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Arbitrator’s Misapplication of Law Is Not Reviewable by a Court

In affirming the denial of an application to vacate an arbitrator’s award (in which petitioners were found to have wrongfully removed trees), the Fourth Department noted that the misapplication of law by an arbitrator is not reviewable by a court:

We reject, however, petitioners’ contention that the arbitrator’s alleged misapplication of RPAPL 861 is a sufficient ground to vacate the award in its entirety. “An arbitrator’s resolution of questions of substantive law or fact is not judicially reviewable” … . Thus, even assuming, arguendo, that the arbitrator misapplied RPAPL 861, we conclude that such error is beyond our review. Matter of Svenson v Swegan, 2015 NY Slip Op 08525, 4th Dept 11-20-15

 

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Criteria for a Warrantless Blood Swab

In affirming defendant’s murder conviction, the Fourth Department noted that a swab of a blood stain on defendant’s body was properly taken without a warrant. The DNA in the swab matched the victim’s. The court explained the criteria for a warrantless swab:

Defendant agreed to give his clothing to the police and, when he removed his shirt, an officer noticed a reddish brown stain on defendant’s chest that appeared to be blood. When asked what it was, defendant responded that it was a bruise. The officer swabbed the area, which later tested positive for blood and matched the victim’s DNA. Where, as here, the police did not obtain a warrant for the seizure of the blood evidence, “the police had to satisfy two requirements in order to justify the action taken. First, the police had to have reasonable cause to believe the [blood stain] constituted evidence, or tended to demonstrate that an offense had been committed, or, that a particular person participated in the commission of an offense . . . Second, there had to have been an exigent circumstance of sufficient magnitude to justify immediate seizure without resort to a warrant” … . We agree with the court that the police had reasonable cause to believe that the blood stain on defendant’s chest constituted evidence, and that the seizure was appropriate because it could have been easily destroyed by defendant … . People v Johnson, 2015 NY Slip Op 08540, 4th Dept 11-20-15

 

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Erroneous Admission of Evidence of Specific Prior Crimes and Bad Acts Required Reversal

The Fourth Department determined evidence of prior crimes and bad acts on the part of the defendant (which took place just prior to defendant’s arrest) were properly admitted to provide background information explaining the actions taken by the police. But other evidence of defendant’s prior crimes and bad acts should not have been admitted and the errors warranted a new trial:

… [A]lthough the court properly permitted the People to present evidence of the fact that he was on parole at the time of his arrest, the court erred in permitting the People to detail that he was on parole for a conviction of attempted criminal possession of a controlled substance in the third degree. The specific crime of which defendant was convicted does not constitute necessary background information, and it does not fit within any other recognized exception to the Molineux rule, i.e., motive, intent, identity, absence of mistake, or common plan or scheme … .

… [T]he court erred in ruling that defense counsel [in cross-examining a police officer] opened the door to the admission of additional evidence of uncharged crimes and prior bad acts that the court had initially precluded by an earlier determination. * * *

…[D]efense counsel did not challenge on cross-examination the officer’s credibility on the issue whether such prior interactions with defendant took place, thereby permitting the officer to fully explain the nature of the interactions… . People v Dowdell, 2015 NY Slip Op 08567, 4th Dept 11-20-15

 

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Extraordinary Circumstances Warranted Award of Custody to Non-Parent

The Fourth Department, over a two-justice dissent, determined Family Court properly awarded custody of the child to the child’s half brother:

It is well-settled that, “as between a parent and nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’ ” … . Here, the evidence established that the mother and the father changed residences frequently over a period of 18 months, and they were evicted from one residence and were homeless for several months, living in a tent or their vehicle. The child changed schools five times in four school districts over that same time period and, with each change in school, the child missed at least several days and sometimes several weeks of school. Indeed, we note that “[u]nrebutted evidence of excessive school absences [is] sufficient to establish . . . educational neglect” … . The evidence also supports the court’s conclusion that the child had poor hygiene. Thus, the record establishes that the mother and the father have exhibited “behavior evincing utter indifference and irresponsibility,” and the court therefore properly concluded that extraordinary circumstances exist…  .

