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Foreword to the Symposium: Current Issues in Disability Rights Law

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Touro Law Review 
Volume 13 Number 3 Article 12 
July 2019 
Double Jeopardy Supreme Court Appellate Division Second 
Department 
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Recommended Citation 
(2019) "Double Jeopardy Supreme Court Appellate Division Second Department," Touro Law Review: Vol. 
13 : No. 3 , Article 12. 
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DOUBLE JEOPARDY
defendant makes a limited motion for a mistrial with prejudice
and desires to proceed with the impaneled jury if the court grants
the mistrial without prejudice. Under both the federal and state
constitutions, the defendant has the right to have his trial before
the first jury, thereby maintaining primary control over the path
upon with to proceed. 62 The Second Circuit and the Ninth
Circuit Court of Appeals and New York have held that the
defendant would be deprived of that right if he is not allowed to
make a limited motion based on prosecutorial misconduct.
Additionally, New York law establishes that the right to make a
limited mistrial motion flows naturally from the well settled right
allowing the defendant to withdraw a mistrial motion before the
court grants the motion.63 Thus, both the federal and New York
state courts are making law to ensure that the double jeopardy
protection is not easily eroded.
SUPREME COURT, APPELLATE DIVISION
SECOND DEPARTMENT
People v. Boneta64
(decided October 21, 1996)
The defendant, William Boneta, was convicted of second and
third degree assault. 65 He appealed to the Appellate Division,
Second Department, claiming that the double jeopardy provisions
of the Federal 66 and New York State Constitutions67 precluded a
62. United States v. Dinitz, 424 U.S. 600, 609 (1976); People v.
Ferguson, 67 N.Y.2d 383, 388, 494 N.E.2d 77, 80, 502 N.Y.S.2d 972, 975
(1986).
63. Davis, 87 N.Y.2d at 555, 664 N.E.2d at 925, 641 N.Y.S.2d at 190.
64. 649 N.Y.S.2d 443 (2d Dep't 1996).
65. Id. at 443-44.
66. U.S. CONST. amend. V. The Fifth Amendment provides in pertinent
part: "No person shall... be subject for the same offense to be tvice out in
jeopardy of life and limb .... " Id.
67. N.Y. CONST. art I, § 6. This section provides in pertinent part: "No
person shall be subject to be twice put in jeopardy for the same offense . .. .
Id.
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retrial after a mistrial68 was granted by the trial court. 69 The
prosecutor moved for the mistrial after his only non-police
witness refused to testify, because the witness claimed that he
was threatened on two occasions by the "defendant or some
person acting on his behalf." 70
The court permitted a retrial on two theories. 7 1 First, "the
prosecutor made a sufficient showing that the refusal of its only
non-police witness to testify, after he was twice threatened, could
be factually attributed to the 'defendant or some person acting on
his behalf.' 72  Second, the witness' evidence was not merely
corroborative but "he possessed important evidence that no one
else could offer." 73
In its holding, the Boneta court adhered to the rule set forth by
the Supreme Court in United States v. Perez74 that stated
"[w]hen a court grants a mistrial without the consent of or over
68. Boneta, 649 N.Y.S.2d at 444. See N.Y. CRIM. PROC. LAW § 280.10
(McKinney 1993). Section 280.10 states in pertinent part:
At any time during the trial, the court must declare a mistrial and order
a new trial of the indictment...
2. Upon motion of the people, when there occurs during the trial,
either inside or outside the courtroom, gross misconduct by the
defendant or some person acting on his behalf, . . . resulting in
substantial and irreparable prejudice to the people's case.
Id.
69. Boneta, 649 N.Y.S.2d at 444.
70. Id.
71. Id.
72. Boneta, 649 N.Y.S.2d at 444. See also People v. Paquette, 31
N.Y.2d 379, 380-81, 292 N.E.2d 17, 18, 339 N.Y.S.2d 959, 960 (1972)
(holding that a retrial is permitted when the prosecutor's inability to produce
witnesses was factually attributed to the defendant because of threats that he
made to witnesses); Grant v. Kreindler, 162 A.D.2d 531, 532, 556 N.Y.S.2d
727, 728 (2d Dep't 1990) (holding that a retrial is permitted when the
prosecutor's inability to produce a witness was factually attributed to the
defendant's uncle).
73. Boneta, 649 N.Y.S.2d at 444. See, e.g., People v. Allen, 86 N.Y.2d
599, 606-07, 658 N.E.2d 1012, 1017, 635 N.Y.S.2d 139, 144 (1995) (Titone,
J., concurring) (finding that "the witness in question did, in fact, have
important evidence-i.e., a statement by defendant elucidating intent-that only
that witness was in a position to offer").
74. 22 U.S. 579 (1824).
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DOUBLE JEOPARDY
the objection of the defendant, the double jeopardy provisions..
