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EXCESSIVE ABSENTEEISM JUSTIFIED DENIAL OF BENEFITS.

The Third Department determined claimant’s excessive absenteeism justified the denial of unemployment insurance benefits. The fact claimant didn’t realize the last warning was a final warning did not excuse the behavior:

Excessive absenteeism, which continues despite repeated warnings, has been held to constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits … . Here, it is undisputed that claimant was continually absent from work even after she was warned that further absences would result in disciplinary action, including discharge. Although claimant maintains that she did not realize that the last warning was her final one, this does not excuse her behavior under the circumstances presented. Matter of Mead (Commissioner of Labor), 2016 NY Slip Op 07374, 3rd Dept 11-10-16

UNEMPLOYMENT INSURANCE (EXCESSIVE ABSENTEEISM JUSTIFIED DENIAL OF BENEFITS)/ABSENTEEISM (EXCESSIVE ABSENTEEISM JUSTIFIED DENIAL OF BENEFITS)

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DISSATISFACTION WITH JOB ASSIGNMENTS NOT GOOD CAUSE FOR RESIGNING.

The Third Department upheld the board’s finding claimant did not demonstrate good cause to leave her job and therefore was ineligible for unemployment insurance benefits:

… [D]issatisfaction with job assignments or responsibilities has been held to not constitute good cause for resigning … . The Board credited the testimony of claimant’s supervisor regarding the reorganization and its effect upon claimant. Claimant’s title, grade, salary, work schedule and location were not being changed and, while there were changes in her job duties, her precise duties had not been finally determined due to the ongoing and preliminary nature of the reorganization.

Significantly, claimant did not attempt to speak with any of her supervisors before resigning to raise concerns or clarify the new job duties. The Board was free to reject claimant’s disputed testimony that she resigned as a result of ongoing retaliation … . Matter of Flint-Jones (Federal Reserve Bank of N.Y.–Commissioner of Labor), 2016 NY Slip Op 07368, 3rd Dept 11-10-16

 

UNEMPLOYMENT INSURANCE (DISSATISFACTION WITH JOB ASSIGNMENTS NOT GOOD CAUSE FOR RESIGNING)

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CLAIMANT’S CONNECTION TO A CORPORATION WAS NOT SUFFICIENT TO WARRANT FINDING HE WAS NOT TOTALLY UNEMPLOYED.

The Third Department determined claimant, who was listed as a principal of a corporation (Reel One), did not have a sufficient connection to the corporation to warrant the board’s decision claimant was not totally unemployed:

It is well settled that “[a] claimant who is a principal of an ongoing corporation will not be considered totally unemployed if he or she stands to benefit financially from its continued operation, no matter how minimal the activities performed on its behalf” … .

Here, there is no evidence that claimant performed any activities, however trivial, on behalf of Reel One in 2010 during the time period at issue. In addition, there is no evidence that claimant’s name appeared on any bank accounts or corporate documents. Claimant testified that his wife created Reel One as a nonprofit corporation in the 1990s before they were married and that she was the sole shareholder. Although claimant and his wife, who both had extensive journalism experience, were listed as principals of Reel One on its website, claimant testified that his wife provided this information for marketing purposes only and that the website functioned as a type of advertisement. There is no evidence that the website was actively used to transact business. Matter of Petrick (Commissioner of Labor), 2016 NY Slip Op 07363, 3rd Dept. 11-10-16

 

UNEMPLOYMENT INSURANCE (CLAIMANT’S CONNECTION TO A CORPORATION WAS NOT SUFFICIENT TO WARRANT FINDING HE WAS NOT TOTALLY UNEMPLOYED)

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DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK.

