Appeals & Opinions - Numerical Index

Appeals & Opinions - Numerical Index1998
Opinion Summary Abstract Related Statues sort descending
1998-F1 The State of New York may not impose its requirement of financial disclosure on federal officials serving as members or directors of New York State public benefit corporations in their federal capacities to monitor federal funds, even though these officials have been deemed “policy makers”. PUBLIC OFFICERS LAW § 73-a; 5 USCA App 4 §§ 101, et seq.; 5 USCA App 4 § 105(b)(1); 49 USCA § 102(b) Download
1998-F2 Physicians who perform services for the Division of State Police pursuant to Executive Law § 215 are not eligible for defense and indemnification under the provisions of Public Officers Law § 17. There currently is no statutory provision comparable to Public Health Law § 14 that would bring these physicians within the coverage of section 17. EXECUTIVE LAW § 215; PUBLIC HEALTH LAW § 14; PUBLIC OFFICERS LAW § 17 Download
1998-F3 The procedures set forth in Civil Service Law § 20(2) apply to modifications of the rules of the New York City Personnel Director made pursuant to local law mandate. Under the terms of the statute, such modifications may not become effective without compliance with the notice and hearing requirements and approval by the State Civil Service Commission. NY CONST, ART V, § 6; CIVIL SERVICE LAW (1909) § 11; CIVIL SERVICE LAW § 20; L 1958, CH 790; L 1941, CH 933 Download
1998-F4 Because Social Services Law § 367-a(3) does not authorize Medicaid payment of Medicare Part B premiums for anyone whose current income equals or exceeds one hundred twenty percent of the poverty line, amendments to that section are necessary to comply with the Balanced Budget Act of 1997. NY CONST, ART XIII, § 4; SOCIAL SERVICES LAW § 367-a; 42 USC 1396a(a)(10)(E)(iv)(I), (II); 42 USC 1396u-3 Download
1998-F5 If a member of the Long Island Rail Road Commuter's Council (LIRRCC) is absent without good cause from three consecutive regular meetings, his/her position on the LIRRCC may be deemed vacant by the Governor. Any resulting vacancy shall be filled by appointment of the Governor upon the recommendation of the county executive, pursuant to the provisions of Public Authorities Law § 1266-d(2). PUBLIC AUTHORITIES LAW § 1266-d(2); PUBLIC OFFICERS LAW § 30 Download
1998-F6 A person may serve as justice of the Supreme Court if he or she meets constitutional or statutory qualifications within 30 days of commencement of the term of office and timely files his or her oath of office. NY CONST, ART VI, § 20(a); ART XIII, § 1; ELECTION LAW § 6-122; JUDICIARY LAW § 140-a; PUBLIC OFFICERS LAW § 30(1)(h); L 1993, CH 511 Download
1998-F7 Investigation and enforcement of compliance with the New York prevailing wage law is not preempted by the Employee Retirement Income Security Act. LABOR LAW §§ 220, 223; 29 USCA §§ 1001, et seq Download
1998-F8 Analysis of whether persons convicted of State felonies or misdemeanor crimes of domestic violence may be appointed as peace officers or whether their convictions preclude such appointments because they are prohibited from possessing firearms under the federal Gun Control Act and/or State law. CIVIL RIGHTS LAW § 79; CIVIL SERVICE LAW § 50(4)(d); CORRECTION LAW §§ 30, 700(1)(a), 701(3), 752; CRIMINAL PROCEDURE LAW § 2.10; ELECTION LAW § 5-106; JUDICIARY LAW § 510; PENAL LAW §§ 10.00(5), 265.20(a)(1)(c), 400.00; PUBLIC OFFICERS LAW §§ 3-b, 30; PUB L 90-351, TITLE VII §§ 1201-1203; PUB L 105-61 (111 Stat 1277); 18 USC §§ 921, et seq.; 18 USCA § 922(g); 18 USCA § 925 Download
1998-F9 A cemetery corporation may sell cemetery plots, for the purpose of resale, to a membership or religious corporation or unincorporated association or society which provides burial benefits for its members. ENVIRONMENTAL CONSERVATION LAW § 23-1301; NAVIGATION LAW § 91-b(2); NOT-FOR-PROFIT CORPORATION LAW §§ 1503, 1513; L 1949, CH 533 Download
