Appeals & Opinions - Numerical Index

Appeals & Opinions - Numerical Index1996
Opinion Summary Abstract Related Statuessort descending
1996-06 A member of the town board should recuse herself from deliberations and voting regarding possible legal action by the town board against the board of assessment review, of which her husband serves as chairperson. Download
1996-11 A local government's zoning regulations, dealing with accessory apartments in single family residences, which distinguish between apartments that are occupied by relatives of the homeowner and those that are not, are improper. Zoning deals basically with land use rather than the person who owns or occupies the land. Download
1996-15 The authorization for municipalities to contract for dog control services with an incorporated dog protective association means an association formed under the Not-For-Profit Corporation Law. AGRICULTURE AND MARKETS LAW ART 7 § 114; NOT-FOR-PROFIT CORPORATION LAW §§ 201(b), 404(g), 1403(a) Download
1996-49 The town is not authorized to adopt a law requiring the addition of specific language to any deed to be recorded in the Washington County Clerk's Office. AGRICULTURE AND MARKETS LAW § 300; MUNICIPAL HOME RULE LAW § 10; REAL PROPERTY LAW §§ 290, et seq., 333-c Download
1996-F4 The 1993 amendments to the Real Property Law imposing a twenty year limit on priority of liens for credit line mortgages are not applicable to reverse mortgages. BANKING LAW §§ 6-h, 14; REAL PROPERTY LAW §§ 280 and 280-a, 281; TAX LAW § 253-b(2); 12 USC § 1715Z-20; L 1993 Ch 613; L 1984 CH 789 Download
1996-35 The security guard act does not preclude the Nassau County Civil Service Commission from considering a job applicant's criminal history. That consideration, however, must be in accord with the requirements of Correction Law Article 23-A. CORRECTION LAW, ART 23-A; GENERAL BUSINESS LAW, ART 7-A, §§ 89-f, 89-g(1), 89-h, 89-k, 89-l, 89-r; L 1992, CH 336 Download
1996-28 The positions of Rensselaer County Attorney and counsel to the Troy Industrial Development Authority are compatible. COUNTY LAW § 501; PUBLIC AUTHORITIES LAW §§ 1952, 1953, et seq Download
1996-43 The positions of assistant district attorney and member of a panel of three special counsels (to substitute for the town attorney, planning board attorney, or zoning board attorney in the event any are not available to serve due to conflicts of interests or other disqualifications) are compatible. COUNTY LAW § 700(1); VILLAGE LAW § 20-2006 Download
1996-31 The district attorney is not required to prosecute violations of village local laws. COUNTY LAW § 700(1); VILLAGE LAW § 20-2006(2) Download
1996-08 Social Services Law § 66 gives the county legislature the authority to appoint department of social services attorneys who will assist the county attorney in undertaking certain social service responsibilities under the Family Court Act. These attorneys are not separately appointed by the county attorney and need not take an oath of office. COUNTY LAW §§ 501(1), 502; FAMILY COURT ACT ART 2, 3, and 7, §§ 245(a), 254, 756-a; SOCIAL SERVICES LAW § 66(1) Download
1996-02 A person may not simultaneously serve as the corporation counsel of the City of Troy and as a member of the board of education of the Troy City School District. EDUCATION LAW ART 51, §§ 2501, 2502(7); PUBLIC OFFICERS LAW § 3(11) Download
1996-F5 Members of architectural and engineering professional associations who have served as auditors for New York City under its "professional certification option" are entitled to defense and indemnification by the State when they testify at the request of the Education Department at certain hearings to determine charges of professional misconduct against engineers and architects. EDUCATION LAW § 6510(7); PUBLIC OFFICERS LAW § 17; L 1981 CH 228; L 1980 CH 866 Download
1996-29 There is no prohibition on a person serving as the president of a school board and as the deputy supervisor of a town. EDUCATION LAW §§ 2103(1), 2112(3); TOWN LAW §§ 23(1), 29, 42, 125 Download