. prohibit retrial for the same crime unless there was 'manifest
necessity' for the mistrial, or 'the ends of public justice would
otherwise be defeated.' " 75 This rule was followed by the New
York State Court of Appeals in People v. Ferguson.76
In Perez, the defendant was on trial for a capital offense. 77
The jury, however, unable to agree to a verdict, was discharged
by the court from giving a verdict in the case without the
permission of the defendant. 78 The Court held that because the
prisoner had never been convicted or acquitted, and was still able
to argue his defense, "the facts constitute[d] no legal bar to a
future trial. "79
In Illinois v. Somerville,80 the state was granted a mistrial,
despite the defendant's objection, when it realized that the
defendant's grand jury indictment for the crime of theft was
"fatally deficient" under state law. 8 1 Subsequently, the grand
jury cured the defect by providing the requisite intent and the
defendant was tried and convicted of theft. 82 The Court held that
a retrial did not violate the defendant's rights under the double
jeopardy provisions because "[a] trial judge properly exercises
his discretion to declare a mistrial if. . .a verdict of conviction
could be reached but would have to be reversed on appeal due to
an obvious procedural error in the trial." 83 The Court further
stated that "it would not serve 'the ends of public justice' to
require that the Government proceed with its proof when, if it
75. Id. at 580.
76. 67 N.Y.2d 383, 494 N.E.2d 77, 502 N.Y.S.2d 972 (1986).
77. Perez, 22 U.S. at 579.
78. Id.
79. Id. at 580.
80. 410 U.S. 458 (1973).
81. Id. at 459. The indictment was "fatally deficient" because "it did not
allege that [defendant] intended to permanently deprive the owner his property.
Under the applicable ... criminal statute, such intent is a necessary element of
the crime of theft, and failure to allege intent renders the indictment
insufficient to charge a crime." Id. (citation omitted).
82. Id.. at 460.
83. Id. at 464.
1997] 737
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succeeded before the jury, it would automatically be stripped of
that success by an appellate court." 84
In Oregon v. Kennedy, 85 the Supreme Court acknowledged the
existence of the Perez rule, but recognized its inapplicability to
the facts of this specific case. 86 In Oregon, the defendant moved
for a mistrial. 87 Here, because "the defendant himself ha[d]
elected to terminate the proceedings against him . . . the
'manifest necessity' standard ha[d] no place in the application of
the Double Jeopardy Clause." 88
New York State has also adopted the rule from Perez. In
People v. Ferguson,89 the defendant's first trial was terminated
when the judge declared a mistrial when the defendant was not
present in court The mistrial came as a result of an automobile
accident that injured one of the jurors; there were no alternates
available. 90 Defense counsel claimed that he had not given his
"unqualified consent" to the mistrial and moved to dismiss the
indictment prior to the second trial based on the defendant's
double jeopardy right. 9 1 The motion was denied, and, following
the second trial, the defendant was convicted of second degree
murder. 92 The New York State Court of Appeals held that there
was no "manifest necessity" for the judge to declare a mistrial. 93
Instead, the judge should have inquired "as to how long the juror
would remain unavailable." 94  In addition, the judge never
ascertained the extent of the juror's injuries.95 Since the
Ferguson court believed that it might have been possible for the
84. Id.
85. 456 U.S. 667 (1982).
86. Id. at 672.
87. Id. at 669.
88. Id. at 672.
89. 67 N.Y.2d 383, 494 N.E.2d 77, 502 N.Y.S.2d 972 (1986).
90. Id. at 386, 494 N.E.2d at 79, 502 N.Y.S.2d at 974.
91. Id. at 387, 494 N.E.2d at 79, 502 N.Y.S.2d at 974.
92. Id. at 386, 494 N.E.2d at 78, 502 N.Y.S.2d at 974.
93. .Id. at 388, 494 N.E.2d at 80, 502 N.Y.S.2d at 975.
94. Id.
95. Id.
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DOUBLE JEOPARDY
juror to have continued after a short amount of time, 96 a brief
continuance could have been a viable alternative to a mistrial. 97
The New York State Court of Appeals did, however, hold that
there was "manifest necessity" for the judge to declare a mistrial
in People v. Paquette.98 In Paquette, the prosecution was unable
to produce its witnesses because of threats made to the witnesses
by the defendant's uncle. 99 The court reasoned that "[i]f the act
of a defendant himself aborts a trial, he ought not readily be
heard to say that by frustrating the trial he had succeeded in
erecting a constitutional shelter based on double jeopardy." 100
It is clear from the aforementioned federal and state cases that
the rules governing when a retrial is prohibited pursuant to the
federal and state Double Jeopardy Clauses are clearly congruous
in their application. Both courts will preclude a retrial when a
mistrial is granted by the court without the consent of or over the
objection of the defendant "unless there was a 'manifest
necessity' for the mistrial, or 'the ends of public justice would
otherwise be defeated."' 10 1
People v. MayI02
(decided June 10, 1996)
Defendant, Nathan May, was convicted in 1988 of murder in
the second degree, attempted murder in the second degree and
assault in the first degree.103 He was sentenced to consecutive
96. Id.
97. Id.
98. 31 N.Y.2d 379, 380, 292 N.E.2d 17, 18, 339 N.Y.S.2d 959. 960
(1972).
99. Id.
37. Id.
101. See Perez, 22 U.S. at 580; Boneta, 649 N.Y.S.2d at 443.
102. 644 N.Y.S.2d 525 (2d Dep't 1996).
103. Id. at 526. The New York statute for murder in the second degree is
embodied in New York Penal Law § 125.25. N.Y. PEAL LAW § 125.25
(McKinney 1996). The New York statute for assault in the first degree is
1997] 739
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et al.: People v. Boneta (decided October 21, 1996)
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Double Jeopardy Supreme Court Appellate Division Second Department

Supreme Court Queens County

Due Process People v. Scott (decided June 5, 1996)

Due Process Supreme Court Appellate Division Third Department

Touro Law Review 
Volume 13 Number 3 Article 21 
July 2019 
Due Process Supreme Court Rockland County 
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Recommended Citation 
(2019) "Due Process Supreme Court Rockland County," Touro Law Review: Vol. 13 : No. 3 , Article 21. 