1998-F10 Under the Supremacy Clause of the Constitution, section 318(11)(e) of the Vehicle and Traffic Law is superseded by Chapter 13 of the bankruptcy laws. Civil penalties owed to the Department of Motor Vehicles under article 6 of the Vehicle and Traffic Law are Dischargeable in a Chapter 13 bankruptcy where the debtor completes payments under a Chapter 13 plan. VEHICLE AND TRAFFIC LAW, ART 6, §§310(2), 318, 319; UNITED STATES BANKRUPTCY CODE, CHAPTER 13; 11 USCA § 1328(a) Download
1998-F11 An employee of the Consumer Protection Board when serving as the Board's representative on the Advisory Board to the Targeted Accessibility Fund is an employee in the service of the State who is covered by the provisions of Public Officers Law § 17. In virtually all cases, a suit against the Consumer Protection Board for monetary damages must be brought against the State in the New York State Court of Claims where the Office of the Attorney General defends the State and an appropriation is available to pay any judgment or settlement. CIVIL PRACTICE LAW AND RULES, ART 86; COURT OF CLAIMS ACT § 8; EXECUTIVE LAW § 550; PUBLIC OFFICERS LAW § 17 Download
1998-01 The State Education Department retains authority to administer and enforce the Uniform Fire Prevention and Building Code with respect to construction of a school building that will be owned by a private developer and leased to the school district. The facility will be built on land leased from the city by the school district, as authorized by L 1996 ch 562. Chapter 562 specifically provides that the review and approval procedures of the Education Law shall apply to the projects it authorizes. EDUCATION LAW §§ 381, 403-b, 408, 409, 2512(4); 8 NYCRR § 155.2(a)(1)(i); L 1996 CH 562 Download
1998-02 A proposal to dissolve a village government does not fall within the narrow exception to the one-person, one-vote principle. The provisions of the village charter that require property ownership as a qualification to vote upon the proposal to dissolve the village, therefore, may not be applied. TOWN LAW ART 12-A; VILLAGE LAW § 19-1900(3) Download
1998-03 A local government is not authorized to enact local legislation requiring written disclosure of political contributions by vendors and private businesses that enter contracts to perform county work. This subject has been preempted by the provisions of the Election Law. NY CONST, ART IX, § 2(c)(i) and (ii)(3), (10); ELECTION LAW, ART 14, §§ 14-100, et seq., 14-102, 14-104, 14-108, 14-110, 14-130; GENERAL MUNICIPAL LAW § 806; MUNICIPAL HOME RULE LAW § 10(1)(i) and (ii)(a)(3), (12); 9 NYCRR PART 6200, et seq. Download
1998-04 Section 18 of the Public Officers Law is not the exclusive scheme for defense and indemnification by a local government. A local government may provide for defense and indemnification by local law. MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(1); PUBLIC OFFICERS LAW § 18 Download
1998-05 The provision of the charter of the City of Auburn authorizing a referendum on the exercise of any power delegated by charter or State law is invalid in that the referendum has not been established by State law. MUNICIPAL HOME RULE LAW §§ 23, 24; L 1939, CH 765; L 1914, CH 444, ART I, § 10 Download
1998-06 A member of the county legislature may also serve as a deputy supervisor of a town within the county. COUNTY LAW § 411; TOWN LAW § 42 Download
1998-07 A village in Westchester County may amend the provisions of the Unconsolidated Laws governing discipline of police officers to transfer the responsibility for making disciplinary determinations from the board of trustees to some other officer. The local law is subject to a mandatory referendum. NY CONST, ART IX, §§ 2, 2(c)(i) and (ii)(1), 3(d)(1); CIVIL SERVICE LAW §§ 75, 76, 204(2); MUNICIPAL HOME RULE LAW §§ 2(5) and (12), 10(1)(i), (ii)(a), (ii)(e)(3), 23(2)(f); UNCONSOLIDATED LAWS, § 5711-q; VILLAGE LAW § 8-804; L 1972 CH 891 Download
