After more than eleven years of legal wrangling, the New York Court of Appeals denied cert, finally closing the chapter and letting stand a holding that the Town’s request for a Supplemental Environmental Impact Statement (“SEIS”) in response to a developer’s submission of a mitigated development plan was not arbitrary and capricious.  The Second Department held that “[t]he Town Board, as the lead agency, ‘may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the [original] EIS that arise from:  (a) changes proposed for the project; (b) newly discovered information; or (c) a change in circumstances related to the project.’” Oyster Bay Assocs. Ltd. P’ship v. Town Board of Oyster Bay, 58 A.D.3d 855, 859, 874 N.Y.S.2d 492, 496 (2d Dep’t 2009) (citing, 6 NYCRR 617.9[a][7][i]).

The original Application was submitted on January 21, 1998 by developer Oyster Bay Associates Limited Partnership (“Developer”) to the Town Board, by which the Developer sought to construct a 960,000 square foot shopping mall on the 39 acre Property located in a Light Industry Zoning District.  The property was formerly owned by the Cerro Wire and Cable Company, which conducted certain industrial manufacturing at the property.  While no zoning variances were required for the project, a special use permit was required by the Town Code to develop the proposed shopping mall.  The size of the mall was subsequently reduced to 860,000 square feet, prior to the issuance of the Final Environmental Impact Statement (“FEIS”).

The Town Board designated itself as the lead agency as authorized by the New York State Environmental Quality Review Act (SEQRA) in light of the fact that the proposed project may have a significant environmental impact.  The Town’s Environmental Quality Review Commission (“TEQR Commission”) held a public hearing on the Application and issued its initial SEQRA findings in June, 2000.  The initial SEQRA findings were favorable to the Developer in that they supported the project on virtually every consideration raised during the SEQRA process and identified in its Draft Environmental Impact Statement (“DEIS”) and FEIS.  Subsequent to the issuance of the TEQR Commission’s SEQRA findings the Town Board held a public hearing and kept the record open for thirty days for additional comment and rebuttal.  Local civic organizations and other groups voiced strong opposition to the proposed development.  Thereafter, Town Board asked the TEQR Commission to consider the information received during and subsequent to the Town Board hearing.  On January 1, 2001, The TEQR Commission rescinded its initial findings and issued revised SEQRA findings that found the project would cause adverse effects on traffic, crime, quality of life and density. (see, Oyster Bay Assocs. Ltd. P’ship v. Town Board of Oyster Bay, 2002 WL 343582927 (NY Sup. Ct., Suffolk Co. 2002).  As a result of the revised SEQRA findings, the Developer offered to reduce the size of the proposed mall to 750,000 square feet.  On May 8, 2001 the Town Board issued its own findings, adopting substantially all of the TEQR Commission’s revised SEQRA findings, and rejected the Developer’s offer to reduce the size of the mall as untimely and insufficient and denied the Application.

 The First Round

In July 2001, the Developer commenced an Article 78 proceeding in New York State Supreme Court to review the Town’s denial of the Application.  By Order dated July 8, 2002, the Supreme Court held that the Town “failed to identify what evidence it relied upon in deviating from the TEQR Commission’s initial SEQRA recommendation” and vacated the Town Board’s denial.  The Supreme Court remanded the matter to the Town Board to consider the Developer’s offer to reduce the size of the mall to 750,000 square feet.  The Town Board appealed and on March 3, 2003, the Second Department affirmed the Supreme Court decision and agreed that the Town’s decision to reject the Developer’s Application was arbitrary and capricious and that the Town did not present sufficient evidence for the SEQRA deviation.(see, Oyster Bay Assocs., 58 A.D.3d at 857, 874 N.Y.S.2d at 494-95).

The Second Round

By Order dated November 25, 2003, the Supreme Court granted the Developer’s motion for judgment pursuant to CPLR 7806 and ordered the Town to issue a building permit for the construction of the 860,000 square foot mall.  The Town appealed.  By order dated September 12, 2005, the Second Department reversed the November 25, 2003 decision, stating that its prior March 3, 2003 decision only affirmed the lower court ruling in so far as it remitted the matter back to the Town Board, and did not order the issuance of a special use permit and a building permit for the 860,000 square foot mall.(see,Oyster Bay Assocs. Ltd. P’ship v. Town Board of Oyster Bay, 21 A.D.3d 964, 801 N.Y.S.2d 612 (2d Dep’t 2005)).  The lower court erred in its 2003 ruling directing the town to issue a special use permit and building permit in the absence of a request for this relief (see, Oyster Bay Assocs. Ltd. P’ship, 58 A.D.3d at 858, 874 N.Y.S.2d at 497).

