FULL SUMMARIES OF SELECTED DECISIONS RELEASED 4-4-22 - 4-8-22 BY THE 1ST, 2ND & 3RD DEPARTMENTS
Click on the legal categories to go to all the decision-summaries in those categories on the New York Appellate Digest website, most recent first. Click on the citations to go to the full decisions on the official New York Courts website.
The Third Department, over a dissent, determined that the People’s failure to turn over Brady material in this sexual-offense prosecution, which the defense received four days before trial pursuant to a subpoena, did not require reversal:
“‘[W]hile the People unquestionably have a duty to disclose exculpatory material in their control,’ a defendant’s constitutional right to a fair trial is not violated when, as here, he [or she] is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses or as evidence during his [or her] case” … .. Defendant, by way of a subpoena, received the records from the victim’s evaluation four days before trial. Defendant asserts that these records contain two pieces of allegedly exculpatory information. The first is that a physical examination of the victim, performed three months after the incident, was “normal” and did not reveal any corporeal injury. The second is that the victim, during an interview related to the physical examination, disclosed allegations of prior sexual abuse by two different individuals, which defendant asserts were fabricated.
From the dissent:
… [I]n my view, the withheld evidence was clearly material and defendant was prejudiced. As a result of the Brady violation, defendant was denied an opportunity to pursue other strategies with defense counsel. He was denied, among other things, the opportunity to investigate and interview other potential defense witnesses well in advance of trial, or to develop a more detailed argument on the issue of whether he could cross-examine the victim and call certain witnesses without running afoul of the Rape Shield Law (see CPL 60.42). With more time, he also could have called the examining physician or retained his own medical expert to review the records. Learning of the existence of potential witnesses such as the victim’s brother and the mother’s landlord a mere four days before trial provided defendant no opportunity to locate and interview these witnesses and possibly incorporate their testimony into his defense. Moreover, as County Court noted, defendant, under these circumstances, was under no obligation to seek an adjournment of the trial.?People v Sherwood, 2022 NY Slip Op 02455, Third Dept 4-14-22
Practice Point: Although the Brady material was not provided until four days before trial pursuant to a defense subpoena, reversal was not required because the defense had a meaningful opportunity to use the material in the cross-examination of the People’s witnesses. The dissenter disagreed.
APRIL 14, 2022
The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant was not an employee of NEL, a business logistics company, and NEL was, therefore, not liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated. Claimant was a delivery driver who was assigned by NEL to deliver auto parts for Any-Part Auto Stores:
The record reflects that, after NEL initially referred claimant to Any-Part, NEL did not retain any supervisory authority over him. NEL did not provide any training, set delivery goals for claimant, conduct performance reviews or evaluations, require any proof of delivery or require any contact from claimant on a day-to-day basis. Any-Part assigned the deliveries to claimant and handled any complaints. Claimant used his own vehicle, NEL did not reimburse him for any expenses and claimant was not restricted from working for others. Under the parties’ written agreement, claimant could refuse an assignment, but, once he accepted an assignment, he was required to complete it. Per the agreement, claimant was permitted to hire other individuals to perform the work if claimant could not, and claimant was responsible for ensuring that those individuals comply with state and federal regulations, including licensing and insurance requirements. … .?Matter of Pasini (Northeast Logistics, Inc.–Commissioner of Labor), 2022 NY Slip Op 02464, Third Dept 4-14-22
APRIL 14, 2022
The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined it was an abuse of discretion to deny claimant’s application on the ground that a separate copy of the RB-89 form was not submitted for each claim:
