This post was authored by Amy Lavine, Esq.

The Chamorro Land Trust Commission was created in Guam to provide long term residential and agricultural leases of public lands to people with native heritage. The United States filed suit against the Commission in 2017, however, claiming that it engaged in racial discrimination and violated the FHA to the extent that leases were not available for non-Chamorros. As Vice has reported, however, the lawsuit was prompted by a complaint made by a Caucasian man and indigenous rights advocates have criticized the federal government for essentially seeking “to pave the way for non-indigenous people to assert control over indigenous resources.” A decision in the case was issued by the Guam federal district court in December 2018, with the court finding that the record was insufficient to determine whether the Chamorro Land Trust Act relied on an unlawful racial classification or a permissible political classification.

The crux of the dispute turned on the definition of “native Chamorros,” which under the legislation included “any person who became a U.S. Citizen by virtue of the authority and enactment of the Organic Act of Guam or descendants of such person.” This classification, according to the government of Guam, relied on a permissible political distinction, rather than unlawfully discriminating on the basis of race, while the federal government contended that it was merely a proxy for illegal racial discrimination.

The district court ruling set out a lengthy historical analysis of territorial land appropriations in Guam, as well as a discussion of its ruling in 2017 that allowing only “Native Inhabitants of Guam” to vote in an election concerning the territory’s future relationship with the United States amounted to racial voting discrimination in violation of the Fifteenth Amendment. But the definition in that case differed in significant ways from the definition of “native Chamorros” under the Land Trust Act, and even the federal government conceded that the definition in this case resulted in both a small number of non-Chamorros being eligible for land leases as well as a small number of people with indigenous ancestry being excluded. The court also pointed out that in contrast to most racial classifications, which are subject to strict scrutiny, the Supreme Court has applied the much more lenient rational basis test to legislation providing preferences to Native American tribes due to the “unique obligations” and “special relationship” that the federal government has with respect to these groups. Even if that precedent didn’t apply conclusively in this case, since Chamorros are not a federally-recognized tribe, the court still found that it was relevant in the sense that land repatriation involved the federal government’s “special relationship” with “native Chamorros.” This also distinguished the land leasing dispute from the court’s 2017 voting rights determination, as the the federal government’s relationship with Guam is not a specific concern under the Fifteenth Amendment.

The record fell short, however, as to the particular history of the property involved under the Chamorro Land Trust Act and the federal government’s intentions that it be returned to indigenous islanders. As the court concluded: “This court cannot tell from the record whether and to what extent the Chamorro Land Trust consists of Spanish Crown Lands that the United States directed Guam to administer for the benefit of people who had had their land taken by the United States. It may well be that there is land in the Chamorro Land Trust not covered by such a direction from the United States, but this court cannot discern that on the present record. Even without the other issues already raised in the present order, that issue alone precludes judgment for the United States at this time.”

The court also dismissed the federal government’s reliance on a previous case involving the Chamorro Land Trust Act that considered whether land could be removed from the trust by the Guam government and transferred to private parties as a part of a land exchange. While that ruling did question the use of a race-based classification under the land lease program, it did so based on a finding that “the Ninth Circuit has clearly ruled that the Government of Guam is not the proper custodian or trustee for indigenous lands.” As the court pointed out, however, the Ninth Circuit precedent mentioned in that case involved aboriginal property rights, whereas in this case, “[t]he land in issue here may or may not rely on aboriginal title, but the actual focus is on the taking of land during World War II, rather than on aboriginal title.” The court similarly rejected a judicial estoppel claim made by the federal government based on a 1993 case in which the government of Guam claimed that the Chamorros were not a political classification in an unsuccessful attempt to delay implementation of the land trust program. The court noted that judicial estoppel does not operate to prevent all changes in public policy and it emphasized that Guam’s change in position didn’t involve any misrepresentation and wouldn’t result in any prejudice or unfair advantage. It concluded that “[t]his is simply not a case in which this court will apply an equitable doctrine to hold Guam to a position it asserted years ago that was rejected by the court in which Guam made the assertion.”

