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 In May of 2000, Rosendo Rivera was convicted of assault in the second degree and sentenced to two years in prison.
After serving his time, the Division of Parole (DOP) tacked on a period of post-release supervision (or "PRS"). And when he was later arrested for violating the PRS, Rivera challenged DOP's power to retain him.
When the matter reached the Appellate Division, Second Department, that court ordered James A. Kralik, the Superintendent of the Rockland County Jail, to immediately release Rivera because the sentencing Court had never imposed a PRS against Rivera and DOP lacked the "authority" to do so.
Now how DOPy was that?
For a copy of the Appellate Division's decision, please use this link: People v. Kralik
 In Price v. New York City Board of Education, the parents of New York City public school students challenged a school cell phone ban issued by the Chancellor of the New York City public school system.
The Chancellor called for the ban of cell phones due to their use for "seriously disruptive" and "criminal" purposes.
School officials had found students using their devices to "take and exhibit pictures with inappropriate sexual content," cheat on exams, make "crank calls to teachers," and to otherwise interfere with the maintenance of school order.
Parents countered the ban was "arbitrarily and capriciously" implemented and, since cell phones are a "vital communication tool and security device," infringed upon a constitutional right of providing for the "fundamental care, custody, and control of their children."
Finding the policy "central to the schools' educational mission," the New York County Supreme Court dismissed the parents' case.
On appeal, the Appellate Division, First Department, was of the opinion that the rule was "nonjusticiable" (or not subject to challenge) since it would require the court to interfere with what was essentially "school administration" -- a function exclusively delegated by law to the Chancellor and other officials.
With that noted, the AD1 concluded that the restriction was necessary to preserve school order and discipline, particularly in view of the phones' "surreptitious" uses and other distractions, including the tendency to ring at inopportune times.
While empathic to the parents' position, particularly the need to reach children during an emergency, the AD1 viewed the ban as unassailable since it did "not directly and substantially interfere with any of the rights alleged by the Parents."
Will these litigants be calling upon the New York State Court of Appeals?
To download a copy of the Appellate Division's decision, please use this link: Price v. New York City Board of Education
 In Matter of Krute v. Kelly, Robert Krute sought to challenge his termination as a police officer.
Apparently, New York City Police Commissioner Raymond Kelly found that Krute had left the city and county (without authorization) while on sick leave, exaggerated his illness, and, engaged in off-duty employment without permission. (Although he claimed to suffer from "psychological impairments," Krute still managed to engage in a “lucrative” side business while on leave.) When the New York County Supreme Court upheld Krute’s dismissal, an appeal to the Appellate Division, First Department, ensued.
Based on the "long-term" nature of his misconduct, the AD1 didn't find Krute’s termination inappropriate or “shocking to one’s sense of fairness.” Talk about Krute force! To download a copy of the Appellate Division's decision, please use this link: Matter of Krute v. Kelly
 In Matter of Ryan v. Selky, Sean Ryan was found guilty of murder, arson, escape, and assaults on staff -- all while in prison.
For over a decade, Ryan had been separated from the general prison population and housed in a special unit. In 2006, the Deputy Inspector General of the Department of Correctional Services recommended “administrative segregation” for Ryan. The Albany County Supreme Court agreed that Ryan “posed a danger to the staff, inmates and the correctional facility in which he is housed.” When Ryan appealed that decision, the Appellate Division, Third Department, agreed that Ryan’s presence posed a threat to the safety and security of others. Interestingly -- even in the absence of “recent misconduct” -- rumors and reputation are enough to place inmates in “administrative confinement” since the prison atmosphere is volatile and vulnerable to “disastrous incidents.” Ironically, hasn't the same been said about the Civil Court? 
To download a copy of the Appellate Division’s decision, please use this link: Matter of Ryan v. Selky
 In Matter of Brown, the Departmental Disciplinary Committee for the First Judicial Department (DDC) sought to prevent Louise Brown from practicing law in New York State.
