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CLAIMANT PROPERLY COMPENSATED FOR WORK-RELATED STRESS.

The Third Department determined claimant was properly awarded workers’ compensation benefits for work-related stress. The employer argued the stress was related to warning letters about claimant’s performance, which would not be compensable. One of the warning letters was deemed not to have been issued in good faith. And claimant submitted proof her stress-related symptoms appeared before the warning letters were issued. Claimant was a licensed clinical social worker who had been attacked by a client:

 

Workers’ Compensation Law § 2 (7) precludes claims for mental injuries based upon work-related stress “if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer.” “Whether the employer’s actions constituted a lawful personnel decision undertaken in good faith is a factual issue to be resolved by the Board”  … . * * *

“According deference to the Board’s resolution of witness credibility issues” … , and in light of the evidence that claimant suffers from a mental injury stemming from work-related stress and that she was being treated for the condition prior to the issuance of the warning letters, the Board’s determination that the claim was not barred by Workers’ Compensation Law § 2 (7) is supported by substantial evidence and will not be disturbed … . Further, based upon the foregoing, we find that the Board’s determination that the stress that caused claimant’s injury was greater than that of other similarly situated workers also is supported by substantial evidence … . Matter of Haynes (Catholic Charities), 2016 NY Slip Op 00560, 3rd Dept 1-28-16

WORKERS’ COMPENSATION LAW (AWARD FOR WORK-RELATED STRESS PROPER)/STRESS, WORK-RELATED (WORKERS’ COMPENSATION BENEFITS PROPERLY AWARDED)

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UNEMPLOYMENT INSURANCE EXPERIENCE RATINGS PROPERLY TRANSFERRED TO NEW BUSINESS ENTITIES DOING THE SAME WORK, EMPLOYING SOME OF THE SAME PEOPLE, AND OPERATING FROM THE SAME ADDRESS.

The Third Department determined that the unemployment insurance experience ratings of businesses which had ceased operation and then reopened under new names were properly transferred to the new businesses:

 

Labor Law § 581 (7) (a) (1) states that “[i]f an employer transfers its organization, trade or business, or a portion thereof, to another employer and, at the time of the transfer, there is at least a ten percent common ownership, management or control of the two employers, then the unemployment experience attributable to the transferred organization, trade or business shall be transferred to the employer to whom such organization, trade or business is so transferred,” and “[f]or purposes of this subdivision ‘organization, trade or business’ shall include the employer’s workforce.” Matter of Prod. Processing Inc. (Commissioner of Labor), 2016 NY Slip Op 00565, 3rd Dept 1-28-16

 

UNEMPLOYMENT INSURANCE (EXPERIENCE RATINGS PROPERLY TRANSFERRED TO NEW BUSINESS ENTITIES)/LABOR LAW (UNEMPLOYMENT EXPERIENCE RATINGS PROPERLY TRANSFERRED TO NEW BUSINESS ENTITIES)

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CONSULTANT HIRED TO EVALUATE TEACHERS WAS AN EMPLOYEE.

The Third Department determined claimant was an employee of RMC, an educational research firm which contracted with the NYC Department of Education. Pursuant to a “consultancy agreement,” claimant was hired to evaluate teachers who had been given unsatisfactory ratings:

 

… [C]laimant was required as part of RMC’s hiring process to submit an application, undergo an interview and provide references. Once hired and after signing the consultant agreement, he received six hours of training, was paid a hourly rate set by RMC, was expected to work three to four hours per week for a total of 36 weeks during the 10-week assignment and submitted a voucher provided by RMC on the 15th of each month to receive payment for hours worked. Notably, claimant was paid for services rendered regardless of whether RMC received payment from the client. Moreover, RMC’s name appeared at the top of the documents that claimant was required to prepare and it determined their format. Furthermore, during the course of his assignment, claimant interacted with RMC’s project director who reviewed his observation reports for comprehensiveness, clarity, spelling and grammar. Any complaints about claimant’s performance or that of the other peer observers were directed to RMC, and it arranged for a replacement if an assignment could not be completed. Matter of Strauss (Commissioner of Labor), 2016 NY Slip Op 00561, 3rd Dept 1-28-16

 

UNEMPLOYMENT INSURANCE (CONSULTED HIRED TO EVALUATE TEACHERS WAS AN EMPLOYEE)

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PART-TIME AEROBICS INSTRUCTOR WAS AN EMPLOYEE.

