Appeals & Opinions - Numerical Index

Appeals & Opinions - Numerical Index1995
Opinion Summary Abstract Related Statues
1995-01 A county may provide for the reversion of a bridge, which is part of the county road system, to a town in accordance with the procedures set forth in Highway Law §§ 115-b and 115-c. HIGHWAY LAW §§ 115, 115-b, 115-c, 130, 234 Download
1995-02 A member of a local planning board who has stated that he or she has a conflict of interests concerning a particular matter before the board must absent himself from the board during the time that the matter is before it. Download
1995-03 The town highway superintendent is unauthorized to designate a town road as a seasonal limited use highway if, as a factual matter, at least one occupied residence or commercial building depends upon the highway for access. HIGHWAY LAW § 205-a Download
1995-04 The members of the Town of Mendon's conservation board need not reside within the town since the board is strictly advisory in nature. PUBLIC OFFICERS LAW § 3 Download
1995-05 A town by local law may establish the State of New York as the residency required for an appointive town officer. NY CONST, ART IX, § 2(c)(1); MUNICIPAL HOME RULE LAW §§ 2(5), 10(1)(ii)(a)(1), 22(1); PUBLIC OFFICERS LAW §§ 3(1), 3(24), 30(1)(d) Download
1995-06 Under section 18 of the Public Officers Law and the town code, a town is authorized to provide defense to one of its employees if the complaint alleges behavior within the scope of the employee's duties or upon a factual determination that this is the case by the town board. PUBLIC OFFICERS LAW §§ 17, 18; TOWN LAW § 65 Download
1995-07 It is a conflict of interests for an assessor to represent in his or her private capacity a taxpayer in another town where that taxpayer also owns property within the assessor's jurisdiction. GENERAL MUNICIPAL LAW § 806(1) Download
1995-08 A proposed amendment to the city charter that transfers powers of a member of the city commission to be chairperson and mayor is subject to a mandatory referendum. MUNICIPAL HOME RULE LAW § 23 Download
1995-09 A person may serve simultaneously as a member of the zoning board of appeals and member of the board of assessment review of a town. REAL PROPERTY TAX LAW §§ 523(1), 525; TOWN LAW § 267 Download
1995-10 A discussion of conflicts of interests under various scenarios involving school staff members' receipt of gratuities in acting as chaperones for student trips. GENERAL MUNICIPAL LAW § 805-a Download
1995-11 A county board of supervisors in a non-charter county may by local law establish the position of county administrator. Further, if the local law does not transfer, curtail or abolish the powers of an elective officer, it would not be subject to a mandatory referendum. In that the Municipal Home Rule Law, rather than the Alternative County Government Law, is the source of authority for the enactment, the latter would not require a referendum. NY CONSTITUTION, ART IX § 2(h); NY CONSTITUTION, ART III § 26 (1935); ALTERNATIVE COUNTY GOVERNMENT LAW § 656(2); MUNICIPAL HOME RULE LAW §§ 10, 10(1)(ii)(a)(1), 10(1)(ii)(b)(3) AND (4), 23(2)(f), 33(1) AND (2); L 1952, CH 834; L 1937, CH 862 Download
1995-12 The positions of member of the city council and city firefighter are incompatible. Download
1995-13 The appointment by the mayor of the City of Schenectady of members of the planning commission, subject to confirmation by the city council, is not inconsistent with provisions of State law. GENERAL CITY LAW § 27; GENERAL MUNICIPAL LAW § 234; MUNICIPAL HOME RULE LAW § 11(2)(a) Download
1995-14 A member of a town planning board may not be compensated or enter into an agreement to be compensated for the preparation of test borings, date from which would be incorporated into subdivision maps and site plans to be presented to the planning board for review. The statutory prohibition does not allow recusal as an appropriate remedy. GENERAL MUNICIPAL LAW § 805-A(1)(c) Download
1995-15 The county may not "opt out" of code enforcement with respect to IDA property. The county may "opt out" of enforcement with respect to all county property or may make agreements with local governments allocating enforcement responsibility. EXECUTIVE LAW § 381; 19 NYCRR §§ 441.2, 441.3 Download
