MBIA Trial Docs1

Granting Article 78 Petitions Based on Expert Testimony

1. Justice Yates: “It’s 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 Dep’t 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. Dep’t 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 expert’s affidavit testifying that petitioner’s properties qualified under “the DEC’s 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 respondent’s 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 petitioner’s application could have been approved and a professional engineer “[t]o provide an engineer’s 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.

FILED: NEW YORK COUNTY CLERK 06/11/2012 INDEX NO. 601846/2009

NYSCEF DOC. NO. 307 RECEIVED NYSCEF: 06/11/2012

8. Lese v. Temp. State Hous. Rent Comm’n, 15 Misc. 2d 143, 145 (Sup. Ct. N.Y. Cnty. 1958): Petitioner challenged State Rent Administrator’s 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, 771-72 (3d Dep’t 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 Dep’t 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 petitioner’s 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. Dep’t 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 Dep’t 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 Dep’t 1998): The court faulted petitioner for not providing “expert analysis” based on “professional or technical knowledge” “documenting and detailing the deficiencies in respondent’s valuations.”

14. Shafran v. St. Vincent’s Hosp. & Med. Ctr., 264 A.D.2d 553, 558 (1st Dep’t 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.)

Tab 1

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2 SUPREME COURT OF THE STATE OF NEW YORK

3 COUNTY OF NEW YORK : PART 49

4 ---------------------------------------X 5 THIRD AVENUE TRUST AND THIRD AVENUE

VARIABLE SERIES TRUST , 6

7 Plaintiffs ,

8

9 - against -

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11 MBIA INSURANCE CORP . , MBIA INC. and NATIONAL PUBLIC FINANCE GUARANTEE CORP.

12 (f/k/a MBIA INSURANCE CORP . OF ILLINOIS) .

13 Defendants .

14 ---------------------------------------X 15

16

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

INDEX NO. 650756/09

20 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 .

64

THE COURT : Let's think about this . When a l l

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 , it 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 hung 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 . I would say move

forward . You said you can work something out , I'll

leave it to you to work out , b ut please d on ' 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

informing, we can adjust .

MR . GIUFFRA: I agree, we' l l wor k something

out. The difficulty we face is , we have deposi t ions

Donna Evans , Official Court Reporter

Tab 2

FIND Request: 60 N.Y.2d 296, 307

Court of Appeals of New York.Dennis S. DE LONG, Individually and as Adminis-trator 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 theSupreme Court, Appellate Division, 89 A.D.2d 376,455 N.Y.S. 2d 887, affirming a judgment of the Su-preme Court, Erie County, Trial Term, Roger T.Cook, J., in favor of burglary victim's estate in ac-tion for her wrongful death at hands of burglar. TheCourt of Appeals, Wachtler, J., held that: (1) city'sand county's creation of special “911” emergencyassistance telephone number, accepting burglaryvictim's call for emergency assistance, and assuringher that help was on the way established special re-lationship with and duty to burglary victim, suffi-cient to hold city and county liable for negligentlydirecting police cars to wrong locality and takingno further action when responding officers reportedno such address; (2) evidence was sufficient to sup-port conclusion that neither city nor county exer-cised ordinary care in handling of victim's call andshould share responsibility for foreseeable con-sequences; and (3) admission of expert testimony asto market value of types of services performed byaverage housewife in burglary victim's circum-stances was not an abuse of discretion.

Order affirmed.

West Headnotes

[1] Counties 104 146

104 Counties104VII Torts

104k146 k. Acts of officers or agents. Most

Cited Cases

Municipal Corporations 268 747(3)

268 Municipal Corporations268XII Torts

268XII(B) Acts or Omissions of Officers orAgents

268k747 Particular Officers and OfficialActs

268k747(3) k. Police and fire. MostCited Cases

City's and county's creation of “911” emer-gency assistance telephone number, accepting callfor emergency assistance from woman whose homewas in process of being burglarized, and assuringher that help was on the way established special re-lationship with and duty to woman, who was sub-sequently killed by burglar in her home, sufficientto hold city and county liable for negligently direct-ing police cars to wrong locality and taking no fur-ther action when responding officers reported nosuch address.

[2] Municipal Corporations 268 723


268XII(A) Exercise of Governmental andCorporate Powers in General

268k723 k. Nature and grounds of liabil-ity. Most Cited Cases

A city may be held liable for neglecting toprovide crossing guards for school children when ithas voluntarily undertaken the task, which the chil-dren's parents could justifiably expect to be regu-larly and properly performed.




268k723 k. Nature and grounds of liabil-

457 N.E.2d 717 Page 160 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)

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

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ity. Most Cited CasesA municipality which has affirmatively certi-

fied a building as safe may be held liable to theowners for injury caused by known, blatant anddangerous violations.

[4] Municipal Corporations 268 742(6)



268k742 Actions268k742(6) k. Trial, judgment, and re-

view. Most Cited CasesWhether a “special duty” between municipality

and injured party has been breached, for purpose ofholding municipality liable for negligence in per-formance of governmental function, is generallyquestion for jury.

[5] Municipal Corporations 268 747(3)




268k747(3) k. Police and fire. MostCited Cases

Whether municipality has acted reasonably inperformance of governmental function, includingpolice and fire protection, depends upon circum-stances of particular case.




268k723 k. Nature and grounds of liabil-ity. Most Cited Cases

Although any error, however slight, by muni-cipality in performance of emergency service may

have dire consequences, it will not always justifyan award of damages.


104 Counties104XII Actions

104k223 k. Evidence. Most Cited Cases




268k742 Actions268k742(5) k. Evidence. Most Cited

CasesEvidence, inter alia, that police cars were direc-

ted to wrong locality and that no further action wastaken when responding officers reported no suchaddress was sufficient to support conclusion thatneither city nor county, which established “911”telephone number to serve city and neighboringcommunities by accepting calls for assistance andrelaying them to local agencies, exercised ordinarycare in handling emergency “911” call of burglaryvictim, who was subsequently killed by burglar,and that they should share responsibility for fore-seeable consequences.


104 Counties104VII Torts

104k146 k. Acts of officers or agents. MostCited Cases





268k747(3) k. Police and fire. Most


































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Cited CasesReliance by burglary victim, who was killed by

burglar after making emergency “911” call for as-sistance negligently acted upon by city and countywas essential element of cause of action againstcounty and city, which had established “911” tele-phone number to serve city and neighboring com-munities, for burglary victim's wrongful death.

[9] Appeal and Error 30 216(1)

30 Appeal and Error30V Presentation and Reservation in Lower

Court of Grounds of Review30V(B) Objections and Motions, and Rulings

Thereon30k214 Instructions

30k216 Requests and Failure to GiveInstructions

30k216(1) k. In general. Most CitedCases

Where city and county failed to bring omissionof specific instructions with respect to burglary vic-tim's reliance on “911” emergency assistance tele-phone number to court's attention when action forburglary victim's wrongful death at hands of burg-lar was submitted to jury, issue was not preservedfor review. McKinney's CPLR 4017, 4110–b.

[10] Evidence 157 546

157 Evidence157XII Opinion Evidence

157XII(C) Competency of Experts157k546 k. Determination of question of

competency. Most Cited CasesGenerally, admissibility of expert testimony on

particular point is addressed to discretion of trialcourt.

[11] Evidence 157 508


157XII(B) Subjects of Expert Testimony157k508 k. Matters involving scientific or

other special knowledge in general. Most CitedCases

Expert opinion is proper when it would help toclarify an issue calling for professional or technicalknowledge, possessed by expert and beyond ken oftypical juror.

[12] Death 117 64

117 Death117III Actions for Causing Death

117III(G) Evidence117k59 Admissibility of Evidence

117k64 k. Loss or injury resultingfrom death. Most Cited Cases

Evidence of market value of types of servicesperformed by average housewife in burglary vic-tim's circumstances was relevant to issue of dam-ages on cause of action against city and county,who negligently acted upon victim's “911” tele-phone call for assistance, for victim's wrongfuldeath at hands of burglar. McKinney's EPTL 5–4.3.

[13] Evidence 157 532


157XII(B) Subjects of Expert Testimony157k530 Damages

157k532 k. Injuries to the person.Most Cited Cases

In action against city and county, which negli-gently acted upon burglary victim's emergency“911” telephone call for assistance, for burglaryvictim's wrongful death at hands of burglar, admis-sion of expert testimony as to monetary value oftypes of services performed by average housewifein burglary victim's circumstances was not an abuseof discretion.

*298 ***613 **718 John J. Heffernan and Peter M.Kooshoian, Buffalo, for County of Erie, appellant.

John J. Naples, Corp. Counsel, Buffalo (Carl Tro-nolone, Buffalo, of counsel), for City of Buffalo,appellant.





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*299 Philip H. Magner, Jr., Buffalo, for respondent.

*300 OPINION OF THE COURTWACHTLER, Judge.

In this suit for damages brought by the familyand estate of a woman killed by a burglar, a juryfound the City of Buffalo and the County of Erie li-able for negligent processing of and response to thevictim's call for emergency assistance made on thespecial 911 number established and serviced by thedefendants. The Appellate Division 89 A.D.2d 376,455 N.Y.S.2d 887 affirmed the judgment with twoJudges dissenting and the defendants have ap-pealed.

Two primary issues are presented on the ap-peal. First, whether by creating the special service,accepting the call for emergency assistance and as-suring the caller that help was on the way, the mu-nicipal agencies may be said to have established aspecial relationship with and duty to her, sufficientto hold them liable for negligently directing the po-lice patrol cars to the wrong locality and taking nofurther action when the responding officers repor-ted no such address as that given. Second, whetherthe trial court erred in permitting expert testimonyconcerning the monetary value of a housewife's ser-vices on the issue of damages.

In October, 1976 the decedent, Amalia DeLong, resided with her husband and three smallchildren in Kenmore, a village adjacent to the Cityof Buffalo. Her home **719 at 319 VictoriaBoulevard was located approximately 1,300 feetfrom the Kenmore Police Department. One of herneighbors was a captain in that department.

On the morning of October 25 she telephonedfor emergency police assistance by dialing 911. At9:29 her call was answered by a complaint writeremployed by Erie County to respond to such re-quests. The call, lasting approximately 14 seconds,was recorded in its entirety as follows:

Caller: “Police?”

Complaint Writer: “911.”

*301 Caller: “Police, please come, 319 Victoriaright away.”

Complaint Writer: “What's wrong?”

Caller: “I heard a burglar; I saw his face in theback; 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 theaddress as 219 Victoria, and mistakenly assumedthat the call had originated in Buffalo because heknew there was a Victoria Avenue in the city. Ac-cordingly, after stamping the complaint card “flash”to indicate its high priority, he placed it on a con-veyor belt which ran through a glass partition to theradio dispatcher for the Buffalo Police Department.At 9:30 the dispatcher broadcast a report of a burg-lary in progress to patrol cars in the vicinity of Vic-toria Avenue in the city. Three minutes later the of-ficers who had responded to the call informed thedispatcher that there was no such address and thatthe highest number on Victoria was 195. At 9:34the dispatcher “cleared the call”, in effect tellingthe officers at the scene to disregard it. The dis-patcher himself took no further action on the call.

At approximately 9:42 Mrs. De Long was seenrunning from her house, unclothed and bleedingprofusely. She collapsed on the sidewalk in front ofher home. A neighbor called the Kenmore Policeand within a minute a police car responded—a fewminutes later paramedics arrived. However by 9:53she displayed no vital signs. An autopsy revealedthat she had been stabbed several times and haddied from loss of blood.

After filing a notice of claim against the cityand the county, the decedent's husband commencedan action seeking damages for wrongful death and





conscious pain and suffering.

At the trial it was shown that prior to 1975 theCity of Buffalo had adopted the 911 number as theone to call for emergency services, including policeand fire protection. At that time a person dialing thenumber within the city *302 would immediately beconnected with the Buffalo Police Departmentwhere a complaint writer would take the informa-tion and give it to a radio dispatcher who in turnwould contact the appropriate patrol cars or otheremergency vehicles. The complaint writers, origin-ally police officers and later mostly civilians, to-gether with the dispatchers were trained and super-vised by a lieutenant or acting lieutenant from theBuffalo Police Department. In March of 1975 ErieCounty formed a new agency known as Central Po-lice Services which took over the complaint writingfunction from the city and extended the 911 ser-vices to several communities beyond the city limits,including the Village of Kenmore. Thus in 1975and 1976 the telephone directory for Erie Countylisted 911 as the emergency number for the “localpolice”.

Under the system adopted by the county,however, a 911 call made within the City of Buf-falo or the extended area would not automaticallyconnect the caller with the police department servi-cing the caller's area. Instead the call would go tothe Center for Emergency Services which, pursuantto an agreement with the city, was located in theold 911 room in the Buffalo Police Departmentheadquarters. The stated purpose of the center wasto “accept telephone requests for emergency ser-vices for all Public Safety Agencies within the ser-vice area of the Center, and relay, transfer, or for-ward such requests to the Public **720 SafetyAgency concerned, without requiring the caller tore-dial another telephone number.” At this centerthe county employed its own complaint writersmany of whom, including the one who answeredthe call in this case, had held the same position withthe city. In accordance with the agreement the citywas required to provide training, supervision and

assistance to the complaint writers for a year ormore and was still doing so in October, 1976. ABuffalo police lieutenant or acting lieutenant re-mained in the room to coordinate the activities ofthe complaint writers and Buffalo police dispatch-ers and to furnish assistance of a supervisory naturewhen necessary.

Most of the procedures previously followed bythe city were adopted by the county and incorpor-ated in the “Manual for ***615 911 Services”. Themajor additional requirement *303 imposed by thecounty was that the complaint writers obtain in-formation concerning the location or municipalityinvolved so that the complaint could be forwardedto the police department or other emergency serviceresponsible for that area. This was the subject ofadditional training for those complaint writers whohad previously been employed by the city. Theywere further instructed to determine the origin ofthe call at the outset because calls from the citywere necessarily processed differently from thoseoriginating elsewhere. In the case of city calls thecomplaint card was placed on a conveyor beltwhich ran to the Buffalo police dispatcher's officein the room next to the center. For the noncity calls,buttons were installed at the complaint writer's deskwhich permitted him to immediately transfer thecall to the appropriate agency and monitor it to in-sure that the connection had been made and that thecall had been properly routed.

There was also a standard operating procedurefor cases in which officers responding to the sceneof a priority complaint reported “no such address”.In that event the dispatcher was required to notifythe lieutenant in charge or the complaint writer.They in turn would either replay the recording ofthe call to check the information or consult one ofthe street directories or “duplicate street” listingsavailable at the center to determine whether the ad-dress provided could be located in another com-munity.

The transcript of the recording and the testi-mony of various witnesses connected with the cen-



ter showed that the complaint writer had failed tocomply with the applicable regulations in severalrespects. He had neglected to obtain (1) the caller'sname, (2) the complete street address which wouldhave indicated Victoria Boulevard and not VictoriaAvenue as he assumed and (3) the name of the loc-ality or municipality where the call originated. Healso neglected to verify the information by repeat-ing it.

In addition, the police dispatcher completelyneglected to initiate the follow-up procedures. Hehad not notified the lieutenant in charge or the com-plaint writer that the investigating officers couldfind no such address. He had simply disregardedthe call because he assumed it was a “fake”.

*304 On the issue of damages for wrongfuldeath the plaintiff called an economist who, overthe defendants' objection, testified concerning thevalue of a housewife's services.

The jury returned a verdict for the plaintiffawarding $200,000 for conscious pain and sufferingand $600,000 for wrongful death. Each of the de-fendants was found 50% responsible for the loss.

The Appellate Division affirmed. Two Justicesdissented solely on the ground that a new trialshould be granted with respect to the amount ofdamages recoverable for the wrongful death.

On this appeal the defendants initially contend,as they did in the courts below, that the complaintshould be dismissed in its entirety because theyowed no special duty to protect the decedent froman attack by a third party. The argument is based onthe familiar rule that a municipality cannot be heldliable for negligence in the performance of a gov-ernmental function, **721 including police and fireprotection, unless a special relationship existedbetween the municipality and the injured party (see,e.g., Garrett v. Holiday Inns, 58 N.Y.2d 253, 460N.Y.S.2d 774, 447 N.E.2d 717; Florence v. Gold-berg, 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375N.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.2d595, 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.2d704).

This, of course, is not a case in which there wasno contact between the victim and the municipalityprior to her death. The plaintiff is not seeking tohold the defendants liable as insurers for failing to***616 protect a member of the general publicfrom a criminal act of which they were not awarebut should have anticipated and prevented (see, e.g., Weiner v. Metropolitan Transp. Auth., 55N.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, 313N.Y.S.2d 127, 261 N.E.2d 267). He is not urgingthat there should be a police officer on every corneror at every place where a crime is likely to occur(cf. Steitz v. City of Beacon, supra ). Nor is this acase in which the police refused a plea for assist-ance (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 of-fer assistance when confronted with a situation ar-guably requiring police intervention (e.g., Pinkneyv. City of New York, 40 N.Y.2d 1004, 391 N.Y.S.2d411, 359 N.E.2d 1001; Evers v. Westerberg, 32N.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 resourcesand available police services is a matter for the ex-ecutive and legislative branches to decide (Riss v.City of New York, supra ).

In this case the decision had been made by themunicipalities to provide a special emergency ser-vice which was intended and proclaimed to be moreefficient than normal police services. Those seekingemergency assistance were advised not to attemptto call the general number for the local police,which ironically might have avoided the tragedyencountered in this case, but were encouraged todial the 911 number to obtain a quicker response. In







































addition, and most significantly, the victim's pleafor assistance was not refused. Indeed she was af-firmatively assured that help would be there “rightaway”. Considering the fact that she was merely ablock and a half from the local police station, andwas not yet at the mercy of the intruder, it cannotbe said as a matter of law that this assurance playedno part in her decision to remain in her home andnot seek other assistance. Unfortunately, it only in-creased the risk to her life.

[1][2][3] Under similar circumstances it hasbeen held that a special relationship was created soas to require the municipality to exercise ordinarycare in the performance of a duty it has voluntarilyassumed. Thus a city may be held liable for neg-lecting to provide crossing guards for school chil-dren when it has voluntarily undertaken the taskwhich the children's parents could justifiably expectto be regularly and properly performed (Florence v.Goldberg, supra ). Similarly a municipality whichhas affirmatively certified a building as safe may beheld liable to the owners for injury caused byknown, blatant and dangerous violations (Garrett v.Holiday Inns, supra; but also see O'Connor v. Cityof New York, 58 N.Y.2d 184, 460 N.Y.S.2d 485,447 N.E.2d 33). The basic principle, as Judge Car-dozo observed, is this: “If conduct has gone for-ward to such a stage that inaction would commonlyresult, not negatively merely in withholding a bene-fit, but positively or actively in working an injury,there exists a relation out of which arises a duty togo forward” ( Moch Co. v. Rensselaer Water Co.,247 N.Y. 160, 167, 159 N.E. 896; see, also, Zibbonv. Town of Cheektowaga, 51 A.D.2d 448, 382N.Y.S.2d 152; app. dsmd. 39 N.Y.2d 1056, 387N.Y.S.2d 428, 355 N.E.2d 388).

**722 [4][5][6][7] *306 Whether a special dutyhas been breached is generally a question for thejury to decide (see, e.g., Florence v. Goldberg,supra, 44 N.Y.2d p. 197, 404 N.Y.S.2d 583, 375N.E.2d 763). But it should be emphasized thatwhether the municipality has acted reasonably de-pends upon the circumstances of the particular case.

When an emergency service is involved it must berecognized that the circumstances are often quitedemanding and that some mistakes will occur, evenwhen the service is well organized and conscien-tiously administered. Allowance must be made forthis and although any error, however slight, mayhave dire consequences it will not always justify anaward for damages. In this case, however, there wasample basis for the jury to conclude that neither de-fendant exercised ordinary care in the handling***617 of the call and that they should share re-sponsibility for the foreseeable consequences. Wehave therefore concluded that there is no basis forreversing and dismissing the complaint againsteither defendant.

[8][9] The defendants also contend that thecourt's charge to the jury concerning a special rela-tionship was deficient, particularly in view of thefact that the court failed to give the jury any specif-ic instructions with respect to the decedent's reli-ance. The defendants correctly observe that thiswas an essential element of the plaintiff's cause ofaction in this case. However, the defendants neg-lected to bring this omission to the court's attentionwhen the case was submitted to the jury and there-fore the issue is not preserved for review (CPLR4110–b; see, also, CPLR 4017). We would simplynote, as we have above, that there was evidence inthe record from which the jury could have found re-liance in this wrongful death action (cf. Noseworthyv. 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 de-fendants are entitled to a new trial with respect todamages for the wrongful death because the trialcourt permitted expert testimony concerning themonetary value of a housewife's services. This wasthe only legal issue which produced disagreementat the Appellate Division. A majority of that courtdecided not to follow earlier Appellate Divisionopinions which had precluded such testimony (*307Zaninovich v. American Airlines, 26 A.D.2d
































155, 271 N.Y.S.2d 866; Ashdown v. Kluckhohn, 62A.D.2d 1137, 404 N.Y.S.2d 461). The question hasfrequently arisen in other jurisdictions (see Admiss-ibility and Sufficiency of Proof of Value of House-wife's Services in Wrongful Death Action, Ann., 77A.L.R.3d 1175). This, however, is the first occasionthis court has had to address the issue.

[10][11] As a general rule the admissibility ofexpert testimony on a particular point is addressedto 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 ex-pert opinion is proper when it would help to clarifyan issue calling for professional or technical know-ledge, possessed by the expert and beyond the kenof the typical juror ( People v. Allweiss, 48 N.Y.2d40, 50, 421 N.Y.S.2d 341, 396 N.E.2d 735; Selkow-itz v. County of Nassau, 45 N.Y.2d 97, 408N.Y.S.2d 10, 379 N.E.2d 1140, supra; Doughertyv. Milliken, 163 N.Y. 527, 57 N.E. 757).

[12] Here the plaintiff called an economist tooffer his opinion of the market value of the types ofservices performed by the average housewife in thedecedent's circumstances. This evidence was relev-ant to the issue of damages on the wrongful deathcause of action which is fixed by statute as follows:“fair and just compensation for the pecuniary injur-ies resulting from the decedent's death to the per-sons for whose benefit the action is brought” (EPTL 5–4.3). When the decedent is a housewifewho is not employed outside the home the financialimpact on the survivors, aside from compensablelosses of a personal nature (see, e.g., Tilley v. Hud-son Riv. R.R. Co., 24 N.Y. 471), will not involve aloss of income but increased expenditures **723 tocontinue the services she was providing or wouldhave provided if she had lived.

[13] Undoubtedly most jurors have at least ageneral awareness of the various services per-formed by a housewife. It is doubtful, however, thatthey are equally knowledgeable with respect to themonetary equivalent of those services. Although itwas 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., 77A.L.R.3d 1175), that qualified experts are availableand may aid the jury in evaluating the housewife'sservices not only because*308 jurors may not knowthe value of those services, but also to dispel thenotion that what is provided without financial***618 reward may be considered of little or nofinancial value in the marketplace. We concludethat it was not an abuse of discretion to allow theexpert testimony in this case.

Accordingly, the order of the Appellate Divi-sion should be affirmed.

COOKE, C.J., and JASEN, JONES, MEYER, SI-MONS and KAYE, JJ., concur.

Order affirmed, with costs.

N.Y.,1983.De Long v. Erie County60 N.Y.2d 296, 457 N.E.2d 717, 469 N.Y.S.2d 611

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FIND Request: 7 A.D.3d 890, 895

Supreme Court, Appellate Division, Third Depart-ment, New York.

In the Matter of William F. McINTOSH, Respond-ent,v.

STATE of New York et al., Appellants.

May 13, 2004.

Background: Retired National Guard officerbrought article 78 petition seeking back pay, bene-fits, and emoluments of employment resulting fromdischarge from his civilian position with Divisionof Military and Naval Affairs (DMNA). The Su-preme Court, Albany County, Keegan, J., grantedapplication, and appeal was taken.

Holdings: The Supreme Court, Appellate Division,Cardona, P.J., held that:(1) officer was entitled to amend his petition to re-flect that respondents had revoked order that trans-ferred him to the Inactive National Guard (ING)and had retroactively promoted him to BrigadierGeneral;(2) evidence was sufficient to establish that militaryorder relieving officer from his civilian positionwith DMNA and transferring him to the ING hadbeen revoked; and(3) granting relief did not interfere with a militarypersonnel decision.

Affirmed.

West Headnotes

[1] Militia 259 12

259 Militia259k12 k. Civilian Employees and Contractors.

Most Cited CasesRetired National Guard officer who brought

article 78 petition seeking back pay, benefits, and

emoluments of employment resulting from dis-charge from his civilian position with Division ofMilitary and Naval Affairs (DMNA) was entitled toamend his petition to reflect that respondents hadrevoked order that transferred him to the InactiveNational Guard (ING) and had retroactively pro-moted him to Brigadier General in accordance withrecommendations of Army Board for Correction ofMilitary Records (ABCMR); respondents were notprejudiced by renoticed claim, since such proof wasalready in their possession. McKinney's CPLR3025(b).

[2] Militia 259 12


Most Cited CasesEvidence in article 78 proceeding was suffi-

cient to establish that military order relieving Na-tional Guard officer from his civilian position withthe Division of Military and Naval Affairs(DMNA) and transferring him to the Inactive Na-tional Guard (ING) had been revoked, entitling of-ficer to back pay, benefits, and emoluments of em-ployment related to his DMNA position; militaryexpert's affidavit and regulation governing prepara-tion of military orders indicated that subsequent or-der revoked both officer's transfer to ING and hisremoval from the DMNA position. McKinney'sCPLR 7801 et seq.

[3] Militia 259 12


Most Cited CasesGranting article 78 relief to retired National

Guard officer, awarding him back pay, benefits,and emoluments of employment resulting from hisdischarge from his civilian position with Divisionof Military and Naval Affairs (DMNA) after milit-ary order relieving him from that position was re-voked, did not interfere with a military personnel

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decision, but instead dealt with the aftermath of thatdecision and its effect on officer's position with theState. 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 inAlbany County, which granted petitioner's applica-tion, in a proceeding pursuant to CPLR article 78,to direct respondents to award full back pay, bene-fits and emoluments of employment to petitionerresulting from his discharge from the position ofChief of Staff within the State Division of Militaryand Naval Affairs.

An understanding of this complicated litigationcan only be gained through recitation of a portionof its extensive history. Petitioner, now retired, wasformerly a colonel in the New York Army NationalGuard (hereinafter NYARNG), considered to befederal employment. In 1986, while still holdingthat rank, petitioner was appointed to the civilianposition of Chief of Staff within the Division ofMilitary and Naval Affairs (hereinafter DMNA), astate agency. FN1 In February 1987, petitioner's su-perior, Adjutant General Lawrence Flynn, recom-mended that petitioner be promoted to BrigadierGeneral. Flynn then sought the required federal re-commendation of the appointment from the UnitedStates Department of the Army. However, bymeans of a “Report for Suspension of FavorablePersonnel Actions,” the promotion was held inabeyance pending the results of an investigation for“suspected improprieties.” According to petitioner,a charge of corruption was made against him in re-taliation for his refusal to reveal his testimony be-

fore a grand jury investigating fellow NYARNG of-ficers. The investigation against petitioner was ulti-mately closed without any finding of wrongdoing.Nevertheless, the promotion was not implementedand, by military order No. 119–030 dated June 21,1988, petitioner was relieved of his Chief of Staffposition and transferred from active status in theNYARNG to the Inactive National Guard(hereinafter ING) (see Military Law § 49), ostens-ibly for the purpose of ensuring that petitionercould not be accused of using his position to influ-ence an investigation by the State Inspector Gener-al's office.FN2 At the same time, petitioner was de-moted to a lower-paying position within the StateEmergency Management Office **383 (hereinafterSEMO), which became permanent in September1988.

FN1. Petitioner's title was originally re-ferred to as “Adjutant General” and his su-perior officer was called the “Chief ofStaff.” However, in 1988, the title“Adjutant General” under Military Law §13 was renamed “Chief of Staff,” and thetitle “Chief of Staff” under Military Law §11 was renamed “Adjutant General” (seeL. 1988, ch. 141).

FN2. There is some question as to whethersuch an investigation was formally in pro-gress at the time of petitioner's transfer. Afile in the record indicates that an investig-ation was commenced in February 1990and closed in June 1993.

Thereafter, on October 10, 1990, petitionerturned 55 years *892 old and was required, as a col-onel, to retire from NYARNG and be transferred tothe retired reserve in accordance with then-applicable federal law.FN3 This was reflected inmilitary order No. 203–019 dated October 19, 1990.In November 1990, petitioner commenced an actionin Supreme Court against certain State respondentsseeking damages as a result of, inter alia, the with-drawal of his promotion and transfer to the ING.Supreme Court (Williams, J.), found, inter alia, that














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federal departments also needed to be joined in theaction and dismissed the complaint “without preju-dice to renew[ ] the claims in a court of competentjurisdiction and serv[e] all necessary parties.”

FN3. The record establishes that if peti-tioner was promoted to Brigadier General,he would not have been required to retireuntil attaining 60 years of age in the year1995.

Petitioner thereafter pursued federal adminis-trative remedies including making an “[a]pplicationfor the Correction of Military Record” in June1991. Following various delays, the Army Boardfor Correction of Military Records (hereinafter AB-CMR), in June 1998 and October 1999 decisions,concluded, inter alia, that petitioner's removal fromthe Chief of Staff position was improper and his in-voluntary transfer to the ING was in violation of aNational Guard regulation stating that officers un-der a suspension of favorable personnel action arenot eligible for said transfer. The ABCMR alsonoted that it had no authority to correct state re-cords, but indicated that it would be in the interestof justice for petitioner's state NYARNG records tobe similarly corrected and, furthermore, that he re-ceive “back pay and allowances that he would havereceived had he not been transferred to [ING] andsubsequently discharged.” In October 1999, theSecretary of the Army, upon the recommendationof the ABCMR, ordered petitioner's federal Depart-ment of the Army records to be corrected to show“that [petitioner] was placed on the Retired List atage 60 in the rank of [Brigadier General] effectiveon 10 October 1995 and paying him the back pay towhich he is entitled under Federal law.”

