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October Page I

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


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"Substantial Evidence" Standard of Court Review Explained


The Second Department explained the "substantial evidence" standard of court review of an administrative agency's determination after a disciplinary hearing:


Substantial evidence "is related to the charge or controversy and involves a weighing of the quality and quantity of the proof"; the term "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" ... . "Where there is conflicting evidence or different inferences may be drawn from the evidence, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'" ... . Matter of Sullivan v County of Rockland, 2014 NY Slip Op 06593, 2nd Dept 10-1-14





In a Hybrid Action, the Causes of Action Seeking Money Damages Were Distinct from the Causes of Action Seeking Annulment of Town a Resolution/Four-Month Statute of Limitations Did Not Apply to Causes of Action Seeking Money Damages


The First Department determined that certain causes of action in a hybrid proceeding were not time-barred by the four-month statute of limitations for Article 78 proceedings. When the plaintiffs did not repair the property which was alleged to endanger a drinking water source, the town had the property repaired pursuant to a town resolution and a special tax assessment was imposed to pay for the repairs.  The plaintiffs brought a hybrid proceeding challenging the resolution and tax assessment and seeking damages for the destruction of plaintiffs' property and the interruption of plaintiffs' business. The causes of action seeking damages were not barred by the four-month statute:


In the fourth, fifth, sixth, and seventh causes of action, the plaintiffs sought, in effect, to annul the tax assessment referable to the cost of demolition of the retaining wall and rear wall of the building and the rebuilding of the retaining wall and, by implication, sought to annul the Resolution authorizing the demolition and the assessment against the property. They likewise contended that the Town failed to give them proper notice and an opportunity to be heard, as required by section 66-11. Since the substance of these causes of action was a challenge to administrative decisions and a special tax assessment, the court properly concluded that these causes of action constituted requests for relief pursuant CPLR article 78, regardless of the form in which they were pleaded ... . * * *


The court erred ... in granting those branches of the Town's motion which were for summary judgment dismissing the first, second, third, and eighth causes of action. These causes of action assert claims, inter alia, for damages resulting from the destruction of a portion of the garage building and the interruption of the plaintiffs' business. Pursuant to CPLR 7806, where a CPLR article 78 petitioner seeks damages as well as the annulment of a governmental determination, "[a]ny restitution or damages granted to the petitioner must be incidental to the primary relief sought by the petitioner, and must be such as he [or she] might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court against the same body or officer in its or his official capacity" (CPLR 7806). "[W]here the thrust of the lawsuit is the review of an adverse . . . agency determination, with the monetary relief incidental, [the] Supreme Court may entertain the entire case under CPLR article 78" ... . "Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case" ... . Contrary to the Supreme Court's determination, the claims asserted in the first, second, third, and eighth causes of action, in which the plaintiffs sought money damages, were not incidental to the plaintiffs' CPLR article 78 challenges to the Resolution and the special tax assessment ... . Therefore, these causes of action were not asserted in connection with the CPLR article 78 portion of this hybrid action/proceeding, and were not barred by the four-month statute of limitations applicable to CPLR article 78 proceedings (see CPLR 217). Hertzel v Town of Putnam Val, 2014 NY Slip Op 06558, 2nd Dept 10-1-14





Criteria for Setting Aside a Defense Verdict Not Met


The Fourth Department determined a verdict for the defense in a medical malpractice action should not have been set aside as against the weight of the evidence.  The court explained the criteria in the context of conflicting expert testimony:


"A verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence" ... . "Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view" ..., and the trial court "should not set aside [a] verdict unless it is palpably irrational or wrong" ... . * * *


"Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion and reject that of another expert" ..., and, unlike the trial court, we perceive no reason to disregard the testimony of defendants' expert ... . Lesio v Attardi, 2014 NY Slip Op 06705, 4th Dept 10-3-14





Monetary Sanction Against Plaintiff's Attorney and Striking of Complaint Deemed Appropriate Where Discovery Delays Unexplained


The Fourth Department determined a $2090.00 sanction against plaintiff's attorney and the striking of the complaint in a slip and fall case were appropriate based upon plaintiff's discovery delays:


...[W]e conclude that, under the circumstances, Supreme Court did not abuse its discretion in imposing sanctions on plaintiff's attorney for what the court characterized as "excessive and inexcusable delay" in providing discovery responses ... . ...[W]e reject plaintiff's contention that the court applied an incorrect legal standard in striking the complaint and dismissing [the action]. "[T]he type and degree of sanction [for a discovery violation] will be left to the discretionary authority of the trial court which will remain undisturbed absent an abuse thereof" ... . "While the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of [the court's] discretion . . . , striking a pleading is appropriate where there is a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith" ... . Here, the court properly determined that defendant met its initial burden of establishing willful, contumacious or bad faith conduct by plaintiff, thereby shifting the burden to plaintiff to offer a reasonable excuse ... . Allen v Wal-mart Stores Inc, 2014 NY Slip Op 06695, 4th Dept 10-3-14





Plaintiffs Entitled to Attorney's Fees Pursuant to 42 USC 1988---Criteria Explained


The Fourth Department reversed Supreme Court and found that plaintiffs were entitled to attorney's fees under 42 USC 1988. 

Plaintiffs had brought an Article 78/declaratory judgment proceeding alleging that they had been improperly removed by the city from an approved list of certified lead inspectors. The plaintiffs prevailed and were returned to the list.  Although the Article 78/declaratory judgment determination was made on state grounds, a federal "denial of due process" claim had also been made.  The Fourth Department explained the criteria for the award of attorney's fees in this context:


The governing statute, 42 USC § 1988 (b), provides that, "[i]n any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs . . ." "Although some courts have held, as did the court in this case, that the decision whether to grant an award is entirely discretionary . . . this is incorrect . . . [T]he prevailing party ordinarily should recover reasonable fees unless special circumstances would render such an award unjust' " ... . Where, as here, "relief is sought on both State and Federal grounds, but nevertheless awarded on State grounds only," attorney's fees may be awarded if a constitutional question is involved and such question is "substantial and arises out of a common nucleus of operative facts as the State claim" ... . "The threshold for establishing substantiality of a Federal claim is minimal: the claim must not be wholly insubstantial,' obviously frivolous' or obviously without merit' "... . Cerberus Props LLC v Kirkmire, 2014 NY Slip Op 06723, 4th Dept 10-3-14