Brown, together with others, had reportedly stolen more than $1.35 million from a mortgage company and eventually pled guilty to a series of felonies: grand larceny in the first degree, grand larceny in the second degree, and falsifying business records in the first degree. To compound matters a bit further, Brown didn’t report her conviction to the DDC, as required by state law. Apparently, the DDC learned of Brown’s guilty plea from the Kings County District Attorney’s Office. The DDC contended that Brown had been “automatically disbarred” upon her conviction of a felony. (That position was unopposed by Brown.) Upon review, the Appellate Division, First Department, concluded that “a conviction for any criminal offense classified as a felony under the Laws of this State results in automatic disbarment by operation of law.” As a result, the AD1 granted the DDC’s request. The appellate court further noted that while Brown hadn’t been sentenced, the outcome was still appropriate, since “the date of entry of a guilty plea is the date of conviction that triggers automatic disbarment.” Unfortunately, we’re barred from any further analysis of this case. To download a copy of the Appellate Division’s decision, please use this link: Matter of Brown
 In Matter of Mullins v. New York State Comptroller, Edward Mullins, an Orange County police officer, alleged that he was permanently disabled when he injured his thumb during an arrest. After his disability request was denied by the New York State Comptroller, Mullins challenged the decision by filing a special proceeding with the Albany County Supreme Court.
On transfer to the Appellate Division, Third Department, the AD3 determined there was substantial evidence supporting the Comptroller’s decision that Mullins was still able to perform his duties as a police sergeant. (Apparently, an orthopedic surgeon testified that the injury was surgically correctable, and the officer's “unreasonable refusal” to undergo the procedure defeated the “incapacity” claim.) With that, Mullins’ claim was summarily scalpelled. To download a copy of the Appellate Division’s decision, please use this link: Matter of Mullins v. New York State Comptroller
In Matter of Mackie v Goord, the Albany County Supreme Court found Michael Mackie guilty of violating prison disciplinary rules after his spouse was caught carrying into the facility 10 latex glove tips containing about 30 grams of a “green vegetable material” later found to be marijuana. Charged with conspiring to introduce drugs and soliciting others to smuggle them, Mackie was stripped of his privileges and was sentenced to a penalty of 12 months in a special housing unit. On appeal, the Appellate Division, Third Department, discounted Mackie’s claim that the disciplinary hearing hadn’t been completed in a timely fashion, since the extensions were given to accommodate his request for certain witnesses. While he also claimed the Hearing Officer erred by failing to provide him with a copy of his spouse’s statement, that document was not only read into the record, but was used by Mackie to raise objections and question his spouse. According to the AD3, the misbehavior report, the hearing testimony, the transcript of a three-way telephone conversation involving Mackie, his sister and his wife, and, the spouse’s acknowledgment that the smuggled substance was marijuana, all sufficiently established guilt Who's the mule now? To download a copy of the Appellate Division’s decision, please use this link: Matter of Mackie v Goord
 In Matter of Bell v New York City Housing Authority, the New York County Supreme Court upheld the termination of Harold Bell’s tenancy on the basis of “nondesirability.”
On appeal, the Appellate Division, First Department, found that the evidence supported a judgment in the New York City Housing Authority’s favor. According to the AD1, the testimony of the arresting detective, who entered the apartment in July of 2004 and found Bell holding a gun while surrounded by drugs and related paraphernalia, together with Bell’s 2003 guilty plea to criminal possession of a controlled substance in the seventh degree, justified the outcome (notwithstanding the eventual dismissal of the 2004 charges). While the tenancy’s termination didn’t “shock” the court’s “sense of fairness,” don’t you find Bell’s eviction alarming? 
To download a copy of the Appellate Division’s decision, please use this link: Matter of Bell v New York City Housing Authority
 In Madison Partners, LLC v. Louis Martin Hubrecht, Madison filed suit (based on the terms of a indemnification clause which appeared in the parties’ lease) to recover a transfer tax payment it had made to the City of New York. [Hubrecht agreed to pay all property transfer taxes and to indemnify Madison if the latter remitted payment (in the event of Hubrecht’s failure to do so).]
Hubrecht challenged the assessment, and when the New York City Department of Finance (DOF) rejected the claim that no tax was owed, Hubrecht appealed to the New York City Tax Appeals Tribunal (TAT), by way of a proceeding that was then open and pending. Hubrecht's failure to provide Madison with copies of the DOF’s decision, or the TAT filings, forced Madison to pay the transfer tax to the City (in order to protect its leasehold interests), and triggered the reimbursement claim When Madison asked the New York County Supreme Court to decide the case in its favor, Hubrecht countered with a request that the lawsuit be stopped or “stayed” pending resolution of Hubrecht’s TAT appeal. After Madison’s request was granted, and Hubrecht’s was denied, an appeal to the Appellate Division, First Department, ensued. Since it was indisputable that Hubrecht had an obligation to pay the tax, and that Madison was entitled to protect its interests by remitting payment and seeking restitution, the AD1 concluded that relief had been appropriately awarded in Madison’s favor. How taxing was that? 
