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FAILURE TO INFORM CARRIER OF LAWN CARE WORK WARRANTED RETURN OF BENEFITS PAID, BUT NOT A PERMANENT BAR ON FUTURE BENEFITS.

The Third Department upheld the board’s determination that claimant knowingly failed to inform the carrier he was doing some lawn care work while collecting workers’ compensation benefits. The omission was deemed a knowing false statement or misrepresentation warranting return of the benefits paid. However, the board’s ruling claimant was permanently barred from seeking benefits was not warranted by the facts:

… [A]n omission of material information may constitute a knowing false statement or misrepresentation … . We thus find that substantial evidence supports the Board’s credibility determination that claimant’s failure to fully describe and disclose his lawn mowing activities to the carrier and the carrier’s consultant at the time of the medical examination constituted knowing false statements to obtain workers’ compensation benefits in violation of Workers’ Compensation Law § 114-a (1) … .

We reach a different conclusion as to the Board’s determination permanently disqualifying claimant from receiving any future wage replacement benefits. The applicable standard is that the penalty imposed may not be disproportionate to the underlying misconduct … . In cases where this very significant sanction has been approved, the underlying deception has been deemed “egregious” or severe, or there was a lack of mitigating circumstances … . Here, the Board provided no rationale supporting its determination that this onerous penalty was warranted, and we find inadequate support for such a finding upon review. Matter of Kodra v Mondelez Intl., Inc., 2016 NY Slip Op 08136, 3rd Dept 12-1-16

 

WORKER’S COMPENSATION LAW (FAILURE TO INFORM CARRIER OF LAWN CARE WORK WARRANTED RETURN OF BENEFITS PAID, BUT NOT A PERMANENT BAR ON FUTURE BENEFITS)

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ZONING BOARD OF APPEALS’ RULING THAT A NONCONFORMING USE HAD NOT BEEN DISCONTINUED OR ABANDONED SHOULD NOT HAVE BEEN REVERSED.

The Third Department, reversing Supreme Court, determined the zoning board of appeals’ (ZBA’s) ruling that a nonconforming use had not been discontinured or abandoned should be affirmed. The court explained the role of the reviewing court when the controversy is fact-based and does not involve the interpretation of a statute or ordinance:

It is well settled that unless the issue presented is one of pure legal interpretation, “[a] zoning board’s interpretation of a local zoning ordinance is afforded deference and will only be disturbed if irrational or unreasonable” … . Here, the issue of whether the preexisting nonconforming use was discontinued is largely a fact-based inquiry, rather than a purely legal interpretation of the zoning law. As such, the ZBA’s determination is entitled to deference … . Matter of Lumberjack Pass Amusements, LLC v Town of Queensbury Zoning Bd. of Appeals, 2016 NY Slip Op 08142, 3rd Dept 12-1-16

 

ZONING (ZONING BOARD OF APPEALS’ RULING THAT A NONCONFORMING USE HAD NOT BEEN DISCONTINUED OR ABANDONED SHOULD NOT HAVE BEEN REVERSED)/NONCONFORMING USE (ZONING BOARD OF APPEALS’ RULING THAT A NONCONFORMING USE HAD NOT BEEN DISCONTINUED OR ABANDONED SHOULD NOT HAVE BEEN REVERSED)

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PETITIONER WAS NOT ALLOWED TO PRESENT RELEVANT DOCUMENTARY EVIDENCE, DETERMINATION ANNULLED.

The Third Department annulled the determination because petitioner was not allowed to present relevant documentary evidence:

Initially, respondent concedes, and we agree, that substantial evidence does not support the finding that petitioner was guilty of violating facility correspondence procedures. Turning to the merits, petitioner asserts that he was improperly denied the right to present documentary evidence in support of his defense, an issue that, contrary to respondent’s contention, we find preserved for our review. The record establishes that when petitioner informed the Hearing Officer that he had documentary evidence, albeit not with him at that time, that would support his defense of retaliation, the Hearing Officer adjourned the hearing without addressing the issue of the documentary evidence and, immediately upon recommencement of the hearing, rendered the determination of guilt. Because the documentary evidence was relevant to petitioner’s exculpatory explanation regarding the content of the letter that formed the basis of the misbehavior report, as well as to his defense of retaliation, and because we cannot say that petitioner was not prejudiced by the omission of the documents, the determination must be annulled … . Matter of Telesford v Annucci, 2016 NY Slip Op 08149, 3rd Dept 12-1-16

