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24-1741_so.pdf DHARMVIR GEHLAUT,
Comm of Ed Decision No. 18,632
Petitioners' CPLR Article 78 found untimely as Petitioners failed to bring this proceeding within four-month statute of limitationsIn this proceeding pursuant to CPLR Article 78 seeking a court order to annul a determination of a Board of Education and two resolutions of the Board the Petitioners appealed a New York State Supreme Court order and judgment which dismissed such efforts by the Petitioners'.
The Appellate Division affirmed the Supreme Courts rulings with costs.
Petitioners had alleged that the Board of Education had violated the State Environmental Quality Review Act [SEQRA] and challenged the two resolutions of the Board.
Addressing the Supreme Court's rulings with respect to the Board's resolutions, the Appellate Division explained that "[u]nless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact."
Further, citing Matter of Velardi-Ward v New York State Dept. of Envtl. Conservation, 227 AD3d 1090, the Appellate Division noted "Such determination is final and binding when the decisionmaker arrives at a definitive position on the issue that inflicts an actual, concrete injury".
The Appellate Division noted that the instant proceeding was untimely as Supreme Court had "properly determined that the Petitioners failed to bring this proceeding to challenge the SEQRA determination within the requisite four-month statute of limitations, and the Petitioners' remaining contention was "improperly raised for the first time on" appeal and, in any event, without merit".
Click HERE to access the Appellate Division's decision posted on the Internet.
https://nycourts.gov/reporter/3dseries/2025/2025_04722.htm
2024-03028
(Index No. 521903/23)
[*1]Michael Currid, appellant, v City of New York, et al., respondents, et al., defendants.
Jimmy Wagner, Brooklyn, NY, for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York, NY (Richard Dearing, Rebecca L. Visgaitis, and Jennifer Lerner of counsel), for respondents.
DECISION & ORDER
In an action, inter alia, to recover damages for employment discrimination on the basis of religion in violation of the New York State Human Rights Law and the New York City Human Rights Law, the plaintiff appeals from an order of the Supreme Court, Kings County (Gina Abadi, J.), dated January 9, 2024. The order granted the motion of the defendants City of New York, Fire Department of the City of New York, and New York City Department of Health and Mental Hygiene pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them and denied the plaintiff's cross-motion pursuant to CPLR 3025(b) for leave to amend the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff was employed by the Fire Department of the City of New York as a firefighter from 1998 to 2022. In October 2021, the New York City Commissioner of Health and Mental Hygiene issued a mandate requiring all City employees to provide proof of COVID-19 vaccination by October 29, 2021 (hereinafter the vaccine mandate). Employees were able to apply for reasonable accommodations that would exempt them from the vaccine mandate. The plaintiff applied for such an accommodation based on his religion, which was denied on January 6, 2022. The plaintiff appealed that determination, which was subsequently denied on March 17, 2022. On April 19, 2022, the plaintiff retired, allegedly due to his refusal to submit to the COVID-19 vaccine because it conflicted with his religion.
Thereafter, the plaintiff commenced this action against, among others, the defendantsCity of New York, Fire Department of the City of New York, and New York City Department of Health and Mental Hygiene (hereinafter collectively the defendants), inter alia, to recover damages for employment discrimination on the basis of religion in violation of the New York State Human Rights Law (NYSHRL) (Executive Law § 296) and the New York City Human Rights Law (NYCHRL) (Administrative Code of the City of New York § 8-107). The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. The plaintiff cross-moved pursuant to CPLR 3025(b) for leave to amend the complaint. By order dated January 9, 2024, the Supreme Court granted the motion and denied the cross-motion. The plaintiff appeals.
On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the [*2]benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88; see Acala v Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., 222 AD3d 706, 707).
Both the NYCHRL and the NYSHRL prohibit employment discrimination on the basis of religion (see Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1002; Reichman v City of New York, 179 AD3d 1115, 1116). "A plaintiff alleging discrimination in employment in violation of the NYSHRL must establish that (1) she or he is a member of a protected class, (2) she or he was qualified to hold the position, (3) she or he suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination" (Ayers v Bloomberg, L.P., 203 AD3d 872, 874; see Acala v Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., 222 AD3d at 707; Reichman v City of New York, 179 AD3d at 1116-1117). "NYCHRL affords broader protections than the NYSHRL" (Alvarez v New York City Tr. Auth., 230 AD3d 541, 542; see Brouillard v Sunrun, Inc., 219 AD3d 560, 562). "Under the NYCHRL, the plaintiff must establish that she or he was subject to an unfavorable employment change or treated less well than other employees on the basis of a protected characteristic" (Ayers v Bloomberg, L.P., 203 AD3d at 874; see Acala v Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., 222 AD3d at 707). Additionally, the NYCHRL makes it "an unlawful discriminatory practice for an employer . . . to refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation," including religious accommodations (Administrative Code of the City of New York § 8-107[28][a]; see Matter of Smith v New York City Fire Dept., 239 AD3d 870; Matter of Marsteller v City of New York, 217 AD3d 543, 545).