The Third Department determined a part-time aerobics instructor at a fitness club (Synchronicity) was an employee entitled to unemployment insurance benefits:

 

Here, the evidence in the record reflects that Synchronicity established the fees that members of its fitness club were required to pay for their membership and claimant’s aerobics classes. Members would pay those fees to Synchronicity directly; claimant never collected money from any of the club’s members or charged them for attending her aerobics classes. While there is evidence that claimant’s rate of pay was negotiated, the record also reflects that all instructors at the fitness club were paid the same amount and were directly paid by check from Synchronicity once a week. While claimant would bring some of her own fitness equipment for her classes, including music and Pilates equipment, Synchronicity also provided her with an instruction room and made certain fitness equipment available to her, such as steps and free weights. Further, claimant was not allowed to solicit members of the club to attend classes that she offered at other fitness clubs. Matter of Raynor (Commissioner of Labor) 2016 NY Slip Op 00558, 3rd Dept 1-28-16

 

UNEMPLOYMENT INSURANCE (PART-TIME AEROBICS INSTRUCTOR WAS AN EMPLOYEE)

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LANDLORD ACCEPTED TENANT’S SURRENDER OF THE PREMISES BY OPERATION OF LAW, CRITERIA EXPLAINED.

The Third Department, affirming Supreme Court, found plaintiffs-landlord had accepted defendant-tenant’s surrender of the premises by operation of law. The tenant, upon sufficient notice to the landlord, had moved most of its operation to a new location but continued to pay rent. The landlord then rented parts of the premises to two new tenants and changed the locks so defendant could not access the premises. At that point the tenant stopped paying rent and the landlord sued for the rent for the remaining portion of the lease. The court explained the elements of “surrender by operation of law:”

 

“A surrender by operation of law occurs when the parties to a lease both do some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem the lease terminated” … . A surrender by operation of law is inferred from the conduct of the parties, namely, the tenant’s abandonment of the demised premises and the landlord’s acceptance thereof; whether a surrender by operation of law has occurred in a particular case is generally a factual determination … .

Here, defendant established that plaintiffs relet parts of the premises without notice to defendant and refused to provide defendant with a key to the remaining premises, after having changed the locks. Plaintiffs also placed all the utility accounts in their own names. Plaintiffs’ assertion that a question of fact was raised as to whether there was construction in the leased premises precluding defendant’s use is unavailing. By their own account, plaintiffs refused to provide defendant with new keys and access to the “area in question” due to “ongoing construction” and liability concerns. Whether or not plaintiffs were simply replacing a generator outside the leased premises does not alter their refusal to allow defendant access to the premises. Nor do we overlook the fact that, in their complaint, plaintiffs seek to recover the full rent payable under the lease, without offset for rent received from the two new tenants … . Fragomeni v Aim Servs., Inc., 2016 NY Slip Op 00563, 3rd Dept 1-28-16

 

LANDLORD-TENANT (SURRENDER BY OPERATION OF LAW)/SURRENDER BY OPERATION OF LAW (LANDLORD-TENANT)

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DESPITE THE HUSBAND’S EXTRAORDINARY WEALTH, THE WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE PRENUPTIAL AGREEMENT SHOULD NOT HAVE SURVIVED SUMMARY JUDGMENT.

The First Department, in a full-fledged opinion by Justice Richter, over a full-fledged concurring opinion and a full-fledged dissenting opinion, determined the wife’s action to set aside a prenuptial agreement, on the ground of overreaching, should have been dismissed. The fact that the husband’s net worth allegedly was $188 million in 2013, and the resulting contrast between what the husband could afford to provide and what the prenuptial agreement called for, among several other factors, raised a question of fact about “overreaching” in the eyes of the dissent. The arguments raised in the three opinions are too lengthy and detailed to fairly summarize here. On the issue of overreaching, the majority wrote:

 

Here, the wife’s motion did not challenge the prenuptial agreement on the ground that it is the product of coercion, duress or fraud. Nor did the wife argue that the agreement’s terms as a whole are unconscionable. Rather, her only claim was that the agreement is manifestly unfair due to the husband’s overreaching … . Although no actual fraud need be shown to set aside the agreement on this ground, the challenging party must show overreaching in the execution, such as the concealment of facts, misrepresentation, cunning, cheating, sharp practice, or some other form of deception … . In addition, the challenging party must show that the overreaching resulted in terms so manifestly unfair as to warrant equity’s intervention … .