DISCIPLINARY HEARINGS (INMATES) (PETITIONER WAS NOT ALLOWED TO PRESENT RELEVANT DOCUMENTARY EVIDENCE, DETERMINATION ANNULLED)

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CLAIMANT ACCEPTED $10,000 AND AGREED TO RESIGN IN GRIEVANCE PROCEEDINGS, VOLUNTARY SEPARATION PRECLUDED UNEMPLOYMENT INSURANCE BENEFITS.

The Third Department, reversing the board, determined claimant’s acceptance of $10,000 and his agreement to resign during the course of grievance proceedings constituted a voluntary separation from his employment. Claimant was therefore not entitled to unemployment insurance benefits:

… [C]laimant’s resignation and acceptance of the $10,000 payment in settlement of outstanding grievances and other claims constitutes a voluntary separation from employment disqualifying him from receiving unemployment insurance benefits … . There is no indication that claimant was forced to accept the settlement agreement or that he was subject to disciplinary action if he did not. Matter of Gill (Phoenix Energy Mgt. Inc. — Commissioner of Labor), 2016 NY Slip Op 08140, 3rd Dept 12-1-16

UNEMPLOYMENT INSURANCE (CLAIMANT ACCEPTED $10,000 AND AGREED TO RESIGN IN GRIEVANCE PROCEEDINGS, VOLUNTARY SEPARATION PRECLUDED UNEMPLOYMENT INSURANCE BENEFITS)/VOLUNTARY SEPARATION (UNEMPLOYMENT INSURANCE, CLAIMANT ACCEPTED $10,000 AND AGREED TO RESIGN IN GRIEVANCE PROCEEDINGS, VOLUNTARY SEPARATION PRECLUDED UNEMPLOYMENT INSURANCE BENEFITS)

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POST TRAUMATIC STRESS DISORDER SUFFERED BY A COURT OFFICER AFTER THE OFFICER RETURNED FIRE KILLING A SHOOTER AT THE COURTHOUSE WAS NOT THE RESULT OF A COMPENSABLE ACCIDENT.

The Third Department, over a dissent, determined the incident which led to petitioner’s psychological injury was not an accident within the meaning of the Retirement and Social Security Law. Petitioner was therefore not entitled to accidental disability retirement benefits. Petitioner was on duty in the courthouse when a man fired a shotgun into the building. Petitioner returned fire, killing the shooter:

It is well settled that for purposes of the Retirement and Social Security Law, an accident is “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” … . “Significantly, it must result from an activity that is not undertaken in the performance of ordinary job duties and that is not an inherent risk of such job duties” … , nor can it stem from hazards that may be reasonably anticipated … . Petitioner bears the burden of establishing that the event producing the injury was an accident … , and the Comptroller’s determination will be upheld where it is supported by substantial evidence … .

There is no question that petitioner’s heroic efforts saved many lives on the morning in question, and he is to be commended for his service in the protection of others. There is also no question, however, that — based upon a review of petitioner’s job description and testimony — petitioner was injured during the course of executing the very duties that he had been assigned to perform and in the context of responding to a risk that was both reasonably foreseeable and, more to the point, inherent in the execution of his regular duties. Matter of Kowal v DiNapoli, 2016 NY Slip Op 08144, 3rd Dept 12-1-16

 

RETIREMENT AND SOCIAL SECURITY LAW (POST TRAUMATIC STRESS DISORDER SUFFERED BY A COURT OFFICER AFTER THE OFFICER RETURNED FIRE KILLING A SHOOTER AT THE COURTHOUSE WAS NOT THE RESULT OF A COMPENSABLE ACCIDENT)/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (POST TRAUMATIC STRESS DISORDER SUFFERED BY A COURT OFFICER AFTER THE OFFICER RETURNED FIRE KILLING A SHOOTER AT THE COURTHOUSE WAS NOT THE RESULT OF A COMPENSABLE ACCIDENT)/POLICE OFFICERS (COURT OFFICER, RETIREMENT AND SOCIAL SECURITY LAW, POST TRAUMATIC STRESS DISORDER SUFFERED BY A COURT OFFICER AFTER THE OFFICER RETURNED FIRE KILLING A SHOOTER AT THE COURTHOUSE WAS NOT THE RESULT OF A COMPENSABLE ACCIDENT)

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION, LADDER KICKED OUT FROM UNDER HIM.

