New York Civil Service Attorney Law Blog

Municipal lawyer granted retirement benefits but denied additional relief

Kevin Sheerin — Wed, 03 Mar 2010 13:13:44 -0500

Matter of Albert D’Agostino v Thomas DiNapoli, as State Comptroller

Petitioner in this Article 78 case is an attorney who worked part time as counsel for several municipalities and school districts in addition to maintaining a private law practice. In 2000, he retired from municipal service and began receiving public retirement funds. In April of 2008, the State Comptroller changed the regulations for New York State and Local Employees’ Retirement System regarding the classification of professional municipal service providers as employees or independent contractors. Under the new regulations, petitioner’s enrollments in the Retirement System were invalidated and he was told he needed to return over $600,000 of retirement benefits that he had received.

Petitioner then commenced an Article 78 appeal seeking immediate reinstatement to the Retirement System alleging improper retroactive application of the new regulations and violation of his due process rights. The Supreme Court granted his petition and dismissed the determination to terminate petitioner’s pension benefits and membership in the Retirement System and ordered respondents to pay accrued arrears in petitioner’s pension. Petitioner then appealed the decision because all of his grounds were not granted relief. Since an appellant must be aggrieved in order to file an appeal, the Court ruled that the appeal must be dismissed. Petitioner was granted the ultimate relief that he sought and therefore cannot be aggrieved.

Accordingly, the Supreme Court dismissed the appeal, without costs.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Police officer denied accidental disability retirement benefits and performance of duty retirement benefits

Kevin Sheerin — Wed, 24 Feb 2010 15:29:13 -0500

Matter of Charles M. Hulse v Thomas DiNapoli, as State Comptroller

In 2001, petitioner, a 20-year old police officer for the Town of Ramapo Police Department, injured his back while lifting a large person to perform CPR. Petitioner was out of work for a month following this incident due to a herniated lumbar disc. In 2003, petitioner injured his shoulder while engaged in a training program for bike patrol. Petitioner was participating in an exercise in proper technique for avoiding injury when falling off a bicycle. Petitioner was unable to return to full duty due to this injury and was only able to return to work part time in a light duty capacity.

Petitioner applied for accidental disability retirement benefits and performance of duty retirement benefits and was denied. The Hearing Officer upheld the denials and respondent adopted the decision. Petitioner then commenced this Article 78 proceeding to review the determination.

Since an accident in this context must be the result of a completely unforseeable event during the performance on routine duties, petitioner’s shoulder injury would not fall under this definition. Petitioner was participating in a training exercise that was part of his ordinary duties that involved risks and the manner in which he was injured was not unexpected or unforeseeable. Since substantial evidence exists to support respondent’s determination, the Court will not disturb it.

In regards to petitioner’s application to performance of duty retirement benefits for both injuries, petitioner failed to prove that he was permanently disabled from the performance of his duties. Though petitioner’s doctor concluded that his prognosis was “poor” for a full recovery from his shoulder injury, the respondent’s doctors provided evidence that a reasonably safe surgical procedure would relieve his pain and restore full function to his shoulder. Since respondent has the exclusive authority to resolve conflicts in medical opinion and the respondent’s doctor’s opinion was rationally based on the examination of petitioner, the Court agreed with respondent’s decision.

Accordingly, the Supreme Court confirmed the determination, without costs, and dismissed the petitioner.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Denial of correction officer's performance of duty retirement benefits annulled due to factual errors

Kevin Sheerin — Wed, 24 Feb 2010 12:59:20 -0500

Matter of Paul Mazzotte v Thomas DiNapoli, as State Comptroller

Petitioner was a correction officer for over 20 years. In 2001, he applied for performance of duty disability retirement benefits alleging he was permanently disabled by coronary artery disease (CAD) after having coronary artery bypass surgery. According to petitioner, the disease was caused by the stress of his employment duties which included dealing with inmate riots, threats, attacks, and administrative pressures. Petitioner was found to be permanently disabled but his petition was denied on the ground that his disability was not due to performance of duties. The Hearing Officer determined petitioner’s disability was congenital and denied his application for performance of duty disability retirement benefits. The respondent accepted this determination and petitioner commenced this Article 78 appeal to annul the determination.