The government of Guam also asked the court to rule on the availability of money damages under the FHA, and the court ruled in its favor on this issue. Although Guam’s sovereign immunity normally doesn’t apply to claims brought by the federal government, the United States in this case explicitly stated that it would distribute the proceeds of any award to individuals claiming to be aggrieved by the Chamorro Land Trust’s alleged discrimination, rather than depositing the funds with the federal treasury. Its plan, in other words, was essentially intended as an end-run around Guam’s sovereign immunity, which would have prevented those allegedly aggrieved persons from being able to seek money damages against Guam directly.
United States v. Gov’t of Guam, 2018 WL 6729629 (D Guam 12/21/18).

This post was authored by Amy Lavine, Esq.

A New York appellate court held in January that a variance was needed for the addition of a crematory to an existing cemetery property. The zoning board’s refusal to grant a variance was unreasonable, however, because the crematory application was based on sufficient proof of unnecessary hardship and there was no evidence that it would cause any negative impacts to the neighborhood.

 

The White Plains Rural Cemetery Association wanted to construct a crematory on its nonconforming cemetery property. It applied to the zoning board for a determination that the crematory would be a permissible use as part of the existing cemetery, but the zoning board concluded that a variance was necessary and denied the Association’s application in its entirety. The trial court mostly affirmed this ruling, but it granted that part of the Association’s petition that sought to annul the zoning board’s variance denial. This appeal followed, and the appellate court affirmed.

 

The Association’s argument that a crematory would be part of the same land use as the existing cemetery was based primarily on its status as a “cemetery corporation” under the state not-for-profit corporation law. But as the court explained, the Association’s corporate status as a “cemetery” didn’t necessarily mean that its proposed crematory would also qualify as a “cemetery” under the zoning ordinance. The zoning board wasn’t bound by provisions in the non-for-profit corporation law, the court noted, and it had authority under the state zoning laws to adopt its own regulatory definitions. The court also found that it was reasonable for the zoning board to look to common dictionary definitions for its interpretation of what constituted a “cemetery” and its decision that the proposed crematory wouldn’t qualify for this classification was entitled to deference, regardless of whether or not the Association might be a “cemetery” under other legal regulations.

 

The appellate court next considered the zoning board’s decision to deny a variance for the crematory. The general rule, the court explained, is that a property owner is only eligible for a use variance if it can show an unnecessary hardship. Additionally, New York law requires that: (1) the property would not be capable producing a reasonable return under existing permitted uses; (2) the hardship was the result of a unique feature of the property; (3) the variance would not have negative impacts on nearby residents or alter the character of the neighborhood; and (4) the hardship was not self-created. In the circumstances of this case, the court found that the Association sufficiently proved an unnecessary hardship and that it produced adequate “dollars and cents” evidence that it would be unable to realize a reasonable return in the absence of variance relief. In particular, the court noted that the Association had provided factual and expert evidence of its ongoing operating losses, including its financial records and projections made by a financial analyst. The zoning board had dismissed this evidence as contradictory based on a tax document showing that the Association had some income in 2014, but the court held that this determination was arbitrary and irrational, explaining that “the Board failed to differentiate investment income accrued in the Cemetery’s statutorily required permanent maintenance fund from the net losses the Cemetery incurred as a result of its decline in revenue.”

 

The zoning board had also denied the Association’s variance request on the basis that a crematory would alter the essential character of the neighborhood. But the court disagreed as to this point as well, noting that “the unrebutted evidence demonstrated that the crematory would be shielded from view, would be odorless and not emit visible smoke, and had passed all necessary emissions and air quality testing.” Additionally, the crematory would have no impacts on historic resources, nor would it be visible from the nearest residence, which was located 400 feet away on the other side of a major highway. The court dismissed the zoning board’s remaining concerns about property values and the possibility that additional crematories might be added in the future, as these findings were speculative and based on generalized community opposition to crematories. Based on this analysis, and because there was no disagreement that the Association satisfied the remaining statutory criteria, the court affirmed the determination below which annulled the zoning board’s denial of the Association’s variance request.

 

White Plains Rural Cemetery Association v City of White Plains, 2019 WL 362123 (NYAD 2 Dept. 1/30/2019).