The Third Round

For the third time, the Developer sought relief from the Supreme Court to have the Town Board issue a special use permit and site plan approval for the 860,000 square foot mall.  By Order dated June 11, 2007, the Supreme Court denied the petition. (see, Oyster Bay Assocs. Ltd. P’ship v. Town Board of Oyster Bay, 15 Misc.3d 1147(A), 841 N.Y.S.2d 821 (NY Sup.  Ct. Suffolk 2007) In its decision, however, the Supreme Court ordered the Town to “follow through on the [Developer’s] offer to mitigate impacts by reducing the Application to a 750,000 square foot shopping mall as noted in the prior Court Orders.” (see, Oyster Bay Assocs. Ltd. P’ship, 58 A.D.3d at 858, 874 N.Y.S.2d at 497.) 

On September 25, 2007, the Town Board issued a decision denying the Developer’s Application for the 860,000 square foot mall and stated that it would consider the mitigated plan for the 750,000 square foot mall, provided that the Developer submit the SEIS in connection therewith to address environmental issues that had not been resolved to date.  The Town Board’s request for the SEIS caused yet more litigation when the Developer petitioned the Supreme Court (for a fourth time) to have the Town accept the TEQR Commission’s initial SEQRA findings issued in 2000.  By Decision dated June 9, 2008, the Supreme Court ordered the Town to accept the TEQR’s initial findings, issue the special use permit for the proposed 750,000 square foot mall and review the Developer’s site plan without delay.  Once again, the Town appealed. 

The Fourth Round

In January 2009, the Appellate Division reversed the Supreme Court ruling, finding that the Town Board’s decision to require the SEIS in response to the Developer’s mitigation of the original development plans was not arbitrary and capricious.(see, 58 A.D.3d 855, 874 N.Y.S.2d 492 (2d Dep’t 2009)).  The Court said that “The primary purpose of SEQRA is “to inject environmental considerations directly into governmental decision making.”  Further, the Court noted that under SEQRA, the Courts are limited to “whether the agency identified the relevant areas of environmental concern, took a hard look at them and made a ‘reasoned elaboration’ of the basis for its determination.”   

The Town Board, while it was “authorized to seek the advice and assistance of other agencies such as TEQR Commission,” it was, as the lead agency, responsible for the ultimate approval of the project and it held the principal responsibility for the final determination in connection with SEQRA. The Town Board took a “hard look” at the relevant environmental areas of concern, properly identified post-FEIS submissions, which “supported its deviation from the TEQR Commission’s SEQRA findings” and, as such, its request for SEIS was proper.  A SEIS, “limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from: (a) changes proposed for the project; (b) newly discovered information; and (c) a change in circumstances related to the project” may be required by the lead agency (citing, 6 NYCRR 617.9(a)(7)(i)).  Due to the changes to the Developer’s plan, specifically, the reduction in the square footage of the proposed project, the lower Court’s order directing the Town to issue a special use permit without the affording the Town the opportunity to review the SEIS “deprived the Town Board of the right to meaningfully consider a revised site plan . . . .”  The Second Department’s January 2009 decision was reaffirmed by the same court in April 2009, and on June 30, 2009, the Court of Appeals denied the Developer’s motion for leave to appeal.  

 Conclusion

More than a decade after the Application was submitted and a host of procedural twists and turns initiated by both the Developer and the Town, this project has been sent back by the Courts for the Developer to continue the zoning approval process.  In a Newsday article dated April 8, 2009 a spokesperson for the Developer stated that the “attorneys were reviewing the decision and trying to determine the next course of action.” (see, Court: Syosset mall project must restart permit process,  http://www.newsday.com/news/local/nassau/ny-1ima110912633857apr08,0,607756,print.story).   The Town Supervisor, on the other hand, “applauded [the Appellate Court] ruling.”  The Developer’s options have seemingly run out with the recent Court of Appeals decision and it must submit the SEIS to the Town for review.  To be sure, we can expect more legal challenges as the Developer continues through the zoning process, eleven and one-half years after it started.