1998-08 A village board may delegate to a single board member responsibility to manage a sewage treatment study on behalf of the board and compensate the trustee for the additional responsibilities. MUNICIPAL HOME RULE LAW § 10(1)(ii)(e)(3); VILLAGE LAW §§ 3-300, 4-412 Download
1998-09 There is no provision in State law which provides a remedy to the Love Canal Area Revitalization Agency in the event there is a deadlock in filling a vacancy on the board. The Agency may act even with the vacancy provided the quorum and majority requirements of section 41 of the General Construction Law have been met. GENERAL CONSTRUCTION LAW § 41; GENERAL MUNICIPAL LAW § 950; PUBLIC OFFICERS LAW § 42(5) Download
1998-10 The Education Law does not limit the number of terms that may be served by trustees of school district libraries. EDUCATION LAW §§ 255, 260 Download
1998-11 A conflict of interests results if the town highway superintendent in his official or private capacity operates heavy equipment on behalf of a water district in the town to repair water pipes located under a road. TOWN LAW § 198(3) Download
1998-12 A paid fire fighter of a fire department providing service by contract to a fire district may not also serve as a commissioner of that district. Download
1998-13 A municipality in the service area of the Long Island Lighting Company (LILCO) or the Long Island Power Authority (LIPA) may not condemn the transmission and distribution system, facilities and other assets of LILCO and/or LIPA and use them to operate a municipal utility. NY CONST, ART IX, § 3; GENERAL MUNICIPAL LAW, ART 14-A; PUBLIC AUTHORITIES LAW, ART 5, §§ 1020-a, 1020-b, 1020-c, 1020-f, 1020-ff, 1020-g, 1020-gg, 1020-h, 1020-q, 1020-s Download
1998-14 A county attorney, with the proper grant of authority, may prosecute violators of Putnam County's mechanical trade laws, provided that the district attorney has set up a system whereby he or she knows of all criminal prosecutions in the county and consents to appearances on his or her behalf by the county attorney. COUNTY LAW §§ 501, 700(1) Download
1998-15 The Town of Brookhaven may not amend its zoning law to require transportation of residents of Planned Retirement Communities to off-site shopping and/or medical facilities and may not condition site plane approval upon the provision of such transportation. TOWN LAW § 274-a; BROOKHAVEN CODE §§ 85-94, 85-106 Download
1998-16 The provision of the Niagara County IDA's contract with its executive director, which states that the director is to receive an additional salary equal to 1.5% of the agency fees collected on IDA projects, violates General Municipal Law § 858-a(1). The second provision, which grants an additional “minimum” payment if the first provision is found to violate State law, also appears to violate section 858-a(1). GENERAL MUNICIPAL LAW §§ 858-a, 854; L 1993, CH 356 Download
1998-17 A person may hold simultaneously the positions of clerk treasurer in one village and member of the board of trustees of another village. VILLAGE LAW § 3-300(4) Download
1998-18 A person who resides in the county in which a village is wholly or partially located may be made eligible to be appointed to the position of acting village justice. A village justice need not be an attorney, but is required to undergo the course of training required by the Legislature. A village justice may serve as his/her own clerk, but not as clerk for other justices. NY CONST, ART VI, § 20(a), § 20(c); VILLAGE LAW §§ 3-300(2)(a), 3-301(2)(a) Download
1998-19 A county may enact a local law to effectuate a transition from a fifteen-member community services board to a board with another number of members. MENTAL HYGIENE LAW § 41.11; MUNICIPAL HOME RULE LAW §§ 2(5), 10(1)(i), (1)(ii)(a)(1) and (1)(ii)(a)(12) Download
1998-20 The procedure for making the transition from three to one elected assessors is set forth in section 329 of the Real Property Tax Law. REAL PROPERTY TAX LAW § 329 Download