In March 2000, petitioner wrote to John Fen-imore, Flynn's successor as Adjutant General, andrequested, inter alia, correction of his state records,reinstatement to the position of DMNA Chief ofStaff and “[p]ayment of the difference between thesalary [he] received as an employee of the [SEMO]and the salary [he] would have received as theChief of Staff DMNA.” On July 14, 2000, Fen-

imore indicated that the matter was being re-searched and petitioner could “expect a detailed re-sponse within the next two to three weeks.” Sub-sequently, in a letter dated March 16, 2001, Fen-imore stated that petitioner's removal*893 from theDMNA Chief of Staff position in December 1988was discretionary and could not be overturned.

Thereafter, petitioner filed a notice of petitionon July 12, 2001, requesting “full back pay, bene-fits and emoluments of employment as the positionof Chief of Staff would have entitled petitionerfrom June 20, 1988 through November 9, 1995,” aswell as an appropriate adjustment to his retirementbenefits. Respondents moved to dismiss. SupremeCourt (Keegan, J.) found, inter alia, that certain ofpetitioner's claims were untimely, and it otherwisedenied the motion. Respondents filed an answer inMarch 2002 that included an affidavit from PeterColloton, the DMNA Director of Military Person-nel, who noted that military orders had been issuedand **384 petitioner's state military records hadbeen corrected “in accord with the direction of theABCMR.” Petitioner had not previously receivedcopies of the military orders, dated August 26,1998, from the State Adjutant General's office re-flecting these changes.FN4 Among them were mil-itary order Nos. 238–008 and 238–010, which re-voked military order Nos. 119–030 and 203–019,respectively. Additionally, military order Nos.238–011 and 238–012 provided for petitioner's pro-motion to Brigadier General, effective June 20,1988 and for his retirement, effective October 10,1995.

FN4. Petitioner assumes that he did not re-ceive copies when they were originally is-sued in 1998 because he was dischargedfrom service at that time.

Upon review of these orders, petitionerrenoticed his petition asserting a new cause of ac-tion alleging, inter alia, that given DMNA's August1998 revocation of military order No. 119–030, theDMNA had already granted the majority of his re-quests and it was arbitrary and capricious for it to



deny him the remainder of his requested relief inMarch 2001. Given the circumstances surroundingthe new information provided by respondents, Su-preme Court permitted the amendment. The courtconcluded that respondents' March 16, 2001 refusalwas arbitrary and capricious and directed respond-ents to provide petitioner with back pay for theDMNA Chief of Staff position and other associatedbenefits for the period from June 1988 until Octo-ber 10, 1995. Respondents appeal.

Initially, we agree with Supreme Court's de-termination that the subject issues are not barred ontimeliness grounds. It is clear that, as acknow-ledged by respondents, petitioner's challenge, asclarified by the renoticed petition, is not from theoriginal determination demoting him in December1988. Instead, petitioner is challenging the rational-ity of respondents' March 2001 refusal to complywith his March 2000 request for favorable action inlight of, inter alia, respondents' issuance of correct-ive*894 military orders in August 1998. Con-sequently, the matters currently before this Courtfor resolution are not untimely.

[1] Next, respondents claim that SupremeCourt abused its discretion by allowing petitioner toamend the petition. We do not agree. “ ‘A partymay amend his pleading * * * at any time by leaveof court’ and that ‘[l]eave shall be freely givenupon such terms as may be just’ ” (Murray v. Cityof New York, 43 N.Y.2d 400, 404, 401 N.Y.S.2d773, 372 N.E.2d 560 [1977], quoting CPLR 3025[b] ). Here, petitioner amended his petition to re-flect the facts brought forth through Colloton's affi-davit, which established that respondents had re-voked the order that transferred petitioner to theING and had retroactively promoted petitioner toBrigadier General in accordance with the recom-mendations of the ABCMR. Since this proof wasalready in respondents' possession, they cannot suc-cessfully argue that they were prejudiced by therenoticed claim. Furthermore, in reference to preju-dice, respondents contend that Supreme Court ab-used its discretion by allowing petitioner to submit

additional affidavits even though the parties andSupreme Court had agreed that the filing of addi-tional affidavits would be prohibited. However, pe-titioner disputes that such an agreement existedand, although respondents raised that issue beforeSupreme Court, no ruling in their favor ensued.Clearly, Supreme Court was in a better position toresolve the attorneys' conflicting recollections. Inany event, it appears that respondents had sufficient**385 opportunity to respond through a letter brief.

[2] Turning to the merits, respondents raiseseveral arguments challenging Supreme Court's rul-ing that the administrative relief obtained by peti-tioner formed a sufficient basis for the award ofback pay, benefits and emoluments. Initially, re-spondents maintain that the military orders they is-sued in 1998 could not be construed as revoking orotherwise affecting petitioner's removal from theDMNA Chief of Staff position in 1988 because,inter alia, the “Chief of Staff” position referred toin military order No. 119–030 actually was an unre-lated federal position. Alternatively, they arguethat, even if the order did refer to that position, it isapparent from the language of military order No.238–008 that it only rescinded that part of militaryorder No. 119–030 which transferred petitioner tothe ING and did not affect that part relieving himfrom the Chief of Staff position. Therefore, sincethey maintain that the dismissal from the DMNAChief of Staff position remained intact, they con-tend that it was a nonreviewable exercise of milit-ary discretion (see Wenger v. Monroe, 282 F.3d1068 [2002] ).

On the other hand, petitioner sets forth anequally compelling*895 claim that military orderNo. 119–030 encompasses the DMNA position.Furthermore, petitioner provides proof, includingan affidavit from a military expert and the provi-sions of a national guard regulation governing pre-paration of military orders, which indicates that thelanguage of military order No. 238–008 effectivelyrevoked all of military order No. 119–030. Accord-ingly, petitioner argues that respondents' issuance












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of the revocation order rendered his removal fromthe DMNA Chief of Staff position void from theoutset.

[3] Based upon our review of the particularproof set forth in this record, we find that petitionersufficiently established that military order No.119–030 did, in fact, refer to the DMNA Chief ofStaff position and that military order No. 238–008revoked not only his transfer to ING, but also hisremoval from the DMNA Chief of Staff position.We further find that Supreme Court reasonably de-termined that respondents' revocation of militaryorder No. 119–030 rendered it void from the time itwas issued and, thus, it was arbitrary and capriciousfor respondents to deny petitioner the relief that hewould have been entitled to had the transfer not oc-curred and he retained the position of DMNA Chiefof Staff. We agree with Supreme Court that thegranting of such relief “is not interfering with amilitary personnel decision. Rather, it is dealingwith the aftermath of that decision and its effect onpetitioner's position with the State.” Therefore, weconclude that Supreme Court's decision is suppor-ted by the evidence and we cannot say it was an ab-use of discretion.

Given our resolution of the above issue, it isunnecessary to resolve the remaining argumentsraised 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. State7 A.D.3d 890, 776 N.Y.S.2d 381, 2004 N.Y. SlipOp. 03873

END OF DOCUMENT







Tab 4

FIND Request: 2009 WL 1438213, at *1, 4(The decision of the Court is referenced in a tablein the New York Supplement.)

Supreme Court, Erie County, New York.BUFFALO DEVELOPMENT CORP., Skydeck

Corporation, Saturn Development Corporation, Pe-titioners

v.NEW YORK STATE DEPARTMENT OF ENVIR-ONMENTAL CONSERVATION, Alexander Gran-

nis, 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 Respond-ents.

FREDERICK J. MARSHALL, J.*1 This Article 78 proceeding was the subject

of a Memorandum Decision by this Court datedJanuary 7, 2009. In that decision the Court did notspecifically address the petitioner's second claimfor relief and on May 5, 2009 petitioner's motionfor re-argument pursuant to CPLR 2221(2)(d)(2)was granted.

This Court, in dismissing the petition, relied onthe decision in Citizens' Environmental Coalition,Inc. v. New York State Department of Environment-al Conservation, 57 AD3d 1279, 2008 N.Y. Slip Op10092 [3rd Dept.2009], and found that the NYS-DEC's reliance on 6 NYCRR § 375–3.3(a)(2) didnot conflict with the clear language of the Environ-mental Conservation Law which established theBrownfield Cleanup program (see Title 14—Envir-onmental Conservation Law § 27–1401 et seq).

That regulation states that “In determining eligibil-ity, the Department shall consider only contamina-tion from on-site sources.” 6 NYCRR § 375–3.3(a)(2). Petitioner contends that even if that regula-tion is proper, it was still arbitrary and capriciousfor the DEC to deny eligibility by determining thatthe disputed parcels located at 267 Franklin Streetand 432 Pearl Street did not meet the “source” re-quirement. The DEC counters that those parcels,while contaminated, are not the source of that con-tamination and that, therefore, the DEC acted prop-erly in denying the petitioner's request to includethose parcels as Brownfield sites.

The term “source” or “source area” is definedin the Commissioner's regulations as “a portion of asite or area of concern at a site where the investiga-tion has identified a discrete area of soil, sediment,surface water or groundwater containing contamin-ants in sufficient concentrations to migrate in thatmedium or to release significant levels of contamin-ants to another environmental medium, which couldresult in a threat to public health or the environ-ment. A source area typically includes, but is notlimited to, a portion of a site where a substantialquantity of any of the following are present:

(1) Concentrated solid or semi-solid hazardoussubstances;

(2) Non-aqueous phase liquids; or

(3) Grossly contaminated media.

6 NYCRR § 375–1.2(au)

Petitioners contend that each of the parcels loc-ated at 267 Franklin and 432 Pearl meet that defini-tion and should be approved as part of the Brown-field site. They point to the affidavit of their expert,Paul H. Werthman, P.E. in which he states that bothproperties contain contaminants in sufficient con-centrations to migrate and will eventually releasethose contaminants to another environmental medi-um which could threaten the public health or the

Page 123 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.))











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environment. Werthman also states that the contam-ination found at 267 Franklin meets the definitionof “grossly contaminated media”. Thus, he assertsthat both parcels are a “source” of the contamina-tion as defined by the DEC's own regulation and,therefore, the DEC may not exclude those sites onthe basis that they are “off-site” parcels.

*2 DEC argues, and petitioner agrees, that theorigin of the main contaminant, perchloroethene(PCE), was a former dry cleaning establishmentlocated wholly within the boundaries of a parcelidentified as 275–277 Franklin Street. (See returnItem 22, Section 4.4, page 13; also affidavit of Mar-tin L. Doster, paragraph 18) That parcel was accep-ted by DEC as part of the approved Brownfield site.The essence of DEC's position is that it may ex-clude a parcel if it determines that the contamina-tion present did not originate within the boundariesof that parcel. At oral argument, the DEC pointed tothat part of the definition of “source” found in itsregulations that requires that the investigationidentify a “discrete area” of a medium containingcontaminants. 6 NYCRR § 375–1.2(au)

The phrase “discrete area” is not defined eitherin the statute or the regulations. The ordinary andcommon meaning of “discrete” according to Merri-am–Webster's Dictionary is “individually distinct”or “consisting of distinct or unconnected elements.”Nothing in the statute, regulations or commondefinition of “discrete” suggests that real propertyboundaries should be determinative of what a“source” of contamination is, or more importantly,how the scope of a Brownfield site is initially de-termined. Moreover, in determining eligibility, theDEC may “determine that contiguous properties orparcels, or only a portion of any proposed site,meets the statutory definition of brownfield site,'and may approve contiguous properties or parcelsor only a portion of a site for participation in thebrownfield cleanup program.” 6 NYCRR § 375–3.3(a)(4)(i)

This Court notes that the DEC has previouslyapproved as part of the Brownfield site, an adjacent

parcel known as 279 Franklin Street which appearsto contain lower levels of contaminants than theparcel at 267 Franklin which was not approved.(See Fig. 7, Return Item 22) And the parcel at 279Franklin was approved notwithstanding the fact thatit has never been identified as being a point of ori-gin (or source) of the contamination.

The DEC does not contest the finding that theground water at both 432 Pearl Street and 267Franklin Street is contaminated or that the contam-ination has migrated via groundwater to those sitesfrom the point of origin. (See letter of Dale A. Des-noyers, Exhibit 19 to volume 2, compendium of ex-hibits attached to petitioner's Notice of Petition) Inthe case of 432 Pearl Street, Mr. Desnoyers charac-terized the contaminants as marginal but goes on tostate that those “marginal levels were attributable toadvective diffusion in the ground water.” Readingthe Desnoyers letter in conjunction with the affi-davit of DEC Engineer Martin L. Doster, sworn toJune 25, 2008, it is clear that the PCE contaminantmigrated to the parcels located at 267 FranklinStreet and 432 Pearl Street with the point of originbeing the former dry cleaner site located at275–277 Franklin Street.

*3 Furthermore, respondent DEC has nevercontested that the contaminant PCE, in sufficientquantities, can be a threat to public health and theenvironment. Nor does the DEC contest the Werth-man conclusion that the parcel at 267 FranklinStreet contains “grossly contaminated me-dia”.Further support for the petitioner's position canbe found in prior legislative history. For example,in his comments on the draft revised regulations,former Member of the Assembly and now StateComptroller Thomas P. DiNapoli noted on page 44of those comments that “the proposed regulationsstate that in considering BCP's eligibility, the DECmay consider only that contamination from a sourceor sources located on the Brownfield' (see proposedPart 375–3.3(2))” (See Exhibit 4 to Respondent'sMemo. of Law in opposition to petition)

In response to those and other comments to the





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proposed Part 375 regulations, the DEC revised theproposed regulation 375–3.1(a)(2)(i) to change theon-site language to “consider only contaminationfrom on-site sources. (emphasis added) (See Re-sponse To Comments, Exhibit 5, page D6 to re-spondent's Memorandum of Law) The commentgoes on to state that “this is consistent with the re-medial programs' long history of addressing con-tamination at the source and working out from thesource.” (emphasis added) This change in language,which appears in the regulation in its final form,does not support the Attorney General's conclusionthat the phrase “on-site sources” is restricted to a“point of origin” interpretation. Rather, the com-ment supports petitioner's contention that the entireBrownfield site should include not only the areacontaining the point of origin of the contamination,but also those areas which have been affected viacontamination migration from the point of origin.

Thus it is clear that both parcels meet the defin-ition of “source” as defined by the DEC's own regu-lations.

The Court is well aware that “in a proceedingseeking judicial review of administrative action, theCourt may not substitute its judgment for that of theagency responsible for making the determination.”Flacke v. Onondaga Sys., 69 N.Y.2d 355, 507N.E.2d 282, 514 N.Y.S.2d 689. “[W]here ... thejudgment of the agency involves factual evaluationsin the area of the agency's expertise and supportedby the record, such judgment must be accordedgreat weight and judicial deference” ( Flacke, 69N.Y.2d @ 363). However, it is well settled law that,where “the question is one of pure legal interpreta-tion of statutory terms, deference to the[administrative agency] is not required” Matter ofToys “R” Us v. Silva, 89 N.Y.2d 411, 676 N.E.2d862, 654 N.Y.S.2d 100. Compare Matter of Light-house Pointe Prop. Assoc., LLC v. NYSDEC, 2009Slip. Op. 00878 [4th Dept.2009]

Such is the case here. In this challenge, peti-tioner does not seek to question the findings of theDEC as to location and concentration of contamina-

tion. Both parties to this dispute agree that the con-tamination has migrated from its original point oforigin so as to affect the four parcels which peti-tioner seeks to develop. The respondent DEC at-tempts to justify its conclusion that the two proper-ties in question do not meet the definition of“Brownfield site” by ignoring its own definition of“source” and thereby concluding that both parcelsare considered to be “off-site” and therefore in-eligible under 6 NYCRR § 375–3.3(a)(2).

*4 432 Pearl Street and 267 Franklin Streetmeet the definition of “source” because investiga-tion has identified a discrete area of groundwatercontaining contaminants (in this case PCE) “in suf-ficient concentrations to migrate in that medium, orto release significant levels of contaminants to an-other environmental medium, which could result ina threat to public health or the environment.” 6NYCRR § 375–1.2(au). 267 Franklin Street is alsoa “source” because there is a substantial quantity ofgrossly contaminated media on-site.

In his letter to the petitioner, Director Dale A.Desnoyers also justifies the refusal of the DEC toadmit these parcels as Brownfield sites by conclud-ing that both sites may be remediated by addressingthe “source” contamination found on the previouslyapproved Brownfield site. He also points to theavailability of the State Hazardous Waste RemedialFund as a means to clean up the two parcels in dis-pute. (See letter of Desnoyers, supra.) However,neither of these considerations are found either inthe statute or the regulations which define a Brown-field site. The DEC may not exclude the disputedparcels as Brownfield sites simply because thereexist alternative means to cleanse them of their con-tamination. And the mere existence of alternativemeans to remediate contamination does not compelthe conclusion of the DEC that the redevelopmentor reuse of these parcels will not be complicated bythe presence of a contaminant. The undisputedevidence points to the contrary.

In conclusion, the decision of the DEC to ex-clude 267 Franklin Street and 432 Pearl Street from






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eligibility as Brownfield sites was arbitrary and ca-pricious and its interpretation of its own regulationswas erroneous. Upon re-argument, the petition'ssecond claim for relief is granted and the DEC isdirected to designate 267 Franklin Street and 432Pearl Street as Brownfield sites.

N.Y.Sup.,2009.Buffalo Development Corp. v. New York StateDept. Of Environmental Conservation23 Misc.3d 1129(A), 889 N.Y.S.2d 504, 2009 WL1438213 (N.Y.Sup.), 2009 N.Y. Slip Op. 51001(U)

END OF DOCUMENT



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Tab 5

FIND Request: 20 Misc. 3d 566, 578

Supreme Court, Orange County, New York.DOWNEY FARMS DEVELOPMENT CORP., Pe-

titioner,v.

TOWN OF CORNWALL PLANNING BOARD,Respondent.

April 16, 2008.

Background: Developer brought Article 78 pro-ceeding against town planning board, contendingthat, due to bad-faith delays in review process on itsapplication for proposed subdivision, it had vestedrights to continue to proceed under prior version oflocal zoning law after amendment to zoning law up-zoned area encompassing proposed developmentfrom 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 best-case scenario, it was at least possible for it to haveobtained final approval and to have filed its platmap with county clerk prior to zoning law amend-ment;(2) dilatory actions by board and its consultantssupported “special facts exception” finding; and(3) declaration was warranted that, due to board'simproper delaying actions, developer obtained ves-ted rights, prior to amendment, to proceed with itssubdivision application under provisions of localcode as it existed before amendment.

Developer's petition granted.

West Headnotes

[1] Zoning and Planning 414 1352

414 Zoning and Planning414VIII Permits, Certificates, and Approvals

414VIII(A) In General

414k1350 Right to Permission, and Dis-cretion

414k1352 k. Change of regulations asaffecting right. Most Cited Cases

(Formerly 414k376)Developer contending that bad-faith delays in

town planning board's approval process for its ap-plication for proposed subdivision gave it vestedrights to proceed under prior version of local zon-ing law made threshold showing, through testimonyof its experts on subdivision law and engineering,that, in best-case scenario, it was at least possiblefor it to have obtained final approval and to havefiled its plat map with county clerk prior to amend-ment to zoning law, which up-zoned area encom-passing proposed development from one to twoacres for single family residences.



414VIII(A) In General414k1350 Right to Permission, and Dis-

cretion414k1352 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 de-veloper's subdivision application supported “specialfacts exception” finding in developer's Article 78action seeking determination that, due to board'sbad-faith delays, it had vested rights to continue un-der prior version of local zoning law, after amend-ment to zoning law up-zoned area encompassingproposed development from one to two acres forsingle family residences; some actions precipitatingotherwise avoidable delays were not explained, andothers, though seeming to be part of thorough andrigorous review process, appeared upon closer scru-tiny to have been designed to delay without justifi-able causes. McKinney's CPLR 7801 et seq.;McKinney's General Municipal Law § 239–n(2).

Page 120 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)




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affecting right. Most Cited Cases(Formerly 414k376)Cases involving “special facts” exceptions to

general rule that zoning application must be judgedupon the law as it exists at the time of zoningboard's decision inherently involve concepts of ves-ted rights, and therefore each matter must be de-termined according to its own unique circum-stances.





affecting right. Most Cited Cases(Formerly 414k376)Cumulative effect of action and inaction by

town planning board and its advisors, which en-gaged in discernable pattern of delay of progressionof developer's subdivision application, created sub-stantial delay that denied developer a fair opportun-ity to at least attempt to obtain timely final subdivi-sion approval and file its subdivision map beforelocal zoning laws were amended to up-zone areaencompassing proposed development from one totwo acres for single family residences, warrantingdeclaration that, due to board's improper delayingactions, developer obtained vested rights, prior toamendment, to proceed with its subdivision applic-ation under provisions of local code as it existedbefore amendment.

**543 Dorfman Knoebel & Conway, Nyack, attor-ney for petitioner.

Drake, Loeb, Heller, Kennedy, Gogerty, Gaba &Rodd, PLLC, New Windsor, attorneys for respond-ent.

ELAINE SLOBOD, J.*567 The Town of Cornwall amended its local

zoning law effective June 23, 2005. Among thechanges made at that time to the Town's code thearea on New York State Route 94 at the intersectionof Jackson Avenue in the vicinity of the BethlehemChurch, an historic landmark, was up-zoned fromone to two acres for single family residences.

On April 12, 2004, some fourteen months be-fore this zoning change, the petitioner, DowneyFarms Development Corp. (Downey Development)filed an application with the respondent PlanningBoard to subdivide “Lands of Comito” (Comito), aparcel of approximately 62.59 acres FN1 on Route94 situated generally to the east of Jackson Avenueand the Bethlehem Church. The subject parcel is bi-sected by Route 94. In its initial submission to therespondent Board, the petitioner proposed the cre-ation of 25 single family lots. On its 37 **544 acreparcel situated on the north side of Route 94 peti-tioner initially proposed the creation of 24 lots av-eraging approximately 1.5 acres in size, with onecontaining slightly less than 1 acre and two contain-ing slightly more than 2 acres. The 25 acre parcelon the south side of Route 94 contained significantdesignated wetlands with their attendant 100' bufferzones. The latter acreage is a natural drainage area,as well as the proposed drainage area for the stormwater runoff from the home sites petitioner seeks todevelop on the northern parcel. Because of the wet-land and buffer restrictions only one building sitewas proposed on the southern parcel.

FN1. The acreage is the aggregate of threeseparate tax parcels. Petitioner held title toone and was the contract vendee of the oth-er two.

At the time of petitioner's April 12, 2004 ap-plication, the bulk requirements of Cornwall's local
















code, as indicated, permitted single family resid-ences in this zone on one acre. In fact, in 2001 thepetitioner's principals had obtained final approvalfrom the respondent Board for “Downey Farms Es-tates” (Downey Farms), a single family subdivisionof 14 one acre lots situated in this same zone.While petitioner's instant application was wendingits way through the Planning Board's review pro-cess, the Town *568 Board of Cornwall began a re-view of the Town's Comprehensive Plan. That re-view culminated in amendments to the Plan includ-ing a recommendation for up-zoning the area inwhich petitioner's proposed Comito subdivisionwas situated. As it would turn out, the Town Board,effective June 23, 2005, amended its zoning code inconformity with the revised Comprehensive Plan byup-zoning petitioner's lands from one to two acrelots. That action effectively nullified petitioner's 24FN2 lot subdivision application which, as indicated,had been proceeding before the Planning Board un-der the prior one acre zoning. Notwithstanding ap-pearances at multiple work sessions, PlanningBoard meetings, submission of numerous plan revi-sions, 3 visual impact studies, an archeologicalstudy and a traffic study over more than 14 months,that plan had barely received preliminary subdivi-sion approval from the respondent when the zoningchanged.

FN2. Petitioner eliminated one of the ori-ginal 24 lots on the northern parcel bymerging two proposed adjoining lots intoone larger lot by simply removing the lotline between them.

Respondent argues that it was just acting dili-gently and without bad faith. Petitioner ascribes thecause of the delay to abusive administrative proced-ures by the respondent. Therefore, petitioner com-menced the instant Article 78 proceeding in whichit contended that because of respondent's bad faithdelays it had obtained vested rights to continue toproceed under the prior one acre zoning. Petitionerargued that the evidence of the respondent and itsadvisors' dilatory tactics established its entitlement

to a “special facts exception” from the general rulethat an application must be judged upon the law asit exists at the time of the Board's decision (seeMatter of Pokoik v. Silsdorf, 40 N.Y.2d 769,772–773, 390 N.Y.S.2d 49, 358 N.E.2d 874).

Respondent's motion to dismiss this proceedingpursuant to CPLR 7804(f) was denied by decision/or-der dated January 3, 2006. On August 4, 2006 afterfull paper submissions, the undersigned concludedby decision/order that sufficient factual issues hadbeen raised to suggest at least the possibility of“bad faith” (Hatcher v. Planning Board of the Vil-lage of Nelsonville, 111 A.D.2d 812, 813, 490N.Y.S.2d 559) or possibly of a combination of bothdeliberate and some innocent administrative pro-crastination by respondent (see Our Lady of GoodCounsel R.C. Church and School v. Ball, 45 A.D.2d66, 356 N.Y.S.2d 641, affd. on op. of App.Div.,**54538 N.Y.2d 780, 381 N.Y.S.2d 866, 345N.E.2d 338) to warrant a hearing.

*569 As a threshold issue, the petitioner wasdirected in the latter decision/order to be preparedto demonstrate by testimony from a disinterestedthird-party expert that, barring respondent's badfaith, it was “possible under a best case scenario”for it to have obtained final approval and to havefiled its map with the County Clerk prior to June23, 2005, the effective date of the amended ordin-ance.

Extensive testimony was given on this issuebefore the undersigned on five different daysbetween June 5, 2007 and July 23, 2007. Followingreceipt of trial transcripts, the parties submittedpost trial and reply briefs.

Threshold IssueTo satisfy the threshold question raised in the

decision/order of August 4, 2006, the petitioneroffered the testimony of Terry Rice, Esq., a recog-nized authority on subdivision law (Article 16 ofNew York's Town Law), particularly as that enact-ment relates to the complexities of zoning and sub-division procedures as they in turn are interwoven


















with the requirements of SEQRA (Article 8 of theECL).

The sum and substance of Mr. Rice's testimonywas to the effect that 12–13 months from initialsubmission would constitute a “generous” timeframe within which final subdivision approvalcould have been obtained from the respondentBoard and petitioner's plat filed with the CountyClerk. When pressed on cross-examination, re-spondent's own engineer, Mark Edsall, acknow-ledged that “if” the petitioner had been able to sat-isfy certain pre-conditions for final approval re-quired by statute, rule or imposed by the respondentBoard (i.e., SEQRA, County Health Departmentand Orange County Department of Planning's(OCDP) GML § 239–n reviews, Department ofTransportation (DOT) approval, etc.) it could havefiled its final plat before June 23, 2005, the effect-ive date of the amended code.

To provide an engineer's perspective of whatcould be a reasonable time-line for the progressionof petitioner's 24–25 lot application, the petitioneroffered the testimony of Thomas B. Vanderbeek, aprofessional engineer with a degree in civil engin-eering and water resources. Mr. Vanderbeek is anengineering consultant with substantial experiencein the area of drainage. He is a consultant for vari-ous municipalities in Rockland County. Mr.Vanderbeek has also acted as a project engineer fora number of single family subdivisions, includingseveral subdivisions in Orange County which re-cently had received *570 final approval, one in theTown of Goshen with 34 lots, another in the Townof Woodbury containing 67 lots. He also alluded toa larger 450 unit project in this County situated inthe Town of Woodbury.

In addition to creating time-line charts depict-ing best case scenarios for the theoretical progres-sion of a 24 lot subdivision application from sub-mission to final approval in 44 weeks, Mr. Vander-beek testified that his 34 lot Goshen subdivisionhad obtained County Health Department approvalwithin 4–5 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 possiblefor the Comito subdivision to have obtained finalapproval and plat filing by March 14, 2005. Addi-tionally, Mr. Vanderbeek observed that in his ex-perience he had never heard of a traffic study beingrequired for a modest subdivision of 24 lots. Norcould he recall a visual impact study being requiredfor a proposed drainage pond. Mr. Vanderbeek alsoindicated that certain items such as obtaining ap-proval**546 from the County Health Departmentand creation of a drainage district were routinelydeferred by a Planning Board as contingencieswhich, among others, make up the “conditions” of aConditional Preliminary Subdivision Approval. Theimplication being that in the Comito matter excess-ive time spent on these issues prior to preliminaryapproval was not warranted. Finally, he testifiedthat DOT approval of off-site improvements toRoute 94 would occur after the plat had been filed.

[1] Based on the above testimony and relatedexhibits, there is credible evidence that other gener-ally comparable subdivisions had been able to clearthird-party reviews, including the rigorous reviewof water and septic designs by the Orange CountyHealth Department, in as little as four to fivemonths. It also appears that a public hearing couldhave been scheduled and preliminary subdivisionapproval granted with many items imposed as con-ditions to that approval rather than as pre-conditions to preliminary approval FN3. As was thecase in the Downey Farms subdivision, the Boardcould have permitted petitioner to *571 pursuethese conditions simultaneously between prelimin-ary and final subdivision approval. Therefore, thisCourt is satisfied that petitioner has demonstratedthat in a “best case scenario” it was at least possiblefor it to have met the June 23, 2005 deadline if ithad acted diligently. The evidence as a whole inthis regard indicates that petitioner and its advisorsresponded in a timely manner to respondent's re-quests.