Oyster Bay Assocs. Ltd. P’ship v. Town Board of Town of Oyster Bay, 2009 WL 1852089 (NY, 6/30/2009).

Special thanks to Keith P. Brown, Esq. of Brown & Altman, LLP in Melville, NY for this posting.

A denial by the zoning board of appeals for a special use permit to allow the applicant to maintain a home business was not arbitrary and capricious nor contrary to law since the board rationally determined that the Petitioner did not meet the requirement of the Town Code that he reside on the subject premises.

Weber v. Baranello, 2009 WL 1694496 (N.Y.A.D. 2 Dept. 6/16/2009)

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2009/2009_05148.htm

Concluding that due to the peculiar nature of quarrying, it is unrealistic and unreasonable to require the owner of a large tract of land used for quarrying to have actively mined all areas of the parcel prior to the enactment of a zoning ordinance for purposes of acquiring vested rights in a nonconforming use to protect its mining operation, the New York Court of Appeals found that the owner did demonstrate evidence to support a vested right to a nonconforming use over some of the parcels, and that questions of fact remained to be resolved over the two remaining subparcels.  

The owner of approximately 280 acres of property within the Town sought a declaration that all of its property located outside of the Town’s “AG-Special Aggregate District” is permitted as a nonconforming use, although it currently only operates a hard rock quarry on approximately one half of its land. The quarry, which had been acquired through a series of land transactions between 1929 to 1991, had been operating since 1929, long before the adoption of the 1942 zoning ordinance (amended in 1969) that included the land where active quarrying was taking place. The quarry consists of mineral extraction sites located primarily at the center of the property, as well as processing areas, buffer zones and roads. At issue was not the land where the activities were currently taking place, but rather the other half of the land owned by the mining company, mainly areas maintained as mineral reserves, and hence these lands had not been quarried. The appellate court concluded that most of this land was not entitled to nonconforming use status because the owner failed to establish substantial quarrying activities on the parcels prior to the adoption of the 1969 zoning ordinance. The court noted that intent to the use land for quarrying is not sufficient for nonconforming use status to attach, and noted that there was no evidence of infrastructure devoted to supporting the mining operation on these lands, and that the parcels were physically separated from the other mining operations. To this last point, the Court cited prior precedent holding that “it [is not] possible to extend the protection of a permitted nonconforming use established on one parcel of land to physically separate though adjoining parcels.” (See, Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278 at 286). The Court also determined that the owner failed to establish that it conducted some prior mining operations on the subparcels that evidenced “an intent to appropriate the entire parcel” for such operations. Although the owner applied for and was issued mining permits in 1955 and 1960 for such use, no activities were undertaken pursuant to those permits. The court noted that “self-serving acts of a very limited nature [that cannot be deemed to] have thrown a protective mantle of nonconforming use over [plaintiff’s] entire parcel of land as against a later prohibitory zoning ordinance.” (citing again to Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278 at 286).

In modifying the appellate decision, the New York Court of Appeals noted that courts and municipal officials have a “grudging tolerance” for the law of nonconforming uses which generally protects uses in existence at the time a zoning ordinance is adopted, while viewing nonconforming uses as detrimental to the zoning scheme and favoring reasonable restrictions over such uses and their eventual elimination. The Court of Appeals noted that while every inch of the land need not have been used for stated purpose for vested nonconforming rights to attach, utilizing just a small portion of the land may not be enough to trigger nonconforming status.  In explaining that with respect to quarrying operations, a prior nonconforming use cannot be limited solely to the land that was actually excavated before the zoning law went into effect, the Court said that mining is a unique industry since landowners commonly leave portions of their land as mineral reserves to be excavated at a future time. Therefore, owners may establish a nonconforming use extending to boundaries of their property notwithstanding the fact that quarrying may not have actually taken place in particular areas. However, the Court said that this does not give quarrying companies “carte blanche” to engage in future quarrying operations on the property.  Rather, as here, the owners and its predecessors acquired the property exclusively for mining and quarrying operations, noting that no part of the land was used for any other purpose.  Further, the a processing structure was constructed in the center of the property where bulk materials had been removed for decades, and service roads had been constructed to move the materials after processing.  The court also noted that the processing plant contains a building for packaging materials, a repair shop and offices.  Similar to their analysis in Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278, the Court said the nonconforming use extends throughout the property even though the principal excavation was limited in geographic area.