Judged by these standards, the wife has failed to meet her heavy burden to set aside the prenuptial agreement. No issue of fact exists as to whether the husband engaged in overreaching during the negotiations leading up to the execution of the agreement. The agreement was the product of on-and-off discussions that took place over the course of more than a year and a half. Although initially the parties negotiated by themselves, about midway through, the wife retained the services of a partner in a prominent matrimonial firm. Negotiations continued by the parties and their attorneys, with draft agreements exchanged and terms modified. Both the fact that the wife was an active participant in the negotiations, and was the one who was pushing to get the agreement signed, are hard to reconcile with her current claim of overreaching. Gottlieb v Gottlieb, 2016 NY Slip Op 00613, 1st Dept 1-28-16

 

FAMILY LAW (PRENUPTIAL AGREEMENT, WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE AGREEMENT SHOULD HAVE BEEN DISMISSED)/CONTRACT LAW (PRENUPTIAL AGREEMENT, WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE AGREEMENT SHOULD HAVE BEEN DISMISSED)/PRENUPTIAL AGREEMENT (WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE AGREEMENT SHOULD HAVE BEEN DISMISSED)

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ACTION SEEKING RESCISSION OF A CONSERVATION EASEMENT RESTRICTING DEVELOPMENT ON UPSTATE LAND WITHIN THE NEW YORK CITY WATERSHED PROPERLY DISMISSED; UNIQUE LAW RE: MODIFICATION OR EXTINGUISHMENT OF A CONSERVATION EASEMENT EXPLAINED.

In an action seeking rescission of a conservation easement which restricts development on upstate land within the watershed for New York City, the Third Department affirmed the dismissal of the complaint and explained the unique law which pertains to the modification or extinguishment of a conservation easement:

 

“Conservation easements are of a character wholly distinct from the easements traditionally recognized at common law and are excepted from many of the defenses that would defeat a common-law easement” (… see ECL 49-0305 [2], [5]…). Pursuant to ECL 49-0307 (1), “[a] conservation easement held by a not-for-profit conservation organization may only be modified or extinguished” (1) pursuant to the terms of the instrument creating the easement, (2) in a proceeding pursuant to RPAPL 1951, or (3) by eminent domain. Notably, ECL 49-0307 provides the exclusive means by which a conservation easement may be modified or extinguished (see ECL 49-0305 [2]). Argyle Farm & Props., LLC v Watershed Agric. Council of the N.Y. City Watersheds, Inc., 2016 NY Slip Op 00559, 3rd Dept 1-28-16

 

ENVIRONMENTAL LAW (CONSERVATION EASEMENT, UNIQUE LAW APPLICABLE TO MODIFICATION OR EXTINGUISHMENT)/EASEMENTS (CONSERVATION EASEMENTS, UNIQUE LAW APPLICABLE TO MODIFICATION OR EXTINGUISHMENT)/CONSERVATION EASEMENTS (MODIFICATION OR EXTINGUISHMENT)

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STATEMENT SHOULD NOT HAVE BEEN ADMITTED AS A PROMPT OUTCRY, CONVICTION REVERSED.

The First Department determined a text message sent by the 15-year-old victim of an alleged sexual assault should not have been admitted under the “prompt outcry” hearsay exception. Defendant’s conviction was reversed:

 

A complaint is timely for purposes of the prompt outcry exception if made “at the first suitable opportunity,” which is a “relative concept dependent on the facts” … .

While a significant delay in reporting does not necessarily preclude outcry evidence, especially where the victim is a child … , when the complainant is a teenager (or older), “the concept of promptness necessarily suggests an immediacy not ordinarily present when months go by” … . With respect to teenagers and adults rather than young children, a reporting delay of several months may be justified if there were “legally sufficient circumstances” that would excuse the victim’s delay, such as the victim being “under the control or threats of the defendant…or being among strangers and without others in whom [the victim] could confide” … .

Here … there is an absence of circumstances to bring this lengthy delay within the prompt outcry rule. While the evidence indicated that the complainant experienced confusion, shock, embarrassment, and fear of not being believed, as well as concern about her mother and grandmother’s reactions, there is no evidence that she was threatened by defendant or was under his control. Although the outcry occurred after defendant was incarcerated on a parole violation, the complainant made the disclosure at least a month after that circumstance occurred, and she did not testify that she delayed her disclosure based on a fear of retribution. People v Ortiz, 2016 NY Slip Op 00593, 1st Dept 1-28-16

CRIMINAL LAW (STATEMENT SHOULD NOT HAVE BEEN ADMITTED AS A PROMPT OUTCRY)/EVIDENCE (STATEMENT SHOULD NOT HAVE BEEN ADMITTED AS A PROMPT OUTCRY)/HEARSAY (STATEMENT SHOULD NOT HAVE BEEN ADMITTED AS A PROMPT OUTCRY)/PROMPT OUTCRY (STATEMENT SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE)

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CONVERSION, REPLEVIN AND UNJUST ENRICHMENT CAUSES OF ACTION TIME-BARRED, CRITERIA EXPLAINED.

