Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)
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Extremely Forgiving Nature of CPLR 3216 (Dismissal for Neglect to Prosecute) Explained
The Second Department noted the "extremely forgiving" nature of CPLR 3216 in affirming Supreme Court's denial of a motion to dismiss for neglect to prosecute:
CPLR 3216 is "extremely forgiving" ... in that it "never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed" ... . While the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a meritorious cause of action (see CPLR 3216[e]...), such a dual showing is not strictly necessary to avoid dismissal of the action ... . Altman v Donnenfeld, 2014 NY Slip Op 05402, 2nd Dept 7-23-14
Criteria for Determining a Motion to Amend the Pleadings Explained
In reversing Supreme Court's denial of a motion for leave to serve a second amended complaint, the Second Department explained the criteria for determining the motion:
"Applications for leave to amend pleadings under CPLR 3025(b) should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit" ... .
"No evidentiary showing of merit is required under CPLR 3025(b)" ... . "The court need only determine whether the proposed amendment is palpably insufficient' to state a cause of action or defense, or is patently devoid of merit" (id.). "[A] court shall not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt" ... . Favia v Harley-Davidson Motor Co Inc, 2014 NY Slip Op 05408, 2nd Dept 7=23=14
Successive Summary Judgment Motions OK Based On Evidence Learned in Discovery
The Third Department noted that successive summary judgment motions are allowed where discovery turns up new evidence. In this case summary judgment was granted to the defendants who were struck by plaintiff's decedent's vehicle which had crossed over into on-coming traffic:
Although successive summary judgment motions are generally discouraged absent "'a showing of newly discovered evidence or other sufficient cause'" ..., where, as here, evidence produced from additional discovery places the motion court "in a far better position to determine" a legally dispositive issue, the court should not be precluded from exercising its discretion to consider the merits of a subsequent motion ... . Foster v Kelly, 2014 NY Slip Op 05472, 3rd Dept 7-24-14
Confusing Jury Instruction Re: the Justification Defense Required Reversal of Murder Conviction in the Interest of Justice/Defendant's Attorney Should Have Been Allowed to Testify at the Suppression Hearing---There Was a Question of Fact Whether the Attorney Called and Told the Police He Represented the Defendant and Defendant Should Not Be Questioned
The First Department reversed defendant's murder conviction in the interests of justice because of a confusing jury instruction. The trial court did not make it clear to the jurors that the use of deadly force can be justified in defense of a robbery. The First Department also noted that defendant's lawyer should have been allowed to testify at the suppression hearing because it was alleged the lawyer called the police station, informed officer Risorto he was representing defendant, and told officer Risorto the defendant should not be questioned:
In its main charge, the court instructed the jury that "[t]he only difference between the law of self-defense to repel a robbery as opposed to assault [is that] in repelling the robbery, the person has no duty to retreat." This is an incorrect statement of the law because it ignores an additional critical difference between the two grounds for justification, namely, that deadly physical force may be permissible to defend against a robbery even if the alleged robber is using only physical force, and not deadly physical force (see People v Fuller, 74 AD2d at 879 ["a person is justified in using deadly physical force if he reasonably believed it necessary to use such force in order to resist his victim's imminent use of [mere] physical force against himself, in the course of a robbery attempt"]; People v Davis, 74 AD2d 607, 609 [2d Dept 1980] [jury should have been told that the defendant was justified in using deadly physical force if he reasonably believed it necessary to do so to resist the imminent use of physical force against him in the course of a robbery attempt]). The court's error was exacerbated when it repeated this erroneous statement in response to a jury note requesting further instructions on the defense of justification. * * *
The Court of Appeals has held that "an attorney enters a criminal matter and triggers the indelible right to counsel when the attorney . . . notifies the police that the suspect is represented by counsel" ... . Once the police have reason to know that the suspect is represented by counsel in the case under investigation, the right to counsel cannot be waived unless the suspect does so in the presence of counsel ... . An attorney does not need to enter the case in person, but can communicate his representation to the police by phone, "at which point the police are required to cease all questioning" ... .
