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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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ATTORNEY’S FEE PROPERLY REDUCED BASED UPON FAILURE TO FULLY FILL OUT THE RELEVANT FORM.

The Third Department determined the requested attorney’s fee was properly reduced from $2800 to $450 because the required form was not fully filled out:

Under Workers’ Compensation Law § 24, the Board has broad discretion in approving an award of counsel fees … . Pursuant to 12 NYCRR 300.17 (d) (1), as relevant here, an attorney “shall file an application upon a form OC-400.1 in each instance where a fee is requested pursuant to [Workers’ Compensation Law § 24].” In approving counsel fee requests in matters where the claimant was awarded benefits, the Board “shall approve a fee in an amount commensurate with the services rendered and having due regard for the financial status of the claimant and whether the attorney . . . engaged in dilatory tactics or failed to comply in a timely manner with [B]oard rules. In no case shall the fee be based solely on the amount of the award” (12 NYCRR 300.17 [f]).

Here, the Board found counsel’s OC-400.1 fee application deficient for failing to indicate the date each service was performed and the specific amount of time for each service. Instead, counsel listed four categories of service with a total time for each category, identifying only the starting date for the initial work. The regulation mandates that the form “be accurately completed” (12 NYCRR 300.17 [d] [1]). Notably, the record confirms that counsel was familiar with a bulletin, Subject Number 046-548, issued by the Board on May 28, 2013, explaining that “[t]he form must be filled out in its entirety, including the section for the date, description, and amount of time spent on each service.” The bulletin further cautions that no fee will be approved unless “completed in its entirety” (see 12 NYCRR 300.17 [h]). A requirement for such specificity is consonant with the Board’s obligation to “approve a fee in an amount commensurate with the services rendered” … . Matter of Fernandez v Royal Coach Lines, Inc., 2017 NY Slip Op 00368, 3rd Dept 1-19-17

 

ATTORNEYS (FEE, WORKERS’ COMPENSATION LAW, ATTORNEY’S FEE PROPERLY REDUCED BASED UPON FAILURE TO FULLY FILL OUT THE RELEVANT FORM)/WORKERS’ COMPENSATION LAW (ATTORNEY’S FEE, FEE PROPERLY REDUCED BASED UPON FAILURE TO FULLY FILL OUT THE RELEVANT FORM)

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COMPUTER DESKTOP ENGINEER NOT AN EMPLOYEE OF JOB PLACEMENT SERVICE.

The Third Department determined claimant, a computer desktop engineer, was not an employee of Logic, an information-technology job-placement service:

Even assuming, without deciding, that claimant’s IT position was a professional one, as the Board concluded, we similarly find that the record lacks substantial evidence that Logic exercised “overall control . . . over important aspects of the services performed other than results or means” … . The unrefuted testimony of claimant and Logic’s principal is that, aside from recruiting claimant and paying him, Logic had little knowledge of the services that he provided to OSP or his job duties, had no control over his assignments or work performance and did not evaluate or supervise his work. Matter of Desravines (Logic Corp.–Commissioner of Labor), 2017 NY Slip Op 00361, 3rd Dept 1-19-17

UNEMPLOYMENT INSURANCE (COMPUTER DESKTOP ENGINEER NOT AN EMPLOYEE OF JOB PLACEMENT SERVICE)

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INABILITY TO MEET THE REQUIREMENTS OF AN EMPLOYMENT AGREEMENT IS NOT GOOD CAUSE FOR LEAVING EMPLOYMENT.

The Third Department determined claimant could not use his inability to meet the requirements of his employment agreement as good cause for leaving his employment. Claimant agreed to provide his own vehicle for work. After an accident he no longer had access to a vehicle. The loss of his vehicle was deemed not to constitute good cause:

The Board determined that the employment agreement, wherein claimant agreed to provide his own vehicle, was not controlling. On the record before us, we disagree with the Board’s conclusion that claimant left his employment with good cause. Although claimant’s testimony constituted substantial evidence regarding the circumstances surrounding the loss of the use of the vehicle, it was error to find that this constituted substantial evidence that his separation from his employment was for good cause. We note that claimant admitted that he shared responsibility for the accident with the other driver and that he had entered into a written employment agreement whereby he agreed to provide his own vehicle and keep it in good operational condition. Further, and importantly, he also agreed that if the vehicle became disabled, he would replace it expeditiously. It is well established that “once the terms of employment have been agreed upon, such terms cannot thereafter be invoked as valid grounds for quitting” … . Inasmuch as claimant was aware of the terms of his employment and accepted same, we conclude that he could not later invoke his inability to meet the requirements of his employment, regardless of the circumstances or fault surrounding the loss of the use of his vehicle, as good cause for leaving his employment … . Matter of Brown (Express Delivery LLC–Commissioner of Labor), 2017 NY Slip Op 00359, 3rd Dept 1-19-17

UNEMPLOYMENT INSURANCE (INABILITY TO MEET THE REQUIREMENTS OF AN EMPLOYMENT AGREEMENT IS NOT GOOD CAUSE FOR LEAVING EMPLOYMENT)/EMPLOYMENT AGREEMENT (UNEMPLOYMENT INSURANCE, INABILITY TO MEET THE REQUIREMENTS OF AN EMPLOYMENT AGREEMENT IS NOT GOOD CAUSE FOR LEAVING EMPLOYMENT)

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ZONING BOARD DID NOT SET OUT A FACTUAL BASIS FOR FAILING TO FOLLOW ITS OWN PRECEDENT IN THIS VARIANCE PROCEEDING, ZONING BOARD’S GRANT OF THE VARIANCES WAS THEREFORE ARBITRARY AND CAPRICIOUS.

