Cases from January 31 decisions
Plaintiff Failed to Establish Good Cause to Serve a Late Notice of Claim
Vitko v. Town of Orchard Park (4th Dept. 2020)
This case presented an appeal of a Supreme Court order granting the plaintiff’s application for leave to serve a late notice of claim. The order was issued by Justice Bannister, who has since joined the Fourth Department. The Fourth Department unanimously reversed the order and denied plaintiff’s application.
General Municipal Law §50-e requires a notice of claim to be made to the municipality within 90 days after the claim arises, though case law permits plaintiff to apply for leave to serve a late notice of claim under several circumstances. In determining whether to grant such leave, the court must consider, inter alia, whether the plaintiff has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality.
The plaintiff made an application for leave to serve a late notice of claim nearly 11 months after the subject accident. The Fourth Department found that the plaintiff failed to meet her burden of demonstrating that the Town had actual knowledge of the incident within 90 days of its occurrence and the plaintiff did not dispute that the Town lacked actual knowledge of any injury at the subject property until being served with plaintiff’s application. Furthermore, the plaintiff failed to establish a reasonable excuse for her failure to timely serve the notice of claim, and failed to establish that a late notice of claim would not substantially prejudice the Town’s interests.
Accordingly, the plaintiff failed to meet her burdens of proof on each factor for the court to consider when granting leave to serve a late notice of claim. Therefore, it was an abuse of discretion for the Supreme Court to order to the contrary.
This month we have two cases involving challenges to zoning decisions made by the Town of Brighton.
Order Modified on Incentive Zoning: Addressing Statutory Authorization, Secret Meetings, Easements, and Referendum relative to Whole Foods Development
Brighton Grassroots LLC v. Town of Brighton (4th Dept. 2020)
This case presented an order and judgment of the Supreme Court, Monroe County, in a CPLR Article 78 proceeding and declaratory judgment action. The order and judgment granted defendants’ motions for partial dismissal of plaintiff’s amended petition-complaint.
Petitioner sought to annul the Town of Brighton Town Board determination which approved an incentive zoning application by the several respondents collectively referred to as the Daniele respondents. This zoning application was related to a proposed Whole Foods store in the Town of Brighton.
The Fourth Department unanimously modified the order and judgment by denying the motions in part with respect to the 9th, 10th and 14th causes of action, vacating the last two decretal paragraphs, and reinstating the 14th cause of action.
First, the Fourth Department held the Supreme Court properly dismissed petitioner’s 11th cause of action alleging a violation of Brighton Town Code chapter 113 (Parks), on the grounds that there is no private right of action to enforce this provision.
Second, the court held that even if petitioner’s 12th and 13th causes of action challenging the validity of the Town’s incentive zoning law (Town Code chapter 209) were timely commenced, they were nonetheless properly dismissed as the challenged law is consistent with its authorizing legislation, Town Law §261-b. Petitioner challenged the Town’s incentive zoning law on the grounds that §261-b requires such a law to specifically adopt a prospective formula for weighing the costs and benefits of any incentive. The court held that the statute imposes no such requirement.
Next, the court held petitioner’s claims were properly dismissed regarding the Open Meetings Law, Public Officers Law Article 7. Petitioner alleged one or more secret meetings occurred, which the court found “speculative and conclusory.” Petitioner thereby complained of an online posting of information prior to the March 28, 2018 meeting at issue and of the facility used for the February 28, 2018 public hearing, and the court found these arguments to be without merit. Crucially, the court found there was no evidence that the lower court considered any of the information which petitioner objects to on appeal.
The court did agree with the petitioner on two points. First, the court held the lower court erred in granting a declaration in respondents’ favor on petitioner’s 9th and 10th causes of action. These two causes of action alleged violations of the public trust doctrine due to unresolved factual issues on the impact of Whole Foods on a recreational trail, including the issue of whether the store development would require constructive abandonment of the existing public use easements for that trail. The court accordingly modified the order by vacating the last two decretal paragraphs corresponding to this issue.
Second, the court agreed with the petitioner that the lower court erred in granting a portion of respondents’ motion regarding petitioner’s 14th cause of action, concerning a permissive referendum under Town Law §64(2). The court held that this cause of action was “ripe for adjudication” and thus further modified the order accordingly.
