JUST RELEASED

January Page III

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)

 

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ATTORNEYS (FEES, FORECLOSURE, HEARING NECESSARY TO ASSESS ATTORNEY'S FEES, CRITERIA EXPLAINED)/FORECLOSURE (ATTORNEY'S FEES, HEARING NECESSARY TO ASSESS ATTORNEY'S FEES, CRITERIA EXPLAINED)

 

ATTORNEYS, FORECLOSURE.

 

HEARING NECESSARY TO ASSESS ATTORNEY'S FEES, CRITERIA EXPLAINED.

 

The Third Department, over a partial dissent, reversing Supreme Court, determined a hearing must be held to assess the validity of an $80,000 attorney's fee in a foreclosure proceeding. Supreme Court granted the fee without a hearing and without making the requisite findings:

 

While a hearing on counsel fees is not required when a determination can be made on the papers alone ... , this is not the case here inasmuch as plaintiff's "affidavit of services rendered . . . fail[ed] to set forth counsel's experience, ability, and reputation, and fail[ed] to detail the prevailing hourly rate for similar legal work in the community" ... . Furthermore, the itemized legal bills submitted by plaintiff are insufficient to assess the reasonableness of the fees in the absence of proof showing "the necessity of the services rendered, the benefit achieved, the difficulty of the issues involved, or any other of the considerations normally involved in calculating [counsel] fees" ... .

 

Notwithstanding Supreme Court's discretion in this realm and the fact that the court awarded plaintiff an amount less than what was sought, before an award of counsel fees may be fixed, "the court must possess sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered" ... . In our view, Supreme Court did not have before it sufficient information to summarily determine the reasonableness of the sought counsel fees. Furthermore, "to permit intelligent review, a court must provide a concise but clear explanation of its reasons for the [counsel] fee award" ... . Although Supreme Court, in its order, recited the necessary factors relevant to determining the reasonableness of counsel fees, it did not provide a clear explanation for its ultimate counsel fee award. Rather, the $80,000 awarded by Supreme Court appears to derive merely from adding up all of the fees attributable to one of the attorneys who represented plaintiff — i.e., the attorney who submitted the affidavit of services — without regard to the necessary factors used to reach an award of counsel fees and with insufficient information in light of the block billing and vague and redacted time entries in the legal invoices. Accordingly, given that plaintiff's proof was insufficient for Supreme Court to fix an award of counsel fees on the papers alone and that defendants were never afforded an opportunity in the first instance to challenge the reasonableness of the requested counsel fees, the matter must be remitted for an evidentiary hearing. Lehman Commercial Paper, Inc. v Point Prop. Co., LLC, 2017 NY Slip Op 00358, 3rd Dept 1-19-17

 

 

 

 

 

 

 

 

ATTORNEYS (FEE, WORKERS' COMPENSATION LAW, ATTORNEY'S FEE PROPERLY REDUCED BASED UPON FAILURE TO FULLY FILL OUT THE RELEVANT FORM)/WORKERS' COMPENSATION LAW (ATTORNEY'S FEE, FEE PROPERLY REDUCED BASED UPON FAILURE TO FULLY FILL OUT THE RELEVANT FORM)

 

ATTORNEYS, WORKERS' COMPENSATION LAW.

 

ATTORNEY'S FEE PROPERLY REDUCED BASED UPON FAILURE TO FULLY FILL OUT THE RELEVANT FORM.

 

The Third Department determined the requested attorney's fee was properly reduced from $2800 to $450 because the required form was not fully filled out:

 

Under Workers' Compensation Law § 24, the Board has broad discretion in approving an award of counsel fees ... . Pursuant to 12 NYCRR 300.17 (d) (1), as relevant here, an attorney "shall file an application upon a form OC-400.1 in each instance where a fee is requested pursuant to [Workers' Compensation Law § 24]." In approving counsel fee requests in matters where the claimant was awarded benefits, the Board "shall approve a fee in an amount commensurate with the services rendered and having due regard for the financial status of the claimant and whether the attorney . . . engaged in dilatory tactics or failed to comply in a timely manner with [B]oard rules. In no case shall the fee be based solely on the amount of the award" (12 NYCRR 300.17 [f]).

 

Here, the Board found counsel's OC-400.1 fee application deficient for failing to indicate the date each service was performed and the specific amount of time for each service. Instead, counsel listed four categories of service with a total time for each category, identifying only the starting date for the initial work. The regulation mandates that the form "be accurately completed" (12 NYCRR 300.17 [d] [1]). Notably, the record confirms that counsel was familiar with a bulletin, Subject Number 046-548, issued by the Board on May 28, 2013, explaining that "[t]he form must be filled out in its entirety, including the section for the date, description, and amount of time spent on each service." The bulletin further cautions that no fee will be approved unless "completed in its entirety" (see 12 NYCRR 300.17 [h]). A requirement for such specificity is consonant with the Board's obligation to "approve a fee in an amount commensurate with the services rendered" ... . Matter of Fernandez v Royal Coach Lines, Inc., 2017 NY Slip Op 00368, 3rd Dept 1-19-17

 

 

 

 

CRIMINAL LAW (SEARCH NOT JUSTIFIED BY THE EMERGENCY DOCTRINE, INJURY NOT SUFFICIENT TO SUPPORT ASSAULT 2ND)/SEARCH AND SEIZURE (SEARCH NOT JUSTIFIED BY THE EMERGENCY DOCTRINE)/SUPPRESSION (CRIMINAL LAW, SEARCH NOT JUSTIFIED BY THE EMERGENCY DOCTRINE)/ASSAULT (INJURY NOT SUFFICIENT TO SUPPORT ASSAULT 2ND)/PHYSICAL INJURY (CRIMINAL LAW, INJURY NOT SUFFICIENT TO SUPPORT ASSAULT 2ND)

 

CRIMINAL LAW.

 

SEARCH NOT JUSTIFIED BY THE EMERGENCY DOCTRINE, INJURY NOT SUFFICIENT TO SUPPORT ASSAULT 2ND.

 

The Second Department, reversing and reducing defendant's convictions, determined a gun found after the emergency which justified police entry into defendant's home had abated should have been suppressed. The police forced the door open after receiving a report of an assault with weapons and after learning the defendant had run inside the home. After the defendant was handcuffed and the children secured in a bedroom, the police searched the basement a second time and found the gun. The Second Department also hed the injury suffered by the assault victim was not serious enough to meet the requirements for assault second:

 

... [W]e agree with the defendant that the hearing court should have suppressed the gun. Although "warrantless entries into a home are presumptively unreasonable'" ... , a warrantless search and seizure in a protected area may be lawful under some circumstances pursuant to the emergency doctrine ... . The emergency exception "sanctions warrantless searches and seizures in circumstances presenting an immediate danger to life or property" ... . "This exception must be narrowly construed because it is susceptible of abuse and may be used to validate an otherwise unlawful arrest or seizure" ... . The People have the burden of justifying the warrantless search ... . Moreover, the scope and duration of the search must be limited by, and reasonably related to, the exigencies of the situation ... .