Here, the court erred in precluding defense counsel from testifying about the critical conversation with Risorto. The police testimony, along with defense counsel's affirmation, raised questions as to what defense counsel actually said to Risorto and, in particular, whether defense counsel told Risorto that he "represented" defendant in the case for which defendant was to be questioned. The court should not have made a factual finding that implicitly accepted Risorto's account, without giving defendant the opportunity to challenge that account. People v McTiernan, 2014 NY Slip Op 05363, 1st Dept 7-17-14
People Failed to Demonstrate Seizure of Heroin from Defendant's Impounded Vehicle Was Pursuant to a Standard Inventory Search---Heroin Should Have Been Suppressed
The Third Department, over a dissent, determined that heroin seized from inside defendant's vehicle after a stop for speeding should have been suppressed. The defendant was arrested at the scene of the stop based upon an outstanding warrant. The People failed to demonstrate the heroin was found pursuant to a standard inventory search of the impounded vehicle:
Following a lawful arrest of the driver of a vehicle, "the police may impound the car, and conduct an inventory search, where they act pursuant to 'reasonable police regulations relating to inventory procedures administered in good faith'" ... . To this end, "courts have insisted that an inventory search be conducted according to a familiar routine procedure and that the procedure meet two standards of reasonableness" ... . Specifically, the procedures must be "designed to meet the legitimate objectives of the search while limiting the discretion of the officer in the field" ... .
Here, the transcript of the ... suppression hearing fails to support a determination that the conduct of the police was reasonable. Although not fatal to their argument against suppression ..., the People failed to offer a copy of the State Police procedure manual into evidence. Additionally, the People also failed to ask any substantive questions of their witnesses so as to otherwise establish (1) that the State Police had a standardized procedure, (2) that such procedure was reasonable, and (3) that it was followed here. People v Leonard, 2014 NY Slip Op 05468, 3rd Dept 7-24-14
Clause in Appeal-Waiver Agreement Which Purported to Vacate Plea and Sentence Upon the Filing of a Notice of Appeal Unenforceable
The First Department determined defendant's waiver of his right to appeal was not adequately explained by the sentencing court and further determined a clause in the waiver agreement is unenforceable. The Clause purported to vacate the plea and sentence if a notice of appeal is filed:
,,,[W]e agree with defendant that the clause in the waiver agreement that purportedly treats the filing of a notice of appeal by defendant as a motion to vacate the judgment to be unenforceable. Specifically, the waiver form included the following clause:
"If the defendant or the defendant's attorney files a notice of appeal that is not limited by a statement to the effect that the appeal is solely with respect to a constitutional speedy trial claim or legality of the sentence, they agree that the District Attorney and or Court may deemed such filing to be a motion by the defendant to vacate the conviction and sentence, and will result, upon the application and consent of the District Attorney, in the plea and sentence being vacated and this indictment being restored to its pre-pleading status."
This clause is unenforceable because there is no statutory authority to vacate a judgment under these circumstances (CPL 440.10,,,).
