Appeals & Opinions - Numerical Index

Appeals & Opinions - Numerical Index1997
Opinion Summary Abstract Related Statues sort descending
1997-F1 The health care professionals listed in section 14 of the Public Health Law providing consultation to the Department of Health concerning the appropriateness of treatment plans for Medicaid patients are entitled to defense and indemnification by the State on the terms and conditions of Public Officers Law § 17. EDUCATION LAW, ART 131, 131-B, 133, 136, 137, 139, 143, 156, 157, 159, 164, 175; PUBLIC HEALTH LAW § 14; PUBLIC OFFICERS LAW § 17; L 1995 CH 505; L 1982 CH 601; L 1979 CH 442 Download
1997-F2 The Insurance Department has construed correctly the relevant provisions of law, consistent with principles of statutory construction, to achieve the legislative intent underlying Chapter 784 of the Laws of 1988. The primary legislative purposes are to provide insurance policyholders who rent vehicles with insurance coverage for damage to their rental vehicles and to prohibit rental vehicle companies from holding renters liable, beyond $100, for damage to rental vehicles. GENERAL BUSINESS LAW 3966-z; INSURANCE LAW § 3440; VEHICLE AND TRAFFIC LAW §§ 131, 137-a; L 1988 CH 784 Download
1997-F3 The physicians and other health care personnel volunteering at the request of the State University of New York Health Science Center at Syracuse in the clinical program at Binghamton are entitled to defense and indemnification by the State on the terms and conditions of Public Officers Law § 17 in any civil action or proceeding arising out of any alleged act or omission which occurs or is alleged in the complaint to occur when they perform the volunteer services. EDUCATION LAW § 355(7); PUBLIC OFFICERS LAW § 17 Download
1997-F4 With limited exceptions, New York law does not recognize or give effect to licenses to carry firearms issued by the State of Georgia or any other state. PENAL LAW, ART 265, §§ 265.20(a)(1)(d), (11), (13) and (13a), 400.00; OFFICIAL CODE OF GEORGIA ANNOTATED § 16-11-126(e) Download
1997-F5 For purposes of General Municipal Law § 209-q, the only detective or rackets investigators included as police officers are those employed in counties located in cities with a population greater than one million. CRIMINAL PROCEDURE LAW § 1.20(34)(g); GENERAL MUNICIPAL LAW § 209-q; L 1983 CH 956; L 1982 CH 594 Download
1997-F6 The Legislature has withdrawn localities' authority to use zoning to regulate some defined types of human services. State and local regulation of other types may coexist. Federal law, including the Fair Housing Amendments Act of 1988, the Americans With Disabilities Act and the Rehabilitation Act must be considered in evaluating local zoning laws. NY CONST ART IX, § 2(c); COUNTY LAW § 220; GENERAL CITY LAW § 20; MENTAL HYGIENE LAW § 41.34; MUNICIPAL HOME RULE LAW § 10(1)(i), (1)(ii)(a)(11), (1)(ii)(a)(12), (1)(ii)(a)(14); SOCIAL SERVICES LAW § 390(12)(a) and (b); STATUTE OF LOCAL GOVERNMENTS § 10(6); TOWN LAW § 261; VILLAGE LAW § 7-700; 29 USC § 749; 42 USC §§ 3601-3606; 42 USC §§ 12101, et seq., PUBLIC LAW NO. 100-130 (FAIR HOUSING AMENDMENTS ACT OF 1988); PUBLIC LAW NO. 90-284 (FAIR HOUSING ACT); 82 Stat. 81; 102 Stat. 1619 (1988) Download
1997-F7 A public officer's conviction for off-duty behavior constituting the crime of attempted grand larceny in the fourth degree results in the removal of the officer by operation of law. CRIMINAL PROCEDURE LAW § 1.20(13); EDUCATION LAW § 355(1)(a); PENAL LAW §§ 10.00(6), 110.00, 110.05(7), 155.30(1); PUBLIC OFFICERS LAW § 30(1) Download
1997-F8 There is no authorization for the State to defend and indemnify the Hunter College Foundation and its employees. EDUCATION LAW § 6205(1); PUBLIC OFFICERS LAW § 17 Download
1997-F9 There is no authorization for the Department of Transportation to reimburse an employee for legal fees incurred in a hearing before the Department of Motor Vehicles to determine the right of the employee to retain his driver’s license. PUBLIC HEALTH LAW § 14; PUBLIC OFFICERS LAW §§ 17, 19 Download
1997-F10 A district superintendent of a supervisory school district is entitled to the protections of Public Officers Law § 17 in connection with lawsuits that arise out of the performance of the superintendent's State functions. EDUCATION LAW §§ 306, 1711, 1950, 2201, 2204, 2209, 2211, 2212, 2215, 2216, 2503, 2565; PUBLIC OFFICERS LAW § 17 Download