We note … that the requirement that a party submit a copy of the RB-89 form when referencing multiple claims, or that failing to provide a copy for each claim could result in review being denied on one of the claims, is not included on the form, in the instructions to the form or in the Board’s regulations. Although the Board may certainly adopt the formatting requirement that applicants provide a copy of their RB-89 form for each claim referenced therein, we find, under the circumstances presented here, that the Board’s denial of claimant’s application for review of the WCLJ’s decision on the 2017 claim for failing to provide the Board with an additional copy of their RB-89 form was an abuse of the Board’s discretion … .?Matter of Olszewski v PAL Envtl. Safety Corp., 2022 NY Slip Op 02469, Third Dept 4-14-22
APRIL 14, 2022
The Third Department, annulling the disciplinary determination, held the evidence did not demonstrate petitioner-inmate was guilty of “creating a disturbance:”
Pursuant to the relevant regulations, an incarcerated individual “shall not engage in conduct which disturbs the order of any part of the facility” (7 NYCRR 270.2 [B] [5] [iv]). Such disruptive conduct includes, as relevant here, “loud talking in a mess hall, program area or corridor” (7 NYCRR 270.0 [B] [5] [iv]). The misbehavior report, which was the sole evidence relied upon by the Hearing Officer, provided, in relevant part, that petitioner was observed “arguing” with another incarcerated individual “in the dorm hallway . . ., which drew the attention of the [incarcerated individuals] nearby.” The misbehavior report does not reflect that petitioner was scream … or otherwise speaking in a loud or boisterous manner … , nor does it establish that petitioner’s behavior triggered an affirmative response on the part of the incarcerated individuals observing the alleged argument … . Similarly, petitioner was found not guilty of fighting, and there were no other established disciplinary infractions that would give rise to a reasonable inference that his conduct was disruptive … . In short, as the misbehavior report fails to identify the manner in which petitioner’s conduct disturbed the order of the facility, we cannot say that respondent’s determination is supported by substantial evidence … .?Matter of Hogan v Thompson, 2022 NY Slip Op 02470, Third Dept 4-14-22
APRIL 14, 2022
The Third Department, remitting the matter toe the Workers’ Compensation Board, determined the Board did not address the basis of the Workers’ Compensation Law Judge’s (WCLJ’s) ruling that claimant was entitled to benefits. Claimant was struck by a vehicle while riding his bicycle to work. Although travel to work is usually not covered by Workers’ Compensation, the WCLJ found that “claimant was engaged in a special errand given that he was traveling for the purpose of an overtime assignment and at a location different from his regular work locations.” That issue was not addressed by the Board:
In finding that the claim was compensable, the WCLJ found that claimant was engaged in a special errand given that he was traveling for the purpose of an overtime assignment and at a location different from his regular work locations. The Board, however, did not address the exception relied upon by the WCLJ but, instead, found that the outside employee exception did not apply in concluding that the accident did not arise out of or in the course of claimant’s employment. Whether an exception to the general rule applies turns on the Board’s fact-intensive analysis of the particular circumstances of a given case … , and “[t]he courts are bound by the . . . Board’s findings of fact which, including the ultimate fact of arising out of and in the course [of employment], must stand unless erroneous in law and regardless of whether conflicting evidence is available” … . The fact that claimant was not an outside employee, as found by the Board, is not dispositive as to whether the special errand exception applies, which was the basis of the WCLJ’s finding that claimant was entitled to workers’ compensation benefits. As the Board has made no findings of fact with regard to whether the special errand exception applies, the matter must be remitted to the Board for further proceedings in regard to this particular issue…. .?Matter of Waters v New York City Tr. Auth., 2022 NY Slip Op 02474, Third Dept 4-14-22
Practice Point: Although injury while traveling to work is usually not covered by Workers’ Compensation, there are exceptions, including the “special errand” exception which was deemed to apply here by the Workers’ Compensation Law Judge.