Further, this language discourages defendants from filing notices of appeal even when they have claims that cannot be waived, such as one concerning the lawfulness of the waiver or the plea agreement itself. "[A]n agreement to waive appeal does not foreclose appellate review in all situations" ... . If the agreement to waive were itself sufficient to foreclose appellate review, "the court would then be deprived of the very jurisdictional predicate it needs as a vehicle for reviewing the issues that survive the waiver" ... . The language in the written waiver, in essence, purports to prevent appellate claims that have been found by the courts to be "unwaivable" precisely because of their constitutional import ... . People v Santiago 2014 NY Slip Op 05493, 1st Dept 7-24-14
Parole Board's Role and Court's Review Role Explained in Depth
The Third Department, in an extensive and detailed decision, over a dissent, determined petitioner had been properly denied parole, despite his extraordinary achievements in prison, including his earning bachelor's and master's degrees. The petitioner was convicted of felony murder in connection with the death of a police officer:
[T]he record establishes that the Board acknowledged petitioner's extensive rehabilitative success along with the additional statutory factors, but placed greater emphasis on the seriousness of petitioner's crime in its determination that release would be incompatible with the welfare of society and so deprecate the seriousness of the crime as to undermine respect for the law, as it is "entitled" to do ... . We are thus constrained to affirm to do otherwise is to implicitly overrule the decades of our well-settled jurisprudence set forth above ... . Matter of Hamilton v New York State Div of Parole, 2014 NY Slip Op 05487, 3rd Dept 7-24-14
Disclaimer of Coverage Unreasonably Untimely as a Matter of Law
The Second Department determined the defendant insurer's disclaimer of coverage was unreasonably untimely as a matter of law:
An insurance company has an affirmative obligation to provide written notice of a disclaimer of coverage as soon as is reasonably possible, even where the policyholder's own notice of the claim to the insurer is untimely ... . Here, the defendant learned by January 6, 2012, at the latest, about the underlying personal injury action. The defendant was aware by that date of the grounds for disclaimer of coverage ... . Nevertheless, it did not disclaim coverage until March 28, 2012, almost three months later, a delay that, under the circumstances of this case, is unreasonable as a matter of law ... . Darling Ferreira v Global Liberty Ins Co of NY, 2014 NY Slip Op 05409, 2nd Dept 7-23-14
Mother Could Not Maintain a Cause of Action for Emotional Harm Based Upon the Death of Her Baby---Although the Baby Was "Pre-Viable" and Unconscious, the Baby Was Born Alive and the Mother Suffered No Independent Injury
The First Department determined mother could not bring a cause of action for emotional harm as a result of the death of her premature baby. Although the baby was "pre-viable," the baby was born alive and the mother suffered no independent injury.
The mother's argument that the fact that the baby was "pre-viable" unconscious and lived for only a few hours distinguished this case from the controlling cases was rejected:
Plaintiff argues that the rationale of Mendez v Bhattacharya (15 Misc 3d 974) should be applied to this case. In Mendez, the infant had an Apgar score of one at one minute and zero at five minutes (15 Misc 3d at 981). It was uncontroverted that "even if there was a technical sign of life due to the lingering heartbeat, the child was not viable, since there was no other sign of life besides the momentary heartbeat" (id. at 982). The infant had no respiration and efforts to resuscitate by mechanical ventilation and CPR were unsuccessful (id. at 981). The court found that under those facts, the presence of a "momentary heartbeat" did not rise to the level of a live birth within the purview of the Broadnax and Sheppard-Mobley decisions, and therefore the plaintiff mother had a viable cause of action for emotional distress (id. at 983).
That is clearly not the situation before us. To accept plaintiff's contention that, where there is a live birth but the infant never attains consciousness, a mother should be permitted to maintain a cause of action for emotional distress would impermissibly expand the narrow holdings in Broadnax and Sheppard-Mobley. Plaintiff was entitled to bring a wrongful death action on behalf of the estate of the person who was injured, i.e., the infant who survived, albeit briefly ... . Levin v New York City Health & Hosps Corp..., 2014 NY Slip Op 05492, 1st Dept 7-24-14
Water Tracked In from Sidewalk Cleaning Raised Question of Fact About Creation of a Dangerous Condition in a Slip and Fall Case---Open and Obvious Condition Relieves Owner of Duty to Warn But Not Duty to Keep Premises Safe
The First Department determined there were questions of fact about whether the independent contractor which cleaned the sidewalks adjacent to defendants' office building created the dangerous condition. The sidewalks were cleaned by hosing them down. It was alleged that water tracked in from the sidewalks created a slippery condition, causing plaintiff's fall. The court noted that an open and obvious condition relieves the owner of a duty to warn, but does not the duty to maintain the premises in a reasonably safe condition:
In this case a jury could reasonably conclude that the defendants created a dangerous condition in the course of cleaning the sidewalk by hosing down the perimeter of the building without taking precautions to keep water from being tracked onto the marble lobby floor. Slippery conditions created by defendants in the course of cleaning a premises can give rise to liability ... . Tracked-in water that creates a slippery floor can be a dangerous condition ... . While reasonable care does not require an owner to completely cover a lobby floor with mats to prevent injury from tracked-in water ..., it may require the placement of at least some mats ... . Since there is evidence supporting a conclusion that there were no mats on the floor near the entrance, there is an issue for the jury concerning whether the defendants exercised reasonable care, including whether they took reasonable precautions against foreseeable risks of an accident while cleaning the sidewalk during a busy work morning.
