New York Legal Update

Jehovah Witness Building Must Pay NYC Water And Sewer Charges

Some organizations within the City of New York have a unusual benefit - they are exempted from having to pay for water and sewer charges.  Religious organizations are entitled to the benefit if the water and sewerage they use is in real estate used in a public place of worship.  The limits of this special exemption was tested yesterday in a case before the Court of Appeals - Matter of Brooklyn Assembly Halls of Jehovah's Witnesses, Inc. v Department of Envtl. Protection of the City of New York.

The exemption is set forth in Chapter 696 of the Laws of 1887, as subsequently amended (the water exemption statute), which provides that:

"the real estate owned by any religious corporation located in the city of New York as now constituted, actually dedicated and used by such corporation exclusively as a place of public worship . . . [is] hereby exempted from the payment of any sum of money whatever to said city, for the use of water taken by same from said city."

In addition, New York City Administrative Code § 24-514(e) exempts:

 "[a]ny real property . . . entitled to an exemption from the payment of water rents or charges . . . from payment of the sewer rents or charges imposed hereunder."

The Brooklyn Assembly Halls of Jehovah's Witnesses applied for the exemption in 1991 for a building they owned in Brooklyn.  The building was 100,000 square feet, four stories high, with an attached three-story structure, and contained multiple meeting and assembly halls used for religious instruction and worship. In its application, the Church indicated that there were "[t]wo apartments on premises — One is for the manager and his wife. The second apartment is for the technical maintenance caretaker and his wife. All are ministers."

The City Department of Environmental Protection (DEP) denied the application on the grounds that under its implementation of the exemption only one dwelling in a building was allowed for a caretaker.

The Church dropped the matter until 2002 when it reapplied for the exemption.  In this application, the Church indicated that there were regularly scheduled events 30 weekends per year with approximately 1500-2000 in attendance per day at each event.  In addition, it claimed that two caretakers were needed to live on the premises given the size of the facility, maintenance and security needs, and insurance requirements. 

The DEP again denied the application on the grounds that the use of the building had not changed. A subsequent investigation by DEP revealed the building contained additional guest rooms that were not disclosed in the Church's application. The Church was advised that it could seek a partial exemption by installing a separate water meter for the non-qualifying portion of the premises.

Instead, the Church commenced an Article 78 proceedings directing and compelling the City to grant its application for the exemption, and to reimburse the Church for charges paid under protest. The Church argued that the determinations denying its request for an exemption were arbitrary and capricious and contrary to law.

The Court of Appeals upheld the denial of the Church's application.  The Court set forth the general rule that the construction given statutes by the agency responsible for their administration, if not irrational or unreasonable, should be upheld.  It then stated:

"While the agencies [DEP] might legitimately have chosen to read the statute more generously, we cannot say that they acted irrationally by limiting the exemption to premises devoted exclusively to public worship plus the residence of a caretaker for these premises, if there is one. This interpretation, uniformly applicable to religious corporations throughout the City, is easily understood and administered, and is reasonable in light of the water exemption statute's language and legislative history."

The Court rejected the Church's argument that the DEP's interpretation ignored a religious organization's actual need for water consumption.  The Court found that there was nothing in the water exemption's legislative history which suggested such a broad interpretation.  The Court also rejected the Church's claim that the water exemption laws should be interpreted in the same way as Real Property Tax Law § 420-a(1), which exempts from taxation any real property owned by religious organizations organized or conducted exclusively for religious purposes, if used exclusively for such purposes.  The Court stated that the DEP was not called upon to interpret the statutory exemption from water charges afforded religious corporations "in th[e] context" of Real Property Tax Law § 420-a(1).  And there was nothing to suggest that the two sets of legislation shared a common source. 

Commentary

With the average citizen paying increasing taxes, fees, tolls etc. for government services, what sense does it make to retain this special exemption for religious organizations at all?  Religious organizations' use of this special exemption only makes everyone else's water bill higher.  The water exemption laws are an anachronism and should be repealed entirely.

 

Financial Records of Spouse of District Attorney Subject to Freedom Of Information Law

The records of government agencies and officers are subject to the Freedom of Information Law (FOIL) (Public Officers Law art 6).  But are there situations where the Freedom of Information Law can reach into the records of the family members of government officers?