It is well settled that, “once extraordinary circumstances are found, the court must then make the disposition that is in the best interest[s] of the child” … , and we agree with the court that the child’s best interests are served by awarding petitioner custody of the child with visitation to the mother and the father… . Matter of Stent v Schwartz, 2015 NY Slip Op 08535, 4th Dept 11-20-15

 

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Trustee Was Not Negligent In Its Management of Three Trusts; Surrogate’s Court’s Findings Reversed

Reversing Surrogate’s Court, the Fourth Department determined the trustee of three trusts initially funded by Kodak stock was not negligent in its management of the trusts. The Fourth Department analyzed each trust using the relevant investment standards:

We conclude that the Surrogate erred in sustaining the objections to the three accounts because objectants failed to sustain their burden of proving that petitioner failed to diversify the trusts prudently within a reasonable time, and also failed to establish a reasonable date from which a surcharge could be calculated. As we explained in Knox (98 AD3d at 308-309), petitioner was subject to three separate standards of care as trustee: “[f]rom [1966] until 1970, the standard was the common-law rule, which provided that the trustee is bound to employ such diligence and such prudence in the care and management, as in general, prudent [persons] of discretion and intelligence in such matters, employ in their own like affairs’ . . . From 1970 to 1995, the standard of care was the prudent person rule established in EPTL 11-2.2 (a) (1), which provided that [a] fiduciary holding funds for investment may invest the same in such securities as would be acquired by prudent [persons] of discretion and intelligence in such matters who are seeking a reasonable income and preservation of their capital’ . . . Effective, January 1, 1995, the Prudent Investor Act (EPTL 11-2.3 [L 1994, ch 609, § 1]) created a new standard of care by providing that [a] trustee shall exercise reasonable care, skill and caution to make and implement investment and management decisions as a prudent investor would for the entire portfolio, taking into account the purposes and terms and provisions of the governing instrument’ (EPTL 11-2.3 [b] [2]). The statute lists various elements of the prudent investor standard, including: pursuing an overall investment strategy; considering numerous factors pertaining to the overall portfolio including, e.g., general economic conditions; and diversifying assets (see EPTL 11-2.3 [b] [3] [A]-[C]).” Notably, the “Prudent Investor Act requires a trustee to diversify assets unless the trustee reasonably determines that it is in the interests of the beneficiaries not to diversify’ ” (Janes, 90 NY2d at 49 n, quoting EPTL 11-2.3 [b] [3] [C]; see Knox, 98 AD3d at 310). Matter of Jp Morgan Chase Bank, N.A., 2015 NY Slip Op 08533, 4th Dept 11-20-15

 

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Because the Lease Authorized Landlord to Make Repairs, the Erection of Scaffolding Could Not Constitute a Partial Eviction; Occupant Not Named on the Lease Owes Rent Under a Quantum Meruit Theory

With respect to the lessee of a garage, the First Department determined the landlord’s erection of scaffolding to make repairs was allowed by the lease and, therefore, did not constitute a partial eviction. With respect to a party which occupied the premises but which was not a party to the lease, the First Department determined rent was owed to the landlord under a quantum meruit theory:

The … defendants’ argument that they were partially evicted from the garage is unavailing. “To be an eviction, constructive or actual, there must be a wrongful act by the landlord” … . Plaintiff’s installation of temporary scaffolding as part of its repairs to the garage’s facade was not wrongful because it was authorized by the lease … . … “[T]enants are well advised . . . to specify some limits to the exculpatory clause concerning repairs” … . * * *

A claim by a landlord against a nonlessee occupant for use and occupancy should not be foreclosed simply because there is a lease covering the premises. The obligations of the lessee arising under the lease are distinct from the obligations of an occupant of premises toward the owner of those premises.

Notwithstanding the general rule that “[t]he existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter” … , in the landlord-tenant context, the occupant of premises is liable to the owner of the property for use and occupancy irrespective of the existence of a lease in the name of another entity: “[t]he obligation to pay for use and occupancy does not arise from an underlying contract between the landlord and the occupant[,] [but] [r]ather, an occupant’s duty to pay the landlord for its use and occupancy of the premises is predicated upon the theory of quantum meruit, and is imposed by law for the purpose of bringing about justice without reference to the intention of the parties” … . Carlyle, LLC v Beekman Garage LLC, 2015 NY Slip Op 08499, 1st Dept 11-19-15

 

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Copy Writer and Editor Was an Employee