APRIL 14, 2022
The Third Department, reversing the Workers’ Compensation Board, determined claimant was entitled to a schedule loss of use (SLU) award because he was not eligible for a nonschedule award due to retirement:
A nonschedule award “is based [up]on a factual determination of the effect that the [permanent partial] disability has on the claimant’s future wage-earning capacity” and is mathematically derived from a claimant’s average weekly wages and wage-earning capacity … . On the other hand, an SLU award is designed to compensate for a claimant’s “loss of earning power” as a result of anatomical or functional losses or impairments … and, as such, “‘is not allocable to any particular period of disability'” … and is “independent of the time an employee actually loses from work” … . That said, “[a] claimant who sustains both schedule and nonschedule injuries in the same accident may receive only one initial award,” because SLU and nonschedule awards “are both intended to compensate a claimant for loss of wage-earning capacity sustained in a work-related accident[,] and concurrent payment of an award for a schedule loss and an award for a nonschedule permanent partial disability for injuries arising out of the same work-related accident would amount to duplicative compensation” … . “However, in the unique circumstance where no initial award is made based on a nonschedule permanent partial disability classification, a claimant is entitled to an SLU award” for the permanent impairments sustained in the same work-related accident … . …
… [T]here is no dispute that claimant is not entitled to a nonschedule award based upon his nonschedule classification because he voluntarily retired in April 2020 and was therefore not attached to the labor market at the time of classification … . Thus, as “no initial award [wa]s made based [up]on [claimant’s] nonschedule permanent partial disability classification” … , he “is entitled to an SLU award for the permanent partial impairments to [his] statutorily-enumerated body members” … . Finally, and contrary to the position taken by the Board, the fact that claimant voluntarily retired, and was therefore not attached to the labor market, does not preclude him from receiving an SLU award, because “it is axiomatic that a claimant’s lack of attachment to the labor market, voluntary or otherwise, is irrelevant to a determination as to entitlement to an SLU award” … .?Matter of Gambardella v New York City Tr. Auth., 2022 NY Slip Op 02475, Third Dept 4-14-22
Practice Point: This Workers’ Compensation case includes a clear explanation of a “nonschedule award” versus a “schedule loss of use (SLU)” award.
APRIL 14, 2022
The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant should have been allowed to present evidence that her misrepresentation that she was not employed was not willful. Based on a flyer put out by the Department of Labor, claimant allegedly believed that she needed to apply for state unemployment benefits to be eligible for federal pandemic unemployment insurance:
At the hearing, claimant requested to admit over 50 pages of documentation into the record. Included in these documents is a flyer, which claimant contends was on the Department of Labor’s website and led her to believe that, despite not being eligible for state unemployment benefits, she may have been entitled to pandemic unemployment assistance under federal legislation that was put in place due to the coronavirus pandemic. Claimant argues that she understood this flyer to mean that she was required to apply for state unemployment benefits to obtain relief under the federal legislation. A fair interpretation of the flyer supports that contention. Also included in these documents is evidence of claimant’s many attempts to contact the Department of Labor to determine whether she was, in fact, entitled to the benefits that she was receiving. As these documents bear directly on the issue of determining whether claimant’s misrepresentation was willful, as well as on claimant’s credibility, not allowing them into evidence denied her “a sufficient opportunity to present proof in support of her claim” and did, in fact, deprive her of a fair hearing … .?Matter of Nottage (Commissioner of Labor), 2022 NY Slip Op 02476, Third Dept 4-14-22
Practice Point: Here a flyer put out by the Department of Labor indicated it was necessary to apply for state unemployment benefits to be eligible for federal pandemic unemployment benefits. Claimant sought to introduce the flyer in evidence to show her misrepresentation that she was not employed was not “willful.” The evidence should have been considered by the Unemployment Insurance Appeal Board.