 

Here, the initial entry by the police into the defendant's home and the initial search for occupants and weapons was justified under the emergency doctrine ... . However, once the police had the defendant in handcuffs and had secured all of the occupants of the home in the rear bedroom, the emergency had abated ... . People v Williams, 2017 NY Slip Op 00329, 2nd Dept 1-18-17

 

 

 

 

 

 

 

ENVIRONMENTAL LAW (A COURT'S LIMIITED REVIEW POWERS RE AN AGENCY'S FINDINGS PURSUANT TO A STATE ENVIRONMENTAL REVIEW QUALITY ACT (SEQRA) REVIEW CLARIFIED, SUPREME COURT'S REJECTION OF AGENCY FINDINGS REVERSED)/ADMINISTRATIVE LAW (ENVIRONMENTAL LAW, A COURT'S LIMIITED REVIEW POWERS RE AN AGENCY'S FINDINGS PURSUANT TO A STATE ENVIRONMENTAL REVIEW QUALITY ACT (SEQRA) REVIEW CLARIFIED, SUPREME COURT'S REJECTION OF AGENCY FINDINGS REVERSED)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (A COURT'S LIMIITED REVIEW POWERS RE AN AGENCY'S FINDINGS PURSUANT TO A STATE ENVIRONMENTAL REVIEW QUALITY ACT (SEQRA) REVIEW CLARIFIED, SUPREME COURT'S REJECTION OF AGENCY FINDINGS REVERSED)

 

ENVIRONMENTAL LAW.

 

A COURT'S LIMIITED REVIEW POWERS RE AN AGENCY'S FINDINGS PURSUANT TO A STATE ENVIRONMENTAL REVIEW QUALITY ACT ASSESSMENT CLARIFIED, SUPREME COURT'S REJECTION OF AGENCY FINDINGS REVERSED. 

 

The First Department, over an extensive dissent, reversing Supreme Court, determined the Department of Health (DOH) had given the requisite "hard look" at air quality and noise mitigation issues for a school near a construction site. The Department of Health had approved the measures pursuant to a review under the State Environmental Quality Review Act (SEQRA). The First Department took pains to explain the limited powers of court-review of an agency finding:

 

It is axiomatic that judicial review of an agency determination under the State Environmental Quality Review Act (SEQRA) is limited to whether the agency procedures were lawful and "whether the agency identified the relevant areas of environmental concern, took a hard look' at them, and made a reasoned elaboration' of the basis for its determination" ... . Moreover, "[i]t is not the province of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence" ... . Since it is the responsibility of the agency to analyze reports and other documents submitted to it, "it is not for a reviewing court to duplicate these efforts. As we have repeatedly stated, [w]hile judicial review must be meaningful, the courts may not substitute their judgment for that of the agency, for it is not their role to "weigh the desirability of any action or [to] choose among alternatives"'" ... .

 

Thus, the court's province is to "assure that the agency itself has satisfied SEQRA, procedurally and substantively" ... . In this regard, "[d]issatisfaction with an agency's proposed mitigation measures is not redressable by the courts so long as those measures have a rational basis in the record" ... . Matter of Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan, 2017 NY Slip Op 00383, 1st Dept 1-19-17

 

 

 

 

 

 

 

ENVIRONMENTAL LAW (SUMMARY JUDGMENT PROPERLY GRANTED FOR OIL SPILL ON PLAINTIFF'S PROPERTY)/NAVIGATION LAW (SUMMARY JUDGMENT PROPERLY GRANTED FOR OIL SPILL ON PLAINTIFF'S PROPERTY)/OIL SPILL (SUMMARY JUDGMENT PROPERLY GRANTED FOR OIL SPILL ON PLAINTIFF'S PROPERTY)

 

ENVIRONMENTAL LAW.

 

SUMMARY JUDGMENT PROPERLY GRANTED FOR OIL SPILL ON PLAINTIFF'S PROPERTY.

 

The Second Department determined plaintiff was entitled to summary judgment under the Navigation Law for damages caused by on oil spill on plaintiff's property. Defendant did not show the oil could not have reached surface water or groundwater:

 

The Supreme Court correctly determined that the plaintiff made a prima facie showing of her entitlement to judgment as a matter of law by demonstrating that an employee of the appellant overfilled the plaintiff's oil tanks and discharged oil onto the plaintiff's premises, and that the plaintiff's property was damaged as a result of the discharge ... . The appellant failed to raise a triable issue of fact in opposition by demonstrating that it did not spill oil "into the waters of the state or onto lands from which it might flow or drain into said waters" ... . Contrary to the appellant's contention, it was not sufficient for it to merely demonstrate that the oil spill on the plaintiff's property did not actually reach the surface or groundwater. It was required to also demonstrate that the oil spill could not have done so ... . Zincke v Pacific Energy Corp., 2017 NY Slip Op 00341, 2nd Dept 1-18-17

 

 

 

 

 

 

 

FORECLOSURE (BANK DID NOT DEMONSTRATE STANDING (REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET), SUPREME COURT REVERSED)/EVIDENCE (FORECLOSURE, BANK DID NOT DEMONSTRATE STANDING (REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET), SUPREME COURT REVERSED)/HEARSAY (FORECLOSURE, BANK DID NOT DEMONSTRATE STANDING (REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET), SUPREME COURT REVERSED)/STANDING (FORECLOSURE, BANK DID NOT DEMONSTRATE STANDING (REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET), SUPREME COURT REVERSED)

 

FORECLOSURE, EVIDENCE.

 

BANK DID NOT DEMONSTRATE STANDING (REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET), SUPREME COURT REVERSED.

 

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing to bring the action:

 

In support of its motion, Arch Bay submitted the affidavit of Selena Mitcherson, an assistant vice president of Rushmore Loan Management Services (hereinafter Rushmore), the loan servicer for Arch Bay's assignee [Wachovia]. Mitcherson averred, based upon her review of Rushmore's business records, that "[t]he note . . . was in Plaintiff's physical possession of the note [sic] when the action was commenced." Under these circumstances, Arch Bay failed to demonstrate the admissibility of the records relied upon by Mitcherson under the business records exception to the hearsay rule (see CPLR 4518[a]), since Mitcherson did not attest that she was personally familiar with the record-keeping practices and procedures of Wachovia ... . Arch Bay Holdings, LLC v Albanese, 2017 NY Slip Op 00284, 2nd Dept 1-18-17

 

 

 

 

 

 

INSURANCE LAW (LEAD PAINT, SUBROGATION, QUESTION OF FACT WHETHER CONTRACTUAL SUBROGATION PROVISIONS APPLIED TO CERTAIN POLICIES COVERING INJURY BY LEAD PAINT)/SUBROGATION (INSURANCE LAW, LEAD PAINT, QUESTION OF FACT WHETHER CONTRACTUAL SUBROGATION PROVISIONS APPLIED TO CERTAIN POLICIES COVERING INJURY BY LEAD PAINT)/LEAD PAINT (INSURANCE LAW, LEAD PAINT, QUESTION OF FACT WHETHER CONTRACTUAL SUBROGATION PROVISIONS APPLIED TO CERTAIN POLICIES COVERING INJURY BY LEAD PAINT)

 

INSURANCE LAW.

