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COMPENSATION FOR CARE BY CLAIMANT’S FAMILY MEMBER MUST BE PAID TO THE CLAIMANT, NOT THE FAMILY MEMBER 3RD DEPT.

The Third Department, reversing the Workers’ Compensation Board, determined compensation paid directly to claimant’s wife for her care of claimant should have been paid to claimant:

This Court has previously held “that payment of the reimbursement of the costs for [a spouse’s] services must be made to [the] claimant, not to the spouse” … . The Board’s interpretation and reliance on Matter of Perrin v Builders Resource, Inc. (116 AD3d 1208 [2014]) to reach a different conclusion is misplaced. The issue in Matter of Perrin was whether the claimant was aggrieved by the pay rate set for the home health aide services provided by the claimant’s sister. In concluding that the appeal therein must be dismissed because the claimant was not aggrieved, this Court did not, as found by the Board, tacitly overrule any prior decisions of this Court with regard to whom reimbursement of payments is to be made with regard to home health care services provided by a spouse or family member. As we find no basis to depart from this Court’s prior case law that, under such circumstances, “[t]he amount of the award . . . must be paid only to the claimant,” the Board’s decision must be reversed … . Matter of Buckner v Buckner & Kourofsky, LLP, 2017 NY Slip Op 05650, 3rd Dept, 7-13-17

WORKERS’ COMPENSATION LAW (COMPENSATION FOR CARE BY CLAIMANT’S FAMILY MEMBER MUST BE PAID TO THE CLAIMANT, NOT THE FAMILY MEMBER 3RD DEPT)

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QUESTIONS OF FACT ABOUT EASEMENT BY NECESSITY CLAIM AND LOCATION OF EASEMENT APPURTENANT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT.

The Third Department, reversing Supreme Court, determined defendants had raised questions of fact about the location of plaintiff’s (Finster’s) easement over defendants’ land. Summary judgment should not have been granted to Finster:

… Multiple longtime neighborhood residents provided sworn statements claiming that no roadway ever existed at the location of the disputed driveway prior to Finster’s ownership of 70 Middle Road. Further, one neighbor contradicted [pllaintiff’s] claim that the quarry property can only be accessed by the disputed driveway by claiming that it had historically been accessed by a different road. Hence, defendants’ submissions raised material issues of fact as to whether Finster’s easement appurtenant included the disputed driveway or, otherwise, whether the quarry parcel was landlocked, proof of which is essential to plaintiffs’ easement by necessity claim … . Finster Inc. v Albin, 2017 NY Slip Op 05651, 3rd Dept 7-13-17

REAL PROPERTY (QUESTIONS OF FACT ABOUT EASEMENT BY NECESSITY CLAIM AND LOCATION OF EASEMENT APPURTENANT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/EASEMENTS  (QUESTIONS OF FACT ABOUT EASEMENT BY NECESSITY CLAIM AND LOCATION OF EASEMENT APPURTENANT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)

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PLAINTIFF’S USE OF AN AREA AS A WALKWAY WAS NOT FORESEEABLE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED 3RD DEPT.

The Third Department, affirming the grant of defendant property owner’s motion for summary judgment in this slip and fall case, determined the area where plaintiff tripped on a piece of pipe was not demonstrated to be an area used as a walkway. Therefore plaintiff’s use of the area as a walkway was not foreseeable:

 “A landowner has a duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition”… . To that end, “the scope of a landowner’s duty is measured in terms of foreseeability” …  Because “[t]he risk reasonably to be perceived defines the duty to be obeyed”… , the issue distills to whether it was foreseeable that plaintiff, despite being provided with established and alternative avenues of ingress and egress from defendant’s firehouse, would instead exit the rear of the structure at night and traverse a sloped, unlit strip of land — located between the firehouse and a row of trees/shrubbery — in order to reach the front parking lot of the firehouse and retrieve his vehicle. Upon reviewing the record as a whole, we are satisfied that defendant met its burden of establishing, as a matter of law, that plaintiff’s means of egress was not reasonably foreseeable and, further, that plaintiff failed to raise a triable issue of fact on this point. Kirby v Summitville Fire Dist., 2017 NY Slip Op 05652, 3rd Dept 7-13-17

NEGLIGENCE (FORESEEABILITY, PLAINTIFF’S USE OF AN AREA AS A WALKWAY WAS NOT FORESEEABLE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED 3RD DEPT)/SLIP AND FALL (FORESEEABILITY, PLAINTIFF’S USE OF AN AREA AS A WALKWAY WAS NOT FORESEEABLE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED 3RD DEPT)/FORESEEABILITY (SLIP AND FALL, PLAINTIFF’S USE OF AN AREA AS A WALKWAY WAS NOT FORESEEABLE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED 3RD DEPT)

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QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT.