Defendants' contention that the water on the sidewalk was open and obvious does not warrant summary judgment dismissing the complaint. An open and obvious condition relieves the owner of a duty to warn about the danger, but not of the duty to maintain the premises in a reasonably safe condition ... . DiVetri v ABM Janitorial Serv Inc, 2014 NY Slip Op 05494, 1st Dept 7-24-14
Failure to Specifically Demonstrate When Area Where Fall Occurred Was Last Inspected or Cleaned Required Denial of Summary Judgment
The Second Department determined the defendant did not meet its burden of demonstrating a lack of constructive notice of the condition of the stairway where plaintiff fell (allegedly the presence of dirty paper and urine):
Although the defendant submitted an affidavit from the supervisor of the caretaker assigned to clean the subject building on the day immediately preceding the plaintiff's nighttime accident, that affidavit was insufficient to establish when the stairway was last inspected and cleaned relative to the plaintiff's fall. The affidavit was conclusory and only referred, in a general manner, to the janitorial schedule followed on normal weekdays. Moreover, another caretaker testified at his deposition, and the defendant concedes, that the normal weekday janitorial schedule was not in effect on the day preceding the plaintiff's accident, which was the Thanksgiving holiday. Since the defendant did not provide evidence regarding any specific cleaning or inspection of the area in question on that day, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law... . Williams v New York City Hous Auth, 2014 NY Slip Op 05425, 2nd Dept 7-23-14
Diving Into Shallow Water Raised Questions of Fact Re: Foreseeability and Defendants' Negligence
The Third Department determined questions of fact had been raised about foreseeability and negligence in an action based upon plaintiff's diving into shallow water incurring a spinal injury. The incident occurred in April on an unusually hot day:
The dynamic of this case is that the accident occurred on an unseasonably warm spring day, well before the swimming season would normally commence. With the lake levels reduced, plaintiff's professed expectations of water depth were tragically proven unfounded. Compounding the problem, as explained by plaintiff's wife, was the fact that the water was not clear enough to see the bottom. Despite plaintiff's initial protests about going in the water, the fact remains it was extremely hot, the children had been swimming and plaintiff was wearing swim trunks. [Defendant] acknowledged that "[i]t wouldn't have surprised [him] for them to get in the water." Under these circumstances, whether it was foreseeable that plaintiff would dive into the water presents a question of fact for the trier of fact to resolve ... . Whether defendants breached their duty of care by failing to inform plaintiff of the reduced water level also remains a question of fact .. . Correspondingly, a triable issue of fact remains as to whether plaintiff was actually aware of the depth of the water and dove in reckless disregard of his own safety. As such, his conduct cannot be characterized as a superseding cause as a matter of law ... . Toyryla v Denis, 2014 NY Slip Op 05483, 3rd Dept 7-24-14
Building Owner Entitled to Summary Judgment in Slip and Fall Case Based Upon Tracked In Water (Inclement Weather)--Tenant Ordinarily Does Not Have a Duty of Care Re: Common Areas
The Second Department determined the building owner was entitled to summary judgment in a slip and fall case based upon water tracked in during inclement weather. The court noted that a tenant does not have a duty of care with respect to the condition of common areas of the building:
"In a slip-and-fall case, the defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it" ... . Moreover, a property owner is not obligated to provide a constant remedy to the problem of water being tracked into a building during inclement weather ..., and has no obligation to cover all of its floors with mats or to continuously mop up all moisture resulting from tracked-in precipitation ... . A tenant ordinarily owes no duty of care with respect to a dangerous condition in a common area of a building ... .