 

QUESTION OF FACT WHETHER CONTRACTUAL SUBROGATION PROVISIONS APPLIED TO CERTAIN POLICIES COVERING INJURY BY LEAD PAINT.

 

The First Department, in a case reversed and remitted by the Court of Appeals, determined there was a question of fact whether contractual subrogation provisions applied to certain policies covering injury by lead paint (remitting the case to Supreme Court). The Court of Appeals had held the antisubrogation rule did not apply to preclude recovery:

 

Given the ambiguities in the relevant agreements, we cannot find as a matter of law that the insurers are entitled to contractually subrogate to ANP's indemnification rights. On remand, the motion court is to consider the intent of these provisions in light of the extrinsic evidence. Millennium Holdings LLC v Glidden Co., 2017 NY Slip Op 00258, 1st Dept 1-17-17

 

 

 

 

 

 

 

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER WORK ON AIR CONDITIONER WAS REPAIR COVERED BY LABOR LAW 240(1))/REPAIR (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER WORK ON AIR CONDITIONER WAS REPAIR COVERED BY LABOR LAW 240(1))/MAINTENANCE (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER WORK ON AIR CONDITIONER WAS REPAIR COVERED BY LABOR LAW 240(1))

 

LABOR LAW-CONSTRUCTION LAW.

 

QUESTION OF FACT WHETHER WORK ON AIR CONDITIONER WAS REPAIR COVERED BY LABOR LAW 240(1).

 

The First Department determined there was a question of fact whether plaintiff was performing routine maintenance or repair of an air conditioner. Routine maintenance would not support a Labor Law 240(1) cause of action, while repair would:

 

Issues of fact exist as to whether plaintiff was performing routine maintenance, which would not implicate the protections of Labor Law § 240(1), or a repair within the meaning of the statute ... , when he diagnosed an air conditioning unit's malfunction, and replaced a component part. Although plaintiff testified that the compressor contactor malfunctioned due to normal wear and tear ... , making it a worn-out component in an otherwise operable air conditioning unit ... , and that the entire replacement took only 20 minutes, he also stated that this is not a part that would ordinarily require inspection, adjustment or replacement, and that it generally lasts as long as the compressor and can last the life of the unit, indicating that it was not a recurring event, and that the component was not intended to have a limited life ... . Roth v Lenox Terrace Assoc., 2017 NY Slip Op 00402, 1st Dept 1-19-17

 

 

 

 

 

 

 

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF INJURED WHEN A PORTION OF A ROOF FELL ON HIM UNEXPECTEDLY WHEN ANOTHER PORTION OF THE ROOF WAS BEING DEMOLISHED, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED)/DEMOLITION (LABOR LAW-CONSTRUCTION LAW,  (PLAINTIFF INJURED WHEN A PORTION OF A ROOF FELL ON HIM UNEXPECTEDLY WHEN ANOTHER PORTION OF THE ROOF WAS BEING DEMOLISHED, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED)/AGENT (LABOR LAW-CONSTRUCTION LAW, PROPERTY MANAGER COULD BE LIABLE AS AGENT OF OWNER)/PROPERTY MANAGER (LABOR LAW-CONSTRUCTION LAW, PROPERTY MANAGE COULD BE LIABLE AS AGENT OF OWNER)

 

LABOR LAW-CONSTRUCTION LAW.

 

PLAINTIFF INJURED BY A PORTION OF A ROOF WHICH FELL ON HIM UNEXPECTEDLY WHEN ANOTHER PORTION OF THE ROOF WAS BEING DEMOLISHED, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED, PROPERTY MANAGER COULD BE LIABLE AS AGENT OF OWNER.

 

The First Department determined defendant's motion for summary judgment on the Labor Law 240(1) cause of action was properly denied. Plaintiff was injured when a portion of a roof fell on him unexpectedly when another portion of the roof was being demolished. The court further determined the property manager could be held liable as the agent of the owner:

 

Since that part of the roof above plaintiff was not the intended target of demolition at the time of the collapse, Supreme Court properly denied defendants' motion for summary judgment dismissing the Labor Law § 241(6) cause of action ... .

 

Furthermore, defendant Gibraltar Management Co., Inc. was the manager of the property, which handled all activities related to its management and contracted with RA Lynch Excavating for the demolition of the building. Accordingly, it may be held liable as an agent of the owner pursuant to Labor Law § 240(1) and § 241(6) ... . Ragubir v Gibraltar Mgt. Co., Inc., 2017 NY Slip Op 00265, 1st Dept 1-17-17

 

 

 

 

 

 

 

LABOR LAW-CONSTRUCTION LAW (PLANK USED TO CROSS GAP IN ROOF COLLAPSED, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION)

 

LABOR LAW-CONSTRUCTION LAW.

 

PLANK USED TO CROSS GAP IN ROOF COLLAPSED, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION.

 

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. A plank plaintiff was using to cross a gap in the roof collapsed:

 

The alleged discrepancies between plaintiff's account of the accident and the accounts of two of plaintiff's coworkers are irrelevant to plaintiff's central contention that he fell when the plank collapsed, and that he was not provided with proper protection ... . Moreover, defendant raised no issues of fact as to whether plaintiff was the sole proximate cause of the accident. Even assuming the presence of additional safety devices at the work site, there was no evidence that plaintiff was aware of their availability or that he was expected to use them ... . DeFreitas v Penta Painting & Decorating Corp., 2017 NY Slip Op 00277, 1st Dept 1-17-17

 

 

 

 

 

 

 

 

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER'S EXCEPTION TO LABOR LAW 240 (1) LIABILITY APPLIED, DEFENDANTS DEMONSTRATED FREEDOM FROM FAULT UNDER LABOR LAW 200)/HOMEOWNER'S EXCEPTION (LABOR LAW 240 (1), HOMEOWNER'S EXCEPTION TO LABOR LAW 240 (1) LIABILITY APPLIED)

 

LABOR LAW-CONSTRUCTION LAW.

 

HOMEOWNER'S EXCEPTION TO LABOR LAW 240 (1) LIABILITY APPLIED, DEFENDANTS DEMONSTRATED FREEDOM FROM FAULT UNDER LABOR LAW 200.