A case from the Third Department - Matter of Humane Socy. of United States v Fanslau, 2008 NY Slip Op 0668, indicates yes - partially.

The case involved the District Attorney of Sullivan County.  The District Attorney of Sullivan County is required to submit financial disclosure statements which are maintained by the Sullivan County Board of Ethics.  When the County released the financial disclosure records of the District Attorney in response to a FOIL request, it redacted information relating to the DA's family.

In finding that the redaction was error, the Third Department found that general information (not information about amounts or values) of the family member's financial interests should have been disclosed pursuant to the FOIL request.

The Court stated:

Balancing the competing interests of public access and personal privacy (citation omitted), under the circumstances presented herein, disclosure of the general information regarding the income and investments of (the DA's) family members outweighs any personal privacy interest. * * * Information pertaining to a family member's financial interests is clearly relevant to the Board's role of investigating ethical code violations in an effort to uncover conflicts of interest involving public officials. The financial interests at issue, absent the categories of amounts and values, constitute general information that the public has a right to uncover and the disclosure of such does not amount to an unwarranted invasion of personal privacy.

Challenge to Freedom Of Information Law's Copying Fee Found Frivolous

New York's Freedom of Information Law (FOIL) allows the agency which is subject to a FOIL request to charge $0.25 per photocopy for copies made to comply with a FOIL request (see Public Officers Law § 87 [1][b][iii]).

Last week in Matter of Fenstermaker v Edgemont Union Free School Dist., 2008 NY Slip Op 01343, the Second Department held that an article 78 proceeding to challenge the fee collecting practice allowed by Public Officers Law § 87 [1][b][iii] constituted frivolous litigation. In that case, the petitioner challenged the FOIL fee collecting practices of the respondent Edgemont Union Free School District. The Second Department held that the Supreme Court was within its discretion for imposing costs, including an attorney's fee, against the petitioner for commencing a frivolous proceeding. The petitioner was ordered to pay $15,960.

Court Reporter Dismissed For Committing Identity Theft

Court Reporters or Stenographers are officers of the Court charged with the responsibility of producing a true, accurate and complete record of court proceedings. In thus stands to reason that if a Court Reporter is involved in criminal activity demonstrating fraud or dishonesty he/she could lose his/her job as a Court Reporter. Indeed, yesterday in Matter of Association of Surrogates, & Supreme Ct. Reporters v State of New York Unified Ct. Sys., 2008 NY Slip Op 01014, the First Department held that a Court Reporter was properly dismissed for being convicted of identity theft and credit card fraud in New Jersey. While the Court Reporter argued that she was being discriminated against, the Court stated that Correction Law §§ 752, 753 permits the discharge of employees where, "there is a direct relationship between the criminal offense and the specific employment." And the Court stated that it was rational to conclude that there was such a direct relationship between the Court Reporter's convictions and her employment.

Action Challenging LIPA Rate Increases Dismissed As Time-Barred

In 1986, the New York State Legislature created the Long Island Power Authority (LIPA) to replace the privately-owned Long Island Lighting Company to provide electricity in Nassau County, Suffolk County, and a portion of Queens. In 2006, several LIPA consumers commenced actions against LIPA to recover rate increases LIPA imposed as fuel surcharges between 2001 and 2005. The actions alleged breach of contract, unjust enrichment, and deceptive trade practices in violation of General Business Law § 349. After the actions were consolidated, LIPA moved to dismiss the actions as time-barred.

Yesterday in Matter of Long Is. Power Auth. Ratepayer Litig., 2008 NY Slip Op 00662, the Second Department affirmed dismissal of the actions as time-barred. The Court held that since LIPA was a public authority and the complaint essentially alleged that rate increases were made in violation of lawful procedure, affected by an error of law, or were arbitrary and capricious or an abuse of discretion, the proper way to challenge the rate increases was with a proceeding pursuant to CPLR article 78. Article 78 proceedings are governed by a four-month statute of limitations, and thus, the actions were untimely.

Department Of Corrections May Not Impose Postrelease Supervision

Who has the authority to impose a sentence on a criminal defendant? Is there any part of a sentence which may be imposed by the Department of Correctional Services? In two decisions from the Third Department last week, the Court held that only a judge may impose all parts of a sentence - Matter of Dreher v Goord, 2007 NY Slip Op 10430 and Matter of Quinones v New York State Dept. of Correctional Servs., 2007 NY Slip Op 10435.