APRIL 14, 2022
The Second Department, reversing Family Court, determined Family Court should have made findings to enable the child to petition for special immigrant juvenile status (SIJS) such that the child would not be returned to Guatemala:
… [A] special immigrant juvenile is a resident alien who … is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. … [F]or a child to qualify for SIJS, a court must find that reunification of the child with one or both parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law … , and that it would not be in the child’s best interests to be returned to his or her country of nationality or country of last habitual residence … . …
The Family Court should have granted that branch of the child’s motion which was for a specific finding that reunification with his father is not viable due to parental neglect. Based upon our independent factual review, the record demonstrates that the child’s father physically and emotionally mistreated the child, and prevented him from attending school for more than one year and on other occasions without a reasonable justification, and that the child’s mother failed to protect him from such mistreatment. Thus, the record supports the requisite finding that reunification with the child’s father is not viable due to parental neglect … .?Matter of Jose F. M. P. (Francisco D. M. G.), 2022 NY Slip Op 02414, Second Dept 4-13-22
APRIL 13, 2022
The Second Department determined changed circumstances brought to the Second Department’s attention by the attorneys for children rendered the appellate record insufficient for review of Family Court’s custody ruling. The matter was remitted:
… [T]he Family Court determined that it was in the best interests of the children for the mother to have sole residential custody. However, the respective attorneys for the children, in their briefs submitted to this Court, have brought to this Court’s attention certain alleged new developments since the order under review was issued in June 2019. As the Court of Appeals has recognized, changed circumstances may have particular significance in child custody matters and may render the record on appeal insufficient to review whether a child custody determination is still in the best interests of the children … .?Matter of Fitzsimmons v Fitzsimmons, 2022 NY Slip Op 02411, Second Dept 4-13-22
Practice Point: In a child custody case, changed circumstances may render the record on appeal insufficient. Here the attorneys for the children brought the changed circumstances to the attention of the appellate court in their briefs and the court remitted the matter to Family Court.
APRIL 13, 2022
The Second Department, reversing (modifying) Family Court, determined father should not have been given the power to suspend mother’s access to the child:
… [T]he Family Court erred in including two provisions in the order appealed from that effectively allow the father to determine whether parental access with the mother should be suspended. These provisions do not appear to give the mother the opportunity to judicially challenge the father’s determinations concerning her compliance with the Personalized Recovery Oriented Services (PROS) program or whether she had unsupervised parental access with the child … , and, consequently, constitute an improper delegation of authority by the Family Court to the father to determine when the child can have parental access time with the mother … .?Matter of Felgueiras v Cabral, 2022 NY Slip Op 02410, Second Dept 4-13-22
Practice Point: Here Family Court should not have allowed father to control mother’s access to the child—an improper delegation of the court’s authority.
领英推荐
APRIL 13, 2022
The Second Department, reversing the arbitrator, noted that an arbitrator’s determination will not be reversed because of an error of law, but will be reversed if the determination is irrational. Here the arbitrator’s determinations with respect to no-fault insurance coverage were deemed irrational:
“[A] master arbitrator’s determination of the law need not be correct: mere errors of law are insufficient to set aside the award of a master arbitrator” … . “If the master arbitrator vacates the arbitrator’s award based upon an alleged error of ‘a rule of substantive law,’ the determination of the master arbitrator must be upheld unless it is irrational” … . …
The master arbitrator’s determination that a denial of liability based upon a failure to appear at an examination under oath constitutes a defense of lack of coverage, which is not subject to preclusion, is irrational … . Further, the master arbitrator’s application of 11 NYCRR 65-3.5(p) is irrational, as it effectively allows an insurer to avoid the statutory timeliness requirements set forth in 11 NYCRR 65-3.8(a). Where, as here, the initial request for an examination under oath is sent more than 30 days after receipt of the claim, the request is a nullity … , and the insurer’s failure to timely notice the examination under oath is not excused by 11 NYCRR 65-3.5(p) … .?Matter of Advanced Orthopaedics, PLLC v Country-Wide Ins. Co., 2022 NY Slip Op 02406, Second Dept 4-13-22
Practice Point: An arbitrator’s determination will not be reversed because the arbitrator made an error of law. Only an irrational determination will be reversed by a court.
APRIL 13, 2022
The Second Department, reversing Supreme Court, determined claimant’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Claimant, Lazo, was moving along an eight-inch wide, 17-foot long, beam suspended above a platform when he fell. He was attached to two safety lines which he had to detach and reattach to anchorage points. He fell while in the process of reattaching one of the lines. The second line did not prevent the fall:
Lazo would use a hook at the end of each safety line to secure it to various anchorage points on another horizontal beam located above him. To move across the beam, workers were instructed to unhook the first safety line from the first anchorage point, connect it to a second anchorage point, and then repeat this process with the second safety line. This effectively allowed workers to move along the beam while always having at least one safety line attached to an anchorage point. * * *
Lazo’s deposition testimony established, prima facie, that his accident was within the purview of Labor Law § 240(1), since the beam from which he fell was being used as the functional equivalent of a scaffold … . Lazo’s deposition testimony also established, prima facie, that his second safety line was attached to an anchorage point but was nevertheless insufficient to prevent him from falling … .?Lazo v New York State Thruway Auth., 2022 NY Slip Op 02400, Second Dept 4-13-22
Practice Point: Here an eight-inch wide, 17 foot-long beam suspended eight feet above a platform was the functional equivalent of a scaffold. The fall from the beam therefore was within the scope of Labor Law 240(1).