Turning to the four specific geographic areas in dispute, the Court concluded that as to subparcel 5, the owners and their predecessors had prepared maps of the area to survey potential areas to excavate, they put in place 6,000 feet of 16-inch piping from the property to the pumping station, they engaged in negotiations with the Town from 1963 to 1969 to relocate a road for unfettered use of its entire parcel for mining (putting the Town on notice of their intent to use the land for quarrying), they sent letters to the Town expressing an intent to mine in 1963, they made preparations for removal of dirt to allow for excavation, and they drilled auger holes identifying areas for mining. Although a road separated this subparcel from the aggregate zone, the Court said that this narrow roadway was not an impasse cutting off the subparcel from the contiguous parcels. Here, the Court concluded, the company appropriated the subparcel as a reserve for quarrying, and it was not seeking to extend its nonconforming use, rather, it was seeking to realize its vested right to use the land for quarrying purposes.  Finally, the Court noted that there was no evidence that the road “is a physical separation that alters the nature and character of the property, such that it would render a quarrying operation as foreign, unexpected or adverse to the area.”

With respect to subparcel 25D, which had been leased for the sole purpose of mining, the Court noted it was undisputed that the region is contiguous with the areas that have been extensively quarried. At issue, however, is a question of fact as to when the owner received legal title to the land (e.g., whether it was before the 1969 ordinance), and whether the parcel was acquired by the owner’s predecessors (mining companies).  The Court said that if the parcel was part of a subparcel actively quarried, then it would be entitled to nonconforming use status.

With respect to the three roadway subparcels, the Court said it was unclear whether these areas/highways were abandoned by the Town or in use prior to the 1969 ordinance.  The Court said that if the Town had abandoned them for six years prior to the 1969 ordinance, then the quarrying company would be entitled to prior nonconforming use of these areas since although they may be abandoned, this fact would not curtail any right to enjoyment that the public may have had in these areas, and it may have created a property right for the abutting property owners here (to wit, an easement of access to abutting streets).

Lastly, with respect to subparcels that were leasehold interests before the 1969 ordinance, and located contiguous to the immediate south of the AG district, the Court noted that arial maps showed that the areas were cleared, grubbed and stripped of topsoil before 1969, and that they had been the subject of quarrying permits before that time as well. Therefore, nonconforming use rights attached to these parcels since there was a clear intent to quarry these areas at a future time.  

In summary, the Court found that since quarrying involves a gradual unearthing of minerals, excavation of all parts of a large parcel do not occur at the same time.  Here, the company and its predecessors demonstrated that the land had been used exclusively for quarrying for decades.  Therefore, all of the parcels are entitled to nonconforming use status except for subparcel 25D and the roadway properties where issues of fact remain.

 Buffalo Crushed Stone, Inc. v. Town of Cheektowaga, 2009 WL 1850964 (NY 6/30/2009).

 The opinion can be accessed at: http://www.nycourts.gov/ctapps/decisions/2009/jun09/118opn09.pdf

The Respondent requested area variances to permit him to subdivide a parcel into two substandard lots where he intended to relocate a single-family residence currently located on mid-parcel onto one lot, and to construct a new single family residence on the other lot. The zoning board granted the variances, and neighbors appealed, alleging that the Board’s decision was arbitrary and capricious as it failed to distinguish this application from a substantially similar prior application made for the same parcel three years earlier.