Here, the plaintiff's conclusory assertions that the defendants discriminated against him based on religion were unsupported by sufficient factual allegations to state a cause of action under either the NYCHRL or the NYSHRL (see Shahid v City of New York, 231 AD3d 888; Acala v Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., 222 AD3d at 707-708; cf. Cagle v Weill Cornell Med., 680 F Supp 3d 428, 434-437 [SD NY]). Since the plaintiff failed to state a cause of action for discrimination, no cause of action lies for aiding and abetting discrimination (see Kelly G. v Board of Educ. of City of Yonkers, 99 AD3d 756, 758-759). In any event, the defendants cannot "be held liable for aiding and abetting [their] own [alleged] violation" of the NYCHRL and the NYSHRL (Perez v Y & M Transp. Corp., 219 AD3d 1449, 1451).
The plaintiff's third cause of action, seeking certain declaratory relief regarding the defendants' "policy and practice" with respect to "religious accommodations to [the defendants'] vaccine policies," is academic because the vaccine mandate was rescinded in February 2023 and no exception to the mootness doctrine is applicable here (see Matter of Ferrera v New York City Dept. of Educ., 230 AD3d 772, 774; Matter of New York City Mun. Labor Comm. v Adams, 222 AD3d 437, 438).
With respect to the fourth cause of action, alleging a "violation of the Free Exercise Clause of the New York Constitution," the plaintiff has no private right of action to recover damages for violations of the New York State Constitution, since the alleged wrongs could be redressed by alternative remedies, including those pursued under the NYCHRL and the NYSHRL in this action (see Martinez v City of Schenectady, 97 NY2d 78, 83; Berrio v City of New York, 212 AD3d 569, 569; Peterec v State of New York, 124 AD3d 858, 859).
With respect to the fifth cause of action, alleging intentional infliction of emotional distress, public policy bars such a claim against governmental entities (see Shahid v City of New York, 208 AD3d at 1381; Ball v Miller, 164 AD3d 728, 730; Crvelin v Board of Educ. of City Sch. Dist. of City of Niagara Falls, 144 AD3d 1649, 1650).
With respect to the seventh cause of action, alleging "constructive termination," "[a]n employee is constructively discharged when her or his employer, rather than discharging the plaintiff directly, deliberately created working conditions so intolerable that a reasonable person in the plaintiff's position would have felt compelled to resign" (Golston-Green v City of New York, 184 AD3d 24, 44; see Blackman v Metropolitan Tr. Auth., 206 AD3d 602, 604). Here, the plaintiff's conclusory allegations were insufficient to show an intolerable work environment that would lead [*3]a reasonable person in the plaintiff's position to feel compelled to resign (see Dhar v City of New York, 204 AD3d 976, 977; cf. Golston-Green v City of New York, 184 AD3d at 44-45).
Accordingly, the Supreme Court properly granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.
Further, the Supreme Court providently exercised its discretion in denying the plaintiff's cross-motion pursuant to CPLR 3025(b) for leave to amend the complaint on the ground that the proposed amendments were patently devoid of merit (see Singh v T-Mobile, 232 AD3d 662, 667; Precious Care Mgt., LLC v Monsey Care, LLC, 221 AD3d 922, 924; Derago v Ko, 189 AD3d 1352, 1353).
The plaintiff's remaining contentions either are without merit or need not be reached in light of our determination.
CONNOLLY, J.P., MILLER, VOUTSINAS and HOM, JJ., concur.
https://nycourts.gov/reporter/3dseries/2025/2025_04702.htm
PRESENT: LINDLEY, J.P., MONTOUR, OGDEN, GREENWOOD, AND NOWAK, JJ.