Defendant, Frasier, was driving to work in his own car when he was involved in a rear-end collision with plaintiff. Plaintiff sued defendant’s employer under the doctrine of respondeat superior. The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted. The defendant was not acting within the scope of his employment when the accident occurred:

As a general rule, an employee driving to and from work is not acting in the scope of his [or her] employment . . . Although such activity is work motivated, the element of control is lacking” … . “Although the issue whether an employee is acting within the scope of his or her employment generally is one of fact, it may be decided as a matter of law in a case such as this, in which the relevant facts are undisputed” … .

Contrary to plaintiffs’ contention, the mere fact that Frasier carried his own tools in his vehicle was insufficient to “transform the use of the automobile into a special errand [for defendant] or an extension of the employment” … . Moreover, the fact that Frasier drove a coworker to work that morning is of no significance because he was not directed to do so, and the carpool was based on the employees’ “personal arrangement” … . Finally, the fact that defendant paid for lodging for Frasier while he was at a remote work site also does not require a different finding inasmuch as defendant did not require its employees to stay at the procured hotel, and the employees did not have “to inform defendant of their whereabouts [outside of working hours]” … . Figura v Frasier, 2016 NY Slip Op 07525, 4th Dept 11-10-16

 

NEGLIGENCE (DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK)/EMPLOYMENT LAW (NEGLIGENCE, RESPONDEAT SUPERIOR, DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK)/RESPONDEAT SUPERIOR (DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK)

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT CONTRACTOR CREATED AN UNREASONABLE RISK OF HARM WHEN INSTALLING A FLOOR AND THEREFORE OWED A DUTY TO PLAINTFF, HOWEVER THE DEFECT WAS TRIVIAL AS A MATTER OF LAW.

The Fourth Department, reversing Supreme Court, determined plaintiff had raised an issue of fact whether defendant contractor owed a duty to plaintiff because its flooring work created an unreasonable risk of harm to others. However Supreme Court erred in not finding the defect trivial as a matter of law:

Here, the record establishes that the bullnose tile was slightly less than one-half of an inch in height and was not the same color as the tile floor. * * * …”[T]he test established by the case law in New York is not whether a defect is capable of catching a pedestrian’s shoe. … [T]he relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances” … . Upon our review of the photos of the alleged defect and in view of the less than ½-inch height of the bullnose tile and the circumstances surrounding decedent’s accident … , we conclude that, although an accident occurred that is “traceable to the defect, there is no liability” because the alleged defect ” is so slight that no careful or prudent [person] would reasonably anticipate any danger from its existence’ ” under the circumstances present here … . Stein v Sarkisian Bros., Inc., 2016 NY Slip Op 07501, 4th Dept 11-10-16

NEGLIGENCE (PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT CONTRACTOR CREATED AN UNREASONABLE RISK OF HARM WHEN INSTALLING A FLOOR AND THEREFORE OWED A DUTY TO PLAINTFF, HOWEVER THE DEFECT WAS TRIVIAL AS A MATTER OF LAW)/CONTRACT LAW (TORT LIABILITY TO THIRD PARTIES, PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT CONTRACTOR CREATED AN UNREASONABLE RISK OF HARM WHEN INSTALLING A FLOOR AND THEREFORE OWED A DUTY TO PLAINTFF, HOWEVER THE DEFECT WAS TRIVIAL AS A MATTER OF LAW)/SLIP AND FALL (PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT CONTRACTOR CREATED AN UNREASONABLE RISK OF HARM WHEN INSTALLING A FLOOR AND THEREFORE OWED A DUTY TO PLAINTFF, HOWEVER THE DEFECT WAS TRIVIAL AS A MATTER OF LAW)/TRIVIAL DEFECT (SLIP AND FALL, PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT CONTRACTOR CREATED AN UNREASONABLE RISK OF HARM WHEN INSTALLING A FLOOR AND THEREFORE OWED A DUTY TO PLAINTFF, HOWEVER THE DEFECT WAS TRIVIAL AS A MATTER OF LAW)

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STORM IN PROGRESS RULE REQUIRED SUMMARY JUDGMENT TO DEFENDANT IN THIS SLIP AND FALL CASE, FAILURE TO REMOVE ALL SNOW FROM A PARKING LOT DOES NOT CREATE A HAZARD.