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. There was evidence the ladder kicked out from under plaintiff. There was no need to show the ladder was defective. It was enough the ladder was not secured:

Plaintiff established his entitlement to partial summary judgment on his Labor Law § 240(1) claim through witnesses’ testimony that the ladder from which he was descending suddenly kicked out to the left, resulting in his fall … . Contrary to the motion court’s finding, plaintiff was not required to demonstrate that the ladder was defective in order to satisfy his prima facie burden … .

In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident. Plaintiff was not responsible for setting up the ladder, and there was no testimony establishing the existence of any other readily available, adequate safety devices at the work site … . Furthermore, given the undisputed testimony that the ladder kicked out because it was unsecured, the testimony that plaintiff unsafely descended from the ladder by carrying pipe fittings in his arms established, at most, “contributory negligence, a defense inapplicable to a Labor Law § 240(1) claim” … . Fletcher v Brookfield Props., 2016 NY Slip Op 08105, 1st Dept 12-1-16

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION, LADDER KICKED OUT FROM UNDER HIM)/LADDERS (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION, LADDER KICKED OUT FROM UNDER HIM)

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REQUEST FOR NAMES AND ADDRESSES OF RESIDENTS PARTICIPATING IN THE DEER MANAGEMENT PROGRAM, ALLOWING BOW AND ARROW HUNTING ON THEIR PROPERTY, SHOULD HAVE BEEN GRANTED.

The Third Department determined the request for the names and addresses of residents participating in the deer management program should have been granted by the village. The residents at issue allowed deer hunting (bow and arrow) on their property:

To justify the redaction of the names, addresses and other identifying information relating to participants in the deer management program, respondent asserts that disclosure of this information “would constitute an unwarranted invasion of personal privacy” (Public Officers Law § 87 [2] [b]) or “could endanger the li[ves] or safety” of the participants (Public Officers Law § 87 [2] [f]). Turning first to the personal privacy exemption, respondent failed to demonstrate that the redacted information fell into any of the categories of information that the Legislature has specifically determined would qualify as an unwarranted invasion of personal privacy if disclosed (see Public Officers Law § 89 [2] [b]). In the absence of proof establishing the applicability of one of these specifically-enumerated categories, we evaluate whether disclosure would constitute an unwarranted invasion of personal privacy “by balancing the privacy interests at stake against the public interest in disclosure of the information” … . Respondent, however, has not articulated the implicated privacy interests, if any, that are to be weighed against the community’s interest in knowing the locations in which deer-hunting activities may take place. …

Nor did respondent demonstrate that disclosure of the redacted information “could endanger the li[ves] or safety” of the program’s participants (Public Officers Law § 87 [2] [f]). While respondent was only required to demonstrate “‘a possibility of endangerment'” … , respondent’s submissions, which included the [affidavit of] … the Mayor of the Village of Cayuga Heights, which adjoined the Village of Lansing, fell short of such demonstration. [The village clerk] merely stated that deer management programs “can be contentious” and that board members of the Village of Cayuga Heights had received threats when they “considered” those programs. The Mayor of the Village of Cayuga Heights confirmed that “[p]roponents of [the] culling operation, including [her] and other Village officials, ha[d] received death threats and other threats of personal harm.” However, neither affidavit established that similar threats had been made in the Village of Lansing or that participation in the deer management program was controversial in that community. Matter of Laveck v Village Bd. of Trustees of the Vil. of Lansing, 2016 NY Slip Op 08150, 3rd Dept 12-1-16

 

FREEDOM OF INFORMATION LAW (REQUEST FOR NAMES AND ADDRESSES OF RESIDENTS PARTICIPATING IN THE DEER MANAGEMENT PROGRAM, ALLOWING BOW AND ARROW HUNTING ON THEIR PROPERTY, SHOULD HAVE BEEN GRANTED)/DEER MANAGEMENT PROGRAM (FREEDOM OF INFORMATION LAW, REQUEST FOR NAMES AND ADDRESSES OF RESIDENTS PARTICIPATING IN THE DEER MANAGEMENT PROGRAM, ALLOWING BOW AND ARROW HUNTING ON THEIR PROPERTY, SHOULD HAVE BEEN GRANTED)

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THE FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE.

