State of New York Court of Appeals

To be argued Monday, November 14, 2011

Summaries of cases before the Court of Appeals are prepared by the Public Information Office for background purposes only. The summaries are based on briefs filed with the Court. For further information contact Gary Spencer at (518) 455-7711.

No. 189 Matter of New York State Superfund Coalition, Inc. v New York State Department of Environmental Conservation The New York State Superfund Coalition, a not-for-profit corporation representing commercial owners of inactive hazardous waste disposal sites, filed this lawsuit in March 2007 to challenge regulations adopted by the State Department of Environmental Conservation (DEC) to implement the State Superfund Program. The Coalition contends that DEC, in promulgating regulations that set a goal of restoring hazardous waste sites to "pre-disposal conditions," exceeded its authority under Environmental Conservation Law 27-1313(5)(d), which authorizes DEC to effect "a complete cleanup" of Superfund sites. ECL 27-1313(5)(d) states, "The goal of any [Superfund] remedial program shall be a complete cleanup of the site through the elimination of the significant threat to the environment posed by the disposal of hazardous wastes at the site and of the imminent danger of irreversible or irreparable damage to the environment caused by such disposal." One of the challenged regulations, 6 NYCRR 375-2.8(a), provides, "The goal of the program for a specific site is to restore that site to pre-disposal conditions, to the extent feasible. At a minimum, the remedy selected shall eliminate or mitigate all significant threats to the public health and to the environment presented by hazardous waste...." Another challenged regulation, 6 NYCRR 375-1.8(f)(9), refers to the "pre-disposal conditions" language. Supreme Court annulled both regulations as unauthorized. It said, "ECL 27-1313(5)(d) authorizes a 'complete cleanup' to the extent of the elimination 'of the significant threat' and 'of the imminent danger of irreversible or irreparable damage to the environment.' Had the Legislature wished to return every inactive hazardous waste site to predisposal conditions, it could have stopped at 'a complete cleanup'.... In ignoring the statutory definitions and goals, the revised regulation is an unlawful continuation by the DEC to equate 'hazardous waste' with 'significant threat'..., in that a return to 'predisposal conditions' necessitates removal of all hazardous wastes, whereas the statute requires only the elimination 'of the significant threat' and 'of the imminent danger of irreversible or irreparable damage to the environment .'" The Appellate Division, Third Department reversed that portion of the judgment and held that both regulations were valid. It said the authorizing statute "refers both to a complete cleanup of the site and to the elimination of the significant threat to the environment. In our view, the language of that statute is ambiguous and DEC's interpretation of the remedial goal set forth in ECL 27-1313(5)(d), as articulated in the current regulations, is reasonable. Of particular note is that 6 NYCRR 375-2.8(a) specifically references the goal that the remedy 'eliminate ... all significant threats' and limits the requirement of restoration to pre-disposal conditions 'to the extent [that such restoration is] feasible.'" For appellant Superfund Coalition: Thomas F. Walsh, Rochester (585) 295-4400 For respondents DEC et al: Assistant Solicitor General Andrew B. Ayers (518) 474-0768

State of New York Court of Appeals

To be argued Monday, November 14, 2011

Summaries of cases before the Court of Appeals are prepared by the Public Information Office for background purposes only. The summaries are based on briefs filed with the Court. For further information contact Gary Spencer at (518) 455-7711.