APRIL 13, 2022
The Second Department, reversing Supreme Court, determined the defendants’ motion to set aside the verdict as against the weight of the evidence should not have been granted because it was made more than 15 days after the jury verdict:
The Supreme Court should have denied the defendants’ motion pursuant to CPLR 4404(a) as untimely, as it was made more than 15 days after the jury verdict was rendered, without good cause shown for the delay … .?Galarza v Heaney, 2022 NY Slip Op 02395, Second Dept 4-13-22
Practice Point: A motion to set aside a verdict made more than 15 days after the verdict was rendered, without a demonstration of good cause for the delay, should not be granted.
APRIL 13, 2022
The Second Department, reversing Supreme Court, determined plaintiff’s attorney offered a reasonable “law office failure” excuse for not complying with a discovery deadline (condition order of preclusion):
“The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a detailed and credible explanation of the default at issue” … . “Conversely, where a claim of law office failure is conclusory and unsubstantiated or lacking in credibility, it should be rejected” … .
Here, in opposition to the defendants’ separate motions, inter alia, in effect, to enforce the conditional order, the plaintiff’s counsel provided a detailed and credible explanation of the law office error that resulted in the failure to comply with the conditional order … . The plaintiff also demonstrated potentially meritorious causes of action … .?Fortino v Wheels, Inc., 2022 NY Slip Op 02393, Second Dept 4-13-22
Practice Point: Here counsel offered a detailed, credible explanation for law office failure (failure to comply with a deadline for discovery). That explanation was coupled with the demonstration of potentially meritorious causes of action. Defendant’s motion to enforce the conditional preclusion order should not have been granted.
APRIL 13, 2022
The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. The bank did not comply with the notice requirements of RPAPL 1304, specifically the “separate envelope for each borrower” rule:
…[T]he plaintiff failed to establish its strict compliance with RPAPL 1304. Although the plaintiff demonstrated that it mailed the RPAPL 1304 notice to the defendants by both certified and first-class mail … , and that the contents of the notice complied with RPAPL 1304(1), the plaintiff failed to establish that it sent a 90-day notice individually addressed to each defendant in separate envelopes, as required by the statute … . Instead, as the plaintiff concedes, the notice was mailed in a single envelope jointly to both defendants.?Deutsche Bank Natl. Trust Co. v Loayza, 2022 NY Slip Op 02392, Second Dept 4-13-22
Practice Point: In a foreclosure action, the RPAPL 1304 notice must be sent in a separate envelope to each borrower.
APRIL 13, 2022
The Second Department, reversing Supreme Court, determined plaintiff, an inmate at the Orange County Correctional Facility (OCCF), stated a cause of action against the county, as well as the county sheriff. Plaintiff alleged he was exposed to contaminated shower water at the jail. The cause of action against the county was not based on a vicarious liability theory (the county is not vicariously liable for the acts or omissions of the sheriff’s office). Rather plaintiff stated a cause of action alleging the county was negligent in failing to ensure the safety of the water at the jail. That cause of action is distinct from the sheriff’s duty to keep inmates safe. The issue was properly raised for the first time on appeal:
… [T]he complaint did not solely seek to hold the County vicariously liable for the actions and omissions of the sheriff and his deputies. The complaint alleged that the County had a duty to maintain the OCCF, including its water supply, in a safe and proper manner, and that the County’s breach of that duty caused the plaintiff to sustain personal injuries. The County’s duty to provide and maintain the jail building is distinguishable from the sheriff’s duty to receive and safely keep inmates in the jail over which the sheriff has custody … . Contrary to the defendants’ contention, the plaintiff’s argument that the County is liable for its own negligence, as opposed to being vicariously liable for the negligence of the sheriff or his deputies, is not improperly raised for the first time on appeal.?Aviles v County of Orange, 2022 NY Slip Op 02384, Second Dept 4-13-22
Practice Point: The county is not liable for the acts or omissions of the county sheriff under a vicarious liability theory. However, here the allegation that the shower water at the jail was contaminated stated a cause of action against the county for its own negligence. Therefore the action against the county should not have been dismissed.