1995-16 A charter county may not set up a plan for the representation of indigent defendants which is inconsistent with the options provided by section 722(1-4) of the County Law. In order to establish such a plan for Sullivan County, an act of the State Legislature would be required. COUNTY LAW, ART 18-B, §§ 2(b), 722; L 1965, CH 878 Download
1995-17 Members of a private industry council, except for those serving in a governmental capacity, are not required to file financial disclosure forms under Article 18 of the General Municipal Law. GENERAL MUNICIPAL LAW §§ 810, 811; PUBLIC OFFICERS LAW § 18; 29 USC § 1511(a)(1); 29 USC § 1512(a), (c), (d), (e), (g); 29 USC § 1513(a), (b), (d), (e) Download
1995-18 The city manager of the City of Watertown, as the chief executive officer of the city, has the authority to make appointments to the city housing authority. PUBLIC HOUSING LAW §§ 3(6), 30(2); 9 NYCRR § 1601.1; L 1914, Ch 444, Art V, §§ 90, 91 Download
1995-19 Members of Troy Municipal Housing Authority are required to reside in the City of Troy. PUBLIC HOUSING LAW § 31; PUBLIC OFFICERS LAW, §§ 3, 30; L 1975, CH 347 Download
1995-20 A city may provide by local law for a seven-member zoning board of appeals. GENERAL CITY LAW §§ 81, 81-e Download
1995-21 The positions of village code enforcement officer and village planning board member are compatible. VILLAGE LAW § 7-725-a(2) Download
1995-22 There is no incompatibility between serving on the planning board and holding a position of employment providing computer services in the town. While a town might enact a local law prohibiting the simultaneous holding of various positions, a finding should first be made that the enactment is in the public interest. MUNICIPAL HOME RULE LAW § 10(1)(i) and (1)(ii)(a)(1); TOWN LAW §§ 267(3), 271(3), 272-a, 274, 274-a, 276 Download
1995-23 The position of fire marshall may be created by local law. Upon creation of that office, the fire marshall's vehicle would be categorized as a fire vehicle under section 115-a of the Vehicle and Traffic Law. CRIMINAL PROCEDURE LAW § 2.10; MUNICIPAL HOME RULE LAW §§ 10(1)(ii)(a)(1), 10(1)(ii)(a)(12), 33(3)(b); VEHICLE AND TRAFFIC LAW § 115-a Download
1995-24 A commissioner of the Eastchester Fire District does not have a conflict of interests as a result of his private employment as a firefighter where he is a member of the same national union as the paid firefighters with whom he must negotiate contracts on behalf of the fire district. TOWN LAW § 174(2), (3) Download
1995-25 A sheriff executing a warrant issued in a summary proceeding pursuant to section 749(1) of the Real Property Actions and Proceedings Law must effect the removal of the personal property of the person to be evicted or dispossessed unless the successful petitioner relieves the sheriff of the duty to do so. REAL PROPERTY ACTIONS AND PROCEEDINGS LAW Article 7, §§ 701, 711, 749(1); CIVIL PRACTICE CODE (1920); CODE OF CIVIL PROCEDURE (1876) § 2251; NEW YORK CITY CIVIL COURT ACT §§ 1609, 1612; 22 NYCRR § 635.9(4)(b) Download
1995-26 It is not necessary that an appointment by the mayor to fill the unexpired term of the superintendent of public works be approved by the board of trustees. VILLAGE LAW §§ 3-301(3), 3-312(3) Download
1995-27 The posting of the results of disciplinary matters on a department bulletin board located in an area where department personnel have access to them but the public does not are not the sort of disclosure prohibited by Civil Rights Law § 50-a. CIVIL RIGHTS LAW § 50-a Download
1995-28 "Emergency ambulance service vehicle", as defined by section 115-c of the Vehicle and Traffic Law, includes an appropriately equipped privately-owned vehicle operated by an agent of an ambulance service and used in transporting emergency medical personnel and equipment to sick or injured persons. PUBLIC HEALTH LAW § 3001(2) and (3); VEHICLE AND TRAFFIC LAW §§ 101, 115-c, 375(26) and (41)(2); L 1981, CH 142 Download
1995-29 A local government is authorized to enact a local law limiting the number of consecutive terms that an elected officer may serve. Such a local law is not subject to a referendum. NY CONST, ART I, § 1; MUNICIPAL HOME RULE LAW §§ 10(1)(i) and (ii)(a)(1), 23(2)(d), (e) and (f), 37 Download