The Second Department determined the zoning board’s failure explain why it departed from its own precedent rendered its grant of variances arbitrary and capricious:

[The] variances permitted [petitioner] to subdivide a parcel he owned into two substandard lots, and to construct a two-family residence on each lot. In February 2014, the petitioners commenced this CPLR article 78 proceeding to review the Zoning Board’s determination on the ground that it was arbitrary and capricious, because the Zoning Board failed to properly distinguish the subject application from a substantially similar prior application, made as to the same parcel, which the Zoning Board had denied in 2010. The Supreme Court granted the petition and annulled the determination … .

“A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious” … . Where it is shown that a zoning board has reached contrary results on substantially similar facts, an explanation is required … . Here, the Zoning Board’s failure to set forth a factual basis as to why it was departing from its prior precedent rendered its determination arbitrary and capricious … . Matter of Amdurer v Village of New Hempstead Zoning Bd. of Appeals, 2017 NY Slip Op 00300, 2nd Dept 1-18-17

 

ZONING (ZONING BOARD DID NOT SET OUT A FACTUAL BASIS FOR FAILING TO FOLLOW ITS OWN PRECEDENT IN THIS VARIANCE PROCEEDING, ZONING BOARD’S GRANT OF THE VARIANCES WAS THEREFORE ARBITRARY AND CAPRICIOUS)/VARIANCES (ZONING, ZONING BOARD DID NOT SET OUT A FACTUAL BASIS FOR FAILING TO FOLLOW ITS OWN PRECEDENT IN THIS VARIANCE PROCEEDING, ZONING BOARD’S GRANT OF THE VARIANCES WAS THEREFORE ARBITRARY AND CAPRICIOUS)

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RESOLUTION IMPOSING A SURCHARGE ON DEVELOPERS FOR CONSTRUCTION OF WATER MAINS DECLARED VOID, WATER AUTHORITY FAILED TO PROVIDE PROPER NOTICE BEFORE ENACTING THE RESOLUTION.

The Second Department, reversing Supreme Court, determined the county water authority did not provide the property developers (called “beneficial owners”) with sufficient notice of a resolution which imposed a surcharge upon the developers for the cost of construction of water mains to service the project. The resolution was declared void:

Pursuant to Public Authorities Law § 1078(6), the Water Authority is authorized, generally, to impose a surcharge, such as the surcharge at issue in this matter (see Public Authorities Law § 1078[6]; see also id. § 1078[9], [13]). Nonetheless, the record shows that the Water Authority, in enacting the 2009 resolution, failed to provide proper prior notice of the proposed action to the beneficial owners and an opportunity to be heard. Where a municipality seeks to impose a special tax assessment upon a property owner, due process requires that the property owner be granted prior notice and a right to appear … .

Under the circumstances here, the “surcharge” imposed by the 2009 resolution is analogous to a special tax assessment, requiring that the property owner be given prior notice and a right to appear … . A representative of the beneficial owners averred in an affidavit that they received no prior notice of the Board meeting at which the 2009 resolution was adopted. The Water Authority submitted a copy of a meeting notice and agenda, and the Chief Executive Officer of the Water Authority averred that, prior to the meeting, that agenda was published in a newspaper and posted on the Water Authority website; however, the Water Authority failed to provide proof of publication of the agenda or any evidence of service of the agenda upon the beneficial owners, although the addresses of the beneficial owners were known to the Water Authority. Matter of 22-50 Jackson Ave. Assoc., L.P. v Suffolk County Water Auth., 2017 NY Slip Op 00299, 2nd Dept 1-18-17

 

MUNCIPAL LAW (RESOLUTION IMPOSING A SURCHARGE ON DEVELOPERS FOR CONSTRUCTION OF WATER MAINS DECLARED VOID, WATER AUTHORITY FAILED TO PROVIDE PROPER NOTICE BEFORE ENACTING THE RESOLUTION)/SURCHARGES (MUNICIPAL LAW, RESOLUTION IMPOSING A SURCHARGE ON DEVELOPERS FOR CONSTRUCTION OF WATER MAINS DECLARED VOID, WATER AUTHORITY FAILED TO PROVIDE PROPER NOTICE BEFORE ENACTING THE RESOLUTION)/WATER MAINS (MUNICIPAL LAW, RESOLUTION IMPOSING A SURCHARGE ON DEVELOPERS FOR CONSTRUCTION OF WATER MAINS DECLARED VOID, WATER AUTHORITY FAILED TO PROVIDE PROPER NOTICE BEFORE ENACTING THE RESOLUTION)

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ACCIDENT REPORT WHICH DID NOT INDICATE PETITIONER WAS INJURED DID NOT NOTIFY THE CITY OF THE ESSENTIAL FACTS, THEREFORE LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED.