This post was authored by Amy Lavine, Esq.

A recent appellate court decision from New York upheld a frontage variance that was granted for a hotel development in the Town of the Newburgh. The court found that the variance was properly treated as an area variance because it involved a “physical requirement” of the zoning regulations, and the record showed that the zoning board’s decision was reasonable and complied with state law.

 

The court first addressed the hotel’s request for a variance from the zoning ordinance’s requirement that hotels must have “principal frontage” on a state or county highway. Although the petitioners claimed that this should have been treated as a use variance, the court agreed with the zoning board that it was more appropriately considered as a request for an area variance. As the court noted, the enabling act defined area variances in reference to “the dimensional or physical requirements of the applicable zoning regulations,” and it was reasonable for the zoning board to conclude that the “principal frontage” regulation was a “physical requirement.” The variance application also involved the height of the proposed hotel, which the zoning board also classified as an area variance, and the court noted that there was dispute on this point.

 

In determining whether the area variances were properly granted, the court noted that the zoning board was required by the enabling act to weigh the benefit of the variance to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community. This analysis must also consider several statutory criteria, including: “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.” On the facts of this case, the court determined that the record showed that the zoning board properly considered each of the statutory factors, and its decision to grant the variances was not irrational or an abuse of discretion.

 

In a final point, the court also concluded that the zoning board acted properly in issuing a negative declaration under the State Environmental Quality Review Act. As it noted, the zoning board filed the required short Environmental Assessment Form, identified the relevant areas of environmental concern, took a hard look at the potential environmental impacts, and made a reasoned elaboration of the basis for its determination.

 

Route 17k Real Estate, LLC v Zoning Board of Appeals of the Town of Newburgh, 2019 WL 362126 (NYAD 2 Dept. 1/30/2019).

This post was authored by Matthew Loeser, Esq.
Objectors owned eight brick row houses on the 1400 block of Buena Vista Street, referred to as “Lemmon Row”, that was granted a historical designation. Johnson owned 1405 Buena Vista Street, the site of a house in Lemmon Row that was demolished in 2013. On 2016, Johnson applied to the Commission for a certificate of appropriateness for her proposed “three-story single-family home with one integral garage” on the lot. The Commission advised Johnson that her proposal needed to be “compatible with the historic character of the site and take into account the size, proportion, façade composition, rhythm, proportions of openings, materials, and colors within the neighboring buildings.” At the following meeting on February 1, 2017, the Commission voted to issue Johnson a certificate of appropriateness with conditions. The Commission further explained that because Lemmon Row had not yet been granted historical status, it was not subject to formal guidelines; as such, the Commission used the United States Department of Interior’s standards for guidance. The trial court affirmed the Commission’s decision.
On appeal, Objectors contended that the Commission erred in using the Department of Interior guidelines, and did not properly apply those guidelines to Johnson’s design. Specifically, Objectors interpreted the Department of Interior’s standards to mean that “the new construction could be different from the original construction but for massing, size, scale, and architectural features.” Objectors further argued that Johnson failed to demonstrate that her house was compatible with the “exquisite architectural style of Italianate and Simple Victorian” homes in Lemmon Row with “commonality of scale, material, and finish.” Here, after Johnson made the changes recommended by the Commission, the Commission voted unanimously in favor of issuing the certificate of appropriateness. The court found that absent fraud, bad faith, or abuse of discretion, the Commission’s interpretation of the term “compatibility,” was entitled to deference on appellate review. Accordingly, the court held that the trial court did not err in affirming the Commission’s exercise of discretion in issuing a certificate of appropriateness to Johnson.
Objectors next argued that because Johnson’s new construction constituted a “significant deviation in height from the existing houses on Lemmon Row,” their property rights had been diminished without due process of law. The court rejected this contention, however, finding that Objectors did not identify, with any particularity, how the procedures afforded to them before the Commission were insufficient. The record reflected that Objectors were present at the relevant meeting and voiced objections to Johnson’s plan. Additionally, Objectors did not dispute that they were given adequate notice or the opportunity to be heard during the public meeting. Furthermore, the Zoning Code required the Commission to seek recommendations on guidelines from residents in a proposed historic district; however, it was the Commission, not residents, that was responsible for the guidelines. Thus, it was immaterial that Objectors were not given more time to draft guidelines for Lemmon Row for the Commission’s consideration.
Lastly, Objectors argued that since the Commission did not adequately address the Department of Interior guidelines, the record was incomplete. Here, Objectors did not argue to the trial court that the record was incomplete or that they were not given a base upon which they could appeal. As such, the issue is waived. Moreover, ass this case involved issuance of a certificate of appropriateness, rather than a certificate of economic hardship, Title XI did not require the Commission to issue a written decision. Accordingly, the trial court’s holding was affirmed.