The Third Department, reversing Supreme Court, determined plaintiff had raised a question of fact about defendant’s (North’s) comparative fault in this intersection collision case, despite plaintiff’s pleading guilty to failure to yield the right of way. Therefore North’s motion for summary judgment should not have been granted:

In light of the conflicting accounts as to how the accident occurred, we conclude that Supreme Court erred in granting summary judgment in favor of North … . Furthermore, although plaintiff failed to yield the right-of-way and was convicted of violating Vehicle and Traffic Law § 1141, such finding “does not preclude the existence of a fact issue as to [North’s] comparative fault” …. Given plaintiff’s testimony regarding North’s distance from the subject intersection, the absence of other cars in front of North as she approached plaintiff and the evidence that North was “coming fast,” a question of fact exists regarding North’s comparative fault and whether she could have used reasonable care to avoid the collision … . Accordingly, viewing the evidence in a light most favorable to plaintiff, summary judgment in favor of North on the issue of liability should have been denied. London v North, 2017 NY Slip Op 05636, 3rd Dept 7-13-17

NEGLIGENCE (TRAFFIC ACCIDENTS, QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT)/TRAFFIC ACCIDENTS (QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT)/COMPARATIVE FAULT  (TRAFFIC ACCIDENTS, QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT)/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT)

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COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Devine, over a two-justice dissent, determined that counsel for a civilly committed sex offender (D.J.) was not entitled to attend meetings about the appropriate treatment of the sex offender:

Having been adjudicated “a dangerous sex offender requiring confinement” (Mental Hygiene Law § 10.10 [a]), petitioner D.J. was committed to the St. Lawrence Psychiatric Center and enrolled in the Sex Offender Treatment Program. Respondent Commissioner of Mental Health is required to “develop and implement a treatment plan” for D.J. and others in his position (Mental Hygiene Law § 10.10 [b]; see Mental Hygiene Law § 29.13 [a]) and, “[i]n causing such a plan to be prepared or . . . revised,” the patient and specified individuals must be “interviewed and provided an opportunity to actively participate” (Mental Hygiene Law § 29.13 [b]).

In 2016, D.J. asked that his counsel in the Mental Hygiene Law article 10 proceeding, assigned through petitioner Mental Hygiene Legal Service (hereinafter MHLS), accompany him to treatment planning meetings. The requests of D.J. and, later, his counsel were denied, with the chief of service for the Sex Offender Treatment Program, Bryan Shea, explaining that counsel was not entitled to attend treatment planning meetings as a matter of law and that counsel’s presence would be therapeutically counterproductive. Shea left open the possibility that a MHLS attorney could participate in a patient’s treatment planning, but explained that such would be contingent upon the attorney having a “genuine[] interest[] in the care of the patient” and guaranteeing “that [he or she was] no longer acting in the role of legal representative” and would keep “any information [received] during treatment planning . . . confidential” from MHLS. * * *

Counsel from MHLS … comes from an agency whose “statutory mission is to provide legal assistance to the residents of certain facilities” such as D.J., and legal advocacy may easily conflict with crafting an appropriate treatment plan if the medically advisable treatment conflicts with the client’s legal goals … . Matter of Mental Hygiene Legal Serv. v Sullivan, 2017 NY Slip Op 05656, 3rd Dept 7-13-17

MENTAL HYGIENE LAW (COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT)/ATTORNEYS (MENTAL HYGIENE LAW, COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT)/SEX OFFENDERS (MENTAL HYGIENE LAW, ATTORNEYS, COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT)

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PRIME CONTRACTOR WAS A STATUTORY AGENT OF THE OWNER, LABOR LAW 200 AND 241(6) CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF TRIPPED OVER EXTENSION CORDS ON THE FLOOR 3RD DEPT.