To download a copy of the Appellate Division’s decision, please use this link: Madison Partners, LLC v. Louis Martin Hubrecht
 After being busted in a scheme to hide her absences, Olga Vazquez was fired from the New York City Police Department by Police Commissioner Raymond Kelly.
In Matter of Vazquez v. Kelly, the New York County Supreme Court determined that Officer Vazquez had been "missing in action," made false statements, doctored an official form, and then submitted forged materials, in an effort to conceal her absences. On appeal, the Appellate Division, First Department, explained that Vazquez’s misconduct, coupled with her failure to qualify with a firearm, justified her termination. Her contention that her firing was “shocking to the judicial conscience or to one’s sense of fairness” ... drew blanks. To download a copy of the Appellate Division’s decision, please use this link: Matter of Vazquez v. Kelly
 In the Matter of Shelton Johnson v. New York City Department of Environmental Protection (DEP), Shelton Johnson sought reinstatement and back pay from the DEP, after being terminated without a formal hearing.
Johnson, a DEP construction laborer, was arrested for stealing DVDs. After a search, police discovered a forged DEP placard and shield and Johnson eventually pled guilty to criminal possession of a forged document in the third degree. By letter dated February 6, 2003, the DEP notified Johnson that because he pled guilty to a crime, he forfeited his employment status according to New York City Charter § 1116, which provides: “Any … employee of the city who shall willfully violate or evade any provision of law … or commit any fraud upon the city … shall be deemed guilty of a misdemeanor and … shall forfeit such office or employment.” The New York County Supreme Court (by a Decision/Judgment dated October 9, 2003) dismissed Johnson’s lawsuit and held that his guilty plea was “tantamount to an admission that he committed a fraud upon the city,” and thus, no hearing was necessary. On May 18, 2004, the Appellate Division, First Department, reversed and remanded the case, finding that Johnson’s conviction, “standing alone, without factual inquiry, [did] not show that petitioner perpetrated a ‘fraud upon the city,’ violated any law relating to his employment, or converted any City property to his own use within the meaning of § 1116.” On remand, the Supreme Court ordered Johnson’s reinstatement and awarded him back pay and, on November 9, 2006, the AD1 affirmed. When the case finally reached our state's highest court, by a decision dated February 12, 2008, the Court of Appeals also affirmed, as the record was insufficient to establish § 1116’s applicability. There was no evidence with regard to the forged DEP placard or shield which satisfied the “fraud upon the city” requirement. With that, Shelton resumed his status as “Johnny DEP.” To download a copy of the Court of Appeals’ decision, please use this link: Matter of Shelton Johnson v. New York City Department of Environmental Protection To download a copy of the Appellate Division's decisions, please use this link: May 18, 2004 remand or November 9, 2006 affirmance
 In June 1995, Michael Mays made a request to the New York City Police Department (NYPD) pursuant to the Freedom of Information Law (FOIL) for all documents relating to a particular officer’s indictment. The NYPD provided Mays with certain materials but declined others. In November 1999, Mays filed an Article 78 proceeding asking the New York County Supreme Court to direct NYPD to release the additional documents.
After a review of the disputed materials, the court ordered the production of some documents but otherwise denied the request. In May 2006, Mays filed another FOIL request with NYPD, again demanding all documents relating to the same indictment. This time, Mays gave a more detailed description of the documents sought. When the NYPD denied the request, Mays filed another case challenging the denial. But this time, the court granted NYPD’s motion to dismiss on the grounds that the matter had previously been decided and that Mays was barred by a legal doctrine known as “res judicata.” On appeal, the Appellate Division, First Department, agreed noting that “under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter.” The AD1 found that Mays’ claim had already been adjudicated "on the merits" and could not be revisited, even though his subsequent request had been more detailed and specific. Drats! Foiled again! To download a copy of the Appellate Division’s decision, please use this link: Matter of Mays v. New York City Police Dept.
 When a Senior Court Reporter was fired for multiple acts of misconduct, the reporter and the Association of Surrogates and Supreme Court Reporters filed suit, claiming that the discharge was illegal.