In both cases the defendants had been convicted of various crimes and the court imposed determinate sentences. In doing so, however, the court failed to impose a required period of post release supervision (Penal Law § 70.45[1], [2]). Instead, in both cases, the Department of Correctional Services took it upon itself to add periods of post release supervision to the defendants' sentences.

The Third Department held that this was impermissible. In article 78 proceedings commenced by the defendants, the Court stated that the only cognizable sentence is one imposed by a judge, and that any alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect. The Court thus vacated the periods of post release supervision imposed by the Department of Correctional Services. It should be noted that in doing so, the Third Department stated that its prior decisions reaching different conclusions should not be followed.   

Will Your Neighbor's Deed Be Available Online?

More and more public records are being made available online. This is a generally a good development. After all, who wants to trudge on down to the County Clerk's Office and deal with the clerk or the microfiche reader. Various commercial enterprises are seeking to put this public data online seeking to make a buck. One such company is Data Tree, LLC.

On Tuesday the Court of Appeals had before it an interesting Freedom of Information request by Data Tree to get access to Suffolk County land records in order to put them online - Matter of Data Tree, LLC v Romaine, 2007 NY Slip Op 09906. 

Data Tree is a national company that provides online public land records such as deeds, mortgages, liens, judgments, releases and maps, and maintains a database of nearly two billion documents, providing its customers with immediate electronic access to the information. Its customers are those entities who purchase, sell, finance and insure property. Data Tree obtains the public land records by requesting them from county clerks, or other public officials who have the responsibility of recording and archiving such documents, throughout the country.

In January 2004, Data Tree, pursuant to the Freedom of Information Law (FOIL) [Public Officers Law § 84 et. seq.] wrote the Suffolk County Clerk's Office requesting copies of public land records from January 1, 1983 to the present. Data Tree requested the records in TIFF images or in images in the electronic format used by the County, on CD-Rom or other electronic storage medium regularly used by the County.

The Clerk denied the request on three grounds: (1) the FOIL request would require re-writing and reformatting of the data; (2) disclosure would constitute an unwarranted invasion of personal privacy due to the volume of the records requested and the commercial nature of Data Tree's business; and (3) the records were available for copying and/or downloading from the computer terminals at the Clerk's Office.

After the Clerk denied the request, Data Tree commenced an Article 78 proceeding directing the Clerk to provide the records. Both the Supreme Court and the Appellate Division granted summary judgment to the County denying Data Tree's request.

However, the Court of Appeals reversed and found that questions of fact existed as to whether compliance with Data Tree's request would require the Clerk to disclose private information exempt from FOIL, and whether the Clerk had the ability to comply with the request in the format sought by Data Tree.

The Court of Appeals stated that Data Tree's commercial motive for seeking the records was irrelevant; Data Tree was not seeking a list of names and addresses to solicit any business. Rather, Data Tree was seeking public land records for commercial reproduction online. The Court acknowledged that some of the documents could contain private information, such as social security numbers and dates of birth etc. However, the Court stated that there were questions whether such private information could be redacted and thus remitted the matter to Supreme Court to determine whether such information could be redacted. The Court also found that there was conflicting affidavits, and thus questions of fact, as to whether Data Tree's request could be fulfilled by merely retrieving information already maintained electronically by the Clerk's office or whether complying with Data Tree's request would require creating a new record.

The march of public data to online sources is likely unstoppable. The more appropriate question might be whether we should require all public agencies to put all data online easily accessible to all? Or should we rely on commercial enterprises like Data Tree to provide such information?   

Inmates Not Entitled To Smokeless Tobacco

What's an inmate to do? Current regulations do not permit inmates in special housing units to have any tobacco products (see 7 NYCRR 302.2 [e]; 303.2, 303.3). Today the Third Department affirmed dismissal of such an inmate's article 78 petition challenging the denial of his grievance requesting smokeless tobacco (Matter of O'Keefe v Goord, 2007 NY Slip Op 07036). The Third Department found that the denial of the inmate's request for smokeless tobacco did not violate his constitutional rights, nor was the denial arbitrary and capricious.   