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FN3. Petitioner's Planning Board attorneytestified that petitioner was more or lesspressured into agreeing to several ques-tionable studies as preconditions for a pub-lic hearing and negative declaration afterthe Board's planning consultant signaledthat otherwise she was prepared to recom-mend a full environmental review with theconsequent inherent extended delays of anEIS.

However, satisfying the threshold issue of a“best case scenario” “possibility” does not end thematter, for the inquiry then turns to whether thereason petitioner's application was so far from finalapproval on June 23, 2005 was due to deliberatedelaying tactics and/or negligence of the respond-ent? If there is credible proof of such a nexus, a fi-nal inquiry arises, viz, whether the evidence sup-ports the further conclusion that any “bad faith”and/or innocent delays were in the aggregate sosubstantial that they effectively deprived petitionerof a fair opportunity to obtain and file a final platbefore June 23, 2005.

This Court finds that the evidence supports pe-titioner's position on both of these remaining issues.

DelayWhile there were a fair number of factors

which may have precluded an early vote on prelim-inary subdivision approval, the evidence does notsupport any valid reason for the respondent Board'sexcessive delay in the initial step of scheduling apublic hearing.

Since an EIS was not required in this matter,notwithstanding the make-work studies directed bythe respondent Board, a negative declaration shouldhave been filed and a public hearing held within 62days of receipt of a complete preliminary plat (sub-div. 5(d)(i)(1) of § 276 of the Town Law).

Subdivision E of § 125–5 of the General Codeof the Town of Cornwall also provided that:

“Within 30 days of receipt of such documentsin proper form [the Board] shall fix [a] date for [a]public hearing on the proposed preliminary plat ...”(emphasis supplied)

**547 “Proper form” constituted submission ofcopies of the “ preliminary plat” (emphasis sup-plied) and a “vicinity map” which petitioner hadprovided at the outset. Nevertheless, after receipt ofthese preliminary documents in April, 2004, the re-spondent Board, without good cause, delayedscheduling the public hearing for ten months by re-quiring near frivolous studies and then supplementsthereof.

*572 From the beginning of its review of theComito application, there is evidence that the re-spondent Board was disinclined to act in a timelymanner. Avoidance of the mandate of GML 239–n,subdivision 2 was perhaps the first indication of in-tentional or negligent delay. The office of the Or-ange County Department of Planning (OCDP) is theagency authorized by the Orange County Legis-lature pursuant to the provisions of subdivision(1)(a) of GML § 239–l to automatically receive, re-view and provide recommendations on local subdi-vision applications pursuant to the provisions ofGML § 239–n. The respondent Board was obligatedto refer the petitioner's preliminary request for con-sideration to the OCDP “ upon receipt of applica-tion for preliminary and/or final approval ” (GML§ 239–n subdiv. 2—emphasis supplied). The re-spondent Board would not grant preliminary ap-proval before receipt and consideration of the re-commendations of OCDP. Yet, referral was notmade to OCDP until ten months after petitioner'sapplication was filed and then only after the publichearing had commenced.

If a timely referral had been made, thenOCDP's recommendations (which after excessivedelay in referral had been returned to the respond-ent Board in less than 30 days) even if only in pre-liminary form could have been addressed by peti-tioner well before the first evening of the publichearing on February 7, 2005. As indicated, the re-



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spondent did not think to refer the matter to OCDPuntil three days after the February hearing.

The absence of OCDP's report was cited as oneof the reasons that the public hearing could not beclosed on February 7th. For some unexplained reas-on even after OCDP's report had been received byrespondent two days before the adjourned hearingdate of March 7th, the respondent was unaware ofits receipt. This lack of communication among therespondent Board and its advisors provided a basisto keep the hearing open for yet another month.

Although other factors may also have been atplay to keep the hearings open from February toApril, 2005, the lack of timely compliance with themandate of GML 239–n, subdiv. 2 and then thefailure to realize that a favorable recommendationfrom OCDP had been received constituted substan-tial reasons for delaying preliminary approval forapproximately two-three months. Delay attributedto this factor was conceivably greater when oneconsiders the fact that petitioner was placed in theposition of responding to OCDP's recommendationsafter the public hearing rather than prior thereto.

*573 Another force which kept the public hear-ing open was Board member Klosky's opposition toa motion to close the hearing in February 2005 be-cause, as he phrased it,

“I'm always thinking of things fun for consult-ants to do.” (emphasis supplied)

The fun thing he asked for was a report on the“quality of the existing stone walls ...” Read in isol-ation this request might not suggest that it couldhave been a pretext for delay. However, theminutes of the Board's September 7, 2004 meetingat which Comito was on the agenda, indicate thatMr. Klosky had also mentioned his concern for pre-serving stone walls at that **548 time. Yet he didnot assign this issue a priority in September so as torequest that the Board's consultants ascertain thequality of those walls. Nevertheless, five monthslater he suddenly changed his priorities and op-

posed closing the public hearing in order to give theBoard's consultants a “fun” thing to do. Since Mr.Klosky is himself a professor of engineering, it isdoubtful that he required the Board's Planning Con-sultant or Town Engineer to educate him as to theviability of the stone walls on Comito's northernparcel.

The scheduling of the public hearing was inpart also held up by the Board's insistence that theTown Supervisor first decide whether or not thedrainage basin proposed on petitioner's southernparcel should take the form of a municipal drainagedistrict. Allegedly, the Supervisor and the Town At-torney could not reach a consensus on this issue forthe better part of a year thus adding another in-gredient of delay to the progression of the Comitoapplication.

Even the seemingly uncomplicated decision ofthe Town's Highway Superintendent to issue awaiver for a 2 degree slope deviation for but a por-tion of the project's interior roadway, another pre-condition imposed for preliminary approval, tookalmost ten months. This delay prompted the Town'sEngineer to observe at one point that the petitionerhad been “very patient” waiting for this waiver. Asif to explain away his apparent tardiness, the High-way Superintendent's subsequent cover letter to theTown Engineer seems to imply that issuance of thatsimple waiver had been delayed because his de-cision had required “numerous meetings” with theEngineer.

Due to an initial drafting error by petitioner'sengineers, a question arose prior to the schedulingof the public hearing whether the designated wet-lands and buffers on the southern parcel also en-cumbered Comito's northern parcel. Respondent'sconsultants caused some minor delay by asking forclarification *574 of the issue even though theyalready had in their possession a very recent“NYSDEC Freshwater Wetland Boundary Valida-tion” map dated December 29, 2004 which conclus-ively established the fact that the wetlands and buf-fer did not extend into the northern parcel.




Once the public hearing was opened, otherdelays were caused by meaningless considerationgiven by the respondent Board to such issues as thepossible negative effect of petitioner's decision toeliminate one of the original 25 lots by combiningtwo contiguous lots. The respondent Board ap-peared inclined to respond to any suggestion whichwould cause delay to the Comito application in-cluding responding to a resident's misguided con-tention that a video existed depicting flooding inthe vicinity of the proposed detention pond when inreality the video when reviewed showed no suchthing.

The Courts normally are not permitted tosecond guess the judgments of local planningboards or question their motives. Yet the funda-mental premise for a “special fact exemption” is afinding of bad faith. Therefore, the motivation ofthe respondent Board becomes a paramount issue.In the context of the whole scenario of respondent'sprocessing of the Comito application, its decision todelay scheduling a public hearing until petitionerhad retained experts to prepare first one, then an-other visual study depicting the potential effectupon the Bethlehem Church of the proposed deten-tion pond appears highly suspect.

The half acre pond in question apparently willbe sited in a field at a point the length of two foot-ball fields from the **549 Church. The pond willbe located on the opposite side of both the statehighway and Jackson Avenue from the Church. Thepond site will be mostly obscured year round fromthe Church by trees and will be hidden, at least inpart, by a small 2'–4' earthen berm on the project's25 acre parcel situated on the south side of thehighway. Even the sight of the earthen berm will beshielded by the existing guardrail on Route 94. Re-spondent has not refuted petitioner's common senseargument that by simply placing a red flag(s) ortraffic cone(s) at the site of the pond and invitinginterested Board members to stand on the Church'ssteps, driveway, etc., would not only have permit-ted the Board members to have a clearer picture of

the pond's potential effects, but weeks, perhaps asmuch as two months could have been saved on peti-tioner's time-line by eliminating these studies. TheCourt notes that Mr. Klosky did not hesitate *575to make a field trip to the historic Church to ob-serve the existing traffic flow on Route 94.

Absent evidence that the local code establisheda “view shed” protecting other town residents'views of the historic Salisbury Trestle, the Courtalso finds more than suspect the Board's decision tomake petitioner produce a visual study of the poten-tial obstruction by Comito's proposed residentialstructures on others' ability to view the Trestle. TheCourt notes that the official County tax map forSection 1 of the Town of Cornwall appears to placethe residents whose views might allegedly be af-fected to be some 4,000 or more feet from theTrestle.FN4 It is significant that even the Board'sPlanning Consultant acknowledged that she had notseen the need for this Trestle study.

FN4. Tax map distances are not necessar-ily 100% reliable.

Petitioner's principals believe that they are in asomewhat unique position to offer at least a generalcomparative example to support their argument thatit was probable that they could have met the June23, 2005 deadline absent the machinations theyclaim were involved in respondent's processing ofthe subject subdivision. In May 2001 the Comitoshad obtained final subdivision approval from the re-spondent Board for Downey Estates, a 14 lot subdi-vision situated on 27.2 acres also on Route 94 buton the opposite side of Jackson Avenue from thesubject subdivision. Downey Estates is closer to theBethlehem Church and contiguous to both the his-toric Salisbury Trestle and Downey House.

Petitioner points out that based on their sub-mission of only a one sheet sketch plan of their 14lot Downey Estates subdivision, it was immediatelyaccepted for review (Comito submitted detaileddrawings of 16 pages). Within 2 months it had re-ceived the requisite Town Board approval to pro-



ceed as a cluster development (Comito is not acluster design).

In less than 6 months Downey Farms wasplaced on the respondent's agenda for a public hear-ing (Comito took 10 months). A negative declara-tion was voted upon on the first night of that publichearing. The hearing, at which no one from thepublic made comments (Comito drew strong publicobjection, including calls for delay until rezoningpassed), was then closed, and preliminary subdivi-sion approval granted that very night (Comito waskept open for 2 months). Downey Estates also fron-ted, and all its traffic accessed New York StateRoute 94 at a point approximately 1000 feet gener-ally west of Jackson *576 Avenue (Comito's trafficentered Route 94 approximately 1700 feet generallyeast of Jackson Avenue). However the respondentdid not require a traffic study (Comito requiredsuch a study as well as an addendum). Also, al-though Downey Farms actually adjoined**550 theSalisbury Trestle and visually impacted DowneyHouse, the respondent did not require a visual im-pact study of either of these historic sites (Comitorequired three visual studies).

It is significant that Downey Farms' prelimin-ary approval FN5 was conditioned on prospectiveapproval of the New York State Department ofTransportation (DOT), the Town's anticipated ap-proval of drainage specifications, anticipated futureagreement as to maintenance of the drainage areaand assumed future incorporation of unspecifiederosion control measures to protect an nearbystream. Indeed, in order to avoid, as respondent'sdraft negative declaration was phrased, “futuredelay to the applicant” the respondent Board in its2000 negative declaration acknowledged that it waseven granting conditional preliminary approval tothe petitioner's Downey Farms subdivision prior toreceipt of the Office of Parks Recreation and His-toric Preservation (OPRHP) determination of signi-ficance.

FN5. Preliminary approval is a precondi-tion to obtaining the crucial review of the

Orange County Board of Health.

The subject Comito subdivision is larger thanDowney Farms and must of necessity dischargestorm water from its northern parcel into a deten-tion pond on the south side of Route 94. Neverthe-less, there are enough similarities between the twoprojects for the Court to conclude without the ne-cessity of reading between the lines, that the subjectComito project was treated in a distinctly differentmanner because an amendment to the Town's Com-prehension Plan and the code's bulk lot area re-quirements for this zone were in the offing.

Superimposed on the actions of the respondentBoard are certain statements made by members ofthe Board which indicate that they were motivatedto delay the subject application until the zoningcode was amended.

Not only were members of the respondentBoard of necessity aware of pending changes to thebulk requirements for this zone, but they were notreluctant to express opinions publically suggestingthat the subject area should not be impacted by pe-titioner's 24 lot subdivision.

The following minutes of the respondentBoard's November 1, 2004 meeting which recordeda discussion by Board members *577 after petition-er and their attorney had left the meeting, stronglysuggest that at least one Board member was motiv-ated to delay petitioner's application until the zon-ing was changed:

“DISCUSSION

MR. HAZIRJIAN: What can we recommend tothe Town Board about this particular project[Comito] we just discussed? I mean, it was obvi-ous and I didn't have the, I don't know how to saythis nicely, they're pushing for that last lot thatthey don't have a well for, that's exactly the kindof out of control development these guys arelooking 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'tenough, what can we say to the Town Board?What can we say to the Town Board? How aboutchange the zoning quick? Isn't there somethingwe can say? Can't we examine this and say helpus?” (emphasis supplied)

Next, on December 14, 2004 respondent Boardmember Led Klosky appeared before the Corn-wall Town Board to make a statement at a publichearing on proposed changes to the Town's Com-prehensive Plan. In a three-page written **551presentation he urged the Town Board to adoptlower density zoning along Route 94 near theBethlehem Church “as soon as possible.” Hestressed that:

“ Time is of the essence here, and if action isn'ttaken quickly, that currently rural look on Route94 that we all treasure will be gobbled up by sub-divisions ...” (emphasis supplied)

Although Mr. Klosky indicated that he was ex-pressing his personal views, he nevertheless ad-ded that he “would be surprised if a majority of[his fellow Planning Board members] disagreedwith the ideas put forward” in his statement.

[2][3] “Special facts exceptions” cases such asMatter of Pokoik inherently involve concepts of“vested rights” (Marsh v. Town of Huntington, 39A.D.2d 945, 333 N.Y.S.2d 990), thus each mattermust be determined according to its own uniquecircumstances ( Matter of Estate of Kadin v. Ben-nett, 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 ona permit application, a court directed him to do so.Thereafter it took almost three months for him toact, at which time he denied the permit. Betweenthe date on which the petitioner subsequently filedan appeal with the ZBA and the date scheduled*578 for a hearing before that board, the villageamended its zoning ordinance thereby removing aproperty right to which petitioner previously had

been entitled. The Court of Appeals at p. 772–773characterized respondent's actions as obvious dilat-ory tactics and decried such administrative procras-tination calculated to deny rights to use land in acurrently lawful manner.

In Figgie v. Town of Huntington, 203 A.D.2d416, 610 N.Y.S.2d 563, the Town's Planning Dir-ector simply rejected a revised site plan for expan-sion of an existing building. The Director's initialexplanation was that the property was going to berezoned from light industry to residential. As forth-rightly as that site plan was initially rejected, theAppellate Division found that the failure to act onthe plan for that reason and then for alleged tech-nical deficiencies in the plans was designed to pre-vent the petitioner from developing his propertyprior to rezoning and therefore vested rights to theprior zoning code had been acquired.

By contrast, the circumstances surrounding theprogression of a subdivision application involve amyriad of possible interplays among the provisionsof Article 16 of the Town Law, GML 239–n, SE-QRA, local codes, etc. Those factors when added tothe broad scope of a Planning Board's discretion,make it difficult for a court to conclude that therewas such unreasonable delay, innocent or other-wise, 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.2d641 aff. on the App.Div. op. 38 N.Y.2d 780, 381N.Y.S.2d 866, 345 N.E.2d 338). However, in theComito matter the Court finds that there was evid-ence of enough dilatory actions by the respondentBoard and its consultants throughout the process tosupport a “special facts exception” finding. Someactions which precipitated otherwise avoidabledelays have not been explained, others, while ap-pearing just part of a thorough and rigorous reviewprocess, upon closer scrutiny appear to have beendesigned to delay without justifiable bases. Such aconclusion finds ample support in the words ofsome Board members.

There is no explanation for the Board's failure



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to follow the mandate of GML 239–n(2). Had refer-ral to OCDP been made even four months after re-ceipt of petitioner's**552 April 2004 application, assuggested in Mr. Vanderbeek's time-line, theCounty's recommendation could have been receivedwell before the public hearing in February 2005,thus avoiding that delay as well as the down timelost by petitioner when forced to respond to OCDPafter the close of the public hearing. *579 Had re-spondent known that the recommendation was inhand before the March 2005 hearing anothermonth's adjournment might have been avoided.

No serious attempt has been made to explainwhy the Town's Supervisor could not make a de-cision for the better part of a year as to the legalform the drainage basin document should take. Noris there an explanation why the Highway Superin-tendent took ten months to provide a 2 degree slopedeviation waiver for but a part of the interior road-way. There is an indication in the record that hewas prepared to issue the waiver some 5 or 6months earlier.

Also, unexplained was the delay caused by theBoard's requirement for a full traffic impact studyfor this modest 23 lot northern parcel (see Matter ofMorse v. Town of Gardiner Planning Board, 164A.D.2d 336, 342, 563 N.Y.S.2d 922). Board mem-ber Klosky made an exaggerated characterization ofComito as:

“a project of this magnitude going in at an inter-section such as Jackson Avenue I regard as being[an] extremely dangerous interaction [sic]. I wentout and observed it personally ...” (emphasis sup-plied)

The objective data collected in the Comito's de-tailed professional traffic study concluded thatRoute 94 in the vicinity of Comito's single accessroad onto Route 94, which was not at the intersec-tion but more than a quarter mile from the JacksonAvenue intersection was not in fact a high accidentlocation. The report's predictable conclusion wasthat Comito would not have a significant impact on

traffic. Even when the Board requested a supple-mental report in order to factor in the possible af-fect on Route 94/Jackson Avenue from traffic asso-ciated with “The Reserve”, a 450 unit developmentin a neighboring town, still no objective evidenceof adverse impact was revealed from what the sup-plemental report described as only a “fraction ofsecond delay” related to the sight generated trafficeffect of Comito.

The visual studies to determine the potentialimpact of the detention pond on the BethlehemChurch and the Trestle study are just as difficult tojustify, particularly when the actual impact of thepond could have been more accurately gauged by asimple visit to Church grounds by interested Boardmembers. The study to analyze potential visual ob-struction of the Salisbury Trestle was essentiallymeaningless since there was no recognizable legalright which could be enforced (see 1 N.Y.Jur. 2d,Adjoining Landowners §§ 61–64).

*580 The Court finds that at least four to fivemonths of unnecessary delays can be attributed tojust the GML § 239–n factors and visual and trafficstudies. Certainly the other enumerated factorscaused another one to two month delay.

Absent the combination of all these delays, itwas more than just possible for petitioner to havebecome one of that admittedly small group of sub-divisions which perhaps could have cleared HealthDepartment review and satisfied other conditions ofpreliminary approval within 4 to 5 months. Indeed,if petitioner had been made fully aware of the con-tents of the aforementioned comments made by cer-tain members of the respondent Board, it is morethan likely that petitioner also would have made“time of the essence” and therefore expedited its re-sponse to every request by the respondent.

**553 Conclusion[4] This Court finds that there is sufficient

evidence, both direct and circumstantial, establish-ing a discernable pattern by the respondent Boardand/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 inactioncreated a substantial delay which denied petitionera fair opportunity to at least attempt to obtaintimely final subdivision approval and file its subdi-vision map before June 23, 2005.

Accordingly, the Court grants the petition tothe extent that it hereby declares that due to re-spondent's improper delaying actions the petitionerhad obtained vested rights prior to June 23, 2005 toproceed with the subject 24 lot subdivision underthe provisions of the local code as it existed prior toJune 23, 2005.

Counsel are directed to pick up their hearingexhibits on or before April 30, 2008.

The above shall constitute the decision andjudgment of the Court.

N.Y.Sup.,2008.Downey Farms Development Corp. v. Town ofCornwall Planning Bd.20 Misc.3d 566, 858 N.Y.S.2d 542, 2008 N.Y. SlipOp. 28186

END OF DOCUMENT



Tab 6

FIND Request: 2006 WL 250520, at *11(The decision of the Court is referenced in a tablein 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 Guilor–Segal, Trustee, Mark D. Birn-baum, Trustee, Mitchell B. Beckerman, Trustee, asThe Board of Trustees of the Incorporated Villageof Great Neck, Kings Point Tenants Corp, Reckson

Operating Partnership, LP, United States PostalService, James E. Messineo, AHJ Associated, Uni-versal Utilities, Inc., Gail Crampton Streich, JoanEchausse, and Roy I. Mandelbaum, Esq., Executorof the Estate of Nancy Duhigg, Great Neck WaterPollution 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 ajudgment vacating and annulling Local Law No. 8of the Year 2004 on the grounds that it was adoptedby the Respondents, The Incorporated Village ofGreat Neck (the “Village”) and the Board of Trust-ees of the Incorporated Village of Great Neck (the“Board of Trustees”) (collectively referred to hereinas the “Municipal Respondents”), in violation ofthe New York State Environmental Quality ReviewAct (“SEQRA”) (Environmental Conservation Law§ 08–0101 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 landthat is currently improved with a variety of com-

mercial and industrial uses including two sewagetreatment plants, into a high and medium densityresidential community with a public park and prom-enade along Manhasset Bay in Nassau County. Ap-proximately 19 acres of such land is located in theVillage's former Industrial District and approxim-ately 8 acres of the land is located in the Village'sformer Business C District.

In order to implement their proposed action torezone the Village of Great Neck's Industrial andBusiness C Districts, the Municipal Respondents,including the Village of Great Neck and the Vil-lage's Board of Trustees, among other things, adop-ted Local Law No. 8 of the Year 2004 and LocalLaw No. 10 of the Year 2004. Local Law No. 8rezoned the Industrial District to a newly createdzoning classification known as the Waterfront De-velopment District. Similarly, Local Law No. 10rezoned the Business C District to a newly createdzoning classification known as the Mixed Use Dis-trict. The Local Laws took effect on March 15,2004, when they were filed with the New York Sec-retary of State.

The Petitioner, Waldbaum, Inc., owns a 2.4acre parcel of real property in the Village's formerIndustrial District and is allegedly adversely af-fected by Local Law No. 8. The Petitioner, there-fore, seeks a judgment pursuant to Article 78 of theCPLR vacating and annulling Local Law No. 8 ofthe Year 2004 on the grounds that it was adopted inviolation of the requirements of SEQRA and its im-plementing regulations, 6 NYCRR Part 617.

The Municipal Respondents, by and throughthe Village's Board of Trustees, were designated asthe “lead agency” for the purposes of this projectpursuant to SEQRA. (See, ECL 8–0101). In orabout October 2001, the Village's planner retainedFrederick P. Clark Associates, Inc. to conduct theinitial study for the Industrial and Business C Dis-tricts and to prepare a Draft Generic EnvironmentalImpact Statement (“DGEIS”) for the proposed ac-





tion, in accordance with the requirements of SE-QRA and the applicable regulations. (See, ECL8–0109(4); 6 NYCRR 617.8).

In November 2002, the “preliminary” DGEISwas completed. Although the DGEIS discussed the“relocation of some sewage treatment facilities tomore appropriate locations”, no further details re-garding the relocation of the sewage treatment fa-cilities were included in the preliminary DGEIS.Notably, the preliminary DGEIS also did not con-tain any proposed rezoning legislation.

*2 Thereafter, in January 2003, the VillagePlanner prepared a revised version of the“preliminary” DGEIS. The January 2003 DGEISrevealed that “[o]ne initiative currently being ex-plored is the relocation of a majority of the muni-cipal sewage facilities currently in the area to moresuitable locations. The combined sewer districts arepursuing a grant to utilize the existing sewage treat-ment facilities at the Cedar Creek site [inWantagh], resulting in the decommissioning of thefacilities in this area.”

With regard to the “Impact” of the project onthe existing sewer system, the Village Planner ref-erenced a letter from an attorney for the Great NeckWater Pollution Control District (the “Control Dis-trict”) which stated that the proposed action withwas within the Control District and that wastewatertreatment from the District's existing facilities wasavailable for the project. The letter allegedly furtherstated that “all collection system or treatment sys-tem improvements which are required to handle theadditional flow will be at the sole cost of the de-veloper.” See Exhibit 13 at p. II–30. This Courtnotes, however, that said letter was not producedfor this Court's consideration and therefore, itsveracity remains questionable.

In the “Impact” section of the January 2003DGEIS, the Village Planner stated: “[t]he proposedproject will cause an increase in flows to the treat-ment plant and additional demand for water. Thedegree of such impacts and the ability of existing

systems to meet such impacts will be determined inaccordance with the requirements of the controllingorganizations ...” (See, id at p.II–30). However, theVillage Planner in the DGEIS also stated that oneof the “significant beneficial impacts” of the pro-posed rezoning was the “relocation of some exist-ing Village sewage treatment facilities to more ap-propriate locations.” (See id at p. S–1). Thus, al-though the Village Planner, on the one hand, as-sumed that the sewage generated from the new res-idential and retail development would be treated atthe existing sewage treatment plants in the rezonedarea, the conceptual site plan in the DGEIS showedthe elimination of the sewage treatment plants andtheir replacement with residential and retail units.

On January 7, 2003, the Board of Trustees helda public hearing on the January 2003 DGEIS. Atthe public hearing, the then-Mayor of the Village,Stephen Falk, explained that it was Village's inten-tion to solicit proposals from recognized developersto redevelop the area. Although, in the instant peti-tion, Waldbaum alleges that Mayor Falk explainedat the public hearing that it was the Village's inten-tion to have the entire 27 acres redeveloped (see,Amended Petition, ¶ 62, emphasis added ) withoutthe entire transcript available for the Court's consid-eration, including pages 39–40 of the January 7,2003 transcript, this Court cannot assess the valid-ity of such allegation. However, to the extent thatthe transcript of the January 7th public hearing ismade available to this Court, it is undisputed thatthe Mayor and the Commissioner of the ControlDistrict acknowledged at the hearing that thesewage treatment plants were outdated and unableto comply with federal and state mandates requiringthe reduction of nitrogen emissions to the Long Is-land Sound. The Chairman of the Village's Board ofTrustees, 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 9–10).

*3 In addition to making public comments atthe hearings on the DGEIS, the New York Times,





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in an article appearing on March 2, 2003, entitled“Not in My Sewage Plant,” stated: “Mr. Falk saidthe linchpin of the plan is the removal of the twosewage plants, one belonging to the [Control Dis-trict], which serves parts of the dozen villages onthe peninsula and part of Manhasset, the other tothe Village of Great Neck.” See, Amended Petition,Exhibit E.

The Control District also commented on thepreliminary DGEIS. Pursuant to a letter datedMarch 3, 2003, the Control District stated that theconceptual site plan for the proposed redevelop-ment of the water front area incorrectly assumedthe closure of the sewage treatment plants and theredevelopment of the sewage treatment plants withresidential units. (See, Exhibit 20). Specifically, theControl District stated that its future “[w]ill be in-fluenced by a forthcoming study, and the results ofthat study are not presently known. Accordingly,the [Control District] has no plans to sell its prop-erty, and we recommend that the DGEIS be revisedto reflect this reality.” (See id).

Thereafter, in March 2003, the Village Plannerissued another version of the DGEIS. This DGEIScontained a revised conceptual site plan that contin-ued to show the elimination of the sewage treat-ment plant and its replacement with residentialunits and retail space. (See, Exhibit 19, Figure 2 atAreas A and B on the site plan). However, theMarch 2003 DGEIS included, for the first time theproposed language for the zoning legislation thatwould apply to the new Waterfront DevelopmentDistrict and the new Mixed Use District. TheMarch 2003 DGEIS contained the same “Impact”analysis regarding sewage and soil contaminationas the January 2003 DGEIS.

On March 4, 2003, the Board of Trustees heldanother public hearing on the DGEIS. Again, theMayor reiterated that the redevelopment projectwas directly related to and dependent on the sewerdiversion. He stated:

... I said all along if the diversion does not go

ahead, the development dies; ok? The diversion isa critical part of the development, but the diver-sion is of critical importance to the North Shore,to our plants. See, Exhibit 33, March 4, 2003Transcript, page 23.

Despite the Mayor's comments regarding whathe believed was possible, allegedly no expert reportwas submitted to the Village during the SEQRA re-view process which analyzed the nature and extentof the contamination in the rezoned area and thecost and feasibility of remediating such contamina-tion to residential clean up standards. (See, McKin-ney's ECL §§ 27–0900, 27–0916, 27–1313).

In April 2003, the Village Planner issued an-other revised DGEIS. The conceptual site plan inthe April 2003 DGEIS continued to show the clos-ure and elimination of the existing sewage treat-ment plants as part of the overall redevelopmentplan. It also listed as one of the “significant benefi-cial impacts” of the rezoning the “relocation of ex-isting sewage treatment facilities to more appropri-ate locations.” (See, Exhibit 24, page S–1). Non-etheless, on April 7, 2003, the Municipal Respond-ents issued a Notice of Completion of the DGEISand Notice of SEQRA Hearing. The notice in-formed the public that a DGEIS had been com-pleted and accepted by the Board of Trustees andthat a public hearing would be held on May 6,2003.

*4 At the May 6, 2003 public hearing on theDGEIS, the Mayor and the Board of Trustees askedthe public to limit their comments solely to therezoning. See, Exhibit 33, May 6, 2003 Transcript,pages 2–6. In fact, a member of the public askedthe Board if the proposed action assumed the clos-ure of the sewage treatment plants. See id at pages6–7. In response, the Village Attorney stated:

The Mayor had previously indicated that the di-version project is separate and apart from therezoning, this hearing has to do with rezoning.The diversion project is not the subject of to-night's public hearing. There will be public hear-







ings with regard to the diversion project, this isnot such a hearing.

