liable for negligence in performance of governmental function, is generally question for jury. [5] Municipal Corporations 268 747(3)
268 Municipal Corporations 268XII Torts 268XII(B) Acts or Omissions of Officers or Agents 268k747 Particular Officers and Official Acts 268k747(3) k. Police and fire. Most Cited Cases Whether municipality has acted reasonably in performance of governmental function, including police and fire protection, depends upon circumstances of particular case. [6] Municipal Corporations 268 723
268 Municipal Corporations 268XII Torts 268XII(A) Exercise of Governmental and Corporate Powers in General 268k742 Actions 268k742(5) k. Evidence. Most Cited Cases Evidence, inter alia, that police cars were directed to wrong locality and that no further action was taken when responding officers reported no such address was sufficient to support conclusion that neither city nor county, which established 911 telephone number to serve city and neighboring communities by accepting calls for assistance and relaying them to local agencies, exercised ordinary care in handling emergency 911 call of burglary victim, who was subsequently killed by burglar, and that they should share responsibility for foreseeable consequences. [8] Counties 104 146
104 Counties 104VII Torts 104k146 k. Acts of officers or agents. Most Cited Cases Municipal Corporations 268 747(3)
268 Municipal Corporations 268XII Torts 268XII(A) Exercise of Governmental and Corporate Powers in General 268k723 k. Nature and grounds of liability. Most Cited Cases Although any error, however slight, by municipality in performance of emergency service may
268 Municipal Corporations 268XII Torts 268XII(B) Acts or Omissions of Officers or Agents 268k747 Particular Officers and Official Acts 268k747(3) k. Police and fire. Most
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Cited Cases Reliance by burglary victim, who was killed by burglar after making emergency 911 call for assistance negligently acted upon by city and county was essential element of cause of action against county and city, which had established 911 telephone number to serve city and neighboring communities, for burglary victim's wrongful death. [9] Appeal and Error 30 216(1)
other special knowledge in general. Most Cited Cases Expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by expert and beyond ken of typical juror. [12] Death 117 64
30 Appeal and Error 30V Presentation and Reservation in Lower Court of Grounds of Review 30V(B) Objections and Motions, and Rulings Thereon 30k214 Instructions 30k216 Requests and Failure to Give Instructions 30k216(1) k. In general. Most Cited Cases Where city and county failed to bring omission of specific instructions with respect to burglary victim's reliance on 911 emergency assistance telephone number to court's attention when action for burglary victim's wrongful death at hands of burglar was submitted to jury, issue was not preserved for review. McKinney's CPLR 4017, 4110b. [10] Evidence 157 546
117 Death 117III Actions for Causing Death 117III(G) Evidence 117k59 Admissibility of Evidence 117k64 k. Loss or injury resulting from death. Most Cited Cases Evidence of market value of types of services performed by average housewife in burglary victim's circumstances was relevant to issue of damages on cause of action against city and county, who negligently acted upon victim's 911 telephone call for assistance, for victim's wrongful death at hands of burglar. McKinney's EPTL 54.3. [13] Evidence 157 532
157 Evidence 157XII Opinion Evidence 157XII(C) Competency of Experts 157k546 k. Determination of question of competency. Most Cited Cases Generally, admissibility of expert testimony on particular point is addressed to discretion of trial court. [11] Evidence 157 508
157 Evidence 157XII Opinion Evidence 157XII(B) Subjects of Expert Testimony 157k530 Damages 157k532 k. Injuries to the person. Most Cited Cases In action against city and county, which negligently acted upon burglary victim's emergency 911 telephone call for assistance, for burglary victim's wrongful death at hands of burglar, admission of expert testimony as to monetary value of types of services performed by average housewife in burglary victim's circumstances was not an abuse of discretion. *298 ***613 **718 John J. Heffernan and Peter M. Kooshoian, Buffalo, for County of Erie, appellant. John J. Naples, Corp. Counsel, Buffalo (Carl Tronolone, Buffalo, of counsel), for City of Buffalo, appellant.
157 Evidence 157XII Opinion Evidence 157XII(B) Subjects of Expert Testimony 157k508 k. Matters involving scientific or
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*299 Philip H. Magner, Jr., Buffalo, for respondent. *300 OPINION OF THE COURT WACHTLER, Judge. In this suit for damages brought by the family and estate of a woman killed by a burglar, a jury found the City of Buffalo and the County of Erie liable for negligent processing of and response to the victim's call for emergency assistance made on the special 911 number established and serviced by the defendants. The Appellate Division 89 A.D.2d 376, 455 N.Y.S.2d 887 affirmed the judgment with two Judges dissenting and the defendants have appealed. Two primary issues are presented on the appeal. First, whether by creating the special service, accepting the call for emergency assistance and assuring the caller that help was on the way, the municipal agencies may be said to have established a special relationship with and duty to her, sufficient to hold them liable for negligently directing the police patrol cars to the wrong locality and taking no further action when the responding officers reported no such address as that given. Second, whether the trial court erred in permitting expert testimony concerning the monetary value of a housewife's services on the issue of damages. In October, 1976 the decedent, Amalia De Long, resided with her husband and three small children in Kenmore, a village adjacent to the City of Buffalo. Her home **719 at 319 Victoria Boulevard was located approximately 1,300 feet from the Kenmore Police Department. One of her neighbors was a captain in that department. On the morning of October 25 she telephoned for emergency police assistance by dialing 911. At 9:29 her call was answered by a complaint writer employed by Erie County to respond to such requests. The call, lasting approximately 14 seconds, was recorded in its entirety as follows: Caller: Police?
Complaint Writer: 911. *301 Caller: Police, please come, 319 Victoria right away. Complaint Writer: What's wrong? Caller: I heard a burglar; I saw his face in the back; he was trying to ***614 break in the house; please come right away. Complaint Writer: Okay, right away. Caller: Okay. The complaint writer erroneously reported the address as 219 Victoria, and mistakenly assumed that the call had originated in Buffalo because he knew there was a Victoria Avenue in the city. Accordingly, after stamping the complaint card flash to indicate its high priority, he placed it on a conveyor belt which ran through a glass partition to the radio dispatcher for the Buffalo Police Department. At 9:30 the dispatcher broadcast a report of a burglary in progress to patrol cars in the vicinity of Victoria Avenue in the city. Three minutes later the officers who had responded to the call informed the dispatcher that there was no such address and that the highest number on Victoria was 195. At 9:34 the dispatcher cleared the call, in effect telling the officers at the scene to disregard it. The dispatcher himself took no further action on the call. At approximately 9:42 Mrs. De Long was seen running from her house, unclothed and bleeding profusely. She collapsed on the sidewalk in front of her home. A neighbor called the Kenmore Police and within a minute a police car respondeda few minutes later paramedics arrived. However by 9:53 she displayed no vital signs. An autopsy revealed that she had been stabbed several times and had died from loss of blood. After filing a notice of claim against the city and the county, the decedent's husband commenced an action seeking damages for wrongful death and
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conscious pain and suffering. At the trial it was shown that prior to 1975 the City of Buffalo had adopted the 911 number as the one to call for emergency services, including police and fire protection. At that time a person dialing the number within the city *302 would immediately be connected with the Buffalo Police Department where a complaint writer would take the information and give it to a radio dispatcher who in turn would contact the appropriate patrol cars or other emergency vehicles. The complaint writers, originally police officers and later mostly civilians, together with the dispatchers were trained and supervised by a lieutenant or acting lieutenant from the Buffalo Police Department. In March of 1975 Erie County formed a new agency known as Central Police Services which took over the complaint writing function from the city and extended the 911 services to several communities beyond the city limits, including the Village of Kenmore. Thus in 1975 and 1976 the telephone directory for Erie County listed 911 as the emergency number for the local police. Under the system adopted by the county, however, a 911 call made within the City of Buffalo or the extended area would not automatically connect the caller with the police department servicing the caller's area. Instead the call would go to the Center for Emergency Services which, pursuant to an agreement with the city, was located in the old 911 room in the Buffalo Police Department headquarters. The stated purpose of the center was to accept telephone requests for emergency services for all Public Safety Agencies within the service area of the Center, and relay, transfer, or forward such requests to the Public **720 Safety Agency concerned, without requiring the caller to re-dial another telephone number. At this center the county employed its own complaint writers many of whom, including the one who answered the call in this case, had held the same position with the city. In accordance with the agreement the city was required to provide training, supervision and
assistance to the complaint writers for a year or more and was still doing so in October, 1976. A Buffalo police lieutenant or acting lieutenant remained in the room to coordinate the activities of the complaint writers and Buffalo police dispatchers and to furnish assistance of a supervisory nature when necessary. Most of the procedures previously followed by the city were adopted by the county and incorporated in the Manual for ***615 911 Services. The major additional requirement *303 imposed by the county was that the complaint writers obtain information concerning the location or municipality involved so that the complaint could be forwarded to the police department or other emergency service responsible for that area. This was the subject of additional training for those complaint writers who had previously been employed by the city. They were further instructed to determine the origin of the call at the outset because calls from the city were necessarily processed differently from those originating elsewhere. In the case of city calls the complaint card was placed on a conveyor belt which ran to the Buffalo police dispatcher's office in the room next to the center. For the noncity calls, buttons were installed at the complaint writer's desk which permitted him to immediately transfer the call to the appropriate agency and monitor it to insure that the connection had been made and that the call had been properly routed. There was also a standard operating procedure for cases in which officers responding to the scene of a priority complaint reported no such address. In that event the dispatcher was required to notify the lieutenant in charge or the complaint writer. They in turn would either replay the recording of the call to check the information or consult one of the street directories or duplicate street listings available at the center to determine whether the address provided could be located in another community. The transcript of the recording and the testimony of various witnesses connected with the cen-
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ter showed that the complaint writer had failed to comply with the applicable regulations in several respects. He had neglected to obtain (1) the caller's name, (2) the complete street address which would have indicated Victoria Boulevard and not Victoria Avenue as he assumed and (3) the name of the locality or municipality where the call originated. He also neglected to verify the information by repeating it. In addition, the police dispatcher completely neglected to initiate the follow-up procedures. He had not notified the lieutenant in charge or the complaint writer that the investigating officers could find no such address. He had simply disregarded the call because he assumed it was a fake. *304 On the issue of damages for wrongful death the plaintiff called an economist who, over the defendants' objection, testified concerning the value of a housewife's services. The jury returned a verdict for the plaintiff awarding $200,000 for conscious pain and suffering and $600,000 for wrongful death. Each of the defendants was found 50% responsible for the loss. The Appellate Division affirmed. Two Justices dissented solely on the ground that a new trial should be granted with respect to the amount of damages recoverable for the wrongful death. On this appeal the defendants initially contend, as they did in the courts below, that the complaint should be dismissed in its entirety because they owed no special duty to protect the decedent from an attack by a third party. The argument is based on the familiar rule that a municipality cannot be held liable for negligence in the performance of a governmental function, **721 including police and fire protection, unless a special relationship existed between the municipality and the injured party (see, e.g., Garrett v. Holiday Inns, 58 N.Y.2d 253, 460 N.Y.S.2d 774, 447 N.E.2d 717; Florence v. Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375 N.E.2d 763; Riss v. City of New York, 22 N.Y.2d
579, 293 N.Y.S.2d 897, 240 N.E.2d 860; Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635; Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534; Steitz v. City of Beacon, 295 N.Y. 51, 64 N.E.2d 704). This, of course, is not a case in which there was no contact between the victim and the municipality prior to her death. The plaintiff is not seeking to hold the defendants liable as insurers for failing to ***616 protect a member of the general public from a criminal act of which they were not aware but should have anticipated and prevented (see, e. g., Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 448 N.Y.S.2d 141, 433 N.E.2d 124; cf. Tuthill v. City of Rochester, 27 N.Y.2d 558, 313 N.Y.S.2d 127, 261 N.E.2d 267). He is not urging that there should be a police officer on every corner or at every place where a crime is likely to occur (cf. Steitz v. City of Beacon, supra ). Nor is this a case in which the police refused a plea for assistance (e.g., Riss v. City of New York, supra; cf. Messineo v. City of Amsterdam, 17 N.Y.2d 523, 267 N.Y.S.2d 905, 215 N.E.2d 163) or failed to offer assistance when confronted with a situation arguably requiring police intervention (e.g., Pinkney v. City of New York, 40 N.Y.2d 1004, 391 N.Y.S.2d 411, 359 N.E.2d 1001; Evers v. Westerberg, 32 N.Y.2d 684, 343 N.Y.S.2d 361, 296 N.E.2d 257). In those instances it has been urged with some force *305 that the proper allocation of public resources and available police services is a matter for the executive and legislative branches to decide (Riss v. City of New York, supra ). In this case the decision had been made by the municipalities to provide a special emergency service which was intended and proclaimed to be more efficient than normal police services. Those seeking emergency assistance were advised not to attempt to call the general number for the local police, which ironically might have avoided the tragedy encountered in this case, but were encouraged to dial the 911 number to obtain a quicker response. In
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addition, and most significantly, the victim's plea for assistance was not refused. Indeed she was affirmatively assured that help would be there right away. Considering the fact that she was merely a block and a half from the local police station, and was not yet at the mercy of the intruder, it cannot be said as a matter of law that this assurance played no part in her decision to remain in her home and not seek other assistance. Unfortunately, it only increased the risk to her life. [1][2][3] Under similar circumstances it has been held that a special relationship was created so as to require the municipality to exercise ordinary care in the performance of a duty it has voluntarily assumed. Thus a city may be held liable for neglecting to provide crossing guards for school children when it has voluntarily undertaken the task which the children's parents could justifiably expect to be regularly and properly performed (Florence v. Goldberg, supra ). Similarly a municipality which has affirmatively certified a building as safe may be held liable to the owners for injury caused by known, blatant and dangerous violations (Garrett v. Holiday Inns, supra; but also see O'Connor v. City of New York, 58 N.Y.2d 184, 460 N.Y.S.2d 485, 447 N.E.2d 33). The basic principle, as Judge Cardozo observed, is this: If conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward ( Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167, 159 N.E. 896; see, also, Zibbon v. Town of Cheektowaga, 51 A.D.2d 448, 382 N.Y.S.2d 152; app. dsmd. 39 N.Y.2d 1056, 387 N.Y.S.2d 428, 355 N.E.2d 388). **722 [4][5][6][7] *306 Whether a special duty has been breached is generally a question for the jury to decide (see, e.g., Florence v. Goldberg, supra, 44 N.Y.2d p. 197, 404 N.Y.S.2d 583, 375 N.E.2d 763). But it should be emphasized that whether the municipality has acted reasonably depends upon the circumstances of the particular case.
When an emergency service is involved it must be recognized that the circumstances are often quite demanding and that some mistakes will occur, even when the service is well organized and conscientiously administered. Allowance must be made for this and although any error, however slight, may have dire consequences it will not always justify an award for damages. In this case, however, there was ample basis for the jury to conclude that neither defendant exercised ordinary care in the handling ***617 of the call and that they should share responsibility for the foreseeable consequences. We have therefore concluded that there is no basis for reversing and dismissing the complaint against either defendant. [8][9] The defendants also contend that the court's charge to the jury concerning a special relationship was deficient, particularly in view of the fact that the court failed to give the jury any specific instructions with respect to the decedent's reliance. The defendants correctly observe that this was an essential element of the plaintiff's cause of action in this case. However, the defendants neglected to bring this omission to the court's attention when the case was submitted to the jury and therefore the issue is not preserved for review (CPLR 4110b; see, also, CPLR 4017). We would simply note, as we have above, that there was evidence in the record from which the jury could have found reliance in this wrongful death action (cf. Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744; Reilly v. New York City Tr. Auth., 34 N.Y.2d 764, 358 N.Y.S.2d 137, 314 N.E.2d 877). The only remaining question is whether the defendants are entitled to a new trial with respect to damages for the wrongful death because the trial court permitted expert testimony concerning the monetary value of a housewife's services. This was the only legal issue which produced disagreement at the Appellate Division. A majority of that court decided not to follow earlier Appellate Division opinions which had precluded such testimony ( *307Zaninovich v. American Airlines, 26 A.D.2d
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155, 271 N.Y.S.2d 866; Ashdown v. Kluckhohn, 62 A.D.2d 1137, 404 N.Y.S.2d 461). The question has frequently arisen in other jurisdictions (see Admissibility and Sufficiency of Proof of Value of Housewife's Services in Wrongful Death Action, Ann., 77 A.L.R.3d 1175). This, however, is the first occasion this court has had to address the issue. [10][11] As a general rule the admissibility of expert testimony on a particular point is addressed to the discretion of the trial court ( Selkowitz v. County of Nassau, 45 N.Y.2d 97, 408 N.Y.S.2d 10, 379 N.E.2d 1140). The guiding principle is that expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror ( People v. Allweiss, 48 N.Y.2d 40, 50, 421 N.Y.S.2d 341, 396 N.E.2d 735; Selkowitz v. County of Nassau, 45 N.Y.2d 97, 408 N.Y.S.2d 10, 379 N.E.2d 1140, supra; Dougherty v. Milliken, 163 N.Y. 527, 57 N.E. 757). [12] Here the plaintiff called an economist to offer his opinion of the market value of the types of services performed by the average housewife in the decedent's circumstances. This evidence was relevant to the issue of damages on the wrongful death cause of action which is fixed by statute as follows: fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought ( EPTL 54.3). When the decedent is a housewife who is not employed outside the home the financial impact on the survivors, aside from compensable losses of a personal nature (see, e.g., Tilley v. Hudson Riv. R.R. Co., 24 N.Y. 471), will not involve a loss of income but increased expenditures **723 to continue the services she was providing or would have provided if she had lived. [13] Undoubtedly most jurors have at least a general awareness of the various services performed by a housewife. It is doubtful, however, that they are equally knowledgeable with respect to the monetary equivalent of those services. Although it was once thought that this was not a subject which
would lend itself to scientific inquiry and analysis (see, e.g., Zaninovich v. American Airlines, supra ), that can no longer be said today. It is now apparent, as a majority of courts have held (see Ann., 77 A.L.R.3d 1175), that qualified experts are available and may aid the jury in evaluating the housewife's services not only because*308 jurors may not know the value of those services, but also to dispel the notion that what is provided without financial ***618 reward may be considered of little or no financial value in the marketplace. We conclude that it was not an abuse of discretion to allow the expert testimony in this case. Accordingly, the order of the Appellate Division should be affirmed. COOKE, C.J., and JASEN, JONES, MEYER, SIMONS and KAYE, JJ., concur. Order affirmed, with costs. N.Y.,1983. De Long v. Erie County 60 N.Y.2d 296, 457 N.E.2d 717, 469 N.Y.S.2d 611 END OF DOCUMENT
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Page 1 7 A.D.3d 890, 776 N.Y.S.2d 381, 2004 N.Y. Slip Op. 03873 (Cite as: 7 A.D.3d 890, 776 N.Y.S.2d 381)
FIND Request: 7 A.D.3d 890, 895 Supreme Court, Appellate Division, Third Department, New York. In the Matter of William F. McINTOSH, Respondent, v. STATE of New York et al., Appellants. May 13, 2004. Background: Retired National Guard officer brought article 78 petition seeking back pay, benefits, and emoluments of employment resulting from discharge from his civilian position with Division of Military and Naval Affairs (DMNA). The Supreme Court, Albany County, Keegan, J., granted application, and appeal was taken. Holdings: The Supreme Court, Appellate Division, Cardona, P.J., held that: (1) officer was entitled to amend his petition to reflect that respondents had revoked order that transferred him to the Inactive National Guard (ING) and had retroactively promoted him to Brigadier General; (2) evidence was sufficient to establish that military order relieving officer from his civilian position with DMNA and transferring him to the ING had been revoked; and (3) granting relief did not interfere with a military personnel decision. Affirmed. West Headnotes [1] Militia 259 12
emoluments of employment resulting from discharge from his civilian position with Division of Military and Naval Affairs (DMNA) was entitled to amend his petition to reflect that respondents had revoked order that transferred him to the Inactive National Guard (ING) and had retroactively promoted him to Brigadier General in accordance with recommendations of Army Board for Correction of Military Records (ABCMR); respondents were not prejudiced by renoticed claim, since such proof was already in their possession. McKinney's CPLR 3025(b). [2] Militia 259 12
259 Militia 259k12 k. Civilian Employees and Contractors. Most Cited Cases Evidence in article 78 proceeding was sufficient to establish that military order relieving National Guard officer from his civilian position with the Division of Military and Naval Affairs (DMNA) and transferring him to the Inactive National Guard (ING) had been revoked, entitling officer to back pay, benefits, and emoluments of employment related to his DMNA position; military expert's affidavit and regulation governing preparation of military orders indicated that subsequent order revoked both officer's transfer to ING and his removal from the DMNA position. McKinney's CPLR 7801 et seq. [3] Militia 259 12
259 Militia 259k12 k. Civilian Employees and Contractors. Most Cited Cases Retired National Guard officer who brought article 78 petition seeking back pay, benefits, and
259 Militia 259k12 k. Civilian Employees and Contractors. Most Cited Cases Granting article 78 relief to retired National Guard officer, awarding him back pay, benefits, and emoluments of employment resulting from his discharge from his civilian position with Division of Military and Naval Affairs (DMNA) after military order relieving him from that position was revoked, did not interfere with a military personnel
decision, but instead dealt with the aftermath of that decision and its effect on officer's position with the State. McKinney's CPLR 7801 et seq. **382 Eliot Spitzer, Attorney General, Albany ( Evelyn M. Tenenbaum of counsel), for appellants. Gleason, Dunn, Walsh & O'Shea, Albany (Mark T. Walsh of counsel), for respondent. Before: CARDONA, P.J., CREW III, PETERS, SPAIN and LAHTINEN, JJ. *890 CARDONA, P.J. Appeal from a judgment of the Supreme Court *891 (Keegan, J.), entered September 19, 2002 in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to direct respondents to award full back pay, benefits and emoluments of employment to petitioner resulting from his discharge from the position of Chief of Staff within the State Division of Military and Naval Affairs. An understanding of this complicated litigation can only be gained through recitation of a portion of its extensive history. Petitioner, now retired, was formerly a colonel in the New York Army National Guard (hereinafter NYARNG), considered to be federal employment. In 1986, while still holding that rank, petitioner was appointed to the civilian position of Chief of Staff within the Division of Military and Naval Affairs (hereinafter DMNA), a FN1 state agency. In February 1987, petitioner's superior, Adjutant General Lawrence Flynn, recommended that petitioner be promoted to Brigadier General. Flynn then sought the required federal recommendation of the appointment from the United States Department of the Army. However, by means of a Report for Suspension of Favorable Personnel Actions, the promotion was held in abeyance pending the results of an investigation for suspected improprieties. According to petitioner, a charge of corruption was made against him in retaliation for his refusal to reveal his testimony be-
fore a grand jury investigating fellow NYARNG officers. The investigation against petitioner was ultimately closed without any finding of wrongdoing. Nevertheless, the promotion was not implemented and, by military order No. 119030 dated June 21, 1988, petitioner was relieved of his Chief of Staff position and transferred from active status in the NYARNG to the Inactive National Guard (hereinafter ING) (see Military Law 49), ostensibly for the purpose of ensuring that petitioner could not be accused of using his position to influence an investigation by the State Inspector GenerFN2 al's office. At the same time, petitioner was demoted to a lower-paying position within the State Emergency Management Office **383 (hereinafter SEMO), which became permanent in September 1988. FN1. Petitioner's title was originally referred to as Adjutant General and his superior officer was called the Chief of Staff. However, in 1988, the title Adjutant General under Military Law 13 was renamed Chief of Staff, and the title Chief of Staff under Military Law 11 was renamed Adjutant General (see L. 1988, ch. 141). FN2. There is some question as to whether such an investigation was formally in progress at the time of petitioner's transfer. A file in the record indicates that an investigation was commenced in February 1990 and closed in June 1993. Thereafter, on October 10, 1990, petitioner turned 55 years *892 old and was required, as a colonel, to retire from NYARNG and be transferred to the retired reserve in accordance with thenFN3 applicable federal law. This was reflected in military order No. 203019 dated October 19, 1990. In November 1990, petitioner commenced an action in Supreme Court against certain State respondents seeking damages as a result of, inter alia, the withdrawal of his promotion and transfer to the ING. Supreme Court (Williams, J.), found, inter alia, that
federal departments also needed to be joined in the action and dismissed the complaint without prejudice to renew[ ] the claims in a court of competent jurisdiction and serv[e] all necessary parties. FN3. The record establishes that if petitioner was promoted to Brigadier General, he would not have been required to retire until attaining 60 years of age in the year 1995. Petitioner thereafter pursued federal administrative remedies including making an [a]pplication for the Correction of Military Record in June 1991. Following various delays, the Army Board for Correction of Military Records (hereinafter ABCMR), in June 1998 and October 1999 decisions, concluded, inter alia, that petitioner's removal from the Chief of Staff position was improper and his involuntary transfer to the ING was in violation of a National Guard regulation stating that officers under a suspension of favorable personnel action are not eligible for said transfer. The ABCMR also noted that it had no authority to correct state records, but indicated that it would be in the interest of justice for petitioner's state NYARNG records to be similarly corrected and, furthermore, that he receive back pay and allowances that he would have received had he not been transferred to [ING] and subsequently discharged. In October 1999, the Secretary of the Army, upon the recommendation of the ABCMR, ordered petitioner's federal Department of the Army records to be corrected to show that [petitioner] was placed on the Retired List at age 60 in the rank of [Brigadier General] effective on 10 October 1995 and paying him the back pay to which he is entitled under Federal law. In March 2000, petitioner wrote to John Fenimore, Flynn's successor as Adjutant General, and requested, inter alia, correction of his state records, reinstatement to the position of DMNA Chief of Staff and [p]ayment of the difference between the salary [he] received as an employee of the [SEMO] and the salary [he] would have received as the Chief of Staff DMNA. On July 14, 2000, Fen-
imore indicated that the matter was being researched and petitioner could expect a detailed response within the next two to three weeks. Subsequently, in a letter dated March 16, 2001, Fenimore stated that petitioner's removal*893 from the DMNA Chief of Staff position in December 1988 was discretionary and could not be overturned. Thereafter, petitioner filed a notice of petition on July 12, 2001, requesting full back pay, benefits and emoluments of employment as the position of Chief of Staff would have entitled petitioner from June 20, 1988 through November 9, 1995, as well as an appropriate adjustment to his retirement benefits. Respondents moved to dismiss. Supreme Court (Keegan, J.) found, inter alia, that certain of petitioner's claims were untimely, and it otherwise denied the motion. Respondents filed an answer in March 2002 that included an affidavit from Peter Colloton, the DMNA Director of Military Personnel, who noted that military orders had been issued and **384 petitioner's state military records had been corrected in accord with the direction of the ABCMR. Petitioner had not previously received copies of the military orders, dated August 26, 1998, from the State Adjutant General's office reFN4 flecting these changes. Among them were military order Nos. 238008 and 238010, which revoked military order Nos. 119030 and 203019, respectively. Additionally, military order Nos. 238011 and 238012 provided for petitioner's promotion to Brigadier General, effective June 20, 1988 and for his retirement, effective October 10, 1995. FN4. Petitioner assumes that he did not receive copies when they were originally issued in 1998 because he was discharged from service at that time. Upon review of these orders, petitioner renoticed his petition asserting a new cause of action alleging, inter alia, that given DMNA's August 1998 revocation of military order No. 119030, the DMNA had already granted the majority of his requests and it was arbitrary and capricious for it to
deny him the remainder of his requested relief in March 2001. Given the circumstances surrounding the new information provided by respondents, Supreme Court permitted the amendment. The court concluded that respondents' March 16, 2001 refusal was arbitrary and capricious and directed respondents to provide petitioner with back pay for the DMNA Chief of Staff position and other associated benefits for the period from June 1988 until October 10, 1995. Respondents appeal. Initially, we agree with Supreme Court's determination that the subject issues are not barred on timeliness grounds. It is clear that, as acknowledged by respondents, petitioner's challenge, as clarified by the renoticed petition, is not from the original determination demoting him in December 1988. Instead, petitioner is challenging the rationality of respondents' March 2001 refusal to comply with his March 2000 request for favorable action in light of, inter alia, respondents' issuance of corrective*894 military orders in August 1998. Consequently, the matters currently before this Court for resolution are not untimely. [1] Next, respondents claim that Supreme Court abused its discretion by allowing petitioner to amend the petition. We do not agree. A party may amend his pleading * * * at any time by leave of court and that [l]eave shall be freely given upon such terms as may be just (Murray v. City of New York, 43 N.Y.2d 400, 404, 401 N.Y.S.2d 773, 372 N.E.2d 560 [1977], quoting CPLR 3025 [b] ). Here, petitioner amended his petition to reflect the facts brought forth through Colloton's affidavit, which established that respondents had revoked the order that transferred petitioner to the ING and had retroactively promoted petitioner to Brigadier General in accordance with the recommendations of the ABCMR. Since this proof was already in respondents' possession, they cannot successfully argue that they were prejudiced by the renoticed claim. Furthermore, in reference to prejudice, respondents contend that Supreme Court abused its discretion by allowing petitioner to submit