1995-30 The person elected in November 1995 to fill the vacancy in the office of district attorney of Rockland County will serve for a full four year term. NY CONST, ART XIII §§ 3, 13(a); COUNTY LAW § 400(1-a), (7); PUBLIC OFFICERS LAW § 42(1); L 1992 CH 254; L 1976, CH 763; L 1975 CH 149 Download
1995-31 The width of a town highway by use, established in accordance with Highway Law § 189, is determined by the extent of actual use. HIGHWAY LAW § 189; L 1909, CH 30 Download
1995-32 The receipt of a tuition waiver or stipend by a school district employee in return for assisting a college student in meeting his or her student teaching requirement does not violate section 805-a of the General Municipal Law. GENERAL MUNICIPAL LAW § 805-a Download
1995-33 The positions of county coroner and village trustee are compatible. COUNTY LAW §§ 400, 411, 671, 673(1), 674(1), VILLAGE LAW § 3-301 Download
1995-34 One person should not hold simultaneously the positions of village trustee and village building and bingo inspector. MUNICIPAL HOME RULE § 10(1)(ii)(e)(3); VILLAGE LAW § 3-300(3) Download
1995-35 A person may not serve simultaneously as a member of the board of supervisors and as the social welfare examiner of Columbia County. Download
1995-36 The mayor may appoint a single member of the board of trustees to be commissioner of the village police department. CIVIL SERVICE LAW § 58(1-c); VILLAGE LAW §§ 3-300(3), 3-301(3), 3-308(3), 4-400(e) Download
1995-37 An agreement between an officeholder and a county to establish a term different from the term fixed in the county charter has no legal effect. MUNICIPAL HOME RULE LAW, Article 4, § 32(2) Download
1995-38 There is nothing legally objectionable to the sale of advertising space on Kingston's bus system, as it is a business activity directly related to the legitimate public function of operating Kingston's transit system. NY CONST ART IX § 2(c)(7); GENERAL MUNICIPAL LAW § 199-r(1)(d); MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(7) Download
1995-39 The Town of Putnam Valley may appoint harbor masters to enforce the Navigation Law on Lake Oscawana, provided that the lake meets the definition of navigable waters contained in Navigation Law § 2(4). Town harbor masters, as peace officers, may enforce those provisions of the Environmental Conservation Law which are consistent with their specific duties when authorized or required to do so by their employers. CRIMINAL PROCEDURE LAW § 2.10(19); NAVIGATION LAW §§ 2(4), 30, 79-a, 79-b; 9 NYCRR §§ 446.21 - 446.25; L 1965, CH 168 Download
1995-40 The building inspector of the Village of Depew is a public officer and, therefore, must reside within the village. The board of trustees may, however, enact a resolution to authorize the building inspector to reside anywhere in the county within which the village is wholly or partially located. CIVIL SERVICE LAW § 42(1); PUBLIC OFFICERS LAW § 3; VILLAGE LAW §§ 3-300, 3-301 Download
1995-41 Membership on the county legislature is incompatible with simultaneous service on the Professional Advisory Committee or the Utilization Review Committee. Also, once elected to the legislature, this individual may not continue to serve as the farm bureau representative on the board of the soil and water conservation district. SOIL AND WATER CONSERVATION DISTRICTS LAW § 6(1) Download
1995-42 A property owner may utilize section 18-1804 of the Village Law to exclude his property from village boundaries only if he does not receive specified village services and improvements. VILLAGE LAW § 18-1804; L 1929 CH 662; L 1921 CH 275; L 1903 CH 606 Download
1995-43 The Village and Town Laws do not permit an arrangement whereby the Town of Alden would provide law enforcement only to the Village of Alden and not to the area of the town outside the village. Other alternatives exist for the provision of law enforcement to the village. COUNTY LAW § 650; EXECUTIVE LAW § 226(1); GENERAL MUNICIPAL LAW ART 5-G §§ 119-m, 119-n, 119-o, 121-a; TOWN LAW § 150(1); VILLAGE LAW § 8-800 Download
