New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

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

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

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

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

Read more about this Article 78 zoning board appeal.

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

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

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

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

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

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

Read more about this Article 78 zoning board appeal.

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

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

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Various occupations require Certificates of Fitness. To read more about the Certificate of Fitness that the Fire Department of the City of New York City issues, you can visit the following website. This website provides information about testing procedures, fees, and the verification process.

Learn more about the FDNY Certificate of Fitness here.

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

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

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Matter of Bruce Harris v Department of Education of the City of New York

In this Article 78 appeal case, petitioner sought to challenge respondents’ determination terminating petitioner’s employment as a New York City school teacher and to gain reinstatement of his employment with back pay and benefits. After a hearing, petitioner, a tenured teacher, was ordered by respondent, Department of Education’s Hearing Officer, to serve a six-month suspension and complete sexual harassment training before he would be reinstated to his position. No evidence exists to suggest that petitioner’s rights were violated. Ten months post-hearing petitioner still had not completed the ordered sexual harassment training which resulted in his termination. Petitioner argued that he was due a second hearing prior to termination but raised no factual issue over the completion of the directed training.

Accordingly, the Supreme Court affirmed the judgment granting respondents’ cross motion to dismiss the petition and dismissing the proceeding.

Read more about this Article 78 termination appeal.

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

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

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Matter of John Welsh v New York State Comptroller

Petitioner commenced this Article 78 appeal to review a determination of respondent Comptroller denying petitioner’s application for accidental disability retirement benefits. Petitioner, a Suffolk County police officer, was injured by an emotionally disturbed man whom he was escorting to a hospital psych ward. Following the attack, petitioner applied for accidental disability retirement benefits was denied and was denied. He then requested a hearing which resulted in the Hearing Officer recommended the claim be denied on the grounds that petitioner did not sustain an accident within the meaning of the Retirement and Social Security Law. The Comptroller upheld the Hearing Officer’s recommendation and this Article 78 proceeding was commenced.

Petitioner was granted performance of duty disability retirement benefits but in order to qualify for accidental disability retirement benefits, the underlying accident must be completely out of the ordinary and unexpected and not resulting from a performance of a routine employment duty. The Comptroller has the exclusive authority to decide whether an accident occurred within the meaning of the law and if his determination can be supported by substantial evidence, it must be upheld. Since the petitioner had engaged in similar escort duties in the past which would indicate possible danger and the fact that injury by physical contact is inherent in the routine performance of petitioner’s duties, the Comptroller’s determination is supported by adequate evidence.

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

Read more about this Article 78 Accidental Disability Retirement Benefits appeal.

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

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

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Matter of Anna Wei v Planning Board of Town/Village of Harrison

Petitioner brought about this Article 78 appeal to review a determination of the Planning Board of the Town/Village of Harrison denying her application to subdivide her property. The neighboring landlords then appealed from a decision of the Court which annulled the determination and remitted the issue to the Planning Board of the Town/Village of Harrison in order to make and specify factual findings as basis for its determination.

The Court finds that the order appealed from is not appealable as of right.

Accordingly, the Supreme Court dismissed the appeal, with costs.

Read more about this Article 78 Planning Board appeal.

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

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

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Matter of McCrory v Village of Scarsdale

Petitioner brought about this Article 78 appeal to review an order granting a motion by the Village of Scarsdale to dismiss her petition as time-barred. Petitioner sought to compel the Village to disclose certain records pursuant to the Freedom of Information Law. The Court felt that the original judgment was proper due to the proceeding not being commenced until five months after the Village informed petitioner that it would not disclose the records. The statute of limitations was four-months and therefore the appeal was not timely.

Accordingly, the Supreme Court affirmed the order and judgment and dismissed the petition.

Read more about this Article 78 appeal.

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

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

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Brian Ball, a former Greece Police Sergeant, was accused of falsifying a document in a fatal car crash back in 2005. He allegedly closed the case before the toxicology report on the driver in question was completed. The toxicology test came back positive for marijuana.

Ball appealed and the judge ruled that Ball was not given adequate opportunity to testify on his own behalf in front of the grand jury that indicted him. The judge also found that the people’s case was lacking in substance and that the evidence presented was not sufficient to establish a prima facie case that Ball committed the alleged crimes.

The District Attorney plans to appeal this decision and the family of the 18-year-old woman who was killed in the crash is angry, devastated, and disheartened by the ruling.

Read full article here.

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

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

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