Available at: https://digitalcommons.tourolaw.edu/lawreview/vol13/iss3/21 
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more information, please contact lross@tourolaw.edu. 
DUE PROCESS
SUPREME COURT
ROCKLAND COUNTY
United States Trust Co. of New York v. Town of Ramapo 3 18
(decided July 3, 1996)
Plaintiff, United States Trust Company of 'New York, as
mortgagee, sought a declaratory judgment against Defendant, the
State of New York, to hold the Board of Appeals of the Town of
Ramapo [hereinafter referred to as "Town"] liable for failing to
provide actual notice of the hearing for a demolition permit. The
plaintiff alleged that the Town's failure to provide actual notice
of a hearing regarding a demolition permit violated both the
Federal3 19 and New York State320 Constitutional guarantees of
Due Process. 32 1 Procedural due process requires a process
whereby the parties, whose rights are to be affected, are entitled
to be heard. 322 The New York State Supreme Court, Rockland
County, held that due process, pursuant to federal and state law,
requires more than constructive notice for a variance application
where the Town Zoning Board of Appeals intended to grant the
application for demolition of the building on the property to an
entity, as opposed to the owner of the property. 323 Subsequently,
the Supreme Court found the demolition permit "void ab
318. 168 Misc. 2d 931, 645 N.Y.S.2d 396 (Sup. Ct, Rockland County
1996).
319. U.S. CONST. amend. V. The Fifth Amendment provides in pertinent
part: "No person shall... be deprived of life, liberty, or property, without
due process of law .... " Id.; U.S. CONST. amend. XIV. § 1. The
Fourteenth Amendment provides in pertinent part: " [N]or shall any State
deprive any person of life, liberty, or property, without due process of
law... . " Id.
320. N.Y. CONST. art. I, § 6. This section provides in pertinent part: "No
person shall be deprived of life, liberty or property without due process of
law." Id.
321. U.S. Trust, 168 Misc. 2d at 932, 645 N.Y.S.2d at 396.
322. Id. at 933, 645 N.Y.S.2d at 397.
323. Id. at 935, 645 N.Y.S.2d at 398-99.
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initio.' ' 324  Plaintiffs application for summary judgment,
however, was denied because the issue could not be determined
based upon the papers that the plaintiff submitted.
325
Plaintiff held a mortgage on property located in Monsey, New
York. 326 The mortgage was executed when the property was
certified as a one-family home located on one-third of an acre. 32 7
Defendant, not the owner of record of the property, applied to
the Town to build a house of worship on the property. 32 8
Defendant, who was denied the application, sought a variance
and advised the Zoning Board that "the existing building would
have to be demolished" prior to erecting a new building. 329 The
Zoning Board sent notice to neighboring property owners through
the mail, posted a notice on the premises and placed notice in the
local newspaper regarding the variance. 330 Subsequently the
variance granting demolition, was issued. 331 The one-family
house was then demolished and construction began on the house
of worship. 332 Plaintiff, however, contended that "the Town's
method of giving notice was insufficient to [provide] proper
notice to a mortgagee[,]" thereby substantially impairing the
mortgagee's security interest in the property.333
324. Id. at 935, 645 N.Y.S.2d at 399 (noting that the town's failure to
notify plaintiff of the hearing deprived plaintiff of an opportunity to be heard,
therefore, the demolition permit was declared "void ab initio"). "Void ab
initio" is defined as "[n]ull from the beginning if it seriously offends law or
public policy in contrast to a contract which is merely voidable at the election
of one of the parties to the contract." BLACK'S LAW DICTIONARY 1574 (6th ed.
1990).
325. U.S. Trust, 168 Misc. 2d at 935, 645 N.Y.S.2d at 399.
326. Id. at 932, 645 N.Y.S.2d at 397.
327. Id.
328. Id.
329. Id.
330. Id.
331. Id.
332. Id.
333. Id. (finding that proper notice would have given the plaintiff an
opportunity to be heard regarding his security interest in building on the
premises. Instead, the plaintiff was never given notice and was thus deprived
of his security interest. The plaintiff, without proper notice, was unaware of
the demolition permit regarding land on which plaintiff had a security interest.
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DUE PROCESS
The court began its analysis by stating that the Due Process
Clause of both the Federal and New York State Constitutions
require, prior to an action that will affect a property interest
protected by the Due Process Clause of the Fourteenth
Amendment, a state to provide notice of the pending action. 334
The notice requirement must convey the required information and
afford the interested parties reasonable time to make an
appearance. 335 In Mullane v. Central Hanover Bank & Trust
Conany,336 the United States Supreme Court embraced a
standard: "[a]n elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is
notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections." 337 Notice may
be satisfied in various ways but it "[m]ust be of such nature as
reasonably to convey the required information ... and it must
afford a reasonable time for those interested parties to make their
appearance."338 If this standard is met, then the constitutional
requirement of due process is satisfied.
In Mullane, publication, which had traditionally been accepted
as notice, was found insufficient to inform the necessary parties
This court, therefore, went against the norm requiring more than constructive
notice).
334. U.S. Trust, 168 Misc. 2d at 933, 645 N.Y.S.2d at 397.
335. Id.
336. 339 U.S. 306 (1950).