 

The First Department determined the defendants' motion for summary judgment on the Labor Law 240 (1) and Labor Law 200 causes of the action were properly granted. The plaintiff alleged defendants provided him with a defective ladder and debris where the ladder was placed created a dangerous condition. Defendants demonstrated the homeowner's exception to Labor Law 240 (1) applied and, with respect to Labor Law 200, the defendants demonstrated they did not own the ladder and did not create and were not aware of the debris-related condition on the ground:

 

... [T]he defendants made a prima facie showing that they were entitled to the protection of the homeowner's exemption [to Labor Law 240 (1) liability] by submitting evidence demonstrating that the work being performed directly related to the residential use of the cottage and that they did not direct or control the manner in which the plaintiff performed his work ... . ... 

 

Labor Law § 200 codifies the common-law duty of an owner or contractor to provide employees with a safe place to work ... . "To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the work'" ... . Where the plaintiff's injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a defendant may be liable under Labor Law § 200 " if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'" ... . Where, as here, an accident allegedly involves defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to an alleged violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards ... . A defendant is entitled to summary judgment "only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard" ... . Dasilva v Nussdorf, 2017 NY Slip Op 00288, 2nd Dept 1-18-17

 

 

 

 

 

 

 

 

LANDLORD-TENANT (LEASE WAS NOT AN ATTEMPT TO THWART (NYC) RENT CONTROL AND WAS THEREFORE VALID AND ENFORCEABLE)/RENT CONTROL (NYC) (LEASE WAS NOT AN ATTEMPT TO THWART (NYC) RENT CONTROL AND WAS THEREFORE VALID AND ENFORCEABLE)/LEASES (LEASE WAS NOT AN ATTEMPT TO THWART (NYC) RENT CONTROL AND WAS THEREFORE VALID AND ENFORCEABLE)

 

LANDLORD-TENANT.

 

LEASE WAS NOT AN ATTEMPT TO THWART (NYC) RENT CONTROL AND WAS THEREFORE VALID AND ENFORCEABLE.

 

The First Department, in a full-fledged opinion by Justice Tom, determined the lease in question was not an attempt to thwart rent control and was therefore valid and enforceable. The lease related to three apartments which were leased at different times to the defendant-tenant, who combined them into a single unit. Two of the apartments were rent-controlled and one was rent-stabilized and it was unclear at the time the lease was drawn what law applied:

 

... [T]his case is clearly unique because unlike the many cases where we invalidated leases seeking to circumvent the rent laws, here the parties truly did not know the rent-regulated status of the combined apartments. It appears that there were two rent-controlled apartments that were combined with a rent-stabilized apartment sometime in 1977. Fundamentally, in the foregoing cases there was no uncertainty about the rent-regulated status of the apartments and no question that the parties knowingly attempted to circumvent the rent laws. In contrast, the parties in this matter were unsure about the status of the combined apartment. This confusion was well founded and even supported by the fact that the parties received conflicting determinations concerning the legal status of this apartment from Rent Administrators ... regarding the apartment's status. Furthermore, the lease contemplated the possibility that the apartment could not be treated as intended by the parties. Indeed, while the lease provided for the combined apartments to move from rent control to rent stabilization, the parties explicitly recognized that they might be "prohibited or precluded" from enforcing their intended procedure. This is quite different from those leases which purposely sought to skirt the law and had no regard for the rent regulation scheme whatsoever. In other words, this agreement contemplated not that both parties would evade regulatory coverage but that they would seek approval of their agreement ... . Thus, this case is distinguishable from those involving leases which knowingly and purposely sought to evade the rent laws. Here, there was no intent by the parties to the lease agreement to circumvent the rent laws. 204 Columbia Hgts., LLC v Manheim, 2017 NY Slip Op 00425, 1st Dept 1-19-17

 

 

 

 

MUNCIPAL LAW (RESOLUTION IMPOSING A SURCHARGE ON DEVELOPERS FOR CONSTRUCTION OF WATER MAINS DECLARED VOID, WATER AUTHORITY FAILED TO PROVIDE PROPER NOTICE BEFORE ENACTING THE RESOLUTION)/SURCHARGES (MUNICIPAL LAW, RESOLUTION IMPOSING A SURCHARGE ON DEVELOPERS FOR CONSTRUCTION OF WATER MAINS DECLARED VOID, WATER AUTHORITY FAILED TO PROVIDE PROPER NOTICE BEFORE ENACTING THE RESOLUTION)/WATER MAINS (MUNICIPAL LAW, RESOLUTION IMPOSING A SURCHARGE ON DEVELOPERS FOR CONSTRUCTION OF WATER MAINS DECLARED VOID, WATER AUTHORITY FAILED TO PROVIDE PROPER NOTICE BEFORE ENACTING THE RESOLUTION)

 

MUNICIPAL LAW.

 

RESOLUTION IMPOSING A SURCHARGE ON DEVELOPERS FOR CONSTRUCTION OF WATER MAINS DECLARED VOID, WATER AUTHORITY FAILED TO PROVIDE PROPER NOTICE BEFORE ENACTING THE RESOLUTION.

 

The Second Department, reversing Supreme Court, determined the county water authority did not provide the property developers (called "beneficial owners") with sufficient notice of a resolution which imposed a surcharge upon the developers for the cost of construction of water mains to service the project. The resolution was declared void:

 

Pursuant to Public Authorities Law § 1078(6), the Water Authority is authorized, generally, to impose a surcharge, such as the surcharge at issue in this matter (see Public Authorities Law § 1078[6]; see also id. § 1078[9], [13]). Nonetheless, the record shows that the Water Authority, in enacting the 2009 resolution, failed to provide proper prior notice of the proposed action to the beneficial owners and an opportunity to be heard. Where a municipality seeks to impose a special tax assessment upon a property owner, due process requires that the property owner be granted prior notice and a right to appear ... .

 

Under the circumstances here, the "surcharge" imposed by the 2009 resolution is analogous to a special tax assessment, requiring that the property owner be given prior notice and a right to appear ... . A representative of the beneficial owners averred in an affidavit that they received no prior notice of the Board meeting at which the 2009 resolution was adopted. The Water Authority submitted a copy of a meeting notice and agenda, and the Chief Executive Officer of the Water Authority averred that, prior to the meeting, that agenda was published in a newspaper and posted on the Water Authority website; however, the Water Authority failed to provide proof of publication of the agenda or any evidence of service of the agenda upon the beneficial owners, although the addresses of the beneficial owners were known to the Water Authority. Matter of 22-50 Jackson Ave. Assoc., L.P. v Suffolk County Water Auth., 2017 NY Slip Op 00299, 2nd Dept 1-18-17

 

 

 

 

 

 

 

MUNICIPAL LAW (ACCIDENT REPORT WHICH DID NOT INDICATE PETITIONER WAS INJURED DID NOT NOTIFY THE CITY OF THE ESSENTIAL FACTS, THEREFORE LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)/NEGLIGENCE (MUNICIPAL LAW, ACCIDENT REPORT WHICH DID NOT INDICATE PETITIONER WAS INJURED DID NOT NOTIFY THE CITY OF THE ESSENTIAL FACTS, THEREFORE LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)/NOTICE OF CLAIM (MUNICIPAL LAW, ACCIDENT REPORT WHICH DID NOT INDICATE PETITIONER WAS INJURED DID NOT NOTIFY THE CITY OF THE ESSENTIAL FACTS, THEREFORE LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)

 

MUNICIPAL LAW, NEGLIGENCE.