1995-44 State Finance Law § 165 was intended to prohibit the purchase of only those species of tropical hardwoods listed in the statute. We also conclude that the exemption for products from "a sustained, managed forest" is not defined in the statute. CONSOLIDATED LAWS OF NEW YORK, BOOK 1, § 98; STATE FINANCE LAW § 165; L 1991 CH 663 Download
1995-45 The county clerk may accept for filing a certificate that indicates a person is doing business under an assumed name that appears to be the name of a person, when the certificate describes the secondary, historic or geographic meaning or connotation of the assumed name. The clerk may not require that such a certificate be filed in other counties before it is accepted for filing in the clerk's county. The exemption set forth in CPLR § 8017 applies only to the county served by the clerk with whom papers are to be filed. The county clerk may correct an obvious clerical error and remove erroneously recorded documents from the record, taking whatever steps are deemed necessary to avoid confusion as a result of the removal. CPLR § 8017; GENERAL BUSINESS LAW § 130 Download
1995-46 A local law which would prohibit the award of municipal contracts to persons who have made political contributions to town officials or candidates for town office is preempted by State law. NY CONST ART IX § 2(c); ELECTION LAW § 14-114; GENERAL MUNICIPAL LAW § 806; MUNICIPAL HOME RULE LAW § 10; 9 NYCRR Part 6200; L 1974, CH 604 Download
1995-47 The county may enter a mutual aid agreement with a county from another state pursuant to General Municipal Law Article 14-G, which permits interlocal agreements in specified circumstances. GENERAL MUNICIPAL LAW §§ 209, 209-a, 461(1), 462(2), 463, 466, 469 Download
1995-48 A municipality is unauthorized to establish a term for an office in the competitive class of the civil service. This principle applies to a chief of police serving as the executive head of a municipality's police department, so long as that position is classified competitive. CIVIL SERVICE LAW §§ 75, 76(4); UNCONSOLIDATED LAWS § 5711-q Download
1995-49 Each sewage-works corporation must petition for a sewer rate that is directly related to the cost of operating and maintaining its own sewer system for its own users in its approved area of operation. There is no authority for the municipal approval of a combined sewer rate or increase for two sewageworks corporations, regardless of the revenue needs or circumstances of either corporation. COUNTY LAW ART 5-A; GENERAL MUNICIPAL LAW § 450, et seq. ; TOWN LAW ART 12, 12-A; TRANSPORTATION CORPORATIONS LAW, ART 10, §§ 115(1) and (4), 116(1), 117, 118(1)(a), 119(4), 122(1); L 1960 CH 1067 Download
1995-50 A town board may reduce the term of its supervisor from four to two years by local law subject to mandatory referendum. MUNICIPAL HOME RULE LAW §§ 10(1)(ii)(a)(1) and (d)(3), 23(2)(e); TOWN LAW § 24-a Download
1995-51 A person may not hold simultaneously the positions of mayor of a village and supervisor of a town. HIGHWAY LAW §§ 141, 277; TOWN LAW § 60; VILLAGE LAW § 4-400(1)(a) Download
1995-52 The proposed uses of land, acquired under the Park and Recreation Land Acquisition Program of 1960 as a municipal park, are prohibited by Parks, Recreation and Historic Preservation Law § 15.09 in the absence of express authorization by the State Legislature. PARKS, RECREATION AND HISTORIC PRESERVATION LAW §§ 15.01, 15.09, 15.11 Download
1995-53 The provisions of the Criminal Procedure Law, including section 420.10, are applicable to fines imposed under General Municipal Law § 136 and under the New York State Uniform Fire Prevention and Building Code. COUNTY LAW § 700(1); CRIMINAL PROCEDURE LAW §§ 1.20(18), 420.10; GENERAL MUNICIPAL LAW § 136; VEHICLE AND TRAFFIC LAW § 155 Download
1995-54 A county may dedicate land as a Korean War Veteran Memorial Park. The park land will be held in public trust and may not be diverted to other uses or conveyed without authorization by the State Legislature. MUNICIPAL HOME RULE LAW § 10(1)(i) and (ii)(a)(6) Download
1995-55 Subject to mandatory referendum, the village board of trustees may enact a local law transferring the authority to discipline police officers from the board of trustees to the village manager. CIVIL SERVICE LAW § 85(2); MUNICIPAL HOME RULE LAW §§ 10(1)(ii)(a) and (e)(3), 23(2)(f); VILLAGE LAW §§ 3-308, 8-804 Download