Meyer v. City of Pittsburgh Historic Review Commission, 201 A.3d 929 (PA Cmwlth 1/7/2019)

This post was authored by Amy Lavine, Esq.
The Third Circuit held in a January that a written decision is necessary to constitute a final action under the Telecommunications Act (TCA). Accordingly, T-Mobile’s challenge was found to be unripe when the only permit denial it had received was an oral decision from the zoning board. The court found that it was error to dismiss T-Mobile’s supplemental complaint as untimely, however, because the 30-day time period for bringing appeals wasn’t jurisdictional and the relation-back doctrine allowed later filings to cure its initial ripeness defect.

T-Mobile filed the lawsuit in this case in response to an oral decision on its permit application from the zoning board in the City of Wilmington, Delaware. The district court held that T-Mobile’s initial complaint was irreparably unripe, and the Third Circuit agreed on appeal that only a written decision denying a permit application can establish a final action under the TCA. The court emphasized, in particular, that the TCA requires zoning decisions to be in writing, and that under Delaware law a zoning board action only becomes final upon the filing of a written determination. Requiring a written decision also had practical value, the court explained:
Requiring a written decision focuses review on a particular, documented statement of reasons. It also prevents ambiguity with respect to when a claim can be brought. As the District Court here stated, to hold otherwise ‘would promote a pernicious ambiguity as to when that short period of time begins to run.’ And it promotes uniformity of federal procedures by clarifying when, across all jurisdictions, an action becomes final.
The court additionally noted that requiring a written decision to satisfy the finality requirement was consistent with the Supreme Court’s decision in T-Mobile South, LLC v. City of Roswell, and both the Eighth Circuit and the Eleventh Circuit had also taken the position that only a written decision could constitute a final action. Accordingly, the court clarified as a general rule that a zoning board’s oral decision is not a final action ripe for judicial review under the TCA.

T-Mobile also argued that the city had to issue a written decision soon enough after its oral decision to comply with the FCC’s shot clocks and to preserve its ability to obtain expedited judicial review as provided for in the TCA. As the court explained, however, this argument assumed that an oral permit denial, standing alone, could be a final action for the purposes of the shot clock requirements, and to adopt this view would essentially nullify the TCA’s requirement that a zoning denial be made in writing. The court held instead that the issuance of a written denial was the “action” that had to comply with the shot clocks, as any earlier oral denial was insufficient to constitute a final action. The court also found that T-Mobile’s concerns about the shot clocks were overstated and irrelevant, because the shot clocks begin to run as soon as a wireless provider files its application and “so it is already ticking before any oral decision is made.”

Finally, the court determined based on the text and context of the statute that the TCA’s 30-day time limit for seeking review wasn’t a jurisdictional requirement. As a result, it was error for the district court to have dismissed T-Mobil’s supplemental complaint as untimely, just because it was filed after the 30-day time period had expired. Rather, the supplemental complaint should have been deemed to relate back to the initial complaint and cure T-Mobile’s initial ripeness defect. As the court explained, in determining whether to apply the relation back doctrine, the relevant issue was whether or not there was a “common core of operative facts in the two pleadings.” T-Mobile satisfied this test because both its initial and supplemental complaints relied on the same core facts, and the zoning board’s written denial was merely a certification of its earlier oral decision. “Thus,” the court explained in conclusion, “the only question remaining is whether a complaint that relates back can cure an untimely initial complaint, and the answer is yes. The clear preference embodied in Rule 15 is for merits-based decision making.”