APRIL 13, 2022
The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s work, boarding up a vacant house to prevent access, was within the scope of work covered by Labor Law 240 (1) and Labor Law 241(6). Plaintiff allegedly fell from a ladder when attempting to board up a window:
… [P]laintiff’s work of boarding up the house, thus making it uninhabitable, was “altering” the premises within the meaning of Labor Law § 240(1), as it constituted a significant physical change to the configuration or composition of the building … .. Further, as the work the plaintiff was engaged in constituted “alteration,” it was within the scope of “construction work” for purposes of Labor Law § 241(6) … .?Nucci v County of Suffolk, 2022 NY Slip Op 02423, Second Dept 4-13-22
Practice Point: Boarding up a vacant house is covered by Labor Law 240(1) and 241(6).
APRIL 13, 2022
The Second Department, reversing Supreme Court, determined defendants’ motion to extend the time for making a summary judgment, for reasons related to COVID-19, should have been granted:
… [T]he defendants submitted evidence showing that after their prior motion was decided, the plaintiff did not attend scheduled independent medical examinations because of illness and that discovery was further delayed by the COVID-19 shutdown. As a result, the defendants established good cause for their failure to timely move for summary judgment … . Under these COVID-19-related circumstances, the Supreme Court improvidently denied those branches of the defendants’ motion which were for leave to renew those branches of their prior motion which were to vacate the note of issue and certificate of readiness and extend the time to move for summary judgment. Upon renewal, the court should have granted those branches of the defendants’ motion which were to vacate the note of issue and certificate of readiness and to extend the time to move for summary judgment. We therefore remit the matter to the Supreme Court, Kings County, for the selection of a new date by which summary judgment motions shall be filed…. .?Newfeld v Midwood Ambulance & Oxygen Serv., Inc., 2022 NY Slip Op 02422, Second Dept 4-13-22
Practice Point: The COVID-19 shutdown was a valid excuse for defendants’ inability to complete discovery. Defendants’ motion to extend the time to file a summary judgment motion should have been granted.
APRIL 13, 2022
The First Department, reversing Family Court, determined mother’s marijuana use during pregnancy, and the fact that mother and the child tested positive for marijuana at the time of birth, were insufficient to demonstrate neglect:
… [T]he evidence that the mother smoked marijuana while pregnant with her youngest daughter, and that the mother and child both tested positive for marijuana at the time of the birth, is insufficient, in and of itself, to sustain a finding that the child was physically, mentally or emotionally impaired, or was in imminent danger of being impaired … . Here, as acknowledged by the agency, there was no evidence that the mother’s marijuana use impacted her judgment or behavior, or that the child was impaired or placed in imminent risk of impairment by the mother’s drug use … . Furthermore, the finding of neglect based solely on use of marijuana, without a finding of actual or imminent impairment of the child’s physical or emotional condition, is inconsistent with this State’s public policy legalizing marijuana, as reflected in the recent amendment to the Family Court Act (Family Court Act § 1046[a][iii] …).?Matter of Saaphire A.W. (Lakesha B.), 2022 NY Slip Op 02382, First Dept 4-12-22
Practice Point: Because marijuana use has been legalized, proof mother smoked marijuana and mother and child tested positive for marijuana at the time of birth was not enough to demonstrate neglect. There must be proof, for example, that mother’s judgment was affected or the child was harmed in some way.
APRIL 12, 2022