The Mayor has indicated that the practicality ofthe rezoning, if the diversion project does not gothrough, will probably make the rezoning imprac-tical, but this hearing tonight is not with regard tothe diversion project, it is solely with regard tothe rezoning. See id at page 6.

One Village resident at the hearing voiced hisoutrage at the Village's refusal to discuss the sewerdiversion in connection with the rezoning, statingas follows:

On the subject of the rezoning, I would demandthat a full environmental impact study be doneafter the requisite [DGEIS] for the rezoning, be-cause the Mayor has made it abundantly clear,many times, that the rezoning hinges absolutelyon the diversion. Therefore, diversion is a propertopic tonight, Mr. Mayor—I'm making a com-ment, I'm not asking a question, I'm making acomment. You needn't look to your legal beaglehere for advice. You have said this many times,and I am going to hold you to that, that you mustconsider the diversion because of your statementsin public. And so I am demanding that full [EIS]be done that will cover the rezoning and the di-version that you have, yourself, many times, saidis absolutely essential for the rezoning.

See, Exhibit 33, May 6, 2003 Transcript, page11.

In June 2003, the Village Planner issued a Fi-nal Generic Environmental Impact Statement (the“FGEIS”). The FGEIS contained the Village's re-sponses to the various public hearings on theFGEIS. Although the FGEIS did not respond to thepublic's comments regarding the odors emanatingfrom the existing sewage treatment plants, nor didthe FGEIS address the environmental impact of in-creased discharges of treated sewage in to the LongIsland Sound, with regard to the public's commentsconcerning the ability of the existing sewage treat-ment plants to process the anticipated sewage flow

from the new development, the Village stated thatthe capacity of the existing system to handle the ad-ditional flow would be determined at a later datewhen a specific project is proposed and the de-veloper has supplied the Control District withsewage flow data. (See, Exhibit 33, page II–8).With regard to the public's comments concerningthe sewer diversion project, the Village took the po-sition that the diversion project was an independentproject and that it did not have to respond to thepublic's comments regarding the diversion. (See id,pages II–9 through II–12).

*5 Thereafter, on August 21, 2003, the Villagedeemed the FGEIS complete and accepted it. See,Exhibit 34. On September 3, 2003, the Board ofTrustees held a meeting at which it discussed howthe Village should proceed with the rezoning andthe SEQRA process. Additionally, at the September3, 2003 meeting, the Board of Trustees discussedhow the scope of the overall project had changedsince its inception and how the concept of forminga redevelopment authority with power to condemnproperties and transfer them to a single developerwas no longer feasible. At the conclusion of theSeptember 3, 2003 meeting, it was unclear how theVillage intended to proceed with the rezoning andthe SEQRA process.

On October 2, 2003, the Village Planner issueda memorandum containing proposed revisions tothe Waterfront Development District regulationsconsistent with the newly proposed conceptual siteplan submitted by the newly elected Mayor,Richard Deem. Among other things, the proposedrevisions expressly permitted “municipal facilities”(e.g., sewage treatment plants) as permitted uses inthe Waterfront Development District.

In December 2003, the Village Planner issued adocument entitled “East Shore Rezoning Environ-mental Assessment of Alternate Zoning.” This doc-ument purported to examine the environmental im-pacts of the October and December 2003 proposedrevisions to the zoning legislation. In the Environ-mental Assessment, the Village Planner concluded



that “the inclusion of commercial uses as principaluses and the density incentives or bonuses pertain-ing thereto will not result in any significant adverseenvironmental impacts and that a Negative Declara-tion should be prepared for the modified proposedaction.” See, Exhibit 41, page 5.

On February 3, 2004, the Board of Trustees ad-opted a Findings Statement pursuant to SEQRA andon February 17, 2004, the Board of Trustees held apublic hearing on the revised zoning legislation.The Petitioner, through its parent corporation, ap-peared at the hearing through its counsel and objec-ted to the rezoning citing the reasons set forth in theinstant Article 78 petition. Thereafter, the Petitionersupplemented its verbal objections to the proposedrezoning by letter dated March 1, 2004. Nonethe-less, on March 2, 2004, the Board of Trustees votedto adopted Local Law No. 8 and Local No. 10rezoning the Industrial and Business C Districts, re-spectively. The Local Laws became effective whenthey were filed with the Secretary of State onMarch 15, 2004.

Upon the instant proceeding, Petitioner seeks ajudgment vacating and annulling Local Law No. 8of the Year 2004 on the grounds that it was adoptedby the Municipal Respondents in violation of SE-QRA.

NEW YORK STATE ENVIRONMENTAL QUAL-ITY REVIEW ACT

(“SEQRA”)It is well settled that the primary purpose of

SEQRA is “[t]o inject environmental considerationsdirectly into governmental decision making.” (See,Matter of Coca–Cola Bottling Co. v. Board of Es-timate, 72 N.Y.2d 674, 679, 536 N.Y.S.2d 33, 532N.E.2d 1261). To achieve these purposes and goals,SEQRA imposes procedural and substantive re-quirements upon the agency charged with decisionmaking in respect to proposed “actions.” The Courtof Appeals in WEOK Broadcasting Corporation v.Planning Board of the Town of Lloyd, 79 N.Y.2d373, 583 N.Y.S.2d 170, 592 N.E.2d 778, best sum-marized the regulatory framework of SEQRA as

follows:

*6 Whenever it is determined that a proposed“action” may have a significant effect on the en-vironment, a [Draft Environmental Impact State-ment] is required to be prepared and various otherprocedural steps are to be taken including solicit-ing comments on the DEIS, holding public hear-ings when appropriate (ECL 8–0109, 8–0105[7];6 NYCRR 617.8 ) and preparing and filing a[Final Environmental Impact Statement] in re-spect to which comments are solicited and anyfurther appropriate public hearing held (6 NYCRR617.10[g] ). In addition to the procedural require-ments, SEQRA imposes substantive requirementswhich include listing the various types of inform-ation that must be included in the EIS, a descrip-tion of the proposed action with an assessment ofits environmental impact and any unavoidable ad-verse environmental effects (ECL828–0109[2][a]–[c] ) and mitigation measuresproposed to minimize the environmental impact (ECL 8–0109[2][f] ). If an agency proposes to ap-prove a project, it must consider the FEIS andprepare written findings that the requirements ofSEQRA have been met (ECL 8–0109 [8] ). Itmust also prepare a written statement of the factsand conclusions in the FEIS and comments reliedupon and the social, economic and other factorsand standards which form the basis of its decision(6 NYCRR 617.9[c] ). Put differently, the agencymust take a sufficiently “hard look” at the pro-posal before making its final determination andmust set forth a reasoned elaboration for its de-termination (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, 415–416, 503 N.Y.S.2d298, 494 N.E.2d 429, supra). Where an agencydetermines to reject a proposed project, it mustlikewise take a sufficiently “hard look” and setforth a reasoned elaboration for its determination(see, Matter of Jackson v. New York State UrbanDev. Corp., supra, at 416, 503 N.Y.S.2d 298, 494N.E.2d 429). As we have only recently observed,
































“[a]n agency's compliance with its substantiveSEQRA obligations is governed by a rule of reas-on and the extent to which particular environ-mental factors are to be considered varies in ac-cordance with the circumstances and nature ofparticular proposals” ( Akpan v. Koch, 75 N.Y.2d561, 570, 555 N.Y.S.2d 16, 554 N.E.2d 53,supra; see also, Matter of Jackson v. New YorkState Urban Dev. Corp., 67 N.Y.2d 400, 503N.Y.S.2d 298, 494 N.E.2d 429, supra ).

See, WEOK Broadcasting Corporation v. Plan-ning Board of the Town of Lloyd, supra.

In this case, the petitioner, Waldbaum, con-tends that the Village violated SEQRA by: (i) enga-ging in improper “segmentation” of its environ-mental review of the rezoning; (ii) failing to takethe requisite “hard look” at several key areas of en-vironmental concern prior to adopting the rezoning;(iii)failing to consider whether a SupplementalGeneric Environmental Impact Statement(“SGEIS”) was necessary after the Village changedthe proposed action after the acceptance of theFGEIS for the proposed action and after the Peti-tioner presented the Village with substantial evid-ence of inadequacies in the GEIS that was preparedby the Village; and (iv) failing to strictly adhere toother procedural requirements of SEQRA.

JUDICIAL REVIEW*7 The Court of Appeals has repeatedly made

it clear that the Court's role in reviewing SEQRAdeterminations is as follows:

The often stated rule regarding our role in re-viewing SEQRA determinations needs no exten-ded discussion; it is not to weigh the desirabilityof any proposed action or to choose among al-ternatives and procedural requirements of SE-QRA and the regulations implementing it ( Mat-ter of Village of Westbury v. Department ofTransp., 75 N.Y.2d 62, 66, 550 N.Y.S.2d 604,549 N.E.2d 1175), but to determine whether theagency took a “hard look” at the proposed projectand made a “reasoned elaboration” of the basis

for its determination ( Matter of Jackson v. NewYork 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 hardlook and make a reasoned elaboration, or its de-termination is affected by an error of law, or itsdecision was not rational, or is arbitrary and ca-pricious 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, 509N.Y.S.2d 499, 502 N.E.2d 176; Matter of Jack-son v. New York State Urban Dev. Corp., supra;see generally, 55 N.Y. Jur 2d, EnvironmentalRights, § 65).

See, WEOK Broadcasting Corporation v. Plan-ning Board of the Town of Lloyd, supra.

The WEOK Court defined “substantial evidence”as:

“[b]eing such relevant proof as a reasonable mindmay accept as adequate to support a conclusionor 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 kindof evidence on which responsible persons are ac-customed to rely in serious affairs' (People ex rel.Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d332, 485 N.E.2d 997).”

* * *

Although a particular kind or quantum of“expert” evidence is not necessary in every caseto support an agency's SEQRA determination topermit SEQRA determinations to be based on nomore than generalized, speculative comments andopinions of local residents and other agencies,would authorize agencies conducting SEQRA re-views to exercise unbridled discretion in makingtheir determinations and would not fulfill SE-QRA's mandate that a balance be struck betweensocial and economic goals and concerns about theenvironment (see, Matter of Jackson v. New YorkState Urban Dev. Corp., supra ). Nor could it be


































said that such a determination accords with “arule of reason” (see, Akpan v. Koch, supra ). See,WEOK Broadcasting Corporation v. PlanningBoard of the Town of Lloyd, supra

Thus, with these guidelines in mind, this Courtwill address each of Petitioner's alleged SEQRA vi-olations, in turn.

ALLEGED SEQRA VIOLATIONS1. Improper Segmentation.

Petitioner contends that the Village engaged inimproper “segmentation” of its environmental re-view of the rezoning.

It is impermissible under SEQRA to “segment”the environmental review of a proposed action.“Segmentation” is defined as “the division of theenvironmental review of an action such that variousactivities or stages are addressed as though theywere independent, unrelated activities, needing in-dividual determinations of significance.” 6 NYCRRsection 617.2(a)(g). The practice of improperly di-viding a single project into separate projects toevade consideration of their cumulative effects un-der SEQRA is known as segmentation. See, City ofBuffalo v. New York State Dep't of Env. Conserva-tion, 184 Misc.2d 243, 707 N.Y.S.2d 606. UnderSEQRA, consideration of “only a part or segmentof an action is contrary to the intent of SEQRA[r]elated actions should be identified and disclosedto the fullest extent possible.” 6 NYCRR section617.3(g)(1). The Court of Appeals in the case of Inthe Matter of Save the Pine Bush, Inc. et. al. v. Cityof Albany et. al., (70 N.Y.2d 193, 200, 518N.Y.S.2d 943, 512 N.E.2d 526), held that “... whenan action with potential adverse effects on the en-vironment is part of an integrated project designedto balance conflicting environmental goals within asubsection of a municipality that is ecologicallyunique, the potential cumulative impact of otherproposed or pending projects must be consideredpursuant to SEQRA before the action may be ap-proved.”

*8 In this case, Petitioner contends that the Vil-

lage improperly segmented its environmental re-view of the proposed rezoning by failing to con-sider the environmental impacts of a related projectthat is part of the Village's long term plan for theredevelopment of the rezoned area, mainly the pro-posed closure of two of the Village's sewage treat-ment plants in the rezoned area and the diversion ofthe Village's sewage to the south shore of Long Is-land for treatment and discharge.

The Municipal Respondents counter Petition-er's contentions with the argument that “[t]he sewerdiversion project was part of a completely separatejoint initiative that [is] not under the direct jurisdic-tion of the Village.” (See, Respondent's Memo ofLaw, ¶ B). The Respondents further state that“[a]lthough at one time discussed as a potential in-termunicipal initiative, the sewer diversion neverwas and still is not necessary to the Proposed Ac-tion.” (See Respondent's Memo, Argument I). ThisCourt finds Respondents' arguments to be entirelymeritless.

Pursuant to 6 NYCRR 617.3(k)(1), “[i]f a leadagency believes that circumstances warrant a seg-mented review, it must clearly state in its determin-ation of significance and any subsequent[environmental impact statement] the supportingreasons and demonstrate that such review is clearlyno less protective of the environment. Related ac-tions should be identified and discussed to thefullest extent possible.” See, 6 NYCRR 617.3(k)(1)(emphasis added). In this case, the Village, as thelead agency herein, did not properly consider thesewer diversion project being planned for Villageof Great Neck. In fact, the DGEIS for the rezoningconfirmed the Mayor of the Village' s statementsregarding the interrelationship of the two projects.It is explicitly stated in the DGEIS that one of the“significant beneficial impacts” of the rezoningidentified in the DGEIS was the “relocation ofsome existing Village sewage treatment facilities tomore appropriate locations.” See, Exhibit 24. Yet,the Village never gave any explanation as to whysegmentation 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, 633N.Y.S.2d 805).

Respondents further argue that, as a matter ofpolicy and law, segmentation does not exist wherefuture actions are speculative. ( See, Vill. Of Tarry-town v. Planning Bd., 292 A.D.2d 617, 621, 741N.Y.S.2d 44). Specifically, Respondents argue that“although at one time discussed as a potential inter-municipal initiative, the sewer diversion never wasand still is not necessary to the Proposed Action.”(See, Respondent's Memo of Law, page 14, emphas-is in original).

Petitioners have, however, sufficiently estab-lished by submitting, inter alia, the statements bythe Mayor of the Village, that a long range plan,one that is not speculative, existed for the develop-ment of Great Neck and that “the diversion processis the key to this development.” (See, Exhibit 33,January 7, 2003 Transcript, p. 133). In fact, basedupon a plain reading of the Village's own“conceptual site plan” for the redevelopment of therezoned area, which site plan is set forth in theDGEIS, it is explicitly acknowledged that the loca-tion of the existing sewage treatment plants are re-developed with residential units and retail space.The proposed redevelopment therefore involved theclosure of the existing sewage treatment plants andthe diversion of the Village's sewage to a new loca-tion for treatment.

*9 In addition, Petitioner's exhibits include anews article about the interrelationship between thetwo projects wherein the Mayor of the Villagestated that the closure of the sewage treatmentplants was the “linchpin” of the rezoning. (See, Pe-titioner's Memo of Law, p. 9). Thus, clearly, theclosure of the sewage treatment plants introducesadditional possibilities for adverse environmentaleffects; those effects should have been properlyconsidered in a cumulative review process prior tothe adoption of the Local Laws. The record of pro-ceedings in this case establishes that the Village' srezoning of the Industrial District is related to the

proposed closure of the sewage treatment plantsand that both projects are part of a long range planby the Village to redevelop the Industrial Districtinto a high and medium density residential com-munity.

2. Failure to take a “Hard Look” prior to adoptingthe rezoning.

Among Petitioner's primary contentions is thatthe determination made by the Village was flawedbecause the Village failed to take a “hard look” atseveral key areas of environmental concern relatedto the rezoning in connection with its environment-al review. Petitioner's claim this is especially truefor the following environmental impacts associatedwith the rezoning: (a) the closure of the sewagetreatment plants and the diversion of sewage; (b)the development of high and medium density resid-ential units in close proximity to the existingsewage treatment plants; (c) the impact of the addi-tional sewage from the development on the waterquality of the Long Island Sound; (d) the soil andgroundwater contamination in the rezoned area; and(e) the dredging of Manhasset Bay and the exten-sion of the shoreline to construct a public promen-ade.

As stated above, “A court's authority to exam-ine a SEQRA review conducted by an agency thatwas required to do so is limited to reviewing wheth-er the determination was made in violation of law-ful procedure, was affected by an error of law orwas arbitrary and capricious or an abuse of discre-tion.” ( Gernatt Asphalt Prods. v. Town of Sardinia,87 N.Y.2d 668, 688, 642 N.Y.S.2d 164, 664 N.E.2d1226). Thus, the question before this court is“whether the agency identified the relevant areas ofenvironmental concern, took a hard look ‘at themand made a reasoned elaboration’ of the basis forits determination.” ( Matter of Jackson v. New YorkState Urban Dev. Corp, supra at 417, 503 N.Y.S.2d298, 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 Coali-tion 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 responseto the Petitioner's allegation, that the Village failedto take a hard look at several environmental aspectsof 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.2d23) argue that the Petitioner's claims are barred bythe doctrine of exhaustion of administrative remed-ies. Specifically, Respondents' sole argument isthat, as the petitioner did not comment upon or oth-erwise raise the issues raised in the second cause ofaction (alleging failure to take a hard look) duringthe lengthy and extensive public comment periodprior to the Village Board' s adoption of the FGEISor the Findings Statement, under the exhaustion ofadministrative remedies doctrine, the petitioner'sclaims are barred.

*10 It is well settled that SEQRA allows an ad-ministrative agency or governmental body consid-erable latitude in evaluating the environmental im-pacts and alternatives discussed in an environment-al impact statement to reach a determination con-cerning a proposed project. (See, Aldrich v. Pattis-on, supra at 267, 486 N.Y.S.2d 23). “While an[environmental impact statement] does not requirea public agency to act in any particular manner, itconstitutes evidence which must be considered bythe public agency along with other evidence whichmay be presented to such agency ... Thus the gener-al substantive policy of the act is a flexible one. Itleaves room for a responsible exercise of discretionand does not require particular substantive resultsin particular problematic instances.” ( Matter ofTown of Henrietta v. Department of Envtl. Conser-vation ., 76 A.D.2d 215, 222, 430 N.Y.S.2d 440).

Applying the doctrine of exhaustion of admin-istrative remedies, courts have refused to review adetermination on environmental matters based uponevidence or arguments not presented during theproceeding before the lead agency. ( Matter ofTown 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 Re-spondents correctly cite the Second Department's1985 decision in Aldrich v. Pattison for the prin-ciple that “[t]he doctrine of exhaustion of adminis-trative remedies requires litigants to address theircomplaints initially to administrative tribunals,rather than to the courts, and ... to exhaust all pos-sibilities of obtaining relief through administrativechannels before appealing to the courts” ‘ (See,Aldrich v. Pattison, supra at 268, 486 N.Y.S.2d 23),where environmental matters are involved, the Re-spondents have failed to take into consideration theCourt of Appeals subsequent decision in Jackson v.New York State Urban Development Corp., (67N.Y.2d 400, 503 N.Y.S.2d 298, 494 N.E.2d 429).

In Jackson, the petitioners argued, among otherthings, that the lead agency's environmental reviewof the proposed action was improper because thelead agency failed to consider the environmentalimpact of the proposed action on archaeological re-sources and a water tunnel. (See id at 426–28). Thelead agency countered by arguing that the petition-er's archaeology and water tunnel claims werebarred by the doctrine of exhaustion of remediesbecause the petitioners did not raise them duringthe SEQRA review process before the lead agency.

The Court of Appeals disagreed with the leadagency, finding that the doctrine of exhaustion ofadministrative remedies did not foreclose judicialreview. (id p. 427). Instead, the Court found thatthe petitioners' failure to raise the issues at the ad-ministrative level was merely a factor to be con-sidered in determining whether the lead agency ac-ted reasonably in failing to consider the issues in itsenvironmental review of the proposed action.

Thus, even assuming that the Petitioner failedto raise its SEQRA objections during the proceed-ings before the Municipal respondents, such a fail-ure does not foreclose judicial review of those ob-jections herein. Therefore, this Court is left to de-termine whether the Municipal Respondents actedreasonably 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 Respond-ents improperly segmented the rezoning and thesewage diversion projects, based upon the paperssubmitted for this Court' s consideration, includingthe Expert Affidavits of Theresa Elkowitz and Dav-id Stolman, submitted in support and in oppositionto the within Article 78 petition, respectively, thisCourt finds that the Village in fact failed to take a“hard look” at the environmental impacts of closingits sewage treatment plants. For example, this Courtis not convinced that the Board of Trustees, as thelead agency, took a “hard look” at the environment-al impacts of having to excavate streets to lay ap-proximately 6.5 miles of underground piping toconnect the Village's sewer lines to Nassau Countylines; nor did the Village consider the impacts onthe water quality of the Atlantic Ocean.

B. Residential Units in Close Proximity to the Ex-isting Sewage Treatment Plants

It is abundantly clear that during the SEQRAReview Process, the noxious odors emanating fromthe existing sewage treatment plants and their neg-ative impact on existing, residential houses in thevicinity of plants were discussed at several hear-ings. Nonetheless, the Village never consideredhow these odors might impact the new residentialdevelopment that would be constructed in the vicin-ity of the plants under the new zoning.

C. Water Quality of Long Island SoundAt the public hearings, the Village admitted

that its sewage treatment plants are functionally ob-solete and need to be rebuilt in order to complywith the federal and state environmental standards.During its environmental review, however, the Vil-lage failed to consider the environmental impactson the water quality of Long Island Sound of in-creased discharges of sewage from its obsoleteplants that would be caused by the sewage from thenew development envisioned by the rezoning.

D. Soil and Groundwater Contamination in theRezoned Area

It is undisputed that in the January 2003DGEIS, the Village Planner acknowledged that itwas in receipt of environmental reports regardingthe Petitioner's vacant property and that said reportsconcluded that “portions of the site contain pollu-tion levels that exceed NYSDEC soil clean up ob-jectives,' and that these isolated hot spots' should beremoved in accordance with NYSDEC guidelines.”The report also recommended follow-up groundwa-ter testing. (See Exhibit 13 at p. II–15). Moreover,the DGEIS for the rezoning stated that a FOIL re-quest for information regarding contamination inthe rezoned area was filed with the DEC and thatthe DEC never responded. (See Exhibit 24 at p.II–15). However, there is no indication that the Vil-lage took any further action to identify and clean upthe contamination in the rezoned area. It simplyrezoned the properties without considering whetherthe residential standards had been met.

E. Dredging of Manhasset Bay and Extension ofShoreline to Construct a Public Promenade

*12 As part of its long range plan for the re-development of the Industrial District, the Villagesought to dredge Manhasset Bay and use the dredgespoils to extend the shoreline of the industrial dis-trict. However, in a letter dated March 31, 2004, theDEC specifically informed the Village that the con-struction of a public promenade along the shorelinewould require a DEC tidal wetlands permit. (See,Exhibit 48). Nonetheless, without having evaluatedthe impact of extending the shoreline on existingtidal wetlands, the Village adopted the rezoningmeasures challenged herein.

Based upon the foregoing, this Court finds thatthe Petitioners have adequately demonstrated thatthe Village failed to take a “hard look” at severalkey areas of environmental concern to the rezoning.

3. Failure to Prepare an SGEISPursuant to SEQRA, a Supplemental Environ-

mental Impact Statement (SEIS) may be requiredfor significant environmental impacts not addressed



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or inadequately addressed in the EIS arising from:(I) changes in the proposed project; (ii) newly dis-covered information; and (iii) a change in circum-stances related to the proposed project. (See 6NYCRR 617.9(a)(7)(I)). In this case, the Villagemodified the proposed rezoning legislation after theissuance of the FGEIS. On February 17, 2004 andMarch 1, 2004, after the adoption of the FGEIS butbefore the adoption of the rezoning, Petitionerpresented the Village with new information regard-ing significant environmental impacts that were notaddressed or were inadequately addressed in theFGEIS, including engaging in improper segmenta-tion and failure to take the requisite “hard look” atthe proposed project.

Although the plain language of SEQRA regula-tion 6 NYCRR § 617.9(a)(7)(I) does not require asupplemental EIS, this Court notes that subsection(ii) of the foregoing regulation states as follows:

(ii)The decision to require preparation of a sup-plemental EIS, in the case of newly discoveredinformation, must be based upon the followingcriteria:

(a)the importance and relevance of the informa-tion; and

(b) the present state of the information in the EIS.

6 NYCRR 617.9(a)(7)(ii).

Thus, although the Municipal Respondentswere not obligated to provide a SGEIS under 6NYCRR 617.9(a)(7)(I), based upon the papers sub-mitted for this Court's consideration, this Courtfinds that they were required to submit a supple-mental EIS under 6 NYCRR 617.9(a)(7)(ii).Clearly, a failure to take the requisite “hard look” atthe nature and extent of its environmental reviewand the failure to consider the environmental im-pacts of permitting high and medium density resid-ential development in close proximity to existingsewage treatment plants are “importan[t] and relev-an[t]” pieces of information that was omitted from

the EIS in its “present state.” (6 NYCRR617.9(a)(7)(ii)). The Village, however, refused toconsider the issues raised by the Petitioner and itfailed to determine whether a SGEIS was necessaryto 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, 653N.Y.S.2d 233, 675 N.E.2d 1185, stated that strict,not substantial compliance with the procedural re-quirements of SEQRA is required by governmentagencies. Specifically, the Court stated:

The mandate that agencies implement SEQRA'sprocedural mechanisms to the “fullest extent pos-sible” reflects the Legislature's view that the sub-stance of SEQRA cannot be achieved without itsprocedure, and that departures from SEQRA'sprocedural mechanisms thwart the purposes ofthe statute. Thus it is clear that strict, not substan-tial, compliance is required.

See, King v. Saratoga Board of Supervisors, 89N.Y.2d 341, 347, 653 N.Y.S.2d 233, 675 N.E.2d1185.

First, this Court notes that Respondents do notcounter Petitioner's allegation that the Villagefailed to comply with other procedural require-ments of SEQRA.

Second, although the Municipal respondentscomplied with substantially all of the procedural re-quirements of SEQRA, their failure to strictly com-ply with the remaining procedural requirements ofSEQRA, including the failure to preliminarily clas-sify the proposed action as a “Type I” or “UnlistedAction” [6 NYCRR 617.6(a)(1)(iv) ]; its failure toprepare an Environmental Assessment Form (EAF)or to treat any of its multiple versions of the DGEISas an EAF for the purposes of rendering a writtendetermination of significance for the proposed ac-tion [6 NYCRR (a)(2), (3) and (4) ], compels thisCourt to find that the procedural requirements ofSEQRA were not satisfied.






















As a result, the instant proceeding by Petition-er, Waldbaum, seeking a judgment vacating and an-nulling Local Law No. 8 of the Year 2004 on thegrounds that it was adopted by the Municipal Re-spondents in violation of SEQRA, is herewith gran-ted.

Submit judgment.

N.Y.Sup.,2006.Waldbaum, Inc. v. Incorporated Village of GreatNeck10 Misc.3d 1078(A), 814 N.Y.S.2d 893, 2006 WL250520 (N.Y.Sup.), 2006 N.Y. Slip Op. 50119(U)

END OF DOCUMENT



Tab 7

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 An-thony M. Mauriello, Members of Department ofPersonnel and Civil Service Commission of the

City of New York, and Michael J. Murphy, PoliceCommissioner of the City of New York, Respond-ents, Directing the aforesaid Department of Person-nel and Civil Service Commission to re-rate peti-

tioners' papers in Examination No. 9961 for promo-tion to the position of Captain in the Police Depart-

ment of the City of New York, and Ben Zaker etal., Intervenors-Respondents, and George Blu-

menthal, Intervenor-Respondent.

Jan. 5, 1967.

Proceeding on application to review determina-tion as to results of city and police captain CivilService examinations wherein the judge of SpecialTerm directed the matter be set down for trial. TheSupreme Court, County of New York, Trial TermPart I, Seymour Bieber, Special Referee, held, interalia, that evidence established that police lieuten-ants taking promotional Civil Service examinationswere entitled to greater credits for answers to essayquestions and that rating keys and credit structurepropounded by city Civil Service Commission andDepartment 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 11.3

283 Officers and Public Employees

283I Appointment, Qualification, and Tenure283I(B) Appointment

283k11 Restrictions of Civil Service Lawsor Rules

283k11.3 k. Examination. Most CitedCases

Civil Service examinations, so far as practic-able, must be objective as well as competitive andmust employ an objective standard or measurewhich is capable of being challenged and reviewedby other examiner of equal ability and experience.Const. art. 5, § 6; Civil Service Law, § 50.

[2] Municipal Corporations 268 217.3(1)

268 Municipal Corporations268V Officers, Agents, and Employees

268V(C) Agents and Employees268k217 Appointment or Employment

268k217.3 Examination, Classifica-tion, Certification, and Eligibility

268k217.3(1) k. Examination. MostCited Cases

(Formerly 268k217(3))Under controlling constitutional, statutory and

case law the city Civil Service Commission and theDepartment of Personnel are obligated, despite anyattendant and well-recognized difficulties, to assureselection of public personnel by competitive andobjective testing, and use of essay questions can inno way serve to alter or modify such legal require-ment. Const. art. 5, § 6; Civil Service Law, § 50.