1997-F11 The New York State Independent Living Council is subject to the appointment provisions of the Public Officers Law and the quorum requirements of General Construction Law § 41. Council members are independent contractors who are not entitled to defense and indemnification under the provisions of Public Officers Law § 17. GENERAL CONSTRUCTION LAW § 41; PUBLIC OFFICERS LAW §§ 2, 3, 17; INTERNAL REVENUE CODE § 501(c)(3); REHABILITATION ACT § 723; 29 USC §§ 796d, et seq. Download
1997-F12 Without legislative authorization, the Governor may designate the Urban Development Corporation, doing business as the Empire State Development Corporation, to administer the Small Cities component of the federal Community Development Block Grant Program. NY CONST, ART VII, § 7, ART XVIII; NY UNCONSOLIDATED LAWS §§ 6253(6)(a) and (6)(c), 6254(1), 6255(25) and (28); 24 CFR §§ 570.1, et seq., 570.3, 570.208, 570.420(a), (b), et seq., 570.480(c), 570.481(a); 42 USC §§ 5301(c), 5302(a)(2), (a)(4), (a)(6)(A) and (a)(7), 5306(d)(3)(A) Download
1997-54 A county may obtain a copyright under federal law in order to prevent unauthorized use of its publications. 17 USC §§ 101, 102(a)(1), 106, 301, 412, 502, 504 Download
1997-55 A county may obtain a copyright under federal law in order to prevent unauthorized use of its publications. NY CONST, ART VI, §17(d); TOWN LAW §§60-a, 90, 91, 94 Download
1997-53 The positions of town comptroller and village treasurer are compatible. Recusal may be required under some circumstances. TOWN LAW §§ 29(1), 34, 124; VILLAGE LAW § 4-408 Download
1997-52 The district attorney has wide discretion as to whether to prosecute violations of village local laws. He may perform that prosecutorial function or, in his discretion, delegate that responsibility to the municipal attorney or to other village officials. COUNTY LAW §§ 700, 701; VILLAGE LAW § 20-2006(2) Download
1997-51 A town local law establishing attendance requirements for members of the zoning board of appeals and planning board is authorized by the provisions of the Town Law. Removal is subject to procedural due process requirements. TOWN LAW §§ 267(9), 271(9) Download
1997-50 Assuming appropriate legislative findings have been made establishing a legitimate governmental interest, a proposed amendment to the Niagara County Code of Ethics, which would prohibit any person appointed to a county office by the Legislature and/or the chairman of the Legislature from holding an executive office in a political party organization, is authorized and lawful. EDUCATION LAW § 2103(3); GENERAL MUNICIPAL LAW § 806; MUNICIPAL HOME RULE LAW § 10(1)(i) and (ii)(a)(1) Download
1997-49 The establishment of qualifications to hold line offices in a fire department of a fire district are established solely by the board of fire commissioners of the fire district. NOT-FOR-PROFIT CORPORATION LAW § 1402; TOWN LAW §§ 176(11), 176-a Download
1997-48 The clerk of a town justice court is not a public officer and, therefore, is not required to be a citizen of the United States. PUBLIC OFFICERS LAW § 3; TOWN LAW § 20(1)(a); UNIFORM JUSTICE COURT ACT §§ 109, 111 Download
1997-47 A village may install video surveillance cameras at several locations to monitor the public streets and sidewalks. NY CONST, ART I, § 12; CRIMINAL PROCEDURE LAW, ART 700, §§ 700.05, 700.10; PENAL LAW §§ 250.00, 250.05 Download
1997-46 The positions of town supervisor and director of the County Veterans Agency are compatible and, therefore, may be held by the same person. MUNICIPAL HOME RULE LAW § 10; TOWN LAW §§ 29, 64, 125 Download
1997-45 The board of fire commissioners may provide the details for preparation of paper ballots, including the procedure for allowance of space for write-ins. TOWN LAW §§ 175, 176 Download
1997-44 A person may not hold both the positions of master mechanic of the fire district and fire district commissioner. TOWN LAW §§ 175(3), 176(11), (18-a), 176-a(1) Download
1997-43 In the absence of a State statute authorizing the establishment of administrative tribunals for the adjudication of violations of the county's electrical code, adjudication and sentencing must be conducted consistent with the provisions of existing State statutes, including the Criminal Procedure Law and the Penal Law. CRIMINAL PROCEDURE LAW, ART 380, § 380.10(2); MUNICIPAL HOME RULE LAW § 10(4)(b), 11(1)(e); VEHICLE AND TRAFFIC LAW, ART 2-A Download
1997-42 There is no requirement or authority for a referendum on the conveyance by a town improvement district of an easement in real property. REAL PROPERTY LAW § 240(2); TOWN LAW § 198(12) Download