The Third Department determined defendant prime contractor was a statutory agent of the owner such that liability under the Labor Law could be imposed. Plaintiff (Mitchell) tripped over extension cords on the floor. Labor Law 200 and 241(6) causes of action survived summary judgment:

Labor Law § 200 “codifies the common-law duty of an owner or employer to provide employees with a safe place to work” … . Liability, however, will only be imposed upon a showing that the party charged with the duty to provide a safe work place had “the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition”… . In a case, such as this, where the injury is caused by a dangerous condition at the work site, the prerequisite of control necessary to impose liability requires “control of the place of injury and actual or constructive notice of the unsafe condition”… . …

A statutory agency relationship is created where the owner or contractor delegates the work giving rise to the Labor Law § 241 (6) duties to a third party, at which point “that third party then obtains the concomitant authority to supervise and control that work”… . While prime contractors are immune from liability pursuant to Labor Law § 241 (6) where they lack contractual privity with the injured plaintiff’s employer and have “no authority to supervise or control the work being performed at the time of the injury” … ,the record establishes that defendant was in contractual privity with TBS [plaintiff’s employer] and that the owner had delegated all mechanical work to defendant by hiring it as the sole mechanical contractor for the project, thereby demonstrating the owner’s intent to delegate supervisory control over TBS’s work to defendant as its statutory agent … . Mitchell v T. McElligott, Inc., 2017 NY Slip Op 05653, 3rd Dept 7-13-17

LABOR LAW-CONSTRUCTION LAW (PRIME CONTRACTOR WAS A STATUTORY AGENT OF THE OWNER, LABOR LAW 200 AND 241(6) CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF TRIPPED OVER EXTENSION CORDS ON THE FLOOR 3RD DEPT)

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QUESTION OF FACT WHETHER PLAINTIFF WAS A RESIDENT OF THE HOME WHICH WAS DAMAGED BY FIRE WITHIN THE MEANING OF THE POLICY LANGUAGE, DESPITE PLAINTIFF’S ADMISSION SHE PRIMARILY RESIDED IN ANOTHER HOME TEN MINUTES AWAY 3RD DEPT.

The Third Department, reversing Supreme Court, determined there were questions of fact whether plaintiff was a resident of the home where the fire occurred within the meaning of the policy language. Although plaintiff had moved to a house 10 minutes away and plaintiff’s daughter lived in the damaged house, there was evidence that plaintiff never completely moved and frequented the house to care for her grandchildren:

The policy at issue defines the “insured location” as the “resident premises.” Relevant here, the term “resident premises” is defined as “[t]he one family dwelling where [the insured] reside[s].” As the party seeking to disclaim coverage, defendant bore the burden of “establishing that the exclusions or exemptions apply . . . and that they are subject to no other reasonable interpretation”… . If a term is ambiguous, it should be construed against the insurer … . * * *

In our view, it is “arguable that the reasonable expectation of the average insured” is that plaintiff’s occupancy of the premises, coupled with her claim that she never fully left the premises, was enough to permit coverage pursuant to the terms of the policy … . We do not agree that plaintiff’s evidence constituted a feigned attempt to create a question of fact … . We are mindful that she signed a statement prepared by the adjuster on the morning of the fire that destroyed the home she had built with her husband for their family. That statement confirmed that she resided [in another home], but did not deny that she also resided at the premises for purposes of insurance coverage. Craft v New York Cent. Mut. Fire Ins. Co., 2017 NY Slip Op 05655, 3rd Dept 7-13-17

INSURANCE LAW (QUESTION OF FACT WHETHER PLAINTIFF WAS A RESIDENT OF THE HOME WHICH WAS DAMAGED BY FIRE WITHIN THE MEANING OF THE POLICY LANGUAGE, DESPITE PLAINTIFF’S ADMISSION SHE PRIMARILY RESIDED IN ANOTHER HOME TEN MINUTES AWAY 3RD DEPT)/CONTRACT LAW (INSURANCE POLICY, QUESTION OF FACT WHETHER PLAINTIFF WAS A RESIDENT OF THE HOME WHICH WAS DAMAGED BY FIRE WITHIN THE MEANING OF THE POLICY LANGUAGE, DESPITE PLAINTIFF’S ADMISSION SHE PRIMARILY RESIDED IN ANOTHER HOME TEN MINUTES AWAY 3RD DEPT)

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SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT.

