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Late Disclaimer on a Valid Ground Not Excused

The First Department determined the failure to timely disclaim coverage on a valid ground was ineffective. The fact that other grounds for disclaimer might have been investigated does not excuse the late disclaimer: …”Insurance Law § 3420(d) ‘precludes an insurer from delaying issuance of a disclaimer on a ground that the insurer knows to be valid . . . while investigating other possible grounds for disclaiming'”… . Endurance Am. Specialty Ins. Co. v Utica First Ins. Co., 2015 NY Slip Op 07329, 1st Dept 10-8-15

 

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Critieria for Amendement of a Notice of Claim Explained

The First Department determined Supreme Court should have granted plaintiff’s motion to amend the notice of claim to include mention of a defective handrail, despite plaintiff’s failure to invoke the proper statutory authority (General Municipla Law 50-e(5)). The court explained the criteria for an amendment:

Under GML § 50-e(5), a notice of claim may be amended within one year and ninety days of an accident to include new theories of liability … . Plaintiff’s cross motion was made eleven months after the accident, well within the one-year-and-ninety- day limitation period.

In determining whether an application for leave to serve a late notice of claim should be granted, a court shall consider “whether the public corporation . . . acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one . . . or within a reasonable time thereafter” (GML § 50-e[5]). The court shall also consider “all other relevant facts and circumstances,” including whether the delay “substantially prejudiced the public corporation in maintaining its defense on the merits” (id.).

“In determining whether the city was prejudiced by any mistake, omission, irregularity or defect in the notice [of claim], the court may look to evidence adduced at a section 50-h hearing, and to such other evidence as is properly before the court'” … . * * *

We have previously held that prejudice will not be presumed … . Moreover, “[i]t may not be shown without evidence of an attempt to investigate the accident” … . Given defendant’s actual knowledge of the facts constituting the claim within a reasonable time after the accident, and the lack of evidence of an attempt to conduct an investigation either before or after it obtained knowledge of the issue concerning the handrail in this accident …, “conclusory assertions of prejudice, based solely on the delay in serving the notice of claim, are insufficient” … . Thomas v New York City Hous. Auth., 2015 NY Slip Op 07328, 1st Dept 10-8-15

 

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Slip and Fall on Ice Not an “Accident” Within Meaning of Retirement and Social Security Law

The Third Department confirmed the comptroller’s finding that petitioner, who worked for a town public safety department, was not entitled to enhanced disability benefits based upon a slip and fall on ice.  The incident did not constitute an “accident” within the meaning of the Retirement and Social Security Law:

As defined for purposes of the Retirement and Social Security Law, an unexpected and unfortunate incident does not constitute an accident, so as to support an award of benefits, “where the injury results from an expected or foreseeable event arising during the performance of routine employment duties'” … . Significantly, the burden is on the party seeking benefits to establish that the incident causing his or her injury was an accident … .

Here, petitioner testified that the night before the incident there was an ice storm, and he left for work early the following morning to allow him time to navigate the icy road conditions. He stated that he spoke to his supervisor while en route and arrived in the parking lot about 10 minutes prior to his regularly scheduled shift. As he exited his vehicle, he took a few steps and then slipped and fell in the parking lot. While he was on the ground, he saw that he was lying on ice, and water was running down the middle. Based upon petitioner’s testimony describing the occurrence and his awareness of the hazardous conditions created by the ice storm, he should have reasonably anticipated that the parking lot would be slippery when he exited his vehicle. Accordingly, as the precipitating event was entirely foreseeable, substantial evidence supports the Comptroller’s finding that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law and, thus, that petitioner was not entitled to enhanced benefits… . Matter of Begley v DiNapoli, 2015 NY Slip Op 07323, 3rd Dept 10-8-15

 

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Sales Rep Who Worked from Home Was an Employee

The Third Department upheld the board’s determination that claimant, who worked from home as a sales representative for DaVinci, was an employee entitled to benefits:

Here, claimant knew DaVinci’s principal through prior business dealings and obtained the job after submitting a resume, but did not go through a formal hiring procedure. Through negotiation, the principal agreed to pay her $4,000 per month, plus health insurance, and to reimburse her for business-related expenses. Her compensation was initially supposed to be a draw on commission, but turned out to be a salary that she was paid every other week regardless of sales. Although claimant worked from home, she provided the principal with weekly activity reports, maintained regular contact by phone and email, and received specific instructions on products, pricing, delivery and clients. In addition, claimant contacted clients who she had dealings with in the past, but also claimant followed up on leads directed to her by the principal and met with him at conventions and product demonstrations. Notably, the principal provided claimant with a three dimensional television and other equipment needed to conduct her sales activities, as well as training on how to operate the equipment. In view of the foregoing, and notwithstanding the evidence that would support a contrary conclusion, substantial evidence supports the Board’s finding that an employment relationship existed between claimant and DaVinci… . Matter of Gluck (Davinci 3D Corp.–Commissioner of Labor), 2015 NY Slip Op 07320, 3rd Dept 10-8-15