Alleged Misrepresentations Were Not Collateral or Extraneous to the Contract---Fraud Cause of Action Will Not Lie


Re: an elevator-maintenance contract, the Second Department explained when a fraud cause of action must be dismissed in the context of a breach of contract action:


We find unpersuasive the plaintiff's contention that the Supreme Court erroneously granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1) to dismiss the fifth cause of action, which alleged fraud. "Where a claim to recover damages for fraud is premised upon an alleged breach of contractual duties, and the allegations with respect to the purported fraud do not concern representations which are collateral or extraneous to the terms of the parties' agreement, a cause of action sounding in fraud does not lie" ... . Here, the complaint and the accompanying affidavits alleged that the individual defendants made knowingly false statements that the subject elevators would be promptly repaired and properly maintained, and that any governmental violations that were issued with regard to them would be resolved and closed. However, the parties' agreement, as referenced by the defendants in support of their motion, "conclusively established that the alleged fraudulent misrepresentations at issue were not collateral or extraneous to the contract. Rather, the alleged misrepresentations amounted only to a misrepresentation of the intent or ability to perform under the contract" ... . Renaissance Equity Holdings LLC v Al-An El Maintenance Corp, 2014 NY Slip Op 06570, 2nd Dept 10-1-14





Parol Collateral Agreement Can Be Alleged Where Written Contract Does Not Embody Entire Agreement/Where Existence of Contract Is Disputed, Causes of Action for Unjust Enrichment and Quantum Meruit Are Okay/Courts Can Not Excuse Failure to Strictly Comply with Lien Law Requirements


The Second Department noted:  proof of a parol collateral agreement is okay where the written contract is not intended to embody the whole agreement; where the existence of a contract is in dispute, causes of action for unjust enrichment and quantum merit are okay; courts do not have discretion to excuse strict compliance with Lien Law 11:


..."[A] written agreement does not exclude proof of a parol collateral agreement made even between the same parties, where the written contract is not intended to embody the whole agreement and does not on its face purport to cover completely the subject-matter of the alleged collateral agreement" ... . Here, although the first cause of action was based on a written contract, the plaintiff stated a second cause of action based on the breach of an alleged oral agreement as to services not encompassed in the written agreement.


As to the third and fourth causes of action, where, as here, the existence of the contract is in dispute, the plaintiff may allege causes of action to recover for unjust enrichment and in quantum meruit as alternatives to a cause of action alleging breach of contract (see CPLR 3014...).


Lien Law § 11 provides that within 5 days before or 30 days after filing the notice of lien, a lienor "shall" serve a copy of such notice upon the owner, as relevant here, at the owner's "last known place of residence." However, the plaintiff's affidavit of service of the mechanic's lien demonstrates that the plaintiff failed to serve the notice of the mechanic's lien in compliance with Lien Law § 11, as the notice was not sent to the defendants' last known place of residence. As strict compliance with the statutory requirements is mandated and the courts do not have discretion to excuse noncompliance... . Thompson Bros Pile Corp v Rosenblum, 2014 NY Slip Op 06577, 2nd Dept 10-1-14





Derivative-Shareholder-Claim Versus Direct-Individual-Claim Explained/Out-of-Pocket Damages Rule for Fraud and Negligent Misrepresentation Claims Briefly Discussed


The First Department, in a full-fledged opinion by Justice Gische, with one exception, affirmed Supreme Court's dismissal of defendant's (Lipper's) cross-claims because the cross-claims were deemed derivative claims by a shareholder, not direct, individual claims.  Lipper alleged damages stemming from the overvaluation of Lipper's hedge fund assets by defendant Pricewaterhouse Coopers. In addition to the "derivative versus direct claim" issue, the court briefly discussed the "out of pocket" damages rule re: the fraud and negligent misrepresentation claims stemming from Lipper's payment of gift taxes based upon the overvalued assets given to his daughters:


It is black letter law that a stockholder has no individual cause of action against a person or entity that has injured the corporation. This is true notwithstanding that the wrongful acts may have diminished the value of the shares of the corporation, or that the shareholder incurs personal liability in an effort to maintain the solvency of the corporation ..., or that the wrongdoer may ultimately share in the recovery in a derivative action if the wrongdoer owns shares in the corporation ... . An exception exists, however, where the wrongdoer has breached a duty owed directly to the shareholder which is independent of any duty owing to the corporation ... . This is a narrow exception, and Lipper's cross claim must be factually supportable by more than complaints that conflate his derivative and individual rights ... . In addition, Lipper may not obtain a recovery that otherwise duplicates or belongs to the corporation ... .


Recognizing the difficulty in determining whether a claim is direct or derivative in the recent case of Yudell v Gilbert (99 AD3d 108 1st Dept [2012]), this court adopted the test developed by the Supreme Court of Delaware in Tooley v Donaldson, Lufkin & Jenrette, Inc. (845 A2d 1031, 1039 [Del 2004]) as a common sense approach to resolving such issues. We held that the Delaware test is consistent with existing New York State law. In order to distinguish a derivative claim from a direct one, the court considers "(1) who suffered the alleged harm (the corporation or the suing stockholders, individually); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders individually)" ... . If there is any harm caused to the individual, as opposed to the corporation, then the individual may proceed with a direct action ... . On the other hand, even where an individual harm is claimed, if it is confused with or embedded in the harm to the corporation, it cannot separately stand... . * * *


...[W]e find that recoupment of [gift] taxes paid violates New York's out-of-pocket damages rule applicable to both the fraud and negligent misrepresentation cross claims Lipper has asserted ... . Pursuant to the New York rule, recovery is denied where it leaves the claimant in a better position than the claimant would have been in the absence of wrongdoing ... . Lipper contends that he would not have made the gifts to his daughters if he had known the true value of his holdings. The payment of taxes was a consequence of making that gift. The relief he seeks would put him in a better financial position than had the claimed wrongdoing not occurred ... . Serino v Lipper,2014 NY Slip Op 06551, 1st Dept 9-30-14




Criteria for Expanded Jury Instruction on the Voluntariness of a Statement Explained (Criteria Not Met Here)---Trial Judge Should Not Have Participated in Readback of Testimony (Not Reversible Error Here)


The Second Department explained when an expanded jury instruction concerning the voluntariness of defendant's statement is proper (criteria not met here), and noted that a judge should never participate in the readback of testimony (not reversible error here):