additional affidavits even though the parties and Supreme Court had agreed that the filing of additional affidavits would be prohibited. However, petitioner disputes that such an agreement existed and, although respondents raised that issue before Supreme Court, no ruling in their favor ensued. Clearly, Supreme Court was in a better position to resolve the attorneys' conflicting recollections. In any event, it appears that respondents had sufficient **385 opportunity to respond through a letter brief. [2] Turning to the merits, respondents raise several arguments challenging Supreme Court's ruling that the administrative relief obtained by petitioner formed a sufficient basis for the award of back pay, benefits and emoluments. Initially, respondents maintain that the military orders they issued in 1998 could not be construed as revoking or otherwise affecting petitioner's removal from the DMNA Chief of Staff position in 1988 because, inter alia, the Chief of Staff position referred to in military order No. 119030 actually was an unrelated federal position. Alternatively, they argue that, even if the order did refer to that position, it is apparent from the language of military order No. 238008 that it only rescinded that part of military order No. 119030 which transferred petitioner to the ING and did not affect that part relieving him from the Chief of Staff position. Therefore, since they maintain that the dismissal from the DMNA Chief of Staff position remained intact, they contend that it was a nonreviewable exercise of military discretion (see Wenger v. Monroe, 282 F.3d 1068 [2002] ). On the other hand, petitioner sets forth an equally compelling*895 claim that military order No. 119030 encompasses the DMNA position. Furthermore, petitioner provides proof, including an affidavit from a military expert and the provisions of a national guard regulation governing preparation of military orders, which indicates that the language of military order No. 238008 effectively revoked all of military order No. 119030. Accordingly, petitioner argues that respondents' issuance
of the revocation order rendered his removal from the DMNA Chief of Staff position void from the outset. [3] Based upon our review of the particular proof set forth in this record, we find that petitioner sufficiently established that military order No. 119030 did, in fact, refer to the DMNA Chief of Staff position and that military order No. 238008 revoked not only his transfer to ING, but also his removal from the DMNA Chief of Staff position. We further find that Supreme Court reasonably determined that respondents' revocation of military order No. 119030 rendered it void from the time it was issued and, thus, it was arbitrary and capricious for respondents to deny petitioner the relief that he would have been entitled to had the transfer not occurred and he retained the position of DMNA Chief of Staff. We agree with Supreme Court that the granting of such relief is not interfering with a military personnel decision. Rather, it is dealing with the aftermath of that decision and its effect on petitioner's position with the State. Therefore, we conclude that Supreme Court's decision is supported by the evidence and we cannot say it was an abuse of discretion. Given our resolution of the above issue, it is unnecessary to resolve the remaining arguments raised herein. ORDERED that the judgment is affirmed, without costs. CREW III, PETERS, SPAIN and LAHTINEN, JJ., concur. N.Y.A.D. 3 Dept.,2004. McIntosh v. State 7 A.D.3d 890, 776 N.Y.S.2d 381, 2004 N.Y. Slip Op. 03873 END OF DOCUMENT
Tab 4
Page 1 23 Misc.3d 1129(A), 889 N.Y.S.2d 504, 2009 WL 1438213 (N.Y.Sup.), 2009 N.Y. Slip Op. 51001(U) (Table, Text in WESTLAW), Unreported Disposition (Cite as: 23 Misc.3d 1129(A), 2009 WL 1438213 (N.Y.Sup.))
FIND Request: 2009 WL 1438213, at *1, 4 (The decision of the Court is referenced in a table in the New York Supplement.) Supreme Court, Erie County, New York. BUFFALO DEVELOPMENT CORP., Skydeck Corporation, Saturn Development Corporation, Petitioners v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Alexander Grannis, Commissioner, Respondents City of Buffalo, As an Interested or Necessary Party. No. 4350/2008. May 22, 2009. Richard E. Stanton, Esq., Attorney for Petitioners. Andrew M. Cuomo, Attorney General, Karen R. Kaufmann, Esq., of counsel Attorney for Respondents. FREDERICK J. MARSHALL, J. *1 This Article 78 proceeding was the subject of a Memorandum Decision by this Court dated January 7, 2009. In that decision the Court did not specifically address the petitioner's second claim for relief and on May 5, 2009 petitioner's motion for re-argument pursuant to CPLR 2221(2)(d)(2) was granted. This Court, in dismissing the petition, relied on the decision in Citizens' Environmental Coalition, Inc. v. New York State Department of Environmental Conservation, 57 AD3d 1279, 2008 N.Y. Slip Op 10092 [3rd Dept.2009], and found that the NYSDEC's reliance on 6 NYCRR 3753.3(a)(2) did not conflict with the clear language of the Environmental Conservation Law which established the Brownfield Cleanup program (see Title 14Environmental Conservation Law 271401 et seq).
That regulation states that In determining eligibility, the Department shall consider only contamination from on-site sources. 6 NYCRR 3753.3 (a)(2). Petitioner contends that even if that regulation is proper, it was still arbitrary and capricious for the DEC to deny eligibility by determining that the disputed parcels located at 267 Franklin Street and 432 Pearl Street did not meet the source requirement. The DEC counters that those parcels, while contaminated, are not the source of that contamination and that, therefore, the DEC acted properly in denying the petitioner's request to include those parcels as Brownfield sites. The term source or source area is defined in the Commissioner's regulations as a portion of a site or area of concern at a site where the investigation has identified a discrete area of soil, sediment, surface water or groundwater containing contaminants in sufficient concentrations to migrate in that medium or to release significant levels of contaminants to another environmental medium, which could result in a threat to public health or the environment. A source area typically includes, but is not limited to, a portion of a site where a substantial quantity of any of the following are present: (1) Concentrated solid or semi-solid hazardous substances; (2) Non-aqueous phase liquids; or (3) Grossly contaminated media. 6 NYCRR 3751.2(au) Petitioners contend that each of the parcels located at 267 Franklin and 432 Pearl meet that definition and should be approved as part of the Brownfield site. They point to the affidavit of their expert, Paul H. Werthman, P.E. in which he states that both properties contain contaminants in sufficient concentrations to migrate and will eventually release those contaminants to another environmental medium which could threaten the public health or the
environment. Werthman also states that the contamination found at 267 Franklin meets the definition of grossly contaminated media. Thus, he asserts that both parcels are a source of the contamination as defined by the DEC's own regulation and, therefore, the DEC may not exclude those sites on the basis that they are off-site parcels. *2 DEC argues, and petitioner agrees, that the origin of the main contaminant, perchloroethene (PCE), was a former dry cleaning establishment located wholly within the boundaries of a parcel identified as 275277 Franklin Street. (See return Item 22, Section 4.4, page 13; also affidavit of Martin L. Doster, paragraph 18) That parcel was accepted by DEC as part of the approved Brownfield site. The essence of DEC's position is that it may exclude a parcel if it determines that the contamination present did not originate within the boundaries of that parcel. At oral argument, the DEC pointed to that part of the definition of source found in its regulations that requires that the investigation identify a discrete area of a medium containing contaminants. 6 NYCRR 3751.2(au) The phrase discrete area is not defined either in the statute or the regulations. The ordinary and common meaning of discrete according to MerriamWebster's Dictionary is individually distinct or consisting of distinct or unconnected elements. Nothing in the statute, regulations or common definition of discrete suggests that real property boundaries should be determinative of what a source of contamination is, or more importantly, how the scope of a Brownfield site is initially determined. Moreover, in determining eligibility, the DEC may determine that contiguous properties or parcels, or only a portion of any proposed site, meets the statutory definition of brownfield site,' and may approve contiguous properties or parcels or only a portion of a site for participation in the brownfield cleanup program. 6 NYCRR 3753.3 (a)(4)(i) This Court notes that the DEC has previously approved as part of the Brownfield site, an adjacent
parcel known as 279 Franklin Street which appears to contain lower levels of contaminants than the parcel at 267 Franklin which was not approved. (See Fig. 7, Return Item 22) And the parcel at 279 Franklin was approved notwithstanding the fact that it has never been identified as being a point of origin (or source) of the contamination. The DEC does not contest the finding that the ground water at both 432 Pearl Street and 267 Franklin Street is contaminated or that the contamination has migrated via groundwater to those sites from the point of origin. (See letter of Dale A. Desnoyers, Exhibit 19 to volume 2, compendium of exhibits attached to petitioner's Notice of Petition) In the case of 432 Pearl Street, Mr. Desnoyers characterized the contaminants as marginal but goes on to state that those marginal levels were attributable to advective diffusion in the ground water. Reading the Desnoyers letter in conjunction with the affidavit of DEC Engineer Martin L. Doster, sworn to June 25, 2008, it is clear that the PCE contaminant migrated to the parcels located at 267 Franklin Street and 432 Pearl Street with the point of origin being the former dry cleaner site located at 275277 Franklin Street. *3 Furthermore, respondent DEC has never contested that the contaminant PCE, in sufficient quantities, can be a threat to public health and the environment. Nor does the DEC contest the Werthman conclusion that the parcel at 267 Franklin Street contains grossly contaminated media.Further support for the petitioner's position can be found in prior legislative history. For example, in his comments on the draft revised regulations, former Member of the Assembly and now State Comptroller Thomas P. DiNapoli noted on page 44 of those comments that the proposed regulations state that in considering BCP's eligibility, the DEC may consider only that contamination from a source or sources located on the Brownfield' (see proposed Part 3753.3(2)) (See Exhibit 4 to Respondent's Memo. of Law in opposition to petition) In response to those and other comments to the
proposed Part 375 regulations, the DEC revised the proposed regulation 3753.1(a)(2)(i) to change the on-site language to consider only contamination from on-site sources. (emphasis added) (See Response To Comments, Exhibit 5, page D6 to respondent's Memorandum of Law) The comment goes on to state that this is consistent with the remedial programs' long history of addressing contamination at the source and working out from the source. (emphasis added) This change in language, which appears in the regulation in its final form, does not support the Attorney General's conclusion that the phrase on-site sources is restricted to a point of origin interpretation. Rather, the comment supports petitioner's contention that the entire Brownfield site should include not only the area containing the point of origin of the contamination, but also those areas which have been affected via contamination migration from the point of origin. Thus it is clear that both parcels meet the definition of source as defined by the DEC's own regulations. The Court is well aware that in a proceeding seeking judicial review of administrative action, the Court may not substitute its judgment for that of the agency responsible for making the determination. Flacke v. Onondaga Sys., 69 N.Y.2d 355, 507 N.E.2d 282, 514 N.Y.S.2d 689. [W]here ... the judgment of the agency involves factual evaluations in the area of the agency's expertise and supported by the record, such judgment must be accorded great weight and judicial deference ( Flacke, 69 N.Y.2d @ 363). However, it is well settled law that, where the question is one of pure legal interpretation of statutory terms, deference to the [administrative agency] is not required Matter of Toys R Us v. Silva, 89 N.Y.2d 411, 676 N.E.2d 862, 654 N.Y.S.2d 100. Compare Matter of Lighthouse Pointe Prop. Assoc., LLC v. NYSDEC, 2009 Slip. Op. 00878 [4th Dept.2009] Such is the case here. In this challenge, petitioner does not seek to question the findings of the DEC as to location and concentration of contamina-
tion. Both parties to this dispute agree that the contamination has migrated from its original point of origin so as to affect the four parcels which petitioner seeks to develop. The respondent DEC attempts to justify its conclusion that the two properties in question do not meet the definition of Brownfield site by ignoring its own definition of source and thereby concluding that both parcels are considered to be off-site and therefore ineligible under 6 NYCRR 3753.3(a)(2). *4 432 Pearl Street and 267 Franklin Street meet the definition of source because investigation has identified a discrete area of groundwater containing contaminants (in this case PCE) in sufficient concentrations to migrate in that medium, or to release significant levels of contaminants to another environmental medium, which could result in a threat to public health or the environment. 6 NYCRR 3751.2(au). 267 Franklin Street is also a source because there is a substantial quantity of grossly contaminated media on-site. In his letter to the petitioner, Director Dale A. Desnoyers also justifies the refusal of the DEC to admit these parcels as Brownfield sites by concluding that both sites may be remediated by addressing the source contamination found on the previously approved Brownfield site. He also points to the availability of the State Hazardous Waste Remedial Fund as a means to clean up the two parcels in dispute. (See letter of Desnoyers, supra.) However, neither of these considerations are found either in the statute or the regulations which define a Brownfield site. The DEC may not exclude the disputed parcels as Brownfield sites simply because there exist alternative means to cleanse them of their contamination. And the mere existence of alternative means to remediate contamination does not compel the conclusion of the DEC that the redevelopment or reuse of these parcels will not be complicated by the presence of a contaminant. The undisputed evidence points to the contrary. In conclusion, the decision of the DEC to exclude 267 Franklin Street and 432 Pearl Street from
eligibility as Brownfield sites was arbitrary and capricious and its interpretation of its own regulations was erroneous. Upon re-argument, the petition's second claim for relief is granted and the DEC is directed to designate 267 Franklin Street and 432 Pearl Street as Brownfield sites. N.Y.Sup.,2009. Buffalo Development Corp. v. New York State Dept. Of Environmental Conservation 23 Misc.3d 1129(A), 889 N.Y.S.2d 504, 2009 WL 1438213 (N.Y.Sup.), 2009 N.Y. Slip Op. 51001(U) END OF DOCUMENT
Tab 5
Page 1 20 Misc.3d 566, 858 N.Y.S.2d 542, 2008 N.Y. Slip Op. 28186 (Cite as: 20 Misc.3d 566, 858 N.Y.S.2d 542)
414k1350 Right to Permission, and DisFIND Request: 20 Misc. 3d 566, 578 Supreme Court, Orange County, New York. DOWNEY FARMS DEVELOPMENT CORP., Petitioner, v. TOWN OF CORNWALL PLANNING BOARD, Respondent. April 16, 2008. Background: Developer brought Article 78 proceeding against town planning board, contending that, due to bad-faith delays in review process on its application for proposed subdivision, it had vested rights to continue to proceed under prior version of local zoning law after amendment to zoning law upzoned area encompassing proposed development from one to two acres for single family residences. Holdings: The Supreme Court, Orange County, Elaine Slobod, J., held that: (1) developer made threshold showing that, in bestcase scenario, it was at least possible for it to have obtained final approval and to have filed its plat map with county clerk prior to zoning law amendment; (2) dilatory actions by board and its consultants supported special facts exception finding; and (3) declaration was warranted that, due to board's improper delaying actions, developer obtained vested rights, prior to amendment, to proceed with its subdivision application under provisions of local code as it existed before amendment. Developer's petition granted. West Headnotes [1] Zoning and Planning 414 1352 cretion 414k1352 k. Change of regulations as affecting right. Most Cited Cases (Formerly 414k376) Developer contending that bad-faith delays in town planning board's approval process for its application for proposed subdivision gave it vested rights to proceed under prior version of local zoning law made threshold showing, through testimony of its experts on subdivision law and engineering, that, in best-case scenario, it was at least possible for it to have obtained final approval and to have filed its plat map with county clerk prior to amendment to zoning law, which up-zoned area encompassing proposed development from one to two acres for single family residences. [2] Zoning and Planning 414 1352
414 Zoning and Planning 414VIII Permits, Certificates, and Approvals 414VIII(A) In General
414 Zoning and Planning 414VIII Permits, Certificates, and Approvals 414VIII(A) In General 414k1350 Right to Permission, and Discretion 414k1352 k. Change of regulations as affecting right. Most Cited Cases (Formerly 414k376) Dilatory actions by town planning board and its consultants throughout approval process for developer's subdivision application supported special facts exception finding in developer's Article 78 action seeking determination that, due to board's bad-faith delays, it had vested rights to continue under prior version of local zoning law, after amendment to zoning law up-zoned area encompassing proposed development from one to two acres for single family residences; some actions precipitating otherwise avoidable delays were not explained, and others, though seeming to be part of thorough and rigorous review process, appeared upon closer scrutiny to have been designed to delay without justifiable causes. McKinney's CPLR 7801 et seq.; McKinney's General Municipal Law 239n(2).
[3] Zoning and Planning 414
1352
414 Zoning and Planning 414VIII Permits, Certificates, and Approvals 414VIII(A) In General 414k1350 Right to Permission, and Discretion 414k1352 k. Change of regulations as affecting right. Most Cited Cases (Formerly 414k376) Cases involving special facts exceptions to general rule that zoning application must be judged upon the law as it exists at the time of zoning board's decision inherently involve concepts of vested rights, and therefore each matter must be determined according to its own unique circumstances. [4] Zoning and Planning 414 1352
Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd, PLLC, New Windsor, attorneys for respondent. ELAINE SLOBOD, J. *567 The Town of Cornwall amended its local zoning law effective June 23, 2005. Among the changes made at that time to the Town's code the area on New York State Route 94 at the intersection of Jackson Avenue in the vicinity of the Bethlehem Church, an historic landmark, was up-zoned from one to two acres for single family residences. On April 12, 2004, some fourteen months before this zoning change, the petitioner, Downey Farms Development Corp. (Downey Development) filed an application with the respondent Planning Board to subdivide Lands of Comito (Comito), a FN1 parcel of approximately 62.59 acres on Route 94 situated generally to the east of Jackson Avenue and the Bethlehem Church. The subject parcel is bisected by Route 94. In its initial submission to the respondent Board, the petitioner proposed the creation of 25 single family lots. On its 37 **544 acre parcel situated on the north side of Route 94 petitioner initially proposed the creation of 24 lots averaging approximately 1.5 acres in size, with one containing slightly less than 1 acre and two containing slightly more than 2 acres. The 25 acre parcel on the south side of Route 94 contained significant designated wetlands with their attendant 100' buffer zones. The latter acreage is a natural drainage area, as well as the proposed drainage area for the storm water runoff from the home sites petitioner seeks to develop on the northern parcel. Because of the wetland and buffer restrictions only one building site was proposed on the southern parcel. FN1. The acreage is the aggregate of three separate tax parcels. Petitioner held title to one and was the contract vendee of the other two. At the time of petitioner's April 12, 2004 application, the bulk requirements of Cornwall's local
414 Zoning and Planning 414VIII Permits, Certificates, and Approvals 414VIII(A) In General 414k1350 Right to Permission, and Discretion 414k1352 k. Change of regulations as affecting right. Most Cited Cases (Formerly 414k376) Cumulative effect of action and inaction by town planning board and its advisors, which engaged in discernable pattern of delay of progression of developer's subdivision application, created substantial delay that denied developer a fair opportunity to at least attempt to obtain timely final subdivision approval and file its subdivision map before local zoning laws were amended to up-zone area encompassing proposed development from one to two acres for single family residences, warranting declaration that, due to board's improper delaying actions, developer obtained vested rights, prior to amendment, to proceed with its subdivision application under provisions of local code as it existed before amendment. **543 Dorfman Knoebel & Conway, Nyack, attorney for petitioner.
code, as indicated, permitted single family residences in this zone on one acre. In fact, in 2001 the petitioner's principals had obtained final approval from the respondent Board for Downey Farms Estates (Downey Farms), a single family subdivision of 14 one acre lots situated in this same zone. While petitioner's instant application was wending its way through the Planning Board's review process, the Town *568 Board of Cornwall began a review of the Town's Comprehensive Plan. That review culminated in amendments to the Plan including a recommendation for up-zoning the area in which petitioner's proposed Comito subdivision was situated. As it would turn out, the Town Board, effective June 23, 2005, amended its zoning code in conformity with the revised Comprehensive Plan by up-zoning petitioner's lands from one to two acre lots. That action effectively nullified petitioner's 24 FN2 lot subdivision application which, as indicated, had been proceeding before the Planning Board under the prior one acre zoning. Notwithstanding appearances at multiple work sessions, Planning Board meetings, submission of numerous plan revisions, 3 visual impact studies, an archeological study and a traffic study over more than 14 months, that plan had barely received preliminary subdivision approval from the respondent when the zoning changed. FN2. Petitioner eliminated one of the original 24 lots on the northern parcel by merging two proposed adjoining lots into one larger lot by simply removing the lot line between them. Respondent argues that it was just acting diligently and without bad faith. Petitioner ascribes the cause of the delay to abusive administrative procedures by the respondent. Therefore, petitioner commenced the instant Article 78 proceeding in which it contended that because of respondent's bad faith delays it had obtained vested rights to continue to proceed under the prior one acre zoning. Petitioner argued that the evidence of the respondent and its advisors' dilatory tactics established its entitlement
to a special facts exception from the general rule that an application must be judged upon the law as it exists at the time of the Board's decision (see Matter of Pokoik v. Silsdorf, 40 N.Y.2d 769, 772773, 390 N.Y.S.2d 49, 358 N.E.2d 874). Respondent's motion to dismiss this proceeding pursuant to CPLR 7804(f) was denied by decision/order dated January 3, 2006. On August 4, 2006 after full paper submissions, the undersigned concluded by decision/order that sufficient factual issues had been raised to suggest at least the possibility of bad faith (Hatcher v. Planning Board of the Village of Nelsonville, 111 A.D.2d 812, 813, 490 N.Y.S.2d 559) or possibly of a combination of both deliberate and some innocent administrative procrastination by respondent (see Our Lady of Good Counsel R.C. Church and School v. Ball, 45 A.D.2d 66, 356 N.Y.S.2d 641, affd. on op. of App.Div., **54538 N.Y.2d 780, 381 N.Y.S.2d 866, 345 N.E.2d 338) to warrant a hearing. *569 As a threshold issue, the petitioner was directed in the latter decision/order to be prepared to demonstrate by testimony from a disinterested third-party expert that, barring respondent's bad faith, it was possible under a best case scenario for it to have obtained final approval and to have filed its map with the County Clerk prior to June 23, 2005, the effective date of the amended ordinance. Extensive testimony was given on this issue before the undersigned on five different days between June 5, 2007 and July 23, 2007. Following receipt of trial transcripts, the parties submitted post trial and reply briefs. Threshold Issue To satisfy the threshold question raised in the decision/order of August 4, 2006, the petitioner offered the testimony of Terry Rice, Esq., a recognized authority on subdivision law (Article 16 of New York's Town Law), particularly as that enactment relates to the complexities of zoning and subdivision procedures as they in turn are interwoven
with the requirements of SEQRA (Article 8 of the ECL). The sum and substance of Mr. Rice's testimony was to the effect that 1213 months from initial submission would constitute a generous time frame within which final subdivision approval could have been obtained from the respondent Board and petitioner's plat filed with the County Clerk. When pressed on cross-examination, respondent's own engineer, Mark Edsall, acknowledged that if the petitioner had been able to satisfy certain pre-conditions for final approval required by statute, rule or imposed by the respondent Board (i.e., SEQRA, County Health Department and Orange County Department of Planning's (OCDP) GML 239n reviews, Department of Transportation (DOT) approval, etc.) it could have filed its final plat before June 23, 2005, the effective date of the amended code. To provide an engineer's perspective of what could be a reasonable time-line for the progression of petitioner's 2425 lot application, the petitioner offered the testimony of Thomas B. Vanderbeek, a professional engineer with a degree in civil engineering and water resources. Mr. Vanderbeek is an engineering consultant with substantial experience in the area of drainage. He is a consultant for various municipalities in Rockland County. Mr. Vanderbeek has also acted as a project engineer for a number of single family subdivisions, including several subdivisions in Orange County which recently had received *570 final approval, one in the Town of Goshen with 34 lots, another in the Town of Woodbury containing 67 lots. He also alluded to a larger 450 unit project in this County situated in the Town of Woodbury. In addition to creating time-line charts depicting best case scenarios for the theoretical progression of a 24 lot subdivision application from submission to final approval in 44 weeks, Mr. Vanderbeek testified that his 34 lot Goshen subdivision had obtained County Health Department approval within 45 months of referral and the 67 lot Wood-
bury subdivision in about 6 months. Therefore, based on his experience, Mr. Vanderbeek opined that in practice it was possible for the Comito subdivision to have obtained final approval and plat filing by March 14, 2005. Additionally, Mr. Vanderbeek observed that in his experience he had never heard of a traffic study being required for a modest subdivision of 24 lots. Nor could he recall a visual impact study being required for a proposed drainage pond. Mr. Vanderbeek also indicated that certain items such as obtaining approval**546 from the County Health Department and creation of a drainage district were routinely deferred by a Planning Board as contingencies which, among others, make up the conditions of a Conditional Preliminary Subdivision Approval. The implication being that in the Comito matter excessive time spent on these issues prior to preliminary approval was not warranted. Finally, he testified that DOT approval of off-site improvements to Route 94 would occur after the plat had been filed. [1] Based on the above testimony and related exhibits, there is credible evidence that other generally comparable subdivisions had been able to clear third-party reviews, including the rigorous review of water and septic designs by the Orange County Health Department, in as little as four to five months. It also appears that a public hearing could have been scheduled and preliminary subdivision approval granted with many items imposed as conditions to that approval rather than as preFN3 conditions to preliminary approval . As was the case in the Downey Farms subdivision, the Board could have permitted petitioner to *571 pursue these conditions simultaneously between preliminary and final subdivision approval. Therefore, this Court is satisfied that petitioner has demonstrated that in a best case scenario it was at least possible for it to have met the June 23, 2005 deadline if it had acted diligently. The evidence as a whole in this regard indicates that petitioner and its advisors responded in a timely manner to respondent's requests.
FN3. Petitioner's Planning Board attorney testified that petitioner was more or less pressured into agreeing to several questionable studies as preconditions for a public hearing and negative declaration after the Board's planning consultant signaled that otherwise she was prepared to recommend a full environmental review with the consequent inherent extended delays of an EIS. However, satisfying the threshold issue of a best case scenario possibility does not end the matter, for the inquiry then turns to whether the reason petitioner's application was so far from final approval on June 23, 2005 was due to deliberate delaying tactics and/or negligence of the respondent? If there is credible proof of such a nexus, a final inquiry arises, viz, whether the evidence supports the further conclusion that any bad faith and/or innocent delays were in the aggregate so substantial that they effectively deprived petitioner of a fair opportunity to obtain and file a final plat before June 23, 2005. This Court finds that the evidence supports petitioner's position on both of these remaining issues. Delay While there were a fair number of factors which may have precluded an early vote on preliminary subdivision approval, the evidence does not support any valid reason for the respondent Board's excessive delay in the initial step of scheduling a public hearing. Since an EIS was not required in this matter, notwithstanding the make-work studies directed by the respondent Board, a negative declaration should have been filed and a public hearing held within 62 days of receipt of a complete preliminary plat (subdiv. 5(d)(i)(1) of 276 of the Town Law). Subdivision E of 1255 of the General Code of the Town of Cornwall also provided that:
Within 30 days of receipt of such documents in proper form [the Board] shall fix [a] date for [a] public hearing on the proposed preliminary plat ... (emphasis supplied) **547 Proper form constituted submission of copies of the preliminary plat (emphasis supplied) and a vicinity map which petitioner had provided at the outset. Nevertheless, after receipt of these preliminary documents in April, 2004, the respondent Board, without good cause, delayed scheduling the public hearing for ten months by requiring near frivolous studies and then supplements thereof. *572 From the beginning of its review of the Comito application, there is evidence that the respondent Board was disinclined to act in a timely manner. Avoidance of the mandate of GML 239n, subdivision 2 was perhaps the first indication of intentional or negligent delay. The office of the Orange County Department of Planning (OCDP) is the agency authorized by the Orange County Legislature pursuant to the provisions of subdivision (1)(a) of GML 239l to automatically receive, review and provide recommendations on local subdivision applications pursuant to the provisions of GML 239n. The respondent Board was obligated to refer the petitioner's preliminary request for consideration to the OCDP upon receipt of application for preliminary and/or final approval (GML 239n subdiv. 2emphasis supplied). The respondent Board would not grant preliminary approval before receipt and consideration of the recommendations of OCDP. Yet, referral was not made to OCDP until ten months after petitioner's application was filed and then only after the public hearing had commenced. If a timely referral had been made, then OCDP's recommendations (which after excessive delay in referral had been returned to the respondent Board in less than 30 days) even if only in preliminary form could have been addressed by petitioner well before the first evening of the public hearing on February 7, 2005. As indicated, the re-