T Mobile Ne. LLC v. City of Wilmington, 913 F.3d 311 (3d Cir. 1/10/19).

The petitioner lives in a neighborhood zoned for one-family and two family residences. Most of the houses in the neighborhood, including the petitioner’s house, were built before the enactment of the zoning law in 1920 and are located on lots that do not comply with the current zoning laws. The petitioner applied for five area variances to convert her one-family home into a two-family home. After a hearing, the Board of Zoning denied the application. The petitioner appealed and the trial court granted the petition, annulled the determination, and remitted the matter to the Board for reconsideration of the petitioner’s application for area variances. The Board appealed.

 
Although the Board engaged in the required balancing test, the Court agreed with the trial court that the Board failed to meaningfully consider the relevant statutory factors. The Court noted, “While the proposed variances were clearly substantial and the alleged difficulty was self-created, the Board’s failure to cite to particular evidence as to whether granting the variances would have an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community requires reconsideration of the application, weighing all of these factors.” Accordingly, the Court affirmed annulling the Board’s determination, and remitting the matter to the Board for reconsideration.

 
Mengisopolous v. Board of Zoning Appeals of City of Glen Cove, 2019 WL 288111 (NYAD 2 Dept. 1/23/2019).

In a challenge to the determination of the zoning board of appeals that a gasoline fueling station was a permitted principal use in the district pursuant to the Town Code, the appellate court upheld the board’s interpretation finding it was neither arbitrary nor capricious and that it complied with applicable legal principles.
Hitner v. Planning Board of the Town of Patterson, 2019 WL 288135 (NYAD 2 Dept. 1/23/2019)

This post was authored by Amy Lavine, Esq.

A District of Columbia Appeals Court discussed the confusion that sometimes arises in distinguishing between use and area variances. It emphasized that the question turns on whether the restrictive regulation is a requirement affecting the location and placement of structures, or rather a requirement relating to the permissible ways in which property may be used. The court also declined to adopt any sort of “hybrid” category for projects that might share aspects of both use variances and area variances, noting that the concept of a “hybrid” variance had no real legal significance given that the zoning ordinance recognized only area and use variances. Nor was there any persuasive reason to invent a new category for such “hybrid” variances, the court explained, because even though a small subset of area variances might resemble use variances in cases where they “drastically” alter the character of a zoning district, this issue was already addressed by existing variance criteria dealing with public interest and neighborhood impacts.

Neighbors for Responsive Gov’t, LLC v. D.C. Bd. of Zoning Adjustment, 195 A.3d 35 (10/18/18).

Note: this case is discussed in more detail in a previous blog post.

The petitioners/plaintiffs, owners of residential real property in the Village challenged five local laws amending the Zoning Code of the Village. Three of the challenged amendments impact building on lots of 40,000 square feet or greater. Local Law No. 13–2015 reduced the maximum allowable gross floor area for one- and two-family detached dwellings on such lots. Local Law No. 14–2015 reduced the maximum permitted coverage for all structures on such lots. Local Law No. 15–2015 reduced the maximum allowable gross floor area for all accessory buildings on all such lots. The other two amendments impacted all lots in the Village—Local Law 16–2015 added to the Village Zoning Code a definition of “story,” which previously was not defined, and Local Law 17–2015 modified the definition of “cellar” so as to restrict the permissible parameters of a cellar.
Petitioners sought to annul the laws claiming, among other things, that (1) the amendments are not in accordance with the Village’s comprehensive plan; and (2) the Board of Trustees improperly relied on the recommendation of the Village Planning and Zoning Committee (hereinafter the Planning and Zoning Committee) in adopting the subject amendments. The trial court denied the petition, dismissed the proceeding/action, and declared that the challenged local laws are a legal, constitutional, and valid exercise of the police and zoning powers of the village, and this appeal ensued.
The appellate court agreed with the court below that the challenged amendments are consistent with the comprehensive plan of the Village and that the petitioners failed to establish that any of the challenged amendments are inconsistent with the plan. In fact, the Court noted that the plan included: a statement of the importance for the Village to ensure that new development or redevelopment of residential properties was compatible with the character of the existing neighborhood in which it occurs; that the Village accomplished this goal by limiting the gross floor area for all homes in relation to lot size and the total coverage of the residential lot; and a recommendation further limiting the maximum gross floor area and coverage for residential lots, including accessory structures, so that new residential development would be more responsive and compatible with the scale of existing development. Therefore, the Court concluded that the subject amendments were entirely consistent with the comprehensive plan.
The court further disagreed with the petitioners’ contention that the Board of Trustees improperly relied on the advice of the Planning and Zoning Committee and thereby denied the petitioners the notice and opportunity to comment required under Village Law §§ 7–706 and 7–708, and under the open meetings provisions of the Public Officers Law. The Court noted that the record supports the determination below that “the Planning and Zoning Committee was advisory in nature, did not perform governmental functions, and, therefore, was not a public body subject to the open meetings provisions of the Public Officers Law, even though the Planning and Zoning Committee contained at least one member of the Board of Trustees.”