337. Id. at 314 (citations omitted). In Mullane, the Supreme Court
emphasized the requirement that parties be notified of proceedings affecting
their legally protected interests. Id. The general rule, as set out in Mullane.
states that notice by publication is insufficient with respect to a person whose
identity is easily ascertainable and whose legally protected interest is affected
by the proceeding. Id. See Grannis v. Ordean, 234 U.S. 385. 394 (1914)
(stating that notice is a vital corollary to the fundamental requisite of due
process - the right to be heard). The Supreme Court of Rockland County
followed this standard in its decision. See U.S. Trust, 168 Misc. 2d at 933. 645
N.Y.S.2d at 397. See also Walker v. City of Hutchinson, 352 U.S. 112
(1956).
338. Mullane, 339 U.S. at 314 (citations omitted). See also Goodrich v.
Ferris, 214 U.S. 71 (1909) (finding that the requirement of notice is of no
value unless it is for an adequate purpose).
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of the pending action. 339 Notice by publication is inadequate
because it is not reasonably calculated to inform interested parties
who can be notified by other more effective means. 340 The court
concluded that a publication and a posting are insufficient to
provide notice when the owner's identity is ascertainable from
public records. 34 1 However, where the person is missing or
unknown, and it is not possible or practicable to give a more
adequate warning, publication is adequate notice. 342 In Mullane,
publication was sufficient because it was the best notice
practicable when the beneficiaries' locality was
unascertainable. 343 A mortgagee has a protected property right
and is entitled to actual notice. 344 Notice by publication, though
sometimes effective, is not likely to forewarn a mortgagee of a
pending proceeding. 345
In Mennonite Board of Missions v. Adams, 34 6 the Supreme
Court held, without listing what types of notice are acceptable
and adequate, that notice by mail, which ensures actual notice,
"is a minimum constitutional precondition to a proceeding which
will adversely affect the ... property interests of any
339. Mullane, 339 U.S. at 320.
340. Id. at 316.
341. Id. at 318. See also Schroeder v. City of New York, 371 U.S. 208
(1962). The general rule, followed by Schroeder and taken from Mullane, is
that "[niotice by publication is not enough with respect to a person whose
name and address are known or very easily ascertainable and whose legally
protected interests are directly affected by the proceedings in question." Id. at
212-13.
342. Mullane, 339 U.S. at 317.
343. Id.
344. U.S. Trust Co. v. Ramapo, 168 Misc. 2d 931, 935, 645 N.Y.S.2d
396, 398 (Sup. Ct. Rockland County 1996).
345. See Mennonite Board of Missions v. Adams, 462 U.S. 791, 798
(1983). The Court held that constructive notice to a mortgagee, whose identity
may be ascertained through public records, does not satisfy the due process
requirement as set forth in Mullane. Id. at 798-99. "Neither notice by
publication and posting, nor mailed notice to the property owner are [proper]."
Id at 799. "Personal service or mailed notice is required ..... "Id.
346. 462 U.S. 791 (1983). The Mennonite court concluded that neither
publication nor posting is reasonably calculated to inform interested parties
who can be notified by more effective means. Id. at 798-99.
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DUE PROCESS
party .... ",347 The Mennonite court concluded that mailed
notices to a property owner, including a posting in local
newspaper and courthouse, was insufficient to deprive a
mortgagee of his interest in the property sold. 348 People who
have an interest in property are often unlikely to be reached by
means of notice by publication and posting. 349 Such methods of
notice, therefore, are unreasonable when more reasonable and
inexpensive alternatives are available. 350 The Mennonite court
concluded that a mortgagee has a substantial property interest and
is therefore entitled to notice that is reasonably calculated to
apprise it of the event. 35
1
New York State courts adhere to the rules for notification
mandated by the United States Supreme Court.352 In 1993, the
New York Real Property Tax Law [hereinafter "RPTL"] 353 was
re-codified to include a notice provision. 354 The notice provision
requires notice to be mailed to a mortgagee, and to any other
person whose property interest may be affected by the pending
proceeding. 355 Prior to this amendment to the RPTL, notice by
347. Id. at 800.
348. Id.
349. Id. at 799.
350. Id. See N.Y. TowN LAw § 267-a(7) (McKinney 1996). This section
provides, in pertinent part, that the Board of Appeals procedure includes:
Hearing on appeal. The board of appeals shall fix a reasonable time for
the hearing of the appeal or other matter referred to it and give public
notice of such hearing by publication in a paper of general circulation in
the town at least five days prior to the date thereof ....
Id.
351. Mennonite, 462 U.S. at 799.
352. Schroeder, 371 U.S. at 213. See Walker v. City of Hutchinson, 352
U.S. 112 (1956) In Walker, the appellant's land was taken in a condemnation
proceeding where notice was given only by publication in a local newspaper.
Id. at 115-16. The Court held that such notice was constitutionally insufficient
because the appellant's identity could have been ascertained through public
records. Id. at 116.
353. N.Y. REAL PROP. TAX LAWv § 1125 (effective January 1, 1995, as
amended) (McKinney 1995) (stating that notice is to be mailed to each owner
and any other person whose right, title or interest is a matter of public record).