459 CA 24-02026
[*1]JOHN PATRICK WINTER, PLAINTIFF-APPELLANT, v TOWN OF NEW HARTFORD CENTRAL SCHOOL DISTRICT, BOARD OF EDUCATION OF TOWN OF NEW HARTFORD CENTRAL SCHOOL DISTRICT, COSIMO TANGORRA, JR., ED.D., SCOTT GAFFNEY, DIRECTOR OF TRANSPORTATION, MARY MANDEL, ASSISTANT SUPERINTENDENT, DEFENDANTS-RESPONDENTS, ET AL., DEFENDANTS. (APPEAL NO. 2.)
NORMAN P. DEEP, CLINTON, FOR PLAINTIFF-APPELLANT.
FERRARA FIORENZA PC, EAST SYRACUSE (CHARLES C. SPAGNOLI OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Appeal from a judgment of the Supreme Court, Oneida County (James P. McClusky, J.), entered October 22, 2024 in an action seeking damages for employment discrimination and violation of the Human Rights Law. The judgment dismissed the amended complaint.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the motion is denied, and the amended complaint is reinstated.
Memorandum: Plaintiff, a bus driver previously employed by defendant Town of New Hartford Central School District (District), commenced this action seeking, among other things, to recover damages based on allegations that defendant violated the Human Rights Law (Executive Law § 290 et seq.) by engaging in age discrimination against him, and violated article 1, § 8 of the New York State Constitution by retaliating against him for, among other things, complaining about failures to follow certain safety precautions. Prior to the commencement of this action, the District had terminated plaintiff's employment, and thereafter plaintiff's union filed a grievance on his behalf. The matter ultimately proceeded to arbitration to determine whether the District had just cause to discipline plaintiff under the terms of the collective bargaining agreement between the District and plaintiff's union and, if so, whether termination or some other discipline was appropriate. The arbitrator concluded, following a hearing, that the District had just cause to terminate plaintiff.
While the arbitration was pending, plaintiff commenced this action. Prior to discovery, defendants-respondents (defendants) moved for, among other things, summary judgment dismissing the amended complaint. In support of the motion, defendants argued that plaintiff's claims were collaterally estopped as a result of the arbitration award. Supreme Court effectively agreed with defendants and granted the motion insofar as it sought summary judgment. Plaintiff appeals from the judgment dismissing the amended complaint, and we reverse.
We conclude that the court erred in granting the motion to the extent that it sought summary judgment based upon the application of collateral estoppel. It is well settled that there are " 'but two necessary requirements for the invocation of the doctrine of collateral estoppel. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling' " (Zoeller v Lake Shore Sav. Bank, 140 AD3d [*2]1601, 1602 [4th Dept 2016]). "The party seeking to invoke collateral estoppel has the burden of showing the identity of the issue, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate" (Bonner v Lynott, 203 AD3d 1526, 1531 [3d Dept 2022]; see Bielby v Middaugh, 120 AD3d 896, 898-899 [4th Dept 2014]).
Here, defendants failed to establish identity of issue necessary for application of that doctrine inasmuch as "the arbitration proceeding concerned whether the allegedly unlawful actions by [the District] violated the collective bargaining agreement between [the] union and the District" and did not address plaintiff's claims of discrimination or retaliation (Matter of Kruse v New York State Div. of Human Rights, 85 AD3d 1609, 1609 [4th Dept 2011]; see Mouscardy v Consolidated Edison Co. of N.Y., Inc., 185 AD3d 579, 581 [2d Dept 2020]). We therefore reverse the judgment, deny the motion, and reinstate the amended complaint. Plaintiff's remaining contentions are academic in light of the foregoing.
https://nycourts.gov/reporter/3dseries/2025/2025_04344.htm
PRESENT: CURRAN, J.P., BANNISTER, DELCONTE, AND HANNAH, JJ.
480 CA 24-00817
[*1]REBECCA J. KLYMN, PLAINTIFF-APPELLANT, v SUPREME COURT, MONROE COUNTY, UNIFIED COURT SYSTEM OF STATE OF NEW YORK, OFFICE OF COURT ADMINISTRATION AND OFFICE OF THE MANAGING INSPECTOR GENERAL FOR BIAS MATTERS, DEFENDANTS-RESPONDENTS.
LAW OFFICE OF LINDY KORN, PLLC, BUFFALO (LINDY KORN OF COUNSEL), AND LAW OFFICE OF ANNA MARIE RICHMOND, BUFFALO, FOR PLAINTIFF-APPELLANT.