 

ACCIDENT REPORT WHICH DID NOT INDICATE PETITIONER WAS INJURED DID NOT NOTIFY THE CITY OF THE ESSENTIAL FACTS, THEREFORE LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED.

 

The Second Department determined the petition for leave to file a late notice of claim against the city, based upon a traffic accident involving a city police car, was properly denied. Although there was a police report of the accident, there was no indication in the report that petitioner was injured:

 

"A report which describes the circumstances of the accident without making a connection between the petitioner's injuries and negligent conduct on the part of the public corporation will not be sufficient to constitute actual notice of the essential facts constituting the claim" ... . Here, since the police accident report does not connect any injuries sustained by the petitioners to any negligent conduct on the part of the operator of the respondents' vehicle, it was not sufficient to provide the respondents with actual notice of the essential facts constituting the claim. Moreover, the direct involvement of the respondents' employee in the accident itself, without more, is also not sufficient to establish that the respondents acquired actual notice of the essential facts constituting the claim ... . Matter of D'Agostino v City of New York, 2017 NY Slip Op 00302, 2nd Dept 1-18-17

 

 

 

 

 

 

 

NEGLIGENCE (NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY)/DUTY (NEGLIGENCE, NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY)/FORESEEABILITY (NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY)

 

NEGLIGENCE.

 

NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY. 

 

The First Department, in a full-fledged opinion by Justice Saxe, determined the owner of a taxicab did not owe a duty to plaintiff who was injured by the cab when an occupant of the cab rendered the driver unconscious during a robbery. The administrative rule requiring a partition between the passenger area and the driver was deemed designed to protect the driver of the cab, not the general public outside of the cab.  Similarly a broken CB radio in the cab did not breach a duty owed to the general public:

 

Plaintiffs focus on the foreseeability of the type of accident that occurred in the absence of safety devices that would have protected the driver from assault. They argue that since those safety devices would protect not only the driver, but other motorists and pedestrians who might be injured by the driver, the owner of the vehicle owed a duty to both the driver and to plaintiffs to install safety equipment that would protect them.

 

With regard to how foreseeability interconnects with duty, some confusion has arisen from the classic language of Chief Judge Cardozo's decision in Palsgraf v Long Is. R.R. Co. (248 NY 339, 344 [1928]), that "[t]he risk reasonably to be perceived defines the duty to be obeyed." These words have sometimes been misinterpreted to mean that the foreseeability of harm can "spawn[] a duty" to prevent that harm (see e.g. Pulka v Edelman, 40 NY2d 781, 787 [1976] [dissenting opinion]). However, the majority in Pulka v Edelman clarified the error of this reasoning, to explain that foreseeability may not be relied on to create a duty:

 

"Foreseeability should not be confused with duty. The principle expressed in Palsgraf v Long Is. R.R. Co. (248 NY 339, supra), quoted by the dissent, is applicable to determine the scope of duty — only after it has been determined that there is a duty. Since there is no duty here, that principle is inapplicable" (Pulka, 40 NY2d at 785). On v BKO Express LLC, 2017 NY Slip Op 00281, 1st Dept 1-17-17

 

 

 

 

 

 

 

 

NEGLIGENCE (EVEN THOUGH THE PEDESTRIAN DID NOT HAVE THE RIGHT OF WAY WHEN HE CROSSED THE STREET, QUESTION OF FACT WHETHER DRIVER COULD HAVE AVOIDED STRIKING HIM)/PEDESTRIANS (EVEN THOUGH THE PEDESTRIAN DID NOT HAVE THE RIGHT OF WAY WHEN HE CROSSED THE STREET, QUESTION OF FACT WHETHER DRIVER COULD HAVE AVOIDED STRIKING HIM)/TRAFFIC ACCIDENTS (EVEN THOUGH THE PEDESTRIAN DID NOT HAVE THE RIGHT OF WAY WHEN HE CROSSED THE STREET, QUESTION OF FACT WHETHER DRIVER COULD HAVE AVOIDED STRIKING HIM)

 

NEGLIGENCE.

 

EVEN THOUGH THE PEDESTRIAN DID NOT HAVE THE RIGHT OF WAY WHEN HE CROSSED THE STREET, QUESTION OF FACT WHETHER DRIVER COULD HAVE AVOIDED STRIKING HIM.

 

The First Department, reversing Supreme Court, determined defendant's motion for summary judgment should not have been granted in this pedestrian traffic accident. Plaintiff pedestrian conceded he did not have the right of way when he crossed in a crosswalk. There was a question of fact whether the driver could have seen the pedestrian and avoided the accident:

 

Plaintiff pedestrian testified that he was struck by defendant's vehicle while crossing the street within the crosswalk, but conceded that he did not have the right of way when he entered the street (... Vehicle and Traffic Law § 1112;...). Nevertheless, when viewing the evidence in the light most favorable to plaintiff, triable issues of fact exist as to the relative positions of plaintiff and defendant at the time of the accident, and whether defendant could have seen plaintiff before the accident and failed to exercise due care to avoid the accident ... . Sylvester v Velez, 2017 NY Slip Op 00390, 1st Dept 1-19-17

 

 

 

 

 

 

 

NEGLIGENCE (EMERGENCY DOCTRINE APPLIED, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED)/TRAFFIC ACCIDENTS (EMERGENCY DOCTRINE APPLIED, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED)/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, EMERGENCY DOCTRINE APPLIED, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED)

 

NEGLIGENCE.

 

EMERGENCY DOCTRINE APPLIED, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED.

 

The Second Department determined defendants' motion for summary judgment in this traffic accident case was properly granted pursuant to the emergency doctrine. Plaintiff's car crossed into oncoming traffic and struck defendants' car. Defendants demonstrated the emergency doctrine applied. No question of fact was raised about defendant driver's negligence:

 

The defendants established, prima facie, that the defendant driver was presented with an emergency situation not of his own making when the plaintiff's vehicle crossed over into his lane of traffic, and that he acted reasonably in response to that emergency ... . Contrary to the plaintiff's contention, her deposition testimony, which the defendants submitted in support of their motion, did not create a triable issue of fact as to whether the defendant driver's negligence contributed to the occurrence of the accident ... . Graci v Kingsley, 2017 NY Slip Op 00291, 2nd Dept 1-18-17

 

 

 

 

 

 

 

NEGLIGENCE (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/COURT OF CLAIMS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/SWIMMERS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/RIP CURRENTS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/STATE PARKS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)

 

NEGLIGENCE, COURT OF CLAIMS.