The petitioner contended that the Hearing Officer’s decision contained significant factual errors such as stating that petitioner had high blood pressure and diabetes with no evidence to support this finding. Additionally, the decision indicated that an expert physician testified regarding his 2001 examination which is false. The physician never testified but only submitted a written report. Due to these factual errors, the Court ruled that respondent failed to present an adequate or accurate statement of the factual basis of its determination and therefore the determination must be annulled.

Accordingly, the Supreme Court annulled the determination, without costs, and remitted the matter to respondent for further proceedings.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Henderson Town Council files Article 78 against proposed wind-tower project

Kevin Sheerin — Tue, 23 Feb 2010 11:17:39 -0500

The town of Henderson has filed an Article 78 proceeding to annul the town of Hounsfield Planning Board’s site plan approval for the Galloo Island Wind Farm proposal. Upstate Power proposed the construction of a wind farm and a new power line on Galloo Island which would transport 1,000 megawatts of service to downstate customers.

Being reliant on tourism dollars, the Village of Pulaski and the surrounding area are concerned about the aesthetic impact of above-ground lines which could negatively impact tourism. The Town of Henderson has the same concerns about a negative economic impact. The town feels that the Department of Environmental Conservation (DEC) failed to look at the environmental concerns such as land use, wetlands, avian and aquatic species and visual, archaeological and historic resources, that surround this proposal. Henderson argues that the project will affect residents’ use and enjoyment of their property due to noise impacts, visual impacts, contamination of property, decreased property values and additional aesthetic impacts.

The town is seeking to have a judge declare that the DEC failed to comply with SEQRA requirements and to vacate the Planning Board’s site plan approval.

Read full article here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Home Depot U.S.A., Inc. Article 78 appeal to compel review of sewage rates granted

Kevin Sheerin — Fri, 19 Feb 2010 14:11:58 -0500

Matter of Home Depot U.S.A., Inc v Town Board of the Town of Southeast

In this consolidated Article 78 appeal, petitioners sought to compel the Town Board of the Town of Southeast and the Town of Southeast (thereinafter together the Town) to review the sewage rates of Independent Sewage Works, Inc., (ISW). The Supreme Court denied the Town’s motion to dismiss the consolidated proceeding and granted the branch of petitioners’ cross motion for summary judgment seeking to compel the Town to review the sewage rates due to the five year lapse of time since the last review.

Petitioners filed a complaint to compel the Town to review and reduce the rates IS was charging them in June of 2005. When the Town failed to take action, petitioners commenced an Article 78 appeal since the Town was required to review the rates every five years. The Town and ISW moved to dismiss the proceeding and the petitioners cross-moved for summary judgment. The Supreme Court denied the motion and granted the cross motion directing the Town to review the sewage rated being charged by ISW.

The Court finds that the Supreme Court should have dismissed the parts of the consolidated proceeding seeking to compel the Town to consider the issues raised in the complaint due to missing the four month statute of limitations and failing to demonstrated a clear legal right under Transportation Law § 121. The Supreme Court was, however, correct in granting the branch of petitioners’ cross motion for summary judgment seeking to compel the Town to review the rates charged by ISW since five years had passed since the last review. The petitioners were timely in filing this appeal and established a clear legal right to compel the Town to review the sewage rates.