DAVID NOCENTI, OFFICE OF COURT ADMINISTRATION, NEW YORK CITY (PEDRO MORALES OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Appeal from an order of the Supreme Court, Erie County (Michael Siragusa, A.J.), entered April 30, 2024. The order granted defendants' motion to dismiss plaintiff's complaint.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.
Memorandum: Plaintiff, the former secretary to a former New York State Supreme Court Justice, commenced this action against Supreme Court, Monroe County, Unified Court System of the State of New York, Office of Court Administration, and Office of the Managing Inspector General for Bias Matters (collectively, defendants) alleging, inter alia, that defendants discriminated against her on the basis of sex in violation of the Human Rights Law ([NYSHRL] Executive Law § 290 et seq.), in relation to alleged sexual abuse and harassment of plaintiff by the former Justice. Plaintiff now appeals from an order that, inter alia, granted defendants' pre-answer motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) and (c) on the grounds that, inter alia, plaintiff was not defendants' employee and therefore defendants were not liable under the NYSHRL. We reverse the order, deny the motion, and reinstate the complaint.
Initially, absent from the record is any indication that Supreme Court, Erie County, provided adequate notice to the parties that it was treating defendants' motion as one for summary judgment and we therefore review plaintiff's contentions in the context of a motion to dismiss pursuant to CPLR 3211 (a) (7) (see CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Ward v Guardian Indus. Corp., 17 AD3d 1100, 1101 [4th Dept 2005]; Costanza Constr. Corp. v City of Rochester, 135 AD2d 1111, 1111-1112 [4th Dept 1987]). Here, we agree with plaintiff that the complaint states a cause of action against defendants for a violation under the NYSHRL. "On a motion to dismiss pursuant to CPLR 3211 (a) (7), [this Court] must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff . . . the benefit of every possible favorable inference" (Van Ostrand v Latham, 222 AD3d 1382, 1383 [4th Dept 2023] [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87 [1994]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). "The court may also consider affidavits and other evidentiary material to establish conclusively that plaintiff has no cause of action" (Tauro v Gait, 158 AD3d 1261, 1262 [4th Dept 2018] [internal quotation marks omitted]). Additionally, as with the allegations of the complaint, this Court must accept as true plaintiff's submissions in opposition to the motion (see id.).
Supreme Court granted defendants' motion because it determined, inter alia, that "[t]he evidentiary proof conclusively establishes that . . . plaintiff was not the employee of any of the named defendants." Here, however, "accept[ing] the facts as alleged in the complaint as true [and] accord[ing] plaintiff[ ] the benefit of every possible favorable inference" (Stevens v Perrigo, 122 AD3d 1430, 1430 [4th Dept 2014] [internal quotation marks omitted]), we conclude that plaintiff sufficiently alleged that defendants were plaintiff's employers (see Griffin v Sirva, Inc., 29 NY3d 174, 186 [2017]; see State Div. of Human Rights v GTE Corp., 109 AD2d 1082, 1083 [4th Dept 1985]). "[T]he really essential element of the relationship is the right of control, that is, the right of one person, the master, to order and control another, the servant, in the performance of work by the latter" (Griffin, 29 NY3d at 186 [internal quotation marks omitted]; see also PB-20 Doe v St. Nicodemus Lutheran Church, 228 AD3d 1233, 1234 [4th Dept 2024]). We conclude that plaintiff sufficiently alleged an employment relationship by alleging factors including that defendants paid plaintiff's salary (see GTE Corp., 109 AD2d at 1083) and had the power to control plaintiff's conduct (see generally PB-20 Doe, 228 AD3d at 1234-1235).
https://nycourts.gov/reporter/3dseries/2025/2025_04351.htm
ALJ Jonathan Fogel recommended dismissing a positive drug test charge against a TLC licensee after the licensee successfully raised the affirmative defense of innocent ingestion. TLC alleged that the licensee was unfit to retain a TLC driver’s license after he tested positive for the presence of cocaine. The licensee attributed the positive test to coca tea he drank the evening before his drug test to cure a stomachache. The ALJ credited the licensee’s testimony regarding his consumption of the tea, and further credited his corroborating evidence, including photographs of the coca tea packaging and medical journal excerpts explaining how coca tea is consumed in many South American countries and contains significant amount of cocaine and cocaine-related alkaloids. The ALJ found that the licensee met his burden of proof and TLC failed to counter the licensee’s evidence that he reasonably believed the product was lawful and that it caused him to test positive for the presence of cocaine. As a result, the ALJ found that the licensee was fit to possess a TLC driver’s license and recommended dismissing the charge. Taxi & Limousine Comm’n v. Farfan, OATH Index No. 2287/25 (July 21, 2025).