In Association of Surrogates and Supreme Court Reporters v. The State of New York Unified Court System, the New York County Supreme Court determined that the evidence supported the reporter’s guilt of the disciplinary charges filed, and that her employment had been properly terminated. When an appeal ensued, the Appellate Division, First Department, found there was substantial evidence that the reporter had been chronically late and had been convicted of "identity theft" in the State of New Jersey. While the reporter argued that her employer was prohibited from taking adverse employment action against her based on that conviction -- because of Correction Law §§ 752 and 753 -- the appellate court noted that such outcomes were permitted “where ‘there is a direct relationship between the criminal offense and the specific employment.’” The AD1 was of the opinion that there was a direct relationship between the reporter’s criminal offense -- which involved identity theft and credit card fraud -- and her employment, “in which, as an officer of the court she was charged with producing a true, accurate and complete record of court proceedings.” Since the penalty imposed was not disproportionate to the offense, the AD1 refused to modify the outcome. Make a record of that! 
To download a copy of the Appellate Division’s decision, please use this link: Association of Surrogates and Supreme Court Reporters v. The State of New York Unified Court System
 Edward Watkins had been serving as a volunteer coach for a girls’ high school basketball team when a report surfaced that he had “engaged in inappropriate conduct.”
After the Special Commissioner of Investigation for the New York City School District (SCI) conducted an investigation and concluded that Watkins “had engaged in inappropriate and extensive telephone contact with four female students,” the New York City Department of Education (DOE) placed Watkins on its Ineligible/Inquiry List. In Matter of Watkins v. New York City Department of Education, Watkins challenged the DOE’s decision and argued that SCI’s report was made “illegally, arbitrarily and capriciously,” and, that its decision should be vacated. But, the New York County Supreme Court sided with the DOE, and granted the agency's motion to dismiss the case. On appeal, the Appellate Division, First Department, found that the SCI’s report and the DOE’s decision were rational and substantially supported by telephone records. In addition, the AD1 held that, “DOE was not required to afford [Watkins] notice or an opportunity to be heard prior to making its determination since he had no legitimate claim of entitlement to continue his role as a volunteer coach.” The AD1 was also unmoved by his “stigma-plus” due process claim,* since Watkins “had not denied the truth of the central factual assertions.” In addition, the court noted that the DOE could not “be held responsible for speculation and rumors that may have been spread by members of the school community concerning the reasons for the nonparty SCI investigation.” As a result, the case’s dismissal was unanimously affirmed. Apparently, the ball is now back in Watkins’ court. Is anyone coaching him on what to do next? To download a copy of the Appellate Division’s decision, please use this link: Matter of Watkins v. New York City Department of Education ____________________
*A stigma-plus due process claim is designed to protect public employees from the dissemination of damaging employment information. The process prohibits release of that data until the employee is afforded the procedural protection of a name-clearing hearing.
 When a can top and a container of black pepper were found in Joseph Mariani’s prison cell, he was charged with possession of a weapon and contraband and, after a tier III disciplinary hearing, was found guilty on both charges.
When an administrative appeals board concurred with that result, Mariani filed a special lawsuit -- an Article 78 proceeding -- with the Albany County Supreme Court which transferred the matter to the Appellate Division, Third Department. The AD3 found that “[t]he determination of guilt [was] supported by substantial evidence in the form of the misbehavior report, together with [Mariani’s] admissions that the items in question were in his cube.” While Mariani argued that he could not be guilty of possession of a weapon because he never intended to use the can top in that fashion, the AD3 remained unpersuaded. And while he also argued that “he was improperly denied the right to present witness testimony and the Hearing Officer was not appropriately designated to conduct the hearing,” the AD3 was of the opinion that these claims had not been properly preserved for appellate review, and therefore dismissed them. Did Mariani lack enough seasoning? To download a copy of the Appellate Division’s decision, please use this link: Matter of Mariana v. Selsky
 In Matter of Tenace v. Lombard, David Tenace, an inmate at Clinton Correctional Facility, received a letter from the Clinton County Clerk. When a corrections officer asked Tenace to hand over the document, Tenace initially complied, but then grabbed it back, ripped it up and attempted to devour it. Eventually, Tenace spit out the paper remains.
After the Commissioner of Correctional Services found Tenace guilty of refusing a direct order, interfering with an employee, and possessing contraband, that decision was affirmed on an administrative appeal. Tenace then filed a special lawsuit with the Albany County Supreme Court -- pursuant to CPLR Article 78 -- claiming that the letter was not contraband and challenging the disciplinary determination. When the matter was transferred to the Appellate Division, Third Department, the AD3 noted that, “The misbehavior report, together with [Tenace’s] own testimony, in which he admitted to taking the letter from the corrections officer, ripping it up and putting it in his mouth, constitute[d] substantial evidence supporting the determination of guilt.” Chew on that! 