354. Id.
355. Id.
1997] 803
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publication was the only notice given to a mortgagee. 356
Constructive notice, given prior to the amendment, was deemed
unconstitutional and in violation of the Fourteenth
Amendment. 357 The amendment to the RPTL reflects the ruling
in McCann v. Scaduto,358 wherein the New York State Court of
Appeals concluded that notice by publication and posting, which
is unlikely to reach all those who have an interest in the property,
is insufficient. 359 A town's use of such indirect methods of notice
is not reasonable when other inexpensive and more efficient
alternatives, such as personal delivery, exist. 360 Where the
interest of a property owner will be substantially affected by an
act of the government, and where the affected party is
ascertainable, due process requires that actual notice be given. 36 1
The plaintiff, as a mortgagee with a property interest, has an
interest in any governmental action that may affect the
premises. 362 The court found, however, that the plaintiff was not
irrevocably deprived of his property interest unless there had
been a tax sale or condemnation proceeding. 363 The plaintiff's
security interest, however, was substantially impaired by the
356. U.S. Trust v. Ramapo, 168 Misc. 2d 931, 933-34 645 N.Y.S.2d 396,
397-98 (Sup. Ct. Rockland County 1996).
357. Id. See Cooper v. Makela, 629 F. Supp. 658 (W.D.N.Y. 1986)
(holding that constructive notice to mortgagees does not fulfill the notice
requirement of the Fourteenth Amendment).
358. 71 N.Y.2d 164, 519 N.E.2d 309, 524 N.Y.S.2d 398 (1987). Petitioner
lost her residence because of unpaid taxes. Id. at 171, 519 N.E.2d at 311, 524
N.Y.S.2d at 400. No notice was furnished regarding the tax lien sale. Id.
Further, the property owner was afforded no right to a hearing. Id. at 172, 519
N.E.2d at 311, 524 N.Y.S.2d at 400. The court followed Mullane and held
that publication was inadequate notice. Id. at 174, 519 N.E.2d at 313, 524
N.Y.S.2d at 402. The court found that failure to provide property owners with
actual notice of tax lien sale was a deprivation of due process. Id. at 176, 519
N.E.2d at 314, 524 N.Y.S.2d at 403.
359. Id. at 175, 519 N.E.2d at 314, 524 N.Y.S.2d at 403.
360. Id.
361. Id.
362. U.S. Trust v. Ramapo, 168 Misc. 2d 931, 934 645 N.Y.S.2d 396, 398
(Sup. Ct. Rockland County 1996).
363. Id.
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demolition of the home on the premises. 364 Although the Town
argued that there was no substantial deprivation or impairment to
the plaintiff, the building was demolished with the Town's
approval and mere constructive notice was given to the
mortgagee. 365 The U.S. Trust court stated that although the
mortgagee has a security interest in the property which may
exceed that of the owner, mere deprivation in value would not
support a Fourteenth Amendment claim. Substantial deprivation,
however, would give rise to a Fourteenth Amendment claim. 366
The U.S. Trust court acknowledged that the Town did not have
to provide notice of every minute detail. 367 The burden of notice,
however, is not excused by the municipality's taking "reasonable
steps to provide actual notice." 368 "When a [town] ... intends
to grant an application ... to an entity who is not the owner of
the property, to demolish the sole and primary building on the
property, due process requires more than constructive notice to
the mortgagee." 369 There is no additional burden on the town to
identify the mortgagee and provide notice by mail concerning the
application for the hearing on the demolition than there would be
to provide such notice of a tax lien sale. 370 Furthermore, the
U.S. Trust court found that notice by posting and publication was
inadequate and failed to comply with due process
requirements. 3 7 1 The Town's failure to properly notify the
plaintiff of the hearing deprived the plaintiff of (1) an opportunity
to be heard, and (2) the former building on the premises. 372 The
364. Id. at 934, 645 N.Y.S.2d at 398 (stating that "[t]he demolition of the
entire building on the property is not akin to a mere decline in property, which
would not support a Fourteenth Amendment deprivation claim ... but
constitutes a very substantial impairment of plaintiffs security interest").
365. Id. at 935, 645 N.Y.S.2d at 398.
366. Id.
367. Id.
368. Anthony v. Town of Brookhaven, 190 A.D.2d 21. 27. 596 N.Y.S.2d
459, 462 (2d Dep't 1993).
369. U.S. Trust, 168 Misc. 2d at 935, 645 N.Y.S.2d at 398.
370. Id. at 935, 645 N.Y.S.2d at 398-99.
371. Id., 645 N.Y.S.2d at 399.
372. Id.
1997]
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court, therefore, concluded that "[tihe demolition permit is thus
declared null and void ab initio."373
The court in Walker stated that notice by publication is
inadequate when one's identity may be easily ascertained through
public records. New York courts have adopted the rule
enunciated in the Mullane case via Walker.374 A town must give
a mortgagee notice that a building may be demolished. 375
Although the plaintiff mortgagee was unknown to the town, the
plaintiffs identity could have been ascertained by means of
public records. Therefore, publication was inadequate notice and,
as such, constituted a violation of the plaintiff's due process
rights.376
373. Id.
374. See Walker v. City of Hutchinson, 352 U.S. 112 (1956).
375. U.S. Trust, 168 Misc. 2d at 935, 645 N.Y.S.2d at 398-99.
376. Id.
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Due Process Supreme Court Rockland County

Touro Law Review 
Volume 13 Number 3 Article 22 
July 2019 
Equal Protection Supreme Court Appellate Division Third 
Department 
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Recommended Citation 
(2019) "Equal Protection Supreme Court Appellate Division Third Department," Touro Law Review: Vol. 13 : 
No. 3 , Article 22. 
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EQUAL PROTECTION
N.Y. Const. art. L § 11:
No person shall be denied the equal protection of the laws of
this state or any subdivision thereof.