Contracts
The Contract Dispute Resolution Board, chaired by ALJ Faye Lewis, denied a contractor’s request for additional compensation under a contract with the Department of Design and Construction (“DDC”) for the reconstruction of a storm sewer. The contractor sought additional compensation for overrun contract materials that DDC argued were already included in a lump sum bid item but that the contractor asserted should be billed as separate line items. The Board found that the contractor waived its claim by failing to reserve the claim in time extension requests submitted after the contractor filed its Notice of Dispute with DDC. The contractor argued that the claim did not arise, and therefore could not be waived, until the Comptroller assigned the dispute a claim number upon receipt of the contractor’s Notice of Claim, which was submitted after the filing of the extension requests. The Board disagreed, holding that the contract required the contractor to reserve all potential claims of which it has notice and that the submission of the Notice of Dispute demonstrated such notice. Accordingly, the Board did not reach the merits of the dispute and denied the petition. D’Onofrio General Contractors Corp. v. Dep’t of Design & Construction, OATH Index No. 174/25, mem. Dec. (July 17, 2025).
Excessive fines
| City of New York v Jones |
| 2025 NY Slip Op 04842 |
| Decided on September 04, 2025 |
| Appellate Division, First Department |
| Gesmer, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Cynthia S. Kern
Peter H. Moulton Barbara R. Kapnick Ellen Gesmer Bahaati E. Pitt-Burke
Index No. 450209/21|Appeal No. 3706|Case No. 2023-02410|
v
Thomas Stevenson Jones et al., Defendants-Respondents, Jane Doe(s) 1-5, et al., Defendants.
Plaintiff appeals from an order of the Supreme Court, New York County (Nicholas W. Moyne, J.), entered April 12, 2023, which denied its motion for summary judgment and set the matter down for a hearing.
Muriel Goode-Trufant, Corporation Counsel, New York (Tahirih M. Sadrieh and Jamison Davies of counsel), for appellant.
In late 2020, a New York City Department of Health inspector issued summonses to defendant Thomas Stevenson Jones for food vending without a license from his truck, selling food from an unapproved or unknown source, and not having food service operations separated from living or sleeping quarters in the vehicle. At a subsequent hearing before the Office of Administrative Trials and Hearings (OATH), Jones admitted to these violations and OATH imposed fines on him totaling $2,600.
The City then commenced this proceeding in Supreme Court pursuant to Administrative Code of City of NY §§ 17-321(c) and 17-322 to seize and order forfeiture of Jones' truck. Administrative Code § 17—321(a) permits both public health officials and the police to enforce food vending codes. Section 17-321(c)(iii) permits police or public health officials to seize a food vending vehicle being used by an unlicensed vendor and any food being offered for sale. If forfeiture proceedings are not commenced, the vendor may be charged with the "reasonable costs for removal and storage payable prior to the release of such food, vehicle or pushcart." Section 17—322(a) provides for forfeiture of "all property seized" from unlicensed food vendors "[i]n addition to any penalties imposed" pursuant to Section 17-325. Section 17-325(a) provides that vending food without a license is a misdemeanor punishable by a fine of up to $1,000, imprisonment for up to three months, or both. Section 17-325(c) provides for additional fines for unlicensed food vendors.
The motion court denied the City's motion for summary judgment on the grounds that there are questions of fact as to: (1) whether the forfeiture provision at issue is punitive in nature; and (2) whether the value of the property seized is so disproportional to the fines imposed and any harm to society that it violates the excessive fines clauses of the New York and United States Constitutions.[FN1] We now affirm.
This case is controlled by the decision of the Supreme Court in Timbs v Indiana (586 US 146 [2019]) which held that the Federal excessive fines clause applies to the states, and the Court of Appeals' decision in County of Nassau v Canavan (1 NY3d 134 [2003]), which held that both the Federal and State excessive fines clauses apply to civil in rem forfeitures. Both Timbs and Canavan held that civil in rem forfeitures are subject to the protection of the excessive fines clause when they are at least partly punitive (Timbs, 586 USat 151 [excessive fines clause "limits the government's power to extract payments, whether in cash or in kind, as punishment for some offense" (internal quotation marks omitted)]; see also Canavan, 1 NY3d at 139). When forfeiture "serves, at least in part, deterrent and retributive purposes," it is punitive (Canavan, 1 NY3d at 139-140).