1995-56 Amendments to section 20 of the Town Law granting to town justices the authority to consent to the appointment and discharge of the court clerk were not intended to limit the town board to the appointment of only one clerk. CIVIL SERVICE LAW § 41(1)(d); TOWN LAW § 20; UNIFORM JUSTICE COURT ACT § 109; L 1990 CH 252 Download
1995-57 An automobile supplies and parts store may not make a car door opener available to the general public. Violations should be prosecuted by the district attorney. GENERAL BUSINESS LAW § 396-j; L 1968 CH 852 Download
1995-58 A village which had the office of chief of police as of August 2, 1985, whether or not the position was filled, must retain the office so long as it continues to have a police department. VILLAGE LAW § 8-800; L 1985, CH 810, § 2 Download
1995-F1 Compromise or settlement by the Crime Victims Board of the amount of lien which attaches to a recovery, pursuant to Executive Law § 634(2), may or may not constitute a waiver of lien which attaches to a subsequent recovery or waiver of subrogation rights, set forth in Executive Law § 634(1)(a). The intent of the parties as evidenced by the record of proceedings governs. EXECUTIVE LAW §§ 620, 623, 624, 634(1) and (2); WORKERS' COMPENSATION LAW §§ 29; L 1982, CH 513; L 1985 CH 688 Download
1995-F2 The Board may suspend or revoke the license of a Hudson River pilot for piloting actions he took while he was not acting under the auspices of his Hudson River pilot license. NAVIGATION LAW §§ 90, 91, 91-a, 91-b, 92; 21 NYCRR 50.5, 52.3(a), 52.5, 52.10; 46 USC §§ 8501, 8502, 9302 Download
1995-F3 The New York State Department of Environmental Conservation may not undertake a promotional sweepstakes to promote subscriptions to "The Conservationist" absent express statutory authority to do so. NY CONST, ART I, § 9; ENVIRONMENTAL CONSERVATION LAW §§ 3-0113, 3-0301; GENERAL BUSINESS LAW § 369-e(1); L 1993, CH 57, § 78 Download
1995-F4 A person appointed to the position of Chairman of the Employment Relations Board may take an unpaid leave of absence from the law firm of which he is a partner. LABOR LAW § 702(4); L 1937, CH 443 Download
1995-F5 Workers' Compensation Law § 125 applies to State agencies and law enforcement entities. The statute makes it unlawful for employers to inquire into or consider, for the purposes of assessing fitness for employment, whether a job applicant has filed for or received workers' compensation benefits. It also prohibits discrimination against job applicants based on their claim history. WORKERS' COMPENSATION LAW § 125; L 1991, CH 308 Download
1995-F6 The Commissioner of Agriculture and Markets is authorized by statute to delegate his responsibilities on the board of directors of the New York State Thoroughbred Breeding and Development Fund Corporation to a deputy commissioner. AGRICULTURE AND MARKETS LAW § 17(a) and (c); RACING, PARI-MUTUEL WAGERING AND BREEDING LAW § 245.1 Download
1995-F7 Prescriptions written by residents and interns in the hospital where they are employed, while they are practicing under the supervision of a licensed physician, may be filled at any licensed pharmacy. EDUCATION LAW §§ 6501(4), 6521, 6522, 6801, 6803, 6805, 6810, 6902; 8 NYCRR Parts 60, 63, § 60.8; 10 NYCRR 405.4(f)(2) Download
1995-F8 As amended by L 1995 ch 645, section 307(3)(a)'s indexing requirements are now expanded to include those final determinations that arise out of a statute specifically providing affected parties with an opportunity to be heard. STATE ADMINISTRATIVE PROCEDURE ACT, ART 3, § 307; L 1995 CH 645; L 1985 CH 469 Download
1995-F9 While CUNY has not been designated as a participating agency, and is not required to conduct registration activities beyond the distribution of voter registration forms specifically mandated in the first paragraph of Election Law § 5-211, CUNY is not prohibited from implementing a more comprehensive voter registration program, including providing assistance in completion of forms and collecting and transmitting completed forms to the Board of Elections. NY CONST ART II, § 8; ELECTION LAW § 5-211; 42 USC § 1973gg-5 Download

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