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should have been granted. Defendants established they had no duty to remove snow at the time of plaintiff’s fall under the storm in progress doctrine. The court noted that the duty to render a parking lot safe does not entail the removal of all the snow:

It is undisputed that defendants met their initial burden on the motion “by establishing that a storm was in progress at the time of the accident and, thus, that they had no duty to remove the snow and ice until a reasonable time ha[d] elapsed after cessation of the storm” … . In opposition, plaintiff failed to raise a triable issue of fact ” whether the accident was caused by a slippery condition at the location where [she] fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and that the defendant[s] had actual or constructive notice of the preexisting condition’ ” … . Even assuming, arguendo, that plaintiff was entitled to rely upon the theory that the icy condition formed prior to the storm upon the melting and refreezing of snow piles created by defendants’ plowing practices … , we conclude that plaintiff’s assertion is based on mere speculation and thus is insufficient to raise an issue of fact … . Indeed, in surmising that there must have been snow piles throughout the parking lot from prior accumulations, plaintiff relied upon inadmissible printouts from a weather data website … , as well as defendants’ general practices regarding snow removal as set forth in their contract … . The record is devoid of competent evidence that any such snow piles existed or, more specifically, that a pile of snow was located near the area of the parking lot where plaintiff fell that had melted and had then refrozen prior to the storm, resulting in the icy condition that caused plaintiff’s accident … . Finally, to the extent that plaintiff contends that defendants’ snow removal efforts created the hazardous condition because they did not properly care for the area where she fell even though they had treated other areas of the parking lot during the storm, we note that it is well settled that ” [t]he mere failure to remove all snow and ice from a . . . parking lot does not constitute negligence’ and does not constitute creation of a hazard” … . Hanifan v Cor Dev. Co., LLC, 2016 NY Slip Op 07498, 4th Dept 11-10-16

NEGLIGENCE (STORM IN PROGRESS RULE REQUIRED SUMMARY JUDGMENT TO DEFENDANT IN THIS SLIP AND FALL CASE, FAILURE TO REMOVE ALL SNOW FROM A PARKING LOT DOES NOT CREATE A HAZARD)/STORM IN PROGRESS (STORM IN PROGRESS RULE REQUIRED SUMMARY JUDGMENT TO DEFENDANT IN THIS SLIP AND FALL CASE, FAILURE TO REMOVE ALL SNOW FROM A PARKING LOT DOES NOT CREATE A HAZARD)/SLIP AND FALL (STORM IN PROGRESS RULE REQUIRED SUMMARY JUDGMENT TO DEFENDANT IN THIS SLIP AND FALL CASE, FAILURE TO REMOVE ALL SNOW FROM A PARKING LOT DOES NOT CREATE A HAZARD)

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ALL PROPERTY OWNERS AFFECTED BY A CHALLENGED ZONING ORDINANCE ARE NOT NECESSARY PARTIES IN THE ACTION, ORIGINAL PETITION, WHICH DID NOT NAME ALL AFFECTED PARTIES, ALLOWED TO PROCEED.

The Third Department determined all “rezoned” property-owners, deemed “necessary parties” by Supreme Court in this action to annul a local law rezoning property for industrial use. were, in fact, not “necessary parties.” The petition, which had been dismissed for failure to timely serve the newly-added “necessary parties,” was reinstated. The local law, which would allow a recycling center in a previously residential-agricultural zone, was challenged based upon an alleged failure to comply with the State Environment Quality Review Act:

The newly-added respondents were not necessary parties merely because the ordinance at issue affected their property rights. “‘[T]he absence of a necessary party may be raised at any stage of the proceedings, by any party or by the court on its own motion'” (Bayview Loan Servicing, LLC v Sulyman, 130 AD3d 1197, 1198 [2015], quoting Matter of Estate of Prospect v New York State Teachers’ Retirement Sys., 13 AD3d 699, 700 [2004]). Given a court’s power to raise the issue, it is notable that the Court of Appeals and this state’s appellate courts, including this Court, have long entertained challenges to municipalities’ legislative actions in regard to zoning ordinances without requiring the joinder of every property owner whose rights are affected by the ordinance at issue … . ]). This has been true even when the ordinance at issue is one that, on its face, is likely to dramatically affect the property rights held by real property owners (see e.g. Matter of Wallach v Town of Dryden, 23 NY3d 728, 740 [2014]). Although this Court has, in limited cases, found property owners to be necessary parties in regard to legal challenges to municipal ordinances that affect the property owners’ rights, it has only done so in cases where the owners had obtained an actual approval pursuant to the challenged zoning ordinance that would be adversely impacted by a judgment annulling that ordinance … . Matter of Hudson Riv. Sloop Clearwater, Inc. v Town Bd. of The Town of Coeymans, 2016 NY Slip Op 07358, 3rd Dept 11-10-16

MUNICIPAL LAW (ALL PROPERTY OWNERS AFFECTED BY A CHALLENGED ZONING ORDINANCE ARE NOT NECESSARY PARTIES IN THE ACTION, ORIGINAL PETITION, WHICH DID NOT NAME ALL AFFECTED PARTIES, ALLOWED TO PROCEED)/ZONING (ALL PROPERTY OWNERS AFFECTED BY A CHALLENGED ZONING ORDINANCE ARE NOT NECESSARY PARTIES IN THE ACTION, ORIGINAL PETITION, WHICH DID NOT NAME ALL AFFECTED PARTIES, ALLOWED TO PROCEED)/ENVIRONMENTAL LAW (ALL PROPERTY OWNERS AFFECTED BY A CHALLENGED ZONING ORDINANCE ARE NOT NECESSARY PARTIES IN THE ACTION, ORIGINAL PETITION, WHICH DID NOT NAME ALL AFFECTED PARTIES, ALLOWED TO PROCEED)/CIVIL PROCEDURE (ALL PROPERTY OWNERS AFFECTED BY A CHALLENGED ZONING ORDINANCE ARE NOT NECESSARY PARTIES IN THE ACTION, ORIGINAL PETITION, WHICH DID NOT NAME ALL AFFECTED PARTIES, ALLOWED TO PROCEED)

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PLAINTIFF’S MOTION PAPERS RAISED A QUESTION OF FACT WHETHER HIS FAILURE TO USE A LADDER WAS THE SOLE PROXIMATE CAUSE OF HIS FALL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS.

The Fourth Department, over a two-justice dissent, reversing Supreme Court, determined plaintiff’s motion papers in the Labor Law 240(1) action raised a triable issue of fact whether his failure to use an available ladder was the sole proximate cause of his fall from a wall. Plaintiff’s motion must therefore be denied without any need to consider the opposing papers:

Liability under section 240 (1) does not attach when the safety devices that [the] plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and [the] plaintiff knew he [or she] was expected to use them but for no good reason chose not to do so, causing an accident” … . Under those circumstances, the “plaintiff’s own negligence is the sole proximate cause of his [or her] injury” … .

Where the plaintiff’s submissions in support of the motion raise a triable issue of fact whether his or her own actions were the sole proximate cause of the injury, the plaintiff has failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of liability because “if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation” … . In this case, plaintiff’s submissions raised triable issues of fact whether plaintiff knew that he was expected to use a readily available ladder at the work site to perform his task, but for no good reason chose not to do so, and whether he would not have been injured had he not made that choice … . Scruton v Acro-Fab Ltd., 2016 NY Slip Op 07428, 4th Dept 11-10-16

 