A defendant is entitled to raise the issue of voluntariness both at a suppression hearing and at trial (see CPL 710.70[3]...). At trial, however, the court is not required to instruct the jury on the issue of voluntariness unless the defendant requests the charge, and "evidence sufficient to raise a factual dispute has been adduced either by direct or cross-[*2]examination" ... . Here, nothing in the evidence adduced at trial raised a factual dispute about the voluntariness of the defendant's statement ... . * * *


...[W]e again remind the trial justice that he should not participate as a reader when readbacks are requested by a jury ..., and that this type of participation should not be repeated. In this regard, the court's practice risks erroneously conveying to the jury that the court is aligned with the party or counsel whose role the court has assumed in the readback ... . "[A]s a general matter, a trial judge should shun engaging in readbacks of testimony. In the usual case, it is easy enough for a judge to assign this task to non-judicial court personnel and thereby avoid any risk of creating a misperception in the minds of the jurors"... . People v Baranov, 2014 NY Slip Op 06596, 2nd Dept 10-1-14



Meaning of Imprecise and Confusing Term "Violent Felony Override" Explained


The Second Department, in response to the defendant's request for a "violent felony override" at sentencing, explained that the confusing term relates to a document that sets force the precise statute, including the section and subdivision, of which the defendant was convicted.  Certain specific enumerated offenses, although violent felonies, will not disqualify an inmate from eligibility for temporary release. Only the Department of Corrections can make the determination whether a conviction disqualifies an inmate from eligibility:


"Violent felony override" is not a term contained in a statute or regulation. It is an imprecise and potentially confusing term that is sometimes used to describe a document referred to in 7 NYCRR 1900.4(c)(1)(iii) that permits the Department of Corrections and Community Supervision (hereinafter DOCCS) to ascertain whether an inmate has met one of the threshold requirements to be eligible for a temporary release program despite conviction of a specified violent felony offense (see Correction Law § 851[2]; Executive Order [Spitzer] No. 9 [9 NYCRR 6.9]; Executive Order [A. Cuomo] No. 2 [9 NYCRR 8.2]; 7 NYCRR 1900.4[c][1][ii], [iii]; [2]). Certain subdivisions of the specified violent felony offenses will not disqualify an inmate from eligibility for temporary release. The document provided for in 7 NYCRR 1900.4(c)(1)(iii) need only set forth the exact offense, including the section, and subdivision if any, of the crimes of which the inmate was convicted. When the document indicates that the inmate was convicted of a subdivision of one of the enumerated violent felony offenses that does not automatically disqualify the inmate from eligibility for temporary release, the inmate may use it to establish that he has met one of the threshold requirements for eligibility ... . One source of confusion that may arise from the use of the term "violent felony override" is that the term may imply that the document itself qualifies the inmate for eligibility for temporary release. It does not. It is for DOCCS, and not the court or the district attorney, to determine whether conviction under a particular section and subdivision disqualifies an inmate from eligibility (see generally 7 NYCRR 1900.4).


A second source of confusion that may arise from the use of the term "violent felony [*2]override" to describe the document specified in 7 NYCRR 1900.4(c)(1)(iii) is the erroneous belief that the issuance of the document is discretionary. Although this provision refers to "a court-generated document or document generated by the Office of the District Attorney," a defendant is entitled to have the exact subdivision of the statutory provisions under which he or she was convicted specified in the sentence and commitment: "[a] sentence and commitment or certificate of conviction, specifying the section, and to the extent applicable, the subdivision, paragraph and subparagraph of the penal law or other statute under which the defendant was convicted, or a certified copy thereof . . . must be delivered to the person in charge of the correctional facility or office of children and family services facility to which the defendant is committed at the time the defendant is delivered thereto" ... . People v Lynch, 2014 NY Slip Op 06608, 2nd Dept 10-1-14



Warrantless Cell Phone Search Required Suppression and a New Trial


The First Department ordered a new trial because the police searched defendant's phone without a warrant and used photos found on the phone as the basis for a search warrant:


The court should have granted defendant's motion to suppress photographs obtained from his cell phone. After the police arrested defendant and seized his phone, an officer looked through it without a warrant, and found two photos stored on the phone that depicted a pistol resembling the pistol recovered in this case. It was not disputed that the search of defendant's cell phone was unlawful. Moreover, a recent decision of the United States Supreme Court holds that a cell phone is not a proper subject of a warrantless search incident to arrest ... .


After finding the photos on the phone, the same officer averred in an affidavit in support of an application for a search warrant, which specifically sought to search photographs among other things on the phone, that there was reasonable cause to believe that evidence concerning defendant's possession of a firearm existed on defendant's phone. This evidence demonstrated that the "decision to seek the warrant was prompted by what [the police] had seen during the initial entry" ... . Rather than applying for a warrant on the basis of mere probable cause, the officer "achieve[d] certain cause by conducting an unlawful confirmatory search," which "undermines the very purpose of the warrant requirement and cannot be tolerated" ... . Accordingly, even if there were independent probable cause for the warrant, it would not immunize the initial warrantless search, or permit the subsequently-granted warrant to render the photos admissible ... . Nor may the inevitable discovery doctrine be applied to this evidence; the exception does not apply where "the evidence sought to be suppressed is the very evidence obtained in the illegal search" ... . People v Marinez, 2014 NY Slip Op 06668, 1st Dept 10-2-14




Sentence Greater than that Promised in a Plea Bargain Did Not Constitute Punishment for Exercising the Right to Go to Trial


The Fourth Department rejected defendant's argument that his sentence was increased as punishment for going to trial:


" [T]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial . . . , and there is no indication in the record before us that the sentencing court acted in a vindictive manner based on defendant's exercise of the right to a trial' " ..., or that the court " placed undue weight upon defendant's ill-advised decision to reject [a] favorable plea bargain and proceed to trial' " ... . People v Odums, 2014 NY Slip OP 06692, 4th Dept 10-3-14




Police Did Not Demonstrate They Had a "Founded Suspicion Criminality Was Afoot" Before Asking For and Receiving Defendant's Permission to Search His Car


The Fourth Department determined the police failed to demonstrate they had a "founded suspicion that criminality was afoot" when they asked defendant for permission to search his car.  The marijuana and firearm found in the search should have been suppressed:


The law is well settled that the police may not ask an occupant of a lawfully stopped vehicle if he or she has any weapons unless they have a founded suspicion that criminality is afoot ... . It is equally well settled that the police may not ask for consent to search a vehicle absent that same degree of suspicion ... . Here, as both defendant and the People recognize, the legality of the police conduct turns on whether the officer who engaged defendant at the side of his vehicle smelled or observed marihuana in the vehicle before asking defendant whether he had any guns or drugs and before asking for consent to search. We conclude that there is no basis in the record to support the court's finding that the officers smelled marihuana as soon as they approached the vehicle.  People v Wideman, 2014 NY Slip Op 06698, 4th Dept 10-3-14




Parole Officer Was Not Acting "Merely as a Conduit" for the Police In Conducting a Search---The Search Was Related to the Parole Officer's Duties


In rejecting the defendant's argument that the search by his parole officer was illegal because the search was not related to the performance of the parole officer's duties, the Fourth Department explained the relevant law:


A parolee's right to be free from unreasonable searches and seizures is not violated if a parole officer's search of the parolee's person or property "is rationally and reasonably related to the performance of his duty as a parole officer" ... . A parole officer's search is unlawful, however, when the parole officer is "merely a conduit' for doing what the police could not do otherwise" ... . Stated differently, "a parolee's status ought not to be exploited to allow a search which is designed solely to collect contraband or evidence in aid of the prosecution of an independent criminal investigation" ... .


Here, defendant's contention that the parole officer was acting as an agent of the DEA is undermined by the uncontroverted testimony of the parole officer that she was informed by a DEA agent prior to the search that the federal prosecutor "will most likely not want to get involved" in the case if an arrest were made, and by the fact that no federal charges were ever lodged against defendant. Rather, the parole officer testified that she conducted the search because she received credible information from law enforcement sources that defendant possessed a large quantity of cocaine in his apartment, which violated his parole conditions, and the court found her testimony in that regard to be credible. We thus conclude that the court properly determined that the search was rationally and reasonably related to the performance of the parole officer's duties, and that suppression was therefore not warranted ... . People v Escalera, 2014 NY Slip Op 06700, 4th Dept 10-3-14




Conviction on a Lesser Inclusory Count Can Not Stand Even In the Absence of Preservation


The Fourth Department determined defendant's conviction of criminal possession of a controlled substance in the seventh degree could not stand because that charge was a lesser inclusory count of another count of which the defendant was convicted (criminal possession of a controlled substance in the fifth degree):


Although defendant failed to preserve this contention for our review, the People ... correctly concede that "we may review the issue as a matter of law despite defendant's failure to raise it in the trial court" ... . People v Roberts, 2014 NY Slip Op 06707, 4th Dept 10-3-14





Question Posed by the Prosecutor to Prospective Black Jurors About Whether They Felt Police Officers Unfairly Target Members of the Minority Community Required Reversal


The Fourth Department reversed defendant's conviction, finding that the prosecutor's explanation for excluding black jurors was not race-neutral.  The prosecutor asked the jurors whether they felt that police officers unfairly target members of the minority community:


Pursuant to Batson and its progeny, "the party claiming discriminatory use of peremptories must first make out a prima facie case of purposeful discrimination by showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more [prospective] jurors for an impermissible reason . . . Once a prima facie showing of discrimination is made, the nonmovant must come forward with a race-neutral explanation for each challenged peremptory—--step two ... The third step of the Batson inquiry requires the trial court to make an ultimate determination on the issue of discriminatory intent based on all of the facts and circumstances presented" ... . * * *


With respect to step two of the analysis, we conclude that the People failed to meet their burden of setting forth a "race-neutral reason" for striking the challenged prospective jurors ... . "A race-neutral reason naturally means an explanation based on something other than the race of the [prospective] juror' " ..., and must be "related to the particular case to be tried" ... . Although the burden on the nonmoving party at this stage of the analysis is relatively minimal, "[a] prosecutor's explanation may not be sustained where discriminatory intent is inherent in the explanation" ... .


Here, the People excluded the two prospective jurors at issue solely based upon their answers to a race-based question, i.e., whether they believed that police officers "unfairly target members of the minority community" ... . Notably, that question was unrelated to the facts of this case, which does not involve any allegation of racial profiling . We are unpersuaded by the People's assertion that the question was "designed to ensure that the jurors would not automatically accept or reject police testimony."  People v Mallory, 2014 NY Slip Op 06728, 4th Dept 10-3-14





Out-of-Court Statements by Defendant and Unknown Woman with Whom Defendant Spoke on the Phone from Jail Admissible


The Fourth Department determined that out-of-court statements made by the defendant in phone calls from jail and a statement made by an unknown woman defendant was talking to were admissible because they were not offered for the truth of the matters asserted:


Defendant ... contends that the court erred in admitting in evidence the recordings of two telephone calls he made from jail following his arrest. During the first call, defendant said to an unknown female, "Tell him [defendant's father] what happened to my ID." Defendant was referring to his claim that his jacket, containing his parole identification card, had been stolen from his father's car. During the second call, an unknown female informed defendant that his father told the police that his car had not been running for "a long-ass time," and in response defendant instructed the female to tell his father "not to mention" that the car was not running. We reject defendant's contention that his own above-referenced statements constitute inadmissible hearsay. The statements in question were not offered for the truth of the matters asserted ...; instead, they were offered to show that defendant appeared to be fashioning an innocent explanation for the fact that his parole identification card was found at the crime scene. Defendant failed to preserve for our review his contention that the statement made by the unknown female during the second call constituted inadmissible hearsay. In any event, that statement was admissible to put defendant's responding statement into context by providing "necessary background information to the jury" ... . People v Scarver, 2014 NY Slip Op 06713, 4th Dept 10-3-14




Suppressed Statement Improperly Allowed to Be Used to Impeach Defendant---Defendant Did Not Open the Door for Use of the Statement by Contradicting It On Direct


The Fourth Department determined statements made by the defendant, which had been suppressed, were improperly admitted to impeach the defendant (harmless error however):


...Supreme Court erred in permitting the prosecutor to impeach him with the statement that he made to State University police officers. That statement had been suppressed, and defendant did not open the door to its use for impeachment by giving testimony contrary to the statement during his direct examination... . People v Blair, 2014 NY Slip Op 06730, 4th Dept 10-3-14