To download a copy of the Appellate Division’s decision, please use this link: Matter of Tenace v. Lombard
In the Matter of Mercado v. Selsky, after a search of Israel Mercado's cell, correction officers filed a "misbehavior report" which cited Mercado for possession of gang related material. Although Mercado claimed a First Amendment right to the "contraband," he was still found guilty after a disciplinary hearing. An administrative appeal ensued and the outcome remained unchanged. Intent on overturning the underlying determination, Mercado filed a special lawsuit -- a CPLR Article 78 proceeding -- with the Albany County Supreme Court which transferred the case to the Appellate Division, Third Department. The AD3 affirmed the charge and noted that the restrictions were not constitutionally violative since they were “reasonably related to the legitimate penological interest of maintaining prison security.” Apparently, when it comes to prisons there's little room for play, boy. To download a copy of the Appellate Division’s decision, please use this link: Matter of Mercado v. Selsky
 In Academy Street Associates, Inc. v. Spitzer, Academy Street Associates, Inc. (Academy) brought a case to force Elliot Spitzer -- then the Attorney General of the State of New York (A.G.) -- to accept a proposed amendment to a condominium offering plan.
When the New York County Supreme Court dismissed Academy’s claim as untimely, an appeal to the Appellate Division, First Department, ensued. Even though Academy had originally sought declaratory relief, the action was really a special proceeding (pursuant to CPLR Article 78) seeking to compel a state official to perform his or her legal duties. While such a case could be brought, a four-month “time-bar” or “statute of limitations” period applies and the clock starts to tick the moment the state official fails to perform that function. In this case, the A.G. had a 30-day period to respond to Academy’s proposed amendment. When the A.G. failed to act within that timeframe, Academy then had four-months to file its Article 78 case. Since almost a year had elapsed before it filed suit, the action was untimely, and AD1 was left with little choice but to affirm the lower court’s decision. Although Academy argued that the A.G. should not be permitted to assert the “statute of limitations” defense -- as Academy had been repeatedly assured that the proposed amendment was being processed -- the AD1 did not believe those representations “[rose] to the level of affirmative wrongdoing so as to equitably estop [the Attorney General] from asserting the statute of limitations defense.” With that, Academy’s case was quickly rendered academic. To download a copy of the Appellate Division’s decision, please use this link: Academy Street Associates, Inc. v. Spitzer
 In Street Vendor Project v. City of New York, an association of street vendors filed an Article 78 proceeding challenging a new fine schedule promulgated by the Environmental Control Board (“ECB”), which increased the penalties associated with violations of the New York City Health Code or Administrative Code from a maximum of $250 to $1,000.
The street vendors argued that the increase was arbitrary and capricious, excessive, violative of the United States and New York State Constitutions, and, adopted in violation of the City Administrative Procedure Act (CAPA) because the City failed to provide proper notice of its intent to implement the schedule. The New York County Supreme Court found that the street vendors were unable to demonstrate that the plan was arbitrary or capricious. Nor was there any evidence that the new penalties were “grossly disproportionate” to the offenses in question, or that the fines were an unreasonable means of deterrence. The court further noted that constitutional challenges to excessive fines “arise in an as-applied context, thus requiring, as a predicate for judicial review, ‘the imposition, or immediately impending imposition, of a challenged punishment or fine.’” Since the street vendors had not yet incurred any penalties under the new fine schedule, their “claims were premature and factually insufficient.” Although the ECB failed to comply with CAPA, in that it omitted "any indication of its reasons or the rule’s basis and purpose," and the schedule had not become effective as a result of that error, the Supreme Court noted that the defect was curable by a proper republication in the City Record. On appeal, the Appellate Division, First Department, affirmed the lower court’s decision. The AD1 agreed that the increased penalties were not arbitrary and capricious, since they “had a ‘foundation in fact’ in the comments from the Department of Consumer Affairs, the Health Department, a business improvement district, and a Soho resident.” The AD1 also reiterated that a fine is constitutionally excessive only if "grossly disproportional to the gravity of a defendant’s offense.” To assess disproportionality a court must weigh a number of factors, many of which deal with the unique factual particulars under examination. Thus, the AD1 held that while “[t]he present record does not permit such consideration … individual street vendors are free to raise such a challenge in future lawsuits where the facts of each case can be developed.” The AD1 also agreed that the published Statement of Basis and Purpose was defective, but pooh-poohed the vendors’ argument that the defect could not be cured by republication. So, ultimately, while the street vendors couldn’t get the penalties invalidated, they managed to delay the new schedule’s imposition. Should they be penalized for that? For a copy of the Appellate Division's decision, please use this link: Street Vendor Project v. City of New York
 In Scott v. New York State Racing and Wagering Board, Shawn Scott challenged a New York State Racing and Wagering Board decision which denied him a track management license.