spondent did not think to refer the matter to OCDP until three days after the February hearing. The absence of OCDP's report was cited as one of the reasons that the public hearing could not be closed on February 7th. For some unexplained reason even after OCDP's report had been received by respondent two days before the adjourned hearing date of March 7th, the respondent was unaware of its receipt. This lack of communication among the respondent Board and its advisors provided a basis to keep the hearing open for yet another month. Although other factors may also have been at play to keep the hearings open from February to April, 2005, the lack of timely compliance with the mandate of GML 239n, subdiv. 2 and then the failure to realize that a favorable recommendation from OCDP had been received constituted substantial reasons for delaying preliminary approval for approximately two-three months. Delay attributed to this factor was conceivably greater when one considers the fact that petitioner was placed in the position of responding to OCDP's recommendations after the public hearing rather than prior thereto. *573 Another force which kept the public hearing open was Board member Klosky's opposition to a motion to close the hearing in February 2005 because, as he phrased it, I'm always thinking of things fun for consultants to do. (emphasis supplied) The fun thing he asked for was a report on the quality of the existing stone walls ... Read in isolation this request might not suggest that it could have been a pretext for delay. However, the minutes of the Board's September 7, 2004 meeting at which Comito was on the agenda, indicate that Mr. Klosky had also mentioned his concern for preserving stone walls at that **548 time. Yet he did not assign this issue a priority in September so as to request that the Board's consultants ascertain the quality of those walls. Nevertheless, five months later he suddenly changed his priorities and op-
posed closing the public hearing in order to give the Board's consultants a fun thing to do. Since Mr. Klosky is himself a professor of engineering, it is doubtful that he required the Board's Planning Consultant or Town Engineer to educate him as to the viability of the stone walls on Comito's northern parcel. The scheduling of the public hearing was in part also held up by the Board's insistence that the Town Supervisor first decide whether or not the drainage basin proposed on petitioner's southern parcel should take the form of a municipal drainage district. Allegedly, the Supervisor and the Town Attorney could not reach a consensus on this issue for the better part of a year thus adding another ingredient of delay to the progression of the Comito application. Even the seemingly uncomplicated decision of the Town's Highway Superintendent to issue a waiver for a 2 degree slope deviation for but a portion of the project's interior roadway, another precondition imposed for preliminary approval, took almost ten months. This delay prompted the Town's Engineer to observe at one point that the petitioner had been very patient waiting for this waiver. As if to explain away his apparent tardiness, the Highway Superintendent's subsequent cover letter to the Town Engineer seems to imply that issuance of that simple waiver had been delayed because his decision had required numerous meetings with the Engineer. Due to an initial drafting error by petitioner's engineers, a question arose prior to the scheduling of the public hearing whether the designated wetlands and buffers on the southern parcel also encumbered Comito's northern parcel. Respondent's consultants caused some minor delay by asking for clarification *574 of the issue even though they already had in their possession a very recent NYSDEC Freshwater Wetland Boundary Validation map dated December 29, 2004 which conclusively established the fact that the wetlands and buffer did not extend into the northern parcel.
Once the public hearing was opened, other delays were caused by meaningless consideration given by the respondent Board to such issues as the possible negative effect of petitioner's decision to eliminate one of the original 25 lots by combining two contiguous lots. The respondent Board appeared inclined to respond to any suggestion which would cause delay to the Comito application including responding to a resident's misguided contention that a video existed depicting flooding in the vicinity of the proposed detention pond when in reality the video when reviewed showed no such thing. The Courts normally are not permitted to second guess the judgments of local planning boards or question their motives. Yet the fundamental premise for a special fact exemption is a finding of bad faith. Therefore, the motivation of the respondent Board becomes a paramount issue. In the context of the whole scenario of respondent's processing of the Comito application, its decision to delay scheduling a public hearing until petitioner had retained experts to prepare first one, then another visual study depicting the potential effect upon the Bethlehem Church of the proposed detention pond appears highly suspect. The half acre pond in question apparently will be sited in a field at a point the length of two football fields from the **549 Church. The pond will be located on the opposite side of both the state highway and Jackson Avenue from the Church. The pond site will be mostly obscured year round from the Church by trees and will be hidden, at least in part, by a small 2'4' earthen berm on the project's 25 acre parcel situated on the south side of the highway. Even the sight of the earthen berm will be shielded by the existing guardrail on Route 94. Respondent has not refuted petitioner's common sense argument that by simply placing a red flag(s) or traffic cone(s) at the site of the pond and inviting interested Board members to stand on the Church's steps, driveway, etc., would not only have permitted the Board members to have a clearer picture of
the pond's potential effects, but weeks, perhaps as much as two months could have been saved on petitioner's time-line by eliminating these studies. The Court notes that Mr. Klosky did not hesitate *575 to make a field trip to the historic Church to observe the existing traffic flow on Route 94. Absent evidence that the local code established a view shed protecting other town residents' views of the historic Salisbury Trestle, the Court also finds more than suspect the Board's decision to make petitioner produce a visual study of the potential obstruction by Comito's proposed residential structures on others' ability to view the Trestle. The Court notes that the official County tax map for Section 1 of the Town of Cornwall appears to place the residents whose views might allegedly be affected to be some 4,000 or more feet from the FN4 Trestle. It is significant that even the Board's Planning Consultant acknowledged that she had not seen the need for this Trestle study. FN4. Tax map distances are not necessarily 100% reliable. Petitioner's principals believe that they are in a somewhat unique position to offer at least a general comparative example to support their argument that it was probable that they could have met the June 23, 2005 deadline absent the machinations they claim were involved in respondent's processing of the subject subdivision. In May 2001 the Comitos had obtained final subdivision approval from the respondent Board for Downey Estates, a 14 lot subdivision situated on 27.2 acres also on Route 94 but on the opposite side of Jackson Avenue from the subject subdivision. Downey Estates is closer to the Bethlehem Church and contiguous to both the historic Salisbury Trestle and Downey House. Petitioner points out that based on their submission of only a one sheet sketch plan of their 14 lot Downey Estates subdivision, it was immediately accepted for review (Comito submitted detailed drawings of 16 pages). Within 2 months it had received the requisite Town Board approval to pro-
ceed as a cluster development (Comito is not a cluster design). In less than 6 months Downey Farms was placed on the respondent's agenda for a public hearing (Comito took 10 months). A negative declaration was voted upon on the first night of that public hearing. The hearing, at which no one from the public made comments (Comito drew strong public objection, including calls for delay until rezoning passed), was then closed, and preliminary subdivision approval granted that very night (Comito was kept open for 2 months). Downey Estates also fronted, and all its traffic accessed New York State Route 94 at a point approximately 1000 feet generally west of Jackson *576 Avenue (Comito's traffic entered Route 94 approximately 1700 feet generally east of Jackson Avenue). However the respondent did not require a traffic study (Comito required such a study as well as an addendum). Also, although Downey Farms actually adjoined**550 the Salisbury Trestle and visually impacted Downey House, the respondent did not require a visual impact study of either of these historic sites (Comito required three visual studies). It is significant that Downey Farms' preliminFN5 ary approval was conditioned on prospective approval of the New York State Department of Transportation (DOT), the Town's anticipated approval of drainage specifications, anticipated future agreement as to maintenance of the drainage area and assumed future incorporation of unspecified erosion control measures to protect an nearby stream. Indeed, in order to avoid, as respondent's draft negative declaration was phrased, future delay to the applicant the respondent Board in its 2000 negative declaration acknowledged that it was even granting conditional preliminary approval to the petitioner's Downey Farms subdivision prior to receipt of the Office of Parks Recreation and Historic Preservation (OPRHP) determination of significance. FN5. Preliminary approval is a precondition to obtaining the crucial review of the
Orange County Board of Health. The subject Comito subdivision is larger than Downey Farms and must of necessity discharge storm water from its northern parcel into a detention pond on the south side of Route 94. Nevertheless, there are enough similarities between the two projects for the Court to conclude without the necessity of reading between the lines, that the subject Comito project was treated in a distinctly different manner because an amendment to the Town's Comprehension Plan and the code's bulk lot area requirements for this zone were in the offing. Superimposed on the actions of the respondent Board are certain statements made by members of the Board which indicate that they were motivated to delay the subject application until the zoning code was amended. Not only were members of the respondent Board of necessity aware of pending changes to the bulk requirements for this zone, but they were not reluctant to express opinions publically suggesting that the subject area should not be impacted by petitioner's 24 lot subdivision. The following minutes of the respondent Board's November 1, 2004 meeting which recorded a discussion by Board members *577 after petitioner and their attorney had left the meeting, strongly suggest that at least one Board member was motivated to delay petitioner's application until the zoning was changed: DISCUSSION MR. HAZIRJIAN: What can we recommend to the Town Board about this particular project [Comito] we just discussed? I mean, it was obvious and I didn't have the, I don't know how to say this nicely, they're pushing for that last lot that they don't have a well for, that's exactly the kind of out of control development these guys are looking to scrape every dime out of this property, excuse me, and they're coming to a public meet-
ing, how about doing one less, 25, 26 isn't enough, what can we say to the Town Board? What can we say to the Town Board? How about change the zoning quick? Isn't there something we can say? Can't we examine this and say help us? (emphasis supplied) Next, on December 14, 2004 respondent Board member Led Klosky appeared before the Cornwall Town Board to make a statement at a public hearing on proposed changes to the Town's Comprehensive Plan. In a three-page written **551 presentation he urged the Town Board to adopt lower density zoning along Route 94 near the Bethlehem Church as soon as possible. He stressed that: Time is of the essence here, and if action isn't taken quickly, that currently rural look on Route 94 that we all treasure will be gobbled up by subdivisions ... (emphasis supplied) Although Mr. Klosky indicated that he was expressing his personal views, he nevertheless added that he would be surprised if a majority of [his fellow Planning Board members] disagreed with the ideas put forward in his statement. [2][3] Special facts exceptions cases such as Matter of Pokoik inherently involve concepts of vested rights (Marsh v. Town of Huntington, 39 A.D.2d 945, 333 N.Y.S.2d 990), thus each matter must be determined according to its own unique circumstances ( Matter of Estate of Kadin v. Bennett, 163 A.D.2d 308, 309, 557 N.Y.S.2d 441). The Pokoik circumstances were uncomplicated. When a village building inspector refused to act on a permit application, a court directed him to do so. Thereafter it took almost three months for him to act, at which time he denied the permit. Between the date on which the petitioner subsequently filed an appeal with the ZBA and the date scheduled *578 for a hearing before that board, the village amended its zoning ordinance thereby removing a property right to which petitioner previously had
been entitled. The Court of Appeals at p. 772773 characterized respondent's actions as obvious dilatory tactics and decried such administrative procrastination calculated to deny rights to use land in a currently lawful manner. In Figgie v. Town of Huntington, 203 A.D.2d 416, 610 N.Y.S.2d 563, the Town's Planning Director simply rejected a revised site plan for expansion of an existing building. The Director's initial explanation was that the property was going to be rezoned from light industry to residential. As forthrightly as that site plan was initially rejected, the Appellate Division found that the failure to act on the plan for that reason and then for alleged technical deficiencies in the plans was designed to prevent the petitioner from developing his property prior to rezoning and therefore vested rights to the prior zoning code had been acquired. By contrast, the circumstances surrounding the progression of a subdivision application involve a myriad of possible interplays among the provisions of Article 16 of the Town Law, GML 239n, SEQRA, local codes, etc. Those factors when added to the broad scope of a Planning Board's discretion, make it difficult for a court to conclude that there was such unreasonable delay, innocent or otherwise, to support a special facts exception finding (see Matter of Our Lady of Good Counsel R.C. Church v. Ball, 45 A.D.2d 66, 73, 356 N.Y.S.2d 641 aff. on the App.Div. op. 38 N.Y.2d 780, 381 N.Y.S.2d 866, 345 N.E.2d 338). However, in the Comito matter the Court finds that there was evidence of enough dilatory actions by the respondent Board and its consultants throughout the process to support a special facts exception finding. Some actions which precipitated otherwise avoidable delays have not been explained, others, while appearing just part of a thorough and rigorous review process, upon closer scrutiny appear to have been designed to delay without justifiable bases. Such a conclusion finds ample support in the words of some Board members. There is no explanation for the Board's failure
to follow the mandate of GML 239n(2). Had referral to OCDP been made even four months after receipt of petitioner's**552 April 2004 application, as suggested in Mr. Vanderbeek's time-line, the County's recommendation could have been received well before the public hearing in February 2005, thus avoiding that delay as well as the down time lost by petitioner when forced to respond to OCDP after the close of the public hearing. *579 Had respondent known that the recommendation was in hand before the March 2005 hearing another month's adjournment might have been avoided. No serious attempt has been made to explain why the Town's Supervisor could not make a decision for the better part of a year as to the legal form the drainage basin document should take. Nor is there an explanation why the Highway Superintendent took ten months to provide a 2 degree slope deviation waiver for but a part of the interior roadway. There is an indication in the record that he was prepared to issue the waiver some 5 or 6 months earlier. Also, unexplained was the delay caused by the Board's requirement for a full traffic impact study for this modest 23 lot northern parcel (see Matter of Morse v. Town of Gardiner Planning Board, 164 A.D.2d 336, 342, 563 N.Y.S.2d 922). Board member Klosky made an exaggerated characterization of Comito as: a project of this magnitude going in at an intersection such as Jackson Avenue I regard as being [an] extremely dangerous interaction [sic]. I went out and observed it personally ... (emphasis supplied) The objective data collected in the Comito's detailed professional traffic study concluded that Route 94 in the vicinity of Comito's single access road onto Route 94, which was not at the intersection but more than a quarter mile from the Jackson Avenue intersection was not in fact a high accident location. The report's predictable conclusion was that Comito would not have a significant impact on
traffic. Even when the Board requested a supplemental report in order to factor in the possible affect on Route 94/Jackson Avenue from traffic associated with The Reserve, a 450 unit development in a neighboring town, still no objective evidence of adverse impact was revealed from what the supplemental report described as only a fraction of second delay related to the sight generated traffic effect of Comito. The visual studies to determine the potential impact of the detention pond on the Bethlehem Church and the Trestle study are just as difficult to justify, particularly when the actual impact of the pond could have been more accurately gauged by a simple visit to Church grounds by interested Board members. The study to analyze potential visual obstruction of the Salisbury Trestle was essentially meaningless since there was no recognizable legal right which could be enforced (see 1 N.Y.Jur. 2d, Adjoining Landowners 6164). *580 The Court finds that at least four to five months of unnecessary delays can be attributed to just the GML 239n factors and visual and traffic studies. Certainly the other enumerated factors caused another one to two month delay. Absent the combination of all these delays, it was more than just possible for petitioner to have become one of that admittedly small group of subdivisions which perhaps could have cleared Health Department review and satisfied other conditions of preliminary approval within 4 to 5 months. Indeed, if petitioner had been made fully aware of the contents of the aforementioned comments made by certain members of the respondent Board, it is more than likely that petitioner also would have made time of the essence and therefore expedited its response to every request by the respondent. **553 Conclusion [4] This Court finds that there is sufficient evidence, both direct and circumstantial, establishing a discernable pattern by the respondent Board and/or one or more of its advisors of either inten-
tional or innocent, perhaps a combination of both, delay of the progression of petitioner's application. The cumulative effect of their action and inaction created a substantial delay which denied petitioner a fair opportunity to at least attempt to obtain timely final subdivision approval and file its subdivision map before June 23, 2005. Accordingly, the Court grants the petition to the extent that it hereby declares that due to respondent's improper delaying actions the petitioner had obtained vested rights prior to June 23, 2005 to proceed with the subject 24 lot subdivision under the provisions of the local code as it existed prior to June 23, 2005. Counsel are directed to pick up their hearing exhibits on or before April 30, 2008. The above shall constitute the decision and judgment of the Court. N.Y.Sup.,2008. Downey Farms Development Corp. v. Town of Cornwall Planning Bd. 20 Misc.3d 566, 858 N.Y.S.2d 542, 2008 N.Y. Slip Op. 28186 END OF DOCUMENT
Tab 6
FIND Request: 2006 WL 250520, at *11 (The decision of the Court is referenced in a table in the New York Supplement.) Supreme Court, Nassau County, New York. WALDBAUM, INC., Plaintiff, v. INCORPORATED VILLAGE OF GREAT NECK, Richard E. Deem, Mayor, Ralph J. Kreitzman, Trustee, Edna GuilorSegal, Trustee, Mark D. Birnbaum, Trustee, Mitchell B. Beckerman, Trustee, as The Board of Trustees of the Incorporated Village of Great Neck, Kings Point Tenants Corp, Reckson Operating Partnership, LP, United States Postal Service, James E. Messineo, AHJ Associated, Universal Utilities, Inc., Gail Crampton Streich, Joan Echausse, and Roy I. Mandelbaum, Esq., Executor of the Estate of Nancy Duhigg, Great Neck Water Pollution Control District and The Town of North Hempstead, Defendants. No. 008948/04. Jan. 9, 2006. STEPHEN A. BUCARIA, J. *1 Proceeding pursuant to CPLR Article 78 brought by the Petitioner, Waldbaum, Inc., for a judgment vacating and annulling Local Law No. 8 of the Year 2004 on the grounds that it was adopted by the Respondents, The Incorporated Village of Great Neck (the Village) and the Board of Trustees of the Incorporated Village of Great Neck (the Board of Trustees) (collectively referred to herein as the Municipal Respondents), in violation of the New York State Environmental Quality Review Act (SEQRA) (Environmental Conservation Law 080101 et seq.) and its implementing regulations (6 NYCRR Part 617), is herewith granted. The Respondent, the Village of Great Neck, seeks to redevelop approximately 27 acres of land that is currently improved with a variety of com-
mercial and industrial uses including two sewage treatment plants, into a high and medium density residential community with a public park and promenade along Manhasset Bay in Nassau County. Approximately 19 acres of such land is located in the Village's former Industrial District and approximately 8 acres of the land is located in the Village's former Business C District. In order to implement their proposed action to rezone the Village of Great Neck's Industrial and Business C Districts, the Municipal Respondents, including the Village of Great Neck and the Village's Board of Trustees, among other things, adopted Local Law No. 8 of the Year 2004 and Local Law No. 10 of the Year 2004. Local Law No. 8 rezoned the Industrial District to a newly created zoning classification known as the Waterfront Development District. Similarly, Local Law No. 10 rezoned the Business C District to a newly created zoning classification known as the Mixed Use District. The Local Laws took effect on March 15, 2004, when they were filed with the New York Secretary of State. The Petitioner, Waldbaum, Inc., owns a 2.4 acre parcel of real property in the Village's former Industrial District and is allegedly adversely affected by Local Law No. 8. The Petitioner, therefore, seeks a judgment pursuant to Article 78 of the CPLR vacating and annulling Local Law No. 8 of the Year 2004 on the grounds that it was adopted in violation of the requirements of SEQRA and its implementing regulations, 6 NYCRR Part 617. The Municipal Respondents, by and through the Village's Board of Trustees, were designated as the lead agency for the purposes of this project pursuant to SEQRA. (See, ECL 80101). In or about October 2001, the Village's planner retained Frederick P. Clark Associates, Inc. to conduct the initial study for the Industrial and Business C Districts and to prepare a Draft Generic Environmental Impact Statement (DGEIS) for the proposed ac-
tion, in accordance with the requirements of SEQRA and the applicable regulations. (See, ECL 80109(4); 6 NYCRR 617.8). In November 2002, the preliminary DGEIS was completed. Although the DGEIS discussed the relocation of some sewage treatment facilities to more appropriate locations, no further details regarding the relocation of the sewage treatment facilities were included in the preliminary DGEIS. Notably, the preliminary DGEIS also did not contain any proposed rezoning legislation. *2 Thereafter, in January 2003, the Village Planner prepared a revised version of the preliminary DGEIS. The January 2003 DGEIS revealed that [o]ne initiative currently being explored is the relocation of a majority of the municipal sewage facilities currently in the area to more suitable locations. The combined sewer districts are pursuing a grant to utilize the existing sewage treatment facilities at the Cedar Creek site [in Wantagh], resulting in the decommissioning of the facilities in this area. With regard to the Impact of the project on the existing sewer system, the Village Planner referenced a letter from an attorney for the Great Neck Water Pollution Control District (the Control District) which stated that the proposed action with was within the Control District and that wastewater treatment from the District's existing facilities was available for the project. The letter allegedly further stated that all collection system or treatment system improvements which are required to handle the additional flow will be at the sole cost of the developer. See Exhibit 13 at p. II30. This Court notes, however, that said letter was not produced for this Court's consideration and therefore, its veracity remains questionable. In the Impact section of the January 2003 DGEIS, the Village Planner stated: [t]he proposed project will cause an increase in flows to the treatment plant and additional demand for water. The degree of such impacts and the ability of existing
systems to meet such impacts will be determined in accordance with the requirements of the controlling organizations ... (See, id at p.II30). However, the Village Planner in the DGEIS also stated that one of the significant beneficial impacts of the proposed rezoning was the relocation of some existing Village sewage treatment facilities to more appropriate locations. (See id at p. S1). Thus, although the Village Planner, on the one hand, assumed that the sewage generated from the new residential and retail development would be treated at the existing sewage treatment plants in the rezoned area, the conceptual site plan in the DGEIS showed the elimination of the sewage treatment plants and their replacement with residential and retail units. On January 7, 2003, the Board of Trustees held a public hearing on the January 2003 DGEIS. At the public hearing, the then-Mayor of the Village, Stephen Falk, explained that it was Village's intention to solicit proposals from recognized developers to redevelop the area. Although, in the instant petition, Waldbaum alleges that Mayor Falk explained at the public hearing that it was the Village's intention to have the entire 27 acres redeveloped (see, Amended Petition, 62, emphasis added ) without the entire transcript available for the Court's consideration, including pages 3940 of the January 7, 2003 transcript, this Court cannot assess the validity of such allegation. However, to the extent that the transcript of the January 7th public hearing is made available to this Court, it is undisputed that the Mayor and the Commissioner of the Control District acknowledged at the hearing that the sewage treatment plants were outdated and unable to comply with federal and state mandates requiring the reduction of nitrogen emissions to the Long Island Sound. The Chairman of the Village's Board of Trustees, explicitly stated at the hearing that the diversion process is ... the key to this development ... (See, Exhibit 33, January 7, 2003 Transcript, page 133, lines 910). *3 In addition to making public comments at the hearings on the DGEIS, the New York Times,
in an article appearing on March 2, 2003, entitled Not in My Sewage Plant, stated: Mr. Falk said the linchpin of the plan is the removal of the two sewage plants, one belonging to the [Control District], which serves parts of the dozen villages on the peninsula and part of Manhasset, the other to the Village of Great Neck. See, Amended Petition, Exhibit E. The Control District also commented on the preliminary DGEIS. Pursuant to a letter dated March 3, 2003, the Control District stated that the conceptual site plan for the proposed redevelopment of the water front area incorrectly assumed the closure of the sewage treatment plants and the redevelopment of the sewage treatment plants with residential units. (See, Exhibit 20). Specifically, the Control District stated that its future [w]ill be influenced by a forthcoming study, and the results of that study are not presently known. Accordingly, the [Control District] has no plans to sell its property, and we recommend that the DGEIS be revised to reflect this reality. (See id). Thereafter, in March 2003, the Village Planner issued another version of the DGEIS. This DGEIS contained a revised conceptual site plan that continued to show the elimination of the sewage treatment plant and its replacement with residential units and retail space. (See, Exhibit 19, Figure 2 at Areas A and B on the site plan). However, the March 2003 DGEIS included, for the first time the proposed language for the zoning legislation that would apply to the new Waterfront Development District and the new Mixed Use District. The March 2003 DGEIS contained the same Impact analysis regarding sewage and soil contamination as the January 2003 DGEIS. On March 4, 2003, the Board of Trustees held another public hearing on the DGEIS. Again, the Mayor reiterated that the redevelopment project was directly related to and dependent on the sewer diversion. He stated: ... I said all along if the diversion does not go
ahead, the development dies; ok? The diversion is a critical part of the development, but the diversion is of critical importance to the North Shore, to our plants. See, Exhibit 33, March 4, 2003 Transcript, page 23. Despite the Mayor's comments regarding what he believed was possible, allegedly no expert report was submitted to the Village during the SEQRA review process which analyzed the nature and extent of the contamination in the rezoned area and the cost and feasibility of remediating such contamination to residential clean up standards. (See, McKinney's ECL 270900, 270916, 271313). In April 2003, the Village Planner issued another revised DGEIS. The conceptual site plan in the April 2003 DGEIS continued to show the closure and elimination of the existing sewage treatment plants as part of the overall redevelopment plan. It also listed as one of the significant beneficial impacts of the rezoning the relocation of existing sewage treatment facilities to more appropriate locations. (See, Exhibit 24, page S1). Nonetheless, on April 7, 2003, the Municipal Respondents issued a Notice of Completion of the DGEIS and Notice of SEQRA Hearing. The notice informed the public that a DGEIS had been completed and accepted by the Board of Trustees and that a public hearing would be held on May 6, 2003. *4 At the May 6, 2003 public hearing on the DGEIS, the Mayor and the Board of Trustees asked the public to limit their comments solely to the rezoning. See, Exhibit 33, May 6, 2003 Transcript, pages 26. In fact, a member of the public asked the Board if the proposed action assumed the closure of the sewage treatment plants. See id at pages 67. In response, the Village Attorney stated: The Mayor had previously indicated that the diversion project is separate and apart from the rezoning, this hearing has to do with rezoning. The diversion project is not the subject of tonight's public hearing. There will be public hear-
ings with regard to the diversion project, this is not such a hearing. The Mayor has indicated that the practicality of the rezoning, if the diversion project does not go through, will probably make the rezoning impractical, but this hearing tonight is not with regard to the diversion project, it is solely with regard to the rezoning. See id at page 6. One Village resident at the hearing voiced his outrage at the Village's refusal to discuss the sewer diversion in connection with the rezoning, stating as follows: On the subject of the rezoning, I would demand that a full environmental impact study be done after the requisite [DGEIS] for the rezoning, because the Mayor has made it abundantly clear, many times, that the rezoning hinges absolutely on the diversion. Therefore, diversion is a proper topic tonight, Mr. MayorI'm making a comment, I'm not asking a question, I'm making a comment. You needn't look to your legal beagle here for advice. You have said this many times, and I am going to hold you to that, that you must consider the diversion because of your statements in public. And so I am demanding that full [EIS] be done that will cover the rezoning and the diversion that you have, yourself, many times, said is absolutely essential for the rezoning. See, Exhibit 33, May 6, 2003 Transcript, page 11. In June 2003, the Village Planner issued a Final Generic Environmental Impact Statement (the FGEIS). The FGEIS contained the Village's responses to the various public hearings on the FGEIS. Although the FGEIS did not respond to the public's comments regarding the odors emanating from the existing sewage treatment plants, nor did the FGEIS address the environmental impact of increased discharges of treated sewage in to the Long Island Sound, with regard to the public's comments concerning the ability of the existing sewage treatment plants to process the anticipated sewage flow
from the new development, the Village stated that the capacity of the existing system to handle the additional flow would be determined at a later date when a specific project is proposed and the developer has supplied the Control District with sewage flow data. (See, Exhibit 33, page II8). With regard to the public's comments concerning the sewer diversion project, the Village took the position that the diversion project was an independent project and that it did not have to respond to the public's comments regarding the diversion. (See id, pages II9 through II12). *5 Thereafter, on August 21, 2003, the Village deemed the FGEIS complete and accepted it. See, Exhibit 34. On September 3, 2003, the Board of Trustees held a meeting at which it discussed how the Village should proceed with the rezoning and the SEQRA process. Additionally, at the September 3, 2003 meeting, the Board of Trustees discussed how the scope of the overall project had changed since its inception and how the concept of forming a redevelopment authority with power to condemn properties and transfer them to a single developer was no longer feasible. At the conclusion of the September 3, 2003 meeting, it was unclear how the Village intended to proceed with the rezoning and the SEQRA process. On October 2, 2003, the Village Planner issued a memorandum containing proposed revisions to the Waterfront Development District regulations consistent with the newly proposed conceptual site plan submitted by the newly elected Mayor, Richard Deem. Among other things, the proposed revisions expressly permitted municipal facilities (e.g., sewage treatment plants) as permitted uses in the Waterfront Development District. In December 2003, the Village Planner issued a document entitled East Shore Rezoning Environmental Assessment of Alternate Zoning. This document purported to examine the environmental impacts of the October and December 2003 proposed revisions to the zoning legislation. In the Environmental Assessment, the Village Planner concluded