1998-21 The Ithaca common council is without authority to change the terms of members of the Ithaca Urban Renewal Agency as established by special act of the State Legislature. NY CONST, ART IX; GENERAL MUNICIPAL LAW, ART 15-A, §§ 553, 605, 608; MUNICIPAL HOME RULE LAW § 10 Download
1998-22 The positions of county manager and county treasurer are incompatible. Download
1998-23 The positions of town attorney and director of the local development corporation are compatible. The office of town board member also is compatible with the director position. NOT-FOR-PROFIT CORPORATION LAW § 1411 Download
1998-24 A recently elected town supervisor may continue to serve as mayor of a village in the town until the commencement of the town’s budgetary process. TOWN LAW § 60-a; VILLAGE LAW § 3-301(4) Download
1998-25 The provisions of the Vehicle and Traffic Law do not give a town authority to enact a local law establishing a fifteen mile per hour speed limit within a mobile home park. However, if the private roads within the mobile home park are open to public motor vehicle traffic, the town may establish and enforce a speed limit of not less than twenty-five miles per hour within the mobile home park. TOWN LAW §§ 39, 130; VEHICLE AND TRAFFIC LAW §§ 133, 118, 1600, 1604, 1660-a, 1662-a Download
1998-26 If the Mayor and Trustee have divided interests which could affect their ability to act impartially, or create an appearance of impropriety, they should not participate in the deliberations and voting regarding whether to sell Village properties to the Joint Fire District. GENERAL MUNICIPAL LAW §§ 806, 808 Download
1998-27 The Nassau County Correctional Center may use inmate labor to clean, remove and paint over graffiti on public property, but may not use inmate labor to clean, remove and paint over graffiti on private property. NY CONST, ART 3, § 24; CORRECTION LAW § 177; PENAL LAW § 65.10 Download
1998-28 The provisions of Vehicle and Traffic Law § 1660-a do not extend to mobile home parks; therefore, the Town of Lockport may not erect stop signs within the Leisure Acres Mobile Home Park pursuant to its provisions. VEHICLE AND TRAFFIC LAW §§ 1640-1643, 1660, 1660-a Download
1998-29 Allegany County, after establishing an E911 system, may not turn over to the Village of Wellsville Police Department the dispatch of emergency services for the Village of Wellsville, the Towns of Wellsville, Willing, Scio and Alma, and the Hamlets of Allentown and Petrolia. COUNTY LAW, ART 6, §§ 300, 301(1), 303(1), 308; ALLEGANY COUNTY LOCAL LAW NO. 1, § 9 (1992) Download
1998-30 A conflict of interests arises when a member of the County Board of Supervisors, acting in his private capacity, installs septic systems for private individuals and the systems are subject to review by county employees. COUNTY LAW §§ 204, 205, 207; GENERAL MUNICIPAL LAW § 808 Download
1998-31 The Board of a Municipal Housing Authority may not pay one of its members to conduct a hearing pursuant to Civil Service Law § 75 if the payment, when added to other compensation, exceeds the statutory compensation limit. CIVIL SERVICE LAW § 75; PUBLIC HOUSING LAW § 32 Download
1998-32 A local law authorizing the Town Board to appoint a Deputy Collector of Taxes upon the failure of the Collector of Taxes to make the appointment is subject to mandatory referendum. MUNICIPAL HOME RULE LAW § 23(2)(f); TOWN LAW §§ 20(1)(b), 35(2) Download
1998-33 The Chief, Deputy Chief and Assistant Chief of a Village Fire Department may not hold the office of Mayor or Trustee of the Village. VILLAGE LAW, ART 10, §§ 3-308(1), 10-1000(6), 10-1006(12), 10-1012, 10-1018 Download
1998-34 The mayor of a village, who is employed full time as a technical sheriff in the county sheriff’s department, has a conflict of interests in negotiating or voting on a proposed contract with the county for the provision of law enforcement services by the sheriff’s department to the village. Download