The Third Department, reversing Supreme Court, reinstated the petitioner as a student at Skidmore College and expunged from his school record any reference to the sexual misconduct allegations and findings which led to his expulsion. The court noted that, as a private college, the due process requirements imposed upon a state school were not applicable. However, the Third Department concluded the school’s failure to follow its own procedures severely prejudiced petitioner. The decision is too detailed to fully summarize here. The following quotation illustrates the nature of the court’s criticism of the way the college handled this matter:

Petitioner … contends that respondent failed to follow its own procedures in implementing the disciplinary process. Where, as here, no hearing is required by law, a court reviewing a private university’s disciplinary determination must determine “whether the university substantially adhered to its own published rules and guidelines for disciplinary proceedings so as to ascertain whether its actions were arbitrary or capricious” … . The determination must be annulled only where there has been a lack of substantial compliance, or where the determination lacks a rational basis … . Perfect adherence to every procedural requirement is not necessary to demonstrate substantial compliance … . Nevertheless, we find that there were multiple failures that here, taken together, demonstrated a lack of substantial compliance.

Respondent’s first such failure occurred at the outset of the investigation. Section XI of respondent’s 2015-2016 policy provides that an accused student must be given notice through a “[f]ormal [c]omplaint,” which must “includ[e] the date, time, location and factual allegations concerning a violation” … . The complaint provided to petitioner stated the date, time and location of the incident, but included no factual allegations identifying the specific actions that were alleged to be policy violations. Instead, it merely provided the text of the two policy provisions that petitioner was accused of violating — and nothing more. Thus, the complaint provided petitioner with no notice of the specific conduct that formed the basis of the alleged violations. Contrary to respondent’s argument, this failure was not remedied by the fact that the complaint recited the text of the provisions. Both provisions include such a broad range of actions that it would be impossible for an accused student to discern what particular conduct he or she was alleged to have committed. Matter of Doe v Skidmore Coll., 2017 NY Slip Op 05654, 3rd Dept 7-13-17

EDUCATION-SCHOOL LAW (SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT)/COLLEGES AND UNIVERSITIES (SEXUAL MISCONDUCT INVESTIGATIONS, SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT)/SEXUAL MISCONDUCT INVESTIGATIONS (COLLEGES AND UNIVERSITIES, SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT)

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PLAINTIFF DID NOT DEMONSTRATE FRAUD CAUSE OF ACTION WOULD SUCCEED ON ITS MERITS, WARRANT OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED 1ST DEPT.

The First Department, reversing Supreme Court, determined the warrant of attachment should not have been granted. Plaintiff did not demonstrate the fraud cause of action would succeed on its merits:

… [S]tating a cause of action does not equate to a probability of success on the merits. In her moving papers, plaintiff submitted no affidavit or written evidence that [defendant] had committed fraud. Rather, she relied solely on the fact that partial summary judgment had been granted against three other defendants. However, ‘[t]o sustain a warrant of attachment against the property of a defendant, the moving papers must establish both a cause of action and a ground of attachment as to that particular defendant” … . Genger v Genger, 2017 NY Slip Op 05687, 1st Dept 7-13-17

DEBTOR-CREDITOR (WARRANT OF ATTACHMENT, PLAINTIFF DID NOT DEMONSTRATE FRAUD CAUSE OF ACTION WOULD SUCCEED ON ITS MERITS, WARRANT OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED 1ST DEPT)/ATTACHMENT, WARRANT OF, PLAINTIFF DID NOT DEMONSTRATE FRAUD CAUSE OF ACTION WOULD SUCCEED ON ITS MERITS, WARRANT OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED 1ST DEPT)/FRAUD (DEBTOR-CREDITOR, WARRANT OF ATTACHMENT, PLAINTIFF DID NOT DEMONSTRATE FRAUD CAUSE OF ACTION WOULD SUCCEED ON ITS MERITS, WARRANT OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED 1ST DEPT)

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INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT.

The Third Department determined there was insufficient proof of defendant’s criminal possession of a weapon under an accessorial liability theory:

… [A]s for defendant’s convictions of criminal possession of a weapon in the second degree, the conclusion that defendant was an accessory to Anderson or Bost [co-defendants] in their unlawful possession of weapons is against the weight of the evidence … . There was no proof presented during the trial that defendant ever personally possessed one of the handguns or in any way encouraged or intentionally aided Anderson or Bost in their possession of the handguns … .. Accordingly, as “there was no evidence that . . . defendant solicited, requested, commanded, importuned, or intentionally aided another individual to possess the firearm” … , we reverse defendant’s convictions of counts 3 and 4 of the indictment for criminal possession of a weapon in the second degree and dismiss said counts. People v Spencer, 2017 NY Slip Op 05631, 3rd Dept 7-13-17

CRIMINAL LAW (INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT)/EVIDENCE (CRIMINAL LAW, INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT)

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