The Third Department determined claimant copy writer and editor was an employee of Fox Mobile Distribution and was therefore entitled to unemployment insurance benefits:

Here, the record contains substantial evidence that Fox exercised the requisite control over claimant’s work product to establish her status as its employee. Claimant was paid at a set hourly wage, entitled to reimbursement for approved travel and expenses and provided a cellular phone to test Fox’s products … . The project team leaders — who were employees — educated her regarding the product, delegated specific writing or editing tasks, provided direction and set completion deadlines. Claimant regularly reviewed her work progress with the project manager, received ongoing feedback and made necessary revisions and adjustments … . She was also required to come to Fox’s office for meetings and reviews of her copy. The fact that the parties’ agreement designated claimant as a contractor is not dispositive … . Matter of Eckert (Fox Mobile Distrib. LLC–Commissioner of Labor), 2015 NY Slip Op 08489, 3rd Dept 11-19-15

 

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Massage Therapist Was Employee

The Third Department determined claimant massage therapist was an employee of Addison Street Spa and was therefore entitled to unemployment insurance benefits:

Here, there is evidence in the record that Addison set the prices for the massages and the percentage of which claimant was paid, scheduled its clients pursuant to claimant’s weekly schedule, collected the fees from the clients and fielded any complaints. Addison required claimant to sign an agreement that she would not solicit, divert or take away any of Addison’s clients during the term of the agreement and for one year after claimant stopped providing massages at the spa. Addison provided the room, equipment and supplies and required claimant to arrive 30 minutes before the scheduled massage time and to maintain professional attire… . Matter of Fatone (Addison St. Spa, LLC–Commissioner of Labor), 2015 NY Slip Op 08488, 3rd Dept 11-19-15

 

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Musician Was Employee

The Third Department determined claimant, a musician who accompanied the Young People’s Chorus of New York (YPCNY) was an employee of YPCNY and therefore was entitled to unemployment benefits:

Here, YPCNY provided claimant with the date, time and place for the concerts, the rehearsal times and the music to be performed. Claimant was paid a set rate of between $250 and $600 per concert and YPCNY paid his travel expenses. YPCNY would inform claimant of the required dress code for the concerts and claimant was required to inform YPCNY if he was going to be late or absent. YPCNY’s president was the musical conductor at the concerts and was responsible for handling complaints about the musicians. While there is other evidence in the record that would support a different result, the foregoing constitutes substantial evidence supporting the Board’s decision that YPCNY exercised sufficient control over the services provided by the musicians to establish an employment relationship … . Matter of North (Young People’s Chorus of N.Y.–Commissioner of Labor), 2015 NY Slip Op 08486, 3rd Dept 11-19-15

 

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Pyrotechnician Was Not an Employee

The Third Department determined a pyrotechnician who worked for a company (PEI) which puts on fireworks displays was not an employee and was not, therefore, entitled to unemployment insurance benefits:

Here, claimant did not submit a resume or employment application and did not undergo a job interview, but was retained by PEI through his contact with a lead technician and worked on PEI’s displays intermittently over a five-year period. PEI relied on lead technicians, who were independent contractors, to oversee the production of the fireworks displays and they directed and supervised the pyrotechnicians involved in a particular project. Claimant’s duties as a pyrotechnician included picking up the fireworks supplies, setting up the displays, igniting the fireworks, breaking down the displays and cleaning up. PEI did not attend the fireworks displays, but limited its activities to securing the sponsors, designing the shows and providing the fireworks and other necessary equipment. The lead technicians negotiated the price for production services with PEI and submitted invoices instructing PEI how much to pay the pyrotechnicans involved. PEI solicited assignments one at a time and the lead technicians and pyrotechnicians were free to refuse assignments and work for competitors. Although PEI offered to provide training, it was training that was required by regulatory agencies and could be obtained elsewhere. Furthermore, the lead technicians and pyrotechnicans did not wear clothing or other attire identifying them with PEI, but instead wore T-shirts designating them as “staff” that were required by law. Under the circumstances presented, the indicia of control necessary to establish the existence of an employment relationship between PEI and the pyrotechnicans, like claimant, is clearly lacking .. . .  Matter of Franco (Pyro Eng’g Inc.–Commissioner of Labor), 2015 NY Slip Op 08483, 3rd Dept 11-19-15

 

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