that the inclusion of commercial uses as principal uses and the density incentives or bonuses pertaining thereto will not result in any significant adverse environmental impacts and that a Negative Declaration should be prepared for the modified proposed action. See, Exhibit 41, page 5. On February 3, 2004, the Board of Trustees adopted a Findings Statement pursuant to SEQRA and on February 17, 2004, the Board of Trustees held a public hearing on the revised zoning legislation. The Petitioner, through its parent corporation, appeared at the hearing through its counsel and objected to the rezoning citing the reasons set forth in the instant Article 78 petition. Thereafter, the Petitioner supplemented its verbal objections to the proposed rezoning by letter dated March 1, 2004. Nonetheless, on March 2, 2004, the Board of Trustees voted to adopted Local Law No. 8 and Local No. 10 rezoning the Industrial and Business C Districts, respectively. The Local Laws became effective when they were filed with the Secretary of State on March 15, 2004. Upon the instant proceeding, Petitioner seeks a judgment vacating and annulling Local Law No. 8 of the Year 2004 on the grounds that it was adopted by the Municipal Respondents in violation of SEQRA. NEW YORK STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) It is well settled that the primary purpose of SEQRA is [t]o inject environmental considerations directly into governmental decision making. (See, Matter of CocaCola Bottling Co. v. Board of Estimate, 72 N.Y.2d 674, 679, 536 N.Y.S.2d 33, 532 N.E.2d 1261). To achieve these purposes and goals, SEQRA imposes procedural and substantive requirements upon the agency charged with decision making in respect to proposed actions. The Court of Appeals in WEOK Broadcasting Corporation v. Planning Board of the Town of Lloyd, 79 N.Y.2d 373, 583 N.Y.S.2d 170, 592 N.E.2d 778, best summarized the regulatory framework of SEQRA as
follows: *6 Whenever it is determined that a proposed action may have a significant effect on the environment, a [Draft Environmental Impact Statement] is required to be prepared and various other procedural steps are to be taken including soliciting comments on the DEIS, holding public hearings when appropriate (ECL 80109, 80105[7]; 6 NYCRR 617.8 ) and preparing and filing a [Final Environmental Impact Statement] in respect to which comments are solicited and any further appropriate public hearing held (6 NYCRR 617.10[g] ). In addition to the procedural requirements, SEQRA imposes substantive requirements which include listing the various types of information that must be included in the EIS, a description of the proposed action with an assessment of its environmental impact and any unavoidable adverse environmental effects (ECL 8280109[2][a][c] ) and mitigation measures proposed to minimize the environmental impact ( ECL 80109[2][f] ). If an agency proposes to approve a project, it must consider the FEIS and prepare written findings that the requirements of SEQRA have been met (ECL 80109 [8] ). It must also prepare a written statement of the facts and conclusions in the FEIS and comments relied upon and the social, economic and other factors and standards which form the basis of its decision (6 NYCRR 617.9[c] ). Put differently, the agency must take a sufficiently hard look at the proposal before making its final determination and must set forth a reasoned elaboration for its determination (see, Akpan v. Koch, 75 N.Y.2d 561, 570, 555 N.Y.S.2d 16, 554 N.E.2d 53, supra; Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 415416, 503 N.Y.S.2d 298, 494 N.E.2d 429, supra). Where an agency determines to reject a proposed project, it must likewise take a sufficiently hard look and set forth a reasoned elaboration for its determination (see, Matter of Jackson v. New York State Urban Dev. Corp., supra, at 416, 503 N.Y.S.2d 298, 494 N.E.2d 429). As we have only recently observed,
[a]n agency's compliance with its substantive SEQRA obligations is governed by a rule of reason and the extent to which particular environmental factors are to be considered varies in accordance with the circumstances and nature of particular proposals ( Akpan v. Koch, 75 N.Y.2d 561, 570, 555 N.Y.S.2d 16, 554 N.E.2d 53, supra; see also, Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 503 N.Y.S.2d 298, 494 N.E.2d 429, supra ). See, WEOK Broadcasting Corporation v. Planning Board of the Town of Lloyd, supra. In this case, the petitioner, Waldbaum, contends that the Village violated SEQRA by: (i) engaging in improper segmentation of its environmental review of the rezoning; (ii) failing to take the requisite hard look at several key areas of environmental concern prior to adopting the rezoning; (iii)failing to consider whether a Supplemental Generic Environmental Impact Statement (SGEIS) was necessary after the Village changed the proposed action after the acceptance of the FGEIS for the proposed action and after the Petitioner presented the Village with substantial evidence of inadequacies in the GEIS that was prepared by the Village; and (iv) failing to strictly adhere to other procedural requirements of SEQRA. JUDICIAL REVIEW *7 The Court of Appeals has repeatedly made it clear that the Court's role in reviewing SEQRA determinations is as follows: The often stated rule regarding our role in reviewing SEQRA determinations needs no extended discussion; it is not to weigh the desirability of any proposed action or to choose among alternatives and procedural requirements of SEQRA and the regulations implementing it ( Matter of Village of Westbury v. Department of Transp., 75 N.Y.2d 62, 66, 550 N.Y.S.2d 604, 549 N.E.2d 1175), but to determine whether the agency took a hard look at the proposed project and made a reasoned elaboration of the basis
for its determination ( Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 503 N.Y.S.2d 298, 494 N.E.2d 429, supra ). Where an agency fails to take the requisite hard look and make a reasoned elaboration, or its determination is affected by an error of law, or its decision was not rational, or is arbitrary and capricious or not supported by substantial evidence, the agency's determination may be annulled (see, CPLR 7803[3]; Chinese Staff & Workers Assn. v. City of New York, 68 N.Y.2d 359, 363, 509 N.Y.S.2d 499, 502 N.E.2d 176; Matter of Jackson v. New York State Urban Dev. Corp., supra; see generally, 55 N.Y. Jur 2d, Environmental Rights, 65). See, WEOK Broadcasting Corporation v. Planning Board of the Town of Lloyd, supra. The WEOK Court defined substantial evidence as: [b]eing such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact' (300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183) or the kind of evidence on which responsible persons are accustomed to rely in serious affairs' (People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997). *** Although a particular kind or quantum of expert evidence is not necessary in every case to support an agency's SEQRA determination to permit SEQRA determinations to be based on no more than generalized, speculative comments and opinions of local residents and other agencies, would authorize agencies conducting SEQRA reviews to exercise unbridled discretion in making their determinations and would not fulfill SEQRA's mandate that a balance be struck between social and economic goals and concerns about the environment (see, Matter of Jackson v. New York State Urban Dev. Corp., supra ). Nor could it be
said that such a determination accords with a rule of reason (see, Akpan v. Koch, supra ). See, WEOK Broadcasting Corporation v. Planning Board of the Town of Lloyd, supra Thus, with these guidelines in mind, this Court will address each of Petitioner's alleged SEQRA violations, in turn. ALLEGED SEQRA VIOLATIONS 1. Improper Segmentation. Petitioner contends that the Village engaged in improper segmentation of its environmental review of the rezoning. It is impermissible under SEQRA to segment the environmental review of a proposed action. Segmentation is defined as the division of the environmental review of an action such that various activities or stages are addressed as though they were independent, unrelated activities, needing individual determinations of significance. 6 NYCRR section 617.2(a)(g). The practice of improperly dividing a single project into separate projects to evade consideration of their cumulative effects under SEQRA is known as segmentation. See, City of Buffalo v. New York State Dep't of Env. Conservation, 184 Misc.2d 243, 707 N.Y.S.2d 606. Under SEQRA, consideration of only a part or segment of an action is contrary to the intent of SEQRA [r]elated actions should be identified and disclosed to the fullest extent possible. 6 NYCRR section 617.3(g)(1). The Court of Appeals in the case of In the Matter of Save the Pine Bush, Inc. et. al. v. City of Albany et. al., (70 N.Y.2d 193, 200, 518 N.Y.S.2d 943, 512 N.E.2d 526), held that ... when an action with potential adverse effects on the environment is part of an integrated project designed to balance conflicting environmental goals within a subsection of a municipality that is ecologically unique, the potential cumulative impact of other proposed or pending projects must be considered pursuant to SEQRA before the action may be approved. *8 In this case, Petitioner contends that the Vil-
lage improperly segmented its environmental review of the proposed rezoning by failing to consider the environmental impacts of a related project that is part of the Village's long term plan for the redevelopment of the rezoned area, mainly the proposed closure of two of the Village's sewage treatment plants in the rezoned area and the diversion of the Village's sewage to the south shore of Long Island for treatment and discharge. The Municipal Respondents counter Petitioner's contentions with the argument that [t]he sewer diversion project was part of a completely separate joint initiative that [is] not under the direct jurisdiction of the Village. (See, Respondent's Memo of Law, B). The Respondents further state that [a]lthough at one time discussed as a potential intermunicipal initiative, the sewer diversion never was and still is not necessary to the Proposed Action. (See Respondent's Memo, Argument I). This Court finds Respondents' arguments to be entirely meritless. Pursuant to 6 NYCRR 617.3(k)(1), [i]f a lead agency believes that circumstances warrant a segmented review, it must clearly state in its determination of significance and any subsequent [environmental impact statement] the supporting reasons and demonstrate that such review is clearly no less protective of the environment. Related actions should be identified and discussed to the fullest extent possible. See, 6 NYCRR 617.3(k)(1) (emphasis added). In this case, the Village, as the lead agency herein, did not properly consider the sewer diversion project being planned for Village of Great Neck. In fact, the DGEIS for the rezoning confirmed the Mayor of the Village' s statements regarding the interrelationship of the two projects. It is explicitly stated in the DGEIS that one of the significant beneficial impacts of the rezoning identified in the DGEIS was the relocation of some existing Village sewage treatment facilities to more appropriate locations. See, Exhibit 24. Yet, the Village never gave any explanation as to why segmentation was permissible and no less protect-
ive of the environment. (See, 6 NYCRR 617.3(k)(1); see also, Teich v. Buchheit, 221 A.D.2d 452, 633 N.Y.S.2d 805). Respondents further argue that, as a matter of policy and law, segmentation does not exist where future actions are speculative. ( See, Vill. Of Tarrytown v. Planning Bd., 292 A.D.2d 617, 621, 741 N.Y.S.2d 44). Specifically, Respondents argue that although at one time discussed as a potential intermunicipal initiative, the sewer diversion never was and still is not necessary to the Proposed Action. (See, Respondent's Memo of Law, page 14, emphasis in original). Petitioners have, however, sufficiently established by submitting, inter alia, the statements by the Mayor of the Village, that a long range plan, one that is not speculative, existed for the development of Great Neck and that the diversion process is the key to this development. (See, Exhibit 33, January 7, 2003 Transcript, p. 133). In fact, based upon a plain reading of the Village's own conceptual site plan for the redevelopment of the rezoned area, which site plan is set forth in the DGEIS, it is explicitly acknowledged that the location of the existing sewage treatment plants are redeveloped with residential units and retail space. The proposed redevelopment therefore involved the closure of the existing sewage treatment plants and the diversion of the Village's sewage to a new location for treatment. *9 In addition, Petitioner's exhibits include a news article about the interrelationship between the two projects wherein the Mayor of the Village stated that the closure of the sewage treatment plants was the linchpin of the rezoning. (See, Petitioner's Memo of Law, p. 9). Thus, clearly, the closure of the sewage treatment plants introduces additional possibilities for adverse environmental effects; those effects should have been properly considered in a cumulative review process prior to the adoption of the Local Laws. The record of proceedings in this case establishes that the Village' s rezoning of the Industrial District is related to the
proposed closure of the sewage treatment plants and that both projects are part of a long range plan by the Village to redevelop the Industrial District into a high and medium density residential community. 2. Failure to take a Hard Look prior to adopting the rezoning. Among Petitioner's primary contentions is that the determination made by the Village was flawed because the Village failed to take a hard look at several key areas of environmental concern related to the rezoning in connection with its environmental review. Petitioner's claim this is especially true for the following environmental impacts associated with the rezoning: (a) the closure of the sewage treatment plants and the diversion of sewage; (b) the development of high and medium density residential units in close proximity to the existing sewage treatment plants; (c) the impact of the additional sewage from the development on the water quality of the Long Island Sound; (d) the soil and groundwater contamination in the rezoned area; and (e) the dredging of Manhasset Bay and the extension of the shoreline to construct a public promenade. As stated above, A court's authority to examine a SEQRA review conducted by an agency that was required to do so is limited to reviewing whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion. ( Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668, 688, 642 N.Y.S.2d 164, 664 N.E.2d 1226). Thus, the question before this court is whether the 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. ( Matter of Jackson v. New York State Urban Dev. Corp, supra at 417, 503 N.Y.S.2d 298, 494 N.E.2d 429; Gernatt Asphalt Prods. v. Town of Sardinia, supra at 688, 642 N.Y.S.2d 164, 664 N.E.2d 1226; Matter of New York City Coalition to End Lead Poisoning v. Vallone, 100 N.Y.2d
337, 348, 763 N.Y.S.2d 530, 794 N.E.2d 672). At the outset, this Court notes that in response to the Petitioner's allegation, that the Village failed to take a hard look at several environmental aspects of the proposed action, the Municipal Respondents, in relying on the Second Department's decision, Aldrich v. Pattison, (107 A.D.2d 258, 486 N.Y.S.2d 23) argue that the Petitioner's claims are barred by the doctrine of exhaustion of administrative remedies. Specifically, Respondents' sole argument is that, as the petitioner did not comment upon or otherwise raise the issues raised in the second cause of action (alleging failure to take a hard look) during the lengthy and extensive public comment period prior to the Village Board' s adoption of the FGEIS or the Findings Statement, under the exhaustion of administrative remedies doctrine, the petitioner's claims are barred. *10 It is well settled that SEQRA allows an administrative agency or governmental body considerable latitude in evaluating the environmental impacts and alternatives discussed in an environmental impact statement to reach a determination concerning a proposed project. (See, Aldrich v. Pattison, supra at 267, 486 N.Y.S.2d 23). While an [environmental impact statement] does not require a public agency to act in any particular manner, it constitutes evidence which must be considered by the public agency along with other evidence which may be presented to such agency ... Thus the general substantive policy of the act is a flexible one. It leaves room for a responsible exercise of discretion and does not require particular substantive results in particular problematic instances. ( Matter of Town of Henrietta v. Department of Envtl. Conservation ., 76 A.D.2d 215, 222, 430 N.Y.S.2d 440). Applying the doctrine of exhaustion of administrative remedies, courts have refused to review a determination on environmental matters based upon evidence or arguments not presented during the proceeding before the lead agency. ( Matter of Town of Candor v. Flacke, 82 A.D.2d 951, 952, 440 N.Y.S.2d 769; Natural Resources Defense
Council v. City of New York, 112 Misc.2d 106, 108, 446 N.Y.S.2d 871). Although the Municipal Respondents correctly cite the Second Department's 1985 decision in Aldrich v. Pattison for the principle that [t]he doctrine of exhaustion of administrative remedies requires litigants to address their complaints initially to administrative tribunals, rather than to the courts, and ... to exhaust all possibilities of obtaining relief through administrative channels before appealing to the courts (See, Aldrich v. Pattison, supra at 268, 486 N.Y.S.2d 23), where environmental matters are involved, the Respondents have failed to take into consideration the Court of Appeals subsequent decision in Jackson v. New York State Urban Development Corp., (67 N.Y.2d 400, 503 N.Y.S.2d 298, 494 N.E.2d 429). In Jackson, the petitioners argued, among other things, that the lead agency's environmental review of the proposed action was improper because the lead agency failed to consider the environmental impact of the proposed action on archaeological resources and a water tunnel. (See id at 42628). The lead agency countered by arguing that the petitioner's archaeology and water tunnel claims were barred by the doctrine of exhaustion of remedies because the petitioners did not raise them during the SEQRA review process before the lead agency. The Court of Appeals disagreed with the lead agency, finding that the doctrine of exhaustion of administrative remedies did not foreclose judicial review. (id p. 427). Instead, the Court found that the petitioners' failure to raise the issues at the administrative level was merely a factor to be considered in determining whether the lead agency acted reasonably in failing to consider the issues in its environmental review of the proposed action. Thus, even assuming that the Petitioner failed to raise its SEQRA objections during the proceedings before the Municipal respondents, such a failure does not foreclose judicial review of those objections herein. Therefore, this Court is left to determine whether the Municipal Respondents acted reasonably in failing to consider the numerous en-
vironmental issues associated with the rezoning. A. Closure of the Sewage Treatment Plants *11 As stated above, to the extent that this Court has determined that the Municipal Respondents improperly segmented the rezoning and the sewage diversion projects, based upon the papers submitted for this Court' s consideration, including the Expert Affidavits of Theresa Elkowitz and David Stolman, submitted in support and in opposition to the within Article 78 petition, respectively, this Court finds that the Village in fact failed to take a hard look at the environmental impacts of closing its sewage treatment plants. For example, this Court is not convinced that the Board of Trustees, as the lead agency, took a hard look at the environmental impacts of having to excavate streets to lay approximately 6.5 miles of underground piping to connect the Village's sewer lines to Nassau County lines; nor did the Village consider the impacts on the water quality of the Atlantic Ocean. B. Residential Units in Close Proximity to the Existing Sewage Treatment Plants It is abundantly clear that during the SEQRA Review Process, the noxious odors emanating from the existing sewage treatment plants and their negative impact on existing, residential houses in the vicinity of plants were discussed at several hearings. Nonetheless, the Village never considered how these odors might impact the new residential development that would be constructed in the vicinity of the plants under the new zoning. C. Water Quality of Long Island Sound At the public hearings, the Village admitted that its sewage treatment plants are functionally obsolete and need to be rebuilt in order to comply with the federal and state environmental standards. During its environmental review, however, the Village failed to consider the environmental impacts on the water quality of Long Island Sound of increased discharges of sewage from its obsolete plants that would be caused by the sewage from the new development envisioned by the rezoning.
D. Soil and Groundwater Contamination in the Rezoned Area It is undisputed that in the January 2003 DGEIS, the Village Planner acknowledged that it was in receipt of environmental reports regarding the Petitioner's vacant property and that said reports concluded that portions of the site contain pollution levels that exceed NYSDEC soil clean up objectives,' and that these isolated hot spots' should be removed in accordance with NYSDEC guidelines. The report also recommended follow-up groundwater testing. (See Exhibit 13 at p. II15). Moreover, the DGEIS for the rezoning stated that a FOIL request for information regarding contamination in the rezoned area was filed with the DEC and that the DEC never responded. (See Exhibit 24 at p. II15). However, there is no indication that the Village took any further action to identify and clean up the contamination in the rezoned area. It simply rezoned the properties without considering whether the residential standards had been met. E. Dredging of Manhasset Bay and Extension of Shoreline to Construct a Public Promenade *12 As part of its long range plan for the redevelopment of the Industrial District, the Village sought to dredge Manhasset Bay and use the dredge spoils to extend the shoreline of the industrial district. However, in a letter dated March 31, 2004, the DEC specifically informed the Village that the construction of a public promenade along the shoreline would require a DEC tidal wetlands permit. (See, Exhibit 48). Nonetheless, without having evaluated the impact of extending the shoreline on existing tidal wetlands, the Village adopted the rezoning measures challenged herein. Based upon the foregoing, this Court finds that the Petitioners have adequately demonstrated that the Village failed to take a hard look at several key areas of environmental concern to the rezoning. 3. Failure to Prepare an SGEIS Pursuant to SEQRA, a Supplemental Environmental Impact Statement (SEIS) may be required for significant environmental impacts not addressed
or inadequately addressed in the EIS arising from: (I) changes in the proposed project; (ii) newly discovered information; and (iii) a change in circumstances related to the proposed project. (See 6 NYCRR 617.9(a)(7)(I)). In this case, the Village modified the proposed rezoning legislation after the issuance of the FGEIS. On February 17, 2004 and March 1, 2004, after the adoption of the FGEIS but before the adoption of the rezoning, Petitioner presented the Village with new information regarding significant environmental impacts that were not addressed or were inadequately addressed in the FGEIS, including engaging in improper segmentation and failure to take the requisite hard look at the proposed project. Although the plain language of SEQRA regulation 6 NYCRR 617.9(a)(7)(I) does not require a supplemental EIS, this Court notes that subsection (ii) of the foregoing regulation states as follows: (ii)The decision to require preparation of a supplemental EIS, in the case of newly discovered information, must be based upon the following criteria: (a)the importance and relevance of the information; and (b) the present state of the information in the EIS. 6 NYCRR 617.9(a)(7)(ii). Thus, although the Municipal Respondents were not obligated to provide a SGEIS under 6 NYCRR 617.9(a)(7)(I), based upon the papers submitted for this Court's consideration, this Court finds that they were required to submit a supplemental EIS under 6 NYCRR 617.9(a)(7)(ii). Clearly, a failure to take the requisite hard look at the nature and extent of its environmental review and the failure to consider the environmental impacts of permitting high and medium density residential development in close proximity to existing sewage treatment plants are importan[t] and relevan[t] pieces of information that was omitted from
the EIS in its present state. (6 NYCRR 617.9(a)(7)(ii)). The Village, however, refused to consider the issues raised by the Petitioner and it failed to determine whether a SGEIS was necessary to address them. 4. Failing to adhere to procedural requirements *13 The Court of Appeals in King v. Saratoga Board of Supervisors, 89 N.Y.2d 341, 653 N.Y.S.2d 233, 675 N.E.2d 1185, stated that strict, not substantial compliance with the procedural requirements of SEQRA is required by government agencies. Specifically, the Court stated: The mandate that agencies implement SEQRA's procedural mechanisms to the fullest extent possible reflects the Legislature's view that the substance of SEQRA cannot be achieved without its procedure, and that departures from SEQRA's procedural mechanisms thwart the purposes of the statute. Thus it is clear that strict, not substantial, compliance is required. See, King v. Saratoga Board of Supervisors, 89 N.Y.2d 341, 347, 653 N.Y.S.2d 233, 675 N.E.2d 1185. First, this Court notes that Respondents do not counter Petitioner's allegation that the Village failed to comply with other procedural requirements of SEQRA. Second, although the Municipal respondents complied with substantially all of the procedural requirements of SEQRA, their failure to strictly comply with the remaining procedural requirements of SEQRA, including the failure to preliminarily classify the proposed action as a Type I or Unlisted Action [6 NYCRR 617.6(a)(1)(iv) ]; its failure to prepare an Environmental Assessment Form (EAF) or to treat any of its multiple versions of the DGEIS as an EAF for the purposes of rendering a written determination of significance for the proposed action [6 NYCRR (a)(2), (3) and (4) ], compels this Court to find that the procedural requirements of SEQRA were not satisfied.
As a result, the instant proceeding by Petitioner, Waldbaum, seeking a judgment vacating and annulling Local Law No. 8 of the Year 2004 on the grounds that it was adopted by the Municipal Respondents in violation of SEQRA, is herewith granted. Submit judgment. N.Y.Sup.,2006. Waldbaum, Inc. v. Incorporated Village of Great Neck 10 Misc.3d 1078(A), 814 N.Y.S.2d 893, 2006 WL 250520 (N.Y.Sup.), 2006 N.Y. Slip Op. 50119(U) END OF DOCUMENT
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Page 1 52 Misc.2d 469, 276 N.Y.S.2d 512 (Cite as: 52 Misc.2d 469, 276 N.Y.S.2d 512)
FIND Request: 52 Misc. 2d 469, 471, 477 Supreme Court, New York County, New York, Trial Term, Part I. Application of Jack A. MARK, et al., Petitioners, v. Theodore H. LANG, George Gregory, Jr., and Anthony M. Mauriello, Members of Department of Personnel and Civil Service Commission of the City of New York, and Michael J. Murphy, Police Commissioner of the City of New York, Respondents, Directing the aforesaid Department of Personnel and Civil Service Commission to re-rate petitioners' papers in Examination No. 9961 for promotion to the position of Captain in the Police Department of the City of New York, and Ben Zaker et al., Intervenors-Respondents, and George Blumenthal, Intervenor-Respondent. Jan. 5, 1967. Proceeding on application to review determination as to results of city and police captain Civil Service examinations wherein the judge of Special Term directed the matter be set down for trial. The Supreme Court, County of New York, Trial Term Part I, Seymour Bieber, Special Referee, held, inter alia, that evidence established that police lieutenants taking promotional Civil Service examinations were entitled to greater credits for answers to essay questions and that rating keys and credit structure propounded by city Civil Service Commission and Department of Personnel were untenable. Judgment in accordance with opinion. See also, 49 Misc.2d 736, 268 N.Y.S.2d 143, aff., Sup., 271 N.Y.S.2d 169. West Headnotes [1] Officers and Public Employees 283 283 Officers and Public Employees 11.3
283I Appointment, Qualification, and Tenure 283I(B) Appointment 283k11 Restrictions of Civil Service Laws or Rules 283k11.3 k. Examination. Most Cited Cases Civil Service examinations, so far as practicable, must be objective as well as competitive and must employ an objective standard or measure which is capable of being challenged and reviewed by other examiner of equal ability and experience. Const. art. 5, 6; Civil Service Law, 50. [2] Municipal Corporations 268 217.3(1)
268 Municipal Corporations 268V Officers, Agents, and Employees 268V(C) Agents and Employees 268k217 Appointment or Employment 268k217.3 Examination, Classification, Certification, and Eligibility 268k217.3(1) k. Examination. Most Cited Cases (Formerly 268k217(3)) Under controlling constitutional, statutory and case law the city Civil Service Commission and the Department of Personnel are obligated, despite any attendant and well-recognized difficulties, to assure selection of public personnel by competitive and objective testing, and use of essay questions can in no way serve to alter or modify such legal requirement. Const. art. 5, 6; Civil Service Law, 50. [3] Municipal Corporations 268 217.5
268 Municipal Corporations 268V Officers, Agents, and Employees 268V(C) Agents and Employees 268k217 Appointment or Employment 268k217.5 k. Transfer and Promotion. Most Cited Cases (Formerly 268k217(5)) If use of essay testing in conducting promotional examinations is to continue, the weaknesses
inherent therein must be recognized and cured by Civil Service Commission and Department of Personnel; no rating key to an essay question can possibly enumerate and evaluate all variations in responses. Const. art. 5, 6; Civil Service Law, 50. [4] Officers and Public Employees 283 11.3
[6] Municipal Corporations 268
184.1
283 Officers and Public Employees 283I Appointment, Qualification, and Tenure 283I(B) Appointment 283k11 Restrictions of Civil Service Laws or Rules 283k11.3 k. Examination. Most Cited Cases In order to make the essay examination a reliable testing device and its rating key an objective evaluation as required by Civil Service law, a consistent and equitable approach is needed to the construction as well as the use of rating key; it is not sufficient to be satisfied with a rating key which, while permitting independent examiners to agree substantially, nevertheless perpetuates element of subjectivity in their grading. Const. art. 5, 6; Civil Service Law, 50. [5] Municipal Corporations 268 184.1
268 Municipal Corporations 268V Officers, Agents, and Employees 268V(B) Municipal Departments and Officers Thereof 268k179 Police 268k184.1 k. Promotion of Policemen. Most Cited Cases (Formerly 268k184(5)) Evidence indicating numerous instances of wide disagreement between the two raters of answers to essay questions propounded to police lieutenants taking promotional examinations and injection of subjective opinion in gray areas of answers warranted conclusion that the raters, in effect, had failed to agree on the key or its use, and the prerequisite conclusion that equivalent statements by candidates would be fully accepted. Const. art. 5, 6; Civil Service Law, 50. [7] Municipal Corporations 268 184.1
268 Municipal Corporations 268V Officers, Agents, and Employees 268V(B) Municipal Departments and Officers Thereof 268k179 Police 268k184.1 k. Promotion of Policemen. Most Cited Cases (Formerly 268k184(5)) Police lieutenants whose answers to essay questions in promotional examinations were rated by two raters and under applicable Civil Service rule resulted in averaging of respective credit allotment were not entitled as matter of law to higher of the two ratings rather than the average mark of both grades since rules of Civil Service Commission have the force and effect of binding law. Const. art. 5, 6; Civil Service Law, 50.
268 Municipal Corporations 268V Officers, Agents, and Employees 268V(B) Municipal Departments and Officers Thereof 268k179 Police 268k184.1 k. Promotion of Policemen. Most Cited Cases (Formerly 268k184(5)) The mere provision in rating keys for credit to be given for other answers to essay questions propounded to police lieutenants taking promotional examinations was not sufficient to comply with objectivity requirement, particularly inasmuch as (1) an unpredicted other answer may be as good as or better than a fully credited key answer, and therefore be entitled to more points than the key credits allow for a contemplated other answer; (2) rater may not have technical knowledge to recognize or to appreciate true value of an unforeseen other answer; and (3) subjectivity rather than objectivity is the byproduct of permissible credit under so-called other categories. Const. art. 5, 6; Civil Service Law, 50.
[8] Municipal Corporations 268
184.1