Bonacker Property, LLC v. Village of East Hampton Board of Trustees, 2019 WL 288160 (NYAD 2 Dept. 1/23/2019).

This post was authored by Amy Lavine, Esq.

A New York case decided earlier this year addressed some allegedly defamatory statements made by a building permit applicant during the course of a public hearing before the local historic preservation board. The challenged comments were addressed to a neighbor who had voiced his opposition to the application, and they impugned his motivations and morality, as well as hinting that he had deviant sexual tendencies. Although statements made during a public hearing are normally protected from defamation challenges by an absolute privilege, the court held that the comments in this case, which had no bearing or relevance to the building permit at issue before the board, were not entitled to this protection.

The dispute in this case involved a public hearing held by a historic preservation board to consider an application for an exterior staircase addition. The proposal was submitted by Barbara Wilson, and several residents voiced comments in opposition, including her neighbor, Anthony Gugliotta. He raised particular concerns about whether Wilson actually needed the staircase for her daughter’s safety, pointing out that her daughter’s bedroom was on the ground floor. In response to this comment, Wilson made a series of statements regarding Gugliotta and hinting that his interests in her daughter’s bedroom were less than wholesome:
“I’m so glad you’re worried about my daughter.”
“Since he’s so concerned about my daughter, I’ll be enforcing the settlement that we entered into where his camera is not supposed to be… on my daughter’s bedroom window.”
“Just when people bring up my daughter, it’s a little upsetting to me. . . . Especially when grown men want to look at little girls.”
The chairman of the board had attempted throughout the exchange to remind and encourage Wilson to address her comments to the board, not Gugliotta, and to focus on issues relevant to her proposed staircase. Upon her comment about grown men looking at little girls, the chairman exclaimed “Whoa. We don’t want to get into that.” Even after the hearing had been adjourned, but before the video recording was stopped, Wilson was recorded offscreen warning Gugliotta to “stay away from my daughter.” The video of the hearing, the court also be noted, was broadcast on local television.

The court began its analysis of Gugliotta’s defamation claim by setting out the elements of the action: “(a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se.” The court also explained that it was necessary to consider whether any immunity attached that would preclude liability for any defamatory statements. As the court explained: “The absolute privilege generally is reserved for communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings. This protection is designed to ensure that such persons’ own personal interests—especially fear of a civil action, whether successful or otherwise—do not have an adverse impact upon the discharge of their public function.”

Applying these rules to the facts at hand and considering all of the circumstances, the court first concluded that Wilson’s statements tended to expose Gugliotta to public contempt, hatred, ridicule, aversion, and disgrace. As comments made in the context of a public hearing, the court acknowledged that they would ordinarily be subject to absolute privilege and shielded from any liability for defamation. However, the court emphasized that “the absolute privilege embraces only those statements that may possibly be or become material or pertinent to the matters before the Board,” and under the circumstances of this case, the court could find “not one scintilla of evidence present upon which to base the possible pertinency of [the] defendant’s statement[s].” Accordingly, absolute privilege did not apply and the court affirmed the judgment below refusing to grant Wilson’s motion to dismiss.
Gugliotta v Wilson, 168 A.D.3d 817 (NY App. Div. 2d Dept. 1/16/19).