Plaintiff executor sued defendant, Delaine, under conversion, replevin and unjust enrichment theories for artwork which decedent, Arthur, was allegedly entitled to but which decedent never picked up from the warehouse where it was stored. The First Department determined the conversion, replevin and unjust enrichment causes of action were time-barred:

 

Under CPLR 214(3), the statutory period of limitations for conversion and replevin claims is three years from the date of accrual. The date of accrual depends on whether the current possessor is a good faith purchaser or bad faith possessor. An action against a good faith purchaser accrues once the true owner makes a demand and is refused … . This is “because a good-faith purchaser of stolen property commits no wrong, as a matter of substantive law, until he has first been advised of the plaintiff’s claim to possession and given an opportunity to return the chattel” … . By contrast, an action against a bad faith possessor begins to run immediately from the time of wrongful possession, and does not require a demand and refusal … . Thus, “[w]here replevin is sought against the party who converted the property, the action accrues on the date of conversion” … .

Here, plaintiff alleges that Delaine is a wrongful possessor of the Artwork by virtue of her retention thereof in defiance of this Court’s 1993 order. Accordingly, since Delaine was holding the Artwork in bad faith, the demand and return rule does not apply and the three-year limitations period commenced as of the date of the wrongful taking, which occurred when Delaine retained the Artwork after the issuance of our March 18, 1993 order. Thus, plaintiff’s conversion and replevin claims, filed in 2012, are untimely … . * * *

Unjust enrichment occurs when a defendant enjoys a benefit bestowed by the plaintiff without adequately compensating the plaintiff … . The statute of limitations for unjust enrichment generally accrues upon “the occurrence of the alleged wrongful act giving rise to restitution” … . Here, any alleged “enrichment” took place when Delaine retained possession of the Artworks following our 1993 decision. Accordingly, plaintiff’s unjust enrichment claim is also time-barred.  Swain v Brown, 2016 NY Slip Op 00574, 1st Dept 1-28-16

 

CRIMINAL LAW (COURT PROPERLY REFUSED TO DISQUALIFY A JUROR WHO STATED SHE COULD NOT DELIBERATE FURTHER BECAUSE SHE WAS EMOTIONALLY OVERWHELMED)/JURIES (COURT PROPERLY REFUSED TO DISQUALIFY A JUROR WHO STATED SHE COULD NOT DELIBERATE FURTHER BECAUSE SHE WAS EMOTIONALLY OVERWHELMED)/DISQUALIFICATION OF JUROR (COURT PROPERLY REFUSED TO DISQUALIFY A JUROR WHO STATED SHE COULD NOT DELIBERATE FURTHER BECAUSE SHE WAS EMOTIONALLY OVERWHELMED)

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DEVISE OF REAL PROPERTY HAD NOT ADEEMED, DESPITE DEED PURPORTING TO TRANSFER PROPERTY PRIOR TO DEATH.

The will bequeathed real property to decedent’s two daughters, Watson and Fitzsimmons, with a life estate to Watson. Before decedent’s death Watson used a power of attorney to deed the property to herself. The Second Department determined decedent retained equitable title to the property at death. The deed was determined to be voidable, not void ab initio, and was not declared void until after death. Fitzsimmons argued that the devise of the property adeemed because it was not in decedent’s estate at death. Therefore, Fitzsimmons argued, the life estate awarded Watson in the will was cut off. Affirming Surrogate’s Court, the Second Department held the devise of the property had not adeemed:

 

The doctrine of ademption provides that “[u]nless the property devised or the thing bequeathed was found in the estate of the [decedent] at the time of [his or] her death, the will was necessarily inoperative as to that provision” … . Fitzsimmons asserted that because the deed to Watson was not void ab initio and was not declared void until after the decedent’s death, the decedent did not own the property at the time of her death, having deeded it to Watson. As such, Fitzsimmons contended that the devise of the property in the will adeemed, and that the property should pass through the residuary estate, which left 50% each to Fitzsimmons and Watson, thereby cutting off Watson’s life estate.

Under the particular circumstances of this case, the Surrogate’s Court properly held that the specific devise of property should not be determined to have adeemed, although it was not owned by the decedent at the time of her death. The deed by which the property was transferred to Watson was voidable, and thus, the decedent retained equitable title to the property, which title reverted to her estate when Fitzsimmons successfully asserted the estate’s claims to it … . Matter of Hill, 2016 NY Slip Op 00499, 2nd Dept 1-27-16

 

TRUSTS AND ESTATES (DEVISE OF REAL PROPERTY HAD NOT ADEEMED)/ADEMPTION (DEVISE OF REAL PROPERTY HAD NOT ADEEMED DESPITE DEED PURPORTING TO TRANSFER PROPERTY PRIOR TO DEATH)/DEEDS (VOIDABLE DEED, DECEDENT RETAINED EQUITABLE TITLE AT DEATH)

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