"Door-Opening Rule" Applied to Allow Otherwise Inadmissible Evidence/Jury-Note Error Not Preserved


The Fourth Department determined evidence of a phone conversation which was otherwise inadmissible was properly admitted to rebut a "misleading impression" created by the defendant under the "door-opening rule."  In addition the court held that the failure to notify defense counsel of the contents of a jury note, although error, was not preserved for appeal:


Under the "door-opening" rule ..., otherwise inadmissible evidence, such as the telephone conversation at issue here, may be admitted in evidence for the purpose of rebutting a "misleading impression" created by the defendant ... . Here, defendant was attempting to evoke the jury's sympathy by testifying about her remorse and anguish over the victim's death. Specifically, defendant testified that, upon learning of the victim's death, she "started flipping out," "bouncing my head off walls," "screaming," and "going nuts." She further testified that she "didn't want to live," "refused to eat," and was "on suicide watch." We conclude that the court properly permitted the People to introduce the telephone conversation in evidence to rebut defendant's testimony of remorse and anguish ... . * * *


Defendant contends in the supplemental brief submitted by appellate counsel with leave of this Court that the court failed to apprise her of a jury note and that such a failure constitutes a mode of proceedings error requiring reversal of the judgment, even if unpreserved ... . We reject defendant's contention that preservation was not required. Here ... "the record does not indicate that the court gave defense counsel notice of the contents of the note outside the presence of the jury, but it establishes that the court read the note verbatim before the jury, defense counsel, and defendant. Defense counsel raised no objection" ... . Under such circumstances, defendant was required to preserve the alleged error by objection ... . We decline to exercise our power to address defendant's contention as a matter of discretion in the interest of justice ... . People v Stoutenger, 2014 NY Slip Op 06688, 4th Dept 10-3-14




Hearing Ordered to Reconstruct Contents of Missing Recording of 911 Call


The Fourth Department would not reverse defendant's conviction due to the post-trial loss of the recording of a 911 call, the contents of which were important on appeal.  Instead, the court ordered a reconstruction hearing to create a record of the contents of the call.  People v Thomas, 2014 NY Slip Op 06710, 10-3-14





Right to Counsel Did Not Attach When Community Activist Told Police Defendant's Attorney Was On His Way to the Station


The Fourth Department determined that the right to counsel attaches only when the defendant or his attorney invokes it, not when someone informs the police defendant's attorney is on his way to the station:


We reject defendant's contention that his right to counsel indelibly attached when the community activist told the arresting police officers at the television station that defendant had an attorney who was on his way. "It is well settled that the right to counsel is personal' to the accused... and thus cannot be invoked by a third party on behalf of an adult defendant" ... . Thus, where, as here, a third party not affiliated with a lawyer or law firm indicates that defendant may have an attorney, "it would be unreasonable to require the police to cease a criminal investigation and begin a separate inquiry to verify whether the defendant is actually represented by counsel. Direct communication by an attorney or a professional associate of the attorney to the police assures that the suspect has actually retained a lawyer in the matter at issue' " ... . Absent such direct communication, the police herein had no duty to investigate whether defendant was represented by counsel, and defendant's right to counsel did not indelibly attach until an attorney later called the police directly. Inasmuch as all questioning ceased at that time, we conclude that the court properly refused to suppress the statements defendant made before that time.  People v McCray, 2014 NY Slip Op 06720, 4th Dept 10-3-14





Petitioner Did Not Have Standing to Contest Negative SEQRA Finding/"Alienation of Parkland" and "Public Trust" Arguments Rejected


The Fourth Department determined petitioner did not have standing to contest the negative finding pursuant to State Environmental Quality Review Act (SEQRA)  The finding concerned a storage facility to be built for the Maid of the Mist excursion boats on state-park land along the Niagara River.  The petitioner, Niagara Preservation Coalition, Inc., was formed to challenge the project.  In the course of the decision, the Fourth Department rejected the "alienation of parkland" and "public trust" arguments:


We conclude that petitioner failed to establish either an injury, or that it is the proper party to seek redress. Although petitioner submitted a supplemental affidavit of one of its members stating that he has a longtime personal and professional interest in the gorge trail and the ruins of the former hydroelectric plant, " interest' and injury' are not synonymous . . . A general—or even special— interest in the subject matter is insufficient to confer standing, absent an injury distinct from the public in the particular circumstances of the case" ... . "Appreciation for historical and architectural [artifacts] does not rise to the level of injury different from that of the public at large for standing purposes" ... . Here, petitioner failed to establish an injury distinct from members of the public who use the gorge trail to access the ruins of the former hydroelectric plant ... , and thus it lacks standing to contest the SEQRA determination. * * *


Even assuming, arguendo, that petitioner has standing to allege alienation of parkland ..., as it alleges in its third cause of action, we conclude that the court properly refused to issue a declaration that respondents ...were required to obtain legislative approval for the construction of the facility within the confines of Niagara Falls State Park. It is well established "that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes" ... . It is undisputed, however, that there is no case law in New York applying the "public trust" principle to state parks. The cases apply only to municipal parks ... . Even assuming, arguendo, that [state] parks ...are governed by the " public trust doctrine' " ... , which respondents dispute ..., "what [petitioner] show[s here] is a dispute with public authorities about what is desirable for the park[,] . . . not a demonstration of illegality" ... . Matter of Niagara Preserv Coalition Inc v New York Power Auth, 2014 NY Slip Op 06694, 4th Dept 10-3-14





Elements of Civil and Criminal Contempt Explained


In affirming the denial of mother's motion to hold father in civil and criminal contempt for failing to exercise his right to visitation, the Second Department explained the elements of each:


To find a party in civil contempt pursuant to Judiciary Law § 753, the applicant must demonstrate, by clear and convincing evidence, " (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct'" (...see Judiciary Law § 753[A]). To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor's actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party ... .