[3] Municipal Corporations 268 217.5


268V(C) Agents and Employees268k217 Appointment or Employment

268k217.5 k. Transfer and Promotion.Most Cited Cases

(Formerly 268k217(5))If use of essay testing in conducting promo-

tional examinations is to continue, the weaknesses

Page 152 Misc.2d 469, 276 N.Y.S.2d 512(Cite as: 52 Misc.2d 469, 276 N.Y.S.2d 512)





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inherent therein must be recognized and cured byCivil Service Commission and Department of Per-sonnel; no rating key to an essay question can pos-sibly enumerate and evaluate all variations in re-sponses. Const. art. 5, § 6; Civil Service Law, § 50.

[4] Officers and Public Employees 283 11.3

283 Officers and Public Employees283I Appointment, Qualification, and Tenure

283I(B) Appointment283k11 Restrictions of Civil Service Laws

or Rules283k11.3 k. Examination. Most Cited

CasesIn order to make the essay examination a reli-

able testing device and its rating key an objectiveevaluation as required by Civil Service law, a con-sistent and equitable approach is needed to the con-struction as well as the use of rating key; it is notsufficient to be satisfied with a rating key which,while permitting independent examiners to agree“substantially”, nevertheless perpetuates element ofsubjectivity in their grading. Const. art. 5, § 6; CivilService Law, § 50.



268V(B) Municipal Departments and Of-ficers Thereof

268k179 Police268k184.1 k. Promotion of Policemen.

Most Cited Cases(Formerly 268k184(5))Police lieutenants whose answers to essay

questions in promotional examinations were ratedby two raters and under applicable Civil Servicerule resulted in averaging of respective credit allot-ment were not entitled as matter of law to higher ofthe two ratings rather than the average mark of bothgrades since rules of Civil Service Commissionhave the force and effect of binding law. Const. art.5, § 6; Civil Service Law, § 50.





Most Cited Cases(Formerly 268k184(5))Evidence indicating numerous instances of

wide disagreement between the two raters of an-swers to essay questions propounded to police lieu-tenants taking promotional examinations and injec-tion of subjective opinion in “gray areas” of an-swers warranted conclusion that the raters, in ef-fect, had failed to agree on the key or its use, andthe prerequisite conclusion that equivalent state-ments by candidates would be fully accepted.Const. art. 5, § 6; Civil Service Law, § 50.





Most Cited Cases(Formerly 268k184(5))The mere provision in rating keys for credit to

be given for “other” answers to essay questionspropounded to police lieutenants taking promotion-al examinations was not sufficient to comply withobjectivity requirement, particularly inasmuch as(1) an unpredicted “other” answer may be “as goodas or better” than a fully credited key answer, andtherefore be entitled to more points than the keycredits allow for a contemplated “other” answer; (2)rater may not have technical knowledge to recog-nize or to appreciate true value of an unforeseen“other” answer; and (3) subjectivity rather than ob-jectivity is the byproduct of permissible credit un-der so-called “other” categories. Const. art. 5, § 6;Civil Service Law, § 50.






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Most Cited Cases(Formerly 268k184(5))Evidence established that police lieutenants

taking promotional Civil Service examinationswere entitled to greater credits for answers to essayquestions and that rating keys and credit structurepropounded by city Civil Service Commission andDepartment of Personnel were untenable. Const.art. 5, § 6; Civil Service Law, § 50.





Most Cited Cases(Formerly 268k184(5))Even if it were to be assumed that proposed

credit allowances given by city Civil Service Com-mission and Department of Personnel for answersto essay questions in promotional examinations ofpolice lieutenants would be appropriate as an ori-ginal rating system it was inappropriate as a methodof rating in view of resulting prejudice in gradingthe lieutenants' answers as compared with that ofothers not before the court; it would be unjustifiableto cause any petitioner to receive less credit for anyitem in his examination paper than the Commissionand department had already allowed for identicalresponse to other candidates on such test. Const.art. 5, § 6; Civil Service Law, § 50.

**514 *470 Murray A. Gordon, New York City, forpetitioners.

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 intervenors-respondents.

George Blumenthal, Massapequa, intervenor-re-spondent pro se.

**515 DECISIONSEYMOUR BIEBER, Special Referee:

Pursuant to stipulation of counsel for the re-spective parties, this matter was referred to me, tohear and determine.

Petitioners, lieutenants of the Police Depart-ment of the City of New York, failed, by relativelysmall margins, Examination No. 9961 for promo-tion to captain. Upon institution of the subject Art-icle 78 CPLR proceeding, Special Term, citing theopinion of the Court of Appeals in Matter of Acostav. Lang, 13 N.Y.2d 1079, 246 N.Y.S.2d 404, 196N.E.2d 60, found that there were ‘* * * apparentdefects in the ratings * * *’ of petitioners' answersto Part II of said examination and, accordingly, dir-ected 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 an-swers to the six essay questions here involved are‘as good as or better’ than the illustrative key an-swers prepared by respondents Civil Service Com-mission and the Department of Personnel(hereinafter referred to as ‘respondents'). These es-say questions, each of which will be separately con-sidered hereinafter, posed various problems con-cerning an evaluation of proposals for a civilian re-view board, the factors to be considered if evidenceobtained by an investigating officer is to be used incourt, steps to be taken to maintain precinct moraleby a newly appointed police captain with a priorreputation as a ‘hard boiled’ lieutenant, a comparis-
























on of the present twenty-squad system with a pro-posed plan for its modification, the course of actionto be followed by a precinct captain in the event ofa mass demonstration at the station house and argu-ments for and against the fingerprinting of juven-iles.

*471 Petitioners' answers to the six subjectquestions were graded by two examiners and, pur-suant to Rule 4.5.1 of the Rules of the New YorkCity Civil Service Commission, the final rating giv-en to each answer represented the average of theirjudgment. For example, if one examiner gave tenpoints for an answer while his associate rated theanswer at only five points, a petitioner's final gradefor the answer was fixed at 7.5 points. Thus, thepleadings in this proceeding set forth, at very greatlength and in very considerable detail, the opposingauthorities and reasoning of the respective partiesas to whether the items contained in petitioners' an-swers to the essay questions, for which they re-ceived only partial or no credit, were as good as orbetter than the specific items selected by respond-ents as valid answers, entitled to full credit.

The credible testimony and documentary evid-ence adduced by petitioners upon the trial of thismatter clearly and overwhelmingly support theircontentions with respect to each of the essay ques-tions. As more fully discussed hereinafter, it ap-pears that the rating keys used by respondents'**516 examiners to grade the answers here in-volved omitted and failed to give credit for re-sponses which were separate from and as signific-ant as other items set forth in such keys. Prior toexamining each of the six questions and the re-spective answers thereto, however, it is necessaryfirst to consider the nature of the examination withwhich this litigation is concerned, and to note, ingeneral, the potential hazards and defects regardingthe preparation of an essay test, the method of grad-ing it and, in particular, the specific limitationswhich surround the use of this type of question incompetitive civil service testing.

Many of the difficulties inherent in an essay

written test have long been recognized by those as-sociated with public personnel examination. As amatter of fact, the documentary proof adduced be-fore me shows that respondents' principal witness,one Harry Reiner, Chief of the Law Enforcementand Social Services Examining Division of the Bur-eau of Examinations, New York City Departmentof Personnel, had co-authored a publication of thePublic Personnel Association which clearly delin-eated the problems and pit-falls attendant to the useof the essay test (Personnel Report No. 611, PublicPersonnel Association, ‘The Essay Test in PublicPersonnel Selection’.). Unfortunately, however, therecord of the instant proceeding establishes that re-spondents and those who assisted in preparing andgrading the subject examination either disregardedor failed to heed many of the guidelines set forth inthis publication.

*472 [1] It is fundamental that the applicablelaws of New York require civil service examina-tions, so far as practicable, to be objective as wellas competitive (N.Y.Constitution, Art. V, section 6;Civil Service Law, section 50). Thus, a civil serviceexamination must employ an objective standard ormeasure which is capable of being challenged andreviewed by other examiners of equal ability andexperience ( Matter of Fink v. Finegan, 270 N.Y.356, 361—363, 1 N.E.2d 462, 464—465). To thisend, the so-called ‘rating key’, generally, is em-ployed to give a factual, accurate and objectivegrade with respect to an applicant's qualificationsfor the position or promotion he seeks. In the in-stant matter, however, as more fully discussed here-inafter, the use of essay questions which called for‘evaluations', and ‘arguments for and against’ cer-tain proposals resulted in the establishment of rat-ing keys which left room for Subjective crediting,particularly in so-called ‘gray areas'. In otherwords, these questions gave rise to key answerswhich could not be classified as ‘black or white’,‘yes or no’, ‘right or wrong’. There remained anarea of discretion, a place for argument and opin-ion, which in turn, and of necessity, permitted theexaminer and rater to inject his personal opinion







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and subjective motivation in grading the answers ofpetitioners. This defect was singularly evident withrespect to the testimony concerning Question Five,the proposed civilian review board, still a debatableproposal at the time of this 1964 examination. Asnoted **517 at Special Term, ‘The questions all en-tailed the exercise of value judgments and the an-swers thereto are not susceptible to confinementwithin a rigid prearranged formula. * * * Moreover,many of the ratings appear to be based on verbalrather than substantive grounds' (Lupiano, J.,supra).

[2] It is noteworthy that Bernard Berger, anoth-er co-author of the aforementioned publication and,at the time of its publication, the Principal Person-nel Examiner in the City's Bureau of Examinations,states therein that the objective test has ‘a decidedweakness * * * in providing a full picture of theabilities and understanding of the candidate’ (supra,pg. 1). On the other hand, however, Kenneth O.Warner, Director of the publishing personnel asso-ciation notes in the foreward that ‘Psychometriciansusually cast an uneasy eye at the reliability andsampling of the essay test; They shun the essay testfor its more objective ally—the multiple-choicetest’. (emphasis added). Regardless of which posi-tion one advocates, however, respondents must bearin mind, that under controlling constitutional, stat-utory and case law, as above noted, they are oblig-ated, despite any attendant and well-recognized dif-ficulties, to assure *473 the selection of public per-sonnel by competitive And objective testing. Theuse of essay questions can in no way serve to alteror modify this legal requirement.

[3] If the use of essay testing is to continue, theweaknesses inherent therein, fully analyzed in anarticle referred to on page 2 of the aforementionedpublication (i.e., Powell, ‘Improving Civil ServiceEssay Test’), must be recognized and cured by re-spondents. As noted therein, no rating key to an es-say question can possibly enumerate and evaluateall variations in responses. Thus, the varying gradesof answers require high-level judgment and broad

knowledge of the particular field in question for ad-equate appraisal by skilled and qualified examinersor raters. The examiner must be Intimately familiarwith and thoroughly know the exact subjects in-cluded in the test. Without in any way intending todeprecate the knowledge or ability of the raters in-volved in this proceeding, it is nevertheless obviousfrom the evidence before me that in many of theareas with which this test was concerned, theylacked the technical knowledge, skill and trainingrequired to evaluate properly the respective answersgiven by petitioners. For example, Question Six in-volved the use of documentary evidence in court.Many of the answers, as hereinafter noted, dis-cussed technical legal problems of relevancy, ma-teriality and admissibility, yet, significantly, Noneof the raters was an attorney or law school graduatewho would thereby be presumed to be capable ofcarefully analyzing and weighing the propriety ofthe answers relating to Technical matters of law.The mere fact that assistance may have been ob-tained from qualified attorneys or other legal ex-perts in the Preparation of the rating key for thisquestion is not sufficient, inasmuch, as above indic-ated, the variations in responses not **518 anticip-ated and, therefore, not set forth in the rating keywould still necessitate a person qualified in thefield of law for the proper evaluation thereof and itsApplication to the credit structure.

Moreover, the absence of such specializedknowledge or skill by a rater undoubtedly leads tomuch of the subjectivity which occurs in the grad-ing of an essay test. Unless and until the rater isable to employ actual technical knowledge and abil-ity, essay questions will almost always fail to real-ize their potential as a reliable, Objective testingdevice.

[4][5] Furthermore, in order to make the essayexamination a reliable testing device and its ratingkey an objective evaluation, as required by law, aConsistent and equitable approach is needed to theConstruction as well as the Use of the rating key. Itis not *474 sufficient to be satisfied with a rating



key which, while permitting independent examinersto agree ‘substantially’, as in the instant matter,nevertheless, perpetuates the element of subjectiv-ity in their grading. (see Powell, ‘Personnel Admin-istration in Government’, (Prentice-Hall), pg. 249;Furst, ‘Constructing Evaluation Instruments', pg.296 et seq.). In this proceeding, therefore, petition-ers raised objection to respondents' use of tworaters in grading each answer. They contend that inevery instance of a disagreement between theraters, which, under applicable Civil Service Rule4.5.1 (supra), then resulted in an averaging of theirrespective credit allotments, a candidate is entitled,as a matter of law, to the higher of the two ratingsrather than the average mark of both grades. Inas-much as the rules of the Civil Service Commission,insofar as is here relevant, now have the force andeffect of binding law, petitioners' argument iswithout merit at this time.

However, when a two-rater system is used, as itis by the Department of Personnel of the City ofNew York, there are natural hazards present in theapplication of a rating key to essay questions ofwhich, in view of the proof adduced before me, re-spondents' examiners were not aware or failed totake into consideration. Thus, as noted in the Reinerpublication, it is of paramount importance in theapplication of the key For both raters to understandthe key answer and the rating scale fully Before thestart of actual grading.

[6][7] ‘Objectivity must necessarily be a by-product of such an approach’ (Personnel Report No.611, supra, pgs. 16—17). Documentary evidenceindicating numerous instances of wide disagree-ment between the two raters here involved and theinjection of subjective opinion in the aforemen-tioned ‘gray areas' of answers clearly warrant theconclusion that respondents' raters, in effect, hadfailed to agree on the key or its use, and the pre-requisite conclusion that equivalent statements bythe candidates would be fully accepted. The mereprovision in the rating keys for credit to be givenfor ‘other’ answers is not sufficient, particularly

inasmuch as (1) an unpredicted ‘other’ answer maybe ‘as good as **519 or better’ than a fully creditedkey answer and, therefore, be entitled to morepoints than the key credits allow for a contemplated‘other’ answer; (2) the rater may not have the tech-nical knowledge to recognize or to appreciate thetrue value of an unforeseen ‘other’ answer; and (3)subjectivity rather than objectivity is the by-productof permissible credit under the so-called ‘other’ cat-egory.

*475 Another recurring problem area in thetwo-rater system concerns those answers to essayquestions which, while not completely erroneous,contain irrelevant material, slight errors of fact ormere mistakes of judgment. Unless the Departmentof Personnel adopts a specific policy one way or theother, or unless both raters agree in advance, thereis absolutely no guideline in this type of examina-tion rating as to whether and to what extent a can-didate should be penalized for such minor errors orirrelevancies which may tend only to reduce thetotal value of other correct and proper parts of hisanswer. Obviously, if one rater ignores such defi-ciencies while the second rater penalizes the can-didate therefor, a distinct inequity will result. Thisfault is not entirely ameliorated by a rating key pro-vision which allows ‘plus or minus ten points'.Such provision is merely another subjective devicefor additional credit or penalty. This particularproblem, however, can be readily overcome by ap-propriate policy directives of the City examinationagencies involved or by provision in the key for thespecific assessment of penalties for irrelevant ma-terial or for minor errors of fact or judgment.

There are many other difficulties attendant tothe use of the essay examination in the selection ofpublic personnel which, while noted in the citedpublication (supra) do not, in my opinion, warrantfurther discussion here. From the foregoing,however, it is evident that respondents must seri-ously consider whether present techniques em-ployed by them in the construction and use of essayquestion rating keys permit the essay examination



to be, under applicable law, a workable, effective,systematic And objective method of civil servicetesting.

[8] Each of the six essay questions of Examina-tion No. 9961, respondents' rating keys, petitioners'answers, their proposed rating keys and their re-quests for additional credits will now be con-sidered:

Question #1:‘The twenty-squad system is used at present to

distribute patrolmen individually among the threeshifts on a rotating basis. It has been proposed,however, to change the patrolmen's duty chart sothat five squads would perform the same tour to-gether as a unit, while retaining the twenty-squadbreakdown. Sergeants' schedules would be simil-arly arranged so that the same sergeant would re-main with each unit. Compare the present systemwith the proposed one, giving the relative advant-ages and disadvantages of each.’

**520 Respondents' established rating key forthis question provided for a maximum of fortypoints for answers relating to the advantages of thepresent system and a maximum of seventy-fivepoints for listed advantages of the proposed system.In addition thereto, *476 the raters were permitted aleeway of plus or minus ten points in considerationof the ‘character, scope and level of discussion’.The key answers were listed as follows:

‘A. Advantages of Present System:1. Flexibility—can more easily provide in-

creased patrol at peak load periods.

2. Broadens scope of training and increases po-tential for growth since men are exposed to a vari-ety of superiors (not restricted to single supervisorwho may be less capable).

3. If we assume that proposed plan means thatunit always remains on same tour, present systemprovides 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

group—increased sense of responsibility; feeling ofachievement; increased morale in general.

2. Fixing responsibility is facilitated.

3. Closer and more continuous supervision pos-sible.

4. Greater recognition of training needs.

5. Meaningful comparisons between units.

6. If we assume that proposed plan means thatunit always remains on same tour, proposed systemmore likely to provide continuous attention to po-lice hazards.

7. Other (More meaningful personnel records;facilitates development of specialist skills, etc.)

The disadvantages of one system are basicallythe opposites of the advantages of the other system.

No Credit:1. Mentioning equitability without stating con-

ditions in A3.

2. Mentioning better attention to police hazardwithout stating conditions in B6.

3. Mentioning better police service.

4. Present system already in operation.'

Petitioners' proposed rating key for QuestionOne contains all but items A3 and B6 of respond-ents' key, plus certain additional key answers **521(infra). Petitioners' expert witness' testimony con-clusively established the propriety and necessity ofexcluding respondents' key answers A3 and B6inasmuch as it was clearly demonstrated that itwould be impossible to create the subject duty chartbased on a forty-hour week. The credible evidencealso established that the following additional an-



swers, not contained in respondents' key, warrantcredit to a petitioner who has so responded to Ques-tion One:

A. Under advantages of present system:1. Provides a broader training for Sergeants

(Petitioners' key 4A).

2. Superiors can better evaluate performance ofsubordinates because of a broader comparison base(Petitioners' key 5A).

3. Commanding officer can more accuratelyevaluate Sergeants as they all supervise the samepersonnel (Petitioners' key 6A).

*477 4. Difficulty in designing the proposedchart under the guide lines set forth in the questionso there would be no coverage gaps (Petitioners'key 7A).

5. Police service not such that troups can al-ways remain intact so that a great deal of the pro-posed 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 apurported ‘lack of depth’ in the present personnelduty chart, the testimony of Michael G. Birming-ham, former Police Department Chief of Staff, a re-cognized expert with broad police and law enforce-ment experience, clearly supports petitioners' keyanswer in this respect. I find, therefore, that suchanswer warrants credit to a petitioner so respond-ing.

b. Under advantages of proposed system:1. More efficient evaluation of patrolmen per-

formance possible because of closer relationshipbetween superior and subordinate in work unit(Petitioners' key B6).

2. Permit Sergeants to make more effective as-signments (Petitioners' key B8).

3. Simplify supervision and permit Sergeants to

devote more time to other police duties (Petitioners'key B9).

Contrary to respondents' contention, petition-ers' key answer B6 (subd. B1, supra) is differentthan respondents' key answer B—2, 3 and 4(supra). Obviously, ‘evaluation’ and ‘supervision’are wholly different concepts, each of which is en-titled to credit under a proper rating key. On theother hand, I find that petitioners' suggested key an-swer in their exhibit #11 (Petitioners' key B7), tothe effect that the proposed system **522 would‘permit the assignment of patrolmen to steady postor assignment such as Radio Motor Patrol car’, isnot a valid point, inasmuch as the evidence estab-lishes that this fact is the same in both the presentand proposed system. No credit, therefore, has beenallowed for such answer.

Significantly, both the respondents' key (supra)and petitioners' proposed key to Question One con-tain the same maximum points with regard to partsA and B, namely, forty and seventy-five points re-spectively. While such credit structure has beenshown to be proper as a whole, I find that petition-ers' key answer A8 is not worth the allotted tenpoints but has a maximum value of five points only.Similarly, as noted above, petitioners' key B7 isdisallowed as a valid answer and, therefore, thekey's ten points for such answer is eliminated fromthe credit structure of answers to Question One.

Giving due consideration to the foregoing, peti-tioners' claims for additional credits with respect totheir answers to Question *478 One are disposed ofas follows: (Charts of additional credits not prin-ted).

Question #2:‘A newly appointed captain, who had built up a

reputation as a ‘hard boiled’ lieutenant, has beenplaced in command of a precinct with which he hashad little previous contact. His superior, when as-signing him, tells him, ‘You have a good precinctand morale there is high. By maintaining the moraleof your men at this level, you will have no discip-



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linary problems.’ What steps can the captain take inorder to keep up the morale of the rank-and-file of-ficers under this command?‘

Respondent's established rating key for thisquestion permitted a candidate to accumulate a totalof 130 points. Similar to Question One, the raters,in effect, were allowed a subjective leeway of ‘plusor minus ten points', based on the ‘character, scopeand level of discussion’. Of the aforesaid 130points, ten were allotted to responses concerning fa-miliarity with personal or work problems (key an-swers A), sixty to ‘staff related’ answers (key an-swer B) and sixty to ‘job related’ answers (key an-swer C), to wit:

Respondents' Key to Question 2:

‘A. Become informed as to any existing precinctproblems and past actions with respect to them(personal or work problems).

B. Staff Related:

1. Foster good supervision (by self and by su-periors under your command).

2. Set good personal example.

3. Show sincere interest in their welfare.

4. Discipline where necessary (require adher-ence to high standards).

**523 5. Use discipline as a corrective meas-ure, 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 com-mand.

FN9. Other.

C. Job Related:1. Inform men of what is expected of them.

a. Responsibilities and quality of performanceneeded.

b. Clear instructions (concise, understandable).

c. To whom accountable.

2. Encourage staff participation in solvingproblems, planning work and procedures.

a. Stimulate through conferences.

b. Promptly consider suggestions and justifyrejections.

3. Explain and justify changes in policy andoperations (avoid confusion or misinterpretation ofnew or changed orders).

4. Attempt to provide the best possible tools ofthe trade: communications, automotive, weaponsand to keep them in the finest condition possible.

5. Encourage professional development (PAcourses, college, professional society).

6. Other.'

*479 It is to be noted that pursuant to respond-ents' key, a candidate, under subdivision B thereof,would be required to give Each and every key an-swer in order to obtain a perfect score. The credibleevidence adduced upon the trial, however, indicatesthat this far exceeds normal requirements and cus-tomary methods of grading civil service examina-tions.

In addition to accepting respondents' key an-swers, testimony of competent and expert witnesseswarrants the conclusion that the following answers,set forth in petitioners' suggested key to QuestionTwo and adopted herein, are entitled to credit:



1. Analyze reasons for reputation as ‘hardboiled’ 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 exist-ence of grievances (gripes) and for properly hand-ling them (Petitioners' key C9).

**524 4. Avoid promises or representationsthat cannot be kept (Petitioners' key C10).

5. Back up subordinates when they are right(don't ‘pass the buck’; ‘stick neck out’ where neces-sary) (Petitioners' key C11).

6. Endeavor to assign subordinates to jobs forwhich they are best qualified and have an interestor liking (Petitioners' key C12).

7. Whenever possible, reprimand or criticizesubordinates privately (Petitioners' key C13).

8. Avoid hasty or snap decisions or judgments(Petitioners' key C14).

9. Where possible, keep subordinates informedconcerning 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 reason-able and capable of good performance (Petitioners'key D6).

12. Give subordinates sufficient authority toaccomplish their responsibilities (Petitioners' keyD7).

13. Maintain a continuing knowledge of thestatus quo and take immediate remedial actionwhere required (Petitioners' key D8).

Respondents argue that existing machinery in

the Police Department serves to invalidate Petition-ers' suggested key C9 (supra, subd. 3) as a properanswer. However, petitioners' expert witnesses andtheir cited documentary authority for this answerclearly establish that the ‘machinery’ contemplatedin this response is not the existing formal proced-ures of the Police Department nor the so-called‘open door’ policy set forth in respondents' key an-swer B7 (supra). Thus, contrary to respondents'contention, I find such response is properly entitledto additional credit.

Parenthetically, respondents' expert witness, aPolice Department inspector, conceded that peti-tioners' key answer D8 (supra, subd. 13) is a separ-ate and valid response to Question *480 Two. Hemade a similar though more reluctant concessionregarding the following additional answer to thisquestion:

14. Make subordinates feel that they are mem-bers of a team (develop in them a sense of belong-ing; encourage in them good attitudes toward theirjob) (Petitioners' key D9).

Contrary to respondents' objection to this lastanswer (supra, subd. 14), I find that it is relevant tothe ‘hard-boiled’ reputation problem involved inthe subject question and, therefore, is properlywithin a complete key answer thereto.

**525 The maximum credit obtainable underrespondents' rating key to Question Two is 180points. As will be discussed more fully hereinafter,this, in and of itself, serves to refute respondents'argument that 160 points, as recommended by peti-tioners' rating key to Question Four (infra) is ex-cessive. In any event, I find the recommended cred-it structure set forth in petitioners' exhibit 19 to beproper, valid and suitable with respect to QuestionTwo.

Nothing in the proof adduced before me sup-ports Reiner's testimony that petitioners' proposed‘staff related’ answers should be limited to fivepoints each. Likewise, as noted by petitioners' ex-



pert witness, I find respondents' key answer B8 tobe invalid. It certainly is not a proper police func-tion for a precinct captain, ‘hard-boiled’ or other-wise, to sponsor social affairs for members of hiscommand.

Giving due consideration to the foregoing, peti-tioners' claims for additional credits with respect totheir answers to Question Two are disposed of asfollows: (Charts of additional credits not printed).

Question #3:‘There has been considerable controversy as to

whether juveniles who are arrested should be fin-gerprinted. Police officials generally favor thispractice while social workers are generally op-posed. Briefly discuss the arguments for andagainst this practice.’

Respondent's established rating key, in accord-ance with which petitioners' answers were graded,permitted a total of fifty points to be obtained by acandidate for arguments in favor of fingerprintingand a maximum of sixty points for argumentsagainst such procedure. This rating key includescredit 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 helpsolve juvenile crimes).

3. Prior record is valuable for judicial senten-cing or treatment.

4. First duty of law enforcement is to protectsociety (welfare of juvenile offenders only second-ary).

*481 5. Mere taking of prints of juveniles maydeter would-be offenders and recidivists.

6. Other.

B. Against Fingerprinting:

1. It is closely allied in public mind whth crim-inals and criminal processes (raises question ofstigma).

2. It violates or reverses the spirit and/or pro-cedure of juvenile court (which is not criminal inaims and methods).

**526 3. Records other than fingerprints takenon a juvenile offender are usually sufficient identi-fication in cases of subsequent offenses by a youth.

4. a. It may be harmful in that association offingerprinting with criminal procedure in youth'smind 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 asso-ciates, leading them to emulate him by committingpetty or serious crimes in order to be fingerprinted.

d. The feeling of importance of being a mem-ber of a gang outweighs any deterrent effect finger-printing may have.

5. Other.'

Petitioners' suggested rating key allots a max-imum of fifty-five points for arguments in favor offingerprinting and maintains respondents' sixtypoints' allocation to arguments against it. However,the expert testimony of Prof. Alexander B. Smithand the documentary evidence adduced in supportthereof establish that respondents improperly failedto give credit for the following answers which werenot included in their rating key:

1. Fingerprinting juveniles enables the FBI toinclude nation-wide juvenile delinquency statisticsin their Uniform Crime Report (Petitioners' keyA6).

2. Fingerprinting which has become common-place for juveniles is no more a stigma for juvenilesthan being in a detention home, before the courts,



under supervision of a probation officer, or in an in-stitution; they do not therefore constitute a psycho-logical identification of the child with criminalsgenerally (Petitioners' key A7).

3. Fingerprinting juveniles is part of the trendtoward universal fingerprinting (Petitioners' keyA8).

4. The nonpolice use of juvenile fingerprintfiles is no more detrimental to the juvenile than thenonpolice use of all other police and court recordsin a particular case (Petitioners' key A9).

5. Fingerprinting creates an attitude of hostilityin a child or his parents, especially if they are sens-itive (Petitioners' key B5).

6. The act of fingerprinting shows a lack offaith in the juvenile on the part of society that mayblock his rehabilitation and reintegration into soci-ety (Petitioners' key B6).

While Petitioners' key answer B5 (supra) issimilar to respondents' key B4a, I find that a carefulanalysis thereof reveals its critical distinction,**527 especially with respect to the attitude of theparents. If a candidate has sufficient knowledge toset forth this last fact in his answer, I hold that hewould then be entitled to additional credit of atleast 2.5 points.

*482 With the addition of the foregoing an-swers to a proper key, I find that a maximum offifty points should be allowed with regard to argu-ments for fingerprinting; one answer will be en-titled to fifteen points, and all others will be cred-ited with ten points each. The key answer creditssuggested by Prof. Smith for responses to the argu-ments against fingerprinting, similarly, are adoptedhere. Thus, giving due consideration to the forego-ing, petitioners' claims for additional credits withrespect to their answers to Question Three are dis-posed of as follows: (Charts of additional creditsnot printed).

Question #4:

‘There is a growing tendency on the part ofsome citizens to form into large groups and to taketheir grievances against the police directly to thelocal station houses. As the captain of a local pre-cinct, what actions would you take if your stationhouse was the object of such a mass demonstra-tion.’

