Summaries of cases before the Court of Appealsare prepared by the Public Information Officefor background purposes only. The summariesare based on briefs filed with the Court. Forfurther information contact Gary Spencer at(518) 455-7711

State of New York Court of Appeals

To be argued Monday, November 14, 2011

No. 189 Matter of New York State Superfund Coalition, Inc. v New York StateDepartment of Environmental Conservation

The New York State Superfund Coalition, a not-for-profit corporation representing commercialowners of inactive hazardous waste disposal sites, filed this lawsuit in March 2007 to challengeregulations adopted by the State Department of Environmental Conservation (DEC) to implement theState Superfund Program. The Coalition contends that DEC, in promulgating regulations that set a goalof restoring hazardous waste sites to "pre-disposal conditions," exceeded its authority under Environmental Conservation Law § 27-1313(5)(d), which authorizes DEC to effect "a completecleanup" of Superfund sites.ECL 27-1313(5)(d) states, "The goal of any [Superfund] remedial program shall be a completecleanup of the site through the elimination of the significant threat to the environment posed by thedisposal of hazardous wastes at the site and of the imminent danger of irreversible or irreparabledamage to the environment caused by such disposal."One of the challenged regulations, 6 NYCRR 375-2.8(a), provides, "The goal of the program for a specific site is to restore that site to pre-disposal conditions, to the extent feasible. At a minimum, theremedy selected shall eliminate or mitigate all significant threats to the public health and to theenvironment presented by hazardous waste...." Another challenged regulation, 6 NYCRR 375-1.8(f)(9),refers to the "pre-disposal conditions" language.Supreme Court annulled both regulations as unauthorized. It said, "ECL 27-1313(5)(d)authorizes a 'complete cleanup' to the extent of the elimination 'of the significant threat' and 'of theimminent danger of irreversible or irreparable damage to the environment.' Had the Legislature wishedto return every inactive hazardous waste site to predisposal conditions, it could have stopped at 'acomplete cleanup'.... In ignoring the statutory definitions and goals, the revised regulation is anunlawful continuation by the DEC to equate 'hazardous waste' with 'significant threat'..., in that a returnto 'predisposal conditions' necessitates removal of all hazardous wastes, whereas the statute requiresonly the elimination 'of the significant threat' and 'of the imminent danger of irreversible or irreparabledamage to the environment .'"The Appellate Division, Third Department reversed that portion of the judgment and held that both regulations were valid. It said the authorizing statute "refers both to a complete cleanup of the siteand to the elimination of the significant threat to the environment. In our view, the language of thatstatute is ambiguous and DEC's interpretation of the remedial goal set forth in ECL 27-1313(5)(d), asarticulated in the current regulations, is reasonable. Of particular note is that 6 NYCRR 375-2.8(a)specifically references the goal that the remedy 'eliminate ... all significant threats' and limits therequirement of restoration to pre-disposal conditions 'to the extent [that such restoration is] feasible.'"For appellant Superfund Coalition: Thomas F. Walsh, Rochester (585) 295-4400For respondents DEC et al: Assistant Solicitor General Andrew B. Ayers (518) 474-0768

State of New York Court of Appeals

To be argued Monday, November 14, 2011

No. 222 Metropolitan Taxicab Board of Trade v The New York City Taxi & LimousineCommission