Accordingly, the Supreme Court modified the order and judgment by deleting the provision denying the branch of the motion to dismiss the consolidated proceeding to compel the Town Board and Town to consider the issues raised in petitioners’ administrative complaint and substituting a provision granting that branch of the motion.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Article 78 application for succession rights to apartment denied

Kevin Sheerin — Fri, 19 Feb 2010 11:17:30 -0500

Matter of Flores-Tully v City of New York Department of Housing Preservation and Development

Petitioner brought about this Article 78 appeal to review a determination of the City of New York Department of Housing Preservation and Development denying petitioner’s application for succession rights to an apartment owned by Dayton Tower’s Corporation. The Supreme Court denied the petition and dismissed the proceeding which resulted in this appeal.

Petitioner claims that the decision was arbitrary and capricious and lacked a rational basis. The Court disagrees because petitioner was never named on the income affidavits filed for the apartment prior to the tenant of record’s death. Though the tenant was petitioner’s husband, Dayton was never notified of her occupancy. Additionally, she filed income affidavits that showed she occupied another apartment unit in the same building.

Accordingly, the Supreme Court affirmed the determination, with one bill of costs.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Maintenance worker denied ordinary disability retirement benefits

Kevin Sheerin — Wed, 17 Feb 2010 13:07:14 -0500

Petitioner, Rosina Bautista, was as a maintenance worker at New Rochelle High School in Westchester County. She sustained various injuries occurring between 1994 and 2001 and ceased working in May of 2001 due to these injuries. She then applied for ordinary disability retirement benefits and was denied on the grounds that she was not permanently disabled from performing her job duties. Petitioner then brought about this Article 78 proceeding to review the determination denying her ordinary disability retirement benefits.

The Court disagreed with petitioner’s argument that the Hearing Officer’s decision adopted by respondent lacked factual basis for denying her application. The decision was based on the expert medical examinations of three physicians who examined petitioner. All three doctors found petitioner not permanently disabled and while her personal physician reached a different conclusion, the respondent has the authority to resolve conflicts in medical evidence and to choose the opinion of one expert over that of another. The Retirement System’s experts’ opinions were rational and based on facts and therefore the Court declined to disturb it.

Accordingly, the Supreme Court confirmed the determination, without costs, and dismissed the petition.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Teacher awarded 28 days pay for late notice of termination

Kevin Sheerin — Wed, 17 Feb 2010 12:24:18 -0500

In this Article 78 case, petitioner, David Vetter, was a probationary teacher for the Ravena-Coeymans-Selkirk Central School District for the 2005-2006 school year. In 2006, the Board of Education voted to terminate petitioner due to allegations of misconduct but did not provide written notice of this decision until a month later – two days before the effective termination date. Petitioner then commenced this Article 78 proceeding to seek 28 days of salary in accordance with Education Law § 3109-a, a name clearing hearing, and attorney fees.

The Board agreed to the name clearing hearing for petitioner but argued that he was not entitled to the 28 days of pay because the applicable notice period occurred during summer vacation when petitioner would not have received compensation. The Supreme Court denied petitioner’s Education Law § 3109-a claim but granted his application for counsel fees. The Appellate Division then reversed the award for attorney fees and affirmed the denial of pay.

Education Law § 3109-a requires school authorities to provide teachers with a written notice of termination at least 30 days prior to the effective termination date in order for them to have the opportunity to seek other employment. When the notice is late, teachers are entitled to one day’s pay for each day the notice was late. In this case, the Board agreed that they were late with the notice but since the time period was over summer vacation when petitioner would have received no salary, felt that he was not due any pay. Since other similar cases were granted pay, even over summer vacation, the Court concluded that a remittal was necessary for the calculation of 28 days’ salary. The Court agreed with the Appellate Division’s determination that petitioner was not entitled to attorney’s fees.

