The Even Year Election Law, which provides that elections for most county, town, and village officials will be held on even-numbered years, and will no longer be held on odd-numbered years, does not violate the New York Constitution’s home rule provisions. In fact, the Fourth Department held, nothing in Article IX, § 2 of the New York Constitution “gives a county exclusive local control over the manner in which local elections will be held or the specific details of each office,” and thus the Legislature was well within its power to legislate when the local elections will be held. Let’s take a look at that opinion and what else has been happening in New York’s appellate courts over the past week.
Appellate Division, First Department
Donaldson v Port Auth. of N.Y. & N.J., 2025 NY Slip Op 02719 (1st Dept May 06, 2025)
Torts, Negligence
Issue: Did the Port Authority establish that the pedestrian walkways on the George Washington Bridge were safe for the public at large, and the steps taken, including additional interim measures implemented prior to this incident to help individuals who, like the decedent, were suffering from suicidal ideations, were reasonable in light of the complexity and size of the bridge?
Facts: “On the morning of July 27, 2017, at approximately 6:35 a.m., Andrew Donaldson walked along the south walkway of the upper level of the GWB, climbed over the four-foot railing, and jumped to his death. In April 2018, plaintiff Marybeth Donaldson, individually and as Administrator of the Estate of Andrew Donaldson, and as parent and natural guardian of A.D. and C.D., commenced an action against the Port Authority” for wrongful death.
After the First Department held that the Port Authority was acting in a “proprietary capacity in the design and maintenance of the bridge, and therefore was subject to suit under the ordinary rules of negligence applicable to nongovernmental parties,” the Port Authority moved for summary judgment at the close of discovery, submitting “an affidavit from its expert, Kevin V. Gorman, a professional engineer and former police officer, who opined, in sum and substance, that the GWB was safe for its intended purpose, that the Port Authority’s planning, design, testing, development, and ultimate implementation of temporary fencing on the GWB was reasonable, and that the Port Authority fulfilled its duty to provide for the reasonably safe passage of all bridge users across the bridge.” The Port Authority also submitted “the affidavit of Lieutenant John Duffy, a member of the Port Authority’s Public Safety Department assigned to the GWB, who described the layout of the north and south walkways on the GWB; the operation of the south walkway both on and prior to the date of the incident in question; the Public Safety Department’s patrol of the south walkway; and the suicide-prevention measures that defendant implemented along both walkways.” Plaintiff submitted “minimal opposition, forgoing the opportunity to present rebuttal experts.”
Supreme Court granted the Port Authority summary judgment, holding that it “established its prima facie entitlement to summary judgment based on the affidavits of Mr. Gorman and Lieutenant Duffy detailing the efforts that the Port Authority undertook to consider and then implement higher fencing, which required substantial testing to account for wind loading, and the work of its police department to prevent suicides. However, it found plaintiff failed to raise an issue of fact in opposition to the Port Authority’s motion because she did not submit her own expert affidavit to rebut any of Mr. Gorman’s claims or to dispute the assertions of Lieutenant Duffy.”
Holding: The First Department, with one Justice dissenting, affirmed, rejecting “plaintiff’s argument . . . that the Port Authority was aware that the GWB was a ‘suicide magnet’ and it failed to maintain the GWB in a ‘reasonably safe condition by negligently failing to install suicide barriers along the walkways.’” The Court explained, “[t]he Port Authority’s experts established, without challenge, that there is no industry standard concerning the height or design for the handrailing on the bridge and that under the circumstances of this case—namely, the complexity, age, and scale of the GWB—it took both reasonable and timely steps to help prevent deaths by suicide.” In particular, the Port Authority’s experts described all of the efforts to rehabilitate the bridge to make it safe for pedestrians and reduce the risks of suicide. They also “highlighted the multitude of security measures in place at the bridge, including the use of security guard personnel trained in suicide awareness and behavior indicators, suicide enforcement and prevention; automated license plate readers to track license plates of emotionally disturbed persons; surveillance cameras to monitor the activity at the GWB; and crisis intervention training.” That proof was sufficient to demonstrate the Port Authority’s entitlement to summary judgment.
“Plaintiff’s response simply contends that the Port Authority delayed installing a safety fence that would have prevented decedent’s death. However, whereas here, the Port Authority has submitted an expert affidavit attesting to the reasonableness and timeliness of the steps it has taken, plaintiff’s objective contention that the delay was unreasonable, without more, is insufficient to raise an issue of fact.”
Appellate Division, Third Department
Matter of Glen Wild Land Co., LLC v Town of Thompson, 2025 NY Slip Op 02628 (3d Dept May 1, 2025)
Municipal Law
Issue: May a Town that is presented with a Town Law article 12 petition to extend a sewer district use the procedures of Town Law article 12-A to decide whether to extend the district on its own accord?