After filing his Article 78 proceeding with the New York County Supreme Court, the case was transferred -- in accordance with CPLR 7804(g) -- to the Appellate Division, First Department, where the Board’s decision was confirmed.* Apparently, Scott’s financial disclosure forms contained several misstatements. And, the Board’s hearing officer found that Scott had deliberately misrepresented some of his financial holdings. The AD1 believed that those findings were entitled to considerable deference and that “[r]equiring prospective track managers to demonstrate accurate keeping of records is justified in the sport of horse racing on which betting is legal and where there is potential for illegality.” According to the AD1, Scott’s failure to accurately represent his financial status was a sound basis upon which to determine that he “lack[ed] the experience, character and general fitness” to maintain a managerial role in horse racing or related activities, and, that his involvement in such activities “would be inconsistent with the public interest … or with the best interests of racing generally.” While Scott alleged that the Board was biased and that he was the victim of selective enforcement of the governing rules, the AD1 was unsympathetic to those claims and could find no evidence in the record which supported his allegations. ... And he's off! To download a copy of the Appellate Division’s decision, please use this link: Scott v. New York State Racing and Wagering Board --------------------------- *CPLR 7804(g) provides as follows: Hearing and determination; transfer to appellate division. Where the substantial evidence issue specified in question four of section 7803 is not raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue. If the determination of the other objections does not terminate the proceeding, the court shall make an order directing that it be transferred for disposition to a term of the appellate division held within the judicial department embracing the county in which the proceeding was commenced. When the proceeding comes before it, whether by appeal or transfer, the appellate division shall dispose of all issues in the proceeding, or, if the papers are insufficient, it may remit the proceeding.
 In Matter of JA Rocks Inc. v. New York State Liquor Authority, JA Rocks challenged the New York State Liquor Authority’s revocation of its on-premises liquor license and the subsequent imposition of a $1000 bond forfeiture.
On appeal, the Appellate Division, First Department, reversed the Liquor Authority’s determination, since the charges in dispute lacked sufficient evidentiary support. While the Liquor Authority alleged a failure by JA Rocks to exercise “adequate supervision” over the latter’s business, 9 NYCRR § 48.2 expressly limits this obligation to conduct occurring on the licensed premises. Although the violative conduct transpired outside JA Rocks's establishment, the Liquor Authority still applied the "inadequate supervision" charge. Additionally, the Liquor Authority failed to demonstrate that JA Rocks had used unlicensed security personnel in violation of another code provision (9 NYCRR § 53.1(n)). Even in the face of evidence offered by JA Rocks that it hired duly licensed personnel, the Liquor Authority erroneously opted to rely on an “illegible” police report which purportedly established the unlicensed status of the company’s security personnel. Clearly, the AD1 felt that the Liquor Authority’s case was rocky at best. 
To download a copy of the Appellate Division's decision, please use this link: Matter of JA Rocks Inc. v. New York State Liquor Authority
 Timing is everything in succession cases, and a decision issued by the Appellate Division, First Department, drives that point home.
In Torres v. New York City Housing Authority, Lillibea Torres sought permission to continue living in her deceased sister’s apartment, which was located in the Lincoln Houses, a New York City Housing Authority (NYCHA) owned and operated housing development for low-income families. Torres, along with her husband and 11 year-old daughter, moved into the apartment in 2002 when Hannah Lane -- Torres’s sister -- was diagnosed with a metastatic lung cancer that required 24-hour care. In December of 2002, Lane asked the management office to allow Torres and her family to “join the household” and filed a written request with NYCHA for that purpose. NYCHA denied the request, “citing insufficient proof that [Torres] was actually Lane’s sister.” In May of 2003, Torres submitted a second written request, along with documentation of Lane’s physical condition and proof that the two were related. Although NYCHA eventually approved Torres’s request to join the household on June 18, 2003, Lane died the following day. Upon Lane’s death, Torres requested that her family be allowed to continue living in the apartment as remaining family members. The property manager found Torres ineligible, as she had not lived in the unit for at least one-year following written permission to join the household; an outcome with which NYCHA’s district director concurred. After a “Remaining Family Member Grievance Hearing,” a hearing officer again concluded that Torres hadn’t satisfied the “one-year rule.” In response, Torres filed an Article 78 proceeding in the New York County Supreme Court seeking to overturn NYCHA’s decision. She contended that the agency “failed either to provide proper notice of the adoption of the one-year rule or to modify the lease agreement in writing as required by its terms.” The New York Supreme Court believed that NYCHA should have posted the one-year rule in each development’s office, and that the omission violated Lane’s lease. As a result, the Supreme Court found NYCHA’s decision to deny Torres a lease “arbitrary and capricious,” and found Torres entitled to succeed to the apartment. NYCHA appealed to the Appellate Division, First Department, arguing that the Supreme Court should not have considered the objection, as Torres had not preserved that issue for judicial review. The record clearly indicated that Torres asserted two theories at her grievance hearing, neither of which related to the lease violation. As a consequence, the AD1 refused to consider the arguments which she subsequently proffered in her appeal.[1] In addition, because Torres had not complied with the governing occupancy requirements, the AD1 did not find NYCHA's decision to be "arbitrary and capricious," and reinstated the eviction order. 