In response to this question, respondents' ratingkey set forth the following answers for which creditwas allowed as follows: a maximum of sixty pointswas allotted for those items dealing with‘immediate action’, A1 being valued at ten points,any one answer ‘dealing with group’ similarly val-ued at ten points and the other responses at fivepoints each; likewise, a total of fifty points was al-located to answers dealing with ‘Frozen Areas andAssignments' (infra), the rating key fixing one an-swer at ten points and all others at five points each.It is to be noted, however, that the rating key in thisrespect must be deemed to be in error, for if a can-didate answered all eight parts of this subdivision,he would receive only forty-five points instead ofthe allotted fifty. Significantly, in an effort to curethis apparent defect, respondents' witness Meltzer,one of the raters of petitioners' subject examinationpapers, testified that the ‘mob control’ answer in-dicated in B8 of Question Four (infra) was tenpoints rather than the five ascribed to it by the rat-ing key.

In addition to the answers of ‘A’ and ‘B’(infra) totalling 110 points maximum credit, the rat-ing key, under subdivision ‘C’ provided for so-called ‘Other’ answers which would warrant anoth-er thirty points maximmum. Thus, respondents' rat-ing key, for the following key answers, made al-lowance for a purported maximum of 140 credits:

‘A. Immediate action:1. Captain of precinct, if present, or other su-

perior in charge should station himself at entrancewith loud speaker device so that he can communic-ate with group.

**528 2. Dealing with group:



a. Ascertain as quickly as possible the identityof those involved, the number in the group, and thenature of their grievance.

*483 b. Determine who the leaders are.

c. Attempt to communicate with leaders or in-vite inside to discuss grievance.

d. Be sure that the whole group knows that youare anxious to hear and discuss the grievance andsettle it if possible (good public relations).

e. If the leaders and the group are not willing todiscuss the grievance, then tell them they will haveto disperse.

f. Allow peaceful picketing.

g. Otherwise give order to men to disperse thegroup. Direct them to do this without the necessityof arrest, if this is possible.

h. No brutality (caution officers to be firm butavoid brutality, violence).

3. Notify Communications Bureau of the bor-ough so that all concerned may be informed.

4. Send for community leaders who may assistin 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 sothat group does not ‘storm’ station house and take itover.

4. Rooftops to be covered by patrolmen.

5. Outline access route for responding vehiclesto use in getting to station house, if needed.

6. Vehicles and pedestrians to be excluded.

7. If transit facilities within frozen area, assignmen so that confusion, etc. does not occur.

8. Other (If can't disperse peacefully, use mobcontrol tactics).

C. Other:1. If precinct personnel cannot handle, send for

assistance under Rapid Mobilization Plan; increaseas needed.

**529 2. Use precinct squad detectives to in-filtrate 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 thissituation.

5. Other.'

In apposition to respondents' rating key, peti-tioners' suggested key significantly omitted itemA2e. As noted by petitioners' expert witness, thisanswer, as set forth in respondents' key, erro-neously directs the dispersal of peaceful picketing.Not only is such direction improper and illegal, butsuch an answer would serve to conflict with re-spondents' key answer A2f of the same key (supra).This is perhaps but another example of the diffi-culty respondents will continue to encounter if theypersist in the practice of having non-lawyers pre-pare questions and key answers which necessarilydeal with technical matters of law and legal proced-ure.

Petitioners' suggested rating key added anotheritem to section A of respondents' key, to wit,‘Protect rights of those not *484 involved indemonstration to lawful use of streets and high-ways'. There can be no meritorious dispute regard-ing the validity of this item. In addition thereto, pe-titioners also suggest a new section D to the ratingkey, as follows:



‘D.—Concluding and follow-up action:1. Maintain assignments until conditions return

to normal.

2. Submit reports on action taken, with evalu-ation and comments thereon.

3. Maintain liaison with protesting group, re-duce tensions, establish better relations, processgrievance as required.'

Respondents, significantly, offered no expert orpolice authority to dispute any of the substantiveaspects 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 QuestionFour, respondents' witness Reiner stated that whileit was proper for respondents' raters to allow a totalof 140 points under respondents' key, the suggested160 points in petitioners' key would be excessive. Idisagree. Nevertheless, I find that an allowance oftwenty points for the new section D (supra) as sug-gested by petitioners, is not warranted by the con-tents and significance of the answers requiredthereby.

As hereinabove indicated and in refutation ofReiner's argument regarding anything beyond 140points as excessive, it is to be noted (and Reiner soconceded) that respondents' credit structure for thekey to Question Two (supra) could result in a max-imum scoring of 180 points, or a total of fortypoints beyond the limitation Reiner seeks here.Thus, **530 upon the evidence before me, I findthat no satisfactory reason was established by re-spondents to limit the answers to Question Four to140 points, or on the other hand, to allot to sectionD more than a total of ten points. The maximumpoints for the rating key to this question, therefore,is fixed at 150 points.

Giving due consideration to the foregoing, peti-tioners' claims for additional credits with respect totheir answers to Question Four are disposed of as

follows: (Charts of additional credits not printed).

Contrary to their claims upon the trial of thismatter, I find that neither Morell nor Carlson is en-titled to any additional credits on Question Four forthe alleged scope, depth, organization and characterof their respective answers.

Question #5:‘A plan has been proposed whereby review

boards would be established in New York City todeal with charges of police misconduct made byprivate citizens. Evaluate this proposal, giving reas-ons.’

*485 This question, concerning a much debatedproposal at the time the subject examination wasgiven, clearly revealed the fundamental fault under-lying the use of an essay type test for the selectionof public personnel, namely, subjectivity. An ana-lysis of the ratings and papers submitted by re-spondents in support thereof indicate that in manyinstances regarding this question, the personal opin-ions of the examiners seem to prevail over expertopinion and authorities offered by petitioners tocorroborate the arguments set forth in their an-swers. Thus, it frequently appears, as the allowanceof additional credits will hereinafter demonstrate,that respondents' raters failed to give credit for avalid answer simply because they, personally, wereof a different opinion.

Likewise, I find unwarranted the raters' prac-tice of failing to give credit for an answer simplybecause a candidate lists it in one place as an ad-vantage and in another part of the examination as adisadvantage. This, too, is the fault of the way anessay question is phrased. Questions such as thisone, which, in effect, call for ‘advantages and dis-advantages' or ‘arguments for and against(‘evaluate’)' necessarily lead to the subject prob-lem. Thus, conceivably, some people felt that civil-ians on a review board were an advantage(impartial review, etc.) while at the same time be-lieved their lack of ‘professional’ knowledge of po-lice work would be a disadvantage. Both such an-



swers, obviously, are entitled to credit under aquestion so phrased.

The following rating key, each part valued atfifty points, was established by respondents forQuestion Five:

‘A. Advantages1. Provides for impartial outside review (or:

police will not be judge of their own actions).

**531 2. Tends to limit police to legal and con-stitutional bounds and actions (or: less likelihood ofoverzealous or improper law enforcement).

3. Arrests or other actions will tend to be morecarefully made—actions more likely to be success-fully upheld; less likelihood of civilian suits.

4. Significantly increases public confidence inpolice or improves relationship with police.

5. Other.

B. Disadvantages1. Threatens good law enforcement in that po-

lice may fear to act, especially in borderline cases.

2. May result in increase in unjustified chargesor be used as a forum for challenging or criticisingpolice activity.

3. Difficulty of selecting qualified impartialcitizens, willing to serve (or: More likely to be in-fluenced by social and political forces and pressuregroups).

*486 4. May lower police morale (or: policetend to lack confidence in civilians).

5. Other.

No Credit: a. May set precedent for outside re-view boards in other agencies.

b. Taking both sides of same issue without ad-equate explanation.'

At least fourteen of the sixteen petitioners hereinvolved set forth alleged advantages and disad-vantages of the proposal which were not creditedunder the above rating key fixed by respondents.The fact that there were so many responses otherthan those in such key should have alerted respond-ents' raters to the fact that their key, at best, was in-complete. Nothing in the record in this respect war-rants the conclusion, as asserted by Reiner, that allof the new items (hereinafter set forth in the revisedrating key) came within the intended scope of theitems of respondents' key, inasmuch as they weredeemed by the examiners to be incorrect and, there-fore, entitled to and given no credit.

The revised rating key adopted here was pre-pared by one of the authors of the article cited andrelied upon by respondents in the preparation of thequestion and answers here involved. While such au-thor, an expert witness called in behalf of petition-ers, had no past experience in the formulation ofexaminations for the selection of public personnel,his testimony on the subject matter of QuestionFive was not challenged by an expert As to thevalidity of the new items or as to his opinion thateach such new item was separate from and equal insignificance to each **532 item in respondents' rat-ing key. In view of such evidence, I find each suchnew item (infra) is entitled to the same value as thatassigned to answers in respondents' key.

The revised key, therefore, adds three items tosection A and three to section B of respondents'key, as follows:

1. ‘A—5:Provides for the application of civilian judg-

ment in balancing the interests of law enforcementand individual rights'.

Contrary to respondents' contention, I find thisto be a valid answer separate and apart from theirkey answer A1.

2. ‘A—6:Citizens would not be inhibited from lodging



complaints or giving testimony because of fear ofpolice or distrust of departmental review proced-ures'.


3. ‘A—7:Provides an avenue of communication through

which the public can suggest to the police generalreforms that eliminate improper or irritating prac-tices'.


*487 Each of these three new key items arevalued at a maximum of ten points.

1. ‘B—5:Civilian board members would not be experts

in police work and would tend to be unfamiliar withproblems and techniques of law enforcement'.

Contrary to respondents' contention, I find thisto be a valid answer separate and apart from theirkey answer B3.

2. ‘B—6:Review of police misconduct should be by offi-

cials who are in a position to effectuate changesand reforms; collateral review by an outside bodywould tend to interfere with the authority of thoseprimarily responsible for the administration of thepolice department'.

In view of the fact at least eight petitionersgave this last new item as a response under‘disadvantages', respondents' principal witness re-luctantly**533 conceded on cross-examination thatit should properly be a part of the rating key.

3. ‘B—7:Recourse against police misconduct is available

through existing departmental review and discipline

procedures and through judicial action'.

While Reiner conceded this response wouldconstitute a new item, he stated it was not an an-swer to the question. I disagree, inasmuch as such aresponse indicates that the proposed board is‘unnecessary’ or ‘not needed’, which, quite prop-erly, would entitle such an answer to credit under‘disadvantages'.

Each of these three new ‘disadvantages' arevalued at a maximum of ten points.

Giving due consideration to the foregoing, peti-tioners' claims for additional credits with respect totheir answers to Question Five are disposed of asfollows: (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 asevidence. State and briefly discuss the principalfactors that must be considered if this evidence is tobe 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 pro-tected by the Constitution, or by force, duress orthreats).

2. Matter must be relevant.

3. Conclusions and opinions, no matter howwell supported, are inadminssible (but facts whichgive rise to these c's & o's must be established andintroduced 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 theirevidential value.

3. Must be clearly marked permanently anddistinctly, for ready identification.

4. Is it a document of original entry (if not, onwhat other documents or records is it based?) (or:Original document **534 best evidence (if originallost, destroyed, etc., or outside court's jurisdiction,can introduce secondary evidence in form of pho-tos, photostats, copies) by authenticity of copy mustbe certified) (or: What are the possibilities of tran-scription errors, or of error in the basic docu-ments?)

5. Other (Would the person supplying docu-ment have any logical reason, or personal reason tofalsify it or gain an advantage through falsifica-tion? For what purpose was document prepared?)

a. For express purpose of recording the desiredinformation.

b. For another purpose, and desired informationwas entered only coincidentally.

Police Jan. Feb. 1962, USING DOCUMENTSAS EVIDENCE (P. 19 et seq.).'

Respondents' rating key assigned a total of fiftypoints to the four answers under subdivision A(twenty, fifteen, ten and five points respectively)and a maximum of seventy points to answers undersubdivision B (twenty, twenty, twenty, ten and tenpoints, respectively, for All five answers respect-ively). Again indicating the weakness of having anon-lawyer prepare a rating key dealing with atechnical legal problem, respondents' item A3 isclearly erroneous and should not have been in-cluded as part of the rating key's answers. Expertopinion is not only admissible but, most frequently,vital and needed.

This error was apparently appreciated by peti-tioners' expert witness on this question who pre-pared two alternative rating keys. His second al-

ternative key omits item A3, while his first alternat-ive key omits All of respondents' answers undersubdivision A, ‘Admissibility’. In my opinion, thesecond alternative key, as suggested by this out-standing police authority, lawyer and examiner, issuperior to his first alternative and to the rating keyused by respondents. Such alternative rating key,therefore, is adopted here. It includes two new keyanswers not set forth in respondents' key despite thefact that at least thirteen of the sixteen petitionershere involved had responses in their examinationpapers which should have alerted the raters to theprobable propriety of such answers. These twoitems relate to:

1. ‘Delivery for examination or analysis tolaboratory or technician’. (Petitioners' key B4).

2. ‘Availability of reproductions in the form ofphotographs, sketches, copies, or molds for properpresentation of evidence in court’. (Petitioners' keyB5).

**535 *489 Significantly, the police expertcalled by respondents failed to contradict the valid-ity of either of the foregoing two new key answersand, in effect, confirmed the fact that the mobilelaboratory and main laboratories of the City PoliceDepartment perform the examinations and analysisreferred to in item B4 (supra).

A proper credit structure for the new rating keywhich includes the two new items under subdivi-sion B would, in my opinion, allow twenty pointsfor each item thereunder, with a maximum ofeighty points. As noted by petitioners, while re-spondents' senior examiner agreed with the eightypoints' value for subdivision B, he would reduce thevalue of each new item by assigning twenty pointsto any one item thereunder and ten points to eachother item. I find such contention to be whollywithout merit. If adopted, this suggested rating keywould require eight of nine answers for a perfectscore of eighty points. On the other hand, it is to benoted that respondents' rating key had three items insubdivision B at twenty points each and at least two



other items at ten points each (supra). Thus, a per-fect score of seventy points on respondents' ratingkey could be obtained by four of a possible nine an-swers. I find, therefore, that the extensive and ex-haustive scope of the revised key (the second al-ternative (supra)), adopted here as the proper ratingkey, coupled with the limited time available to acandidate on this examination, justified petitioners'expert opinion that each item was worth twentypoints. I hold, therefore, that an answer which fullyand correctly sets forth four of the items in subdivi-sion B, as adopted here, is entitled to the full eightypoints.

Giving due consideration to the foregoing, peti-tioners' claims for additional credits with respect totheir answers to Question Six are disposed of asfollows: (Charts of additional credits not printed).

With regard to the respective specific items forwhich credit was sought by petitioners under thekey answers above listed for each of the six essayquestions involved, such items are set forth fully inPetitioners' Exhibits 9, 11, 15, 17 and 19, their sug-gested rating keys. It will serve no useful purpose,therefore, to repeat herein each and every item ofpetitioners' answers in greater detail than alreadyindicated here.

It should be noted, however, that for the mostpart, the credit structure adopted here for eachquestion accommodated, insofar as practicable, allnew items (which were not included in respondents'rating keys) to the credit structures they had usedfor the marking of the subject test. This obviatedthe possibility that an answer common to respond-ents' key and the one here *490 adopted in lieuthereof would receive different credits whenmarked on the original rating or when marked as aresult of this proceeding.

In most instances, as the foregoing rating keysand credit structures indicate, respondents' pro-posed credit allowances for the revised rating**536 keys were untenable. The value assigned byrespondents to each new item was almost always

less than that suggested by petitioners, although re-spondents' witnesses were frequently unable to statea valid reason therefor. Many times, as abovestated, respondents' assertions that the new itemswere ‘the same’ or ‘closely related’ to their keyitems were wholly without foundation and unwar-ranted. Reiner's testimony to the effect that each ofrespondents' rating keys contemplated the allow-ance of credit for ‘other’ items not specified thereindoes not support these assertions (supra). It is to benoted that nothing in respondents' credit structuresindicate that the value of a specified item would bereduced by the allowance of credit for a so-called‘other’ item.

[9] An analysis of respondents' proposed creditstructures (as compared to those adopted here) alsoestablishes that to use those recommended by re-spondents, in effect, would cause petitioners to beentitled and to receive less credit for an answer thanwas allowed by the raters in the original marking ofidentical items in papers of other candidates not in-volved in the litigation. Thus, even if it were to beassumed that respondents' proposed credit allow-ances would be appropriate as an original ratingsystem, it is obviously inappropriate as a method ofrating at this time. The resulting prejudice in thegrading of petitioners' answers as compared withthat of others not before the Court cannot be con-doned. Contrary to the position advocated, in sub-stance, by respondents, it would be wholly unjusti-fiable at this stage of regrading answers to causeany petitioner to receive less credit for any item inhis examination paper than respondents havealready allowed for an identical response to all oth-er candidates on this test.

In recapitulation, therefore, the following threetables set forth statistically the results of the regrad-ing of petitioners' answers to Part II of ExaminationNo. 9961, as indicated in detail hereinabove. Thefirst table lists the additional credits scored by eachof the sixteen petitioners on each of the six ques-tions; the second table lists the old and new gradesfixed for each question and the resulting new aver-



age of each petitioner on Part II of the subject ex-amination; the third tabulation sets forth the new fi-nal grades obtained by each of the petitioners onthe subject examination as a whole. (Tables notprinted.)

*491 Accordingly, the petition is granted andjudgment is rendered in favor of petitioners as here-inabove indicated.

Settle final judgment providing for the regrad-ing of petitioners' answers to Part II of ExaminationNo. 9961 and the regrading of their final averageson said examination in accordance herewith.

N.Y.Sup. 1967.Mark v. Lang52 Misc.2d 469, 276 N.Y.S.2d 512

END OF DOCUMENT



Tab 8

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 COM-MISSION, Respondent.

July 9, 1958.

Proceeding to review an alleged arbitrary de-termination by the State Rent Administrator relativeto petitioner's application for an increase in rent.The Supreme Court, New York County, SpecialTerm, Part I, Owen McGivern, J., held that whereno proof was offered that sale of premises was noton normal financial terms, and purchaser who ap-plied for an increase in rent pursuant to EmergencyHousing Rent Control Law offered proof by com-petent real estate appraiser that terms of sale werenormal, and if there existed any deviation from nor-mal financing in facts relating to relative amountsof mortgages and of interest payable thereon, suchdeviation was minimal, and there was no evidencethat financing factors involved were not good andnormal real estate practice or that speculation was afactor in the deal, in refusing to accept the salesprice as basis for valuation Rent Administrator ac-ted arbitrarily, unreasonably and illegally.

Motion granted and proceeding remanded.

West Headnotes

Landlord and Tenant 233 200.59

233 Landlord and Tenant233VIII Rent and Advances

233VIII(A) Rights and Liabilities233k200.55 Grounds for Adjustment in

General

233k200.59 k. Value of Property. MostCited Cases

Where no proof was offered that sale ofpremises was not on normal financial terms, andpurchaser who applied for an increase in rent pursu-ant to Emergency Housing Rent Control Lawoffered proof by competent real estate appraiserthat terms of sale were normal, and if there existedany deviation from normal financing in facts relat-ing to relative amounts of mortgages and of interestpayable thereon, such deviation was minimal, andthere was no evidence that financing factors in-volved were not good and normal real estate prac-tice or that speculation was a factor in the deal, inrefusing to accept the sales price as basis for valu-ation Rent Administrator acted arbitrarily, unreas-onably 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 & Hoff-man, 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 re-

view an alleged arbitrary determination by the StateRent Administrator relative to petitioner's applica-tion for an increase in rent pursuant to section4(4)(a) of the Emergency Housing Rent ControlLaw (section 8584 of McKinney's UnconsolidatedLaws).

Request was made for a net annual return of6% based on the value of property which petitionerasserted was a bona fide sale price paid by petition-er in 1956. A year after this date, petitioner madethis application which was denied on November 15,1957. Protest was then filed, and on March 5, 1958,an order was made denying the protest.










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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 pur-chaser to the individuals on the contract who soldthe contract to the purchaser. The purchase wassubject to a first mortgage of $100,000, bearing aninterest rate of 5%, held by a savings bank, whichmortgage was extended (at the time of the pur-chase) for ten years. In addition, there was a pur-chase money second mortgage of $70,000, due inten years with interest at 4 1/2% for the first sixyears and 5% the next four years, requiring noamortization for the first three years, although thefirst mortgage called for amortization quarterlyfrom inception, beginning the date of sale and ex-tension.

The Administrator in denying the protest saidthat, upon the evidence, the bulk of the purchaseprice was for the land rather than the building andthat the price paid was predominantly for its futureor potential value and not for its present value.

It is conceded the 1957 amendment makes itmandatory for the Administrator to use the most re-cent bona fide sale price rather than the assessedvaluation. However, the Rent Act and Regulation33(5), McK.Unconsol.Laws Appendix specificallyrequire that the sale be on normal financing termsand unaffected by ‘special circumstances'.

**590 The Commissioner concedes that werethe 15% cash payment the only indication of abnor-mal financing, he would in all probability have util-ized the sale price as the valuation base. However,he asserts that the 15% cash payment, coupled withthe high purchase money second mortgage (it being70% of the first *145 mortgage), and the fact thatinterest on the second mortgage was less than onthe first mortgage, and also the fact that no amortiz-ation payments are provided for the first threeyears, justify him in holding that these circum-stances are evidence of abnormal financing whichjustify 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 realestate appraiser that the terms of the sale were nor-mal. And indeed it is difficult to appreciate any ab-normality in a transaction where a savings bank ex-tends a first mortgage of $100,000. If there does ex-ist any deviation from ‘normal financing’ in thefacts relating to the relative amounts of the mort-gages and of the interest payable thereon, such de-viation is so minimal that refusal to consider thesale price is arbitrary. There is no evidence that thefinancing factors involved are not good and normalreal estate practice or that speculation was a factorin the deal.

The court therefore concludes that in refusingto accept the sales price as the basis for valuationthe Administrator acted arbitrarily, unreasonablyand illegally. The motion is granted and the pro-ceeding remanded to respondent for action not in-consistent with the foregoing. Settle order.

N.Y.Sup., 1958Lese v. Temporary State Housing Rent Commission15 Misc.2d 143, 181 N.Y.S.2d 588

END OF DOCUMENT



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Tab 9

FIND Request: 279 A.D.2d 770, 771-72


In the Matter of Carl A. BASILE et al., Appel-lants–Respondents,

v.ALBANY COLLEGE OF PHARMACY OF UNI-ON UNIVERSITY et al., Respondents–Appellants.

Jan. 11, 2001.

Pharmacy college students brought article 78proceeding challenging determinations of college'sstudent honor code committee, expelling two of thestudents and giving a third a failing grade on a re-quired course for allegedly cheating on various ex-aminations. The Supreme Court, Albany County,Malone, J., dismissed proceeding, and students ap-pealed. The Supreme Court, Appellate Division,Mugglin, J., held that statistical compilation show-ing that the college had given the same incorrectanswers to multiple choice examinations did notprovide rational basis for committee's determina-tions that the students had cheated.

Reversed; petition granted.

West Headnotes

[1] Colleges and Universities 81 9.35(4)

81 Colleges and Universities81k9 Students

81k9.35 Curriculum, Degrees, Grades, andCredits

81k9.35(3) Academic Expulsion, Suspen-sion, or Probation

81k9.35(4) k. Proceedings and Re-view. Most Cited Cases

Judicial review of academic disciplinary mat-ters between a private college and its students,where a hearing is not required by law, is whetherthe determination is arbitrary or capricious, not

whether it is supported by substantial evidence.

[2] Colleges and Universities 81 9.35(4)

81 Colleges and Universities81k9 Students

81k9.35 Curriculum, Degrees, Grades, andCredits

81k9.35(3) Academic Expulsion, Suspen-sion, or Probation

81k9.35(4) k. Proceedings and Re-view. Most Cited Cases

Statistical compilation showing that three phar-macy college students had given the same incorrectanswers to multiple choice examinations did notprovide rational basis for determinations of col-lege's student honor code committee that the stu-dents had cheated on the examinations; statisticianopined that the statistics were valid only if studentshad no knowledge of the subject matter and had notstudied together, and the students had taken the ex-aminations in separate rooms in the presence of aproctor, who discerned no evidence of cheating.

[3] Administrative Law and Procedure 15A676

15A Administrative Law and Procedure15AV Judicial Review of Administrative De-

cisions15AV(A) In General

15Ak676 k. Record. Most Cited CasesAffidavit that was not part of administrative re-

cord forming basis for administrative determina-tions being challenged in article 78 proceedingcould not be considered by Supreme Court. McKin-ney's CPLR 7801 et seq.

**200 O'Hara & O'Connell (James P. Evans ofcounsel), Syracuse, for appellants-respondents.

Pattison, Sampson, Ginsberg & Griffin P.C.(Jeffrey R. Armstrong of counsel), Troy, for re-spondents-appellants.

Page 1279 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)
















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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 inAlbany County, which dismissed petitioners' ap-plication, in a proceeding pursuant to CPLR article78, to review determinations of respondents ex-pelling petitioners Carl A. Basile and Daniel R. Pa-pelino from respondent Albany College of Phar-macy, and awarding petitioner Michael Yu a failinggrade in a required course.

Petitioners, fourth year students at respondentAlbany College of Pharmacy (hereinafter the Col-lege), were charged by several of their respectiveprofessors with cheating on examinations given invarious courses spanning two academic years. Fol-lowing a hearing conducted by respondent AlbanyCollege of Pharmacy Student Honor Code Commit-tee (hereinafter the Committee), petitioners werefound guilty of cheating despite the absence of anyevidence as to the specific means by which they al-legedly cheated. The evidence in support of thecharges consisted of (1) compilations by the variousprofessors showing that petitioners gave the sameincorrect answers to multiple choice examinations,(2) two anonymous notes, one of which *771claimed that two petitioners requested informationconcerning the contents of exams and the secondquestioning whether the same two petitioners werecheating, and (3) similar answers to questionswhich required calculations, although each petition-er utilized different calculations uncorrelated to theanswer arrived at.

Petitioners commenced this CPLR article 78proceeding to annul respondents' determinations.Although the petition alleged certain procedural de-fects in the administrative hearing process, by stip-ulation and order petitioners waived all proceduraldefects underlying the determinations. SupremeCourt, concluding that the appropriate standard ofreview was whether the determinations were ration-

ally based, dismissed the petition. As a collateralmatter, Supreme Court refused to consider an affi-davit offered by the College since it was not a partof the administrative record underlying the determ-inations under review. Petitioners now appeal Su-preme Court's dismissal of the petition and con-firmation of the determinations. Respondents**201cross-appeal from Supreme Court's refusal to con-sider the affidavit.

[1][2] As an initial matter, we observe that Su-preme Court adopted the correct standard of re-view. It is well settled that judicial review of aca-demic disciplinary matters between a private col-lege and its students, where a hearing is not re-quired by law, is whether the determination is arbit-rary or capricious, not whether it is supported bysubstantial evidence (see, Matter of RensselaerSocy. of Engrs. v. Rensselaer Polytechnic Inst., 260A.D.2d 992, 993, 689 N.Y.S.2d 292; Matter ofChristopher v. Phillips, 160 A.D.2d 1165, 1167,554 N.Y.S.2d 370, lv. denied 76 N.Y.2d 706, 560N.Y.S.2d 988, 561 N.E.2d 888). “Rationality iswhat is reviewed under both the substantial evid-ence rule and the arbitrary and capricious standard* * * ” ( Matter of Pell v. Board of Educ., 34N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d321 [citation omitted]). Unlike Supreme Court,however, we do not find that the Committee's de-terminations that petitioners cheated on various ex-aminations have a rational basis and we thereforereverse.

First, the Committee's determinations werebased solely on the statistical compilation. Whilethese may give rise to a suspicion of cheating, sus-picion alone will not suffice (see, Matter of Chiainov. Lomenzo, 26 A.D.2d 469, 473, 275 N.Y.S.2d658). An affidavit from an expert statistician, unre-butted by the College, establishes that the statisticalcase propounded by the professors is based uponfalse assumptions and therefore does not provide arational basis to conclude that petitioners cheated.Specifically, the expert's opinion points out that thestatistics are valid only if the persons taking the ex-



























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amination had no knowledge of the *772 subjectmatter (“randomness”) and had not studied together(“independence”).

Second, petitioners Carl A. Basile and DanielR. Papelino were charged with cheating in ninecourses and petitioner Michael Yu in seven courses.Basile was found guilty of cheating in six of thenine, Papelino in three of the nine and Yu in one ofthe seven. Since the same statistical methodologywas used in every instance, there is no rational ex-planation which would support a finding of guilt insome courses but not in others.

Third, respondents claim that in addition tothese statistics, there is evidence in the record ofcheating by petitioners. A careful review of theseallegations reveals that they are either hearsay an-onymous notes or based on sheer speculation,neither of which will rationally support the determ-inations of the Committee (see, 300 Gramatan Ave.Assocs. v. State Div. of Human Rights, 45 N.Y.2d176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183).Moreover, it was irrational of the Committee to de-termine that it could rely solely on the inference ofcheating raised by the statistical compilation, par-ticularly when faced with proof that petitionerstook these examinations in separate rooms and un-der the watchful eye of a proctor, who discerned noevidence of cheating.

[3] As a final matter, Supreme Court correctlyrefused to consider the affidavit offered by the Col-lege as part of its answer to the CPLR article 78proceeding to support the determination. Clearly,this affidavit was not part of the administrative re-cord forming the basis for the administrative de-terminations (see, Matter of Levine v. New YorkState Liq. Auth., 23 N.Y.2d 863, 864, 298 N.Y.S.2d71, 245 N.E.2d 804).

ORDERED that the judgment is reversed, onthe law, with costs, determinations annulled and pe-tition 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 UnionUniversity279 A.D.2d 770, 719 N.Y.S.2d 199, 150 Ed. LawRep. 474, 2001 N.Y. Slip Op. 00274

END OF DOCUMENT















Tab 10



In the Matter of ST. JAMES NURSING HOME etal., Respondents–Appellants,

v.Barbara Ann DE BUONO et al., Appel-

lants–Respondents.(And Five Other Related Proceedings.)