The owner and the tenant, on their respective motions, established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them. In support of their motions, the owner and the tenant each presented evidence that it had not created the alleged defective condition. The owner also presented evidence that it had neither actual nor constructive notice of the alleged defective condition, i.e., the alleged presence of water on the vestibule floor of the subject building. Paduano v 686 Forest Ave LLC, 2014 NY Slip Op 05415, 2nd Dept 7-23-14
City Can Not Be Held Liable for Injuries Caused by Attacking Dogs About Which Complaints Had Been Made---No Special Relationship Between Plaintiff's Decedent and City
The Second Department determined no special relationship existed between plaiintiff's decedent and the city such that the city could be held liable for the alleged failure to address complaints about the dogs which attacked plaintiff's decedent, who died from the injuries. The court explained why none of the criteria for a special relationship applied:
" A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation'" ... .
As for the first way of forming a special relationship, contrary to the plaintiff's contention, a private right of action may not be fairly implied from Agriculture and Markets Law (hereinafter AML) § 123 ... . The Supreme Court properly determined that the recognition of a private right of action would be inconsistent with the legislative scheme underlying AML § 123 ... . Accordingly, no special relationship was created between the City and the decedent through the breach of a statutory duty.
As for the second way of forming a special relationship, the City met its prima facie burden of demonstrating its entitlement to judgment as a matter of law by submitting evidence that it did not voluntarily assume a duty toward the decedent. To demonstrate that a municipality voluntarily assumed an affirmative duty and a plaintiff justifiably relied on the municipality's undertaking, four elements must be shown: "(1) an assumption by a municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; (2) knowledge on the part of a municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" ... . Here, the City established and the plaintiff concedes that the decedent never made direct contact with the City, and the circumstances here did not give rise to one of the narrow exceptions to this requirement ... . The absence of direct contact negates the existence of a special relationship pursuant to the City's voluntary assumption of a duty to the decedent ... .
As for the third way of forming a special relationship, which has been recognized in only rare circumstances, the City must affirmatively act to place the plaintiff in harm's way ... . Contrary to the plaintiff's contention, the evidence established, prima facie, that the City did not take positive direction and control in the face of a known, blatant, and dangerous safety violation. Sutton v City of New York, 2014 NY Slip Op 05421, 2nd Dept 7-23-14
NEGLIGENCE/NUISANCE/TRESPASS/PRODUCTS LIABILITY/TOXIC TORTS/ENVIRONMENTAL LAW/CIVIL PROCEDURE
County Water Authority Had Standing to Bring Action Based Upon the Chemical Contamination of Its Wells---CPLR 214-c Governs Actions Based Upon Contamination---Action Was Untimely
The Second Department, in a full-fledged opinion by Justice Hinds-Radix, determined that the plaintiff Suffolk County Water Authority (SCWA) had standing to bring a negligence/nuisance/trespass/products liability action against defendants alleging contamination of wells caused by chemicals (PCE and TCE). However, the court determined the action was barred as untimely by CPLR 214-c. In the course of the opinion, the court explained what the "two-injury" rule is in the context of a continuing wrong. The court determined that CPLR 214-c was designed to eliminate the continuing-wrong statute of limitations calculation in contamination cases. In addition, the court explained the difference between latent and patent injuries with respect to CPLR 214-c:
Generally, a plaintiff has standing to sue if it has suffered an injury in fact ... in some way different from that of the public at large and within the zone of interests to be protected by relevant statutory and regulatory provisions ... .