The First Department, over a two-justice dissent, determined the administrative law judge’s (ALJ’s) finding that petitioner’s (mother’s) child was in imminent danger of harm was not supported by the evidence. Petitioner was caught shoplifting (wearing clothes under her clothes). At the time her five-year-old son was with her, and he too was wearing clothes under his clothes. The shoplifting charges were reduced to a violation and the record was sealed. Petitioner had no other contact with the criminal justice system. The child was deemed well cared for and happy. The issue was whether the petitioner’s name should be maintained on a list (“indicated” child abuse) which will make it difficult for her to continue her career in child care:

Under New York’s child protective scheme, a report of suspected child abuse or neglect will be marked “indicated” if the local agency determines after investigation that there is “some credible evidence of the alleged abuse or maltreatment” (Social Services Law § 412[7]). All childcare agencies and other agencies licensed by the state to provide certain services to children are required to inquire whether applicants for employment or to become foster or adoptive parents are subjects of indicated reports (Social Services Law § 424-a). An agency may choose to hire or approve persons on the list of those with indicated reports, but if it does, the agency must “maintain a written record, as part of the application file or employment record, of the specific reasons why such person was determined to be appropriate” for approval (Social Services Law § 424-a[2][a]). The names of subjects of indicated reports remain on the list until 10 years after the youngest child referred to in the report turns 18, unless earlier expunged (Social Services Law § 422[6]). * * *

… [T]he ALJ’s determination that petitioner’s actions were reasonably related to a position in childcare, the field of study petitioner is pursuing, was not rational. The legal standards for determining whether a child is maltreated … are repeated in the Guidelines. The ALJ failed to set forth his consideration of the relevant Guidelines for making such a determination, many of which, as the motion court pointed out, weighed in petitioner’s favor, including factors 2 (the seriousness and extent of any injury to child), 3 (harmful effect on the child of the subject’s actions or inactions), 5 (time since most recent incident of maltreatment), 6 (number of indicated incidents of abuse or maltreatment), 8(a) (whether the acts have been repeated), and 10 (whether reported behavior involved serious injury to, or death of, a child). The single factor the ALJ discussed, factor 8(b), “any information produced . . . in regard to . . . rehabilitation,” failed to consider that all of the evidence at the hearing indicated that petitioner has never been convicted of any crime…; no further [shoplifting] incidents had occurred; petitioner had no prior history with ACS (NYC Administration for Children’s Services); all of her family members interviewed expressed surprise at her behavior on the occasion leading to the report; and she told the caseworker she had “learned her lesson.” Matter of Natasha W. v New York State Off. of Children & Family Servs., 2016 NY Slip Op 08099, 1st Dept 12-1-16

FAMILY LAW (FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)/SOCIAL SERVICES LAW (CHILD ABUSE, FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)/CHILD ABUSE (FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)/CHILD CARE (FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)

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UNDER THE FACTS, NO ABUSE OF DISCRETION IN FAILING TO AWARD PREJUDGMENT INTEREST ON A DISTRIBUTIVE AWARD THE WIFE FAILED TO PAY.

The Third Department determined Supreme Court did not abuse its discretion when it did not award prejudgment interest on a distributive award the wife had failed to pay. The matter came before Supreme Court when the husband moved to enforce the separation agreement:

“There is no automatic entitlement to prejudgment interest, under CPLR 5001, in matrimonial litigation” … . Rather, the decision to award prejudgment interest in a matrimonial action, as well as the rate and date from which it shall be computed, are matters within the sound discretion of the trial court … . Here, the record reflects that, following the execution of the separation agreement, issues arose regarding the accuracy of certain deeds and transfer documents prepared by the husband relative to the parcels of real property that were to be conveyed pursuant to the agreement. Such issues had not been resolved at the time of the husband’s motion to enforce the agreement, the wife claiming that certain inaccuracies still remained within the relevant documents. Although the wife’s obligation to tender the distributive award by the date prescribed in the separation agreement was not contingent upon the execution of the deeds transferring the real property, the wife explained that she had been advised by her attorney to withhold payment of the distributive award — which she had placed in a separate interest-bearing bank account — until the deeds were finalized and signed so as to ensure a contemporaneous exchange … . Under these circumstances, we cannot conclude that Supreme Court improvidently exercised its discretion in choosing to award the husband all interest actually earned on the distributive award rather than prejudgment interest pursuant to CPLR 5001. Fori v Fori, 2016 NY Slip Op 08135, 3rd Dept 12-1-16

FAMILY LAW (UNDER THE FACTS, NO ABUSE OF DISCRETION IN FAILING TO AWARD PREJUDGMENT INTEREST ON A DISTRIBUTIVE AWARD THE WIFE FAILED TO PAY)/CIVIL PROCEDURE (FAMILY LAW, PREJUDGMENT INTEREST, UNDER THE FACTS, NO ABUSE OF DISCRETION IN FAILING TO AWARD PREJUDGMENT INTEREST ON A DISTRIBUTIVE AWARD THE WIFE FAILED TO PAY)/INTEREST (FAMILY LAW, PREJUDGMENT INTEREST, UNDER THE FACTS, NO ABUSE OF DISCRETION IN FAILING TO AWARD PREJUDGMENT INTEREST ON A DISTRIBUTIVE AWARD THE WIFE FAILED TO PAY)

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CUSTODY AWARD REVERSED, FACTORS ERRONEOUSLY RELIED UPON BY FAMILY COURT EXPLAINED IN DETAIL. 

The First Department, reversing Family Court, determined mother, not father, should be awarded sole legal custody of the child:

The Family Court Judge presiding over the trial of this complex and long-running custody matter was clearly concerned with the child’s best interests and wrestled with concerns about the mother’s history of mental health issues, and the effect on the child of a “temporary” award of custody to the father, issued years prior to assignment of the case to the trial judge. However, a thorough review of the record does not provide a sound and substantial basis for the award of custody to the father, and requires an award of custody to the mother. * * *

In its award of custody to the father, the Family Court erred in several respects. First, it gave substantial weight to the fact that the father had temporary custody of the child for four years and nine months. This fact should not have been a basis, without more, for a final custody award. * * *

Secondly, the Family Court gave excessive weight to the parties’ financial circumstances, noting that their finances favored the father because the father works, and the mother is unemployed and receives Supplemental Security Income (SSI). * * *

Third, there is no support for the Family Court’s finding that the neutral forensic evaluator “made an initial superficial assessment of the parties at the commencement of his evaluative process, cast his lot with [the mother], and worked from that point to present his findings in her favor.” * * *

Fourth, Family Court’s concern about the mother’s mental health history is understandable, but its conclusions disregard crucial evidence and its determination is not in the child’s best interests. In March 2015, when the trial was completed, the mother was in remission, had not been hospitalized since November 2010, and, in the five years since then, had been compliant with treatment by her psychiatrist and therapist. * * *

Fifth, [the child’s]  close relationship to her siblings, all of whom reside with her mother, also weighs in favor of awarding custody to the mother, since “the stability and companionship to be gained from keeping the children together is an important factor for the court to consider” in making a custody determination …, because “[y]oung brothers and sisters need each other’s strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful” … . …

Finally, Family Court improperly considered this a relocation case, governed by Matter of Tropea v Tropea (87 NY2d 727, 740-741 [1996]). However, since there has been no prior custody order, Tropea does not govern, and relocation should have been considered as one factor in determining the child’s best interests … . Matter of Michael B. (Lillian B.), 2016 NY Slip Op 08101, 1st Dept 12-1-16

 

FAMILY LAW (CUSTODY AWARD REVERSED, FACTORS ERRONEOUSLY RELIED UPON BY FAMILY COURT EXPLAINED IN DETAIL)/CUSTODY (CUSTODY AWARD REVERSED, FACTORS ERRONEOUSLY RELIED UPON BY FAMILY COURT EXPLAINED IN DETAIL)

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