1996-46 Subdivision regulations enacted by the Village of Hastings-on-Hudson apply to subdivision and sale by the Hastings-on-Hudson School District of undeveloped property that lies entirely within the village and is not needed for school district purposes. EDUCATION LAW §§ 402, et seq., 1804(6); VILLAGE LAW §§ 7-728, et seq. Download
1996-23 The board of trustees of a village is required to submit a proposition for the dissolution of a village to a referendum in accordance with the requirements of the petition that is filed by the electors of the village. ELECTION LAW §§ 15-102(1), 15-104, 15-106; VILLAGE LAW §§ 9-912, 19-1900(1) Download
1996-42 Section 677(3)(b) of the County Law governs the availability of autopsy reports subject to any Federal requirements that apply because of the ongoing Federal investigation. ESTATES, POWERS AND TRUSTS LAW § 1-2.13; COUNTY LAW § 677(3)(b) Download
1996-45 A municipality is not authorized to condition the issuance of permits or licenses affecting real property upon the payment of delinquent real property taxes. EXECUTIVE LAW §§ 377(2)(a), 379; GENERAL CITY LAW §§ 32, et seq.; REAL PROPERTY TAX LAW, ART 11, TITLE 3 Download
1996-48 The village must, pursuant to the Uniform Fire Prevention and Building Code, establish fire lanes so that emergency services vehicles and personnel have access to buildings within the village and to permit enforcement of code provisions. EXECUTIVE LAW §§ 381, 382; 9 NYCRR § 1161.2 Download
1996-F12 After the declaration of a State disaster emergency, the Governor, acting through the Disaster Preparedness Commission, may create a temporary disaster relief organization under Executive Law § 21(3)(f). Such an organization has the authority to assume control over local disaster relief efforts, and may exercise command over any local resources and emergency service organizations available under the local disaster preparedness plan. This authority extends to local paid and volunteer fire companies. EXECUTIVE LAW, ART 2-B, 20, 21, 23, 24, 25, 28, 29, 29-a, 29-b, 29-e; STATUTE OF LOCAL GOVERNMENTS § 11(1); UNCONSOLIDATED LAWS §§ 9103(14), 9120; L 1993 CH 603; L 1978 CHS 640, 641; L 1951 CH 784 Download
1996-22 A town law imposing charges on property owners for false emergency alarms is neither inconsistent with nor preempted by State law. GENERAL BUSINESS LAW, ART 6-D, §§ 69-m, 69-o - 69-x, 69-z(2); MUNICIPAL HOME RULE LAW § 10(1)(ii); SOUTHAMPTON TOWN CODE CH 85 Download
1996-32 A joint fire district is a public entity which can provide for the defense and indemnification of its officers and employees in accordance with section 18 of the Public Officers Law. Since a joint fire district is formed for the benefit of property included within the district and not the municipalities, there is no authority under section 18 for provision of defense and indemnification by the municipalities. GENERAL CONSTRUCTION LAW § 66; GENERAL MUNICIPAL LAW § 856(1)(a); PUBLIC OFFICERS LAW § 18; SOIL AND WATER CONSERVATION DISTRICTS LAW § 5; TOWN LAW §§ 171, 176(18) and (27), 189-a(2)(d) Download
1996-09 In the absence of a legislative modification of its district plan, a business improvement district may not use funds for any purpose other than those set forth in the district plan. GENERAL MUNICIPAL LAW ART 19-A, §§ 980, 980-a, 980-b, 980-c, 980-d, 980-e, 980-f, 980-i, 980-l; TOWN LAW § 190, et seq.; L 1989 CH 282 Download
1996-20 The mayor of a village may serve also as the chairperson of a town zoning board of appeals, but must recuse himself or herself from acting on the zoning board of appeals with respect to matters that affect the interests of the village or village residents. GENERAL MUNICIPAL LAW § 239-m(3)(a)(iv), (b); TOWN LAW §§ 261, 267-b; VILLAGE LAW, ART 7 Download
1996-27 There is no common law or statutory prohibition on a town assessor also serving as a local political party chairperson. The municipality should, however, review its local code of ethics to determine whether there are any applicable standards. GENERAL MUNICIPAL LAW § 806(1)(a); REAL PROPERTY TAX LAW §§ 310, et seq Download