 

STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES.

 

The Second Department determined the state did have a duty to warn swimmers of rip currents. Claimant's decedent drowned after a rip current pulled him away from shore:

 

Turning to the merits, "the State must act as a reasonable [person] in maintaining [its] property,'" such as a park, " in a reasonably safe condition'" ... . "The duty goes beyond the mere maintenance of the physical condition of the park" ... , as there is a "recognized duty of general supervision" ... . The degree of general supervision must be "adequate" ... . Here, in support of its motion for summary judgment, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that it furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent, and that they reacted to the situation in accordance with proper procedure ... . In opposition, the claimant failed to raise a triable issue of fact ... .

 

Furthermore, the defendant has no duty to warn swimmers of threats arising from the existence of natural, transitory conditions of the ocean floor ... , including rip currents ... . Seetaram v State of New York, 2017 NY Slip Op 00336, 2nd Dept 1-18-17

 

 

 

 

 

 

UNEMPLOYMENT INSURANCE (INABILITY TO MEET THE REQUIREMENTS OF AN EMPLOYMENT AGREEMENT IS NOT GOOD CAUSE FOR LEAVING EMPLOYMENT)/EMPLOYMENT AGREEMENT (UNEMPLOYMENT INSURANCE, INABILITY TO MEET THE REQUIREMENTS OF AN EMPLOYMENT AGREEMENT IS NOT GOOD CAUSE FOR LEAVING EMPLOYMENT)

 

UNEMPLOYMENT INSURANCE.

 

INABILITY TO MEET THE REQUIREMENTS OF AN EMPLOYMENT AGREEMENT IS NOT GOOD CAUSE FOR LEAVING EMPLOYMENT.

 

The Third Department determined claimant could not use his inability to meet the requirements of his employment agreement as good cause for leaving his employment. Claimant agreed to provide his own vehicle for work. After an accident he no longer had access to a vehicle. The loss of his vehicle was deemed not to constitute good cause:

 

The Board determined that the employment agreement, wherein claimant agreed to provide his own vehicle, was not controlling. On the record before us, we disagree with the Board's conclusion that claimant left his employment with good cause. Although claimant's testimony constituted substantial evidence regarding the circumstances surrounding the loss of the use of the vehicle, it was error to find that this constituted substantial evidence that his separation from his employment was for good cause. We note that claimant admitted that he shared responsibility for the accident with the other driver and that he had entered into a written employment agreement whereby he agreed to provide his own vehicle and keep it in good operational condition. Further, and importantly, he also agreed that if the vehicle became disabled, he would replace it expeditiously. It is well established that "once the terms of employment have been agreed upon, such terms cannot thereafter be invoked as valid grounds for quitting" ... . Inasmuch as claimant was aware of the terms of his employment and accepted same, we conclude that he could not later invoke his inability to meet the requirements of his employment, regardless of the circumstances or fault surrounding the loss of the use of his vehicle, as good cause for leaving his employment ... . Matter of Brown (Express Delivery LLC--Commissioner of Labor), 2017 NY Slip Op 00359, 3rd Dept 1-19-17

 

 

 

 

 

 

 

UNEMPLOYMENT INSURANCE (COMPUTER DESKTOP ENGINEER NOT AN EMPLOYEE OF JOB PLACEMENT SERVICE)

 

UNEMPLOYMENT INSURANCE.

 

COMPUTER DESKTOP ENGINEER NOT AN EMPLOYEE OF JOB PLACEMENT SERVICE.

 

The Third Department determined claimant, a computer desktop engineer, was not an employee of Logic, an information-technology job-placement service:

 

Even assuming, without deciding, that claimant's IT position was a professional one, as the Board concluded, we similarly find that the record lacks substantial evidence that Logic exercised "overall control . . . over important aspects of the services performed other than results or means" ... . The unrefuted testimony of claimant and Logic's principal is that, aside from recruiting claimant and paying him, Logic had little knowledge of the services that he provided to OSP or his job duties, had no control over his assignments or work performance and did not evaluate or supervise his work. Matter of Desravines (Logic Corp.--Commissioner of Labor), 2017 NY Slip Op 00361, 3rd Dept 1-19-17

 

 

 

 

 

 

 

UNEMPLOYMENT INSURANCE (BIOMETRIC SCREENER WAS AN EMPLOYEE OF HEALTH AND WELLNESS COMPANY)/BIOMETRIC SCREENER (UNEMPLOYMENT INSURANCE, BIOMETRIC SCREENER WAS AN EMPLOYEE OF HEALTH AND WELLNESS COMPANY

 

UNEMPLOYMENT INSURANCE.

 

BIOMETRIC SCREENER WAS AN EMPLOYEE OF HEALTH AND WELLNESS COMPANY.

 

The Third Department determined claimant, a biometric screener, was an employee of Summit, a company which provides health screenings and flu immunizations at clients' workplaces:

 

The record reflects that Summit posted job openings for biometric screeners on its website, interviewed applicants and screened their experience and license credentials. Summit scheduled the clinics with its clients and the clients determined what services were needed. Summit then posted the clinic dates, and screeners could sign up to work at the clinics based upon their availability. If the screeners could not report to work after signing up for a clinic, they notified Summit, which would then find a replacement. Screeners were paid an hourly rate by Summit and were reimbursed for certain travel and other expenses. Summit provided equipment and supplies for the clinics and claimant was required to abide by a dress code and wear a Summit identification badge. In sum, we conclude that the facts in this case are materially indistinguishable from two prior cases in which we concluded that Summit was the employer of its certified medical assistants ... . Matter of Williams (Summit Health, Inc.--Commissioner of Labor), 2017 NY Slip Op 00363, 3rd Dept 1-19-17

 

 

 

 

 

 

WORKERS' COMPENSATION LAW (FAILURE TO TIMELY SERVE ONE OF CLAIMANT'S EMPLOYERS WAS A VALID BASIS FOR DENIAL OF THE CLAIM)

 

WORKERS' COMPENSATION LAW.

 

FAILURE TO TIMELY SERVE ONE OF CLAIMANT'S EMPLOYERS WAS A VALID BASIS FOR DENIAL OF THE CLAIM.