Accordingly, the Supreme Court modified the petition remitting to Albany Supreme Court for further proceedings.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Civil Service Law S4562

Kevin Sheerin — Mon, 01 Feb 2010 13:07:23 -0500

A new Civil Service Bill, S4562, was passed that will change the probationary period for employees of the New York City Health and Hospitals Corporation appointed to a title on the non-competitive class to one year. The current five-year probationary period is considered unfair and unnecessary by many health workers. This new bill shortens the probationary period to one year which should be adequate time for a competent manager to determine that an employee is performing at a competent level and is deserving of the right to a hearing prior to being fired.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Article 78 appeal to teacher's termination denied

Kevin Sheerin — Wed, 13 Jan 2010 14:57:24 -0500

Matter of Kevin Cummins v New York City Department of Education

Petitioner brought about this Article 78 proceeding to appeal his termination by the New York City Department of Education, claiming it was arbitrary and capricious and made in violation of his right to due process.

Petitioner began working for the Department of Education in 2000 as a non-tenured teacher. In March 2008, he was accused of corporal punishment and sent to a reassignment center. Later that year he was denied his Certification of Completion of Probation and it was recommended that his license be terminated. The Department of Education’s reason for termination was two unsatisfactory classroom observations, two allegations of verbal and corporal abuse, and a history of lateness. At the hearing, the Chancellor’s Committee upheld the recommendation to deny certification. Petitioner then commenced this Article 78 appeal to annul the determination.

Petitioner argued that he was not allowed to call witnesses to his hearing and therefore the determination to terminate his employment should be annulled but he did not raise this objection at the time of the hearing and therefore it cannot be considered for the first time in reviewing the administrative proceeding.

Since petitioner was a probationary employee and probationary teachers can be terminated at any time during the probationary period for any reason and petitioner failed to establish that the Department of Education’s determination was arbitrary and capricious or an abuse of discretion, the Court must uphold the respondent’s decision.

Accordingly, the Supreme Court denied the petition and dismissed the proceeding.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Article 78 appeal to annul tenancy termination denied

Kevin Sheerin — Wed, 13 Jan 2010 12:07:39 -0500

Matter of Yasmeen Lugo v The New York City Housing Authority

Petitioner, Yasmeen Lugo, was the sole authorized tenant for her apartment in a New York City Housing Authority (NYCHA) public housing development. According to NYCHA, Petitioner allowed illegal drug transactions to occur in her apartment and was chronically delinquent on her rent payments. These issues caused NYCHA to charge Petitioner with non-desirability, breach of rules and regulations, endangering the welfare of a child, and chronic rent delinquency. After a hearing, NYCHA recommended terminating Petitioner’s tenancy. Petitioner argued that she had no knowledge of any illegal drug dealing activities by her two friends that often stayed in her apartment. The Board adopted the hearing officer’s decision and terminated Petitioner’s tenancy. Petitioner then commenced this Article 78 appeal.

CPLR 7803 states that the court review of a determination of an agency should only be regarding whether or not the determination was made in violation of lawful procedure or was arbitrary and capricious. In this case the decision for termination of tenancy was based on substantial evidence and the Court found no reason in the record to annul the NYCHA’s decision. The Petitioner’s assertion that she was unaware of any illegal drug transactions in her apartment is not sufficient to overcome the other evidence presented at the hearing.

Accordingly, the Supreme Court denied the petition.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Canadian Police Prep Video re: Police Psychological Testing

Kevin Sheerin — Wed, 06 Jan 2010 15:55:45 -0500

The MMPI2 is one of the standard psychological tests administered to Police Department candidates. Above is an interesting video prepared by a Canadian Police Preparatory school on the MMPI2.

Article 78 against NYC Housing Authority denied

Kevin Sheerin — Wed, 06 Jan 2010 11:29:21 -0500

Matter of Anne Baldwin v Tino Hernandez, as Chairman and Member of the NYC Housing Authority

Petitioner brought about this Article 78 proceeding to review a determination from the New York City Housing Authority that permanently excluded her son from her public housing apartment.