1996-40 The position of city commissioner of neighborhoods, housing and inspections, member of a board of commissioners of a municipality's housing authority and member of a local not-for-profit corporation that administers the municipality's United States Department of Housing and Urban Development (HUD) Section 8 programs are compatible. GENERAL MUNICIPAL LAW § 806; PUBLIC HOUSING LAW §§ 30, 37, 404; 24 CFR §§ 811.101, et seq. Download
1996-16 A person may serve simultaneously as the chairperson of the village zoning board of appeals and as a member of the town board. As a member of the zoning board of appeals, however, this individual may find it necessary occasionally to recuse him or herself from actions which affect the interests of town residents. GENERAL MUNICIPAL LAW §§ 239-m, 806, 808; MUNICIPAL HOME RULE LAW § 10; TOWN LAW §§ 60, 64; VILLAGE LAW § 7-712-a(4) Download
1996-17 The town supervisor must recuse herself from taking actions regarding the town police department which affect the terms and conditions of employment of her son, a sergeant in the department. GENERAL MUNICIPAL LAW §§ 806(1), 808 Download
1996-19 Members of the Montgomery County Industrial Development Agency serve at the pleasure of the appointing authority. An act of the State Legislature would be required to provide a term for these positions. GENERAL MUNICIPAL LAW, ART 18-A, §§ 856(2), 895-b Download
1996-12 A person may not serve simultaneously on the town board and also as the deputy superintendent of highways or as a laborer in the highway department. HIGHWAY LAW § 140(4); TOWN LAW § 32(2) Download
1996-25 Under section 335(3) of the Real Property Law, the town and village assessor or board of assessors in every town and village wherein any property to be abandoned is situated must approve a certificate of abandonment filed with the county clerk. Approval is an exercise of discretion as to whether the standards and conditions for abandonment under Real Property Law § 335(3) have been met. It is not a mere ministerial act. HIGHWAY LAW § 207; REAL PROPERTY LAW § 335 Download
1996-39 Although a municipality may not regulate van services, it is authorized to regulate vans used as taxicabs when the taxicab services are provided wholly within its boundaries. ISLIP TOWN CODE (1977) § 49-1; TRANSPORTATION LAW, ART 3, 7, 14, §§ 2(35), 80(1), 150, 151; L 1983 Ch 635 Download
1996-F11 Real estate brokers are not engaged in the unauthorized practice of law if they prepare purchase-and-sale contracts that expressly state the documents are subject to review by the parties' attorneys, or if they use forms approved by the appropriate organizations and do not insert any material requiring legal expertise. This limited privilege must be narrowly circumscribed. JUDICIARY LAW § 484; REAL PROPERTY LAW § 441-c Download
1996-10 Litigation by a member of a county board of supervisors against a county official who is eligible to receive defense and indemnification by the county does not disqualify the board member from acting on any financial or appropriation matter. When there is any doubt as to whether the board member can act impartially, he or she should recuse himself or herself or bring the issue before the county board of ethics for an advisory opinion. LOCAL FINANCE LAW §§ 10.00(a), 11.00(a)(33), 29.00(d), 35.00(b)(4); GENERAL MUNICIPAL LAW § 808; PUBLIC OFFICERS LAW § 18 Download
1996-13 The Lewis County Community Services Board may provide a fixed term of office for the director of mental hygiene. MENTAL HYGIENE LAW §§ 41.03, 41.05, 41.09 Download
1996-37 A village by resolution or by local law may dedicate a parcel of land as park land. Once dedicated for park purposes, land may not be used for other purposes without the express authorization of the State Legislature. MUNICIPAL HOME RULE LAW §§ 10(1)(ii)(a)(1), (11) and (13), 20, 23 and 24; VILLAGE LAW § 6-624 Download
1996-04 A town is authorized to establish a separate department to deal with a flood emergency and may appoint the person serving as town supervisor to the separate office of flood disaster administrator. MUNICIPAL HOME RULE LAW §§ 10(1)(ii)(a)(1), 23, 24 Download