 

The Third Department determined claimant's failure to serve one of his prior employers with the application for benefits was a proper basis for denial of his claim:

 

Pursuant to the regulations in effect at the time of the underlying proceedings, 12 NYCRR former 300.13 (a) provided that "[a]n application to the [B]oard to review a decision of a [WCLJ] . . . shall be filed with the [B]oard within 30 days after notice of filing of the decision of the [WCLJ] together with proof of service upon all other parties in interest ... . Although the Board "may in its discretion suspend or modify the application of these rules" (12 NYCRR 300.30), "the discretion to suspend its own rules does not apply to situations where a party of interest does not receive notice" ... . Here, the record evidence demonstrates that claimant's application for Board review was defective inasmuch as only one of his prior employers and the State Insurance Fund were served, notwithstanding the fact that, as claimant contends, the prior employer served its rebuttal on the parties in interest, thereby affording those parties with notice of the administrative appeal. Accordingly, the Board's denial of claimant's application for review was not an abuse of its discretion, and we decline to disturb that determination ... . Matter of Harrell v Blue Diamond Sheet Metal, 2017 NY Slip Op 00356, 3rd Dept 1-19-17

 

 

 

 

 

 

 

WORKERS' COMPENSATION LAW (CARRIER'S APPLICATION TO REOPEN CLAIM WAS MADE WITHOUT REASONABLE GROUNDS, PENALTY PROPERLY IMPOSED)

 

WORKERS' COMPENSATION LAW.

 

CARRIER'S APPLICATION TO REOPEN CLAIM WAS MADE WITHOUT REASONABLE GROUNDS, PENALTY PROPERLY IMPOSED.

 

The Third Department determined the Workers' Compensation Board found that the carrier's application to reopen a claim was properly denied and a penalty was properly imposed:

 

The Board rationally concluded that proof that claimant failed to respond to the carrier's request for job search information is insufficient to support a reopening of the claim ... . The Board further concluded that, although a rejection of offers of employment, job search assistance or rehabilitative vocational services could be sufficient to reopen the claim, the letter written by the rehabilitation counselor did not constitute such an offer. Rather, the Board relied on language in a professional disclosure form that accompanied the letter, informing claimant that, following a vocational rehabilitation assessment of claimant, a vocational plan "may" be developed that "may include" counseling, job training and assistance returning to work. In light of the lack of any specific offers of employment, job training or assistance in returning to work in the rehabilitation counselor's correspondence, the Board did not abuse its discretion by concluding that claimant's rejection of the counselor's services did not warrant a reopening of the claim ... .

 

As to the penalty imposed, the Board may impose a penalty against a party who institutes or continues a proceeding in respect of a claim without reasonable ground (see Workers' Compensation Law § 114-a [3] [i]), and the Board's imposition of a penalty under this statute will not be disturbed if supported by substantial evidence ... . The Board imposed the penalty based upon its finding that the counselor's letter did not constitute an offer of employment or vocational services and, therefore, the carrier had "filed a request to reopen without the proper supporting documentation." While the Board's determination — that the rejection of the counselor's services by claimant did not warrant a reopening of the claim — was not an abuse of discretion, we cannot say that substantial evidence supports the Board's conclusion that, by relying on proof that the Board ultimately rejected, the carrier initiated the request to reopen the claim without reasonable grounds ... . Matter of Andrews v Combined Life Ins., 2017 NY Slip Op 00360, 3rd Dept 1-19-17

 

 

 

 

 

 

 

WORKERS' COMPENSATION LAW (CARRIER'S REQUEST FOR AN ADJOURNMENT OF AN EXPEDITED PERMANENCY HEARING PROPERLY DENIED, REQUEST WAS NOT BASED UPON AN EMERGENCY)/EXPEDITED HEARING (WORKERS' COMPENSATION LAW, CARRIER'S REQUEST FOR AN ADJOURNMENT OF AN EXPEDITED PERMANENCY HEARING PROPERLY DENIED, REQUEST WAS NOT BASED UPON AN EMERGENCY)

 

WORKERS' COMPENSATION LAW.

 

CARRIER'S REQUEST FOR AN ADJOURNMENT OF AN EXPEDITED PERMANENCY HEARING PROPERLY DENIED, REQUEST WAS NOT BASED UPON AN EMERGENCY.

 

The Third Department determined the carrier's request for an adjournment of an expedited hearing for the production of video surveillance of the claimant was properly denied:

 

Pursuant to Workers' Compensation Law § 25 (3) (d), the Board ordered that claimant's hearing be transferred to the expedited calendar, and the parties were notified of this well in advance of the scheduled ... hearing at which the issue of permanency was to be resolved. With regard to expedited hearings, the rules of the Board provide that "[a]djournments . . . shall only be granted in accordance with [12 NYCRR 300.38]" (12 NYCRR 300.34 [f] [1]), which specifies that "[a]djournments for . . . a hearing in a controverted claim shall only be granted in an emergency" (12 NYCRR 300.38 [j] [1]). An "emergency" is defined as "a serious event that occurs preventing the timely completion of some action ordered or directed," and includes "death in the family, serious illness, significant prior professional or business commitment, and inclement weather that prevents travel. It does not include any event that can be prevented or mitigated by the timely taking of reasonable action" (12 NYCRR 300.38 [j] [5] [emphasis added]).

 

Here, the hearing notice clearly advised the parties that an adjournment would not be granted except in the case of an emergency. As the full Board concluded and the record reflects, the carrier's request for an adjournment to produce and share the video following claimant's testimony was not premised upon any claimed emergency but, rather, was a consequence of the carrier's choice not to bring the video to the hearing based upon the belief that they "weren't going to be watching [it] today." Matter of Maffei v Russin Lbr. Corp., 2017 NY Slip Op 00362, 3rd Dept 1-19-17

 

 

 

 

 

 

 

WORKERS' COMPENSATION LAW (MEDICAL REPORT WAS SUFFICIENT TO REOPEN A CLOSED CLAIM WITHIN SEVEN YEARS, CLAIM SHOULD NOT HAVE BEEN TRANSFERRED TO THE SPECIAL FUND)/SPECIAL FUND (WORKERS' COMPENSATION LAW, MEDICAL REPORT WAS SUFFICIENT TO REOPEN A CLOSED CLAIM WITHIN SEVEN YEARS, CLAIM SHOULD NOT HAVE BEEN TRANSFERRED TO THE SPECIAL FUND)

 

WORKERS' COMPENSATION LAW.

 

MEDICAL REPORT WAS SUFFICIENT TO REOPEN A CLOSED CLAIM WITHIN SEVEN YEARS, CLAIM SHOULD NOT HAVE BEEN TRANSFERRED TO THE SPECIAL FUND.

 

The Third Department determined claimant's prior claim had been truly closed in 2005 and 2009 medical report was sufficient to reopen the claim. Since the claim was reopened within seven years of the injury, the claim was not transferred to the Special Fund:

 

Workers' Compensation Law § 25-a provides that "liability for a claim shifts to the Special Fund where a workers' compensation case that was fully closed is reopened more than seven years after the underlying injury occurred and more than three years after the last payment of compensation" ... . "A medical report may be deemed an application to reopen if the report gives the Board sufficient notice of a change in a claimant's condition, as opposed to simply indicating continued disability and treatment" ... . Such medical report "should not be given a strained interpretation, but should only be interpreted as a basis to reopen if that was clearly the doctor's intention," and the "mere mention of permanency in a medical report, absent an opinion regarding the degree of permanency, is insufficient to act as a request to reopen a case" ... . "Such a decision of the Board will not be disturbed when supported by substantial evidence" ... . ...