No. 222 Metropolitan Taxicab Board of Trade v The New York City Taxi & Limousine Commission The Metropolitan Taxicab Board of Trade (MTBOT) and three taxi fleet operators -- Midtown Car Leasing Corp., Ronart Leasing Corp., and Linden Maintenance Corp. -- brought this suit to challenge new rules affecting lease caps -- the maximum amount that medallion owners may charge drivers per shift for use of a licensed cab. The rules were adopted by the New York City Taxi & Limousine Commission (TLC) in March 2009 to standardize leasing practices and prevent "predatory leasing" by prohibiting medallion owners from charging drivers for sales taxes or other costs over and above the lease cap; and to encourage the use of cleaner and more fuel efficient vehicles by setting higher lease caps for such vehicles and by gradually reducing the caps for less efficient vehicles. In a separate federal action, MTBOT and the fleet operators obtained a preliminary injunction preventing the TLC from reducing lease caps for less efficient vehicles, but the petitioners continue in this case to press their challenge to the rules that bar owners from charging drivers for sales taxes above the amount of the lease cap. They argue that the restrictions on charges above the cap conflict with state tax laws by requiring fleet owners to pay sales taxes owed by cab drivers, and that the TLC acted arbitrarily by adopting the rules without considering the owners' costs. Supreme Court declared the TLC's actions were not arbitrary or contrary to law and dismissed the suit. It said the City Charter permits, but does not require, the TLC to consider the fleet owners' costs in making its rate determinations; and it found "there is a sufficient factual basis" to support the Commission's actions. The Appellate Division, First Department affirmed, saying the City Charter grants the TLC broad authority "to amend its rules to provide that the statutory cap imposed on the amount charged by taxicab fleet owners when leasing vehicles to taxi drivers may be altered on the basis of public policy considerations." "Furthermore," it said, "the TLC was authorized to amend its rules to provide that taxicab lease amounts must be calculated so that sales and rental taxes owed by taxi drivers are included within the amount of the applicable ... lease cap. The amendment is aimed at standardizing divergent practices regarding the payment of such taxes within the vehicle-for-hire industry, as demonstrated in the record." It said the rule changes have a rational basis and "do not conflict with applicable provisions of the Tax Law." MTBOT and the fleet owners, which did not submit evidence of their costs and expenses at the TLC's hearing on the rule changes, argue the agency violated the City Charter and case law by altering lease rates without considering the costs of the regulated industry. They also contend the rules conflict with state tax laws, saying, "Because Sales Taxes are assessed on drivers (and owners are merely the trustee for the funds), these taxes must be collected in addition to the lease charge (sales price), even if the lease charge is at the cap." For appellants MTBOT et al: Richard D. Emery, Manhattan (212) 763-5000 For respondent TLC: Assistant Corporation Counsel Susan Paulson (212) 788-1362

State of New York Court of Appeals

To be argued Monday, November 14, 2011 No. 223 People v Joseph Hightower

Summaries of cases before the Court of Appeals are prepared by the Public Information Office for background purposes only. The summaries are based on briefs filed with the Court. For further information contact Gary Spencer at (518) 455-7711.

Joseph Hightower was arrested in February 2009 by a transit police officer, who said he saw an unidentified person hand money to Hightower outside the turnstiles of a midtown Manhattan subway station. Hightower immediately swiped an unlimited ride MetroCard through a turnstile to allow the other person to pass through to the subway platform, the officer said, but Hightower remained outside the turnstiles. Hightower was charged in a misdemeanor complaint with, among other things, petit larceny under Penal Law 155.25. He pleaded guilty to that charge and was sentenced to time served. On appeal, he claimed the misdemeanor complaint was jurisdictionally defective because it did not contain sufficient factual allegations to establish that he committed the crime. Penal Law 155.05(1) provides, "A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof." Hightower argued there was no factual allegation that he took "property" from an "owner." Appellate Term, First Department affirmed. It said, "Even accepting defendant's contention that the sufficiency of the accusatory instrument should be evaluated under the standards that apply to a misdemeanor information despite his on the record waiver of the right to be prosecuted by an information..., we find the factual allegations set forth in the accusatory instrument to be sufficient for pleading purposes to establish a prima facie case that defendant committed petit larceny...." Hightower argues the conduct alleged in the complaint does not amount to petit larceny. He says, "Put simply, assuming appellant received money in exchange for swiping someone into the subway system using an unlimited MetroCard, what 'property' was taken, and who was its 'owner'? The MetroCard itself was presumably validly purchased, and its swipe gained access to a service, not property. The Metropolitan Transportation Authority cannot be considered the owner of the money voluntarily given to appellant at the time of the swipe. That money received -- of an unknown amount - represented only a possible future fare or a portion of one, and thus was never within the [MTA's] possession or control." For appellant Hightower: Adrienne Hale, Manhattan (212) 577-3576 For respondent: Manhattan Assistant District Attorney John B.F. Martin (212) 335-9000