The appeals court upheld the zoning board’s decision, noting that a zoning board is required to adhere to its prior precedent, where it “provides a rational explanation for reaching a different result on similar facts, the determination will not be viewed as either arbitrary or capricious.” (citing Matter of Berk v. McMahon, 29 A.D.3d 902) Further, a board may change its views as to what is in the best interests of the municipality and the board may give weight to slight differences not easily discernable. (See, Knight v. Amelkin, 150 A.D.2d 528) The Court noted that it was within the discretion of the board to determine whether the modifications to the submitted application presented changed facts and circumstances and to weigh such accordingly. Here, the Court found that the board specifically noted several changes from the prior application, including modifications to the locations of the two dwellings, an increase in side yard setbacks, preservation of a mature tree, and an agreement to a restrictive covenant keeping the dwellings owner occupied with no accessory apartments. Further, the board noted that the current application differed from the prior one in that it contained substantial evidence of prior, similar variances and of the presence of other neighboring, substandard lots.

Waidler v. Young, 2009 WL 1694577 (N.Y.A.D. 2 Dept. 6/16/2009).

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2009/2009_05147.htm

Dehnert owned a piece of property that was divided by a city street right of way.  On the west side of the street, his parcel contained restaurant space, and on east side of the street the parcel contained a marina. Dehnert applied for several variances and an amendment to a conditional-use permit (CUP) issued in 1999 that required him to provide or arrange for 15 parking spaces on his property (although the zoning district regulations allow for fewer spots). Specifically, he requested that the required number of parking spaces be reduced 11, and the variance requests sought setback waivers to enable him to alter the configuration of the parking lot near the restaurant.  The city council approved the applications.  Neighbors brought a declaratory judgment action to invalidate the approval.  The trial court granted summary judgment in favor of the City and dismissed the complaint.  The Appeals Court affirmed.

The Court determined that because the setback requirement constituted an undue hardship, the City Council’s decision to grant the requested variances was neither arbitrary nor capricious. With respect to the requested modification to the CUP, the appeals court noted that even by reducing the number of parking spaces to 11, this was still more than the 8 required under the zoning ordinance. Therefore, the Council did not act in an arbitrary or capricious manner when it approved the application for a modification to the 1999 CUP because the proposed modifications satisfied the requirements of the zoning district.

Eitel v. City of White Bear Lake, No. 2009 WL 9110402 (Minn. Ct. App. 4/7/2009)

The opinion can be accessed at: http://caselaw.lp.findlaw.com/data2/minnesotastatecases/appunpub/0904/opa081066-0407.pdf

Six months following the filing of a commercial site plan application with the Town Department of Planning, Environment and Land Management to develop a retail building which was a permitted use under the applicable zoning ordinance then in effect, the Department responded with a number of conditions that had to be met before the application would be submitted to the planning board. A year later, the Petitioner submitted a revised site plan to the Town which met all of the conditions except the requirement that the Petitioner meet with a local civic organization (because the group refused to schedule the meeting). During the year prior to the second submission, the Town had designated the area where the Petitioner’s property was located as a historic district, now requiring project approval from the Historic District Advisory Committee. The Committee held a hearing on the application which was never completed, and ten months after the second application was submitted the Petitioner made a written demand to have his application placed on the planning board’s agenda. In response, the Petitioner was notified that the Town was contemplating a moratorium on site plan applications in the area where his property was located, and the following month a moratorium was enacted. A month later, the Petitioner brought a mandamus action to compel the processing and consideration of his site plan application. Among other things, the petition alleged that the Planning Board acted wrongfully by delaying its processing and consideration of the application so that the Town could enact the moratorium to prevent the review. The trial court directed the planning board to place the site plan application on the calendar for processing and to consider it in accordance with the zoning laws in effect at the time of submission of the second application.

The appeals court determined that while the allegations in the petition stated a valid cause of action for mandamus relief, the trial court erred in determining as a matter of law that the moratorium did not apply to the petitioner’s real property and in directing the Planning Board to apply the zoning in effect prior to the moratorium. Since the applicable zoning laws are those that existed at the time the decision was rendered, the Petitioner would have to show that the Town prevented him from obtaining vested rights through “some misconduct or extraordinary delay.” Meaning, the Petitioner had to demonstrate proof of “special facts” indicating that the Town acted in “bad faith” in delaying the processing and consideration of his site plan. Therefore, the appeals court remanded the matter to the trial court for a hearing on this issue.