In a criminal contempt proceeding, proof of guilt must be established beyond a reasonable doubt ... . "The purpose of criminal contempt (see Judiciary Law § 750) is to vindicate the authority of the court. No showing of prejudice to the rights of a party to the litigation is needed since the right of the private parties to the litigation is not the controlling factor'" ... . "However, [a]n essential element of criminal contempt is willful disobedience. Knowingly failing to comply with a court order gives rise to an inference of willfulness which may [*2]be rebutted with evidence of good cause for noncompliance'" ... . Matter of Figueroa-Rolon v Torres, 2014 NY Slip Op 06584, 2nd Dept 10-1-14





Criminal Judgment May Be Given Collateral Estoppel Effect in Derivative Neglect Proceedings---Summary Judgment Appropriate in Derivative Neglect Proceedings---Out-of-Court Statements of Siblings Cross-Corroborated One Another


In a derivative neglect case, the Second Department noted that a criminal proceeding can be given collateral estoppel effect and summary judgment can be granted in a neglect proceeding.  Here the father had pled guilty to endangering the welfare of a child in connection of the smothering-death of a child in his care.  The Second Department also explained that the out-of-court statements of siblings may cross-corroborate one another.  The Second Department affirmed the derivative neglect findings:


A determination in a criminal action may be given collateral estoppel effect in a Family Court proceeding where the identical issue has been resolved, and the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct ... . * * *


Although the Family Court Act does not specifically provide for summary judgment, it does state that "the provisions of the civil practice law and rules shall apply to the extent that they are appropriate to the proceedings involved" (Family Ct Act § 165[a]). Thus, in an appropriate case, the Family Court may enter a finding of neglect or abuse on a motion for summary judgment in lieu of holding a fact-finding hearing, upon the petitioner's prima facie showing of neglect or abuse as a matter of law and the respondent's failure to raise a triable issue of fact in opposition to the motion... . * * *


Pursuant to Family Court Act § 1046, "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect. Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration" (Family Ct Act § 1046[a][vi]...). The out-of-court statements of siblings may properly be used to cross-corroborate one another ... . The Family Court has considerable discretion in the first instance to determine if a child's out-of-court statements have been reliably corroborated, and whether the record as a whole supports a finding of abuse or neglect ... . Matter of Harmony ME..., 2014 NY Slip OP 06580, 2nd Dept 10-1-14






Falling Block Not Shown to Be Related to the Failure of a Safety Device---Labor Law 240(1) Did Not Apply


The First Department determined injury from a stone block which fell from a pallet was not covered by Labor Law 240(1) because it was not demonstrated the incident resulted from the failure of a safety device:


The motion court properly granted defendants' cross motion to dismiss plaintiff's Labor Law § 240(1) claim. Section 240(1) does not apply automatically every time a worker is injured by a falling object ... . Rather, the "decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" ... . The worker must establish that the object fell because of the inadequacy or absence of a safety device of the kind contemplated by the statute ... . In order for something to be deemed a safety device under the statute, it must have been put in place "as to give proper protection" for the worker (§ 240[1]).


Here, we conclude that plaintiff's injury was not caused by the absence or inadequacy of the kind of safety device enumerated in the statute ... . Plaintiff does not contend that the block itself was inadequately secured. Instead, plaintiff argues that § 240(1) is applicable because his injuries were caused by defendants' failure to provide an adequate safety device to hold the plastic tarp in place. Specifically, plaintiff maintains that the plastic tarp was inadequately secured because, if it had been properly secured, such as with ropes and stakes, plaintiff's injury would not have occurred.


Plaintiff's argument is unconvincing. The plastic tarp was not an object that needed to be secured for the purposes of § 240(1)..., nor is there any indication that the tarp caused plaintiff's injuries. Guallpa v Leon D DeMatteis Constr Corp, 2014 NY Slip Op 06666, 1st Dept 10-2-14




Labor Law 241(6) Claim Should Not Have Been Dismissed---Although Claimant Did Not Perform "Labor-Intense Aspects of the Project" His Finance-Related Job Entailed On-Site Inspections


The First Department determined plaintiff's Labor Law 241(6) claim should not have been dismissed.  Although plaintiff did not perform labor, his finance-related job required that he inspect the work site.  Plaintiff tripped and fell while doing an inspection:


Plaintiff's Labor Law § 241(6) claim was improperly dismissed on the ground that plaintiff was not covered under the statute. Plaintiff testified that he was an onsite project manager, employed by one of multiple general contractors on the subject construction project, whose job pertained to financial issues such as billing of subcontractors and revenue projections for the project. He testified that he tripped and fell in a vestibule he was walking through, intending to conduct a visual inspection of a condition alleged ... to support a back charge for "additional work," in order to determine whether this claim was substantiated. Thus, plaintiff was not merely working in a building that happened to be under construction ... . Rather, his job duties, including the inspection he was conducting at the time of the accident, were contemporaneous with and related to ongoing work on the construction project ... . Thus, plaintiff was covered under the statute even though he did not perform the "labor-intense aspects of the project" ... .  DeSimone v City of New York, 2014 NY Slip Op 06667, 1st Dept 10-2-14




Labor Law 200 Cause of Action Requires Supervisory Control Over How Plaintiff Carries Out the Injury-Producing Work


The Fourth Department, in affirming the dismissal of the common-law negligence and Labor Law 200 causes of action, explained the operative criteria:


Labor Law § 200 codifies "the common-law duty of a landowner to provide workers with a reasonably safe place to work" ... , and it therefore encompasses the duty underlying plaintiff's negligence cause of action. A precondition to the duty under Labor Law § 200 " is that the party charged with that responsibility have the authority to control the activity bringing about the injury' " ... . Thus, liability under Labor Law § 200 cannot be imposed on a defendant if "there is no evidence that [the] defendant exercised supervisory control or had any input into how" the plaintiff carried out the injury-producing work ... .