The reasons behind the Housing Authority’s condition that petitioner may continue tenancy on exclusion of her son for non-desirability were supported by substantial evidence, and not arbitrary and capricious. Petitioner’s son pleaded guilty to assault, threatening two Housing Authority employees, and harassing a former supervisor. These instances all supported the Housing Authority’s decision showing that the exclusion was appropriate and not shocking to the conscience.

Accordingly, the Supreme Court confirmed the determination, denied the petition, and dismissed the proceeding.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Decision to make NYPD hair drug testing illegal overturned

Kevin Sheerin — Fri, 18 Dec 2009 11:58:42 -0500

Earlier this year, we posted a blog about four former NYPD officers who were suing the Department over terminations after receiving false positives from the highly debated new method of hair drug testing. Click here to read the original blog.

In January 2005, the New York City Police Department announced that it would be using a new methodology for hair testing (radioimmunoassay or RIAH) for all drug screening of uniformed members. Then in August 2005, the NYPD changed its drug-testing method to using hair samples without first obtaining the unions’ consent. The unions protested that this would require collective bargaining prior to making the change. The Supreme Court agreed and ordered the NYPD to bargain with the police unions before implementing the aforementioned changes in drug-testing procedures. The Board of Collective Bargaining ruled that the expansion of the categories subject to testing, from urine to hair analysis, and the change in testing methodology should be subject to collective bargaining.

In January 2007, the City then brought about an Article 78 appeal to annul the Board’s decision arguing that hair testing was the most effective method of drug testing and that the procedures were identical to those already in effect in numerous contexts, as the NYPD already uses RIAH in certain situations. In December 2007, the Supreme Court granted the City’s petition and annulled the Board’s decision. In October 2008, the Appellate Division reversed the Supreme Court’s judgment and reinstated the Board’s decision. This resulted in yet another Supreme Court appeal.

The Court feels that since the detection and deterrence of wrongdoing within the NYPD, especially illegal drug use, is an integral component of the Police Commissioner’s responsibility to maintain discipline within the force. The Court believes that drug testing methodology and testing triggers are encompassed within the Commissioner’s disciplinary authority and therefore should be excluded from collective bargaining.

Accordingly, the Supreme Court reversed the decision of the Appellate Division, with costs, and reinstated the judgment of Supreme Court.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

EBOOK APPEALING CIVIL SERVICE DISQUALIFICATIONS

Kevin Sheerin — Wed, 16 Dec 2009 14:34:31 -0500

www.sheerinlaw.com/pdf/sheerinlaw.com-Appealing_a_DQ_eBook.pdf

Click above to download Ebook.

Article 78 revoked driver's license appeal granted

Kevin Sheerin — Thu, 10 Dec 2009 12:07:25 -0500

Matter of David Feder v New York State Department of Motor Vehicles

Petitioner brought about this Article 78 proceeding to review a determination of the New York State Department of Motor Vehicles (DMV) which revoked his driver’s license pursuant to Vehicle and Traffic Law §510.2, imposed a driver’s responsibility fine, and found him ineligible for a restricted use license. The New York State DMV then appealed a decision of the Supreme Court which granted petitioner’s appeal and annulled the DMV’s determination.

Petitioner was issued speeding tickets in August 2005, February 2006, and July 2006. In November 2007, petitioner pleaded guilty to the August 2005 speeding ticket and the following day the DMV revoked his driver’s license for at least 6 months on the grounds that petitioner had been convicted of 3 speeding violations within 18 months. The DMV also informed petitioner that he was ineligible for a restricted use license since he was already issued one within the past 3 years.

When petitioner was convicted of the August 2005 speeding ticket in November 2007, he had not yet been convicted of the other two violations and therefore had not been convicted of 3 speeding violations within an 18 month period. Thus, the DMV’s determination did not have a rational basis and the penalty imposed was an abuse of discretion.