1998-35 A village may enact a local law providing for demolition and clean up of unsafe buildings and, in the event the owner fails to reimburse village costs, also providing for sale of the property in order to effectuate its lien. MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(8), (9), (9-a),(12) Download
1998-36 A referendum on whether to abolish a village police department is permissive, and can be called for or authorized only after enactment of a local law by the board of trustees to abolish the police department. If a referendum is held and the voters approve the proposition to abolish the police department, the abolition will become effective under the terms of the local law. If the proposition is defeated, the police department will be retained. If the permissive referendum is not called for or authorized, the local law will take effect without voter approval and the police department will be abolished. VILLAGE LAW §§ 8-800, 9-902, 9-908 Download
1998-37 A local government may not modify the procedure for enactment of local laws by requiring that local laws be enacted by a super-majority vote. MUNICIPAL HOME RULE LAW, ART 4, §§ 10(1)(ii)(c), 20(1) Download
1998-38 The positions of county legislator and mayor of a city are compatible. COUNTY LAW § 411; GENERAL MUNICIPAL LAW § 808 Download
1998-39 A village may permit a part-time police officer's towing business to be placed on the list from which the village police force selects companies to tow disabled or impounded vehicles, provided the village takes appropriate steps to eliminate any potential conflicts of interests. Download
1998-40 Newburgh city marshals are authorized to execute all of the processes and mandates of the Newburgh City Court within Orange County; however, the Court may at times require that a police officer serve a particular criminal process. Newburgh city marshals may not carry pistols within the City of New York unless they have obtained a special permit from the police commissioner in accordance with Penal Law § 400.00(b). CRIMINAL PROCEDURE LAW § 2.10; PENAL LAW §§ 265.00, 265.20, 400.00; UNIFORM CITY COURT ACT §§ 10, 195, 701, 1508(b); NEWBURGH CITY COURT ACT § 9,L 1948, CH 569 Download
1998-41 Discussion of procedure for transition under revised provisions of the Village Law regarding designation as chair and membership on the zoning board of appeals and the planning board. MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(1) and (1)(ii)(e)(3); VILLAGE LAW §§ 7-712, 7-718, 7-720; L 1996, CH 235, § 16; L 1992, CH 248; L 1991, CH 692, § 5 Download
1998-42 While the Town Board, in appointing a Deputy Supervisor in 1992, in part did not follow the provisions of section 42 of the Town Law which calls for the establishment of the office by the Town Board and the appointment of a Deputy by the Supervisor, it seems clear that the intent of the Board was to establish the office. TOWN LAW § 42 Download
1998-43 A local law enacted by a city to change the form of administration of the Civil Service Law from a city personnel officer to the county civil service commission is not subject to a mandatory referendum. CIVIL SERVICE LAW §§ 15, 16; MUNICIPAL HOME RULE LAW, ART 4, §§ 10(1)(ii)(c)(1), 20, 23(2)(k) Download
1998-44 A county fire investigator should not also serve as a building inspector in the county. Download
1998-45 The positions of member of The Fulton County Economic Development Agency, an industrial development agency, and Director of the Fulton County Planning Board are compatible. Taking into consideration the broad duties of the Fulton County Planning Board Director in economic development and land use planning; section 856(4) of the General Municipal Law; and the enabling legislation for IDA's requiring that in undertaking projects they adhere to local zoning and consider comprehensive land use plans, we see no conflict between the duties of these two offices. GENERAL MUNICIPAL LAW, ART 18-A, §§ 856, 858 Download