Nov. 18, 2004.

Background: Nursing homes brought article 78proceedings challenging three State Plan Amend-ments (SPAs) adjusting their Medicaid reimburse-ment rates, and seeking recalculation of their reim-bursements. The Supreme Court, Albany County,Benza, J., partially granted the applications, and ap-peal was taken.

Holdings: The Supreme Court, Appellate Division,Rose, J., held that:(1) evidence was sufficient to support finding thatregression analysis underlying Medicaid revenueadjustments (MRA) produced a statistically invalidand, thus, unreasonable formulation of the relation-ship between Medicaid revenue and nursing homecosts, and(2) SPAs were “approvable” within the meaning ofMedicaid regulation as of the first day of the calen-dar quarter in which those SPAs were submitted.

Affirmed.

West Headnotes

[1] Health 198H 487(2)

198H Health198HIII Government Assistance

198HIII(B) Medical Assistance in General;Medicaid

198Hk484 Providers

198Hk487 Reimbursement198Hk487(2) k. Rates in general.

Most Cited CasesA rate-setting action of the Department of

Health may be annulled only upon a compellingshowing that the calculations from which it derivedwere unreasonable. McKinney's CPLR 7803, subd.3.

[2] Health 198H 507



198Hk506 Judicial Review; Actions198Hk507 k. In general. Most Cited

CasesEvidence in proceedings challenging three

State Plan Amendments (SPAs) adjusting nursinghomes' Medicaid reimbursement rates was suffi-cient to support finding that regression analysis un-derlying Medicaid revenue adjustments (MRA) pro-duced a statistically invalid and, thus, unreasonableformulation of the relationship between Medicaidrevenue and nursing home costs; expert testifiedthat the inclusion of data from non-economicallyoperated facilities (non-EEOFS) meant that theMRA reduced the necessary costs of EEOFs muchmore than the correlation between their revenue andcosts would warrant. McKinney's Public HealthLaw § 2807, subd. 3.

[3] Health 198H 487(3)



198Hk484 Providers198Hk487 Reimbursement

198Hk487(3) k. Nursing home andhospital rates in general. Most Cited Cases

State Plan Amendments (SPAs) adjusting nurs-





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ing homes' Medicaid reimbursement rates were“approvable” within the meaning of Medicaid regu-lation as of the first day of the calendar quarter inwhich those SPAs were submitted, since underlyingfindings constituted supplemental materials thatwere submitted to Health Care Financing Adminis-tration (HCFA) before it ruled on the sufficiency ofthe SPAs. 42 C.F.R. § 447.256(c).

[4] Health 198H 487(3)





State Plan Amendment (SPA) adjusting nursinghomes' Medicaid reimbursement rates which wasapproved before underlying findings were issuedwas not then an “approvable” submission and itcould not become effective prior to the submissionof an “approvable” SPA. 42 C.F.R. § 447.256(c).

[5] Health 198H 487(3)





It is within Health Care Financing Administra-tion's (HCFA) discretion to decide when additionalnotices or assurances are needed for a State PlanAmendment (SPA) adjusting nursing homes' Medi-caid reimbursement rates. 42 C.F.R. §§ 447.205,447.253, 447.255.

**713 Eliot Spitzer, Attorney General, Albany (Victor Paladino of counsel), for appellants-re-spondents.

Harter, Secrest & Emery L.L.P., Rochester (Thomas G. Smith of counsel), for respondents-appel-lants.

Before: MERCURE, J.P., PETERS, MUGGLIN,ROSE and LAHTINEN, JJ.

ROSE, J.*921 Cross appeals from a judgment of the Su-

preme Court (Benza, J.), entered June 18, 2003 inAlbany County, which, inter alia, partially grantedpetitioners' applications, in six proceedings pursu-ant to CPLR article 78, to recalculate respondents'Medicaid reimbursement rates for the periodbetween April 1995 and October 1997.

These proceedings stem from earlier litigationin which numerous nursing homes located in NewYork successfully asserted that certain adjustmentsto the state's Medicaid reimbursement rates madeby a 1987 State Plan Amendment (hereinafter the1987 Adjustment) were invalid for failure to com-ply with the Boren Amendment (42 USC former §1396a [a][13][A] ). As then existing, the BorenAmendment afforded health care providers certainsubstantive and procedural rights by requiringstates to make findings and assure the Health CareFinancing Administration (hereinafter the HCFA)that their reimbursement plans provided“reasonable and adequate” payment to “meet thecosts which must be incurred by efficiently andeconomically operated facilities” (42 USC former §1396a [a][13][A]; see Wilder v. Virginia Hosp.Assn., 496 U.S. 498, 509–510, 110 S.Ct. 2510, 110L.Ed.2d 455 [1990] ). Due to insufficient findings,the 1987 Adjustment was found to be in violationof the Boren Amendment and judicially invalidated“until such time as proper findings [were] submit-ted and approved by HCFA” (Pinnacle NursingHome v. Axelrod, 928 F.2d 1306, 1318 [1991]; seeMatter of Avon Nursing Home v. Axelrod, 83N.Y.2d 977, 983, 616 N.Y.S.2d 327, 639 N.E.2d1124 [1994] ).



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Beginning in April 1995, respondents reimple-mented the 1987 Adjustment through three StatePlan Amendments **714 (hereinafter SPAs): SPA95–23, SPA 95–24 and SPA 96–24. In support ofthese SPAs, respondents made new findings(hereinafter the 1995 *922 findings) using thethree-step procedure mandated in Pinnacle Nurs-ing Home v. Axelrod, supra at 1314–1315 to meetthe requirements of the Boren Amendment. Re-spondents first identified efficiently and economic-ally operated facilities (hereinafter EEOFs) as thosenursing home facilities with costs less than the me-dian of the costs reported by all facilities. Respond-ents next calculated the “necessary” costs that mustbe incurred by EEOFs using, among other things, aMedicaid revenue adjustment (hereinafter theMRA) that effectively reduced a facility's reimburs-able costs in proportion to the amount of revenuereceived from sources other than Medicaid. Theamount of the MRA was calculated using a formuladerived from a regression analysis of the relation-ship between the costs reported by all facilities in1993 and the percentages of their revenues receivedfrom Medicaid. Finally, respondents compared thenecessary costs calculated using the MRA with thestate's reimbursement rates to show that those ratesmore than met the necessary costs of EEOFs.

When the 1995 findings were later held to beinadequate to support the SPAs because, amongother things, the regression analysis underlying theMRA was found to be flawed, respondents were re-quired to make new findings without the MRA (seeValley 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 theBoren Amendment, however, respondents' appealfrom that ruling was dismissed as moot and the un-derlying complaint was dismissed (see Hall v. Sulli-van, 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 proceedingschallenging the three SPAs and seeking recalcula-

tion of their reimbursements for the period betweenApril 1995 and October 1997. Petitioners allegedthat, among other things, the 1995 findings were in-sufficient to meet the procedural requirements ofthe Boren Amendment. To resolve the factual issueof whether the MRA had a statistically valid basisin respondents' regression analysis, Supreme Courtreviewed the parties' submission of the record ofthe hearing held in Valley View Manor NursingHome v. De Buono, supra and found the regressionanalysis insufficient to support the MRA. The courtthen concluded that while the 1995 findings failedto support the three SPAs due to their inclusion ofthe MRA, respondents' revised findings in 1997(hereinafter the 1997 findings), which did not in-clude the MRA, effectively cured the defects as toSPA 95–24 and SPA 96–24, but *923 not as to SPA95–23. Supreme Court ordered respondents to re-calculate petitioners' reimbursement rates for therelevant time period without using the SPA 95–23adjustment. Respondents and petitioners cross-ap-peal.

On their appeal, respondents argue that the re-gression analysis upon which the MRA is basedwas a rational approach to calculating necessarycosts. More specifically, they assert that the rela-tionship between Medicaid revenue and costs, uponwhich the MRA is predicated, was suggested by an-ecdotal evidence of nursing home practices, suppor-ted by the economic principle that spending prac-tices are influenced by revenue streams and quanti-fied through the use of an accepted statistical tool.

[1] The standard of review applicable to an ad-ministrative action such as that taken here by re-spondents is whether it **715 had a rational basisin the record, and was not unreasonable, arbitraryor capricious (see CPLR 7803 [3]; Kuppersmith v.Dowling, 93 N.Y.2d 90, 96, 688 N.Y.S.2d 96, 710N.E.2d 660 [1999]; New York State Assn. ofCounties v. Axelrod, 78 N.Y.2d 158, 166, 573N.Y.S.2d 25, 577 N.E.2d 16 [1991] ). A rate-settingaction of the Department of Health may be annulledonly “upon a compelling showing that the calcula-



















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tions from which it derived were unreasonable” (Matter of Catholic Med. Ctr. of Brooklyn & Queensv. Department of Health of State of N.Y., 48 N.Y.2d967, 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, 577N.E.2d 16; Matter of Society of N.Y. Hosp. v. Axel-rod, 70 N.Y.2d 467, 473, 522 N.Y.S.2d 493, 517N.E.2d 208 [1987] ). Further, “we note that ‘[a] tri-al court's findings are not to be lightly set aside un-less its conclusions could not have been reachedbased 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 HudsonCounty, 226 A.D.2d 893, 894, 640 N.Y.S.2d 363[1996] ).

[2] The record of the hearing in Valley ViewManor Nursing Home v. De Buono, supra containsample evidence supporting Supreme Court's findingthat respondents' regression analysis produced astatistically invalid and, thus, unreasonable formu-lation of the relationship between Medicaid revenueand nursing home costs. Petitioners' expert, JackZwanziger, testified that while regression analysisis a well-accepted statistical tool, it was used im-properly by respondents. Zwanziger reported thathe performed an F Test, a standard statistical testwhich gauges whether the variances in two groupsof data are sufficiently similar for the groups to becombined in a single regression analysis, and thistest demonstrated that it was statistically inappro-priate to combine the data from EEOFs and non-EEOFs. Zwanziger also stated that the inclusion ofdata from non-*924 EEOFs meant that the MRA re-duced the necessary costs of EEOFs much morethan the correlation between their revenue and costswould warrant. Zwanziger noted that it is also con-ceptually inappropriate to include the non-EEOFdata in the regression because reimbursement ratesare to be based upon the necessary costs of EEOFsonly (see Public Health Law § 2807[3] ). In light ofthis testimony and the absence of empirical datafrom any EEOF to confirm the mathematical valid-

ity of the formula produced by the regression ana-lysis, we find that the evidence supports SupremeCourt's conclusion that the MRA lacked a rationalbasis.

[3][4] On their cross appeal, petitioners con-tend that none of the SPAs should have become ef-fective prior to October 1, 1997 because they werenot “approvable” until that date. However, since the1997 findings constituted supplemental materialsthat were submitted to HCFA before it ruled on thesufficiency of SPA 95–24 and SPA 96–24, weagree with Supreme Court's conclusion that thoseSPAs were “approvable” within the meaning of 42CFR 447.256(c) as of the first day of the calendarquarter in which those SPAs were submitted (seeIndependent Acceptance Co. v. California, 204 F.3d1247, 1256 [2000] ). Contrary to respondents' argu-ment, however, the 1997 findings do not provide asimilar effective date for SPA 95–23. Inasmuch asthat SPA was approved before the 1997 findingswere issued, it was not then an “approvable” sub-mission and it could not become effective prior tothe submission of an “approvable” SPA (see Stateof 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.2d1124 [1994]; see also 42 CFR 447.256[c] ).

[5] Finally, we find no merit in petitioners' ar-guments that respondents failed to give adequatenotice to the public and timely assurances to HCFAfor SPA 96–24. The regulations do not require sup-plemental notice or assurances when the overall ef-fect of the amendments is different because the le-gislation as enacted does not include all of theamendments listed in the notice (see 42 CFR447.205, 447.253, 447.255), and it is withinHCFA's discretion to decide when additional no-tices or assurances are needed (see State of NewYork v. Shalala, supra at 182–183).

ORDERED that the judgment is affirmed,without costs.














































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MERCURE, J.P., PETERS, MUGGLIN andLAHTINEN, JJ., concur.

N.Y.A.D. 3 Dept.,2004.St. James Nursing Home v. De Buono12 A.D.3d 921, 784 N.Y.S.2d 712, 2004 N.Y. SlipOp. 08303

END OF DOCUMENT







Tab 11

FIND Request: 2006 WL 1867325, at *3(The decision of the Court is referenced in a tablein the New York Supplement.)

Supreme Court, Cortland County, New York.In the Matter of the Application of GEORGE

MOORE TRUCK & EQUIPMENT CORPORA-TION, Petitioner–Plaintiff,

v.The NEW YORK STATE DEPARTMENT OF EN-VIRONMENTAL CONSERVATION and DeniseSheehan as Commissioner of the New York StateDepartment of Environmental Conservation, Re-

spondents–Defendants.

No. 39248.July 3, 2006.

Young, Sommer, Ward, Ritzenberg, Baker &Moore, LLC, by Lawrence R. Schillinger, Esq., Al-bany, for Petitioner–Plaintiff.

Eliot Spitzer, Attorney General of the State of NewYork, by Judith S. Karpen, Esq., Albany, for Re-spondents–Defendants.

PHILLIP R. RUMSEY, J.*1 In this CPLR article 78 proceeding, petition-

er seeks review of certain actions taken by respond-ent in connection with the clean up of petroleum-contaminated soils at a salvage yard in the Town ofCortlandville (hereinafter the Knight property),commencing in November 2004. After the owner ofthe property was convicted of illegally operating ajunkyard in violation of the Town zoning law, hehired Northern Car Crushers (a “division” of peti-tioner, George Moore Truck & Equipment Corp.) tocrush and remove junk cars from the premises.Between June and November 2004, petitionercrushed several hundred junk cars, trucks, and otherscrap, using a loader (to move the vehicles), adraining rack (to drain gasoline and other fluids

from them), and a crusher.

On November 16, 2004, a representative of re-spondent Department of Environmental Conserva-tion (DEC) visited the Knight property, and ob-served signs of petroleum contamination around theareas where petitioner's drain rack and crusher werelocated. Petitioner initially undertook to clean upthe spills in those areas and to take measurementsof soil contamination, ultimately hiring (at DEC'surging) Op Tech Environmental Services, Inc. tocarry out those tasks (Affidavit of Russell Moore,dated March 22, 2006, ¶ 15), but within a few daysDEC had taken over control of the clean up opera-tion, ostensibly at the request of the property owner(R. Moore Affidavit, ¶ 20; Affidavit of ChristineRossi, dated January 26, 2006, ¶ 22). Op Tech (nowretained by DEC) continued to conduct excavationand clean up activities on the site until at leastJanuary 2006, at which time DEC's project man-ager, Christine Rossi, averred that its work was“nearing completion” (Rossi Affidavit, ¶ 27).

In January 2005, DEC sent petitioner's prin-cipals a letter, informing them that they (or peti-tioner-the letter is not clear) were responsible forremediation of contamination caused by “the dis-charge of petroleum * * * from practices[petitioner] executed while carrying out car crush-ing activities” at the Knight property, and that theywould be “billed for the actual costs incurred by theState” for the clean up (Amended Verified Petition,Exhibit 11 [Letter of January 13, 2005] ). Theywere also informed of their right to take over the re-mediation efforts, by hiring a “capable” contractor,of their right to pursue claims against other parties,and of their right—provided they were not deemed“responsible parties”—to file a claim against theState Environmental Protection and Spill Compens-ation Fund (id.).

Believing the actions undertaken by Op Tech,under respondent's direction, were unreasonable inseveral respects, and that DEC was erroneously






holding petitioner responsible for the cost of clean-ing areas of petroleum contamination that were notcaused by its car-crushing activities, petitionercommenced this CPLR article 78 proceeding inMay 2005. Several extensions and adjournmentswere agreed to by the parties, and petitioner servedand filed an Amended Petition in December 2005.Respondent answered the Amended Petition, ar-guing, inter alia, that the proceeding must be dis-missed as premature or on the ground that petition-er has another available remedy, to wit, the oppor-tunity to raise its concerns in defense of a plenaryaction brought by the State to recover under theNavigation Law.

*2 A careful reading of the petition, as aug-mented by the affidavits tendered by petitioner, re-veals that several distinct legal arguments havebeen raised as grounds for the relief sought(namely, a declaration that petitioner is not liablefor paying the entire cost of the remediation effortsundertaken at the Knight property). Because aCPLR article 78 proceeding does not lie wherethere is another legal remedy available (see, Matterof Art–Tex 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 anyclaim that may be adjudicated within the scope ofan action brought pursuant to the Navigation Law (see, id.), the court shall first consider whether someof petitioner's claims must fail for this reason.

Insofar as petitioner contends that it should notbe held liable for clean up costs because it is not a“discharger” as that term as defined by the Naviga-tion Law-of the petroleum that was spilled and ulti-mately cleaned up, that is one of the core issues thatmust be determined in a plenary action to recoverclean up costs under Navigation Law § 181. Wheth-er petitioner's activities actually resulted in anyspillage of petroleum products at all; whether suchspillage, if any, combined with prior spills such thatits effects cannot be separated for purposes of as-signing responsibility for the “direct and indirectdamages” caused by each; and whether, under such

circumstances, an entity that released petroleum in-to one area, which combined with one or more oth-er spills that affected a larger area, may be deemeda “discharger” with respect to the entire contamin-ated area, are all issues that may be raised and adju-dicated in a Navigation Law action. Accordingly,those issues, which go essentially to the fundament-al question of whether, and to what extent, an entitycan be held liable for payment of cleanup costs(regardless of the amount of those costs), are notthe proper subject of a CPLR article 78 proceeding.FN1 Thus, insofar as petitioner's claims herein arefocused on such questions, they must be dismissed.

FN1. Although those claims may becouched in terms of whether the DEC ac-ted “arbitrarily or capriciously” in deemingpetitioner liable, the same could be truewhenever it is alleged that an agency hasruled in a manner contrary to the govern-ing law. The critical inquiry must thereforefocus on whether the matter may be prop-erly adjudicated, and the desired reliefprovided, in the context of any other typeof legal proceeding.

The Court of Appeals has held, however, thatthe reasonableness of the actual expenditures madeby DEC to clean up a spill may not be raised in anaction brought pursuant to the Navigation Law, torecover those costs (see, State of New York v. Spe-onk Fuel, 3 NY3d 720, 724 [2004]; cf., State ofNew York v. Dennin, 17 AD3d 744, 745–746 [2005]). Thus, petitioner's allegations that respondent, orthose operating under its direction and control, ac-ted in an arbitrary and capricious manner in carry-ing out the actual clean up operation, and in so do-ing, incurred unreasonable and unnecessary costs(regardless of who may or may not be responsiblefor payment of those costs), are not subject to dis-missal on the ground that another legal remedy isavailable. In this regard, as respondent emphasizes,the agency may not be penalized for mere negli-gence or errors in judgment (see, Navigation Law §176[2][b] ); rather, its actions will be reviewed un-







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der the more deferential “arbitrary and capricious”standard (Speonk Fuel, at 724).FN2

FN2. Similarly, respondent's alleged fail-ure to comply with the National Oil andHazardous Substances Pollution Contin-gency Plan cannot provide a basis for peti-tioner to obtain relief, in the absence ofany showing that such non-compliance wasarbitrary, capricious or entirely without ra-tional basis.

*3 Afforded the benefit of every favorable in-ference (as they must be at this juncture), the alleg-ations of the amended petition, as elucidated by theaffidavits of experts and factual witnesses tenderedby petitioner, are sufficient to state a claim forbreach of that standard (see, e.g., Amended Veri-fied Petition, ¶¶ 1, 53–72, 86, 88; Affidavit of ErikSandblom, P.E., dated May 16, 2005, ¶¶ 5–10,12–13, 15–16; Affidavit of Erik Sandblom, P.E.,dated March 22, 2006, ¶¶ 34, 37, 39). The conflict-ing proof submitted by respondent merely raisesfactual questions which cannot be resolved in sum-mary fashion.

While there may have been some merit to re-spondent's contention that this proceeding was pre-mature when it was commenced, inasmuch as no fi-nal determination had been made (or at least com-municated to petitioner) as to the amount expendedin the clean up (the only issue that is properly con-tested herein), a letter sent to petitioner on or aboutJanuary 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,” aswell as a penalty of $500,000, and demands pay-ment of those amounts (reflecting “costs incurred todate”) by February 24, 2006. This letter plainly re-flects and communicates a “final determination” ofthe agency as to the amount spent on the clean upprior to the date of the letter, as well as petitioner'sliability for that amount. Were no action takenwithin four months (CPLR 217[1] ) of petitioner'sreceipt of that letter, respondent could reasonably

argue that the time for contesting the reasonable-ness of the amounts set forth therein had passed.FN3 Thus, no purpose would be served by dismiss-ing this proceeding on grounds of ripeness or final-ity, as petitioner would merely re-commence it im-mediately, pursuant to CPLR 205(a) (cf., Matter ofMahoney v. Board of Educ. of Mahopac Cent.School Dist., 113 A.D.2d 942, 943 [1985]; Matterof Day Surgicals, Inc. v. State Tax Comm'n, 97A.D.2d 865, 866 [1983] ). Judicial economy will bebest served in this instance by allowing this pro-ceeding to continue, as if it had been brought afterissuance of the January 2006 letter determination.FN4

FN3. Arguably, a “determination” as to thecost of the cleanup was made by theagency each time it made a payment or ap-proved a bill for a portion of that cost. Pe-titioner could not claim to be aggrieved bythat determination, however, until theagency decided that petitioner was liable topay the costs.

FN4. Although it was suggested in Matterof Frumoff v. Wing (239 A.D.2d 216[1997] ) that the ripeness of a matter mustbe assessed at the time that it is com-menced, without regard to later events thatmay have cured a problem that then exis-ted, there the petitioner's failure to exhaustadministrative remedies was not cured un-til after Supreme Court issued its decision(indeed, the final agency determinationwas not issued until after the appeal wasargued). Thus, the Appellate Division(which must consider the propriety of thelower court's decision, at the time it ismade) properly held that the trial courterred in addressing the merits of the peti-tion, because it did so at a time when therehad not yet been a final determination thatcould be reviewed. In this case, however,the final determination was made beforethe petition was even returnable before Su-

















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preme Court. Thus, there is no logical reas-on for the court to elevate form over sub-stance by dismissing this proceeding whenpetitioner could simply commence another,identical one, immediately.

Lastly, with regard to petitioner's claim for an“offset” against its ultimate liability (if any), to theextent that respondent's allegedly unlawful and neg-ligent acts caused it harm, that claim must also bedismissed. The recovery of such damages is not“incidental to” petitioner's contention that respond-ent acted in an arbitrary or capricious manner, asthat term is defined by CPLR 7806. The damagessought by petitioner could not be recovered, in anaction in Supreme Court, on the “same set of facts”necessary to prove that respondent acted arbitrarilyor capriciously; nor does the recovery of damagesflow automatically or necessarily from the reversalof the challenged action (compare, Matter of Grossv. Perales, 72 N.Y.2d 231, 236 [1988] ). Damagescould, theoretically, be recovered on the groundslisted in Navigation Law § 176 even if there wereno “arbitrary or capricious” action to be reversed,and they might not be available even if there weresuch action. The standards to be applied, and ques-tions to be answered, in determining whether dam-ages may be recovered (e.g., did respondent act un-lawfully, willfully or maliciously, or cause a“discharge of petroleum” in violation of Navigationlaw § 173) are entirely different from those applic-able in this proceeding. Moreover, inasmuch asthere will be no determination of liability in thisproceeding, there will be nothing against which to“offset” any recovery to which petitioner might beentitled.

*4 Accordingly, the third cause of action setforth in the Amended Petition is dismissed in its en-tirety, and the remaining causes of action are dis-missed insofar as they seek a determination as towhether petitioner is liable, pursuant to NavigationLaw § 181, for all or part of the costs incurred incleaning up the environmental contamination on theKnight property. The remaining claims raise factual

questions that cannot be resolved without an evid-entiary hearing. It is, however, most reasonable, un-der the circumstances, to defer consideration ofsuch matters until there has been a final determina-tion as to whether petitioner is, in fact, liable for allor part of such costs, or at least until an action hasbeen brought to determine its liability (at whichtime it may be appropriate to consolidate the twomatters, or try them together). Accordingly, thismatter shall be held in abeyance, and marked offthe trial calendar, pending the commencement offurther proceedings by either party.

This decision shall constitute the order of thecourt.

N.Y.Sup.,2006.George Moore Truck & Equipment Corp. v. NewYork State Dept. of Environmental Conservation12 Misc.3d 1178(A), 824 N.Y.S.2d 762, 2006 WL1867325 (N.Y.Sup.), 2006 N.Y. Slip Op. 51298(U)

END OF DOCUMENT












Tab 12



In the Matter of James MONTGOMERY et al., Ap-pellants,

v.BOARD OF ASSESSMENT REVIEW OF the

TOWN OF UNION et al., Respondents.

June 8, 2006.

Background: Taxpayers initiated Article 78 pro-ceeding challenging small claims assessment re-view hearing officer's decisions upholding their realproperty tax assessments. The Supreme Court,Broome County, Relihan Jr., J., dismissed petitionand denied taxpayers' motion for reconsideration.Taxpayers appealed.

Holding: The Supreme Court, Appellate Division,Mugglin, J., held that fact issues remained as towhether town's method of assessment was discrim-inatory.

Affirmed as modified.

West Headnotes

[1] Taxation 371 2515

371 Taxation371III Property Taxes

371III(H) Levy and Assessment371III(H)5 Valuation of Property

371k2512 Real Property in General371k2515 k. Market Value and Sale

Price; Comparable Sales. Most Cited CasesMost reliable means of ascertaining value of

property for assessment purposes is market value.

[2] Taxation 371 2515


371III(H) Levy and Assessment371III(H)5 Valuation of Property

371k2512 Real Property in General371k2515 k. Market Value and Sale

Price; Comparable Sales. Most Cited CasesFor purposes of determining property's value

for tax assessment purposes, in absence of recentarms-length sale of property, comparable salesmethod is most reliable indicia of market value.

[3] Taxation 371 2128


371III(B) Laws and Regulation371III(B)4 Constitutional Regulation and

Restrictions Concerning Equality and Uniformity371k2128 k. Discrimination as to

Mode of Assessment or Valuation. Most CitedCases

All real property within taxing unit must be as-sessed at uniform percentage of value and, regard-less of methodology adopted by assessor, resultmust reflect realistic value of property so that taxburden of each property is equitable.

[4] Judgment 228 181(32)

228 Judgment228V On Motion or Summary Proceeding

228k181 Grounds for Summary Judgment228k181(15) Particular Cases

228k181(32) k. Tax Cases. Most CitedCases

Genuine issue of material fact as to whethertown's method of assessment resulted in differenttreatment of newly constructed residences and olderexisting residences precluded summary judgment inaction by owners of newly constructed residencesalleging that town's method of assessment was dis-criminatory.

**419 Hinman, Howard & Kattell, L.L.P., Bing-hamton (Paul T. Sheppard of counsel), for appel-






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lants.

Pope, Schrader & Murphy, L.L.P., Binghamton (Alan J. Pope of counsel), for respondents.

Before: CARDONA, P.J., CREW III,CARPINELLO, MUGGLIN and ROSE, JJ.

MUGGLIN, J.*748 Appeals (1) from an order of the Supreme

Court (Relihan Jr., J.), entered April 11, 2005 inBroome County, which dismissed petitioners' ap-plication, in a proceeding pursuant to CPLR article78 to, inter alia, review determinations by a SmallClaims Assessment Review Hearing Officer up-holding petitioners' real property tax assessments,and (2) from an order of said court, entered July 6,2005 in Broome **420 County, which denied peti-tioners' motion for reconsideration.

Petitioners in this CPLR article 78 proceedingchallenge the tax assessment on their newly con-structed homes in the Town of Union, BroomeCounty, and further assert a claim that the methodo-logy used by the Town to establish taxable values isdiscriminatory. Petitioners' respective complaints torespondent Board of Assessment Review of theTown of Union (hereinafter BAR) were denied andthey brought separate Small Claims AssessmentReview (hereinafter SCAR) proceedings. TheSCAR challenges were rejected by the respectiveHearing Officers and petitioners joined in bringingthis proceeding. Supreme Court dismissed the peti-tion and denied petitioners' subsequent motion forreconsideration, and petitioners now appeal.

[1][2] In the SCAR proceedings, the respectivepetitioners relied upon evidence of their investmentin the residential property comprised of the cost ofacquisition of the lot, plus the cost of constructionof the home, to demonstrate excessive assessment.The most reliable means of ascertaining the valueof the property at issue for assessment purposes ismarket value (see Matter of Great Atl. & Pac. TeaCo. v. Kiernan, 42 N.Y.2d 236, 240, 397 N.Y.S.2d

718, 366 N.E.2d 808 [1977] ). Market value isdefined as “the selling price upon which a reason-ably informed buyer and seller would agree, in anopen market setting, neither of whom is acting un-der any constraint or compulsion regarding thetransaction” ( Matter of Lupo v. Board of Assessorsof Town of Huron, 10 Misc.3d 473, 474, 799N.Y.S.2d 405 [2005]; see Matter of Kondrup v. As-sessor of Town of Binghamton, 3 A.D.3d 625, 627,770 N.Y.S.2d 451 [2004] ). In the absence of a re-cent arms-length sale of the property, the compar-able sales method is the most reliable indicia ofmarket value (see Matter of Saratoga Harness Ra-cing v. Williams, 91 N.Y.2d 639, 643, 674N.Y.S.2d 263, 697 N.E.2d 164 [1998]; *749Matterof Niagara Mohawk Power Corp. v. Town of Mor-eau Assessor, 307 A.D.2d 669, 670, 762 N.Y.S.2d847 [2003] ). Here, petitioners' evidence failed tosustain their burden of demonstrating that the re-spective assessments were excessive or unequal (see Matter of Krzys v. Town of Clifton Park, 267A.D.2d 658, 659, 699 N.Y.S.2d 554 [1999]; Matterof Meola v. Assessor of Town of Colonie, 207A.D.2d 593, 594, 615 N.Y.S.2d 506 [1994], lv.denied 84 N.Y.2d 812, 622 N.Y.S.2d 915, 647N.E.2d 121 [1995] ). Moreover, given the HearingOfficers' discretion to consider a wide variety ofsources and information in evaluating assessments,we conclude that the comparable sales informationrelied upon by the Town Assessor provided a ra-tional basis for the SCAR determinations. Accord-ingly, we conclude that Supreme Court correctlydismissed this portion of the petition.