A rather torrid outcome, wouldn’t you agree? For a copy of the Appellate Division’s decision, please use this link: Torres v. New York City Housing Authority
[1] Appellate courts will typically reject any attempts to raise issues for the first time on appeal. In this instance, for example, the AD1 concluded that “for a court to consider evidentiary submissions as to circumstances after the [Housing] Authority made its determination would violate [a] fundamental tenet of CPLR article 78 review, namely that judicial review of administrative determinations is confined to the facts and record adduced before the agency (citation omitted).”
 In Pantelidis v. New York City Board of Standards and Appeals, a divided panel of the Appellate Division, First Department, engaged in a bitter “cat fight” over whether the New York County Supreme Court had properly ordered a variance's issuance.
The underlying dispute involved the construction of a glass-enclosed staircase at the rear of George Pantelidis’s townhouse. When Pantelidis’s permit was invalidated after construction had been completed, he was denied a variance by the Board of Standards and Appeals (BSA), which refused to address whether Pantelidis had relied in good faith on the invalidated permit. Pantelidis then filed an “Article 78 proceeding” in New York County Supreme Court, seeking to overturn the BSA’s decision. After the Supreme Court opted to examine the good-faith reliance issue, the BSA appealed to the Appellate Division, First Department, contending that the matter should have been remanded to the administrative agency for that determination. The AD1 did not concur and concluded that the Supreme Court could proceed with a hearing because the record was sufficiently developed and the BSA had had an opportunity to examine all issues, but had declined to do so. When the Supreme Court ultimately granted the variance, the BSA again appealed to the AD1 and a different appellate panel affirmed the Supreme Court’s determination, but, this time, with an unseemly contentiousness. The majority was most annoyed at having to address whether it should consider the dispute's merits, and concluded that its prior decision was binding "law of the case" -- a fact which a lone dissenter apparently “fail[ed] to come to grips with.” The “fundamental disagreement” was over the judiciary’s role when reviewing agency determinations -- a function which the dissent characterized as a “separation of powers” issue. According to Justice McGuire, “determinations are to be made in the first instance by the agency” and the courts’ “limited role” is to ensure the agency is not acting in an arbitrary and capricious manner. Under the dissent’s framework, the majority would require “clairvoyance and confidence” to affirm the variance because it would need to predict how the BSA would have acted and then need to determine whether that hypothetical action was arbitrary and capricious. According to the dissent, the delineated compartmentalization was also necessary because “sensitive planning decisions” require the BSA’s technical expertise, a competence McGuire believes our courts lack. The dissenter further charged the majority with “fail[ing] to come to grips with” the fact that good-faith reliance was not the only issue to be adjudicated. The BSA could also base a ruling on such technical questions as whether: (i) granting the variance would alter the nature of the neighborhood; or (ii) it is the “minimum variance necessary to afford relief.”
While fundamental disagreements on legal issues are to be expected, the bitter tone set by this AD1 opinion is unacceptable. The majority’s impatience with the dissent, and the dissenter’s characterization of the panel’s arguments as "insupportable" and “beyond [the Court’s] competence and expertise,” just didn’t hit us right. Let's just say it struck us as ironic that a court entrusted and encharged with resolving disputes, appears incapable of resolving one of its own. To download a copy of the Appellate Division's decision, please use this link: Pantelidis v. New York City Board of Standards and Appeals
 In Mills v. New York State Police, State Trooper Scott Mills, sought workers' compensation benefits for injuries sustained while “on duty.”