Facts: “Petitioner, the owner of a commercial development in respondent Town of Thompson, filed a petition pursuant to Town Law article 12 to extend a sewer district to its development. After accepting a map, plan and report in connection with the proposal and conducting a public hearing, the Town Board passed two resolutions: Resolution No. 77 of 2023 made certain findings, including that the sewer district extension was in the public interest, and Resolution No. 78 approved the extension subject to a permissive referendum, as provided for in article 12-A.” After a group of citizens filed a petition to trigger the permissive referendum, the Town Clerk rejected it because it didn’t have enough signatures. “Petitioner nevertheless commenced the instant proceeding challenging both Resolution No. 78 — to the extent that it subjected the extension to a permissive referendum under article 12-A — as well as the propriety of the referendum petition itself. Respondents opposed, and Supreme Court, rejecting petitioner’s challenges, dismissed the petition.”
Holding: The Third Department reversed, holding that “Article 12 and article 12-A of the Town Law provide two different paths for the creation or extension of town improvement districts, such as those for water, sewer, public parks, parking lots and the like. Pursuant to article 12, the process begins when a petition is filed by an owner of taxable real property within the proposed district or extension. By contrast, under article 12-A, a town board commences the process on its own initiative by way of a resolution. An additional distinction between the two articles is that, when operating relative to article 12-A, the board’s ultimate approval of such a project is subject to a permissive referendum, whereas no such requirement is present in article 12.” The Court held that “[t]he Town Board failed to act upon the extension petition in the manner required by statute. Having filed the petition pursuant to Town Law article 12, petitioner was entitled to have the Town Board make certain findings and ultimately either approve or deny its application.” Although the Town Board made some of the required findings under article 12, it ultimately took over the process and impermissibly used the article 12-A procedures, including the permissive referendum, instead. “Recognizing that these articles do not contain any mechanism for such a conversion, we find that the Town Board erred and, as a result, its resolutions must be invalidated.”
Appellate Division, Fourth Department
County of Onondaga v State of New York, 2025 NY Slip Op 02818 (4th Dept May 7, 2025)
Election Law
Issue: Does the Even Year Election Law, which provides that elections for most county, town, and village officials would be held on even-numbered years, and would no longer be held on odd-numbered years, violate article IX of the New York Constitution, which grants home rule powers to local governments?
Facts: The EYEL amended certain provisions of the County Law, Town Law, Village Law, and Municipal Home Rule Law to provide that “elections for most county, town, and village officials would be held on even-numbered years, and would no longer be held on odd-numbered years, effective January 1, 2025 (L 2023, ch 741). Exceptions were made for the offices of town justice, sheriff, county clerk, district attorney, family court judge, county court judge, and surrogate court judge—each of which has a term of office provided in the New York Constitution—as well as town and county offices with preexisting three-year terms, all offices in towns coterminous with villages, and all offices in counties located in New York City.” The EYEL also barred “county charters from superseding the newly enacted County Law § 400 (8).” “The EYEL purports to encourage an increased voter turnout in local elections now scheduled in odd-numbered years, which are years without federal or state-wide elections on the ballot, consistent with the State’s public policy of encouraging participation in the elective franchise by all eligible voters to the maximum extent, and the mandate of the New York Board of Elections to take all appropriate steps to encourage the broadest possible voter participation in elections.”
Plaintiffs, in eight consolidated actions, challenged the EYEL, arguing that it is “unconstitutional because, among other reasons, it violates article IX of the New York Constitution,” which, they contended, “grants local governments the constitutional right to set the terms of office for their officers.” Supreme Court denied the State’s motion for summary judgment, “declared the EYEL unconstitutional, and enjoined defendants from enforcing or implementing the EYEL.”
Holding: The Fourth Department reversed, holding that “the EYEL does not violate article IX of the New York Constitution.” The Court held, “article IX, § 1 says nothing about terms of office for public officials. Instead, it provides, inter alia, that a local government has a right to ‘a legislative body elective by the people’ of each jurisdiction (NY Const, art IX, § 1 [a]) and that a county has a right to ‘adopt . . . alternative forms of county government’ (NY Const, art IX, § 1 [h] [1]), but neither of those provisions gives a county exclusive local control over the manner in which local elections will be held or the specific details of each office. It is the Municipal Home Rule Law, not article IX, § 1, that requires counties that use charters to specify their officers’ terms of office therein (Municipal Home Rule Law § 33 [3] [b]). Of course, the Municipal Home Rule Law is a compilation of statutes, not a constitutional provision. Plaintiffs’ contention that article IX, § 1 impliedly gives charter counties the exclusive right to set terms of offices for their public officials is belied by the fact that article IX, § 2 (c) (1) explicitly authorizes the state legislature to adopt general laws, or special laws under certain circumstances, relating to the ‘terms of office’ of local government officials. We cannot conclude that the EYEL, by limiting the power of counties to schedule certain elections in odd-numbered years and aligning the date of federal, state, and most local elections, renders illusory any of the rights and guarantees set forth in article IX, § 1.
According to certain plaintiffs, the State cannot infringe upon their rights to set terms of office for county officials because such rights are set forth in their county charters, which are authorized by article IX, § 1 (h) (1). Plaintiffs cite no authority for the proposition that rights set forth in a county charter are somehow afforded constitutional status and therefore immune from state legislation, and we could find no such authority. If we were to accept that argument, counties could insert into their charters all sorts of rights not included in the constitution and thereby give constitutional status to those rights. We decline to adopt such a novel legal theory.”
New York Appeals 