Golden Horizon Terryville Corp. v. Prusinowski, 2009 WL 1695725 (N.Y.A.D. 2 Dept. 6/16/2009)

The opinion can be accessed at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_05128.htm

In June 2007, the Board of Supervisors of East Lampeter Township received a petition by a group of Amish farmers to establish an Agricultural Security Area (ASA) encompassing 13 farms and 788 acres. The farmers were motivated by a desire to discourage nuisance laws that restrict farming and to limit the government’s ability to condemn farmland. The Township Planning Commission recommended that all but one of the properties be included in an ASA, but following public hearings, the Board of Supervisors concluded that an ASA was not necessary because the Township had adopted appropriate planning tools to prevent inappropriate development of agricultural lands, citing the policies in its comprehensive plan, and the fact that the township “had not adopted any ordinances which would tend to inhibit normal farming practices.”  Further, the Township believed that its Right to Farm Act and other regulations provided sufficient protection.

The petitioners appealed, and the trial court ruled that the state law did not provide discretion to the board to consider its comprehensive plan and other preservation tools when deciding whether or not to create an ASA. Once a petition is filed requesting the governing body to establish an ASA, there are five statutory factors to be considered. The township argued that the factor which states “any other matter which may be relevant” provides broad discretion. The appellate court affirmed and held that evaluating the ASA in the context of the comprehensive plan, ordinances, or other preservation tools is not within the permissible scope of “other matters which may be relevant.”  The Court said that under State statute, the decision as to whether to establish an ASA rests with the farmers and not the municipal governing body.

In re Agricultural Security Area in East Lampeter Township, 2009 WL 1456995 (PA. Cmwlth Ct. 5/27/2009)

The opinion can be accessed here

Following approval by the board of zoning appeals of a special exception to allow for a concentrated animal feeding operation (CAFO) which would house 2,000 cows on 27 acres, Thomas, who owned property located one-third of a mile from the site appealed to the circuit court. The circuit court dismissed the matter finding that Thomas had failed to show that she was an aggrieved party for purposes of standing based on evidence at the hearing relating to the impact of the CAFO operation on the value of Thomas’s property. The appeals court reversed and remanded, finding that the trial court heard evidence outside of the pleadings and had treated the motion to dismiss as a motion for summary judgment.  

In what is primarily a procedural decision, as opposed to a substantive zoning issue, the Indiana Supreme Court reversed, basically approving of the procedure followed by the trial court in holding an evidentiary hearing and deciding whether Thomas had standing based on the conflicting evidence presented.     

Thomas v. Blackford County Area Board of Zoning Appeals, 2009, 2009 WL 1674830 (Ind. 6/16/2009)

 The opinion can be accessed at: http://www.state.in.us/judiciary/opinions/pdf/06160901trb.pdf

Read a summary on the Indiana Appellate Law Blog here

When reviewing a decision of the Town Board which determined that the Petitioner’s proposed uses of the subject property were not permitted under the zoning code, and which after a hearing denied the application for extraordinary hardship relief (to wit, an extension of time in which to obtain site plan approval for a proposed open air car lot), the substantial evidence standard does not apply since the decision was made after informational public hearings as opposed to a quasi-judicial evidentiary hearing. The proper standard of review is whether the Board’s decision was illegal, arbitrary or capricious, or an abuse of discretion. Here, the Court upheld the Board’s decision as rational since the applicable zoning code did not allow the intended use, so even if the Board had granted the application for extraordinary hardship relief, the Petitioner would still not have been permitted to use the lot as an auto dealership.

Yilmaz v. Foley, 2009 WL 1694425 (N.Y.A.D. 2 Dept. 6/16/2009).

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2009/2009_05149.htm

After determining that the Petitioner homeowners association had standing to challenge the project review since it met its burden of establishing “that at least one of its members would have standing to sue, [and] that it is representative of the organizational purposes it asserts and that the case would not require the participation of individual members.” Although the Town improperly classified the action as Unlisted under the State Environmental Quality Review Act, rather than as a Type I, the Court determined that since the Board followed procedural and substantive guidelines applicable to a Type I action, the improper classification was of no moment.

Pasztor v. Zoning Board of Appeals of the Town of Amherst, 2009 WL 1652970 (N.Y.A.D. 4 Dept. 6/12/2009)

The opinion can be accessed at:

http://www.courts.state.ny.us/ad4/court/Decisions/2009/06-12-09/PDF/0910.pdf