Appeals & Opinions - Numerical Index

Appeals & Opinions - Numerical Index2003
Opinion Summary Abstract Related Statues
2003-01 A village police chief who is not certified as a police officer by the Municipal Police Training Council may not lawfully carry a firearm without a license. The police chief may, however, wear a uniform and badge that properly identify him as police chief. Download 2003-01
2003-02 The proper method of transferring control and supervision of a village road to the county within which the village is located is by adding the village road to the county road system map pursuant to Highway Law § 115. Upon such transfer, the county is responsible for maintaining the road. Download 2003-02
2003-03 Under General Municipal Law § 239-c(2)(c), a county planning board member must recuse him- or herself from voting on any matter that was the subject of a vote, proposal or application before any body in the municipality where the individual serves as an official. In determining whether to appoint an individual to the county planning board, the county legislative body may consider the frequency of recusals required by an individual who serves as an official in a town and two villages located within the county. However, if the individual is so appointed, the individual does not need to recuse him- or herself from matters referred back to the town planning board, on which the individual serves, after being reviewed by the county planning board. Download 2003-03
2003-04 The State has preempted the area of provision of probation services. A county may not enact local legislation permitting fees for probation services except as specifically authorized by statute. Download 2003-04
2003-05 Members of county water and sewer district boards may not be paid a flat meeting fee of $50 in lieu of reimbursement for expenses actually and necessarily incurred. The positions of town supervisor and county improvement district administrator are compatible; the town supervisor cannot be paid for serving as county improvement district administrator. Employees of the town improvement districts may serve in the same ministerial capacity for the county improvement districts. The county board of supervisors retains significant control over improvement districts after their formation. Download 2003-05
2003-06 One person may simultaneously hold the elected office of superintendent of highways of a town and the appointed position of member of the board of managers of a public hospital, jointly owned by such town and another town. Download 2003-06
2003-07 Voluntary attendance at the funerals of retired military personnel or veterans by an employee of a school district who is a non active military reservist does not constitute "ordered military duty" within the meaning of Military Law § 242 or the performance of "military duty" within the meaning of section 243. Download 2003-07
2003-08 A part time assistant town attorney whose work is limited to matters relating to the town plumber's examining board may represent private clients before other town agencies so long as compensation is fixed according to the reasonable value of the services rendered, rather than contingent upon any agency action on the matter before it, and so long as the individual facts of any such representation do not create an appearance of impropriety or violate common law conflict of interest standards. Download 2003-08
2003-09 A Village law providing for the removal and impoundment of motor vehicles that remain parked for more than 24-hours in violation of a local parking limitation does not conflict with the Vehicle and Traffic Law and may be enforced, as long as the Village does not treat such vehicles as "abandoned" within the meaning of Vehicle and Traffic Law § 1224 and assuming local conditions warrant the prompt removal of such vehicles and the local law otherwise complies with due process requisites. Download 2003-09
2003-10 A village may not prohibit OTB simulcast or non simulcast branch offices in all zoning districts, nor may it prospectively prohibit simulcast theaters in all districts. It may withhold its consent to establish a particular simulcast theater. The applicability of valid village land use regulations, other than those specifically provided for by statute, to a proposed OTB facility would be governed by the balancing test set forth in Matter of County of Monroe, 72 N.Y.2d 338 (1988) Download 2003-10
2003-11 Eligibility of off-duty police officers injured while working security for city-owned recreation center for General Municipal Law § 207-c benefits. Download 2003-11
2003-12 Absent contract or federal mandate to provide fire protection services to the Fire Island National Seashore, a fire district has no legal obligation to provide such services to the Seashore. Download 2003-12
2003-13 A town may allow the consumption of alcohol on town property, and may implement a permit system to regulate such consumption. Download 2003-13
2003-14 A county may finance the acquisition of property for the development of affordable housing where most of the property will be used for low income residential purposes for at least 40 years and all rental income derived from the leased non residential portion of the property will be used to subsidize the residential rents. Download 2003-14
2003-15 Installation of a speed bump on a town highway is not prohibited by State law, but is regulated as a highway design feature. Download 2003-15
2003-16 A town may not reimburse the costs incurred by the town supervisor who pled guilty to criminal charges pending against him. The town may not reimburse the legal costs incurred by town employees called to assist in the investigation and prosecution against the town supervisor. Download 2003-16
2003-17 If the government chooses not to commence forfeiture proceedings to obtain title to goods seized as evidence in a criminal investigation and the goods are not contraband per se, the government may either return the property to the person from whom it was seized or hold the property indefinitely as custodian for the true owner. If the government wishes to return the property but cannot locate the owner, the government may acquire title to the property through compliance with the lost property statutes or ask the State Comptroller to assume custody of the property. Download 2003-17
2003-18 Absent authorization by state statute, a town may not create an administrative tribunal or a hearing officer position to assist in the adjudication of building code violations. Download 2003-18
2003-F1 Where a patient is incapacitated and did not consent to the entry of a do-not-resuscitate order prior to becoming incapacitated, a physician must obtain the consent of the patient=s surrogate or health care agent before entering a do-not-resuscitate order, even if the physician concludes that administration of cardiopulmonary resuscitation would be Amedically futile.@ Only where no health care agent was appointed and no competent surrogate is reasonably available and willing to make a decision may the physician enter a do-not-resuscitate order based on medical futility without obtaining consent, and then only with the concurrence of another physician that resuscitative efforts would be medically futile or by obtaining a court order. To dispute the decision of the health care agent or surrogate, the physician must proceed to mediation and, if the dispute remains unresolved, commence a court action. Download 2003-F1
2003-F2 Rear-facing blue lights may not, under the current legislative scheme, be added to State Police vehicles. Download 2003-F2
2003-F3 The decision of the United States Supreme Court in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002), does not preclude the New York State Department of Labor from enforcing State wage payment laws on behalf of undocumented immigrants. Download 2003-F3
2003-F4 Section 192-g of the Agriculture and Markets Law does not prohibit the transporting of gasoline containing MTBE from a point outside New York, through the State, to a point outside it. Download 2003-F4