1997-41 Representation of the town board by the municipal attorney in a matter before the zoning board of appeals is not a violation of section 805-a(1)(c) of the General Municipal Law. The zoning board of appeals has implied authority to employ legal services regarding the matter. GENERAL MUNICIPAL LAW § 805-a(1)(c) Download
1997-40 Defense and indemnification of a municipal employee, whether sued in an individual or official capacity, may be provided upon a proper finding that the employee acted within the scope of his or her employment or duties. NY CONST, ART VIII, § 1, ART IX, § 2(c)(i) and (c)(ii)(1); GENERAL MUNICIPAL LAW § 51; PUBLIC OFFICERS LAW § 18; NASSAU COUNTY ADMINISTRATIVE CODE §§ 22-2.8(2)(a), 22-2.8(3)(a) Download
1997-39 Chapter 14 of the Laws of 1997 establishes a complete ban on combative sport and creates criminal penalties for violations. Clearly, under the statute's provisions and legislative history combative sport is contrary to the public policy of the State. Chapter 14, therefore, is a criminal statute which under Federal authority may be enforced on Indian reservations. PENAL LAW § 10.00(1); UNCONSOLIDATED LAWS §§ 8917(c), 8923; 19 NYCRR §§ 208.20, 210.8, 210.9, 210.27, 215.11; 18 USC § 1162(a); 25 USC §§ 232, 233; 28 USC § 1360(a); L 1997 CH 14; L 1996 CH 708 Download
1997-38 A conflict of interests does not result from the village attorney’s private practice before the town planning board, of which the mayor is a member. Download
1997-37 A municipality may utilize its police power to license tow truck operators, establish a rotational list, summon operators to the scenes of accidents and prohibit cruising for towing work. GENERAL MUNICIPAL LAW § 80; MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(12); TOWN LAW § 136 Download
1997-36 A town clerk may be appointed tax collector for the school district. EDUCATION LAW §§ 2(13), 1805, 2102, 2130(4); TOWN LAW §§ 10, 36 Download
1997-35 A deputy building inspector may perform inspections on the building inspector's home and issue any necessary permits. Download
1997-34 A town is not authorized to amend or supersede a provision of the Uniform Justice Court Act providing for distribution of fines collected by the town justice court. MUNICIPAL HOME RULE LAW §§ 10(1)(ii)(d)(3), 11(1)(e); UNIFORM JUSTICE COURT ACT § 2021; L 1991 CH 460 Download
1997-33 Cities and villages are authorized under section 1640(a) of the Vehicle and Traffic Law to set aside parking spaces on public highways for use by employees of the municipality, other governmental purposes and for persons doing business in municipal offices. VEHICLE AND TRAFFIC LAW §§ 1600, 1604, 1640(a); L 1996 CH 663 Download
1997-32 Board members named in a lawsuit may participate in the village and library boards' deliberations, regarding the village's and library's liability as named entities in the lawsuit, and may be present when the boards convene in executive session to receive the advice of counsel. PUBLIC OFFICERS LAW § 18 Download
1997-31 The enactment of a resolution appointing members of an IDA, subject to approval of the chief executive officer, is consistent with provisions of State law. GENERAL MUNICIPAL LAW, ART 18-A, §§ 856(2), 890-a; DUNKIRK CITY CHARTER § 3.03 Download
1997-30 Members of the Sewanhaka Central High School District Board of Education, who also are members of the board of a constituent district that seeks to purchase unused property from the central high school district, may vote when the central high school district board considers the terms and conditions of the proposed sale. EDUCATION LAW, ART 39, §§ 402, 1709(11), 1901, 1903, 1914, 1915 Download
1997-29 The town may not enact a local law superseding Town Law § 130(17)(1)(a) to regulate the size and horsepower of motor boats permitted upon Chenango Lake. It may regulate the speed of vessels and regulate and restrict the operation of vessels upon any waters within or bounding the town. NY CONST, ART IX, § 2(b)(10); MUNICIPAL HOME RULE LAW § 10(1)(ii)(d)(3); NAVIGATION LAW §§ 46, 46-a; TOWN LAW § 130; L 1938 CH 309; L 1935 CH 346 Download
1997-28 The county clerk may not accept for filing subdivision maps that are certified by a professional engineer rather than by a licensed land surveyor as required by Real Property Law § 334. EDUCATION LAW § 7208; REAL PROPERTY LAW §§ 334, 335 Download
1997-27 Vehicle and Traffic Law § 415 does not authorize the use of dealer number plates on vehicles used to transport customers or pick up supplies, as such use does not constitute the “sale or demonstration” of the vehicle or fall within other permitted uses under the statute. VEHICLE AND TRAFFIC LAW §§ 401, 410, 415; 15 NYCRR § 78.21(b) Download