LABOR LAW (PLAINTIFF’S MOTION PAPERS RAISED A QUESTION OF FACT WHETHER HIS FAILURE TO USE A LADDER WAS THE SOLE PROXIMATE CAUSE OF HIS FALL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS)/SOLE PROXIMATE CAUSE (LABOR LAW 240(1), PLAINTIFF’S MOTION PAPERS RAISED A QUESTION OF FACT WHETHER HIS FAILURE TO USE A LADDER WAS THE SOLE PROXIMATE CAUSE OF HIS FALL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS)/LADDERS (LABOR LAW 240(1), PLAINTIFF’S MOTION PAPERS RAISED A QUESTION OF FACT WHETHER HIS FAILURE TO USE A LADDER WAS THE SOLE PROXIMATE CAUSE OF HIS FALL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS)

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COURT ERRED IN REFUSING TO APPLY THE “MADE WHOLE” RULE IN THIS SUBROGATION ACTION.

The Fourth Department determined Supreme Court erred when it refused to apply the “made whole” rule in this subrogation action. After settling for the full amount of the policy, respondent insurer sought the full amount paid to plaintiff by another insurer. The matter was sent back because it was unclear whether the settlement made plaintiff whole:

Plaintiff contends that, under the “made whole” rule, respondent has no right of subrogation because plaintiff’s damages exceed the amount of the settlement. By way of background, the “made whole” rule provides that, if “the sources of recovery ultimately available are inadequate to fully compensate the insured for its losses, then the insurer—who has been paid by the insured to assume the risk of loss—has no right to share in the proceeds of the insured’s recovery from the tortfeasor” … . “In other words, the insurer may seek subrogation against only those funds and assets that remain after the insured has been compensated. This designation of priority interests . . . assures that the injured party’s claim against the tortfeasor takes precedence over the subrogation rights of the insurer” … . Although we agree with plaintiff that the court erred in refusing to apply that rule, on this record, it is unclear whether the settlement made plaintiff whole. Grinage v Durawa, 2016 NY Slip Op 07429, 4th Dept 11-10-16

INSURANCE LAW (COURT ERRED IN REFUSING TO APPLY THE “MADE WHOLE” RULE IN THIS SUBROGATION ACTION)/MADE WHOLE RULE (INSURANCE LAW, COURT ERRED IN REFUSING TO APPLY THE “MADE WHOLE” RULE IN THIS SUBROGATION ACTION)/SUBROGATION (INSURANCE LAW, COURT ERRED IN REFUSING TO APPLY THE “MADE WHOLE” RULE IN THIS SUBROGATION ACTION)

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FATHER DID NOT ABUSE THE JUDICIAL PROCESS, FAMILY COURT SHOULD NOT HAVE PROHIBITED FUTURE PETITIONS.

The Fourth Department determined father, who was incarcerated in Michigan, was afforded due process in the proceedings in which his petition for visitation was denied. However, the court noted that Family Court did not have the power, under the circumstances, to prohibit any further petitions by father:

… [W]e agree with the father that the court erred in sua sponte imposing conditions restricting him from filing new petitions. It is well settled that “[p]ublic policy mandates free access to the courts” … , but ” a party may forfeit that right if she or he abuses the judicial process by engaging in meritless litigation motivated by spite or ill will’ ” … . Here, however, there is no basis in the record from which to conclude that the father had engaged in meritless, frivolous, or vexatious litigation, or that he had otherwise abused the judicial process … . Matter of Otrosinka v Hageman, 2016 NY Slip Op 07553, 4th Dept 11-10-16

FAMILY LAW (FATHER DID NOT ABUSE THE JUDICIAL PROCESS, FAMILY COURT SHOULD NOT HAVE PROHIBITED FUTURE PETITIONS)/CIVIL PROCEDURE (FATHER DID NOT ABUSE THE JUDICIAL PROCESS, FAMILY COURT SHOULD NOT HAVE PROHIBITED FUTURE PETITIONS)

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