U.S. Const. amend XIV, § 1:
No State shall. . . deny to any person within its jurisdiction the
equal protection of the livs.
SUPREME COURT, APPELLATE DIVISION
THIRD DEPARTMENT
Prodell v. New York 1
(decided July 18, 1996)
Defendants appealed an order and judgment of the New York
State Supreme Court, Albany County, that declared the Suffolk
County Tax Act (hereinafter "Tax Act"), as amended in 1983,2
unconstitutional. 3 The Suffolk County Tax Act of 1980 required
towns in Suffolk County to pay for school tax refunds resulting
from court ordered assessment reductions. 4 The Tax Act was
amended in 1983, requiring the local school district to pay for
any school tax refund that resulted from an overassessment of the
Shoreham Nuclear Power Plant. 5  Specifically, the statute
1. 645 N.Y.S.2d 589 (3d Dep't 1996).
2. SUFFOLK COUNTY, N.Y., TAx AcTch. 1018, § 3 (1983).
3. Prodell v. New York, 166 Misc. 2d 608, 630 N.Y.S.2d 880 (Sup. Ct.
Albany County 1995).
4. Prodell, 645 N.Y.S.2d at 590. Following Shoreham's reduced
assessment of June 1993, the Supreme Court ordered Suffolk County to pay a
refund of over $38 million plus interest to Long Island Lighting Company,
Shoreham's previous owner. Id.
5. SUFFOLK COUNTY, N.Y., TAX ACT ch. 1018, § 3 (1983). The Tax
Act states in pertinent part:
Such refund shall not be charged by the town to such school district,
except where the assessment subject to such proceeding is applicable to
property improved by a nuclear powered electrical generating facility.
807
1
et al.: Prodell v. New York (decided July 18th, 1996)
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TOURO LAW REVIEW
provided that "upon any assessment reductions of nuclear power
electrical generating facilities, the school districts in which such
facilities were located would be responsible for the school tax
refunds." ' 6 The plaintiffs, real property taxpayers from Suffolk
County and the school district of Shoreham;Wading River,
commenced this action challenging the constitutionality of the
1983 amendment to the Tax Act. 7  Specifically, "[p]laintiffs
contend[ed] that the 1983 amendment violated the Equal
Protection Clause of both the Federal 8 and New York State9
Constitutions because it creates a classification that was arbitrary,
capricious and discriminatory." 10  New York has held that
protection under the Equal Protection Clause of the New York
State Constitution is no broader than its federal counterpart. 11
In such case, the town shall charge such school district any amount of
taxes collected by such school district upon such assessment in excess of
the amount which would have been paid had such assessment been made
as determined by such order.
Id. (emphasis omitted).
6. Prodell, 645 N.Y.S.2d at 590. (citing SUFFOLK COUNTY, N.Y., TAX
ACT ch. 1018, § 3 (1983)).
7. Prodell, 645 N.Y.S.2d at 590.
8. U.S. CONST. amend. XIV, § 1. The Fourteenth Amendment provides
in pertinent part: "No State shall ... deny to any person within its jurisdiction
the equal protection of the laws." Id.
9. N.Y. CONST. art. I, § 11. This section provides:
No person shall be denied the equal protection of the laws of this state
or any subdivision thereof. No person shall, because of race, color,
creed or religion, be subjected to any discrimination in his civil rights
by any other person or by any firm, corporation, or institution, or by
the state or any agency or subdivision of the state.
Id.
10. Prodell, 166 Misc. 2d at 611, 630 N.Y.S.2d at 883.
11. See Under 21 v. City of New York, 65 N.Y.2d 344, 360 n.6, 482
N.E.2d 1, 7 n.6, 492 N.Y.S.2d 522, 528 n.6 (1985) (citing Matter of Ester v.
Walters, 56 N.Y.2d 306, 313-14 (1982)). In Under 21, the court examined
the validity of an Executive Order issued by the mayor of New York City,
which prohibited employment discrimination on the basis of sexual preference
by city contractors. Id. at 353, 482 N.E.2d at 2, 492 N.Y.S.2d at 523.
Concluding that such discrimination by private contractors is not state action,
and that the city is not responsible for the private employment practices of such
contractors, the court found that the mayor exceeded his authority by issuing
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EQUAL PROTECTION
The controversy arose when it was discovered that a
multi-million dollar school tax refund was due to the Shoreham
Nuclear Power Plant's previous owner, Long Island Lighting
Company.12 The Tax Act clearly provided that school districts
in which nuclear facilities were located would bear the burden of
repaying the overassessments. 13 Though the language of the act
was generalized, the only school district in which a nuclear
power plant was located in Suffolk County was Shoreham-
Wading River. 14 The Supreme Court, Albany County, held that
even though the mere existence of the Shoreham Nuclear Power
Plant created a "tax haven" wherein residents who resided in this
school district paid lower taxes, it did not entitle the State of New
York to strap these residents with the responsibility of the full tax
burden. 15 In addition, the court found that the school district's
refund obligation was triggered by the presence of a nuclear
power plant, not by the nature or magnitude of the tax windfall
the school district received.16 Accordingly, the court declared
that the Tax Act was unconstitutional under both the New York
and Federal Constitution because the classification of taxpayers
was not rationally related to the achievement of a legitimate state
purpose. 17
On appeal, defendants argued that the court erred in
holding that tax payers not located in these "tax haven" school
districts should pay school tax refunds to the nuclear power
facilities which originally received assessment reductions. 18
the order. Id. at 364, 482 N.E.2d at 9, 492 N.Y.S.2d at 531. The mayor has
no power to broaden the scope of the Equal Protection Clause beyond that
provided by the Fourteenth Amendment. Id. at 360-61, 482 N.E.2d at 8. 492
N.Y.S.2d at 529.