 

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Corrections Officer Not Entitled to Performance of Duty Disability Benefits Based Upon Injury Stemming from Aiding an Inmate Who Was Having a Seizure

The Third Department determined a corrections officer was not entitled to “performance of duty” disability benefits based upon injury aiding an inmate who had a seizure. The court found that the “performance of duty” disability provision pertained only to injury caused by a violent inmate:

Retirement and Social Security Law § 507-b (a) provides for performance of duty disability retirement benefits to correction officers employed by the Department of Corrections and Community Supervision who are unable to perform their job duties “as the natural and proximate result of an injury, sustained in the performance or discharge of [their] duties by, or as a natural and proximate result of, an act of an inmate.” The statute does not specifically define an “act of an inmate.” The legislative history, however, reveals that “the statute was clearly intended to compensate correction officers who, because of the risks created by their ‘daily contact with certain persons who are dangerous [and] profoundly antisocial’ . . . become permanently disabled” … . In accordance with this intent, courts have construed the language to require that the injuries be caused by direct interaction with an inmate in order to qualify for benefits under the statute … .

Petitioner contends that she had direct interaction with the inmate while she was lowering him to the floor during his seizure. However, in analogous circumstances where a correction officer was injured while assisting an incapacitated inmate during a medical emergency, we held that the “inmate was not engaged in any act that was a proximate cause of petitioner’s. . . injury” (Matter of Esposito v Hevesi, 30 AD3d 667, 668 [2006]). Given the absence of any affirmative act on the part of the inmate here, we perceive no meaningful distinction to be drawn between this case and Matter of Esposito v Hevesi (supra) … . Matter of Laurino v DiNapoli, 2015 NY Slip Op 07327, 3rd Dept 10-8-15

 

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Where There Is Permanent Partial Disability, the Benefits Are Calculated Based Upon the Difference Between the Pre-Disability Earnings and the Actual Earnings During the Period of Disability

The Third Department determined the Board correctly calculated the benefits for a nurse who could no longer work as a nurse due to an allergic reaction to hand sanitizer (permanent partial disability). She found work as a part-time cashier at $8 an hour. She had earned over $2000 per week as a nurse. The Board awarded her benefits of $600 per week for 500 weeks. The Third Department held the Board correctly used the difference between her nursing salary and her earnings as a cashier earnings during the period of disability as the basis for the award. The court explained the analytical criteria:

Workers’ Compensation Law § 15 (3) (w) provides that the compensation rate for injured employees who have permanent partial disabilities that are not subject to schedule awards is based upon “the difference between the injured employee’s average weekly wages and his or her wage-earning capacity thereafter in the same employment or otherwise” … . Workers’ Compensation Law § 15 (5-a) further provides that the wage- earning capacity of an injured employee with a partial disability “shall be determined by his [or her] actual earnings” while disabled … . Notably, the Court of Appeals has recognized that “where actual earnings during the period of the disability are established, wage[-]earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more or less during such disability period” … .

Vocational and functional considerations, such as a claimant’s age, education, training, experience, restrictions and related factors, are appropriately taken into account with respect to loss of wage-earning capacity only as they are relevant to the duration of a claimant’s permanent partial disability benefits … . Matter of Baczuk v Good Samaritan Hosp., 2015 NY Slip Op 07313, 3rd Dept 10-8-15

 

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Business Connections to New York Insufficient to Confer Jurisdiction Under CPLR 301 or 302, Criteria Explained

The Second Department determined the defendants-respondents were properly granted summary judgment dismissing the complaint based upon the court’s lack of jurisdiction over a foreign corporation and individual non-domiciliary (insufficient business connection with New York). The court explained the business-related jurisdiction requirements under CPLR 301 and 302:

“Jurisdiction under CPLR 301 may be acquired over a foreign corporation only if that corporation does business here not occasionally or casually, but with a fair measure of permanence and continuity’ so as to warrant a finding of its presence’ in this jurisdiction” … . Furthermore, “[a]n individual cannot be subject to jurisdiction under CPLR 301 unless he [or she] is doing business in New York as an individual rather than on behalf of a corporation” … . Here, the respondents were not doing business in this State … .