1997-26 The Legislature has authorized agreements between school districts and governing bodies of local fire departments and other emergency service providers that include provisions relating to the costs of alarm interconnections, including costs associated with false alarms. Therefore, a village by contract may provide for the expense of false alarms. EDUCATION LAW §§ 807-c, 1604(5), (30), 1709(33), 1804(1); MUNICIPAL HOME RULE LAW § 10; VILLAGE LAW § 1-102; L 1974 CH 1015 Download
1997-25 There is no statutory authority for a village to remove itself from a school district. NY CONST, ART IX, § 3(a)(1); EDUCATION LAW ARTICLE 31; REAL PROPERTY TAX LAW § 1308 Download
1997-24 Section 18 of the Public Officers Law does not by its terms authorize the defense of a municipal officer or employee in a proceeding before the New York State Division of Human Rights. A municipality may, however, by local law provide on a prospective basis for the reimbursement of defense costs in such a proceeding provided that the employee was acting within the scope of his or her duties and is acquitted of the charges of discrimination. STATE CONSTITUTION, ART VIII, §1; ART IX, §2(C)(I) AND (II)(1); PUBLIC OFFICERS LAW§§ 17,18 Download
1997-23 A town board may adopt a resolution not less than one hundred fifty days prior to the biennial town election abolishing the office of tax collector, effective at the expiration of the incumbent's term. TOWN LAW § 36 Download
1997-22 The positions of county legislator and member of a town planning board of a town in the county are compatible. COUNTY LAW § 411; GENERAL MUNICIPAL LAW §§ 239-b, 239-m; TOWN LAW §§ 272-a, 274-a, 276 Download
1997-21 A person may not serve simultaneously as the assistant chief of the fire department of a fire district and as a member of the board of fire commissioners. TOWN LAW § 174(4) Download
1997-20 Section 501 of the County Law does not authorize the county attorney to represent a county official as a plaintiff in a defamation of character action. NY CONST, ART VIII, § 1; COUNTY LAW § 501; PUBLIC OFFICERS LAW § 18 Download
1997-19 A person may not hold simultaneously the positions of town assessor and mayor of a village in the town. The individual may be a candidate for the office of mayor but must vacate the office of assessor upon election and qualification as mayor. REAL PROPERTY TAX LAW § 1402(2) Download
1997-18 A town board may amend or supersede section 150(2) of the Town Law to establish a board of police commissioners consisting of five members. MUNICIPAL HOME RULE LAW §§ 2(5), 10(1)(i) and (ii); TOWN LAW § 150 Download
1997-17 A nursing home policy that requires incoming residents to execute a durable or springing power of attorney naming the nursing home administrator as agent for the management of social security and retirement benefits is inconsistent with Federal and State law. A grant of any form of power of attorney to a nursing home administrator, for the benefit of the nursing home, is inconsistent with the purpose of a power of attorney to establish a fiduciary relationship for the benefit of the resident. GENERAL OBLIGATIONS LAW, TITLE 15, §§ 5-1501, 5-1505, 5-1506; MENTAL HYGIENE LAW, ART 81, §§ 81.02, 81.03(g), 81.09, 81.35; PUBLIC HEALTH LAW §§ 2803-c, 2805-f(4)(b)(I); 10 NYCRR, PART 415, §§ 415.3, 415.26; 42 USC §§ 301, et seq. , 402, 405, 407, 423, 1381, et seq., 1383(a)(2)(A)(ii)(I) and (a)(2)(B)(I), 1395i-3, 1396r; 20 CFR §§ 416.601(a) and (b)(1), 416.615(a), (b) and (c), 416.620, 416.621(a)(1)-(5), 416.635, 416.640, 416.640a, 416.650, 416.665 Download
1997-16 The enactment of a local law by a county to modify the terms of its legislators is not a restructuring of the legislative body within the meaning of Municipal Home Rule Law § 10(1)(ii)(a)(13)(f), in the instance where such action is taken separate and apart from apportionment of the legislative body, and not in connection thereto. NY CONST ART IX, § 2(c)(ii)(1); MUNICIPAL HOME RULE LAW §§ 10(1)(ii)(a)(1) and (13), 23(2)(e), 24(2)(i) Download
1997-15 The county clerk must accept for recording any instrument that is properly acknowledged and executed. Real Property Law § 258, by its own terms, sets forth acceptable short forms and allows for the use of other forms of instruments. It contains no language requiring that certain information be presented in an instrument before it is filed, nor does it authorize the clerk to reject documents that do not contain specific information or display the information in a particular form. REAL PROPERTY LAW §§ 258 291; COUNTY LAW ART 12 Download
