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CLAIMANT LEFT HIS EMPLOYER’S FARM BRIEFLY USING HIS EMPLOYER’S ATV AND WAS STRUCK BY A VEHICLE WHEN HE ATTEMPTED TO RETURN TO THE FARM, THERE WAS EVIDENCE CLAIMANT CONSUMED ALCOHOL WHICH WAS PROHIBITED BY HIS EMPLOYER, CLAIMANT’S INJURIES DID NOT ARISE FROM HIS EMPLOYMENT, WORKER’S COMPENSATION CLAIM PROPERLY DENIED (THIRD DEPT).

The Third Department determined claimant’s injuries did not arise out of his employment. Claimant, a farm worker, used his employer’s ATV to go across the street to where his girlfriend was moving into a house. There was evidence he may have drunk beer, which was prohibited by his employer. When crossing the street to return to the farm claimant was struck by a vehicle and injured:

Regardless of whether claimant was permitted to use the employer’s ATV or to take a break and leave the farm for a brief period of time before returning to work, the employer’s testimony makes clear that consuming alcohol on the job was not a permitted, acceptable or customary deviation from claimant’s employment … . As the record as a whole provides substantial evidence to support the Board’s finding that claimant was engaged in an impermissible deviation from his employment at the time of his accident, his resulting injuries did not arise out of and in the course of his employment and, therefore, are not compensable … . Matter of Button v Button, 2018 NY Slip Op 07809, Third Dept 11-15-18

WORKERS’ COMPENSATION (CLAIMANT LEFT HIS EMPLOYER’S FARM BRIEFLY USING HIS EMPLOYER’S ATV AND WAS STRUCK BY A VEHICLE WHEN HE ATTEMPTED TO RETURN TO THE FARM, THERE WAS EVIDENCE CLAIMANT CONSUMED ALCOHOL WHICH WAS PROHIBITED BY HIS EMPLOYER, CLAIMANT’S INJURIES DID NOT ARISE FROM HIS EMPLOYMENT, WORKER’S COMPENSATION CLAIM PROPERLY DENIED (THIRD DEPT))/EMPLOYMENT LAW (WORKERS’ COMPENSATION, CLAIMANT LEFT HIS EMPLOYER’S FARM BRIEFLY USING HIS EMPLOYER’S ATV AND WAS STRUCK BY A VEHICLE WHEN HE ATTEMPTED TO RETURN TO THE FARM, THERE WAS EVIDENCE CLAIMANT CONSUMED ALCOHOL WHICH WAS PROHIBITED BY HIS EMPLOYER, CLAIMANT’S INJURIES DID NOT ARISE FROM HIS EMPLOYMENT, WORKER’S COMPENSATION CLAIM PROPERLY DENIED (THIRD DEPT))

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ALTHOUGH DEFENDANT WAS PRESENT IN A GARAGE WHERE METHAMPHETAMINE WAS BEING MANUFACTURED, THE EVIDENCE WAS INSUFFICIENT TO DEMONSTRATE SHE CONSTRUCTIVELY POSSESSED THE DRUGS, POSSESSION CONVICTION REVERSED AND INDICTMENT DISMISSED (THIRD DEPT).
DEFENDANT WAS CONCERNED HIS INCARCERATED BROTHER WAS BEING HARASSED BY CORRECTIONS OFFICERS; HE CALLED THE DEPARTMENT OF CORRECTIONS AND THREATENED TO “BLOW AN OFFICER’S HEAD OFF” “IF THEY TOUCH MY BROTHER;” DEFENDANT’S “MAKING A TERRORISTIC THREAT” CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT).
THE MALICIOUS PROSECUTION CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE TOWN JUSTICE’S ISSUANCE OF AN ARREST WARRANT FOR PLAINTIFF SHOULD HAVE BEEN DISMISSED AS BARRED BY THE DOCTRINE OF JUDICIAL IMMUNITY (THIRD DEPT).
BASED UPON AN INTERPRETATION OF THE CLASS-ACTION SETTLEMENT AGREEMENT WHICH DID NOT SPECIFICALLY ADDRESS THE ISSUE, SUPREME COURT PROPERLY RULED THAT UNCLAIMED SETTLEMENT FUNDS CAN BE REDISTRIBUTED TO THE OTHER CLASS MEMBERS, REJECTING DEFENDANTS’ ARGUMENT THAT ANY UNCLAIMED FUNDS SHOULD BE RETURNED TO THEM (THIRD DEPT).
THE PLANNING BOARD TOOK THE REQUISITE HARD LOOK REQUIRED BY THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) WHEN IT APPROVED THE DEVELOPMENT WHICH INCLUDED APARTMENTS AND A COSTCO RETAIL FACILITY; SUPREME COURT SHOULD NOT HAVE ANNULLED THE APPROVAL AS ARBITRARY AND CAPRICIOUS (THIRD DEPT).
DESPITE THE DRIVER’S FAILURE TO USE A TURN SIGNAL AS THE JUSTIFICATION FOR THE TRAFFIC STOP, DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON THE GROUND THE STOP WAS ACTUALLY BASED UPON RACIAL PROFILING; IN THE FIRST DEPARTMENT THE “TURN SIGNAL” GROUND FOR THE STOP WOULD BE ENOUGH, EVEN IF THE STOP WAS ACTUALLY MOTIVATED BY DISCRIMINATION; NOT SO IN THE THIRD DEPARTMENT (THIRD DEPT).
THE CONCEPTS OF ‘OVERWHELMING EVIDENCE’ AND ‘HARMLESS ERROR’ DISCUSSED IN DEPTH; THE MAJORITY FOUND THE EVIDENCE OVERWHELMING AND THE ERROR HARMLESS; THE CONCURRENCE FOUND THE EVIDENCE WAS NOT OVERWHELMING BUT FOUND THE ERROR HARMLESS UNDER A DIFFERENT ANALYSIS; THE DISSENT FOUND THE EVIDENCE WAS NOT OVERWHELMING AND THE ERROR WAS NOT HARMLESS (THIRD DEPT).
PURSUANT TO A MOLINEUX ANALYSIS, THE WEAPON-POSSESSION COUNT SHOULD HAVE BEEN SEVERED FROM THE MENACING AND ASSAULT COUNTS, IN WHICH DISPLAY OF A WEAPON WAS ALLEGED; THE SIROIS HEARING DID NOT DEMONSTRATE THE DEFENDANT CAUSED THE VICTIM TO REFUSE TO TESTIFY, THEREFORE THE VICTIM’S GRAND JURY TESTIMONY WAS NOT ADMISSIBLE; NEW TRIAL ORDERED (THIRD DEPT).

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