"[F]orfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment" (Austin v United States, 509 US 602, 618 [1993]). That determination can be based on the presence of many factors, some of which are present here. In particular, courts have found forfeiture to be at least partially punitive where it is tied directly to commission of a criminal offense; where possession of the forfeited property itself is not a crime, so that removing it from the owner's possession serves no remedial public health or safety purpose; where there are dramatic variations in the value of forfeitable property; where the value of the forfeited property does not correlate with any harm caused to society or the cost of enforcement; and where forfeiture has been characterized as a deterrent (see Austin, 509 US at 620-621; see also Prince v City of New York, 108 AD3d 114, 120 [1st Dept 2013] [civil penalty that bore no relationship to the loss sustained by the City, and was referred to as a "deterrent" in legislative history was punitive]). In addition, this Court has held that where, as here, the activity subject to civil sanction is completely barred, the sanction is punitive (see Prince, 108 AD3d at 121). The City correctly points out that the inclusion of an innocent owner exception, which the statutes at issue here lack, can be an indicator of punitive forfeiture (see Austin, 509 US at 619). However, its absence is not fatal to a determination that the forfeiture here is at least partially punitive (see id. at 610).
The forfeiture provisions at issue here are tied to the commission of a misdemeanor and enforceable by police (Administrative Code § 17-325[a]). Indeed, the plain language of Section 17-322(a) indicates that forfeiture is a punishment for unlicensed food vendors "in addition to" the other penalties listed in section 17-325 (see Austin, 509 US at 620-621).
However, possession of the forfeited property here is not itself a crime. Accordingly, removing it from the owner's possession serves no apparent remedial purpose with regard to public health or safety (id. at 621 ["there is nothing even remotely criminal in possessing an automobile" (internal quotation marks omitted)]).
Jones' claim that the forfeited vehicle is worth $40,000 demonstrates that the statute at issue here provides for forfeiture of property that may have "dramatic variations in the value," calling into question whether its forfeiture serves a purely remedial purpose or is at least partly punitive (id. at 621). Moreover, since the statute already provides that the City may charge the unlicensed food vendor whose property has been seized "reasonable costs for removal and storage payable prior to the release of such food, vehicle or pushcart" (Administrative Code § 17-321[c][iii]), forfeiture of the vehicle appears to have little, if any, correlation to the cost of enforcement (see Austin, 509 US at 621; Canavan, 108 AD3d at 120).
Finally, there is some indication in the statutory history of the forfeiture provision of the food vending laws that it was, at least in part, intended to serve the traditionally punitive goal of deterrence (see Austin, 509 US at 620-621; Prince, 108 AD3d at 120-121). The relevant sections of the food vending laws were enacted in 1977 (Formerly § D22-16.0, Local Law 77/1977 § 2) to address complaints from City officials, private business owners, and the public that street vendors operated without a license, which caused them not to be subject to taxation by the City, and clogged the sidewalks. The legislation provided for regulation of food vendors by the Department of Public Health for the first time "with emphasis on inspections and safety of the food, cart, stand or vehicle, and its placement" (Proceedings of Council of City of N.Y., July 7 to December 29, 1977, Vol. II at 1453-1454). It strengthened enforcement by increasing fines for violations and by directing, for the first time, forfeiture of vehicles, carts, and goods upon a determination of unlicensed vending (Administrative Code § 17—322(a) [Formerly § D22-17.0, Local Law 77/1977 § 2]). On September 22, 1976, Mayor Beame's administration and the City Council issued a joint press release supporting the legislation "aimed at driving an estimated 10,000 illegitimate peddlers from the city's streets" through "severe penalties, including . . . fines, forfeiture of goods and even prison terms for unlicensed peddlers" (NYLS Local Law No. 77 [1977] of City of New York at 26). At the public hearing on the bill, Sidney Baumgarten, who was then the special assistant to Mayor Beame and head of the Mid-town Taskforce, stated that seizure of merchandise, increased fines and jail terms for unlicensed vendors were important "deterrent[s]" (id., vol 3 at 21 ["Police Challenged on Peddler's Law," New York Times, October 7, 1976, page 51]). Community Board 10 held its own hearing and then issued a resolution recommending that the forfeiture provision be replaced with a provision providing for the return of property to the vendor upon presentation of a license because the legislation already provides for fines and imprisonment and "there is no need for double punishment" (id. at 140). The Statement on Behalf of the Frankfurter Vending Industry on the proposed bill stated that the forfeiture provisions "are harsh, unduly punitive, and unnecessary for any legitimate purpose," such as "preserving public health," and it is "clear . . . that any seizure or forfeiture is unrelated to evidentiary or other prosecutorial needs and is merely an excuse for imposing a more severe penalty upon the vendor" (id. at 93, 98-99, 109). Thus, the legislative history of the food vending forfeiture statute indicates that it was intended to completely prohibit unlicensed food vendors through the imposition of forfeiture as a deterrent, making clear that the forfeiture provision was at least partly punitive (see Austin, 509 US at 620; Prince, 108 AD3d at 121).