1996-F7 Though the State Racing and Wagering Board may prescribe the post-surcharge breakage on winnings paid out by off-track pari-mutuel betting corporations, such a determination constitutes rulemaking that must be done in accordance with Article IV, § 8 of the State Constitution and the State Administrative Procedure Act. NY CONS ART IV § 8; RACING, PARI-MUTUEL WAGERING AND BREEDING LAW §§ 101, 228(1), 229(1)(a), 318(1), 503, 520, 521, 523, 527, 532, 603, 604; STATE ADMINISTRATIVE PROCEDURE ACT §§ 102(2)(a)(i) and (b)(i), 202; L 1993 CH 346; L 1994 CH 281 Download
1996-14 Upon establishment of the office of third town justice in the Town of Orangetown, the first occupant of the position is chosen by the electorate at a general town election. NY CONST ART 6 § 17(d); TOWN LAW § 20(1)(i) Download
1996-F1 A proposed real estate sales program called the "Good as Gold" promotion would violate the antigambling provisions of New York State law. NY CONST ART I § 9; PENAL LAW § 225.00 Download
1996-05 The county is authorized to consider enacting a local law to require that municipal police departments within the county report bias-related incidents to the county's commissioner of the Department of Public Safety. NY CONST ART IX § 2(3); EXECUTIVE LAW § 837(4)(a); MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(12); PENAL LAW §§ 240.21, 240.30, 240.31; 18 USCA §§ 241, 245 Download
1996-F8 The Workers' Compensation Board may undertake to educate and inform the public about Workers' Compensation Law reform proposals. NY CONST ART VII, § 8 Download
1996-F2 The Department of Environmental Conservation may not issue four temporary revocable permits to authorize installation of electrical cable and other equipment on the beds and shorelines of Raquette Lake and Big Moose Lake. NY CONST ART XIV §§ 1, 3; ENVIRONMENTAL CONSERVATION LAW § 9-0105(15) Download
1996-F3 The Governor is authorized to designate the Housing Trust Fund Corporation to administer the Federal Home Investments Partnership Program without legislative approval. NY CONST ART XVIII(2); PRIVATE HOUSING FINANCE LAW ART XXIV, §§ 44, 45-a, 571, 920, 1051, 1100, 1110, 1120, 1130, 1172; PUBLIC HOUSING LAW § 14; SOCIAL SERVICES LAW § 29; UNCONSOLIDATED LAWS CH 252, §§ 5, 8622; 24 CFR §§ 92.1, 92.2, 92.105, 92.107; 42 USC §§ 12704(2), (4), 12741, et seq.; L 1992 CH 794 Download
1996-44 The City of Olean may enter into inter-municipal agreements with other similar cities for the reciprocal recognition of certifications of employing or master plumbers provided that examinations and qualifications have been standardized to meet the needs of the participating cities. A city may not waive the requirement that an employing or master plumber be certified even where the applicant wishes to undertake no more than one job in the city in any calendar year. NY CONST, ART IX, § 1(c); GENERAL CITY LAW, ART 4, §§ 40, 44, 45; GENERAL MUNICIPAL LAW §§ 119-n(c), 119-o(1) Download
1996-41 A county is authorized to establish a Food Service Employee Certification Program for employees of establishments where food is handled, such as restaurants, convenience stores and grocery stores. The Program would not be preempted by State law. NY CONST, ART IX, § 2(c)(10); AGRICULTURE AND MARKETS LAW, ART 20-C, §§ 3, 16, 251-z-1, et seq. ; MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(12); PUBLIC HEALTH LAW §§ 225(4), 228, 347, 1350, et seq. ; 1 NYCRR § 261.8(c); 10 NYCRR, PART 14, §§ 14-1.73, 14-1.190 Download
1996-18 A local law curtailing the power of appointment of the mayor is subject to a mandatory referendum. NY CONST, ART IX, § 2(c); GENERAL CITY LAW §§ 27, 81; MUNICIPAL HOME RULE LAW §§ 2(5), 10, 23(2)(f); STATUTE OF LOCAL GOVERNMENTS § 10(6); L 1993, CH 208, § 1; L 1993 CH 211, § 1 Download
1996-34 A vacancy in the office of mayor of the City of Watervliet occurring on August 1, 1996 must be filled for the balance of the unexpired term by the voters at the November 1996 election. Therefore, the person appointed to fill temporarily the vacancy may serve only through December 31, 1996. NY CONST, ART XIII, § 3; PUBLIC OFFICERS LAW § 42 Download