The Second Department determined the petition for leave to file a late notice of claim against the city, based upon a traffic accident involving a city police car, was properly denied. Although there was a police report of the accident, there was no indication in the report that petitioner was injured:

“A report which describes the circumstances of the accident without making a connection between the petitioner’s injuries and negligent conduct on the part of the public corporation will not be sufficient to constitute actual notice of the essential facts constituting the claim” … . Here, since the police accident report does not connect any injuries sustained by the petitioners to any negligent conduct on the part of the operator of the respondents’ vehicle, it was not sufficient to provide the respondents with actual notice of the essential facts constituting the claim. Moreover, the direct involvement of the respondents’ employee in the accident itself, without more, is also not sufficient to establish that the respondents acquired actual notice of the essential facts constituting the claim … . Matter of D’Agostino v City of New York, 2017 NY Slip Op 00302, 2nd Dept 1-18-17

MUNICIPAL LAW (ACCIDENT REPORT WHICH DID NOT INDICATE PETITIONER WAS INJURED DID NOT NOTIFY THE CITY OF THE ESSENTIAL FACTS, THEREFORE LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)/NEGLIGENCE (MUNICIPAL LAW, ACCIDENT REPORT WHICH DID NOT INDICATE PETITIONER WAS INJURED DID NOT NOTIFY THE CITY OF THE ESSENTIAL FACTS, THEREFORE LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)/NOTICE OF CLAIM (MUNICIPAL LAW, ACCIDENT REPORT WHICH DID NOT INDICATE PETITIONER WAS INJURED DID NOT NOTIFY THE CITY OF THE ESSENTIAL FACTS, THEREFORE LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)

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HOMEOWNER’S EXCEPTION TO LABOR LAW 240 (1) LIABILITY APPLIED, DEFENDANTS DEMONSTRATED FREEDOM FROM FAULT UNDER LABOR LAW 200.

The First Department determined the defendants’ motion for summary judgment on the Labor Law 240 (1) and Labor Law 200 causes of the action were properly granted. The plaintiff alleged defendants provided him with a defective ladder and debris where the ladder was placed created a dangerous condition. Defendants demonstrated the homeowner’s exception to Labor Law 240 (1) applied and, with respect to Labor Law 200, the defendants demonstrated they did not own the ladder and did not create and were not aware of the debris-related condition on the ground:

… [T]he defendants made a prima facie showing that they were entitled to the protection of the homeowner’s exemption [to Labor Law 240 (1) liability] by submitting evidence demonstrating that the work being performed directly related to the residential use of the cottage and that they did not direct or control the manner in which the plaintiff performed his work … . …

Labor Law § 200 codifies the common-law duty of an owner or contractor to provide employees with a safe place to work … . “To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the work'” … . Where the plaintiff’s injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a defendant may be liable under Labor Law § 200 ” if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'” … . Where, as here, an accident allegedly involves defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to an alleged violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards … . A defendant is entitled to summary judgment “only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff’s accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard” … . Dasilva v Nussdorf, 2017 NY Slip Op 00288, 2nd Dept 1-18-17

 

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER’S EXCEPTION TO LABOR LAW 240 (1) LIABILITY APPLIED, DEFENDANTS DEMONSTRATED FREEDOM FROM FAULT UNDER LABOR LAW 200)/HOMEOWNER’S EXCEPTION (LABOR LAW 240 (1), HOMEOWNER’S EXCEPTION TO LABOR LAW 240 (1) LIABILITY APPLIED)

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BANK DID NOT DEMONSTRATE STANDING (REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET), SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing to bring the action:

In support of its motion, Arch Bay submitted the affidavit of Selena Mitcherson, an assistant vice president of Rushmore Loan Management Services (hereinafter Rushmore), the loan servicer for Arch Bay’s assignee [Wachovia]. Mitcherson averred, based upon her review of Rushmore’s business records, that “[t]he note . . . was in Plaintiff’s physical possession of the note [sic] when the action was commenced.” Under these circumstances, Arch Bay failed to demonstrate the admissibility of the records relied upon by Mitcherson under the business records exception to the hearsay rule (see CPLR 4518[a]), since Mitcherson did not attest that she was personally familiar with the record-keeping practices and procedures of Wachovia … . Arch Bay Holdings, LLC v Albanese, 2017 NY Slip Op 00284, 2nd Dept 1-18-17

FORECLOSURE (BANK DID NOT DEMONSTRATE STANDING (REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET), SUPREME COURT REVERSED)/EVIDENCE (FORECLOSURE, BANK DID NOT DEMONSTRATE STANDING (REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET), SUPREME COURT REVERSED)/HEARSAY (FORECLOSURE, BANK DID NOT DEMONSTRATE STANDING (REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET), SUPREME COURT REVERSED)/STANDING (FORECLOSURE, BANK DID NOT DEMONSTRATE STANDING (REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET), SUPREME COURT REVERSED)

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