Accordingly, the Supreme Court affirmed the judgment granting petitioner’s appeal, with costs.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Five cases of denied accidental disability retirement benefits

Kevin Sheerin — Fri, 04 Dec 2009 14:36:13 -0500

In the following cases, the petitioners commenced Article 78 appeals to review the determination of respondent Comptroller denying their application for accidental disability retirement benefits. Each petitioner applied for accidental disability retirement benefits following their accidents and was denied. They next requested a redetermination and hearing which, in all instances, resulted in the Hearing Officer recommending the claim be denied on the grounds that petitioner did not sustain an accident within the meaning of the Retirement and Social Security Law. The Comptroller upheld the Hearing Officer’s recommendation and this Article 78 proceeding was commenced. In each case, the Supreme Court ruled against the petitioners, confirming the decision of the Comptroller and dismissing the petitions.

In order to qualify for accidental disability retirement benefits, the underlying accident must be completely out of the ordinary and unexpected and not resulting from a performance of a routine employment duty. The Comptroller has the exclusive authority to decide whether an accident occurred within the meaning of the law and if his determination can be supported by substantial evidence, it must be upheld.

Bruno Piccinini v Comptroller of the State of New York

Petitioner, a security service assistant for the State University of New York Police Department, was injured when he tripped on an uneven section of the sidewalk while performing a routine patrol. Since petitioner admitted to patrolling the sector where the accident occurred on a regular basis and to being “very familiar” with the sidewalks, the Comptroller’s determination is supported by adequate evidence.

Read full decision here.

Paul Grutzner v Deputy Comptroller of the State of New York

Petitioner, a retired police officer of 40 years, submitted an application for accidental disability retirement benefits asserting permanent disability due to work-related injuries sustained in 1963, 1982, and 1986 and was denied. Petitioner testified to performing normal work duties of a police officer when each of the incidents occurred. In 1963, petitioner was attempting to climb a stairwell with missing steps while investigating a possible burglary when he fell. He was aware that the steps were damaged and therefore the fall was the result of his own misstep. In 1982, petitioner was riding a motorized dirt bike as part of a security detail when the bike “kicked-out” while descending a hill causing him to be injured. Petitioner was an accomplished motorcycle rider and admitted to riding down the same hill three times that day. Therefore, the incident resulted from an ordinary work related duty. In 1986, petitioner was injured while attempting to kick open a locked door to execute an arrest warrant. He attested to having done the same activity 150-200 times before indicating that the incident was not sudden and unexpected.

Read full decision here.

Michael Lorenzo v Comptroller of the State of New York

Petitioner, a detective employed by the City of Yonkers Police Department, injured his neck while exiting a police car in 2003. Petitioner claimed his disability was due to two earlier incidents, in 1991 and 1992, in addition to the accident in 2003. In 2003, the petitioner parked his unmarked car too closely to the adjacent car and hit his head while trying to get out of the car. Petitioner testified that “go[ing] out and arrest[ing] bad guys” were activities that would require him to enter an exit his police vehicle supporting the Comptroller’s assertion that the event precipitating petitioner’s injury was a inherent risk in the performance of his routine duties. Petitioner failed to establish that his neck injury was caused by the incidences in 1991 and 1992.

Read full decision here.

Martha DeLaCruz v Comptroller of the State of New York

Petitioner, a criminal investigator for the Westchester County District Attorney’s office, was injured when she fell during a training program in dignitary protection. Petitioner was newly assigned to the position of driver and bodyguard for the District Attorney and was injured completing a training exercise in which she had been previously instructed on how to act during it. Therefore, the incident in question resulted from part of petitioner’s ordinary job duties and was not an accident according to the meaning of the Retirement and Social Security Law.

Read full decision here.

Kenneth Rolon v Comptroller of the State of New York

Petitioner, a police officer employed by the City of Newburgh Police Department, sustained a back injury while changing a flat tire on his patrol car. Petitioner testified that he had never changed a flat tire before and usually a mechanic would be dispatched to do this task. In this case however, petitioner’s watch commander directed him to change the tire because a mechanic was unavailable and part of petitioner’s duties included following the orders of his watch commander. Therefore, substantial evidence supports the Comptroller’s determination that petitioner was injured while performing regular employment duties.