268 Municipal Corporations 268V Officers, Agents, and Employees 268V(B) Municipal Departments and Officers Thereof 268k179 Police 268k184.1 k. Promotion of Policemen. Most Cited Cases (Formerly 268k184(5)) Evidence established that police lieutenants taking promotional Civil Service examinations were entitled to greater credits for answers to essay questions and that rating keys and credit structure propounded by city Civil Service Commission and Department of Personnel were untenable. Const. art. 5, 6; Civil Service Law, 50. [9] Municipal Corporations 268 184.1
J. Lee Rankin, Corp. Counsel, City of New York, New York City, for respondents, by Arthur H. Geisler, Asst. Corp. Counsel. Victor J. Herwitz, New York City, for intervenorsrespondents. George Blumenthal, Massapequa, intervenor-respondent pro se. **515 DECISION SEYMOUR BIEBER, Special Referee: Pursuant to stipulation of counsel for the respective parties, this matter was referred to me, to hear and determine. Petitioners, lieutenants of the Police Department of the City of New York, failed, by relatively small margins, Examination No. 9961 for promotion to captain. Upon institution of the subject Article 78 CPLR proceeding, Special Term, citing the opinion of the Court of Appeals in Matter of Acosta v. Lang, 13 N.Y.2d 1079, 246 N.Y.S.2d 404, 196 N.E.2d 60, found that there were * * * apparent defects in the ratings * * * of petitioners' answers to Part II of said examination and, accordingly, directed the matter be set down for trial (Mark, et al., v. Lang, et al., Sup.Court, N.Y.L.J., Special Term, Part I, decided July 14, 1966, p. 8, col. 4 (Lupiano, J.)). Petitioners, in substance, allege that their answers to the six essay questions here involved are as good as or better than the illustrative key answers prepared by respondents Civil Service Commission and the Department of Personnel (hereinafter referred to as respondents'). These essay questions, each of which will be separately considered hereinafter, posed various problems concerning an evaluation of proposals for a civilian review board, the factors to be considered if evidence obtained by an investigating officer is to be used in court, steps to be taken to maintain precinct morale by a newly appointed police captain with a prior reputation as a hard boiled lieutenant, a comparis-
268 Municipal Corporations 268V Officers, Agents, and Employees 268V(B) Municipal Departments and Officers Thereof 268k179 Police 268k184.1 k. Promotion of Policemen. Most Cited Cases (Formerly 268k184(5)) Even if it were to be assumed that proposed credit allowances given by city Civil Service Commission and Department of Personnel for answers to essay questions in promotional examinations of police lieutenants would be appropriate as an original rating system it was inappropriate as a method of rating in view of resulting prejudice in grading the lieutenants' answers as compared with that of others not before the court; it would be unjustifiable to cause any petitioner to receive less credit for any item in his examination paper than the Commission and department had already allowed for identical response to other candidates on such test. Const. art. 5, 6; Civil Service Law, 50. **514 *470 Murray A. Gordon, New York City, for petitioners.
on of the present twenty-squad system with a proposed plan for its modification, the course of action to be followed by a precinct captain in the event of a mass demonstration at the station house and arguments for and against the fingerprinting of juveniles. *471 Petitioners' answers to the six subject questions were graded by two examiners and, pursuant to Rule 4.5.1 of the Rules of the New York City Civil Service Commission, the final rating given to each answer represented the average of their judgment. For example, if one examiner gave ten points for an answer while his associate rated the answer at only five points, a petitioner's final grade for the answer was fixed at 7.5 points. Thus, the pleadings in this proceeding set forth, at very great length and in very considerable detail, the opposing authorities and reasoning of the respective parties as to whether the items contained in petitioners' answers to the essay questions, for which they received only partial or no credit, were as good as or better than the specific items selected by respondents as valid answers, entitled to full credit. The credible testimony and documentary evidence adduced by petitioners upon the trial of this matter clearly and overwhelmingly support their contentions with respect to each of the essay questions. As more fully discussed hereinafter, it appears that the rating keys used by respondents' **516 examiners to grade the answers here involved omitted and failed to give credit for responses which were separate from and as significant as other items set forth in such keys. Prior to examining each of the six questions and the respective answers thereto, however, it is necessary first to consider the nature of the examination with which this litigation is concerned, and to note, in general, the potential hazards and defects regarding the preparation of an essay test, the method of grading it and, in particular, the specific limitations which surround the use of this type of question in competitive civil service testing. Many of the difficulties inherent in an essay
written test have long been recognized by those associated with public personnel examination. As a matter of fact, the documentary proof adduced before me shows that respondents' principal witness, one Harry Reiner, Chief of the Law Enforcement and Social Services Examining Division of the Bureau of Examinations, New York City Department of Personnel, had co-authored a publication of the Public Personnel Association which clearly delineated the problems and pit-falls attendant to the use of the essay test (Personnel Report No. 611, Public Personnel Association, The Essay Test in Public Personnel Selection.). Unfortunately, however, the record of the instant proceeding establishes that respondents and those who assisted in preparing and grading the subject examination either disregarded or failed to heed many of the guidelines set forth in this publication. *472 [1] It is fundamental that the applicable laws of New York require civil service examinations, so far as practicable, to be objective as well as competitive (N.Y.Constitution, Art. V, section 6; Civil Service Law, section 50). Thus, a civil service examination must employ an objective standard or measure which is capable of being challenged and reviewed by other examiners of equal ability and experience ( Matter of Fink v. Finegan, 270 N.Y. 356, 361363, 1 N.E.2d 462, 464465). To this end, the so-called rating key, generally, is employed to give a factual, accurate and objective grade with respect to an applicant's qualifications for the position or promotion he seeks. In the instant matter, however, as more fully discussed hereinafter, the use of essay questions which called for evaluations', and arguments for and against certain proposals resulted in the establishment of rating keys which left room for Subjective crediting, particularly in so-called gray areas'. In other words, these questions gave rise to key answers which could not be classified as black or white, yes or no, right or wrong. There remained an area of discretion, a place for argument and opinion, which in turn, and of necessity, permitted the examiner and rater to inject his personal opinion
and subjective motivation in grading the answers of petitioners. This defect was singularly evident with respect to the testimony concerning Question Five, the proposed civilian review board, still a debatable proposal at the time of this 1964 examination. As noted **517 at Special Term, The questions all entailed the exercise of value judgments and the answers thereto are not susceptible to confinement within a rigid prearranged formula. * * * Moreover, many of the ratings appear to be based on verbal rather than substantive grounds' (Lupiano, J., supra). [2] It is noteworthy that Bernard Berger, another co-author of the aforementioned publication and, at the time of its publication, the Principal Personnel Examiner in the City's Bureau of Examinations, states therein that the objective test has a decided weakness * * * in providing a full picture of the abilities and understanding of the candidate (supra, pg. 1). On the other hand, however, Kenneth O. Warner, Director of the publishing personnel association notes in the foreward that Psychometricians usually cast an uneasy eye at the reliability and sampling of the essay test; They shun the essay test for its more objective allythe multiple-choice test. (emphasis added). Regardless of which position one advocates, however, respondents must bear in mind, that under controlling constitutional, statutory and case law, as above noted, they are obligated, despite any attendant and well-recognized difficulties, to assure *473 the selection of public personnel by competitive And objective testing. The use of essay questions can in no way serve to alter or modify this legal requirement. [3] If the use of essay testing is to continue, the weaknesses inherent therein, fully analyzed in an article referred to on page 2 of the aforementioned publication (i.e., Powell, Improving Civil Service Essay Test), must be recognized and cured by respondents. As noted therein, no rating key to an essay question can possibly enumerate and evaluate all variations in responses. Thus, the varying grades of answers require high-level judgment and broad
knowledge of the particular field in question for adequate appraisal by skilled and qualified examiners or raters. The examiner must be Intimately familiar with and thoroughly know the exact subjects included in the test. Without in any way intending to deprecate the knowledge or ability of the raters involved in this proceeding, it is nevertheless obvious from the evidence before me that in many of the areas with which this test was concerned, they lacked the technical knowledge, skill and training required to evaluate properly the respective answers given by petitioners. For example, Question Six involved the use of documentary evidence in court. Many of the answers, as hereinafter noted, discussed technical legal problems of relevancy, materiality and admissibility, yet, significantly, None of the raters was an attorney or law school graduate who would thereby be presumed to be capable of carefully analyzing and weighing the propriety of the answers relating to Technical matters of law. The mere fact that assistance may have been obtained from qualified attorneys or other legal experts in the Preparation of the rating key for this question is not sufficient, inasmuch, as above indicated, the variations in responses not **518 anticipated and, therefore, not set forth in the rating key would still necessitate a person qualified in the field of law for the proper evaluation thereof and its Application to the credit structure. Moreover, the absence of such specialized knowledge or skill by a rater undoubtedly leads to much of the subjectivity which occurs in the grading of an essay test. Unless and until the rater is able to employ actual technical knowledge and ability, essay questions will almost always fail to realize their potential as a reliable, Objective testing device. [4][5] Furthermore, in order to make the essay examination a reliable testing device and its rating key an objective evaluation, as required by law, a Consistent and equitable approach is needed to the Construction as well as the Use of the rating key. It is not *474 sufficient to be satisfied with a rating
key which, while permitting independent examiners to agree substantially, as in the instant matter, nevertheless, perpetuates the element of subjectivity in their grading. (see Powell, Personnel Administration in Government, (Prentice-Hall), pg. 249; Furst, Constructing Evaluation Instruments', pg. 296 et seq.). In this proceeding, therefore, petitioners raised objection to respondents' use of two raters in grading each answer. They contend that in every instance of a disagreement between the raters, which, under applicable Civil Service Rule 4.5.1 (supra), then resulted in an averaging of their respective credit allotments, a candidate is entitled, as a matter of law, to the higher of the two ratings rather than the average mark of both grades. Inasmuch as the rules of the Civil Service Commission, insofar as is here relevant, now have the force and effect of binding law, petitioners' argument is without merit at this time. However, when a two-rater system is used, as it is by the Department of Personnel of the City of New York, there are natural hazards present in the application of a rating key to essay questions of which, in view of the proof adduced before me, respondents' examiners were not aware or failed to take into consideration. Thus, as noted in the Reiner publication, it is of paramount importance in the application of the key For both raters to understand the key answer and the rating scale fully Before the start of actual grading. [6][7] Objectivity must necessarily be a byproduct of such an approach (Personnel Report No. 611, supra, pgs. 1617). Documentary evidence indicating numerous instances of wide disagreement between the two raters here involved and the injection of subjective opinion in the aforementioned gray areas' of answers clearly warrant the conclusion that respondents' raters, in effect, had failed to agree on the key or its use, and the prerequisite conclusion that equivalent statements by the candidates would be fully accepted. The mere provision in the rating keys for credit to be given for other answers is not sufficient, particularly
inasmuch as (1) an unpredicted other answer may be as good as **519 or better than a fully credited key answer and, therefore, be entitled to more points than the key credits allow for a contemplated other answer; (2) the rater may not have the technical knowledge to recognize or to appreciate the true value of an unforeseen other answer; and (3) subjectivity rather than objectivity is the by-product of permissible credit under the so-called other category. *475 Another recurring problem area in the two-rater system concerns those answers to essay questions which, while not completely erroneous, contain irrelevant material, slight errors of fact or mere mistakes of judgment. Unless the Department of Personnel adopts a specific policy one way or the other, or unless both raters agree in advance, there is absolutely no guideline in this type of examination rating as to whether and to what extent a candidate should be penalized for such minor errors or irrelevancies which may tend only to reduce the total value of other correct and proper parts of his answer. Obviously, if one rater ignores such deficiencies while the second rater penalizes the candidate therefor, a distinct inequity will result. This fault is not entirely ameliorated by a rating key provision which allows plus or minus ten points'. Such provision is merely another subjective device for additional credit or penalty. This particular problem, however, can be readily overcome by appropriate policy directives of the City examination agencies involved or by provision in the key for the specific assessment of penalties for irrelevant material or for minor errors of fact or judgment. There are many other difficulties attendant to the use of the essay examination in the selection of public personnel which, while noted in the cited publication (supra) do not, in my opinion, warrant further discussion here. From the foregoing, however, it is evident that respondents must seriously consider whether present techniques employed by them in the construction and use of essay question rating keys permit the essay examination
to be, under applicable law, a workable, effective, systematic And objective method of civil service testing. [8] Each of the six essay questions of Examination No. 9961, respondents' rating keys, petitioners' answers, their proposed rating keys and their requests for additional credits will now be considered: Question #1: The twenty-squad system is used at present to distribute patrolmen individually among the three shifts on a rotating basis. It has been proposed, however, to change the patrolmen's duty chart so that five squads would perform the same tour together as a unit, while retaining the twenty-squad breakdown. Sergeants' schedules would be similarly arranged so that the same sergeant would remain with each unit. Compare the present system with the proposed one, giving the relative advantages and disadvantages of each. **520 Respondents' established rating key for this question provided for a maximum of forty points for answers relating to the advantages of the present system and a maximum of seventy-five points for listed advantages of the proposed system. In addition thereto, *476 the raters were permitted a leeway of plus or minus ten points in consideration of the character, scope and level of discussion. The key answers were listed as follows: A. Advantages of Present System: 1. Flexibilitycan more easily provide increased patrol at peak load periods. 2. Broadens scope of training and increases potential for growth since men are exposed to a variety of superiors (not restricted to single supervisor who may be less capable). 3. If we assume that proposed plan means that unit always remains on same tour, present system provides equitability in rotating hours of work. 4. Less likelihood of collusion among officers,
superiors, and public. B. Advantages of Proposed System: 1. Identification with constant work groupincreased sense of responsibility; feeling of achievement; increased morale in general. 2. Fixing responsibility is facilitated. 3. Closer and more continuous supervision possible. 4. Greater recognition of training needs. 5. Meaningful comparisons between units. 6. If we assume that proposed plan means that unit always remains on same tour, proposed system more likely to provide continuous attention to police hazards. 7. Other (More meaningful personnel records; facilitates development of specialist skills, etc.) The disadvantages of one system are basically the opposites of the advantages of the other system. No Credit: 1. Mentioning equitability without stating conditions in A3. 2. Mentioning better attention to police hazard without stating conditions in B6. 3. Mentioning better police service. 4. Present system already in operation.' Petitioners' proposed rating key for Question One contains all but items A3 and B6 of respondents' key, plus certain additional key answers **521 (infra). Petitioners' expert witness' testimony conclusively established the propriety and necessity of excluding respondents' key answers A3 and B6 inasmuch as it was clearly demonstrated that it would be impossible to create the subject duty chart based on a forty-hour week. The credible evidence also established that the following additional an-
swers, not contained in respondents' key, warrant credit to a petitioner who has so responded to Question One: A. Under advantages of present system: 1. Provides a broader training for Sergeants (Petitioners' key 4A). 2. Superiors can better evaluate performance of subordinates because of a broader comparison base (Petitioners' key 5A). 3. Commanding officer can more accurately evaluate Sergeants as they all supervise the same personnel (Petitioners' key 6A). *477 4. Difficulty in designing the proposed chart under the guide lines set forth in the question so there would be no coverage gaps (Petitioners' key 7A). 5. Police service not such that troups can always remain intact so that a great deal of the proposed system benefits would go by the board (Petitioners' key 8A). While respondents have argued that Petitioners' key 5A (subd. A2, supra) is untrue because of a purported lack of depth in the present personnel duty chart, the testimony of Michael G. Birmingham, former Police Department Chief of Staff, a recognized expert with broad police and law enforcement experience, clearly supports petitioners' key answer in this respect. I find, therefore, that such answer warrants credit to a petitioner so responding. b. Under advantages of proposed system: 1. More efficient evaluation of patrolmen performance possible because of closer relationship between superior and subordinate in work unit (Petitioners' key B6). 2. Permit Sergeants to make more effective assignments (Petitioners' key B8). 3. Simplify supervision and permit Sergeants to
devote more time to other police duties (Petitioners' key B9). Contrary to respondents' contention, petitioners' key answer B6 (subd. B1, supra) is different than respondents' key answer B2, 3 and 4 (supra). Obviously, evaluation and supervision are wholly different concepts, each of which is entitled to credit under a proper rating key. On the other hand, I find that petitioners' suggested key answer in their exhibit #11 (Petitioners' key B7), to the effect that the proposed system **522 would permit the assignment of patrolmen to steady post or assignment such as Radio Motor Patrol car, is not a valid point, inasmuch as the evidence establishes that this fact is the same in both the present and proposed system. No credit, therefore, has been allowed for such answer. Significantly, both the respondents' key (supra) and petitioners' proposed key to Question One contain the same maximum points with regard to parts A and B, namely, forty and seventy-five points respectively. While such credit structure has been shown to be proper as a whole, I find that petitioners' key answer A8 is not worth the allotted ten points but has a maximum value of five points only. Similarly, as noted above, petitioners' key B7 is disallowed as a valid answer and, therefore, the key's ten points for such answer is eliminated from the credit structure of answers to Question One. Giving due consideration to the foregoing, petitioners' claims for additional credits with respect to their answers to Question *478 One are disposed of as follows: (Charts of additional credits not printed). Question #2: A newly appointed captain, who had built up a reputation as a hard boiled lieutenant, has been placed in command of a precinct with which he has had little previous contact. His superior, when assigning him, tells him, You have a good precinct and morale there is high. By maintaining the morale of your men at this level, you will have no discip-
linary problems. What steps can the captain take in order to keep up the morale of the rank-and-file officers under this command? Respondent's established rating key for this question permitted a candidate to accumulate a total of 130 points. Similar to Question One, the raters, in effect, were allowed a subjective leeway of plus or minus ten points', based on the character, scope and level of discussion. Of the aforesaid 130 points, ten were allotted to responses concerning familiarity with personal or work problems (key answers A), sixty to staff related answers (key answer B) and sixty to job related answers (key answer C), to wit: Respondents' Key to Question 2: A. Become informed as to any existing precinct problems and past actions with respect to them (personal or work problems). B. Staff Related: 1. Foster good supervision (by self and by superiors under your command). 2. Set good personal example. 3. Show sincere interest in their welfare.
FN9. Other. C. Job Related: 1. Inform men of what is expected of them. a. Responsibilities and quality of performance needed. b. Clear instructions (concise, understandable). c. To whom accountable. 2. Encourage staff participation in solving problems, planning work and procedures. a. Stimulate through conferences. b. Promptly consider suggestions and justify rejections. 3. Explain and justify changes in policy and operations (avoid confusion or misinterpretation of new or changed orders). 4. Attempt to provide the best possible tools of the trade: communications, automotive, weapons and to keep them in the finest condition possible. 5. Encourage professional development (PA courses, college, professional society). 6. Other.'
4. Discipline where necessary (require adherence to high standards). **523 5. Use discipline as a corrective measure, not as a punitive tool. 6. Recognize good work performance. a. Reward, commend, special assignment. b. Public recognition (rollcall, bulletin board, etc.). 7. Have an open-door policy. 8. Sponsor social affairs for members of command.
*479 It is to be noted that pursuant to respondents' key, a candidate, under subdivision B thereof, would be required to give Each and every key answer in order to obtain a perfect score. The credible evidence adduced upon the trial, however, indicates that this far exceeds normal requirements and customary methods of grading civil service examinations. In addition to accepting respondents' key answers, testimony of competent and expert witnesses warrants the conclusion that the following answers, set forth in petitioners' suggested key to Question Two and adopted herein, are entitled to credit:
1. Analyze reasons for reputation as hard boiled and take steps to correct image (Petitioners' key B). 2. Be fair and impartial; avoid favoritism; guard against personal bias (Petitioners' key C8). 3. Set up machinery for ascertaining the existence of grievances (gripes) and for properly handling them (Petitioners' key C9). **524 4. Avoid promises or representations that cannot be kept (Petitioners' key C10). 5. Back up subordinates when they are right (don't pass the buck; stick neck out where necessary) (Petitioners' key C11). 6. Endeavor to assign subordinates to jobs for which they are best qualified and have an interest or liking (Petitioners' key C12). 7. Whenever possible, reprimand or criticize subordinates privately (Petitioners' key C13). 8. Avoid hasty or snap decisions or judgments (Petitioners' key C14). 9. Where possible, keep subordinates informed concerning matters in which they are interested (Petitioners' key C15). 10. Follow the principles of chain of command (Petitioners' key D5). 11. Make assignments of subordinates reasonable and capable of good performance (Petitioners' key D6). 12. Give subordinates sufficient authority to accomplish their responsibilities (Petitioners' key D7). 13. Maintain a continuing knowledge of the status quo and take immediate remedial action where required (Petitioners' key D8). Respondents argue that existing machinery in
the Police Department serves to invalidate Petitioners' suggested key C9 (supra, subd. 3) as a proper answer. However, petitioners' expert witnesses and their cited documentary authority for this answer clearly establish that the machinery contemplated in this response is not the existing formal procedures of the Police Department nor the so-called open door policy set forth in respondents' key answer B7 (supra). Thus, contrary to respondents' contention, I find such response is properly entitled to additional credit. Parenthetically, respondents' expert witness, a Police Department inspector, conceded that petitioners' key answer D8 (supra, subd. 13) is a separate and valid response to Question *480 Two. He made a similar though more reluctant concession regarding the following additional answer to this question: 14. Make subordinates feel that they are members of a team (develop in them a sense of belonging; encourage in them good attitudes toward their job) (Petitioners' key D9). Contrary to respondents' objection to this last answer (supra, subd. 14), I find that it is relevant to the hard-boiled reputation problem involved in the subject question and, therefore, is properly within a complete key answer thereto. **525 The maximum credit obtainable under respondents' rating key to Question Two is 180 points. As will be discussed more fully hereinafter, this, in and of itself, serves to refute respondents' argument that 160 points, as recommended by petitioners' rating key to Question Four (infra) is excessive. In any event, I find the recommended credit structure set forth in petitioners' exhibit 19 to be proper, valid and suitable with respect to Question Two. Nothing in the proof adduced before me supports Reiner's testimony that petitioners' proposed staff related answers should be limited to five points each. Likewise, as noted by petitioners' ex-
pert witness, I find respondents' key answer B8 to be invalid. It certainly is not a proper police function for a precinct captain, hard-boiled or otherwise, to sponsor social affairs for members of his command. Giving due consideration to the foregoing, petitioners' claims for additional credits with respect to their answers to Question Two are disposed of as follows: (Charts of additional credits not printed). Question #3: There has been considerable controversy as to whether juveniles who are arrested should be fingerprinted. Police officials generally favor this practice while social workers are generally opposed. Briefly discuss the arguments for and against this practice. Respondent's established rating key, in accordance with which petitioners' answers were graded, permitted a total of fifty points to be obtained by a candidate for arguments in favor of fingerprinting and a maximum of sixty points for arguments against such procedure. This rating key includes credit for the following responses only: A. In favor of fingerprinting: 1. It is most accurate method of identification known (full record). 2. It may help protect the innocent (or may help solve juvenile crimes). 3. Prior record is valuable for judicial sentencing or treatment. 4. First duty of law enforcement is to protect society (welfare of juvenile offenders only secondary). *481 5. Mere taking of prints of juveniles may deter would-be offenders and recidivists. 6. Other. B. Against Fingerprinting:
1. It is closely allied in public mind whth criminals and criminal processes (raises question of stigma). 2. It violates or reverses the spirit and/or procedure of juvenile court (which is not criminal in aims and methods). **526 3. Records other than fingerprints taken on a juvenile offender are usually sufficient identification in cases of subsequent offenses by a youth. 4. a. It may be harmful in that association of fingerprinting with criminal procedure in youth's mind may mar his outlook for life. b. Taking of prints of so-called tough-guy may give him a feeling of importance. c. This would also have an effect on his associates, leading them to emulate him by committing petty or serious crimes in order to be fingerprinted. d. The feeling of importance of being a member of a gang outweighs any deterrent effect fingerprinting may have. 5. Other.' Petitioners' suggested rating key allots a maximum of fifty-five points for arguments in favor of fingerprinting and maintains respondents' sixty points' allocation to arguments against it. However, the expert testimony of Prof. Alexander B. Smith and the documentary evidence adduced in support thereof establish that respondents improperly failed to give credit for the following answers which were not included in their rating key: 1. Fingerprinting juveniles enables the FBI to include nation-wide juvenile delinquency statistics in their Uniform Crime Report (Petitioners' key A6). 2. Fingerprinting which has become commonplace for juveniles is no more a stigma for juveniles than being in a detention home, before the courts,
under supervision of a probation officer, or in an institution; they do not therefore constitute a psychological identification of the child with criminals generally (Petitioners' key A7). 3. Fingerprinting juveniles is part of the trend toward universal fingerprinting (Petitioners' key A8). 4. The nonpolice use of juvenile fingerprint files is no more detrimental to the juvenile than the nonpolice use of all other police and court records in a particular case (Petitioners' key A9). 5. Fingerprinting creates an attitude of hostility in a child or his parents, especially if they are sensitive (Petitioners' key B5). 6. The act of fingerprinting shows a lack of faith in the juvenile on the part of society that may block his rehabilitation and reintegration into society (Petitioners' key B6). While Petitioners' key answer B5 (supra) is similar to respondents' key B4a, I find that a careful analysis thereof reveals its critical distinction, **527 especially with respect to the attitude of the parents. If a candidate has sufficient knowledge to set forth this last fact in his answer, I hold that he would then be entitled to additional credit of at least 2.5 points. *482 With the addition of the foregoing answers to a proper key, I find that a maximum of fifty points should be allowed with regard to arguments for fingerprinting; one answer will be entitled to fifteen points, and all others will be credited with ten points each. The key answer credits suggested by Prof. Smith for responses to the arguments against fingerprinting, similarly, are adopted here. Thus, giving due consideration to the foregoing, petitioners' claims for additional credits with respect to their answers to Question Three are disposed of as follows: (Charts of additional credits not printed). Question #4:
There is a growing tendency on the part of some citizens to form into large groups and to take their grievances against the police directly to the local station houses. As the captain of a local precinct, what actions would you take if your station house was the object of such a mass demonstration. In response to this question, respondents' rating key set forth the following answers for which credit was allowed as follows: a maximum of sixty points was allotted for those items dealing with immediate action, A1 being valued at ten points, any one answer dealing with group similarly valued at ten points and the other responses at five points each; likewise, a total of fifty points was allocated to answers dealing with Frozen Areas and Assignments' (infra), the rating key fixing one answer at ten points and all others at five points each. It is to be noted, however, that the rating key in this respect must be deemed to be in error, for if a candidate answered all eight parts of this subdivision, he would receive only forty-five points instead of the allotted fifty. Significantly, in an effort to cure this apparent defect, respondents' witness Meltzer, one of the raters of petitioners' subject examination papers, testified that the mob control answer indicated in B8 of Question Four (infra) was ten points rather than the five ascribed to it by the rating key. In addition to the answers of A and B (infra) totalling 110 points maximum credit, the rating key, under subdivision C provided for socalled Other answers which would warrant another thirty points maximmum. Thus, respondents' rating key, for the following key answers, made allowance for a purported maximum of 140 credits: A. Immediate action: 1. Captain of precinct, if present, or other superior in charge should station himself at entrance with loud speaker device so that he can communicate with group. **528 2. Dealing with group:
a. Ascertain as quickly as possible the identity of those involved, the number in the group, and the nature of their grievance. *483 b. Determine who the leaders are. c. Attempt to communicate with leaders or invite inside to discuss grievance. d. Be sure that the whole group knows that you are anxious to hear and discuss the grievance and settle it if possible (good public relations). e. If the leaders and the group are not willing to discuss the grievance, then tell them they will have to disperse. f. Allow peaceful picketing. g. Otherwise give order to men to disperse the group. Direct them to do this without the necessity of arrest, if this is possible. h. No brutality (caution officers to be firm but avoid brutality, violence). 3. Notify Communications Bureau of the borough so that all concerned may be informed. 4. Send for community leaders who may assist in controlling the group. 5. Tell of other redress open. B. Frozen Area and Assignments: 1. Establish frozen area in immediate vicinity of station house (with zones & posts). 2. If more than one entrance into station house, cover each one by assignment of men. 3. Sufficient men in front of main entrance so that group does not storm station house and take it over. 4. Rooftops to be covered by patrolmen. 5. Outline access route for responding vehicles to use in getting to station house, if needed.
6. Vehicles and pedestrians to be excluded. 7. If transit facilities within frozen area, assign men so that confusion, etc. does not occur. 8. Other (If can't disperse peacefully, use mob control tactics). C. Other: 1. If precinct personnel cannot handle, send for assistance under Rapid Mobilization Plan; increase as needed. **529 2. Use precinct squad detectives to infiltrate crowds so as to learn temper of group. 3. Cooperate with press so that the police story is presented accurately. 4. Particularly close supervision needed in this situation. 5. Other.' In apposition to respondents' rating key, petitioners' suggested key significantly omitted item A2e. As noted by petitioners' expert witness, this answer, as set forth in respondents' key, erroneously directs the dispersal of peaceful picketing. Not only is such direction improper and illegal, but such an answer would serve to conflict with respondents' key answer A2f of the same key (supra). This is perhaps but another example of the difficulty respondents will continue to encounter if they persist in the practice of having non-lawyers prepare questions and key answers which necessarily deal with technical matters of law and legal procedure. Petitioners' suggested rating key added another item to section A of respondents' key, to wit, Protect rights of those not *484 involved in demonstration to lawful use of streets and highways'. There can be no meritorious dispute regarding the validity of this item. In addition thereto, petitioners also suggest a new section D to the rating key, as follows:
D.Concluding and follow-up action: 1. Maintain assignments until conditions return to normal. 2. Submit reports on action taken, with evaluation and comments thereon. 3. Maintain liaison with protesting group, reduce tensions, establish better relations, process grievance as required.' Respondents, significantly, offered no expert or police authority to dispute any of the substantive aspects of these additional rating key items which, accordingly, are hereby found to be proper answers, entitled to credit. With regard to the credit structure for Question Four, respondents' witness Reiner stated that while it was proper for respondents' raters to allow a total of 140 points under respondents' key, the suggested 160 points in petitioners' key would be excessive. I disagree. Nevertheless, I find that an allowance of twenty points for the new section D (supra) as suggested by petitioners, is not warranted by the contents and significance of the answers required thereby. As hereinabove indicated and in refutation of Reiner's argument regarding anything beyond 140 points as excessive, it is to be noted (and Reiner so conceded) that respondents' credit structure for the key to Question Two (supra) could result in a maximum scoring of 180 points, or a total of forty points beyond the limitation Reiner seeks here. Thus, **530 upon the evidence before me, I find that no satisfactory reason was established by respondents to limit the answers to Question Four to 140 points, or on the other hand, to allot to section D more than a total of ten points. The maximum points for the rating key to this question, therefore, is fixed at 150 points. Giving due consideration to the foregoing, petitioners' claims for additional credits with respect to their answers to Question Four are disposed of as
follows: (Charts of additional credits not printed). Contrary to their claims upon the trial of this matter, I find that neither Morell nor Carlson is entitled to any additional credits on Question Four for the alleged scope, depth, organization and character of their respective answers. Question #5: A plan has been proposed whereby review boards would be established in New York City to deal with charges of police misconduct made by private citizens. Evaluate this proposal, giving reasons. *485 This question, concerning a much debated proposal at the time the subject examination was given, clearly revealed the fundamental fault underlying the use of an essay type test for the selection of public personnel, namely, subjectivity. An analysis of the ratings and papers submitted by respondents in support thereof indicate that in many instances regarding this question, the personal opinions of the examiners seem to prevail over expert opinion and authorities offered by petitioners to corroborate the arguments set forth in their answers. Thus, it frequently appears, as the allowance of additional credits will hereinafter demonstrate, that respondents' raters failed to give credit for a valid answer simply because they, personally, were of a different opinion. Likewise, I find unwarranted the raters' practice of failing to give credit for an answer simply because a candidate lists it in one place as an advantage and in another part of the examination as a disadvantage. This, too, is the fault of the way an essay question is phrased. Questions such as this one, which, in effect, call for advantages and disadvantages' or arguments for and against (evaluate)' necessarily lead to the subject problem. Thus, conceivably, some people felt that civilians on a review board were an advantage (impartial review, etc.) while at the same time believed their lack of professional knowledge of police work would be a disadvantage. Both such an-
swers, obviously, are entitled to credit under a question so phrased. The following rating key, each part valued at fifty points, was established by respondents for Question Five: A. Advantages 1. Provides for impartial outside review (or: police will not be judge of their own actions). **531 2. Tends to limit police to legal and constitutional bounds and actions (or: less likelihood of overzealous or improper law enforcement). 3. Arrests or other actions will tend to be more carefully madeactions more likely to be successfully upheld; less likelihood of civilian suits. 4. Significantly increases public confidence in police or improves relationship with police. 5. Other. B. Disadvantages 1. Threatens good law enforcement in that police may fear to act, especially in borderline cases. 2. May result in increase in unjustified charges or be used as a forum for challenging or criticising police activity. 3. Difficulty of selecting qualified impartial citizens, willing to serve (or: More likely to be influenced by social and political forces and pressure groups). *486 4. May lower police morale (or: police tend to lack confidence in civilians). 5. Other. No Credit: a. May set precedent for outside review boards in other agencies. b. Taking both sides of same issue without adequate explanation.'
At least fourteen of the sixteen petitioners here involved set forth alleged advantages and disadvantages of the proposal which were not credited under the above rating key fixed by respondents. The fact that there were so many responses other than those in such key should have alerted respondents' raters to the fact that their key, at best, was incomplete. Nothing in the record in this respect warrants the conclusion, as asserted by Reiner, that all of the new items (hereinafter set forth in the revised rating key) came within the intended scope of the items of respondents' key, inasmuch as they were deemed by the examiners to be incorrect and, therefore, entitled to and given no credit. The revised rating key adopted here was prepared by one of the authors of the article cited and relied upon by respondents in the preparation of the question and answers here involved. While such author, an expert witness called in behalf of petitioners, had no past experience in the formulation of examinations for the selection of public personnel, his testimony on the subject matter of Question Five was not challenged by an expert As to the validity of the new items or as to his opinion that each such new item was separate from and equal in significance to each **532 item in respondents' rating key. In view of such evidence, I find each such new item (infra) is entitled to the same value as that assigned to answers in respondents' key. The revised key, therefore, adds three items to section A and three to section B of respondents' key, as follows: 1. A5: Provides for the application of civilian judgment in balancing the interests of law enforcement and individual rights'. Contrary to respondents' contention, I find this to be a valid answer separate and apart from their key answer A1. 2. A6: Citizens would not be inhibited from lodging
complaints or giving testimony because of fear of police or distrust of departmental review procedures'. Contrary to respondents' contention, I find this to be a valid answer separate and apart from their key answer A4. 3. A7: Provides an avenue of communication through which the public can suggest to the police general reforms that eliminate improper or irritating practices'. Contrary to respondents' contention, I find this to be a valid answer separate and apart from their key answer A2. *487 Each of these three new key items are valued at a maximum of ten points. 1. B5: Civilian board members would not be experts in police work and would tend to be unfamiliar with problems and techniques of law enforcement'. Contrary to respondents' contention, I find this to be a valid answer separate and apart from their key answer B3. 2. B6: Review of police misconduct should be by officials who are in a position to effectuate changes and reforms; collateral review by an outside body would tend to interfere with the authority of those primarily responsible for the administration of the police department'. In view of the fact at least eight petitioners gave this last new item as a response under disadvantages', respondents' principal witness reluctantly**533 conceded on cross-examination that it should properly be a part of the rating key. 3. B7: Recourse against police misconduct is available through existing departmental review and discipline
procedures and through judicial action'. While Reiner conceded this response would constitute a new item, he stated it was not an answer to the question. I disagree, inasmuch as such a response indicates that the proposed board is unnecessary or not needed, which, quite properly, would entitle such an answer to credit under disadvantages'. Each of these three new disadvantages' are valued at a maximum of ten points. Giving due consideration to the foregoing, petitioners' claims for additional credits with respect to their answers to Question Five are disposed of as follows: (Chart of additional credits not printed). Question #6: As a result of his investigation of a crime, an investigating officer has discovered certain items, including documents, which may have value as evidence. State and briefly discuss the principal factors that must be considered if this evidence is to be used in court. Respondents' key answer: A.Admissibility: 1. Matter must have been obtained in a legal fashion (or: without violating a law, or a right protected by the Constitution, or by force, duress or threats). 2. Matter must be relevant. 3. Conclusions and opinions, no matter how well supported, are inadminssible (but facts which give rise to these c's & o's must be established and introduced as evidence). 4. Other. *488 B.Reliability (or Weight as Evidence): 1. Continuity of chain of possession must be preserved. 2. Protection of documents and other items
from destruction or contamination to preserve their evidential value. 3. Must be clearly marked permanently and distinctly, for ready identification. 4. Is it a document of original entry (if not, on what other documents or records is it based?) (or: Original document **534 best evidence (if original lost, destroyed, etc., or outside court's jurisdiction, can introduce secondary evidence in form of photos, photostats, copies) by authenticity of copy must be certified) (or: What are the possibilities of transcription errors, or of error in the basic documents?) 5. Other (Would the person supplying document have any logical reason, or personal reason to falsify it or gain an advantage through falsification? For what purpose was document prepared?) a. For express purpose of recording the desired information. b. For another purpose, and desired information was entered only coincidentally. Police Jan. Feb. 1962, USING DOCUMENTS AS EVIDENCE (P. 19 et seq.).' Respondents' rating key assigned a total of fifty points to the four answers under subdivision A (twenty, fifteen, ten and five points respectively) and a maximum of seventy points to answers under subdivision B (twenty, twenty, twenty, ten and ten points, respectively, for All five answers respectively). Again indicating the weakness of having a non-lawyer prepare a rating key dealing with a technical legal problem, respondents' item A3 is clearly erroneous and should not have been included as part of the rating key's answers. Expert opinion is not only admissible but, most frequently, vital and needed. This error was apparently appreciated by petitioners' expert witness on this question who prepared two alternative rating keys. His second al-
ternative key omits item A3, while his first alternative key omits All of respondents' answers under subdivision A, Admissibility. In my opinion, the second alternative key, as suggested by this outstanding police authority, lawyer and examiner, is superior to his first alternative and to the rating key used by respondents. Such alternative rating key, therefore, is adopted here. It includes two new key answers not set forth in respondents' key despite the fact that at least thirteen of the sixteen petitioners here involved had responses in their examination papers which should have alerted the raters to the probable propriety of such answers. These two items relate to: 1. Delivery for examination or analysis to laboratory or technician. (Petitioners' key B4). 2. Availability of reproductions in the form of photographs, sketches, copies, or molds for proper presentation of evidence in court. (Petitioners' key B5). **535 *489 Significantly, the police expert called by respondents failed to contradict the validity of either of the foregoing two new key answers and, in effect, confirmed the fact that the mobile laboratory and main laboratories of the City Police Department perform the examinations and analysis referred to in item B4 (supra). A proper credit structure for the new rating key which includes the two new items under subdivision B would, in my opinion, allow twenty points for each item thereunder, with a maximum of eighty points. As noted by petitioners, while respondents' senior examiner agreed with the eighty points' value for subdivision B, he would reduce the value of each new item by assigning twenty points to any one item thereunder and ten points to each other item. I find such contention to be wholly without merit. If adopted, this suggested rating key would require eight of nine answers for a perfect score of eighty points. On the other hand, it is to be noted that respondents' rating key had three items in subdivision B at twenty points each and at least two
other items at ten points each (supra). Thus, a perfect score of seventy points on respondents' rating key could be obtained by four of a possible nine answers. I find, therefore, that the extensive and exhaustive scope of the revised key (the second alternative (supra)), adopted here as the proper rating key, coupled with the limited time available to a candidate on this examination, justified petitioners' expert opinion that each item was worth twenty points. I hold, therefore, that an answer which fully and correctly sets forth four of the items in subdivision B, as adopted here, is entitled to the full eighty points. Giving due consideration to the foregoing, petitioners' claims for additional credits with respect to their answers to Question Six are disposed of as follows: (Charts of additional credits not printed). With regard to the respective specific items for which credit was sought by petitioners under the key answers above listed for each of the six essay questions involved, such items are set forth fully in Petitioners' Exhibits 9, 11, 15, 17 and 19, their suggested rating keys. It will serve no useful purpose, therefore, to repeat herein each and every item of petitioners' answers in greater detail than already indicated here. It should be noted, however, that for the most part, the credit structure adopted here for each question accommodated, insofar as practicable, all new items (which were not included in respondents' rating keys) to the credit structures they had used for the marking of the subject test. This obviated the possibility that an answer common to respondents' key and the one here *490 adopted in lieu thereof would receive different credits when marked on the original rating or when marked as a result of this proceeding. In most instances, as the foregoing rating keys and credit structures indicate, respondents' proposed credit allowances for the revised rating **536 keys were untenable. The value assigned by respondents to each new item was almost always
less than that suggested by petitioners, although respondents' witnesses were frequently unable to state a valid reason therefor. Many times, as above stated, respondents' assertions that the new items were the same or closely related to their key items were wholly without foundation and unwarranted. Reiner's testimony to the effect that each of respondents' rating keys contemplated the allowance of credit for other items not specified therein does not support these assertions (supra). It is to be noted that nothing in respondents' credit structures indicate that the value of a specified item would be reduced by the allowance of credit for a so-called other item. [9] An analysis of respondents' proposed credit structures (as compared to those adopted here) also establishes that to use those recommended by respondents, in effect, would cause petitioners to be entitled and to receive less credit for an answer than was allowed by the raters in the original marking of identical items in papers of other candidates not involved in the litigation. Thus, even if it were to be assumed that respondents' proposed credit allowances would be appropriate as an original rating system, it is obviously inappropriate as a method of rating at this time. The resulting prejudice in the grading of petitioners' answers as compared with that of others not before the Court cannot be condoned. Contrary to the position advocated, in substance, by respondents, it would be wholly unjustifiable at this stage of regrading answers to cause any petitioner to receive less credit for any item in his examination paper than respondents have already allowed for an identical response to all other candidates on this test. In recapitulation, therefore, the following three tables set forth statistically the results of the regrading of petitioners' answers to Part II of Examination No. 9961, as indicated in detail hereinabove. The first table lists the additional credits scored by each of the sixteen petitioners on each of the six questions; the second table lists the old and new grades fixed for each question and the resulting new aver-
age of each petitioner on Part II of the subject examination; the third tabulation sets forth the new final grades obtained by each of the petitioners on the subject examination as a whole. (Tables not printed.) *491 Accordingly, the petition is granted and judgment is rendered in favor of petitioners as hereinabove indicated. Settle final judgment providing for the regrading of petitioners' answers to Part II of Examination No. 9961 and the regrading of their final averages on said examination in accordance herewith. N.Y.Sup. 1967. Mark v. Lang 52 Misc.2d 469, 276 N.Y.S.2d 512 END OF DOCUMENT
Tab 8
233k200.59 k. Value of Property. Most FIND Request: 15 Misc. 2d 143, 145 Supreme Court, New York County, New York, Special Term, Part I. Application of Joseph J. LESE, Agent, Petitioner, for an order under Article 78 of the Civil Practice Act, v. TEMPORARY STATE HOUSING RENT COMMISSION, Respondent. July 9, 1958. Proceeding to review an alleged arbitrary determination by the State Rent Administrator relative to petitioner's application for an increase in rent. The Supreme Court, New York County, Special Term, Part I, Owen McGivern, J., held that where no proof was offered that sale of premises was not on normal financial terms, and purchaser who applied for an increase in rent pursuant to Emergency Housing Rent Control Law offered proof by competent real estate appraiser that terms of sale were normal, and if there existed any deviation from normal financing in facts relating to relative amounts of mortgages and of interest payable thereon, such deviation was minimal, and there was no evidence that financing factors involved were not good and normal real estate practice or that speculation was a factor in the deal, in refusing to accept the sales price as basis for valuation Rent Administrator acted arbitrarily, unreasonably and illegally. Motion granted and proceeding remanded. West Headnotes Landlord and Tenant 233 200.59 Cited Cases Where no proof was offered that sale of premises was not on normal financial terms, and purchaser who applied for an increase in rent pursuant to Emergency Housing Rent Control Law offered proof by competent real estate appraiser that terms of sale were normal, and if there existed any deviation from normal financing in facts relating to relative amounts of mortgages and of interest payable thereon, such deviation was minimal, and there was no evidence that financing factors involved were not good and normal real estate practice or that speculation was a factor in the deal, in refusing to accept the sales price as basis for valuation Rent Administrator acted arbitrarily, unreasonably and illegally. McK.Unconsol.Laws 8584, subd. 4(a); Rent and Eviction Regulations, 33, subd. 5, McK.Unconsol.Laws Appendix. **589 *144 Arthur D. Emil, New York City (Arthur D. Emil, Buchwald, Nadel, Cohen & Hoffman, New York City, of counsel), for petitioner. Nathan Heller, New York City (Jacob B. Ward, New York City, of counsel), for respondent. OWEN McGIVERN, Justice. Petitioner landlord brings this proceeding to review an alleged arbitrary determination by the State Rent Administrator relative to petitioner's application for an increase in rent pursuant to section 4(4)(a) of the Emergency Housing Rent Control Law (section 8584 of McKinney's Unconsolidated Laws). Request was made for a net annual return of 6% based on the value of property which petitioner asserted was a bona fide sale price paid by petitioner in 1956. A year after this date, petitioner made this application which was denied on November 15, 1957. Protest was then filed, and on March 5, 1958, an order was made denying the protest.
233 Landlord and Tenant 233VIII Rent and Advances 233VIII(A) Rights and Liabilities 233k200.55 Grounds for Adjustment in General
The property was purchased for $203,700. Cash of $30,000 (15%) was paid on the closing. The further sum of $3,700 was paid by the purchaser to the individuals on the contract who sold the contract to the purchaser. The purchase was subject to a first mortgage of $100,000, bearing an interest rate of 5%, held by a savings bank, which mortgage was extended (at the time of the purchase) for ten years. In addition, there was a purchase money second mortgage of $70,000, due in ten years with interest at 4 1/2% for the first six years and 5% the next four years, requiring no amortization for the first three years, although the first mortgage called for amortization quarterly from inception, beginning the date of sale and extension. The Administrator in denying the protest said that, upon the evidence, the bulk of the purchase price was for the land rather than the building and that the price paid was predominantly for its future or potential value and not for its present value. It is conceded the 1957 amendment makes it mandatory for the Administrator to use the most recent bona fide sale price rather than the assessed valuation. However, the Rent Act and Regulation 33(5), McK.Unconsol.Laws Appendix specifically require that the sale be on normal financing terms and unaffected by special circumstances'. **590 The Commissioner concedes that were the 15% cash payment the only indication of abnormal financing, he would in all probability have utilized the sale price as the valuation base. However, he asserts that the 15% cash payment, coupled with the high purchase money second mortgage (it being 70% of the first *145 mortgage), and the fact that interest on the second mortgage was less than on the first mortgage, and also the fact that no amortization payments are provided for the first three years, justify him in holding that these circumstances are evidence of abnormal financing which justify his ruling. No expert testimony or other proof is offered
that the sale was not on normal financing terms. But the petitioner offered proof by a competent real estate appraiser that the terms of the sale were normal. And indeed it is difficult to appreciate any abnormality in a transaction where a savings bank extends a first mortgage of $100,000. If there does exist any deviation from normal financing in the facts relating to the relative amounts of the mortgages and of the interest payable thereon, such deviation is so minimal that refusal to consider the sale price is arbitrary. There is no evidence that the financing factors involved are not good and normal real estate practice or that speculation was a factor in the deal. The court therefore concludes that in refusing to accept the sales price as the basis for valuation the Administrator acted arbitrarily, unreasonably and illegally. The motion is granted and the proceeding remanded to respondent for action not inconsistent with the foregoing. Settle order. N.Y.Sup., 1958 Lese v. Temporary State Housing Rent Commission 15 Misc.2d 143, 181 N.Y.S.2d 588 END OF DOCUMENT
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Page 1 279 A.D.2d 770, 719 N.Y.S.2d 199, 150 Ed. Law Rep. 474, 2001 N.Y. Slip Op. 00274 (Cite as: 279 A.D.2d 770, 719 N.Y.S.2d 199)
whether it is supported by substantial evidence. FIND Request: 279 A.D.2d 770, 771-72 [2] Colleges and Universities 81 Supreme Court, Appellate Division, Third Department, New York. In the Matter of Carl A. BASILE et al., AppellantsRespondents, v. ALBANY COLLEGE OF PHARMACY OF UNION UNIVERSITY et al., RespondentsAppellants. Jan. 11, 2001. Pharmacy college students brought article 78 proceeding challenging determinations of college's student honor code committee, expelling two of the students and giving a third a failing grade on a required course for allegedly cheating on various examinations. The Supreme Court, Albany County, Malone, J., dismissed proceeding, and students appealed. The Supreme Court, Appellate Division, Mugglin, J., held that statistical compilation showing that the college had given the same incorrect answers to multiple choice examinations did not provide rational basis for committee's determinations that the students had cheated. Reversed; petition granted. West Headnotes [1] Colleges and Universities 81 9.35(4) 9.35(4)
81 Colleges and Universities 81k9 Students 81k9.35 Curriculum, Degrees, Grades, and Credits 81k9.35(3) Academic Expulsion, Suspension, or Probation 81k9.35(4) k. Proceedings and Review. Most Cited Cases Statistical compilation showing that three pharmacy college students had given the same incorrect answers to multiple choice examinations did not provide rational basis for determinations of college's student honor code committee that the students had cheated on the examinations; statistician opined that the statistics were valid only if students had no knowledge of the subject matter and had not studied together, and the students had taken the examinations in separate rooms in the presence of a proctor, who discerned no evidence of cheating. [3] Administrative Law and Procedure 15A 676 15A Administrative Law and Procedure 15AV Judicial Review of Administrative Decisions 15AV(A) In General 15Ak676 k. Record. Most Cited Cases Affidavit that was not part of administrative record forming basis for administrative determinations being challenged in article 78 proceeding could not be considered by Supreme Court. McKinney's CPLR 7801 et seq. **200 O'Hara & O'Connell (James P. Evans of counsel), Syracuse, for appellants-respondents. Pattison, Sampson, Ginsberg & Griffin P.C. (Jeffrey R. Armstrong of counsel), Troy, for respondents-appellants.
81 Colleges and Universities 81k9 Students 81k9.35 Curriculum, Degrees, Grades, and Credits 81k9.35(3) Academic Expulsion, Suspension, or Probation 81k9.35(4) k. Proceedings and Review. Most Cited Cases Judicial review of academic disciplinary matters between a private college and its students, where a hearing is not required by law, is whether the determination is arbitrary or capricious, not
Before: CARDONA, P.J., CREW III, MUGGLIN, ROSE and LAHTINEN, JJ. *770 MUGGLIN, J. Cross appeals from a judgment of the Supreme Court (Malone Jr., J.), entered December 3, 1999 in Albany County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review determinations of respondents expelling petitioners Carl A. Basile and Daniel R. Papelino from respondent Albany College of Pharmacy, and awarding petitioner Michael Yu a failing grade in a required course. Petitioners, fourth year students at respondent Albany College of Pharmacy (hereinafter the College), were charged by several of their respective professors with cheating on examinations given in various courses spanning two academic years. Following a hearing conducted by respondent Albany College of Pharmacy Student Honor Code Committee (hereinafter the Committee), petitioners were found guilty of cheating despite the absence of any evidence as to the specific means by which they allegedly cheated. The evidence in support of the charges consisted of (1) compilations by the various professors showing that petitioners gave the same incorrect answers to multiple choice examinations, (2) two anonymous notes, one of which *771 claimed that two petitioners requested information concerning the contents of exams and the second questioning whether the same two petitioners were cheating, and (3) similar answers to questions which required calculations, although each petitioner utilized different calculations uncorrelated to the answer arrived at. Petitioners commenced this CPLR article 78 proceeding to annul respondents' determinations. Although the petition alleged certain procedural defects in the administrative hearing process, by stipulation and order petitioners waived all procedural defects underlying the determinations. Supreme Court, concluding that the appropriate standard of review was whether the determinations were ration-
ally based, dismissed the petition. As a collateral matter, Supreme Court refused to consider an affidavit offered by the College since it was not a part of the administrative record underlying the determinations under review. Petitioners now appeal Supreme Court's dismissal of the petition and confirmation of the determinations. Respondents**201 cross-appeal from Supreme Court's refusal to consider the affidavit. [1][2] As an initial matter, we observe that Supreme Court adopted the correct standard of review. It is well settled that judicial review of academic disciplinary matters between a private college and its students, where a hearing is not required by law, is whether the determination is arbitrary or capricious, not whether it is supported by substantial evidence (see, Matter of Rensselaer Socy. of Engrs. v. Rensselaer Polytechnic Inst., 260 A.D.2d 992, 993, 689 N.Y.S.2d 292; Matter of Christopher v. Phillips, 160 A.D.2d 1165, 1167, 554 N.Y.S.2d 370, lv. denied 76 N.Y.2d 706, 560 N.Y.S.2d 988, 561 N.E.2d 888). Rationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard * * * ( Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [citation omitted]). Unlike Supreme Court, however, we do not find that the Committee's determinations that petitioners cheated on various examinations have a rational basis and we therefore reverse. First, the Committee's determinations were based solely on the statistical compilation. While these may give rise to a suspicion of cheating, suspicion alone will not suffice (see, Matter of Chiaino v. Lomenzo, 26 A.D.2d 469, 473, 275 N.Y.S.2d 658). An affidavit from an expert statistician, unrebutted by the College, establishes that the statistical case propounded by the professors is based upon false assumptions and therefore does not provide a rational basis to conclude that petitioners cheated. Specifically, the expert's opinion points out that the statistics are valid only if the persons taking the ex-
amination had no knowledge of the *772 subject matter (randomness) and had not studied together (independence). Second, petitioners Carl A. Basile and Daniel R. Papelino were charged with cheating in nine courses and petitioner Michael Yu in seven courses. Basile was found guilty of cheating in six of the nine, Papelino in three of the nine and Yu in one of the seven. Since the same statistical methodology was used in every instance, there is no rational explanation which would support a finding of guilt in some courses but not in others. Third, respondents claim that in addition to these statistics, there is evidence in the record of cheating by petitioners. A careful review of these allegations reveals that they are either hearsay anonymous notes or based on sheer speculation, neither of which will rationally support the determinations of the Committee (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183). Moreover, it was irrational of the Committee to determine that it could rely solely on the inference of cheating raised by the statistical compilation, particularly when faced with proof that petitioners took these examinations in separate rooms and under the watchful eye of a proctor, who discerned no evidence of cheating. [3] As a final matter, Supreme Court correctly refused to consider the affidavit offered by the College as part of its answer to the CPLR article 78 proceeding to support the determination. Clearly, this affidavit was not part of the administrative record forming the basis for the administrative determinations (see, Matter of Levine v. New York State Liq. Auth., 23 N.Y.2d 863, 864, 298 N.Y.S.2d 71, 245 N.E.2d 804). ORDERED that the judgment is reversed, on the law, with costs, determinations annulled and petition granted. CREW III, ROSE and LAHTINEN, JJ., concur;