1996-F10 The utilization of the reverse sale law enforcement technique for combating illegal controlled substance activity is not in contravention of section 3304 of the Public Health Law. PENAL LAW ART 220, §§ 1.05(1), (5), (6), 35.05; PUBLIC HEALTH LAW ART 33, §§ 3304(1), 3305(1) Download
1996-01 A village volunteer fire/rescue department is required to honor nonhospital orders not to resuscitate issued pursuant to Public Health Law § 2977. Members of the department may disregard such orders only in the circumstances described in Public Health Law § 2977(10). The statute does not require emergency service providers to maintain files of such orders or to review such orders before responding to calls for emergency assistance. PUBLIC HEALTH LAW ART 29-B and 29-C, §§ 2961(7), 2977, 2981, 2983 Download
1996-F9 Members of Regional Emergency Medical Services Councils and Regional Emergency Medical Advisory Committees are eligible to receive defense and indemnification under section 17 of the Public Officers Law. PUBLIC HEALTH LAW §§ 3001, 3002-a, 3003, 3004-a; PUBLIC OFFICERS LAW § 17 Download
1996-36 Section 18 of the Public Officers Law does not provide authority for representation of a town judge by the town attorney in a grievance proceeding before the Commission on Judicial Conduct. PUBLIC OFFICERS LAW § 18 Download
1996-26 The resignation of the town supervisor became effective once a copy was delivered to the office of the town clerk. PUBLIC OFFICERS LAW § 31; TOWN LAW § 26 Download
1996-F6 The board of directors of a Soil and Water Conservation District may apply the provisions of section 18 of the Public Officers Law to directors, officers and employees of the district and thereby provide for their defense and indemnification for any acts or omissions committed within the scope of their duties. Alternatively, the county, for whose benefit a Soil and Water Conservation District is formed, may provide for the defense and indemnification of district directors, officers and employees. PUBLIC OFFICERS LAW §§ 17, 18; SOIL AND WATER CONSERVATION DISTRICTS LAW §§ 3(1), 5(1), 8, 9, 10, 11 Download
1996-30 The definition of a mobile home park in a town local law establishing site plan regulations is not preempted by section 233 of the Real Property Law. While section 233 is preemptive, it covers landlord/tenant relationships in mobile home parks. REAL PROPERTY LAW § 233; TOWN LAW § 274-a(2) Download
1996-38 Deeds making reference to a tax map are acceptable for recording with the county clerk's office. However, such a method for describing property is subject to inaccuracies and, therefore, is not a preferred method. REAL PROPERTY LAW § 291, et seq.; REAL PROPERTY TAX LAW § 503(1)(a) Download
1996-33 A person may serve simultaneously as chief of police for one town and as a member of another town's board of assessment review. REAL PROPERTY TAX LAW § 525; TOWN LAW § 150 Download
1996-07 The positions of mayor of a village and member of the town board of assessment review are incompatible where the village uses the town assessment roll and the town board of assessment review hears grievances on behalf of the village and the town. REAL PROPERTY TAX LAW §§ 1402, 1408, 1420 Download
1996-03 A member of the town board may resign from the board in order to be appointed to fill a vacancy in the position of zoning enforcement officer. TOWN LAW § 64(5) Download
1996-47 The town board may establish an official letterhead and a policy for its use by town officials. TOWN LAW §§ 60(1), 63, 64(23) Download
1996-21 A member of the board of trustees of the Village of Marcellus may also serve as a volunteer member of the village volunteer fire department and as vice-president of the Marcellus Fire Department, Inc. The trustee should, however, recuse himself from participating in the approval of the budget for the volunteer fire department. VILLAGE LAW, ART 10 Download
1996-24 A proposition to dissolve a village includes a plan for the disposition of village property and the payment of village liabilities. VILLAGE LAW, ART 19, §§ 19-1900(1), 19-1904, 19-1916 Download

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