1998-46 The town board of each town proposing to consolidate must act to submit a proposition to consolidate to the electors of the town. There is no authority for a petition by the electors to submit a proposition for consolidation to the electors of the town for approval. TOWN LAW, ART 5-B, §§ 79-b, 79-d, 79-g Download
1998-47 A sewage-works corporation organized under the New York Transportation Corporations Law may not reorganize as a limited liability company. LIMITED LIABILITY COMPANY LAW § 201; TRANSPORTATION CORPORATIONS LAW, ART 10, §§ 116, 118, 119; L 1960, CH 1067 Download
1998-48 Neither the provisions of the General Obligations Law governing a power of attorney nor the provisions of the Real Property Law governing recording of deeds makes the authority of the attorney-in-fact dependent upon the use of a particular form of signature upon a deed. GENERAL OBLIGATIONS LAW §§ 5-1501, 5-1202A; REAL PROPERTY LAW, ART 9, §§ 291, 294 Download
1998-49 Under the terms of the Agriculture and Markets Law, affirmative action by the county legislative body is required to terminate an agricultural district. AGRICULTURE AND MARKETS LAW §§ 303, 303-a Download
1998-50 A person convicted of arson in any degree is, by statute, ineligible to become a member of a volunteer fire company. However, the issuance to that person of an unrestricted certificate of relief from disabilities prevents automatic statutory disqualification. The certificate does not, however, prevent the fire company or fire district commissioners from exercising discretion to deny membership based upon the facts and circumstances surrounding the arson conviction. A person convicted of arson in any degree is, by statute, ineligible to hold the office of fire district commissioner. A certificate of relief from disabilities does not apply to a public office, such as fire district commissioner. CORRECTION LAW §§ 700(1)(a), 701; TOWN LAW §§ 174, 175, 176-b; PENAL LAW §§ 110.00, 110.05, 150.05, 150.10, 150.15, 150.20 Download
1998-51 Employees of the Suffolk County Water Authority should not accept off-duty employment to install private service lines for homeowners where those service lines have to be approved by the Authority prior to connection with Authority mains. GENERAL MUNICIPAL LAW § 806; PUBLIC OFFICERS LAW § 74 Download
1998-52 Property located within the boundaries of the Village of Attica may not be excluded from the boundaries of the Village as long as it is benefited by fire protection services. VILLAGE LAW § 18-804 Download
1998-53 Mutual aid must be carried out consistent with the provisions of the General Municipal Law. GENERAL MUNICIPAL LAW, ART 5-G, ART 10, §§ 119-n(c), 119-o(l) and (2)(b), 209-f(2)(a) and (2)(b), 209-g Download
1998-54 A joint Village and Town Planning Board, formed to consider land use applications relating to property on the border between municipalities, may employ weighted voting designed to give a majority of votes to the municipality in which the property lies. GENERAL MUNICIPAL LAW, ART 5-G; ART 12-B, §§ 119-n(c), 119-o(l) and (2)(b), 239-c, 239-h, 239-m; MUNICIPAL HOME RULE LAW §§ 2(5), 10; VILLAGE LAW § 7-741 Download
1998-55 The County Transportation Program Administrator may also serve on the City of Poughkeepsie Planning Board. GENERAL CITY LAW § 27; GENERAL MUNICIPAL LAW §§ 239-l, 239-m Download
1998-56 Because the grazing of animals on the parcel of property necessarily affects property located in both the Town of Clinton and the Town of Stanford, the property owner must comply with the land use regulations of both Towns. GENERAL MUNICIPAL LAW § 239-m; TOWN LAW § 267(1)(b) Download
1998-57 As police officers who commonly provide general law enforcement, sheriffs and deputy sheriffs are subject to section 17-110 of the Election Law. ALCOHOLIC BEVERAGE CONTROL LAW § 128; CRIMINAL PROCEDURE LAW §§ 1.20(34)(b), 2.10, 2.20, 120.10, 140.10, 140.25, 690.25; CRIMINAL PROCEDURE LAW (1940) § 154; ELECTION LAW § 17-110; PENAL LAW (1938) § 756; PENAL LAW § 265.20(a)(1)(b); PUBLIC OFFICERS LAW § 3; 22 NYCRR § 100.5 Download

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