 

... [T]he record reflects that claimant continued to receive authorized treatment for lower-back pain with his attending chiropractor, and, following a reexamination of claimant on August 11, 2009, claimant's chiropractor reported for the first time that claimant exhibited a 25% permanent partial disability. Subsequent examinations revealed no material change in claimant's condition, and the chiropractor continued to report that claimant had a 25% permanent partial disability. Inasmuch as the August 2009 medical report raised the issue of permanency and the degree of claimant's disability, we find that substantial evidence supports the Board's determination that the August 2009 medical report constituted an application to reopen and that, as such, this case was reopened within seven years of claimant's May 2005 injury ... . Matter of Williams v General Elec., 2017 NY Slip Op 00364, 3rd Dept 1-19-17

 

 

 

 

 

 

 

WORKERS' COMPENSATION LAW (INSUFFICIENT PROOF OF CAUSAL CONNECTION BETWEEN JOB-RELATED STRESS AND STROKE)/STROKE (WORKERS' COMPENSATION LAW, INSUFFICIENT PROOF OF CAUSAL CONNECTION BETWEEN JOB-RELATED STRESS AND STROKE)

 

WORKERS' COMPENSATION LAW.

 

INSUFFICIENT PROOF OF CAUSAL CONNECTION BETWEEN JOB-RELATED STRESS AND STROKE.

 

The Third Department determined the evidence was insufficient to support a causal connection between job-related stress and a stroke:

 

As the party seeking benefits, claimant bore the burden of establishing — by competent medical evidence — a causal connection between his employment and the claimed disability ... . In this regard, "[w]hile the Board cannot rely upon expert opinion evidence that amounts to nothing more than pure speculation, the Workers' Compensation Law does not require that medical opinions be expressed with absolute or reasonable medical certainty" ... . Rather, "[a]ll that is required is that it be reasonably apparent that the expert meant to signify a probability as to the cause and that his or her opinion be supported by a rational basis" ... . * * * Given claimant's multiple and independent risk factors for a stroke, as well as his physician's equivocal testimony as to the role that stress "may" or "could" have played in contributing to claimant's disability, the Board was free to characterize — and ultimately reject — the medical evidence offered by claimant as speculative ... . Matter of Qualls v Bronx Dist. Attorney's Off., 2017 NY Slip Op 00365, 3rd Dept 1-19-17

 

 

 

 

 

 

 

 

WORKERS' COMPENSATION LAW (ALTHOUGH CLAIMANT WAS INJURED IN FLORIDA, NEW YORK HAD SUBJECT MATTER JURISDICTION)/JURISDICTION, SUBJECT MATTER (WORKERS' COMPENSATION LAW, ALTHOUGH CLAIMANT WAS INJURED IN FLORIDA, NEW YORK HAD SUBJECT MATTER JURISDICTION)

 

WORKERS' COMPENSATION LAW.

 

ALTHOUGH CLAIMANT WAS INJURED IN FLORIDA, NEW YORK HAD SUBJECT MATTER JURISDICTION.

 

The Third Department determined that, although claimant was injured in Florida, significant contacts with New York established subject matter jurisdiction:

 

"For the Board to have jurisdiction over a claim arising from a work-related injury that occurred outside New York, it must determine whether there were sufficient and significant contacts between the state and the employer to support a reasonable conclusion that the employment was to some extent sited in this state" ... . To make this determination, the Board may consider various factors, including where the employee resides, where the employee was hired, the location of the employee's employment and the employer's offices, whether the employee was expected to return to New York after completing out-of-state work for the employer and the extent to which the employer conducted business in New York ... . Upon due consideration of these relevant factors, if "it appears that the claimant's employment had sufficient significant contacts with New York such that it may reasonably be concluded that the employment was located here, then subject matter jurisdiction exists" ... .  While there is no dispute that claimant sustained her injuries while working in Florida, the record also establishes that claimant has maintained her primary and permanent residence in New York since 1983. Claimant testified that, in 2006, she was interviewed and hired at her employer's residence located in New York and that her job duties included maintaining, and cooking for, that residence. Although claimant traveled with, and worked for, her employer in Florida for approximately eight months out of the year, claimant lived at her employer's residence in New York for the balance of the year for five days a week while performing her job responsibilities. In addition, claimant testified that, throughout her employment, she considered New York her home. Matter of Barnett v Callaway, 2017 NY Slip Op 00366, 3rd Dept 1-19-17

 

 

 

 

 

 

 

 

ZONING (ZONING BOARD DID NOT SET OUT A FACTUAL BASIS FOR FAILING TO FOLLOW ITS OWN PRECEDENT IN THIS VARIANCE PROCEEDING, ZONING BOARD'S GRANT OF THE VARIANCES WAS THEREFORE ARBITRARY AND CAPRICIOUS)/VARIANCES (ZONING, ZONING BOARD DID NOT SET OUT A FACTUAL BASIS FOR FAILING TO FOLLOW ITS OWN PRECEDENT IN THIS VARIANCE PROCEEDING, ZONING BOARD'S GRANT OF THE VARIANCES WAS THEREFORE ARBITRARY AND CAPRICIOUS)

 

ZONING.

 

ZONING BOARD DID NOT SET OUT A FACTUAL BASIS FOR FAILING TO FOLLOW ITS OWN PRECEDENT IN THIS VARIANCE PROCEEDING, ZONING BOARD'S GRANT OF THE VARIANCES WAS THEREFORE ARBITRARY AND CAPRICIOUS.

 

The Second Department determined the zoning board's failure explain why it departed from its own precedent rendered its grant of variances arbitrary and capricious:

 

[The] variances permitted [petitioner] to subdivide a parcel he owned into two substandard lots, and to construct a two-family residence on each lot. In February 2014, the petitioners commenced this CPLR article 78 proceeding to review the Zoning Board's determination on the ground that it was arbitrary and capricious, because the Zoning Board failed to properly distinguish the subject application from a substantially similar prior application, made as to the same parcel, which the Zoning Board had denied in 2010. The Supreme Court granted the petition and annulled the determination ... .

 

"A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious" ... . Where it is shown that a zoning board has reached contrary results on substantially similar facts, an explanation is required ... . Here, the Zoning Board's failure to set forth a factual basis as to why it was departing from its prior precedent rendered its determination arbitrary and capricious ... . Matter of Amdurer v Village of New Hempstead Zoning Bd. of Appeals, 2017 NY Slip Op 00300, 2nd Dept 1-18-17