During one of his shifts, Mills visited a property where he and his wife were constructing a new home. (The land was adjacent to, but not situated in, Mills’s patrol area.) During the visit, Mills “stepped on a loose piece of lumber, fell and sustained injuries to his left wrist and left eye.” A Workers’ Compensation Law Judge decided that Mills’s injuries were work related, and awarded compensation benefits. The Workers’ Compensation Board (Board) disagreed and reversed the decision, finding that Mills "was involved in a noncompensable personal act at the time that he sustained his injuries." On appeal, the Appellate Division, Third Department, reiterated that while "injuries that arise out of and in the course of employment are compensable under the Workers’ Compensation Law," personal activities are not. Although Mills’s supervisor testified that the Trooper had not shirked his duties by visiting the property, since the officer admitted that he had not been dispatched to the area and opted to stop by solely because he had extra time, the AD3 allowed the Board’s decision to remain undisturbed. The moral of this story: You really gotta watch your step, if you wanna be a trooper. For a copy of the Appellate Division’s decision, please use this link: Mills v. New York State Police
 Mitchell Schorr came perilously close to being evicted from a Mitchell-Lama development known as East Midtown Plaza (EMP).
Mitchell contended that he was entitled to remain in his parents' unit as a tenant in his own right but EMP didn't agree and started the process to evict Mitchell from his unit. Once a certificate of eviction issued, Mitchell filed an Article 78 proceeding with the New York County Supreme Court challenging EMP's efforts to have him removed from the building. After reviewing the evidence, a Supreme Court Justice found in Mitchell's favor and, on appeal, the Appellate Division, First Department, agreed. Both courts were persuaded by the following facts: In 1999, Mitchell's father had requested that the apartment be transferred to his son. EMP corresponded with Mitchell and accepted rent checks from him. Only Mitchell's name appeared on rent bills. Several lawsuits concerning the apartment were settled with Mitchell without a challenge from EMP as to Mitchell's status.
In an interesting twist, the AD1 suggested that Mitchell's inability to demonstrate that he contemporaneously occupied the unit with his parents for a two-year period preceding their departure was of little consequence since Mitchell lived in the unit for some four years with "EMP's apparent consent." While Mitchell certainly shored this case up, what's with this "succession by apparent consent" concept? (While it's an interesting theory, we can't find it in the regulations.) For a copy of the Appellate Division's decision, please use this link: Matter of Schorr v. New York City Department of Housing Preservation and Development ------------------------------ For our other blog posts on these topics, please use these links: Mitchell-Lama or Succession
 In the case of In re Michael Quercia v. New York University, the Appellate Division, First Department, affirmed the suspension of an N.Y.U. student found to have been in possession of marijuana.
In May 2005, officers uncovered 10 ounces of marijuana, $1,740 in cash, and assorted drug paraphernalia in Quercia’s dorm room. He was immediately suspended, told to contact the University in order to begin the disciplinary process, but failed to do so for some 10 months. In January 2006, Quercia, as part of a plea bargain, pled guilty to one count of disorderly conduct and was sentenced to a conditional discharge of one-year and 10 days of community service. In March 2006, Quercia finally contacted N.Y.U. to begin the disciplinary review process. At a hearing before the Judicial Board, Quercia denied selling or distributing drugs. He also disclaimed knowledge of the drugs’ existence prior to the search, and suggested that perhaps a roommate or prior occupant of the dorm room had owned them. He admitted to owning some of the alleged drug paraphernalia, but testified that he had used it for collecting pollen and grinding flowers. (Apparently, Quercia thought the members of the Judicial Board were high.) The Board suspended him until the Fall of 2007, and required him to do 500 hours of community service prior to reinstatement. On June 12, 2006, Quercia filed an Article 78 proceeding with the New York County Supreme Court, seeking to overturn the Board’s decision, reinstating him to NYU, and expunging the disciplinary proceeding from his records. The Supreme Court upheld the Board’s determination, but reduced the punishment to 100 hours of community service. The Appellate Division, First Department, reversed and affirmed the original punishment. The AD1 noted that judicial review of a university’s disciplinary rulings is limited to whether the school adhered to its own published rules and whether the punishment was so disproportionate as to “shock one’s sense of fairness.” It further concluded that the suspension was proper. First, NYU’s prohibition of drugs and the penalties for violating that prohibition -- probation, suspension, expulsion -- were quite clear. Second, the AD1 found the outcome to be appropriate considering the severity of the infraction, which posed "a substantial risk to the health and safety of students." For Quercia, that must have been a real downer. For a copy of the Appellate Division's decision, please use this link: In re Michael Quercia v. New York University
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