Here, all three moving defendants met their initial burdens of establishing as a matter of law that they did not have supervisory control over plaintiff's work and did not have input into how he performed his work. Jones v County of Erie, 2014 NY Slip Op 06726, 4th Dept 10-3-14




Cleaning Clogged Drain Was Routine Maintenance, Not Covered by Labor Law 240(1)


The Fourth Department determined plaintiff was engaged in routine maintenance, not repair, and therefore his injury from a fall from a ladder was not covered under Labor Law 240(1):


Addressing ... the Labor Law § 240 (1) cause of action, we conclude that plaintiff was not "repairing" the corrosion chamber at the time he was injured, and thus that he was not engaged in a protected activity under section 240 (1). Rather, defendants established as a matter of law that plaintiff was involved in "routine maintenance in a non-construction, non-renovation context" ... . The court therefore properly granted that part of defendants' motion with respect to that cause of action and denied plaintiffs' cross motion. Neither the corrosion chamber nor the components of the "drainage system," i.e., the floor drain and plastic piping, were in need of "repair." Rather, the drain was clogged, at least in part as a result of the normal operation of the chamber. Plaintiff testified at his deposition that the clog consisted of "paper and what looked to be like pieces of wooden dowel from like Q-tips that they use," i.e., parts of samples that had been placed in the chamber on prior occasions, as well as an unknown substance. Although plaintiff and his supervisor testified that dirty conditions in the chamber could potentially compromise test results, there is no evidence that the chamber was " inoperable or malfunctioning prior to the commencement of the work' " ... . Further, there is no evidence that plaintiff had to use specialized tools or any tools at all to take apart the plastic piping. Indeed, defendants' expert averred that the PVC piping had no mechanical fasteners and was "merely a friction fit, therefore, it would be a routine task to remove." Plaintiff then used an air hose, metal wire, and a water hose to remove the clog, all of which were readily accessible to and used by him in the course of his employment. Leathers v Zaepfel Dev Co Inc, 2014 NY Slip Op 06691, 4th Dept 10-3-14




Injury Caused by Movement and Toppling of a Dry Wall Cart Not Covered by Labor Law 240(1)


The Fourth Department determined an injury related to the toppling of a cart carrying drywall was not covered under Labor Law 240 (1):


At the time of the accident, plaintiff was standing on the ground, the drywall on the cart was not being hoisted or secured, and the cart was not being hoisted or otherwise moved vertically ... . We conclude that plaintiff's injuries were not the direct consequence of a failure to provide blocks or stays to protect against a risk arising from a physically significant elevation differential; here, the function of such devices would not have been to protect plaintiff from the effects of gravity ... . In our view, defendants established as a matter of law "that the injuries resulted from a general hazard encountered at a construction site and were not the direct consequence of a failure to provide' an adequate device of the sort enumerated in Labor Law § 240 (1)" ... . Miles v Buffalo State Alumni Assn Inc, 2014 NY Slip Op 06732, 4th Dept 10-3-14





Petitioner Entitled to Homestead Exemption During Period Prior to the Contract of Sale for Her Home


The Second Department determined that a January contract of sale of the petitioner's home did not overcome the presumption in favor of recognizing the homestead exemption during the three months prior to the contract of sale.  The petitioner was in a nursing home and had indicated her "intent to return home" entitling her to the homestead exemption from the calculation of her assets during the pre-contract-of-sale period:


Pursuant to the Medicaid Reference Guide (hereinafter the MRG), published by the NYSDOH, when a Supplemental Security Income-related applicant is "requesting Medicaid coverage for the three month retroactive period . . . the value and availability of the applicant's resources are determined as of the first day of the month for each month that applicant is seeking Medicaid coverage" (emphasis added). The MRG also provides that an applicant's homestead, i.e., primary residence, is an exempt resource for purposes of determining Medicaid eligibility despite the fact that the applicant is temporarily absent therefrom, if the applicant "indicates an intent to return" to the home. Pursuant to 18 NYCRR 360-4.7(a)(1), a person who is 65 or older loses the homestead exemption if he or she moves out of the home "without intent to return." In determining such intent, "the proper standard to be applied is a subjective intent' standard and not an objective expectations' standard"... . There is a "presumption in favor of the homestead exemption" in cases where a hospitalized Medicaid applicant intends to return home ... . Matter of Inglese v Shah, 2014 NY Slip Op 06586, 2nd Dept 10-1-14





"Error In Judgment" Jury Instruction Properly Given/Defense Verdict Not Against the Weight of the Evidence


In reversing Supreme Court, the Fourth Department determined the "error in judgment" jury instruction was properly given and the defense verdict should not have been set aside as against the weight of the evidence:


We conclude that the court erred in granting that part of plaintiffs' motion to set aside the verdict in favor of Dr. LaRussa and Associates on the ground that it should not have given an error in judgment charge to the jury with respect to Dr. LaRussa's alleged malpractice in failing to order and administer dual antibiotic prophylaxis for the cesarean section, and on the alternative ground that the verdict in favor of Dr. LaRussa was against the weight of the evidence. We therefore modify the order accordingly. Based upon Dr. LaRussa's testimony that he exercised [*2]his professional judgment in choosing between acceptable alternatives, along with expert testimony that there were such acceptable alternatives, we conclude that the court properly gave an error in judgment charge ... . There was also evidence that Dr. LaRussa considered and chose between medically acceptable treatment alternatives at plaintiff's postoperative office visit, and thus the charge was also appropriately given with respect to his postoperative care of plaintiff ... . Furthermore, we conclude that "the preponderance of the evidence in favor of plaintiff[s] is not so great that the verdict [finding that Dr. LaRussa was not negligent] could not have been reached upon any fair interpretation of the evidence" ... . Beebe v St Joseph's Hosp Health Ctr, 2014 NY Slip Op 06711, 4th Dept 10-3-14





Police Accident Report Did Not Notify City of Negligence on the Part of the City---Petition to Serve Late Notice of Claim Properly Denied


In affirming the denial of a petition to serve a late notice of claim, the Second Department noted that, although a police accident report was generated, the report did not provide notice of any negligence on the part of the city:


The petitioner contends that the City acquired such knowledge by virtue of a police accident report made by a police officer at the scene of the accident. However, for a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation ... . Here, the police accident report did not provide the City with actual notice of the essential facts constituting the petitioner's claim that the City was negligent in the happening of the subject accident or that the petitioner sustained any injuries as a result of the City's alleged negligence ... . Kuterman v City of New York, 2014 NY Slip Op 06560, 2nd Dept 10-1-14





The Kinds of Damages Recoverable in a Property-Damage Action Stemming from Allegedly Defective Doors and Windows Explained in Some Depth---Economic Loss Rule Re: Strict Products Liability and Negligence---Consequential and Special Damages Re: Contract---When an Issue Can Be Raised for the First Time on Appeal Explained


In an action stemming from allegedly defective windows and doors which allowed the intrusion of water, the Second Department sorted out the interplay between tort claims and contract claims and the types of damages recoverable under each legal theory.  Among the issues discussed in some depth: the economic loss rule re: strict products liability and negligence; and consequential and special damages re: contract.  The court noted that the "economic loss rule" issue was raised for the first time on appeal and then explained why it still could consider the argument:


...[W]e note that the appellant did not raise before the Supreme Court its contention that the causes of action to recover damages for negligence and based on strict products liability insofar as asserted against it are barred by the economic loss rule. Nevertheless, this is a purely legal argument that appears on the face of the record and could not have been avoided had it been brought to the attention of the Supreme Court. Thus, the issue may be considered by this Court even though it is being raised for the first time on appeal... .