State of New York Court of Appeals

To be argued Monday, November 14, 2011 No. 224 Toledo v Iglesia Ni Christo

Summaries of cases before the Court of Appeals are prepared by the Public Information Office for background purposes only. The summaries are based on briefs filed with the Court. For further information contact Gary Spencer at (518) 455-7711.

After Joaquin Martinez was killed in a construction accident in September 2002, Jose Luis Toledo brought this wrongful death action as administrator of his estate. Iglesia Ni Christo, a foreign not-for-profit corporation, was found liable in August 2006. In December 2007, a Bronx Supreme Court jury awarded past damages of $560,000 and future damages of $3,562,000 (as later adjusted by stipulation) to the estate and to Martinez's wife and two children. Supreme Court entered a judgment under CPLR Article 50-B that included interest on future damages at the statutory rate of 9 percent, calculated on the value of those damages discounted to the date of death and running from the date of death to the date of judgment. Iglesia Ni Christo appealed, arguing that it was improper to award pre-verdict interest on the discounted value of the future damages as of the date of death and that the future damages should instead be discounted to the date of the verdict for purposes of calculating attorney's fees and prejudgment interest. It contended the award of pre-verdict interest from the date of death gave the plaintiff an interest windfall of $1,190,747. The Appellate Division, First Department affirmed, saying, "EPTL 5-4.3 provides that '[i]nterest upon the principal sum recovered by the plaintiff from the date of the decedent's death shall be added to ... the total sum awarded.' The statutory term 'principal sum' is 'simply the discounted sum without any included interest -- i.e., discounted to the date of death' (Milbrandt v Green Refractories Co., 79 NY2d 26, 36 [1992]). Where, as here, the award of future damages was discounted by the court to the date of liability, which is the date of death, the award of interest from that date to the date of judgment was proper (see generally Rohring v City of Niagara Falls, 84 NY2d 60 [1994] [and] Milbrandt...)." Iglesia Ni Christo argues, "In a wrongful death action subject to CPLR Article 50-B, future damages discounted to present value as of the date of the verdict should not be further discounted to the date of death such that the plaintiff receives additional interest." Alternatively, it argues that no interest should be allowed on future damages from the date of death to the date that liability was determined, since "future damages do not become a debt due until the date of liability and the purpose of interest is to compensate the plaintiff for the loss of use of money." For appellant Iglesia Ni Christo: Richard J. Montes, Great Neck (516) 487-5800 For respondent Toledo: David M. Schuller, Manhattan (212) 943-1200

State of New York Court of Appeals

To be argued Monday, November 14, 2011 No. 225 Matter of Walsh v Scopetta

Summaries of cases before the Court of Appeals are prepared by the Public Information Office for background purposes only. The summaries are based on briefs filed with the Court. For further information contact Gary Spencer at (518) 455-7711.