Town’s Zoning Decisions Upheld as Deviations did not Amend Town Regulations
Save Monroe Ave., Inc. v. Town of Brighton (4th Dept. 2020)
This case similarly presented an order and judgment of the Supreme Court, Monroe County, in a CPLR Article 78 proceeding and declaratory judgment action. The order and judgment granted defendants’ motions for partial dismissal of petitioners-plaintiffs’ amended petition-complaint.
The Fourth Department unanimously affirmed the order and judgment. In their seventh cause of action, petitioners alleged the Town Board’s determination to authorize certain deviations from the applicable zoning regulations in exchange for incentive contributions from the developers effectively amended the zoning regulations without the requisite referral to the Planning Board (refer to Town Code chapter 225). The court disagreed and held the incentive zoning mechanism utilized by the Town was already part of the Town’s pre-existing zoning regulations developed in consultation with the Planning Board, and the application of that mechanism to a particular property did not thereby amend those regulations.
The court concluded by citing its above-discussed decision in Brighton Grassroots LLC v. Town of Brighton (4th Dept. 2020) for the reasons why petitioners’ remaining contentions do not require modification or reversal of the order and judgment.
Arbitration Award Modified as to Buffalo Teachers’ Arbitration
Buffalo Teachers Federation, Inc. v. Board of Education of the Buffalo Public Schools (4th Dept. 2020)
This case presented an order and judgment of the Supreme Court, Justice Bannister, granting the petition to confirm an arbitration award and denying the cross-petition to vacate the award.
Respondent, Board of Education of the Buffalo Public Schools, hired 16 teachers’ aides and subsequently announced its intention to eliminate five and a half teaching positions for the 2017-2018 school year to offset the hiring costs of the aides. Petitioner, Buffalo Teachers Federation, Inc., filed a grievance alleging the intended conduct was retaliatory. A temporary restraining order was issued preventing any eliminations while the dispute was pending. Ultimately, an arbitrator set forth an award, two paragraphs of which were here at issue on appeal.
The Fourth Department dismissed the appeal in part, thereby confirming the second paragraph of the award. The Fourth Department further modified the order and judgment by denying the petition in part, granting the cross petition in part, and vacating the fourth paragraph of the award except to the extent that it prohibits respondent-petitioner from discriminating on the basis of union membership status. The order and judgment was affirmed as modified.
First, the Court dismissed as moot the appeal in so far as it sought to confirm the second paragraph of the award, which directed respondent to rescind its decision to eliminate teaching positions for the 2017-2018 school year. The Court cited the well-established rule of law that an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment. At this point, the 2017-2018 school year had ended, so the issue of rescinding the decision to eliminate positions was accordingly moot.
Next, the Court agreed with respondent that the arbitrator exceeded his authority by requiring respondent to make the elimination of teaching positions in accordance with the “School Based Development Guide” (Guide). The prevailing rule is that an award may be vacated where an arbitrator, “in effect, made a new contract for the parties in contravention of an explicit provision of the arbitration agreement which denied the arbitrator power to alter, add to or detract from” the collective bargaining agreement (CBA). The CBA at issue does not require respondent to make staffing or budgetary decisions in accordance with the Guide. Therefore, the Court found the arbitrator contravened an explicit provision in the CBA that denied him the authority to modify or amend it. Accordingly, the lower court erred in confirming the part of the award which required respondent to make the elimination of teaching positions in accordance with the Guide, and the order and judgment were modified accordingly.
Finally, the Court agreed in part with respondent’s argument that the fourth paragraph of the award is nonfinal and indefinite insofar as it directs that any future elimination of teaching positions at the school as a result of hiring teacher aides must be narrowly tailored to meet the economic needs of respondent and be applied in a union membership neutral manner. The Court stated that an award is nonfinal and indefinite if “it leaves the parties unable to determine their rights and obligations.” Thus the court found the foregoing language is nonfinal and indefinite except to the extent that it prohibits respondent from discriminating on the basis of union membership status. Therefore, the Court held the lower court erred in confirming that part of the award and further modified the order and judgment accordingly.
Prepared by Daniel J. Cercone