"The economic loss rule provides that tort recovery in strict products liability and negligence against a manufacturer is not available to a downstream purchaser where the claimed losses flow from damage to the property that is the subject of the contract and personal injury is not alleged or at issue" ... . The rule is applicable to economic losses to the product itself as well as consequential damages resulting from the defect ... . Therefore, when a plaintiff seeks to recover damages for purely economic loss related to the failure or malfunction of a product, such as the cost of replacing or retrofitting the product, or for damage to the product itself, the plaintiff may not seek recovery in tort against the manufacturer or the distributor of the product, but is limited to a recovery sounding in breach of contract or breach of warranty ... .


Here, the plaintiff alleges, inter alia, that it sustained economic losses generated by the repair and replacement of the glass doors and windows of a building due to the failure of such doors and windows to properly prevent water intrusion. The fabrication and/or installation of those doors and windows were the subject of its agreement with the appellant. To the extent that the plaintiff seeks to recover losses generated by the repair and replacement of these doors and windows pursuant to causes of action sounding in negligence or strict products liability, such causes of action are prohibited by the economic loss rule. ...


However, the plaintiff also claims that the intrusion of water caused by the defective windows and doors resulted in injury to other structural elements of the building, such as flooring and walls. These losses constitute damage to "other property" that was not the subject of the parties' agreement and, accordingly, support a valid tort cause of action ... . We note that, while the other structural elements of the building may have been damaged as a consequence of the infiltration of water through allegedly defective windows and doors, such losses do not constitute "consequential damages," also known as "special damages," as that term is used in contract law. Consequential or special damages usually refer to loss of expected profits or economic opportunity caused by a breach of contract ... . ). Although the plaintiff may not recover such traditional consequential contract damages pursuant to a tort cause of action, the complaint does state causes of action against the appellant to recover damages for negligence and based on strict products liability to the extent that those causes of action seek to recover damages for injury to structural elements of the building other than the allegedly defective windows and doors themselves, which were the subject of the parties' contract... . 126 Newton St LLC v Allbrand Commercial Windows and Doors Inc, 2014 NY Slip Op 06563, 2nd Dept 10-1-14






Ignorance of Adverse Possessors' Use of the Land Is Not a Defense/Criteria Explained


In affirming that defendants had demonstrated they met the criteria for adverse possession, the court noted that plaintiff's claim that she did not know the defendants were occupying the land and did not know where the boundary was did not constitute a defense to adverse possession:


"To establish a claim of adverse possession, the occupation of the property must be (1) hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period (at least 10 years)" ... . "In addition, where, as here, the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was usually cultivated or improved' or protected by a substantial inclosure' " ... . "The type of cultivation or improvement sufficient under the statute will vary with the character, condition, location and potential uses for the property . . . and need only be consistent with the nature of the property so as to indicate exclusive ownership" ... . Reardon v Broadwell, 2014 NY Slip Op 06718, 4th Dept 10-3-14





Court Indicates a Certification Claimant Is Not Working Can Be a "Willful Misrepresentation" Even If "Unintentional"


The Third Department determined claimant was properly denied benefits because of his self-employment activities which he did not report.  The court noted that the certification that claimant was not working supports the finding that he made a "willful misrepresentation even if it was unintentional:"


Whether a claimant is totally unemployed is a factual issue for the Board to decide, and its determination will be upheld if supported by substantial evidence ... . A claimant who performs activities on behalf of an ongoing business may not be considered totally unemployed, even if such activities are minimal or the business is not profitable, if he or she stands to benefit financially from its continued operation ... . Here, claimant incorporated the business, opened a business checking account, created a business logo, started developing a business website, distributed business cards, attended seminars and trade shows and had apparel samples made by overseas manufacturers, all in furtherance of establishing a lucrative business. Notwithstanding the fact that claimant was not receiving income from the business, substantial evidence supports the Board's decision that he was not totally unemployed ... . Furthermore, given that claimant read the provisions of the unemployment insurance handbook relating to self-employment, but represented that he was not working when certifying for benefits, we find no reason to disturb the Board's finding that he made a willful misrepresentation — even if it was unintentional ... . Matter of Romero..., 2014 NY Slip Op 06634, 3rd Dept 10-2-14





Posttraumatic Stress Disorder Deemed a Compensable Consequential Injury Stemming from a Prior Physical Injury


The Third Department affirmed the board's finding that claimant was entitled to workers' compensation benefits based in part upon posttraumatic stress disorder.  Claimant worked in a facility which housed juveniles who had committed the equivalent of felonies. Claimant was injured trying to control an unruly resident.  Thereafter, claimant, as part of his job, monitored video feeds from the facility and he often observed unruly behavior which reminded him of the incident in which he was injured:


Whether a subsequent disability arose consequentially from an existing compensable injury is a factual question for resolution by the Board, and its determination will not be disturbed when supported by substantial evidence" ... . A consequential injury, in turn, is one that "result[s] directly and naturally from claimant's prior injuries and the disability thereby produced" ... . Claimant here testified that he was assigned to monitor video feeds of the facility upon his return to work from his back injury, work that required him to constantly observe the unruly behavior of the residents and reminded him of the initial incident and his injuries. His injuries left him feeling helpless to assist the coworkers he observed dealing with the residents, and he ultimately sought medical assistance after he became enraged and blacked out due to watching numerous incidents where other employees required aid. Claimant was thereafter diagnosed with posttraumatic stress disorder, accompanied by anxiety and depression, and his treating psychologist stated in no uncertain terms that those conditions flowed from the May 2010 incident and the injuries he sustained therein. The Board credited the psychologist's factually specific opinion ... , and the employer submitted no medical evidence to rebut it. Under these circumstances, we find substantial evidence in the record to support the Board's determination ... . Matter of Dowdell v Office of Family & Children Servs., 2014 NY Slip Op 06626, 3rd Dept 10-2-14

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