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

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

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

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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