[3][4] However, we reach a different conclu-sion as to that portion of the petition which attacksthe Town's assessment methodology as being un-constitutional. As an initial matter, a challenge to areal property assessment methodology as unconsti-tutional is properly brought in a CPLR article 78proceeding (see Matter of Averbach v. Board of As-sessors of Town of Delhi, 176 A.D.2d 1151, 1152,575 N.Y.S.2d 964 [1991] ). Fundamentally, peti-tioners claim that the Town Assessor uses currentmarket value to assess newly constructed homes but












































not older existing residential properties, thus creat-ing two different classes of residential propertiesthat are treated differently for purposes of taxation.It is well settled that all real property within a tax-ing unit must be assessed at a uniform percentageof value and, regardless**421 of the methodologyadopted by the Assessor, the result must reflect therealistic value of the property so that the tax burdenof each property is equitable (see Matter of Adamsv. 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 ofnewly constructed residences within the Town andassert that such method is permissible and does notconstitute “selective assessment.” Additionally, re-spondents contend that petitioners have failed topresent sufficient proof of the alleged discriminat-ory assessment practice, requiring dismissal of thepetitions. We disagree. Petitioners have adequatelystated a viable claim and presented evidence whichcreates significant material issues of fact whichshould be resolved at trial. Petitioners' expert affi-davit supports both the claim of different treatmentto comparable properties and petitioners' request foradditional discovery. Since we conclude that peti-tioners have provided more than mere conclusorystatements in support of the allegations of discrim-inatory practices, we conclude that Supreme Courterred by dismissing the petition in this regard (seeMatter of Averbach v. Board of Assessors of Townof 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 muchthereof as dismissed petitioners' claim of discrimin-atory assessment practices and denied the requesteddiscovery; matter remitted to the Supreme Court fordiscovery and further proceedings not inconsistentwith this Court's decision; and, as so modified, af-firmed.

CARDONA, P.J., CREW III, CARPINELLO andROSE, JJ., concur.

N.Y.A.D. 3 Dept.,2006.Montgomery v. Board of Assessment Review of

Town of Union30 A.D.3d 747, 817 N.Y.S.2d 419, 2006 N.Y. SlipOp. 04498

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Tab 13


Supreme Court, Appellate Division, Third Department,New York.

In the Matter of TOWN OF GREENVILLE, ORANGECOUNTY, Appellant,

v.NEW YORK STATE BOARD OF REAL PROPERTY

SERVICES, Respondent.

June 11, 1998.

Taxpayer brought article 78 proceeding to reviewdecision of State Board of Real Property Services set-ting equalization rate. The Supreme Court, AlbanyCounty, Teresi, J., entered judgment dismissing applica-tion, and taxpayer appealed. The Supreme Court, Ap-pellate Division, White, J., held that: (1) failure to usemost current data did not invalidate Board's methodo-logy; (2) failure to appraise any sample parcels fromone category of commercial property did not invalidatemethodology; and (3) taxpayer had to support its posi-tion regarding valuation of sample parcels with apprais-als or expert analysis.

Affirmed.

West Headnotes

[1] Taxation 371 2634


371III(H) Levy and Assessment371III(H)7 Equalization of Assessments

371k2630 Equalization Among Counties orOther Municipalities by State Board or Officer

371k2634 k. Review of Proceedings.Most Cited Cases

(Formerly 371k450(4))Determination of State Board of Real Property Ser-

vices setting equalization rate was quasi-judicial de-termination which had to be sustained if supported bysubstantial evidence, even though an adjudicatory hear-

ing was not conducted.

[2] Taxation 371 2634





(Formerly 371k450(4))Taxpayer had burden to show that equalization rate

promulgated by State Board of Real Property Serviceslacked a rational basis.

[3] Taxation 371 2632




371k2632 k. Method of Equalizing As-sessments. Most Cited Cases

(Formerly 371k450(2))Failure to use most current data in determining es-

timated market value of municipality's taxable propertydid not invalidate methodology used by State Board ofReal Property Services in setting equalization rate.

[4] Taxation 371 2632




371k2632 k. Method of Equalizing As-sessments. Most Cited Cases

(Formerly 371k450(2))Failure to appraise any sample parcels in municip-
































ality from one category that numerically representedover 50% of taxpayer's commercial property did not in-validate methodology used by State Board of Real Prop-erty Services in setting equalization rate, where subjectcategory represented less than one quarter of one per-cent of assessed value of taxpayer's commercial prop-erty.

[5] Taxation 371 2634





(Formerly 371k450(4))Failure to include fire district charges in State

Board of Real Property Services' equalization rate cal-culations would not be considered on review, where is-sue was not raised at administrative level.

[6] Taxation 371 2634





(Formerly 371k450(4))Taxpayer challenging as excessive valuations of

several sample parcels, used by Board of Real PropertyServices in setting equalization rate, had to support itsposition with its own appraisals or with expert analysisdocumenting and detailing the deficiencies in Board'svaluations.

[7] Taxation 371 2634





(Formerly 371k450(4))Whether taxpayer was entitled to discover certain

“turn-around” documents that contained State Board ofReal Property Services' calculations on how each com-parable sale was adjusted or the amount of any such ad-justment, in setting equalization rate, was not before re-viewing court, in absence of any administrative orderrelating to that issue.

**167 Segal, Goldman & Mazzotta (Paul Goldman, ofcounsel), 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 AlbanyCounty, which dismissed petitioner's application, in aproceeding pursuant to CPLR article 78, to review a de-termination of respondent setting the final State equaliz-ation rate for petitioner's 1993 assessment roll.

In December 1993, respondent advised petitionerthat its tentative 1993 equalization rate was 87.43.FN1

Thereafter, petitioner submitted a complaint challengingthe appraised values of 45 of the 55 sample parcels usedto calculate the 1992 estimated market value of petition-er's taxable property. FN2 Petitioner's complaint andsupporting documentation was reviewed by respondent'sComplaint Review Panel, resulting in a reduction in ap-praised value of 19 sample parcels. This, in turn, led re-spondent to establish a final equalization rate of 93.94.Petitioner challenged respondent's determination in thisCPLR article 78 proceeding which Supreme Court dis-missed, finding the determination supported by substan-






























tial evidence and that it is neither arbitrary or capri-cious. Petitioner appeals.

FN1. This equalization rate represented the ra-tio of petitioner's 1993 assessed value to the1992 estimated fair market value of its taxable

property. This ratio is expressed in the follow-ing equation:

1993 assessed value

1992 estimated market value

(see, Matter of Town of Stony Cr. v. New YorkState Bd. of Equalization & Assessment, 207A.D.2d 242, 243, 622 N.Y.S.2d 123). For abrief description of the methodology utilized incalculating the rate, see Matter of Wisseman v.New York State Bd. of Equalization & Assess-ment, 212 A.D.2d 196, 197 n. 1, 628 N.Y.S.2d455, lv. denied 87 N.Y.2d 804, 639 N.Y.S.2d311, 662 N.E.2d 792.

FN2. The petition refers to 46 objections;however, petitioner only objected to 45 sampleparcels, having objected to one sample parceltwice.

[1][2] *789 Pointing out that it did not receive afull evidentiary hearing, petitioner contends that re-spondent's determination should be measured by the ar-bitrary and capricious standard of review. Even thoughan adjudicatory hearing was not conducted, respondent'sdetermination is nevertheless considered a quasi-judi-cial one which must be sustained if supported by sub-stantial evidence (see, Matter of Town of Greenburgh v.New York State Bd. of Equalization & Assessment, 226A.D.2d 546, 641 N.Y.S.2d 91; **168Matter of Town ofHardenburgh v. State of New York, 210 A.D.2d 673,619 N.Y.S.2d 391, lv. denied 85 N.Y.2d 808, 628N.Y.S.2d 51, 651 N.E.2d 919; Matter of City of WhitePlains v. New York State Bd. of Equalization & Assess-ment, 205 A.D.2d 771, 613 N.Y.S.2d 439). Further, it ispetitioner's burden to show that the rate respondent pro-mulgated lacks a rational basis (see, Matter of Incorpor-ated Vil. of Lynbrook v. New York State Bd. of Equaliz-ation & Assessment, 209 A.D.2d 765, 617 N.Y.S.2d1001). We shall now examine the record to determine ifpetitioner satisfied its burden.

[3] The establishment of the estimated market valueof a municipality's taxable property involves an intricateand complex series of steps and mathematical equations(9 NYCRR part 186). In this instance, the procedure inbroad outline involved the appraisal of 55 sample par-cels as of March 1, 1990 and thereafter adjusting the1990 values to reflect the values as of January 1, 1992.Petitioner maintains that this methodology, particularlythe use of 1990 values, was irrational inasmuch as therewas more current information available since, shortlybefore the establishment of the 1993 rate, its assessmentrolls underwent a revaluation. While petitioner has ad-vanced an alternative methodology, it has not shownthat respondent's methodology was inadequate, which isthe determinative issue (see, Matter of Town of Harden-burgh v State of New York, supra, at 674, 619 N.Y.S.2d391). We have previously rejected the argument that re-spondent's methodology is unsound because it relies onpurportedly stale data (see, Matter of Incorporated Vil.of Lynbrook v New York State Bd. of Equalization & As-sessment, supra, at 767, 617 N.Y.S.2d 1001). Moreover,respondent's methodology has received extensive judi-cial scrutiny and has been found to be sound (see, Mat-ter of Town of Greenburgh v New York State Bd. ofEqualization & Assessment, supra at 547, 641 N.Y.S.2d91). Consequently, we reject petitioner's challenge torespondent's methodology.

[4] The initial step in determining estimated marketvalue is to classify a municipality's property into certaincategories according to type and assessed values andthen select sample parcels from each category to ap-praise. From the values derived from these appraisals,respondent calculates the estimated *790 total marketvalue. Here, respondent did not appraise any sampleparcels from one category that numerically represented




















































over 50% of petitioner's commercial property. While theuse of an unsampled category is specifically allowed bythe regulations (9 NYCRR 186–26.9[c] ), petitioner ar-gues that such procedure compromised the process, ren-dering the equalization rate statistically invalid. Despitethe significant percentage, the record shows that thesubject category represented less than one quarter of 1%of the assessed value of petitioner's commercial prop-erty.FN3 In the absence of an explanation how the ex-clusion of this statistically insignificant factor renderedthe equalization rate statistically invalid, we find thatpetitioner's argument lacks merit.

FN3. This category consisted of 26 parcels,each having an assessed value between $100and $1,400.

[5] We have not considered petitioner's contentionpredicated upon respondent's failure to include the firedistrict charges in its calculations since it failed to raisethis issue in the administrative review process (see,Matter of Town of Highland v. New York State Bd. ofEqualization & Assessment, 211 A.D.2d 893, 621N.Y.S.2d 174). In any event, the inclusion of suchcharges would have minimal impact upon the equaliza-tion rate, raising it from 93.94 to 93.95.

[6] Petitioner takes issue with respondent's valu-ations of several of the sample parcels, claiming theyare excessive. It has failed, however, to support its posi-tion with its own appraisals or with expert analysis doc-umenting and detailing the deficiencies in respondent'svaluations. Absent such proof, we cannot independentlyassess the challenged valuations since such assessmentrequires professional or technical knowledge possessedby an expert (see, De Long v. County of Erie, 60 N.Y.2d296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717). There-fore, respondent's valuations must be accepted if **169they have a rational basis. Our review of the recordshows that respondent considered petitioner's objec-tions, made adjustments where necessary and fully ex-plained its ultimate determination, all of which providesa rational basis for the valuations.

[7] It appears that during this proceeding petitionersought to discover certain “turn-around” documents that

contain respondent's calculations on how each compar-able sale was adjusted or the amount of any such adjust-ment. In the absence of an order, the issue of whetherpetitioner was entitled to discover these documents isnot before us (see, CPLR 5501[c]; People v. McFar-lane, 233 A.D.2d 531, 650 N.Y.S.2d 974, lv. denied 89N.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 determina-tion, it is adequate for review without the inclusion ofthe “turn-around” documents.

For the foregoing reasons, we find that petitionerfailed to meet its burden and respondent's determinationis supported by substantial evidence. Accordingly, weaffirm the judgment of Supreme Court.

ORDERED that the judgment is affirmed, withoutcosts.

MIKOLL, J.P., and MERCURE, CREW andYESAWICH, JJ., concur.

N.Y.A.D. 3 Dept.,1998.Town of Greenville v. New York State Bd. of RealProperty Services251 A.D.2d 788, 674 N.Y.S.2d 166, 1998 N.Y. Slip Op.05903

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Supreme Court, Appellate Division, First Depart-ment, New York.

Jack SHAFRAN, etc., et al., Plaintiffs–Appellants,v.

ST. VINCENT'S HOSPITAL AND MEDICALCENTER, et al., Defendants–Respondents.

Sept. 2, 1999.

Administrator of estate of patient who had diedafter undergoing electroconvulsive therapy (ECT)brought medical malpractice action against hospitaland physicians who had performed ECT. The Su-preme Court, New York County, Carol Huff, J.,dismissed complaint against hospital at close ofevidence, and entered judgment on jury verdict forphysicians. Plaintiff appealed. The Supreme Court,Appellate Division, held that: (1) blanket preclu-sion of testimony of pulmonologist, psychiatrist,and neurologist who were called as experts byplaintiff, on basis that testimony would have beencumulative of that of psychologist who did testify,was reversible error, and (2) whether hospital wasvicariously liable for conduct of physicians was is-sue for jury.

Reversed, judgment vacated, complaint rein-stated, and new trial ordered.

West Headnotes

[1] Trial 388 56

388 Trial388IV Reception of Evidence

388IV(A) Introduction, Offer, and Admissionof Evidence in General

388k56 k. Cumulative evidence in gener-al. Most Cited Cases

Whether evidence should be excluded as cumu-lative rests within the sound discretion of the trialcourt.

[2] Appeal and Error 30 970(2)

30 Appeal and Error30XVI Review

30XVI(H) Discretion of Lower Court30k970 Reception of Evidence

30k970(2) k. Rulings on admissibilityof evidence in general. Most Cited Cases

Trial 388 56

388 Trial388IV Reception of Evidence

388IV(A) Introduction, Offer, and Admissionof Evidence in General

388k56 k. Cumulative evidence in gener-al. Most Cited Cases

Blanket preclusion of testimony of pulmono-logist, psychiatrist, and neurologist who were calledas experts by plaintiff in medical malpractice actionbrought after death of patient who had undergoneelectroconvulsive therapy (ECT), on basis thattestimony would have been cumulative of that ofpsychologist who did testify, was an improvidentexercise of trial court's discretion, and required newtrial; better remedy would have been to limit sub-sequent experts' testimony to material not coveredby psychologist, since psychologist was unable toaddress several crucial subjects because he was nota medical doctor, and broad preclusion severelyprejudiced plaintiff's ability to prove his case.

[3] Health 198H 782

198H Health198HV Malpractice, Negligence, or Breach of

Duty198HV(F) Persons Liable

198Hk781 Hospitals or Clinics198Hk782 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





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its employ or as its agents.

[4] Health 198H 782




Cases(Formerly 204k7 Hospitals)Physician's mere affiliation with a hospital is

insufficient to impute physician's negligence to thehospital.

[5] Health 198H 825


Duty198HV(G) Actions and Proceedings

198Hk824 Questions of Law or Fact andDirected Verdicts

198Hk825 k. In general. Most CitedCases

(Formerly 204k8 Hospitals)Whether physicians who performed electrocon-

vulsive therapy (ECT) on patient were more thanjust affiliated with hospital where ECT was per-formed, and were in fact agents of hospital, aswould allow hospital to be held vicariously liablefor their alleged negligence, was issue for jury inmedical malpractice action brought following deathof patient.

[6] Health 198H 782




Cases(Formerly 204k7 Hospitals)

Hospital may be held vicariously liable for actsof independent physicians who are not its employ-ees where a patient enters hospital through theemergency room and seeks treatment from the hos-pital, not from a particular physician.

[7] Health 198H 825


Duty198HV(G) Actions and Proceedings

198Hk824 Questions of Law or Fact andDirected Verdicts

198Hk825 k. In general. Most CitedCases

(Formerly 204k8 Hospitals)Whether patient who received electroconvuls-

ive therapy (ECT) from physicians who were notemployees of hospital where ECT was performedcould properly have assumed that physicians wereacting on behalf of hospital, as would allow hospit-al to be held vicariously liable for physician's ac-tions despite their independent status, was issue forjury in medical malpractice action brought follow-ing death of patient.

**643 Sally Weinraub, for Plaintiffs–Appellants.

James B. Reich, Patricia D'Alvia, for Defend-ants–Respondents.

NARDELLI, J.P., TOM, MAZZARELLI andLERNER, 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, andagainst defendants Janick, Nathanson and Burnsafter a jury verdict in their favor, unanimously re-versed, on the law, the facts and in the exercise ofdiscretion without costs, the judgment vacated, thecomplaint reinstated against all defendants and a












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new trial ordered.

*554 In this medical malpractice action, thefollowing facts were established at trial. Plaintiff'sdecedent, Betty Shafran, sustained serious injuriesand eventually died after receiving electroconvuls-ive therapy (ECT) while in defendants' care. TheECT was prescribed as treatment for Shafran'schronic depression. In July 1990, Shafran was ad-mitted to St. Vincent's Hospital by her internist, de-fendant Dr. Margaret Burns, M.D., after Shafrancomplained of respiratory problems. Shafran hadpneumonia and was in respiratory distress. She wasintubated and received a full pulmonary consulta-tion by a pulmonologist. Shafran was also contin-ued on the drug theophylline, a bronchodilatorcommonly used to treat lung diseases. Upon her re-lease, she was diagnosed with chronic obstructivepulmonary disorder (COPD).

On August 27, 1990, Shafran voluntarily re-turned to the hospital suffering from severe depres-sion. She was admitted to the psychiatric depart-ment under the care of defendant Dr. Mark Nathan-son, M.D., a psychiatrist. Dr. Nathanson testifiedthat although the theophylline was stabilizingShafran's respiratory condition, the anti-depressantmedications she was taking were ineffective andShafran's psychiatric condition was deteriorating.

Dr. Nathanson engaged in a risk-benefit analys-is to determine if Shafran was a viable candidatefor ETC, a treatment she had received in the 1960'swith some success. The analysis included consulta-tions with several specialists including a cardiolo-gist and pulmunologist, and various laboratorytests. Dr. Nathanson consulted Dr. Burns regardingShafran's pulmonary condition, since the pulmono-logist who examined her in July was unavailable.

Doctors Nathanson and Burns testified thatthey considered whether Shafran should be takenoff theophylline before the ECT, or the dosage de-creased, since theophylline can lower a person'sseizure threshold. Both doctors knew that if a pa-tient's theophylline blood-level is above the thera-

peutic range (10–20 mcgs.), an increased risk ofspontaneous prolonged seizures, or status epileptic-us, is present during ECT. Blood-levels taken fromShafran on August 29th and August 30th were inthe therapeutic range, and, in anticipation of theECT, Dr. Burns reduced Shafran's dosage of theo-phylline from 400 to 300 mg. Although Shafran'sblood level was not taken again prior to theSeptember 7th ECT procedure, Dr. Burns and Dr.Nathanson testified that the 25% reduction in theo-phylline would result in reduction of the blood-level of the medication to within the therapeuticrange.

*555 The ECT was performed by Dr. Nathan-son on September 7th. He was assisted by defend-ant Dr. Richard Janick, M.D., an anesthesiologist.Dr. Nathanson induced the intended seizure fromShafran, but shortly after Shafran began sufferingstatus epilepticus that lasted for several hours. Atone point, Dr. Nathanson left the ECT-treatmentroom to obtain assistance. Shafran lapsed into acoma for approximately 10 days, and sustained per-manent injuries including bi-lateral deafness,memory loss and seizure disorder. **644 These in-juries persisted until she died 6 years later.

Shafran's husband, Jack, commenced the in-stant medical malpractice action against St. Vin-cent's Hospital, and Doctors Burns, Janick andNathanson. He alleged numerous departures fromacceptable medical practice including the failure toconsider alternative treatments for Shafran's depres-sion; the failure to adequately consider Shafran'spulmonary condition and to obtain a pulmonaryconsult by a specialist prior to the ECT; the failureto consult other physicians about discontinuing orlowering the dosage of theophylline; the failure totake Shafran's blood-levels shortly before the ECT;and the failure to properly monitor the ECT proced-ure and control the status epilepticus. The defend-ants denied the allegations of malpractice.

A trial was held in late 1997. At the close ofthe evidence, the trial court dismissed the actionagainst St. Vincent's, finding that there was no



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showing that any of the doctors were employed bythe hospital. The jury returned a verdict in favor ofdefendant doctors.

On appeal, plaintiff's main argument is that thetrial court's preclusion of his three expert medicalwitnesses on the ground that their testimony wouldhave been cumulative to the testimony of plaintiff'sexpert, Dr. Harold Sackheim, who did testify, waserroneous. Dr. Sackheim was a psychologist, not apsychiatrist, and was not authorized to conductECT. He was, however, a recognized expert in thefield of ECT.FN1 While defendants sought preclu-sion of Dr. Sackheim's testimony because he wasnot a medical doctor, the court permitted him totestify as to the standard in the community for theuse of ETC, with a warning to plaintiff's counselthat it would not allow *556 additional experts togive repetitive testimony. When plaintiff sought tocall three expert medical witnesses, a pulmonolog-ist, a psychiatrist and a neurologist, the court, afterhearing extensive offers of proof, granted defend-ants' application to preclude their testimony as cu-mulative to Dr. Sackheim's. Defendants, in contrast,were permitted to call medical experts in each spe-cialty, and were allowed to argue in summation thatplaintiff's expert was unreliable because he was nota medical doctor. Plaintiff argues that this was anunfair exploitation of the court's preclusion order,and that much of the evidence it was offering wasnot cumulative. Defendants counter that plaintiffcharted his own course by relying on Dr. Sack-heim's extensive testimony despite the court's warn-ing, and may not now complain about the preclu-sion of cumulative testimony.

FN1. Dr. Sackheim is a Ph.D. in clinicalpsychology and experimental psychopatho-logy, and a professor in the psychiatry andradiology departments at the ColumbiaPresbyterian Medical Center. He was chiefof the Department of Biological Psychiatryat the New York State Psychiatric Institute,and was also an advisor to the AmericanPsychiatric Association's Task Force on

ECT, co-authoring its 1990 report.

[1][2] “It is well settled that whether evidenceshould be excluded as cumulative rests within thesound discretion of the trial court” (Berry v. JewishBd. of Family & Children's Servs., 173 A.D.2d 670,671, 570 N.Y.S.2d 586; see also, Abbott v. NewRochelle Hosp. Med. Ctr., 141 A.D.2d 589, 591,529 N.Y.S.2d 352, lv. denied 72 N.Y.2d 808, 534N.Y.S.2d 666, 531 N.E.2d 298; Irrizary v. City ofNew York, 95 A.D.2d 713, 464 N.Y.S.2d 5).However, the court's blanket preclusion ofplaintiff's three expert medical witness was an im-provident exercise of discretion. Although Dr.Sackheim gave extensive testimony concerningECT, the risk-benefit analysis and several depar-tures by the doctors from acceptable ECT practices,plaintiff's counsel identified several crucial subjectswhich Dr. Sackheim did not address or was pre-cluded from addressing because he was not a med-ical doctor. For example, plaintiff's pulmonologistwould have testified on whether Shafran's pulmon-ary condition rendered her unfit for ECT, and**645 whether Shafran could have been safelytaken off theophylline in order to reduce the risk ofprolonged seizures during ECT. Dr. Sackheimcould not, and did not, give a medical opinion onthese issues. Thus, plaintiff was denied the oppor-tunity to rebut the defendant's medical testimony(from a pulmonologist) that Shafran was fit forECT, and that she could not have been safely takenoff theophylline.

Plaintiff also sought to call a psychiatrist totestify about Shafran's psychological condition pri-or to ECT, and whether any alternative, less dan-gerous forms of treatment were available forShafran's depression. Dr. Nathanson had testifiedthat Shafran's psychiatric condition was an emer-gency and that ECT was necessary. Plaintiff's coun-sel argued that expert psychiatric testimony wasneeded to challenge this assertion, and was also ne-cessary to support plaintiff's claim that Dr. *557Nathanson acted negligently when complicationsdeveloped during the ECT procedure. However, the


















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court improperly ruled that Dr. Sackheim's testi-mony had fully covered these areas, and that a psy-chiatrist's testimony was not needed.

Perhaps most prejudicial was the preclusion ofplaintiff's neurologist. Plaintiff sought to establishthrough this witness that the negligently performedECT procedure was the proximate cause ofShafran's injuries, and to question the neurologistconcerning the neurological and radiological data,such as CAT scans taken subsequent to the ECTprocedure. Not only did the court precludeplaintiff's neurologist from testifying, it allowed de-fendants' expert neurologist to testify to an entirelynew theory of causation for plaintiff's injuries. De-fendants' neurologist posited that plaintiff's injuriesresulted from a congenital vascular malfunction ofthe brain, and not from ECT or theophylline. Al-though there is mention of a vascular malfunctionin Shafran's autopsy report, this theory of causationwas never mentioned in any of defendants' pre-trialexpert witness notices, and was first disclosed dur-ing defense counsel's opening statement. Moreover,it was not until one week into the trial, when de-fendants served an additional expert witness notice,that this new theory of causation was connected toany particular expert's testimony. Plaintiff's claimsof unfair surprise are well grounded. At a minim-um, plaintiff should have been permitted to call hisneurologist on rebuttal, to respond to this new the-ory of causation (see, Herrera v. V.B. HaulageCorp., 205 A.D.2d 409, 410, 613 N.Y.S.2d 883; seealso, Benjamin v. Desai, 228 A.D.2d 764, 766, 643N.Y.S.2d 717; Harding v. Noble Taxi Corp., 182A.D.2d 365, 370, 582 N.Y.S.2d 1003).

While a trial court must not allow cumulativeor repetitive testimony, the preclusion rulings herewere overbroad and severely prejudiced plaintiff'sability to prove his case. Although there was poten-tial for significant overlap between Dr. Sackheim'stestimony and that of the medical witnesses, thebetter remedy would have been to limit the sub-sequent experts' testimony to material not coveredby 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 thedefendant doctors.

[3][4][5] The IAS court also erred in dismiss-ing the action against St. Vincent's. A hospital maybe held vicariously liable for the negligence or mal-practice of physicians who act in its employ or asits agents (see, Hill v. St. Clare's Hosp., 67 N.Y.2d72, 79, 499 N.Y.S.2d 904, 490 N.E.2d 823). Whilemere affiliation with a hospital is insufficient to im-pute a doctor's negligence to a hospital *558(Hill v.St. Clare's Hosp., supra; Nagengast v. SamaritanHosp., 211 A.D.2d 878, 879, 621 N.Y.S.2d 217;Tuzeo v. Hegde, 172 A.D.2d 747, 748, 569N.Y.S.2d 134), there is evidence in the record sug-gesting that Doctors Nathanson and Janick weremore than just affiliated with St. Vincent's. Dr.Nathanson admitted during his testimony that hehad an **646 office in the hospital, and that he hadbeen paid by it. His insistence that he was a privateattending physician, and not an employee, simplyraises a credibility issue which the jury should havebeen permitted to resolve. As to Dr. Janick, hospitalrecords were introduced showing that in 1983 hehad applied for a position on the hospital's“Medical Staff”, and in 1989 he applied for renewalof his attending privileges. This was some evidencethat Dr. Janick had been employed by the hospitalduring the relevant time period. Because the proofas a whole is equivocal as to whether these doctorswere in fact employees of the hospital, the courtshould not have decided the issue as a matter oflaw.

[6][7] Moreover, even if the doctors were notemployees of the hospital, it may be vicariously li-able for the acts of independent physicians where apatient enters the hospital through the emergencyroom and seeks treatment from the hospital, notfrom a particular physician (see, Citron v. North.Dutchess Hosp., 198 A.D.2d 618, 620, 603N.Y.S.2d 639, lv. denied 83 N.Y.2d 753, 612N.Y.S.2d 107, 634 N.E.2d 603; Mduba v. Benedict-ine Hosp., 52 A.D.2d 450, 453, 384 N.Y.S.2d 527).



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Here, Shafran walked into St. Vincent's on her own,in a state of severe depression. She did not requesta specific doctor, and it was through the hospitalthat Dr. Nathanson began treating her. Under thesecircumstances, there is a question as to whetherShafran “could properly assume that the treatingdoctors and staff of the hospital were acting on be-half of the hospital” (Mduba v. Benedictine Hosp.,supra, at 453, 384 N.Y.S.2d 527). The complaint isalso reinstated against the hospital.

Because we are ordering new trial as to all de-fendants, we need not address plaintiff's additionalclaims of error.

N.Y.A.D. 1 Dept.,1999.Shafran v. St. Vincent's Hosp. and Medical Center264 A.D.2d 553, 694 N.Y.S.2d 642, 1999 N.Y. SlipOp. 07295

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