Here, as the motion court found, Jones raised questions of fact as to whether the forfeiture of his truck "is, at least in part, punitive and meant as a deterrence, rather than simply remedial." The City states that the forfeiture provision at issue is "designed to protect public health, safety, and welfare by ensuring compliance." However, a penalty that ensures compliance through forfeiture, in the absence of any threat to public health, safety or welfare, suggests that it serves the goal of deterrence, which "has traditionally been viewed as a goal of punishment" (United States v Bajakajian, 524 US 321, 329 [1998]). Here, the motion court found that the Health Department never sought to test any of the items being sold to determine if their contents posed a danger to the public, there was no evidence the Health Department ever received any complaints about Jones selling spoiled or tainted food, there was no evidence that the Health Department had decided that public safety required forfeiture of the vehicle, and there was no evidence that there were any "victims" of the sale of items from the vehicle or that the proceeds of the forfeiture would be distributed to them. Accordingly, the City failed to establish, as a matter of law, that forfeiture under Administrative Code §§ 17-321(a), (c)(iii), and 17-322(a) was purely remedial. In any event, Jones raised issues of fact as to whether the forfeiture was, at least in part, punitive, and thus subject to the excessive fines clauses of the New York and US Constitutions.
A "punitive forfeiture violates the Excessive Fines clause if it is grossly disproportional to the gravity of a defendant's offense" (Bajakajian, 524 US at 334; see also Canavan, 1 NY3d at 140). In determining gross disproportionality, the Court of Appeals has held that courts should consider "such factors as the seriousness of the offense, the severity of the harm caused and of the potential harm had the defendant not been caught, the relative value of the forfeited property and the maximum punishment to which defendant could have been subject for the crimes charged, and the economic circumstances of the defendant" (Canavan, 1 NY3d at 140; see also Property Clerk, NY City Police Dept v Nurse, 185 AD3d 459, 460-461 [2020]).
Here, Jones asserts that the vehicle is worth approximately $40,000. In contrast, the fines total just $2,600. Jones further asserted in his affidavit that the City's possession of his vehicle had caused him "extreme financial hardship" and prevented him from operating his business lawfully in places outside of New York City that do not require a food vending license. There is no evidence that the sale of the items at issue did cause or could have caused any harm. Therefore, Jones also raised issues of fact as to whether imposing a forfeiture on his property, which had a value far in excess of both the fines imposed and any damage to society, violated the excessive fines clauses of the New York State and US Constitutions.
The City relies on this Court's one-paragraph order in City of New York v Nadler (304 AD2d 491 [1st Dept 2003]). However, that case, decided seven months before Canavan and 16 years before Timbs, does not address at all whether forfeiture of a food vendor's vehicle for violation of local vending codes violates the excessive fines clause of the New York or US Constitutions. Thus, Nadler does not prevent us from considering these constitutional issues under now prevailing excessive fines clause jurisprudence.
In Nadler, the motion court denied the City's motion for summary judgment seeking forfeiture of a licensed food vendor's cart based on a violation of the Administrative Code's provision requiring that the person selling food from the cart be a licensed food vendor. The motion court granted the vendor's motion for summary judgment in his favor, denying forfeiture and directing return of his cart. This Court reversed, granted the City's motion for summary judgment, and held that "mandatory and unqualified" language in the Administrative Code provisions leaves courts with "no discretionary authority" to direct return of the cart (Nadler, 304 AD2d at 491). In making this finding, this Court quoted Property Clerk of New York City Police Dept v Ferris (77 NY2d 428, 431 [1991]) as to the mandatory nature of the statutory language. In Ferris, the vendor did not claim that the forfeiture violated the excessive fines clause.