Trooper's Personal Copy Of Training Manual Is Not Brady Material

The U.S. Supreme Court's decision in Brady v Maryland, 373 U.S. 83 [1963] requires the People to turn over evidence which is material either to the defendant's guilt or to punishment. Last week in Matter of Phillips v Ramsey, 2007 NY Slip Op 06045, the Second Department held that a state trooper's personal copy of a police training manual does not constitute Brady material. The matter arose from a DWI prosecution. At a pretrial hearing in a City Court, defense counsel cross-examined the arresting trooper with respect to his performance of a series of standardized field sobriety tests on the defendant at the arrest scene. Defense counsel then called for the production of the trooper's personal copy of the DWI Detection and Field Sobriety Testing Manual, a police training manual, on the basis that it constituted Brady material. The trooper had testified that a failure to administer a field sobriety test in the manner prescribed by the police training manual rendered the test invalid and, therefore, defense counsel argued that, "if we can show that any of those tests are invalid, that would affect the basis for probable cause to arrest." The hearing judge ordered the People to produce the manual.

The People then commence an article 78 proceeding in the nature of prohibition to prohibit the hearing judge from enforcing his order. In finding that the trooper's personal copy of the training manual was not Brady material, the Second Department noted that CPL 240.20(1)(k) provides that the People shall disclose any written report or document concerning, inter alia, a physical examination made by a public servant engaged in law enforcement activity. However, that statute granted no statutory right entitling a defendant to compel a trooper to turn over his personal copy of a police training manual. In addition, the Second Department noted that since the trooper was not a party to the underlying criminal proceeding, the hearing judge from the City Court had no authority to direct him to produce a document at the hearing in the absence of a properly issued subpoena, which under CPL 610.20(3) and CPLR 2307 must be issued by a Justice of the Supreme Court. Thus, since the hearing judge was only from a City Court, he had no authority to issue such a subpoena.

New York City Process Server May Lose License For Filing False Affidavit Of Service Outside New York City

The New York City Department of Consumer Affairs (DCA) licenses process servers in the City. What happens if a process server files a false affidavit of service outside of the City. Can the Department of Consumer Affairs take away his license? Last week, the Second Department in Matter of Laureiro v New York City Dept. of Consumer Affairs, 2007 NY Slip Op 05509 held that it could. The process server at issue had served process in Connecticut relating to a matrimonial action in Westchester County. In response to a complaint that the process server filed a false affidavit of service, the DCA requested a written explanation from the process server and issued a subpoena commanding him to appear before it and to bring copies of certain records. The process server's counsel responded with letters contesting DCA's jurisdiction over issues related to service of process occurring in Connecticut in connection with a Westchester County action. The process server then failed to appear pursuant to the subpoena. DCA then sent the process server a notice of hearing which outlined the charges against him and directed him to appear and show cause why his license should not be revoked.

Prior to the hearing date, the process server commenced a CPLR article 78 proceeding seeking to prohibit DCA from conducting the hearing, based on its alleged lack of jurisdiction over the matter, among other challenges. The Supreme Court declined to issue a temporary restraining order and DCA rescheduled the hearing. The process server failed to appear at the hearing, and the Hearing Officer found him guilty, upon default and revoked his license. The petitioner then amended his article 78 petition to seek review of the DCA determination.

On appeal in the Second Department, the Court rejected the process server's argument that the DCA lacked jurisdiction to revoke his license. The Court noted that the DCA was charged with the maintenance of standards of integrity, honesty, and fair dealing among persons engaging in licensed activities (see Administrative Code of City of NY § 20-101). And it stated that the filing of a false affidavit of service in any location was relevant to a licensee's fitness to serve process in the City of New York. Moreover, it noted that pursuant to Administrative Code § 20-104, the Commissioner of DCA was authorized, upon due notice and a hearing, to impose penalties:

for the violation of . . . any of the provisions of any . . . law, rule or regulation, the enforcement of which is within the jurisdiction of the department . . . provided that such violation is committed in the course of and is related to the conduct of the business, trade or occupation which is required to be licensed (NYC Admin Code § 20-104 [e][1]).

It stated that the filing of a false affidavit of service was a violation of DCA Rules committed "in the course of" and "related to" the conduct of the occupation of process server, regardless of which county the affidavit is filed in or where the service allegedly occurred. Thus, DCA had the jurisdiction to hold the hearing into the process server's continued fitness to hold his DCA license and to issue its determination upon the process servers' default.