CARDONA, P.J., not taking part. N.Y.A.D. 3 Dept.,2001. Basile v. Albany College of Pharmacy of Union University 279 A.D.2d 770, 719 N.Y.S.2d 199, 150 Ed. Law Rep. 474, 2001 N.Y. Slip Op. 00274 END OF DOCUMENT
Tab 10
FIND Request: 12 A.D.3d 921, 923 Supreme Court, Appellate Division, Third Department, New York. In the Matter of ST. JAMES NURSING HOME et al., RespondentsAppellants, v. Barbara Ann DE BUONO et al., AppellantsRespondents. (And Five Other Related Proceedings.) Nov. 18, 2004. Background: Nursing homes brought article 78 proceedings challenging three State Plan Amendments (SPAs) adjusting their Medicaid reimbursement rates, and seeking recalculation of their reimbursements. The Supreme Court, Albany County, Benza, J., partially granted the applications, and appeal was taken. Holdings: The Supreme Court, Appellate Division, Rose, J., held that: (1) evidence was sufficient to support finding that regression analysis underlying Medicaid revenue adjustments (MRA) produced a statistically invalid and, thus, unreasonable formulation of the relationship between Medicaid revenue and nursing home costs, and (2) SPAs were approvable within the meaning of Medicaid regulation as of the first day of the calendar quarter in which those SPAs were submitted. Affirmed. West Headnotes [1] Health 198H 487(2)
198Hk487 Reimbursement 198Hk487(2) k. Rates in general. Most Cited Cases A rate-setting action of the Department of Health may be annulled only upon a compelling showing that the calculations from which it derived were unreasonable. McKinney's CPLR 7803, subd. 3. [2] Health 198H 507
198H Health 198HIII Government Assistance 198HIII(B) Medical Assistance in General; Medicaid 198Hk506 Judicial Review; Actions 198Hk507 k. In general. Most Cited Cases Evidence in proceedings challenging three State Plan Amendments (SPAs) adjusting nursing homes' Medicaid reimbursement rates was sufficient to support finding that regression analysis underlying Medicaid revenue adjustments (MRA) produced a statistically invalid and, thus, unreasonable formulation of the relationship between Medicaid revenue and nursing home costs; expert testified that the inclusion of data from non-economically operated facilities (non-EEOFS) meant that the MRA reduced the necessary costs of EEOFs much more than the correlation between their revenue and costs would warrant. McKinney's Public Health Law 2807, subd. 3. [3] Health 198H 487(3)
198H Health 198HIII Government Assistance 198HIII(B) Medical Assistance in General; Medicaid 198Hk484 Providers
198H Health 198HIII Government Assistance 198HIII(B) Medical Assistance in General; Medicaid 198Hk484 Providers 198Hk487 Reimbursement 198Hk487(3) k. Nursing home and hospital rates in general. Most Cited Cases State Plan Amendments (SPAs) adjusting nurs-
ing homes' Medicaid reimbursement rates were approvable within the meaning of Medicaid regulation as of the first day of the calendar quarter in which those SPAs were submitted, since underlying findings constituted supplemental materials that were submitted to Health Care Financing Administration (HCFA) before it ruled on the sufficiency of the SPAs. 42 C.F.R. 447.256(c). [4] Health 198H 487(3)
Harter, Secrest & Emery L.L.P., Rochester ( Thomas G. Smith of counsel), for respondents-appellants. Before: MERCURE, J.P., PETERS, MUGGLIN, ROSE and LAHTINEN, JJ. ROSE, J. *921 Cross appeals from a judgment of the Supreme Court (Benza, J.), entered June 18, 2003 in Albany County, which, inter alia, partially granted petitioners' applications, in six proceedings pursuant to CPLR article 78, to recalculate respondents' Medicaid reimbursement rates for the period between April 1995 and October 1997. These proceedings stem from earlier litigation in which numerous nursing homes located in New York successfully asserted that certain adjustments to the state's Medicaid reimbursement rates made by a 1987 State Plan Amendment (hereinafter the 1987 Adjustment) were invalid for failure to comply with the Boren Amendment (42 USC former 1396a [a][13][A] ). As then existing, the Boren Amendment afforded health care providers certain substantive and procedural rights by requiring states to make findings and assure the Health Care Financing Administration (hereinafter the HCFA) that their reimbursement plans provided reasonable and adequate payment to meet the costs which must be incurred by efficiently and economically operated facilities (42 USC former 1396a [a][13][A]; see Wilder v. Virginia Hosp. Assn., 496 U.S. 498, 509510, 110 S.Ct. 2510, 110 L.Ed.2d 455 [1990] ). Due to insufficient findings, the 1987 Adjustment was found to be in violation of the Boren Amendment and judicially invalidated until such time as proper findings [were] submitted and approved by HCFA (Pinnacle Nursing Home v. Axelrod, 928 F.2d 1306, 1318 [1991]; see Matter of Avon Nursing Home v. Axelrod, 83 N.Y.2d 977, 983, 616 N.Y.S.2d 327, 639 N.E.2d 1124 [1994] ).
198H Health 198HIII Government Assistance 198HIII(B) Medical Assistance in General; Medicaid 198Hk484 Providers 198Hk487 Reimbursement 198Hk487(3) k. Nursing home and hospital rates in general. Most Cited Cases State Plan Amendment (SPA) adjusting nursing homes' Medicaid reimbursement rates which was approved before underlying findings were issued was not then an approvable submission and it could not become effective prior to the submission of an approvable SPA. 42 C.F.R. 447.256(c). [5] Health 198H 487(3)
198H Health 198HIII Government Assistance 198HIII(B) Medical Assistance in General; Medicaid 198Hk484 Providers 198Hk487 Reimbursement 198Hk487(3) k. Nursing home and hospital rates in general. Most Cited Cases It is within Health Care Financing Administration's (HCFA) discretion to decide when additional notices or assurances are needed for a State Plan Amendment (SPA) adjusting nursing homes' Medicaid reimbursement rates. 42 C.F.R. 447.205, 447.253, 447.255. **713 Eliot Spitzer, Attorney General, Albany ( Victor Paladino of counsel), for appellants-respondents.
Beginning in April 1995, respondents reimplemented the 1987 Adjustment through three State Plan Amendments **714 (hereinafter SPAs): SPA 9523, SPA 9524 and SPA 9624. In support of these SPAs, respondents made new findings (hereinafter the 1995 *922 findings) using the three-step procedure mandated in Pinnacle Nursing Home v. Axelrod, supra at 13141315 to meet the requirements of the Boren Amendment. Respondents first identified efficiently and economically operated facilities (hereinafter EEOFs) as those nursing home facilities with costs less than the median of the costs reported by all facilities. Respondents next calculated the necessary costs that must be incurred by EEOFs using, among other things, a Medicaid revenue adjustment (hereinafter the MRA) that effectively reduced a facility's reimbursable costs in proportion to the amount of revenue received from sources other than Medicaid. The amount of the MRA was calculated using a formula derived from a regression analysis of the relationship between the costs reported by all facilities in 1993 and the percentages of their revenues received from Medicaid. Finally, respondents compared the necessary costs calculated using the MRA with the state's reimbursement rates to show that those rates more than met the necessary costs of EEOFs. When the 1995 findings were later held to be inadequate to support the SPAs because, among other things, the regression analysis underlying the MRA was found to be flawed, respondents were required to make new findings without the MRA (see Valley View Manor Nursing Home v. De Buono, U.S. Dist. Ct., W.D.N.Y., Telesca, J., 89 Civ. 0706T, 89 Civ. 0744T). Due to the repeal of the Boren Amendment, however, respondents' appeal from that ruling was dismissed as moot and the underlying complaint was dismissed (see Hall v. Sullivan, 129 F.3d 113 [Table], 1997 WL 643921 [1997], 1997 U.S. App. Lexis 37069 [1997] ). Petitioners, many of the same nursing homes, then commenced these consolidated proceedings challenging the three SPAs and seeking recalcula-
tion of their reimbursements for the period between April 1995 and October 1997. Petitioners alleged that, among other things, the 1995 findings were insufficient to meet the procedural requirements of the Boren Amendment. To resolve the factual issue of whether the MRA had a statistically valid basis in respondents' regression analysis, Supreme Court reviewed the parties' submission of the record of the hearing held in Valley View Manor Nursing Home v. De Buono, supra and found the regression analysis insufficient to support the MRA. The court then concluded that while the 1995 findings failed to support the three SPAs due to their inclusion of the MRA, respondents' revised findings in 1997 (hereinafter the 1997 findings), which did not include the MRA, effectively cured the defects as to SPA 9524 and SPA 9624, but *923 not as to SPA 9523. Supreme Court ordered respondents to recalculate petitioners' reimbursement rates for the relevant time period without using the SPA 9523 adjustment. Respondents and petitioners cross-appeal. On their appeal, respondents argue that the regression analysis upon which the MRA is based was a rational approach to calculating necessary costs. More specifically, they assert that the relationship between Medicaid revenue and costs, upon which the MRA is predicated, was suggested by anecdotal evidence of nursing home practices, supported by the economic principle that spending practices are influenced by revenue streams and quantified through the use of an accepted statistical tool. [1] The standard of review applicable to an administrative action such as that taken here by respondents is whether it **715 had a rational basis in the record, and was not unreasonable, arbitrary or capricious (see CPLR 7803 [3]; Kuppersmith v. Dowling, 93 N.Y.2d 90, 96, 688 N.Y.S.2d 96, 710 N.E.2d 660 [1999]; New York State Assn. of Counties v. Axelrod, 78 N.Y.2d 158, 166, 573 N.Y.S.2d 25, 577 N.E.2d 16 [1991] ). A rate-setting action of the Department of Health may be annulled only upon a compelling showing that the calcula-
tions from which it derived were unreasonable ( Matter of Catholic Med. Ctr. of Brooklyn & Queens v. Department of Health of State of N.Y., 48 N.Y.2d 967, 968, 425 N.Y.S.2d 278, 401 N.E.2d 388 [1979]; see New York State Assn. of Counties v. Axelrod, supra at 166, 573 N.Y.S.2d 25, 577 N.E.2d 16; Matter of Society of N.Y. Hosp. v. Axelrod, 70 N.Y.2d 467, 473, 522 N.Y.S.2d 493, 517 N.E.2d 208 [1987] ). Further, we note that [a] trial court's findings are not to be lightly set aside unless its conclusions could not have been reached based upon any fair interpretation of the evidence (Silverman v. Mergentime Corp./J.F. White, Inc., 252 A.D.2d 925, 926, 676 N.Y.S.2d 301 [1998], quoting Osterhout v. Mesivta Sanz of Hudson County, 226 A.D.2d 893, 894, 640 N.Y.S.2d 363 [1996] ). [2] The record of the hearing in Valley View Manor Nursing Home v. De Buono, supra contains ample evidence supporting Supreme Court's finding that respondents' regression analysis produced a statistically invalid and, thus, unreasonable formulation of the relationship between Medicaid revenue and nursing home costs. Petitioners' expert, Jack Zwanziger, testified that while regression analysis is a well-accepted statistical tool, it was used improperly by respondents. Zwanziger reported that he performed an F Test, a standard statistical test which gauges whether the variances in two groups of data are sufficiently similar for the groups to be combined in a single regression analysis, and this test demonstrated that it was statistically inappropriate to combine the data from EEOFs and nonEEOFs. Zwanziger also stated that the inclusion of data from non-*924 EEOFs meant that the MRA reduced the necessary costs of EEOFs much more than the correlation between their revenue and costs would warrant. Zwanziger noted that it is also conceptually inappropriate to include the non-EEOF data in the regression because reimbursement rates are to be based upon the necessary costs of EEOFs only (see Public Health Law 2807[3] ). In light of this testimony and the absence of empirical data from any EEOF to confirm the mathematical valid-
ity of the formula produced by the regression analysis, we find that the evidence supports Supreme Court's conclusion that the MRA lacked a rational basis. [3][4] On their cross appeal, petitioners contend that none of the SPAs should have become effective prior to October 1, 1997 because they were not approvable until that date. However, since the 1997 findings constituted supplemental materials that were submitted to HCFA before it ruled on the sufficiency of SPA 9524 and SPA 9624, we agree with Supreme Court's conclusion that those SPAs were approvable within the meaning of 42 CFR 447.256(c) as of the first day of the calendar quarter in which those SPAs were submitted (see Independent Acceptance Co. v. California, 204 F.3d 1247, 1256 [2000] ). Contrary to respondents' argument, however, the 1997 findings do not provide a similar effective date for SPA 9523. Inasmuch as that SPA was approved before the 1997 findings were issued, it was not then an approvable submission and it could not become effective prior to the submission of an approvable SPA (see State of New York v. Shalala, 119 F.3d 175, 181 [1997]; **716Matter of Avon Nursing Home v. Axelrod, 195 A.D.2d 1046, 1047, 601 N.Y.S.2d 725 [1993], affd. 83 N.Y.2d 977, 616 N.Y.S.2d 327, 639 N.E.2d 1124 [1994]; see also 42 CFR 447.256[c] ). [5] Finally, we find no merit in petitioners' arguments that respondents failed to give adequate notice to the public and timely assurances to HCFA for SPA 9624. The regulations do not require supplemental notice or assurances when the overall effect of the amendments is different because the legislation as enacted does not include all of the amendments listed in the notice (see 42 CFR 447.205, 447.253, 447.255), and it is within HCFA's discretion to decide when additional notices or assurances are needed (see State of New York v. Shalala, supra at 182183). ORDERED that the judgment is affirmed, without costs.
MERCURE, J.P., PETERS, LAHTINEN, JJ., concur.
MUGGLIN
and
N.Y.A.D. 3 Dept.,2004. St. James Nursing Home v. De Buono 12 A.D.3d 921, 784 N.Y.S.2d 712, 2004 N.Y. Slip Op. 08303 END OF DOCUMENT
Tab 11
from them), and a crusher. FIND Request: 2006 WL 1867325, at *3 (The decision of the Court is referenced in a table in the New York Supplement.) Supreme Court, Cortland County, New York. In the Matter of the Application of GEORGE MOORE TRUCK & EQUIPMENT CORPORATION, PetitionerPlaintiff, v. The NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION and Denise Sheehan as Commissioner of the New York State Department of Environmental Conservation, RespondentsDefendants. No. 39248. July 3, 2006. Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, by Lawrence R. Schillinger, Esq., Albany, for PetitionerPlaintiff. Eliot Spitzer, Attorney General of the State of New York, by Judith S. Karpen, Esq., Albany, for RespondentsDefendants. PHILLIP R. RUMSEY, J. *1 In this CPLR article 78 proceeding, petitioner seeks review of certain actions taken by respondent in connection with the clean up of petroleumcontaminated soils at a salvage yard in the Town of Cortlandville (hereinafter the Knight property), commencing in November 2004. After the owner of the property was convicted of illegally operating a junkyard in violation of the Town zoning law, he hired Northern Car Crushers (a division of petitioner, George Moore Truck & Equipment Corp.) to crush and remove junk cars from the premises. Between June and November 2004, petitioner crushed several hundred junk cars, trucks, and other scrap, using a loader (to move the vehicles), a draining rack (to drain gasoline and other fluids On November 16, 2004, a representative of respondent Department of Environmental Conservation (DEC) visited the Knight property, and observed signs of petroleum contamination around the areas where petitioner's drain rack and crusher were located. Petitioner initially undertook to clean up the spills in those areas and to take measurements of soil contamination, ultimately hiring (at DEC's urging) Op Tech Environmental Services, Inc. to carry out those tasks (Affidavit of Russell Moore, dated March 22, 2006, 15), but within a few days DEC had taken over control of the clean up operation, ostensibly at the request of the property owner (R. Moore Affidavit, 20; Affidavit of Christine Rossi, dated January 26, 2006, 22). Op Tech (now retained by DEC) continued to conduct excavation and clean up activities on the site until at least January 2006, at which time DEC's project manager, Christine Rossi, averred that its work was nearing completion (Rossi Affidavit, 27). In January 2005, DEC sent petitioner's principals a letter, informing them that they (or petitioner-the letter is not clear) were responsible for remediation of contamination caused by the discharge of petroleum * * * from practices [petitioner] executed while carrying out car crushing activities at the Knight property, and that they would be billed for the actual costs incurred by the State for the clean up (Amended Verified Petition, Exhibit 11 [Letter of January 13, 2005] ). They were also informed of their right to take over the remediation efforts, by hiring a capable contractor, of their right to pursue claims against other parties, and of their rightprovided they were not deemed responsible partiesto file a claim against the State Environmental Protection and Spill Compensation Fund (id.). Believing the actions undertaken by Op Tech, under respondent's direction, were unreasonable in several respects, and that DEC was erroneously
holding petitioner responsible for the cost of cleaning areas of petroleum contamination that were not caused by its car-crushing activities, petitioner commenced this CPLR article 78 proceeding in May 2005. Several extensions and adjournments were agreed to by the parties, and petitioner served and filed an Amended Petition in December 2005. Respondent answered the Amended Petition, arguing, inter alia, that the proceeding must be dismissed as premature or on the ground that petitioner has another available remedy, to wit, the opportunity to raise its concerns in defense of a plenary action brought by the State to recover under the Navigation Law. *2 A careful reading of the petition, as augmented by the affidavits tendered by petitioner, reveals that several distinct legal arguments have been raised as grounds for the relief sought (namely, a declaration that petitioner is not liable for paying the entire cost of the remediation efforts undertaken at the Knight property). Because a CPLR article 78 proceeding does not lie where there is another legal remedy available (see, Matter of ArtTex Petroleum, Inc. v. New York State Dep't. of Audit and Control, 93 N.Y.2d 830, 832 [1999] ), and there is such a remedy with respect to any claim that may be adjudicated within the scope of an action brought pursuant to the Navigation Law ( see, id.), the court shall first consider whether some of petitioner's claims must fail for this reason. Insofar as petitioner contends that it should not be held liable for clean up costs because it is not a discharger as that term as defined by the Navigation Law-of the petroleum that was spilled and ultimately cleaned up, that is one of the core issues that must be determined in a plenary action to recover clean up costs under Navigation Law 181. Whether petitioner's activities actually resulted in any spillage of petroleum products at all; whether such spillage, if any, combined with prior spills such that its effects cannot be separated for purposes of assigning responsibility for the direct and indirect damages caused by each; and whether, under such
circumstances, an entity that released petroleum into one area, which combined with one or more other spills that affected a larger area, may be deemed a discharger with respect to the entire contaminated area, are all issues that may be raised and adjudicated in a Navigation Law action. Accordingly, those issues, which go essentially to the fundamental question of whether, and to what extent, an entity can be held liable for payment of cleanup costs (regardless of the amount of those costs), are not the proper subject of a CPLR article 78 proceeding. FN1 Thus, insofar as petitioner's claims herein are focused on such questions, they must be dismissed. FN1. Although those claims may be couched in terms of whether the DEC acted arbitrarily or capriciously in deeming petitioner liable, the same could be true whenever it is alleged that an agency has ruled in a manner contrary to the governing law. The critical inquiry must therefore focus on whether the matter may be properly adjudicated, and the desired relief provided, in the context of any other type of legal proceeding. The Court of Appeals has held, however, that the reasonableness of the actual expenditures made by DEC to clean up a spill may not be raised in an action brought pursuant to the Navigation Law, to recover those costs (see, State of New York v. Speonk Fuel, 3 NY3d 720, 724 [2004]; cf., State of New York v. Dennin, 17 AD3d 744, 745746 [2005] ). Thus, petitioner's allegations that respondent, or those operating under its direction and control, acted in an arbitrary and capricious manner in carrying out the actual clean up operation, and in so doing, incurred unreasonable and unnecessary costs (regardless of who may or may not be responsible for payment of those costs), are not subject to dismissal on the ground that another legal remedy is available. In this regard, as respondent emphasizes, the agency may not be penalized for mere negligence or errors in judgment (see, Navigation Law 176[2][b] ); rather, its actions will be reviewed un-
der the more deferential arbitrary and capricious FN2 standard (Speonk Fuel, at 724). FN2. Similarly, respondent's alleged failure to comply with the National Oil and Hazardous Substances Pollution Contingency Plan cannot provide a basis for petitioner to obtain relief, in the absence of any showing that such non-compliance was arbitrary, capricious or entirely without rational basis. *3 Afforded the benefit of every favorable inference (as they must be at this juncture), the allegations of the amended petition, as elucidated by the affidavits of experts and factual witnesses tendered by petitioner, are sufficient to state a claim for breach of that standard (see, e.g., Amended Verified Petition, 1, 5372, 86, 88; Affidavit of Erik Sandblom, P.E., dated May 16, 2005, 510, 1213, 1516; Affidavit of Erik Sandblom, P.E., dated March 22, 2006, 34, 37, 39). The conflicting proof submitted by respondent merely raises factual questions which cannot be resolved in summary fashion. While there may have been some merit to respondent's contention that this proceeding was premature when it was commenced, inasmuch as no final determination had been made (or at least communicated to petitioner) as to the amount expended in the clean up (the only issue that is properly contested herein), a letter sent to petitioner on or about January 24, 2006 (R. Moore Affidavit, Exhibit 2) expressly and unequivocally states that respondent has determined that you are liable * * * for $604,077.71 for cleanup and removal costs, as well as a penalty of $500,000, and demands payment of those amounts (reflecting costs incurred to date) by February 24, 2006. This letter plainly reflects and communicates a final determination of the agency as to the amount spent on the clean up prior to the date of the letter, as well as petitioner's liability for that amount. Were no action taken within four months (CPLR 217[1] ) of petitioner's receipt of that letter, respondent could reasonably
argue that the time for contesting the reasonableness of the amounts set forth therein had passed. FN3 Thus, no purpose would be served by dismissing this proceeding on grounds of ripeness or finality, as petitioner would merely re-commence it immediately, pursuant to CPLR 205(a) (cf., Matter of Mahoney v. Board of Educ. of Mahopac Cent. School Dist., 113 A.D.2d 942, 943 [1985]; Matter of Day Surgicals, Inc. v. State Tax Comm'n, 97 A.D.2d 865, 866 [1983] ). Judicial economy will be best served in this instance by allowing this proceeding to continue, as if it had been brought after issuance of the January 2006 letter determination. FN4 FN3. Arguably, a determination as to the cost of the cleanup was made by the agency each time it made a payment or approved a bill for a portion of that cost. Petitioner could not claim to be aggrieved by that determination, however, until the agency decided that petitioner was liable to pay the costs. FN4. Although it was suggested in Matter of Frumoff v. Wing (239 A.D.2d 216 [1997] ) that the ripeness of a matter must be assessed at the time that it is commenced, without regard to later events that may have cured a problem that then existed, there the petitioner's failure to exhaust administrative remedies was not cured until after Supreme Court issued its decision (indeed, the final agency determination was not issued until after the appeal was argued). Thus, the Appellate Division (which must consider the propriety of the lower court's decision, at the time it is made) properly held that the trial court erred in addressing the merits of the petition, because it did so at a time when there had not yet been a final determination that could be reviewed. In this case, however, the final determination was made before the petition was even returnable before Su-
preme Court. Thus, there is no logical reason for the court to elevate form over substance by dismissing this proceeding when petitioner could simply commence another, identical one, immediately. Lastly, with regard to petitioner's claim for an offset against its ultimate liability (if any), to the extent that respondent's allegedly unlawful and negligent acts caused it harm, that claim must also be dismissed. The recovery of such damages is not incidental to petitioner's contention that respondent acted in an arbitrary or capricious manner, as that term is defined by CPLR 7806. The damages sought by petitioner could not be recovered, in an action in Supreme Court, on the same set of facts necessary to prove that respondent acted arbitrarily or capriciously; nor does the recovery of damages flow automatically or necessarily from the reversal of the challenged action (compare, Matter of Gross v. Perales, 72 N.Y.2d 231, 236 [1988] ). Damages could, theoretically, be recovered on the grounds listed in Navigation Law 176 even if there were no arbitrary or capricious action to be reversed, and they might not be available even if there were such action. The standards to be applied, and questions to be answered, in determining whether damages may be recovered (e.g., did respondent act unlawfully, willfully or maliciously, or cause a discharge of petroleum in violation of Navigation law 173) are entirely different from those applicable in this proceeding. Moreover, inasmuch as there will be no determination of liability in this proceeding, there will be nothing against which to offset any recovery to which petitioner might be entitled. *4 Accordingly, the third cause of action set forth in the Amended Petition is dismissed in its entirety, and the remaining causes of action are dismissed insofar as they seek a determination as to whether petitioner is liable, pursuant to Navigation Law 181, for all or part of the costs incurred in cleaning up the environmental contamination on the Knight property. The remaining claims raise factual
questions that cannot be resolved without an evidentiary hearing. It is, however, most reasonable, under the circumstances, to defer consideration of such matters until there has been a final determination as to whether petitioner is, in fact, liable for all or part of such costs, or at least until an action has been brought to determine its liability (at which time it may be appropriate to consolidate the two matters, or try them together). Accordingly, this matter shall be held in abeyance, and marked off the trial calendar, pending the commencement of further proceedings by either party. This decision shall constitute the order of the court. N.Y.Sup.,2006. George Moore Truck & Equipment Corp. v. New York State Dept. of Environmental Conservation 12 Misc.3d 1178(A), 824 N.Y.S.2d 762, 2006 WL 1867325 (N.Y.Sup.), 2006 N.Y. Slip Op. 51298(U) END OF DOCUMENT
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FIND Request: 30 A.D.3d 747, 749 Supreme Court, Appellate Division, Third Department, New York. In the Matter of James MONTGOMERY et al., Appellants, v. BOARD OF ASSESSMENT REVIEW OF the TOWN OF UNION et al., Respondents. June 8, 2006. Background: Taxpayers initiated Article 78 proceeding challenging small claims assessment review hearing officer's decisions upholding their real property tax assessments. The Supreme Court, Broome County, Relihan Jr., J., dismissed petition and denied taxpayers' motion for reconsideration. Taxpayers appealed. Holding: The Supreme Court, Appellate Division, Mugglin, J., held that fact issues remained as to whether town's method of assessment was discriminatory. Affirmed as modified.
371III(H) Levy and Assessment 371III(H)5 Valuation of Property 371k2512 Real Property in General 371k2515 k. Market Value and Sale Price; Comparable Sales. Most Cited Cases For purposes of determining property's value for tax assessment purposes, in absence of recent arms-length sale of property, comparable sales method is most reliable indicia of market value. [3] Taxation 371 2128
371 Taxation 371III Property Taxes 371III(B) Laws and Regulation 371III(B)4 Constitutional Regulation and Restrictions Concerning Equality and Uniformity 371k2128 k. Discrimination as to Mode of Assessment or Valuation. Most Cited Cases All real property within taxing unit must be assessed at uniform percentage of value and, regardless of methodology adopted by assessor, result must reflect realistic value of property so that tax burden of each property is equitable. [4] Judgment 228 181(32)
West Headnotes [1] Taxation 371 2515 228 Judgment 228V On Motion or Summary Proceeding 228k181 Grounds for Summary Judgment 228k181(15) Particular Cases 228k181(32) k. Tax Cases. Most Cited Cases Genuine issue of material fact as to whether town's method of assessment resulted in different treatment of newly constructed residences and older existing residences precluded summary judgment in action by owners of newly constructed residences alleging that town's method of assessment was discriminatory. **419 Hinman, Howard & Kattell, L.L.P., Binghamton (Paul T. Sheppard of counsel), for appel-
371 Taxation 371III Property Taxes 371III(H) Levy and Assessment 371III(H)5 Valuation of Property 371k2512 Real Property in General 371k2515 k. Market Value and Sale Price; Comparable Sales. Most Cited Cases Most reliable means of ascertaining value of property for assessment purposes is market value. [2] Taxation 371 2515
371 Taxation 371III Property Taxes
lants. Pope, Schrader & Murphy, L.L.P., Binghamton ( Alan J. Pope of counsel), for respondents. Before: CARDONA, P.J., CREW CARPINELLO, MUGGLIN and ROSE, JJ. III,
MUGGLIN, J. *748 Appeals (1) from an order of the Supreme Court (Relihan Jr., J.), entered April 11, 2005 in Broome County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78 to, inter alia, review determinations by a Small Claims Assessment Review Hearing Officer upholding petitioners' real property tax assessments, and (2) from an order of said court, entered July 6, 2005 in Broome **420 County, which denied petitioners' motion for reconsideration. Petitioners in this CPLR article 78 proceeding challenge the tax assessment on their newly constructed homes in the Town of Union, Broome County, and further assert a claim that the methodology used by the Town to establish taxable values is discriminatory. Petitioners' respective complaints to respondent Board of Assessment Review of the Town of Union (hereinafter BAR) were denied and they brought separate Small Claims Assessment Review (hereinafter SCAR) proceedings. The SCAR challenges were rejected by the respective Hearing Officers and petitioners joined in bringing this proceeding. Supreme Court dismissed the petition and denied petitioners' subsequent motion for reconsideration, and petitioners now appeal. [1][2] In the SCAR proceedings, the respective petitioners relied upon evidence of their investment in the residential property comprised of the cost of acquisition of the lot, plus the cost of construction of the home, to demonstrate excessive assessment. The most reliable means of ascertaining the value of the property at issue for assessment purposes is market value (see Matter of Great Atl. & Pac. Tea Co. v. Kiernan, 42 N.Y.2d 236, 240, 397 N.Y.S.2d
718, 366 N.E.2d 808 [1977] ). Market value is defined as the selling price upon which a reasonably informed buyer and seller would agree, in an open market setting, neither of whom is acting under any constraint or compulsion regarding the transaction ( Matter of Lupo v. Board of Assessors of Town of Huron, 10 Misc.3d 473, 474, 799 N.Y.S.2d 405 [2005]; see Matter of Kondrup v. Assessor of Town of Binghamton, 3 A.D.3d 625, 627, 770 N.Y.S.2d 451 [2004] ). In the absence of a recent arms-length sale of the property, the comparable sales method is the most reliable indicia of market value (see Matter of Saratoga Harness Racing v. Williams, 91 N.Y.2d 639, 643, 674 N.Y.S.2d 263, 697 N.E.2d 164 [1998]; *749Matter of Niagara Mohawk Power Corp. v. Town of Moreau Assessor, 307 A.D.2d 669, 670, 762 N.Y.S.2d 847 [2003] ). Here, petitioners' evidence failed to sustain their burden of demonstrating that the respective assessments were excessive or unequal ( see Matter of Krzys v. Town of Clifton Park, 267 A.D.2d 658, 659, 699 N.Y.S.2d 554 [1999]; Matter of Meola v. Assessor of Town of Colonie, 207 A.D.2d 593, 594, 615 N.Y.S.2d 506 [1994], lv. denied 84 N.Y.2d 812, 622 N.Y.S.2d 915, 647 N.E.2d 121 [1995] ). Moreover, given the Hearing Officers' discretion to consider a wide variety of sources and information in evaluating assessments, we conclude that the comparable sales information relied upon by the Town Assessor provided a rational basis for the SCAR determinations. Accordingly, we conclude that Supreme Court correctly dismissed this portion of the petition. [3][4] However, we reach a different conclusion as to that portion of the petition which attacks the Town's assessment methodology as being unconstitutional. As an initial matter, a challenge to a real property assessment methodology as unconstitutional is properly brought in a CPLR article 78 proceeding (see Matter of Averbach v. Board of Assessors of Town of Delhi, 176 A.D.2d 1151, 1152, 575 N.Y.S.2d 964 [1991] ). Fundamentally, petitioners claim that the Town Assessor uses current market value to assess newly constructed homes but