The only other case this Court cited in Nadler is Henry v Alquist (127 AD2d 60, 64 [2d Dept 1987]). In Alquist, the court held that the statutory language at issue was mandatory, as this court did in Nadler. The Alquist trial court found that civil forfeiture under the New York State Public Health Law of Ms. Alquist's car used in the sale of a controlled substance that resulted in her criminal conviction was "excessive." On appeal, without discussing any cases interpreting the state or federal excessive fines clauses, the Second Department reversed based on the mandatory language in the civil forfeiture statute at issue.[FN2] The Second Department further stated, "[t]o the extent that the trial court's determination may be interpreted as a holding that the forfeiture sanction in this case would violate the State and Federal constitutional proscriptions against cruel and unusual punishment . . . we find it to be in error," noting that the civil forfeiture was "separate from any criminal penalties that may be imposed upon any of the individuals involved in the drug transactions" (Alquist, 127 AD2d at 65). The Second Department further stated, "[t]his . . . is not to say that under no circumstances may a court deem the forfeiture statute unconstitutional as applied in a particular case" (id.).
Like Nadler, Alquist was decided before the Court of Appeals' decision in Canavan, which held that a civil in rem forfeiture is subject to the New York and federal excessive fines clauses where it is at least partly punitive (see Canavan, 1 NY3d at 140). Canavan relied heavily on the U.S. Supreme Court's opinion in Austin, which held that "civil proceedings may advance punitive as well as remedial goals" (Austin, 509 US at 610), and that the civil classification of a forfeiture is irrelevant in determining whether it violates the federal excessive fines clause (id. ["the question is not . . . whether forfeiture . . . is civil or criminal, but rather whether it is punishment"]). Moreover, Alquist was decided before the U.S. Supreme Court opinions that today establish that the federal excessive fines clause is applicable to the states (Timbs, 586 US 146) and that forfeitures, whether brought against an individual criminally (see Bajakajian, 524 US 321) or in a civil in rem proceeding (see Timbs, 586 US 146; Austin, 509 US 602) as in Alquist, fall within the protection of the New York State and federal excessive fines clause when they are at least partially punitive (see Timbs, 586 US at 154; Bajakajian, 524 US at 321; Austin, 509 US at 619; Canavan, 1 NY3d at 139).
Accordingly, this Court's opinion in Nadler does not prevent us from addressing the constitutional issue of whether the civil forfeiture at issue here is subject to and violates the excessive fines clauses of the US and New York Constitutions in light of subsequent U.S. Supreme Court and Court of Appeals jurisprudence.
Jones' opposition to the City's motion raised material issues of fact requiring further proceedings, including the ordered hearing, in order to determine whether the civil forfeiture here is subject to the excessive fines clause of the US and New York Constitutions because it is not entirely remedial in nature, and serves, at least in part, deterrent and/or retributive purposes (see Canavan, 1 NY3d at 139-140), and whether, if the excessive fines analysis does apply, the forfeiture would be grossly disproportionate to the offense (see Property Clerk, N.Y. City Police Dept. v Nurse, 185 AD3d 459, 460-461 [1st Dept 2020]).
Accordingly, the order of Supreme Court, New York County (Nicholas W. Moyne, J.), entered April 12, 2023, which denied plaintiff City of New York's motion for summary judgment and set the matter down for a hearing, should be affirmed, without costs.
Order, Supreme Court, New York County (Nicholas W. Moyne, J.), entered April 12, 2023, affirmed, without costs.
Opinion by Gesmer, J. All concur.
Kern, J.P., Moulton, Kapnick, Gesmer, Pitt-Burke, JJ.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: September 4, 2025
Footnote 1: The US Constitution provides: "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted" (US Const 8th Amend [emphasis added]). The New York Constitution contains identical language (NY Const, art I, § 5).
Footnote 2: The only case dealing with any constitutional issue cited by the Second Department in Alquist was Calero-Toledo v Pearson Yacht Leasing Co. (416 US 663 [1974]). That case involved forfeiture of a yacht used unlawfully without the owner's knowledge in connection with criminal activity. However, Calero-Toledo did not address whether the forfeiture violated the excessive fines clause. Rather, it explored whether the forfeiture violated the innocent owner's due process rights under the fifth and fourteenth amendments to the US Constitution.