Pursuant to CPLR 302(a)(1), “a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . . transacts any business within the state or contracts anywhere to supply goods or services in the state” (CPLR 302[a][1]). “Whether a defendant has transacted business within New York is determined under the totality of the circumstances, and rests on whether the defendant, by some act or acts, has purposefully avail[ed] itself of the privilege of conducting activities within [New York]”‘ … . “Purposeful activities are those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws'” … . “CPLR 302(a)(1) jurisdiction is proper even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted'” … .

Here, the respondents established, prima facie, that they did not conduct any purposeful activities in New York which bore a substantial relationship to the subject matter of this action, so as to avail themselves of the benefits and protections of this State’s laws. Okeke v Momah, 2015 NY Slip Op 07252, 2nd Dept 10-7-15

 

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In Opposing a Motion to Dismiss for Failure to Timely File a Note of Issue, No Need to Show Potentially Meritorious Cause of Action Where Defendant Contributed to the Delay

The Second Department determined that defendants’ motion to dismiss for failure to prosecute should not have been granted. The court noted that one of the defendants contributed to the delay in filing the note of issue by not showing up for a deposition. Because of the defendant’s contribution to the delay, the plaintiff did not have to demonstrate a potentially meritorious cause of action:

CPLR 3216 is “extremely forgiving” in that it “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … . When served with a 90-day demand pursuant to CPLR 3216, it is incumbent upon a plaintiff to comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or extend the 90-day period … . In general, if a plaintiff fails to comply with the demand, to avoid the sanction of dismissal, the plaintiff is required to demonstrate a justifiable excuse for the delay and the existence of a potentially meritorious cause of action (see CPLR 3216[e]…).

Here, although the plaintiff did not file a note of issue within the 90-day demand period, her conduct negated any inference that she intended to abandon the action … . In opposition to the defendants’ separate motions, the plaintiff promptly cross-moved to strike the answer of … defendant …Sarab for his willful failure to appear for a court-ordered deposition. The plaintiff established that, due to an unresolved discovery dispute, she was unable to timely file a note of issue … . Furthermore, since Sarab contributed to the plaintiff’s inability to file a timely note of issue in the proper form, the plaintiff was not required to demonstrate a potentially meritorious cause of action … . Lee v Rad, 2015 NY Slip Op 07248, 2nd Dept 10-7-15

 

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Forum Selection Clause in Nursing Home Admission Agreement Enforceable

The Second Department determined defendant nursing home’s motion to change venue based upon a forum selection clause in the admission agreement should have been granted. After her mother (a resident of defendant nursing home) died, plaintiff brought this action for medical malpractice in a county other than that designated in the admission agreement:

” A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court'” … . Here, the plaintiff failed to show that enforcement of the forum selection clause would be unreasonable, unjust, or in contravention of public policy, or that the inclusion of the forum selection clause in the agreement was the result of fraud or overreaching … . Moreover, the plaintiff failed to demonstrate that a trial in Suffolk County would be so gravely difficult that, for all practical purposes, she would be deprived of her day in court … . Puleo v Shore View Ctr. for Rehabilitation & Health Care, 2015 NY Slip Op 07255, 2nd Dept 10-7-15

 

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Petitioner-Employee Did Not Demonstrate the Union Breached Its Duty of Fair Representation, Therefore Petitioner Did Not Demonstrate an Exception to the “Exhaustion of Remedies” Pre-Requisite for an Article 78 Proceeding

The Second Department determined petitioner’s Article 78 action should have been dismissed because petitioner did not demonstrate an exception to the requirement that she exhaust all the grievance remedies provided by the collective bargaining agreement. Petitioner was terminated from her employment at a county community college:

Generally, an employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies … . However, the failure to exhaust administrative remedies may be excused where the employee can prove that the union breached its duty of fair representation in the handling of the employee’s grievance … . Breach of the duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith … . Here, the petitioner did not allege that the union’s conduct was arbitrary, discriminatory, or made in bad faith, and the record does not support such a conclusion … . Accordingly, as the petitioner failed to establish that an exception to the exhaustion doctrine was applicable, the Supreme Court should have denied the petition and dismissed the proceeding on the merits. Matter of McLaughlin v Hankin, 2015 NY Slip Op 07272, 2nd Dept 10-7-15

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