12. Prodell, 166 Misc. 2d at 611, 630 N.Y.S.2d at 882.
13. Id.
14. Prodell, 645 N.Y.S.2d at 590.
15. Prodell, 166 Misc. 2d at 613, 630 N.Y.S.2d at 883.
16. Id.
17. Id. at 614, 630 N.Y.S.2d at 884.
18. Id. at 611, 630 N.Y.S.2d at 882. Furthermore, the sponsor of the bill
noted that it "would be an unconscionable burden to place on the taxpayers of
Brookhaven Township when the people of Shoreham-Wading River School
District reaped the original eighteen million tax windfall." Id.
1997] 809
3
et al.: rodell v. New York (decided July 18th, 1996)
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They insisted that Brookhaven residents who did not benefit from
Shoreham's school taxes should not be made to share the cost of
paying refunds with those who did. 19
In evaluating the constitutional claims, the Prodell court
began its analysis by citing the decision of the New York Court
of Appeals in Trump v. Chu. 20 In Trump, the court declared that
a challenged statute must be upheld if (1) its classification is
rationally related to achieving a legitimate State purpose and (2)
it was reasonable for the legislatures to believe that the
challenged classification would have a fair and substantial
relationship to that purpose. 2 1 Taxing statutes, however, enjoy a
strong presumption of constitutionality. 22 Moreover, the burden
is on the party challenging the constitutionality that the statute
discriminates so invidiously as to "negate every conceivable
basis which might support it."23 Legislatures have broad leeway
in "making classifications and drawing lines which in [its]
judgment produce reasonable systems of taxation." 24 The test of
19. Prodell, 645 N.Y.S.2d at 592.
20. 65 N.Y.2d 20, 478 N.E.2d 971, 489 N.Y.S.2d 455 (1985). Plaintiffs
charged that Tax Law article 31-B which imposed a 10% tax on gains derived
from real property transfers over one million dollars violated the equal
protection clause of both the New York and Federal Constitution. Id. at 22-23,
478 N.E.2d at 973, 489 N.Y.S.2d at 457. The court stated that as long as
"legitimate State purposes justifying the classifications adopted, whether they
are the purposes which actually motivated the Legislature or not, and inasmuch
as the classifications are rationally related to their achievement, [and] the
legislation has a rational basis," the taxing statute will be constitutional. Id. at
28, 478 N.E.2d at 977, 489 N.Y.S.2d at 461.
21. Trump, 65 N.Y.2d at 25, 478 N.E.2d at 974, 489 N.Y.S.2d at 458.
"Taxing statutes, like other social and economic legislation that neither classify
on the basis of a suspect class nor impair a fundamental right, must be upheld
if the challenged classification is rationally related to achievement of a
legitimate State purpose." Id.
22. Id. See Madden v. Kentucky, 309 U.S. 83, 88 (1940) (stating that "the
presumption of constitutionality can be overcome only by the most explicit
demonstration that a classification is a hostile and oppressive discrimination
against particular persons and classes."). Id.
23. Madden, 309 U.S. at 88.
24. Trump, 65 N.Y.2d at 25, 478 N.E.2d at 975, 489 N.Y.S.2d at 459
(quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359
(1973)).
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EQUAL PROTECTION
the Equal Protection Clause is based upon whether the difference
in treatment is an "invidious discrimination." 25 Thus, equal
protection allows state legislatures to treat one class of
individuals or entities differently from others as long as that
classification is not "palpably arbitrary" nor amounts to an
"invidious discrimination." 26
In Prodell, the Appellate Division, Third Department,
found that the purpose of the 1983 amendment to the Tax Act
was to prevent school district taxpayers from reaping
unwarranted windfalls. 27  Specifically, the State wanted to
guarantee that payment of the tax refunds would be fairly
distributed to all similarly situated taxpayers living in a
community with a nuclear power plant in a uniform manner. 28
Moreover, the court found that assigning the burden of paying
the school tax refund to taxpayers residing in school districts
which benefited from the tax windfall created by the
overassessment, was rationally related to a legitimate state
interest. 29  Since that school district was Shoreham-Wading
River, the burden of repayment fell squarely on the shoulders of
this community.
The Prodell court rejected plaintiffs' contention that the
Act arbitrarily discriminates invidiously. 30 Taxing statutes must
be drafted in a manner that "applies to all persons similarly
situated and any statute that was written to apply to one
individual or group would offend the 'element of neutrality that
must always characterize the performance of the sovereign's duty
to govern impartially.' 3 1  This Tax Act was specifically
25. Lelrnhausen, 410 U.S. at 359.
26. Trump, 65 N.Y.2d at 25, 478 N.E.2d at 975, 489 N.Y.S.2d at 459
(quoting Lelnluzusen, 410 U.S. at 360).