not older existing residential properties, thus creating two different classes of residential properties that are treated differently for purposes of taxation. It is well settled that all real property within a taxing unit must be assessed at a uniform percentage of value and, regardless**421 of the methodology adopted by the Assessor, the result must reflect the realistic value of the property so that the tax burden of each property is equitable (see Matter of Adams v. Welch, 272 A.D.2d 642, 643, 707 N.Y.S.2d 691 [2000] ). Respondents do not dispute petitioners' contentions regarding the method of assessment of newly constructed residences within the Town and assert that such method is permissible and does not constitute selective assessment. Additionally, respondents contend that petitioners have failed to present sufficient proof of the alleged discriminatory assessment practice, requiring dismissal of the petitions. We disagree. Petitioners have adequately stated a viable claim and presented evidence which creates significant material issues of fact which should be resolved at trial. Petitioners' expert affidavit supports both the claim of different treatment to comparable properties and petitioners' request for additional discovery. Since we conclude that petitioners have provided more than mere conclusory statements in support of the allegations of discriminatory practices, we conclude that Supreme Court erred by dismissing the petition in this regard (see Matter of Averbach v. Board of Assessors of Town of Delhi, supra at 1153, 575 N.Y.S.2d 964). *750 ORDERED that the orders are modified, on the law, without costs, by reversing so much thereof as dismissed petitioners' claim of discriminatory assessment practices and denied the requested discovery; matter remitted to the Supreme Court for discovery and further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed. CARDONA, P.J., CREW III, CARPINELLO and ROSE, JJ., concur. N.Y.A.D. 3 Dept.,2006. Montgomery v. Board of Assessment Review of
Town of Union 30 A.D.3d 747, 817 N.Y.S.2d 419, 2006 N.Y. Slip Op. 04498 END OF DOCUMENT
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ing was not conducted. FIND Request: 251 A.D.2d 788, 789 [2] Taxation 371 Supreme Court, Appellate Division, Third Department, New York. In the Matter of TOWN OF GREENVILLE, ORANGE COUNTY, Appellant, v. NEW YORK STATE BOARD OF REAL PROPERTY SERVICES, Respondent. June 11, 1998. Taxpayer brought article 78 proceeding to review decision of State Board of Real Property Services setting equalization rate. The Supreme Court, Albany County, Teresi, J., entered judgment dismissing application, and taxpayer appealed. The Supreme Court, Appellate Division, White, J., held that: (1) failure to use most current data did not invalidate Board's methodology; (2) failure to appraise any sample parcels from one category of commercial property did not invalidate methodology; and (3) taxpayer had to support its position regarding valuation of sample parcels with appraisals or expert analysis. Affirmed. West Headnotes [1] Taxation 371 2634 2634
371 Taxation 371III Property Taxes 371III(H) Levy and Assessment 371III(H)7 Equalization of Assessments 371k2630 Equalization Among Counties or Other Municipalities by State Board or Officer 371k2634 k. Review of Proceedings. Most Cited Cases (Formerly 371k450(4)) Taxpayer had burden to show that equalization rate promulgated by State Board of Real Property Services lacked a rational basis. [3] Taxation 371 2632
371 Taxation 371III Property Taxes 371III(H) Levy and Assessment 371III(H)7 Equalization of Assessments 371k2630 Equalization Among Counties or Other Municipalities by State Board or Officer 371k2634 k. Review of Proceedings. Most Cited Cases (Formerly 371k450(4)) Determination of State Board of Real Property Services setting equalization rate was quasi-judicial determination which had to be sustained if supported by substantial evidence, even though an adjudicatory hear-
371 Taxation 371III Property Taxes 371III(H) Levy and Assessment 371III(H)7 Equalization of Assessments 371k2630 Equalization Among Counties or Other Municipalities by State Board or Officer 371k2632 k. Method of Equalizing Assessments. Most Cited Cases (Formerly 371k450(2)) Failure to use most current data in determining estimated market value of municipality's taxable property did not invalidate methodology used by State Board of Real Property Services in setting equalization rate. [4] Taxation 371 2632
371 Taxation 371III Property Taxes 371III(H) Levy and Assessment 371III(H)7 Equalization of Assessments 371k2630 Equalization Among Counties or Other Municipalities by State Board or Officer 371k2632 k. Method of Equalizing Assessments. Most Cited Cases (Formerly 371k450(2)) Failure to appraise any sample parcels in municip-
ality from one category that numerically represented over 50% of taxpayer's commercial property did not invalidate methodology used by State Board of Real Property Services in setting equalization rate, where subject category represented less than one quarter of one percent of assessed value of taxpayer's commercial property. [5] Taxation 371 2634
371 Taxation 371III Property Taxes 371III(H) Levy and Assessment 371III(H)7 Equalization of Assessments 371k2630 Equalization Among Counties or Other Municipalities by State Board or Officer 371k2634 k. Review of Proceedings. Most Cited Cases (Formerly 371k450(4)) Failure to include fire district charges in State Board of Real Property Services' equalization rate calculations would not be considered on review, where issue was not raised at administrative level. [6] Taxation 371 2634
371III(H) Levy and Assessment 371III(H)7 Equalization of Assessments 371k2630 Equalization Among Counties or Other Municipalities by State Board or Officer 371k2634 k. Review of Proceedings. Most Cited Cases (Formerly 371k450(4)) Whether taxpayer was entitled to discover certain turn-around documents that contained State Board of Real Property Services' calculations on how each comparable sale was adjusted or the amount of any such adjustment, in setting equalization rate, was not before reviewing court, in absence of any administrative order relating to that issue. **167 Segal, Goldman & Mazzotta (Paul Goldman, of counsel), Albany, for appellant. Dennis C. Vacco, Attorney General (Andrew D. Bing, of counsel), Albany, for respondent. Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ. *788 WHITE, Justice. Appeal from a judgment of the Supreme Court (Teresi, J.), entered November 26, 1996 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent setting the final State equalization rate for petitioner's 1993 assessment roll. In December 1993, respondent advised petitioner FN1 that its tentative 1993 equalization rate was 87.43. Thereafter, petitioner submitted a complaint challenging the appraised values of 45 of the 55 sample parcels used to calculate the 1992 estimated market value of petitionFN2 er's taxable property. Petitioner's complaint and supporting documentation was reviewed by respondent's Complaint Review Panel, resulting in a reduction in appraised value of 19 sample parcels. This, in turn, led respondent to establish a final equalization rate of 93.94. Petitioner challenged respondent's determination in this CPLR article 78 proceeding which Supreme Court dismissed, finding the determination supported by substan-
371 Taxation 371III Property Taxes 371III(H) Levy and Assessment 371III(H)7 Equalization of Assessments 371k2630 Equalization Among Counties or Other Municipalities by State Board or Officer 371k2634 k. Review of Proceedings. Most Cited Cases (Formerly 371k450(4)) Taxpayer challenging as excessive valuations of several sample parcels, used by Board of Real Property Services in setting equalization rate, had to support its position with its own appraisals or with expert analysis documenting and detailing the deficiencies in Board's valuations. [7] Taxation 371 2634
371 Taxation 371III Property Taxes
tial evidence and that it is neither arbitrary or capricious. Petitioner appeals. FN1. This equalization rate represented the ratio of petitioner's 1993 assessed value to the 1992 estimated fair market value of its taxable 1993 assessed value
property. This ratio is expressed in the following equation:
1992 estimated market value [3] The establishment of the estimated market value (see, Matter of Town of Stony Cr. v. New York of a municipality's taxable property involves an intricate State Bd. of Equalization & Assessment, 207 and complex series of steps and mathematical equations A.D.2d 242, 243, 622 N.Y.S.2d 123). For a (9 NYCRR part 186). In this instance, the procedure in brief description of the methodology utilized in broad outline involved the appraisal of 55 sample parcalculating the rate, see Matter of Wisseman v. cels as of March 1, 1990 and thereafter adjusting the New York State Bd. of Equalization & Assess1990 values to reflect the values as of January 1, 1992. ment, 212 A.D.2d 196, 197 n. 1, 628 N.Y.S.2d Petitioner maintains that this methodology, particularly 455, lv. denied 87 N.Y.2d 804, 639 N.Y.S.2d the use of 1990 values, was irrational inasmuch as there 311, 662 N.E.2d 792. was more current information available since, shortly before the establishment of the 1993 rate, its assessment FN2. The petition refers to 46 objections; rolls underwent a revaluation. While petitioner has adhowever, petitioner only objected to 45 sample vanced an alternative methodology, it has not shown parcels, having objected to one sample parcel that respondent's methodology was inadequate, which is twice. the determinative issue (see, Matter of Town of Hardenburgh v State of New York, supra, at 674, 619 N.Y.S.2d [1][2] *789 Pointing out that it did not receive a 391). We have previously rejected the argument that refull evidentiary hearing, petitioner contends that respondent's methodology is unsound because it relies on spondent's determination should be measured by the arpurportedly stale data (see, Matter of Incorporated Vil. bitrary and capricious standard of review. Even though of Lynbrook v New York State Bd. of Equalization & Asan adjudicatory hearing was not conducted, respondent's sessment, supra, at 767, 617 N.Y.S.2d 1001). Moreover, determination is nevertheless considered a quasi-judirespondent's methodology has received extensive judicial one which must be sustained if supported by subcial scrutiny and has been found to be sound (see, Matstantial evidence (see, Matter of Town of Greenburgh v. ter of Town of Greenburgh v New York State Bd. of New York State Bd. of Equalization & Assessment, 226 Equalization & Assessment, supra at 547, 641 N.Y.S.2d A.D.2d 546, 641 N.Y.S.2d 91; **168Matter of Town of 91). Consequently, we reject petitioner's challenge to Hardenburgh v. State of New York, 210 A.D.2d 673, respondent's methodology. 619 N.Y.S.2d 391, lv. denied 85 N.Y.2d 808, 628 N.Y.S.2d 51, 651 N.E.2d 919; Matter of City of White Plains v. New York State Bd. of Equalization & Assessment, 205 A.D.2d 771, 613 N.Y.S.2d 439). Further, it is petitioner's burden to show that the rate respondent promulgated lacks a rational basis (see, Matter of Incorporated Vil. of Lynbrook v. New York State Bd. of Equalization & Assessment, 209 A.D.2d 765, 617 N.Y.S.2d 1001). We shall now examine the record to determine if petitioner satisfied its burden. [4] The initial step in determining estimated market value is to classify a municipality's property into certain categories according to type and assessed values and then select sample parcels from each category to appraise. From the values derived from these appraisals, respondent calculates the estimated *790 total market value. Here, respondent did not appraise any sample parcels from one category that numerically represented
over 50% of petitioner's commercial property. While the use of an unsampled category is specifically allowed by the regulations (9 NYCRR 18626.9[c] ), petitioner argues that such procedure compromised the process, rendering the equalization rate statistically invalid. Despite the significant percentage, the record shows that the subject category represented less than one quarter of 1% of the assessed value of petitioner's commercial propFN3 erty. In the absence of an explanation how the exclusion of this statistically insignificant factor rendered the equalization rate statistically invalid, we find that petitioner's argument lacks merit. FN3. This category consisted of 26 parcels, each having an assessed value between $100 and $1,400. [5] We have not considered petitioner's contention predicated upon respondent's failure to include the fire district charges in its calculations since it failed to raise this issue in the administrative review process (see, Matter of Town of Highland v. New York State Bd. of Equalization & Assessment, 211 A.D.2d 893, 621 N.Y.S.2d 174). In any event, the inclusion of such charges would have minimal impact upon the equalization rate, raising it from 93.94 to 93.95. [6] Petitioner takes issue with respondent's valuations of several of the sample parcels, claiming they are excessive. It has failed, however, to support its position with its own appraisals or with expert analysis documenting and detailing the deficiencies in respondent's valuations. Absent such proof, we cannot independently assess the challenged valuations since such assessment requires professional or technical knowledge possessed by an expert (see, De Long v. County of Erie, 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717). Therefore, respondent's valuations must be accepted if **169 they have a rational basis. Our review of the record shows that respondent considered petitioner's objections, made adjustments where necessary and fully explained its ultimate determination, all of which provides a rational basis for the valuations. [7] It appears that during this proceeding petitioner sought to discover certain turn-around documents that
contain respondent's calculations on how each comparable sale was adjusted or the amount of any such adjustment. In the absence of an order, the issue of whether petitioner was entitled to discover these documents is not before us (see, CPLR 5501[c]; People v. McFarlane, 233 A.D.2d 531, 650 N.Y.S.2d 974, lv. denied 89 N.Y.2d 944, 655 N.Y.S.2d 895, 678 N.E.2d 508). Also, inasmuch as the record contains numerous documents *791 which reflect the basis of respondent's determination, it is adequate for review without the inclusion of the turn-around documents. For the foregoing reasons, we find that petitioner failed to meet its burden and respondent's determination is supported by substantial evidence. Accordingly, we affirm the judgment of Supreme Court. ORDERED that the judgment is affirmed, without costs. MIKOLL, J.P., and MERCURE, YESAWICH, JJ., concur. CREW and
N.Y.A.D. 3 Dept.,1998. Town of Greenville v. New York State Bd. of Real Property Services 251 A.D.2d 788, 674 N.Y.S.2d 166, 1998 N.Y. Slip Op. 05903 END OF DOCUMENT
Tab 14
[2] Appeal and Error 30 FIND Request: 264 A.D.2d 553, 558 Supreme Court, Appellate Division, First Department, New York. Jack SHAFRAN, etc., et al., PlaintiffsAppellants, v. ST. VINCENT'S HOSPITAL AND MEDICAL CENTER, et al., DefendantsRespondents. Sept. 2, 1999. Administrator of estate of patient who had died after undergoing electroconvulsive therapy (ECT) brought medical malpractice action against hospital and physicians who had performed ECT. The Supreme Court, New York County, Carol Huff, J., dismissed complaint against hospital at close of evidence, and entered judgment on jury verdict for physicians. Plaintiff appealed. The Supreme Court, Appellate Division, held that: (1) blanket preclusion of testimony of pulmonologist, psychiatrist, and neurologist who were called as experts by plaintiff, on basis that testimony would have been cumulative of that of psychologist who did testify, was reversible error, and (2) whether hospital was vicariously liable for conduct of physicians was issue for jury. Reversed, judgment vacated, complaint reinstated, and new trial ordered. West Headnotes [1] Trial 388 56
970(2)
30 Appeal and Error 30XVI Review 30XVI(H) Discretion of Lower Court 30k970 Reception of Evidence 30k970(2) k. Rulings on admissibility of evidence in general. Most Cited Cases Trial 388 56
388 Trial 388IV Reception of Evidence 388IV(A) Introduction, Offer, and Admission of Evidence in General 388k56 k. Cumulative evidence in general. Most Cited Cases Blanket preclusion of testimony of pulmonologist, psychiatrist, and neurologist who were called as experts by plaintiff in medical malpractice action brought after death of patient who had undergone electroconvulsive therapy (ECT), on basis that testimony would have been cumulative of that of psychologist who did testify, was an improvident exercise of trial court's discretion, and required new trial; better remedy would have been to limit subsequent experts' testimony to material not covered by psychologist, since psychologist was unable to address several crucial subjects because he was not a medical doctor, and broad preclusion severely prejudiced plaintiff's ability to prove his case. [3] Health 198H 782
388 Trial 388IV Reception of Evidence 388IV(A) Introduction, Offer, and Admission of Evidence in General 388k56 k. Cumulative evidence in general. Most Cited Cases Whether evidence should be excluded as cumulative rests within the sound discretion of the trial court.
198H Health 198HV Malpractice, Negligence, or Breach of Duty 198HV(F) Persons Liable 198Hk781 Hospitals or Clinics 198Hk782 k. In general. Most Cited Cases (Formerly 204k7 Hospitals) Hospital may be held vicariously liable for the negligence or malpractice of physicians who act in
its employ or as its agents. [4] Health 198H 782
198H Health 198HV Malpractice, Negligence, or Breach of Duty 198HV(F) Persons Liable 198Hk781 Hospitals or Clinics 198Hk782 k. In general. Most Cited Cases (Formerly 204k7 Hospitals) Physician's mere affiliation with a hospital is insufficient to impute physician's negligence to the hospital. [5] Health 198H 825
Hospital may be held vicariously liable for acts of independent physicians who are not its employees where a patient enters hospital through the emergency room and seeks treatment from the hospital, not from a particular physician. [7] Health 198H 825
198H Health 198HV Malpractice, Negligence, or Breach of Duty 198HV(G) Actions and Proceedings 198Hk824 Questions of Law or Fact and Directed Verdicts 198Hk825 k. In general. Most Cited Cases (Formerly 204k8 Hospitals) Whether physicians who performed electroconvulsive therapy (ECT) on patient were more than just affiliated with hospital where ECT was performed, and were in fact agents of hospital, as would allow hospital to be held vicariously liable for their alleged negligence, was issue for jury in medical malpractice action brought following death of patient. [6] Health 198H 782
198H Health 198HV Malpractice, Negligence, or Breach of Duty 198HV(G) Actions and Proceedings 198Hk824 Questions of Law or Fact and Directed Verdicts 198Hk825 k. In general. Most Cited Cases (Formerly 204k8 Hospitals) Whether patient who received electroconvulsive therapy (ECT) from physicians who were not employees of hospital where ECT was performed could properly have assumed that physicians were acting on behalf of hospital, as would allow hospital to be held vicariously liable for physician's actions despite their independent status, was issue for jury in medical malpractice action brought following death of patient. **643 Sally Weinraub, for PlaintiffsAppellants. James B. Reich, Patricia D'Alvia, for DefendantsRespondents. NARDELLI, J.P., TOM, MAZZARELLI and LERNER, JJ. MEMORANDUM DECISION. *553 Judgment, Supreme Court, New York County (Carol Huff, J.), entered January 23, 1998, dismissing the complaint as against defendant St. Vincent's Hospital at the close of the evidence, and against defendants Janick, Nathanson and Burns after a jury verdict in their favor, unanimously reversed, on the law, the facts and in the exercise of discretion without costs, the judgment vacated, the complaint reinstated against all defendants and a
198H Health 198HV Malpractice, Negligence, or Breach of Duty 198HV(F) Persons Liable 198Hk781 Hospitals or Clinics 198Hk782 k. In general. Most Cited Cases (Formerly 204k7 Hospitals)
new trial ordered. *554 In this medical malpractice action, the following facts were established at trial. Plaintiff's decedent, Betty Shafran, sustained serious injuries and eventually died after receiving electroconvulsive therapy (ECT) while in defendants' care. The ECT was prescribed as treatment for Shafran's chronic depression. In July 1990, Shafran was admitted to St. Vincent's Hospital by her internist, defendant Dr. Margaret Burns, M.D., after Shafran complained of respiratory problems. Shafran had pneumonia and was in respiratory distress. She was intubated and received a full pulmonary consultation by a pulmonologist. Shafran was also continued on the drug theophylline, a bronchodilator commonly used to treat lung diseases. Upon her release, she was diagnosed with chronic obstructive pulmonary disorder (COPD). On August 27, 1990, Shafran voluntarily returned to the hospital suffering from severe depression. She was admitted to the psychiatric department under the care of defendant Dr. Mark Nathanson, M.D., a psychiatrist. Dr. Nathanson testified that although the theophylline was stabilizing Shafran's respiratory condition, the anti-depressant medications she was taking were ineffective and Shafran's psychiatric condition was deteriorating. Dr. Nathanson engaged in a risk-benefit analysis to determine if Shafran was a viable candidate for ETC, a treatment she had received in the 1960's with some success. The analysis included consultations with several specialists including a cardiologist and pulmunologist, and various laboratory tests. Dr. Nathanson consulted Dr. Burns regarding Shafran's pulmonary condition, since the pulmonologist who examined her in July was unavailable. Doctors Nathanson and Burns testified that they considered whether Shafran should be taken off theophylline before the ECT, or the dosage decreased, since theophylline can lower a person's seizure threshold. Both doctors knew that if a patient's theophylline blood-level is above the thera-
peutic range (1020 mcgs.), an increased risk of spontaneous prolonged seizures, or status epilepticus, is present during ECT. Blood-levels taken from Shafran on August 29th and August 30th were in the therapeutic range, and, in anticipation of the ECT, Dr. Burns reduced Shafran's dosage of theophylline from 400 to 300 mg. Although Shafran's blood level was not taken again prior to the September 7th ECT procedure, Dr. Burns and Dr. Nathanson testified that the 25% reduction in theophylline would result in reduction of the bloodlevel of the medication to within the therapeutic range. *555 The ECT was performed by Dr. Nathanson on September 7th. He was assisted by defendant Dr. Richard Janick, M.D., an anesthesiologist. Dr. Nathanson induced the intended seizure from Shafran, but shortly after Shafran began suffering status epilepticus that lasted for several hours. At one point, Dr. Nathanson left the ECT-treatment room to obtain assistance. Shafran lapsed into a coma for approximately 10 days, and sustained permanent injuries including bi-lateral deafness, memory loss and seizure disorder. **644 These injuries persisted until she died 6 years later. Shafran's husband, Jack, commenced the instant medical malpractice action against St. Vincent's Hospital, and Doctors Burns, Janick and Nathanson. He alleged numerous departures from acceptable medical practice including the failure to consider alternative treatments for Shafran's depression; the failure to adequately consider Shafran's pulmonary condition and to obtain a pulmonary consult by a specialist prior to the ECT; the failure to consult other physicians about discontinuing or lowering the dosage of theophylline; the failure to take Shafran's blood-levels shortly before the ECT; and the failure to properly monitor the ECT procedure and control the status epilepticus. The defendants denied the allegations of malpractice. A trial was held in late 1997. At the close of the evidence, the trial court dismissed the action against St. Vincent's, finding that there was no
showing that any of the doctors were employed by the hospital. The jury returned a verdict in favor of defendant doctors. On appeal, plaintiff's main argument is that the trial court's preclusion of his three expert medical witnesses on the ground that their testimony would have been cumulative to the testimony of plaintiff's expert, Dr. Harold Sackheim, who did testify, was erroneous. Dr. Sackheim was a psychologist, not a psychiatrist, and was not authorized to conduct ECT. He was, however, a recognized expert in the FN1 field of ECT. While defendants sought preclusion of Dr. Sackheim's testimony because he was not a medical doctor, the court permitted him to testify as to the standard in the community for the use of ETC, with a warning to plaintiff's counsel that it would not allow *556 additional experts to give repetitive testimony. When plaintiff sought to call three expert medical witnesses, a pulmonologist, a psychiatrist and a neurologist, the court, after hearing extensive offers of proof, granted defendants' application to preclude their testimony as cumulative to Dr. Sackheim's. Defendants, in contrast, were permitted to call medical experts in each specialty, and were allowed to argue in summation that plaintiff's expert was unreliable because he was not a medical doctor. Plaintiff argues that this was an unfair exploitation of the court's preclusion order, and that much of the evidence it was offering was not cumulative. Defendants counter that plaintiff charted his own course by relying on Dr. Sackheim's extensive testimony despite the court's warning, and may not now complain about the preclusion of cumulative testimony. FN1. Dr. Sackheim is a Ph.D. in clinical psychology and experimental psychopathology, and a professor in the psychiatry and radiology departments at the Columbia Presbyterian Medical Center. He was chief of the Department of Biological Psychiatry at the New York State Psychiatric Institute, and was also an advisor to the American Psychiatric Association's Task Force on
ECT, co-authoring its 1990 report. [1][2] It is well settled that whether evidence should be excluded as cumulative rests within the sound discretion of the trial court (Berry v. Jewish Bd. of Family & Children's Servs., 173 A.D.2d 670, 671, 570 N.Y.S.2d 586; see also, Abbott v. New Rochelle Hosp. Med. Ctr., 141 A.D.2d 589, 591, 529 N.Y.S.2d 352, lv. denied 72 N.Y.2d 808, 534 N.Y.S.2d 666, 531 N.E.2d 298; Irrizary v. City of New York, 95 A.D.2d 713, 464 N.Y.S.2d 5). However, the court's blanket preclusion of plaintiff's three expert medical witness was an improvident exercise of discretion. Although Dr. Sackheim gave extensive testimony concerning ECT, the risk-benefit analysis and several departures by the doctors from acceptable ECT practices, plaintiff's counsel identified several crucial subjects which Dr. Sackheim did not address or was precluded from addressing because he was not a medical doctor. For example, plaintiff's pulmonologist would have testified on whether Shafran's pulmonary condition rendered her unfit for ECT, and **645 whether Shafran could have been safely taken off theophylline in order to reduce the risk of prolonged seizures during ECT. Dr. Sackheim could not, and did not, give a medical opinion on these issues. Thus, plaintiff was denied the opportunity to rebut the defendant's medical testimony (from a pulmonologist) that Shafran was fit for ECT, and that she could not have been safely taken off theophylline. Plaintiff also sought to call a psychiatrist to testify about Shafran's psychological condition prior to ECT, and whether any alternative, less dangerous forms of treatment were available for Shafran's depression. Dr. Nathanson had testified that Shafran's psychiatric condition was an emergency and that ECT was necessary. Plaintiff's counsel argued that expert psychiatric testimony was needed to challenge this assertion, and was also necessary to support plaintiff's claim that Dr. *557 Nathanson acted negligently when complications developed during the ECT procedure. However, the
court improperly ruled that Dr. Sackheim's testimony had fully covered these areas, and that a psychiatrist's testimony was not needed. Perhaps most prejudicial was the preclusion of plaintiff's neurologist. Plaintiff sought to establish through this witness that the negligently performed ECT procedure was the proximate cause of Shafran's injuries, and to question the neurologist concerning the neurological and radiological data, such as CAT scans taken subsequent to the ECT procedure. Not only did the court preclude plaintiff's neurologist from testifying, it allowed defendants' expert neurologist to testify to an entirely new theory of causation for plaintiff's injuries. Defendants' neurologist posited that plaintiff's injuries resulted from a congenital vascular malfunction of the brain, and not from ECT or theophylline. Although there is mention of a vascular malfunction in Shafran's autopsy report, this theory of causation was never mentioned in any of defendants' pre-trial expert witness notices, and was first disclosed during defense counsel's opening statement. Moreover, it was not until one week into the trial, when defendants served an additional expert witness notice, that this new theory of causation was connected to any particular expert's testimony. Plaintiff's claims of unfair surprise are well grounded. At a minimum, plaintiff should have been permitted to call his neurologist on rebuttal, to respond to this new theory of causation (see, Herrera v. V.B. Haulage Corp., 205 A.D.2d 409, 410, 613 N.Y.S.2d 883; see also, Benjamin v. Desai, 228 A.D.2d 764, 766, 643 N.Y.S.2d 717; Harding v. Noble Taxi Corp., 182 A.D.2d 365, 370, 582 N.Y.S.2d 1003). While a trial court must not allow cumulative or repetitive testimony, the preclusion rulings here were overbroad and severely prejudiced plaintiff's ability to prove his case. Although there was potential for significant overlap between Dr. Sackheim's testimony and that of the medical witnesses, the better remedy would have been to limit the subsequent experts' testimony to material not covered by the first witness (see, Abbott v. New Rochelle
Hosp. Med. Ctr., supra, at 591, 529 N.Y.S.2d 352). Accordingly, the complaint is reinstated against the defendant doctors. [3][4][5] The IAS court also erred in dismissing the action against St. Vincent's. A hospital may be held vicariously liable for the negligence or malpractice of physicians who act in its employ or as its agents (see, Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79, 499 N.Y.S.2d 904, 490 N.E.2d 823). While mere affiliation with a hospital is insufficient to impute a doctor's negligence to a hospital *558(Hill v. St. Clare's Hosp., supra; Nagengast v. Samaritan Hosp., 211 A.D.2d 878, 879, 621 N.Y.S.2d 217; Tuzeo v. Hegde, 172 A.D.2d 747, 748, 569 N.Y.S.2d 134), there is evidence in the record suggesting that Doctors Nathanson and Janick were more than just affiliated with St. Vincent's. Dr. Nathanson admitted during his testimony that he had an **646 office in the hospital, and that he had been paid by it. His insistence that he was a private attending physician, and not an employee, simply raises a credibility issue which the jury should have been permitted to resolve. As to Dr. Janick, hospital records were introduced showing that in 1983 he had applied for a position on the hospital's Medical Staff, and in 1989 he applied for renewal of his attending privileges. This was some evidence that Dr. Janick had been employed by the hospital during the relevant time period. Because the proof as a whole is equivocal as to whether these doctors were in fact employees of the hospital, the court should not have decided the issue as a matter of law. [6][7] Moreover, even if the doctors were not employees of the hospital, it may be vicariously liable for the acts of independent physicians where a patient enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician (see, Citron v. North. Dutchess Hosp., 198 A.D.2d 618, 620, 603 N.Y.S.2d 639, lv. denied 83 N.Y.2d 753, 612 N.Y.S.2d 107, 634 N.E.2d 603; Mduba v. Benedictine Hosp., 52 A.D.2d 450, 453, 384 N.Y.S.2d 527).
Here, Shafran walked into St. Vincent's on her own, in a state of severe depression. She did not request a specific doctor, and it was through the hospital that Dr. Nathanson began treating her. Under these circumstances, there is a question as to whether Shafran could properly assume that the treating doctors and staff of the hospital were acting on behalf of the hospital (Mduba v. Benedictine Hosp., supra, at 453, 384 N.Y.S.2d 527). The complaint is also reinstated against the hospital. Because we are ordering new trial as to all defendants, we need not address plaintiff's additional claims of error. N.Y.A.D. 1 Dept.,1999. Shafran v. St. Vincent's Hosp. and Medical Center 264 A.D.2d 553, 694 N.Y.S.2d 642, 1999 N.Y. Slip Op. 07295 END OF DOCUMENT

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FILED: NEW YORK COUNTY CLERK 06/11/2012

NYSCEF DOC. NO. 307

INDEX NO. 601846/2009 RECEIVED NYSCEF: 06/11/2012

Granting Article 78 Petitions Based on Expert Testimony

Other Cases Supporting the Admissibility of Experts in Article 78

August 5, 2010 60 Centre Street New York, New York

HONORABLE JAMES A. YATES, JSC

Donna Evans , Official Court Reporter

You said you can work something out , I'll

informing, we can adjust . MR . GIUFFRA: out. I agree, we' l l wor k something

104 Counties 104VII Torts 104k146 k. Acts of officers or agents. Most

2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

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[3] Zoning and Planning 414

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[6] Municipal Corporations 268

2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

[8] Municipal Corporations 268

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