Former New York City firefighter Robert Walsh is seeking accident disability retirement benefits based on career-ending injuries he suffered when he was assaulted in December 2003 by a fellow firefighter at Ladder Company 76 on Staten Island. Walsh was sitting with other firefighters in the firehouse kitchen, drinking beer out of plastic cups, when he began to argue with Michael Silvestri about the date of Elvis Presley's birthday. The dispute escalated as they exchanged insults, Walsh accused Silvestri of taking overtime from his fellows, and Silvestri threatened to hit Walsh with a chair. Walsh said he would "pay" to see him do it, but remained seated with his back to Silvestri. Silvestri picked up a chair and struck Walsh on the back of the head, knocking him to the floor, then repeatedly punched him in the face until others pulled him off. Walsh suffered severe neurological damage that prevented him from returning to duty. Walsh applied for accident disability retirement (ADR). The Board of Trustees of the Fire Department Pension Fund, chaired by Fire Commissioner Nicholas Scopetta, disagreed on whether injuries caused by an intentional assault could be considered accidental for purposes of awarding ADR benefits. The Board denied Walsh's application for ADR on a tie vote and instead awarded him the lower benefits of ordinary disability retirement. Walsh brought this article 78 proceeding to challenge the determination. Supreme Court denied his petition and dismissed the suit. The Appellate Division, Second Department affirmed. "The parties do not dispute that the injuries sustained by [Walsh] resulted solely from the intentional act of a fellow firefighter, who intentionally struck Walsh on the head with a chair after the two exchanged heated words," it said. "As the fellow firefighter's conduct in striking Walsh did not occur by chance, the determination by the Board of Trustees that the precipitating cause of Walsh's injuries was not fortuitous was rationally based and not arbitrary or capricious...." Walsh argues he is entitled to ADR benefits because the cause of his injury "was the sudden and unexpected assault from behind and the injurious impact of the chair" and because the "assault was neither part of petitioner's routine fire duties nor a normal foreseeable risk of the work he performed." He contends the assailant's state of mind should not determine whether his injuries were accidental for disability retirement purposes. "The assault he suffered was a sudden, unexpected mischance and thus fortuitous...," he says. "From petitioner's perspective, the assault was not rational or reasoned conduct and therefore could not be expected nor was it an act that he could control or influence, and thus ... constituted an accident under law." For appellant Walsh: Nicholas G. Cifuni, Manhattan (212) 766-5800 For respondents Scopetta et al: Assistant Corporation Counsel Paul T. Rephen (212) 788-1200

State of New York Court of Appeals

To be argued Monday, November 14, 2011 No. 226 Ortiz v Varsity Holdings, LLC

Summaries of cases before the Court of Appeals are prepared by the Public Information Office for background purposes only. The summaries are based on briefs filed with the Court. For further information contact Gary Spencer at (518) 455-7711.

Luis Ortiz was working as a laborer on the renovation of a Brooklyn apartment in November 2003, when he was directed to clear space for more demolition debris in a dumpster sitting on the street in front of the building. Ortiz was standing atop the six-foot high side of the dumpster, rearranging the debris with a plank, when he slipped and fell backwards onto the sidewalk, injuring his spine. He brought this personal injury action against the building's owner, Varsity Holdings, LLC, and its manager, Mag Realty Corp. His claims included one for violation of Labor Law 240(1), which protects construction workers against gravity-related risks by requiring owners and contractors to provide "scaffolding, hoists, stays, ladders, slings, ropes" and other safety devices "to give proper protection" to workers. Supreme Court dismissed the Labor Law 240(1) claim without opinion. The Appellate Division, Second Department affirmed on constraint of its own precedents. Ortiz argues his section 240(1) claim should be reinstated and he should be granted summary judgment on the issue of liability. "This is not a case in which elevation merely provided the location for an accident that was not otherwise gravity-related," he says. "Plaintiff was injured because gravity drew his body through a significant elevation differential, which would have been prevented by a simple, inexpensive scaffold -- a safe place to work. Because Labor Law 240(1) requires employers to provide precisely this kind of safe work place to avoid gravity-related accidents, plaintiff should have been granted partial summary judgment of liability." Varsity and Mag argue the statute does not apply to injuries sustained while "loading and rearranging debris in a ground-level dumpster." They say, "At first blush, plaintiff's accident might appear to implicate Labor Law 240(1) since it involved a fall from a height. But, in actuality, it is outside the scope of the statute because it was not the result of a hazard contemplated therein. The controlling case law establishes that Labor Law 240(1) does not apply where, as here, a worker's task involves the usual and ordinary dangers of a construction site and not the type of extraordinary hazards that the statute was enacted to address." For appellant Ortiz: Richard Paul Stone, Manhattan (212) 564-8220 For respondents Varsity et al: Timothy J. Dunn, Farmingdale (631) 249-6600