27. Prodell, 645 N.Y.S.2d at 591.
28. Prodell, 166 Misc. 2d at 612, 630 N.Y.S.2d at 883.
29. Prodell, 645 N.Y.S.2d at 591.
30. Id.
31. Id. at 613-14, 630 N.Y.S.2d at 884 (quoting Cleburne v. Cleburne
Living Center, 473 U.S. 432, 452 (1985) (Stevens, J. dissenting)). In
Cleburnze, the Supreme Court declared that a Texas city's denial of a special
use permit to operate a group home for the mentally retarded was
unconstitutional. Cleburne, 473 U.S. at 435. The Court refused to classify
1997]
5
et al.: Prodell v. New York (decided July 18th, 1996)
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TOURO LAW REVIEW
designed to protect Suffolk County taxpayers from paying tax
refunds to school districts in which they do not reside. 32 If there
were other districts in which a nuclear power plant was located,
the 1983 amendment to the Tax Act would still have been
applied; by its own terms, the statute neither singled out
Shoreham-Wading River nor limited its scope only to this
district. 33 In reaching this conclusion, the court maintained that,
should a nuclear power facility ultimately become overassessed
and entitled to a refund, it would be unconscionable to require
other school districts to pay the refund, given that they did not
share in the benefit of the original overassessment.
34
The heart of equal protection maintains that a statute may
not be written to apply to one individual or group but must apply
to all persons similarly situated. Moreover, as the Supreme
Court, Albany County noted, "[n]othing opelhs the door to
arbitrary action so effectively as to allow . . .officials to pick
and choose only a few to whom they will apply legislation ...
[c]ourts can take no better measure to assure that laws will be
just than to require that laws be equal in operation. '" 35  In
the mentally retarded as a "quasi-suspect class." Id. at 446. Instead, the
Court conceded that "there have been and there will continue to be instances of
discrimination against the retarded that are in fact invidious, and that are
properly subject to judicial correction under constitutional norms." Id.
Therefore, requiring a permit for the group home represents an irrational
prejudice against the mentally retarded and violates the equal protection clause.
Id. at 450.
32. Prodell, 166 Misc. 2d at 611, 630 N.Y.S.2d at 882. Furthermore, as
set forth in the Assembly Memorandum in Support of Legislation, "the
taxpayers of that [Shoreham-Wading River] school district have reaped
windfall taxes and should therefore pay any refunds." Id. (citing Bill Jacket,
L1983. ch. 1018).
33. Prodell, 645 N.Y.S.2d at 591.
34. Id.
35. Prodell, 166 Misc. 2d at 614, 630 N.Y.S.2d at 884 (quoting Railway
Express v. New York, 336 U.S. 106, 112-13 (19'49) (Jackson, J.,
concurring)). In Railway, a New York City traffic regulation banning
advertisements on vehicles except on those which advertise their own products
was challenged on equal protections grounds. Railway, 336 U.S. at 110.
Appellants, who sold the exterior sides of their trucks to advertisers,
challenged the constitutionality of the regulation on the theory that a truck
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EQUAL PROTECTION
conclusion, the court found that the plaintiffs did not meet the
burden of showing that the Act arbitrarily discriminated against
the Shoreham-Wading River taxpayers. 36 Moreover. since the
Federal and State Equal Protection Clauses are co-extensive in
scope, the Prodell court determined that the 1983 amendment to
the Tax Act did not violate the Equal Protection Clause of either
the New York or Federal Constitution.
37
carrying an owner's advertisements is neither less distracting nor causes fewer
safety concerns than a vehicle carrying advertising for others. Id. at 109-10.
However, the Court held that the regulation did not violate the equal protection
by stating that "[ilt is no requirement of equal protection that all evils of the
same genus be eradicated or none at all." Id. at 110.
36. Prodell, 645 N.Y.S.2d at 591.
37. Prodell, 645 N.Y.S.2d at 592.
1997] 813
7
et al.: Prodell v. New York (decided July 18th, 996)
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Equal Protection Supreme Court Appellate Division Third Department

Touro Law Review 
Volume 35 
Number 3 Symposium: Disaster Relief Article 2 
2019 
Table of Contents 
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 Part of the Legal Writing and Research Commons 
Recommended Citation 
(2019) "Table of Contents," Touro Law Review: Vol. 35 : No. 3 , Article 2. 
Available at: https://digitalcommons.tourolaw.edu/lawreview/vol35/iss3/2 
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been accepted for inclusion in Touro Law Review by an authorized editor of Digital Commons @ Touro Law Center. 
For more information, please contact lross@tourolaw.edu. 
TOURO LAW 
REVIEW 
Volume 35, Number 3 2019 
TABLE OF CONTENTS 
 
DONOR INTENT, DISASTER RELIEF, EDUCATION, AND POLICY 
Marian Conway, Ph.D. ............................................................ 917 
 
AN INFLECTION POINT FOR DISASTER RELIEF: SUPERSTORM SANDY 
Danshera Wetherington Cords ................................................ 925 
 
THE APPLICATION OF TITLE II OF THE AMERICANS WITH 
DISABILITIES ACT TO EMPLOYMENT DISCRIMINATION: WHY THE 
CIRCUITS HAVE GOTTEN IT WRONG 
Thomas Maligno & Benjamin Rajotte ..................................... 957 
 
DISASTER LEGAL TECH: STRATEGIES FOR PROVIDING LEGAL 
INFORMATION TO SURVIVORS 
Jeanna Ortiz-Ortiz & Jessica Penkoff ..................................... 991 
 
THE CALM AFTER THE STORM: 45 YEARS OF THE ABA YOUNG 
LAWYERS DIVISION’S DISASTER LEGAL SERVICES PROGRAM 
Andrew VanSingel .................................................................. 1021 
 
 
1
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