Read full decision here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Willets Point residents filing an Article 78 against redevelopment project

Kevin Sheerin — Fri, 04 Dec 2009 12:01:19 -0500

Seventy-seven year old Joe Ardizzone has lived in Willets Point his entire life. He owns a house and rents out the downstairs as a deli and restaurant. The city is planning a $3 billion redevelopment project that includes housing, a school, offices and shops, a hotel, and a small convention center on the land now occupied by businesses and Ardizzone. Mr. Ardizzone does not want to leave the house he was born in on Willets Point Boulevard and is angry over the way the city has forced their project on the people working in Willets Point. He is also concerned about the lack of a sewage treatment plant that would be necessary to handle the expected influx of people with the new development. Supporting Ardizzone are members of Willets Point United which is composed of business owners who are fighting to keep their property. This group has commenced an Article 78 challenging the environmental review done by the city in Willets Point and is currently waiting a judge’s decision. An eminent domain hearing is expected to be held early next year.

Read full article here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Article 78 appeal for expansion of multifamily barn denied

Kevin Sheerin — Tue, 24 Nov 2009 12:07:06 -0500

Matter of Michael Mimassi v Town of Whitestown Zoning Board of Appeals

Petitioner brought about this Article 78 proceeding to challenge a judgment of the Supreme Court dismissing a petition to review a determination of the Whitestown Zoning Board of Appeals (ZBA). Petitioner purchased property in the Town of Whitestown that included a farmhouse that had been converted into a three-family dwelling. The Town’s Code does not permit multifamily dwellings but since this farmhouse was converted prior to the passage of the current Code, the building was permitted to remain as a preexisting nonconforming use. Petitioner proceeded to convert the barn into eight apartment units which prompted the Town’s Codes Enforcement Officer to issue an “order to remedy violation” and ordered the tenants to vacate. Petitioner then appealed to the ZBA which affirmed the order to remedy violation and determined that the construction of the apartment units violated the Code. Petitioner then filed an Article 78 appeal to annul the determination in Supreme Court. The petition was dismissed prompting this appeal.

The Court felt that since the Code prohibits multifamily dwellings, the expansion of the barn would nullify the acceptable preexisting nonconforming use and therefore the ZBA’s determination was not arbitrary and capricious. Petitioner did not take into account the ordinances addressing the issue of a nonconforming use and his discrimination argument lacked extrinsic evidence of clear and intentional discrimination sufficient to require a trial.

Accordingly, the Supreme Court affirmed the judgment so appealed from, without costs.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Article 78 to review Zoning Board of Appeals decision granted

Kevin Sheerin — Mon, 23 Nov 2009 14:00:20 -0500

Matter of Craig Emmerling and Lynn Emmerling v Town of Richmon Zoning Board of Appeals

This article 78 appeal was brought about to challenge a judgment of the Supreme Court dismissing a petition. Petitioners commenced an article 78 appeal to reverse the determination of the Town of Richmond Zoning Board of Appeals (ZBA) that required a site plan review by the Town Planning Board prior to petitioners being allowed to erect a fence on their property. The Supreme Court dismissed their appeal which led to this proceeding.

The Court feels that Supreme Court erred in dismissing the petition in its entirety. The ZBA’s determination that a site plan review was required prior to petitioners’ erection of a fence was contrary to the Zoning Laws. The Court found that respondents’ argument that the review was required due to the fence changing the traffic flow on petitioners’ property was against merit, as was the contention that a review was necessary due to the fence not being included in the original site plan for petitioners’ property. The Court felt that the ZBA’s interpretation of the zoning code was irrational, unreasonable, and inconsistent.

Accordingly, the Supreme Court reversed the judgment so appealed from, granted the petition and annulled the determination.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.