The Metropolitan Taxicab Board of Trade (MTBOT) and three taxi fleet operators -- MidtownCar Leasing Corp., Ronart Leasing Corp., and Linden Maintenance Corp. -- brought this suit tochallenge new rules affecting lease caps -- the maximum amount that medallion owners may chargedrivers per shift for use of a licensed cab. The rules were adopted by the New York City Taxi &Limousine Commission (TLC) in March 2009 to standardize leasing practices and prevent "predatoryleasing" by prohibiting medallion owners from charging drivers for sales taxes or other costs over andabove the lease cap; and to encourage the use of cleaner and more fuel efficient vehicles by settinghigher lease caps for such vehicles and by gradually reducing the caps for less efficient vehicles. In aseparate federal action, MTBOT and the fleet operators obtained a preliminary injunction preventingthe TLC from reducing lease caps for less efficient vehicles, but the petitioners continue in this case to press their challenge to the rules that bar owners from charging drivers for sales taxes above the amountof the lease cap. They argue that the restrictions on charges above the cap conflict with state tax laws by requiring fleet owners to pay sales taxes owed by cab drivers, and that the TLC acted arbitrarily byadopting the rules without considering the owners' costs.Supreme Court declared the TLC's actions were not arbitrary or contrary to law and dismissedthe suit. It said the City Charter permits, but does not require, the TLC to consider the fleet owners'costs in making its rate determinations; and it found "there is a sufficient factual basis" to support theCommission's actions.The Appellate Division, First Department affirmed, saying the City Charter grants the TLC broad authority "to amend its rules to provide that the statutory cap imposed on the amount charged bytaxicab fleet owners when leasing vehicles to taxi drivers may be altered on the basis of public policyconsiderations." "Furthermore," it said, "the TLC was authorized to amend its rules to provide thattaxicab lease amounts must be calculated so that sales and rental taxes owed by taxi drivers are includedwithin the amount of the applicable ... lease cap. The amendment is aimed at standardizing divergent practices regarding the payment of such taxes within the vehicle-for-hire industry, as demonstrated inthe record." It said the rule changes have a rational basis and "do not conflict with applicable provisions of the Tax Law."MTBOT and the fleet owners, which did not submit evidence of their costs and expenses at theTLC's hearing on the rule changes, argue the agency violated the City Charter and case law by alteringlease rates without considering the costs of the regulated industry. They also contend the rules conflictwith state tax laws, saying, "Because Sales Taxes are assessed on drivers (and owners are merely thetrustee for the funds), these taxes must be collected

in addition

to the lease charge (sales price), even if the lease charge is at the cap."For appellants MTBOT et al: Richard D. Emery, Manhattan (212) 763-5000For respondent TLC: Assistant Corporation Counsel Susan Paulson (212) 788-1362

State of New York Court of Appeals

To be argued Monday, November 14, 2011

No. 223 People v Joseph Hightower

Joseph Hightower was arrested in February 2009 by a transit police officer, who said he saw anunidentified person hand money to Hightower outside the turnstiles of a midtown Manhattan subwaystation. Hightower immediately swiped an unlimited ride MetroCard through a turnstile to allow theother person to pass through to the subway platform, the officer said, but Hightower remained outsidethe turnstiles. Hightower was charged in a misdemeanor complaint with, among other things, petitlarceny under Penal Law § 155.25. He pleaded guilty to that charge and was sentenced to time served.On appeal, he claimed the misdemeanor complaint was jurisdictionally defective because it didnot contain sufficient factual allegations to establish that he committed the crime. Penal Law§ 155.05(1) provides, "A person steals property and commits larceny when, with intent to depriveanother of property or to appropriate the same to himself or to a third person, he wrongfully takes,obtains or withholds such property from an owner thereof." Hightower argued there was no factualallegation that he took "property" from an "owner."Appellate Term, First Department affirmed. It said, "Even accepting defendant's contention thatthe sufficiency of the accusatory instrument should be evaluated under the standards that apply to amisdemeanor information despite his on the record waiver of the right to be prosecuted by aninformation..., we find the factual allegations set forth in the accusatory instrument to be sufficient for pleading purposes to establish a prima facie case that defendant committed petit larceny...."Hightower argues the conduct alleged in the complaint does not amount to petit larceny. Hesays, "Put simply, assuming appellant received money in exchange for swiping someone into thesubway system using an unlimited MetroCard, what 'property' was taken, and who was its 'owner'? TheMetroCard itself was presumably validly purchased, and its swipe gained access to a service, not property. The Metropolitan Transportation Authority cannot be considered the owner of the moneyvoluntarily given to appellant at the time of the swipe. That money received -- of an unknown amount -- represented only a possible future fare or a portion of one, and thus was never within the [MTA's] possession or control."For appellant Hightower: Adrienne Hale, Manhattan (212) 577-3576For respondent: Manhattan Assistant District Attorney John B.F. Martin (212) 335-9000