1997-14 The village court clerk may not also serve as a probation officer. UNIFORM JUSTICE COURT ACT §§ 1802, 2019-a; 22 NYCRR § 214.2(b) Download
1997-13 A city may enter into a municipal cooperation agreement with a town for the provision of police services by the city on city school district property located in the town. NY CONST, ART IX, § 1(c); CRIMINAL PROCEDURE LAW §§ 1.20(34-a), 120.50, 140.10, 150.20; GENERAL MUNICIPAL LAW, ART 5-G, §§ 119-n(c), 119-o(1); TOWN LAW ART 10 Download
1997-12 Non-charter county by local law may supersede the publication requirements of section 214 of the County Law. COUNTY LAW § 214; MUNICIPAL HOME RULE LAW § 27 Download
1997-11 A town by local law may broaden the required residency for the town attorney to the county in which the town is located. NY CONST, ART IX, § 2(c)(1); MUNICIPAL HOME RULE LAW §§ 2(5), 10(1)(ii)(d)(3), 22(1); PUBLIC OFFICERS LAW §§ 3(1), 30(1)(d); TOWN LAW §§ 20(2)(a) and 23(1) Download
1997-10 Land acquired by a city, dedicated for park purposes and improved and utilized for park purposes, is impressed with a public trust and may not be used for other than park purposes without the express approval of the State Legislature. GENERAL CITY LAW § 20(2), (7) Download
1997-09 One person may simultaneously hold the positions of deputy town clerk/receiver of taxes and assessor. TOWN LAW § 20(4) Download
1997-08 A village officer or employee with authority to enforce parking regulations may issue a ticket to a vehicle with an expired inspection sticker but may not do so where the registration has expired. A violation of the registration requirements of the Vehicle and Traffic Law does not occur until the vehicle is being operated upon the public highways of the State without a valid registration. MUNICIPAL HOME RULE LAW § 10(4); VEHICLE AND TRAFFIC LAW §§ 306(b), 401(1), 1640(6) Download
1997-07 Section 1506(b) of the Not-For-Profit Corporation Law requires on a State-wide basis that the legislative body of a city or village consent to the proposed location of a cemetery within these municipalities. Additionally, in Suffolk County a cemetery may not be located in an area of a town outside of an incorporated village without the consent of the town board. NOT-FOR-PROFIT CORPORATION LAW § 1506(b) Download
1997-06 The board of fire commissioners of a fire district may require that persons employed by the paid fire department of the district reside within the State of New York. PUBLIC OFFICERS LAW § 3; TOWN LAW § 176(11-c) Download
1997-05 A member of a city council must avoid circumstances which compromise his or her ability to make decisions solely in the public interest. Therefore, if the interests of his or her employer are affected by matters before the council, recusal is the appropriate course of action. GENERAL MUNICIPAL LAW §§ 806, 808 Download
1997-04 The positions of fire chief and house maintainer of a fire district are incompatible. TOWN LAW §§ 176(18-a), (19), 176-a(1) Download
1997-03 A county local law regulating nuisances does not preempt the enactment of a nuisance abatement law by a town within the county, provided that the function has not been transferred by the town to the county level under the provisions of a county charter. NY CONST, ART IX, §§ 1(h)(1), 2(c)(10) and (d); MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(5) and (12), (1)(ii)(d)(3); TOWN LAW § 130 Download
1997-02 Under Village Law § 9-912, upon the filing of a petition with the required number of signatures to change the name of the village which specifically requests that the proposition be submitted to the electors at a time other than the date of the regular or special village election, the referendum on the proposition must be held no less than 30 nor more than 60 days after the filing of the petition. VILLAGE LAW § 9-912; ELECTION LAW § 15-102 (1), (2) Download
1997-01 A school district officer may resign to a district meeting of residents or by filing a written resignation with the district superintendent of his supervisory district who must endorse his approval and file the resignation with the district clerk. Alternatively, the officer may resign under Public Officers Law § 31. EDUCATION LAW §§ 1980, 2001, 2003-2008, 2111, 2112; GENERAL CONSTRUCTION LAW § 66(2); PUBLIC OFFICERS LAW § 31 Download

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