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Case Digests

October 10, 2008

U.S. Court of Appeals for the Second Circuit

Intramilitary

Immunity

Dibble v. Fenimore

06-3307-cv

Appealed from the

Northern District of New York

Background: The secretary of the U.S. Air Force is a defendant in an action and appel from a grant of summary judgment in favor of the secretary. Donald J. Dibble is a former federal excepted service technician with the New York Air National Guard who was denied reenlistment. Alleging the denial was retaliation for his exercise of constitutional and statutory rights, including his advocacy as a union representative, Dibble applied for administrative relief from the Air Force Board for the Correction of Military Records. When the board denied his application, Dibble filed the present action under the Administrative Procedure Act.

Ruling: The court holds that the doctrine of intramilitary immunity does not preclude a federal court from reviewing a challenge under the Administrative Procedure Act to a decision by the Air Force Board for the Correction of Military Records. It also holds that the district court correctly found that the board’s decision was not arbitrary, capricious, contrary to law or unsupported by substantial evidence. The district court’s judgment is affirmed.

Daniel M. Schember of Gaffney & Schember PC for the appellant, and Paula Ryan Conan, assistant U.S. attorney, for the appellee

u.s. district

Court, wdny

Retaliation

Public Benefits

Hilfiger v. Alger

05-CV-6040

Judge Larimer

Background: In a lawsuit against Steuben County Executive Mark Alger and other county defendants, the denial of child care benefits by a New York State Social Service Agency for a single month, July 2004, forms the basis of the plaintiff’s claims under 42 U.S.C. [section]1983. In June 2004, the plaintiff gave birth to her second child. At that time, the plaintiff was receiving state child care assistance benefits from DSS for day care for her son, Alexander, born in 2001. Payment was denied for July 2004 because the plaintiff was on disability leave and failed to notify DSS. She alleges retaliation along with her other claims. The defendants moved to dismiss.

Ruling: In finding that the defendants did not retaliate in any way against the plaintiff, the court states that the reasons given by the defendants for their decisions denying the benefits were consistent. The plaintiff did not give timely notice of a material change in her circumstances, thereafter she failed to submit proper or sufficient documentation demonstrating her need for child care services. There was no retaliation, nor is there a viable [section]1983 claim. Only after the plaintiff indicated that she was withdrawing both of her children from the program was her case closed.

Loretta Hilfiger, pro se, and Bryan J. Maggs and Donald S. Thomson of Davidson & O’Mara PC for the defendant

Appellate

division, fourth

Department

Administrative

Determinations

Permits

In the Matter of 8-Ball Laundry

Lounge Inc. v. Tobe

1026

Article 78; Supreme Court,

Erie County

Background: Richard M. Tobe, the commissioner of Buffalo’s Department of Economic Development, Permit and Inspection Services, found that the petitioners violated the Buffalo City Code and revoked their permit to operate a dance club because of disorderly and immoral conduct. The petitioner argues the findings were made against the weight of the evidence.

Ruling: The court finds that it is the responsibility of the administrative agency to weigh the evidence and choose among competing inferences. So long as the inference drawn and the ultimate determination made are supported by substantial evidence, it is not for the court to question the judgment of the administrative agency. The revocation of the permit is affirmed.

Brian M. Melber of Personius Melber LLP for the petitioners, and Mary B. Bowman, assistant corporation counsel, for the respondents

Public Employment

Political Activity

Wehlage v. Quinlan

1078

Appealed from Supreme Court,

Cattaraugus County

Background: The plaintiff appeals from a grant of summary judgment in favor of the defendants. The plaintiff seeks damages for the elimination of her position as an animal control officer for the defendant City of Olean and the termination of her employment, allegedly in violation of her civil rights pursuant to 42 USC [section]1983, and in violation of Labor Law [section]201(d). According to the plaintiff, her position was eliminated because of her political affiliation.

Ruling: The plaintiff admitted she had no political affiliation and did not support any candidate. Her suggestion that there was a perceived political affiliation between her and the outgoing mayor is based on impermissible hearsay. As to the [section]201(d) claims, the plaintiff did not engage in any of the political activities, such as running for office, protected by the Labor Law. Summary judgment is affirmed.

Gregory A. Mattacola for the appellant, and J. Michael Shane for the respondents

Promissory Note

Usury

Billard v. Page One Auto Sales

1103

Appealed from Supreme Court,

Monroe County

Background: The appeal is from an order of Judge Fisher granting the Palumbo defendants’ motion for summary judgment. The action for breach of contract sought to recover sums due under a promissory note and the Palumbo defendants, the guarantors on the note, moved for summary judgment on the grounds that the interest rate was usurious.

Ruling: The supreme court erred in granting the motion. When the terms of the agreement are in issue and the evidence is conflicting, the lender is entitled to the presumption that the loan was not made at a usurious rate.

Frank G. Montemalo of Culley, Marks, Tanenbaum & Pezzulo LLP for the appellant

Citizen?

Taxpayer Action

Dillenburg v. State of New York

1122

Appealed from Supreme Court,

Chautauqua County

Background: In a citizen taxpayer action pursuant to State Finance Law [section]123-b, the supreme court granted the plaintiff’s motion for summary judgment. The plaintiff alleged the state has caused, is causing or is about to cause an unconstitutional disbursement of funds by paying taxes or payments in lieu of taxes on state-owned land to taxing authorities within the state while not making such payments on state-owned land situated elsewhere in the state. The trial court’s judgment enjoined the defendants from paying taxes or making payments in lieu of taxes to those taxing authorities while not paying taxes or making payments on similarly situated land. The plaintiff is a resident in the Town of Arkwright, where the state owns land upon which it does not pay taxes. The plaintiff argues that his equal protection rights under the New York State Constitution have been violated, effectively because he has a greater tax burden than taxpayers in other municipalities.

Ruling: The state has sovereign immunity from the obligation to pay taxes on land it owns; however, the immunity can be waived. Such a waiver is a matter of legislative discretion, not subject to an equal protection challenge. The lower court’s ruling is reversed and the complaint is dismissed.

Robert M. Goldfarb, assistant New York State Attorney General, for the appellants and Michael K. Bobseine of Brautigam & Brautigam LLP for the respondent

Nuisance

Vanderstow v. Acker

1146

Appealed from Supreme Court,

Ontario County

Background: The defendants appeal from the denial, in part, of their motion for summary judgment. The plaintiffs seek to recover damages for flooding on their property, which they allege was caused by a catch basin and pipe installed by the defendants, who owned property adjacent to the plaintiffs’ property. The defendants installed the catch basin and pipe in order to carry rainwater and melting snow over their property and into Honeoye Lake.

Ruling: The supreme court properly denied the parts of the defendants’ motion seeking dismissal of the causes of action for negligence and nuisance. The trial court rightly concluded that the improvements on the defendants’ land caused the surface water to be diverted, and artificial means were used to effect the diversion. The trial court erred, however, in failing to grant the part of the defendants’ motion seeking dismissal of the trespass cause of action since the defendants met their burden in establishing the lack of intent to intrude upon the plaintiffs’ property.

Keith D. Miller for the appellant, and Peter Rolph of Hall and Karz for the respondents

(c) 2008 Daily Record (Rochester, NY). Provided by ProQuest LLC. All rights Reserved.




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