We reject the movants' contention that the SCWA lacked standing to seek damages for injury to 115 wells where the PCE contamination level fell below the MCL (federal and state "maximum contamination level" for PCE). The MCL is only a regulatory standard which governs conduct in supplying water to the public. While the MCL may be helpful in determining whether an injury has occurred, the MCL does not set a bar below which an injury cannot have occurred ... . Similarly, the MCL does not define whether an injury has occurred, since contamination below that level could result in some injury, such as increased monitoring costs ... . It is undisputed that the SCWA has expended resources in its effort to address the widespread contamination, even at wells where the contamination has not risen to or exceeded the MCL. Thus, the SCWA has alleged that it has suffered an injury for which it may seek redress, irrespective of the level of contamination. * * *
CPLR 214-c was enacted in 1986 to ameliorate the effect of a line of cases which held that toxic tort claims accrued upon the impact or exposure to the substance, even though the resulting injury or illness did not manifest itself until some time later ... . CPLR 214-c provides for a three-year limitations period for actions to recover damages for injuries to person or property "caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property" (CPLR 214-c). The three-year period is "computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier" (CPLR 214-c...). For the purposes of CPLR 214-c, "discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, the injured party discovers the primary condition on which the claim is based'" ... . Suffolk County Water Auth v Dow Chem Co, 2014 NY Slip Op 05420, 2nd Dept 7-23-14
TRUSTS AND ESTATES
No Contest Clause Was Not Triggered by Offering Will for Probate or Questioning Actions of Named Executor(s)
The Third Department, in a full-fledged opinion by Justice Peters, over a dissent, determined that a no contest clause in a will was not triggered by offering the will for probate and was not triggered by questioning the actions of the named executors. The beneficiary of a 2006 will, who had been excluded from the 2011 will, sought to probate the 2006 will. The petitioners then sought probate of the 2011 will when the executors failed to do so. The beneficiary of the 2006 will argued that the no contest clause in the 2011 will had thereby been triggered:
While enforceable, no contest clauses are disfavored and must be strictly construed ... . The no contest provision at issue provides for revocation of a beneficiary's interest if the beneficiary "contest[s] the probate or validity of [the] Will or any provision thereof, or . . . institute[s] . . . any proceeding to . . . prevent any provision [of the Will] from being carried out in accordance with its terms." Here, petitioners did not contest the validity of the will or any of its provisions by seeking to admit the will to probate ... . Rather, given that [the beneficiary of the 2006 will who had been excluded as a beneficiary from the 2011 will] had already offered the 2006 will for probate nearly two months earlier, they reasonably undertook to probate the 2011 will themselves after the nominated executor and successor executor thereunder failed to do so.
To the extent that petitioners sought letters of administration, we cannot conclude that, by including the no contest clause in his will, decedent intended to preclude a beneficiary from challenging or otherwise questioning the conduct of a fiduciary. Matter of Prevratil, 2014 NY Slip Op 05478, 3rd Dept 7-24-14
Tutors Are Employees Entitled to Unemployment Insurance
The Third Department affirmed the Unemployment Insurance Appeals Board' determination that tutors were employees of "Ivy League" entitled to unemployment insurance:
This Court previously has held that "an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create and employment relationship" ... . Here, there is no question that Ivy League screened, interviewed and conducted a criminal background check with respect to prospective tutors, paid the tutors affiliated with it an agreed-upon hourly rate based upon documentation submitted by the tutors and matched individual clients with the tutor that it deemed best suited for that particular client's needs. Additionally, pursuant to the terms of the written agreement governing Ivy League's relationship with each individual tutor, Ivy League restricted the tutor's solicitation of Ivy League's clients both during the period of time encompassed by the particular contract and for three years thereafter. Matter of Ivy League Tutoring Connection Inc..., 2014 NY Slip Op 05481, 3rd Dept 7-24-14
Costs Properly Assessed Against Carrier for Instituting Proceedings Without Reasonable Ground
The Third Department affirmed the Workers' Compensation Board's assessment of costs against the carrier for instituting proceedings without reasonable ground:
Workers' Compensation Law § 114-a (3) (i) permits the Board to assess costs against a party who has "instituted or continued [a proceeding before the Board] without reasonable ground." Here, the carrier previously had been warned that counsel's failure to respond to its request for an updated work search history standing alone would be insufficient to reopen the underlying claim and, more to the point, was apprised "in very clear terms of the requirements for [the] supporting evidence necessary to reopen this claim on the question of whether . . . claimant ha[d] voluntarily removed herself from or [wa]s no longer attached to the labor market." Despite that express directive, the carrier nonetheless made a second request to reopen premised solely upon counsel's failure to respond to the carrier's request for additional information. Under these circumstances, we discern no abuse of discretion in the Board's decision to assess costs against the carrier ... . Matter of Bailey v Achieve Rehab & Nursing, 2014 NY Slip Op 05475, 3rd Dept 7-24-14