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In the Face of Defendant’s Claims Defense Counsel Did Not Adequately Represent Him, Counsel’s Answering the Judge’s Questions About Defendant’s Allegations (Which Were Rejected by the Court) Did Not Place Defense Counsel in a Position Adverse to the Defendant’s

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined that defense counsel’s answering the judge’s questions about his performance did not place the attorney in a position adverse to his client’s.  The client, prior to trial, sought the appointment of new counsel by filing a form (“Affidavit in Support of Motion for Reassignment of Counsel”) circling every reason for the appointment of new counsel listed on the form, including the failure to discuss strategy, the failure to seek discovery, the failure to contest identification evidence, and the failure to communicate with the defendant. The form did not reach the judge until after the defendant’s trial and conviction. The defendant did not mention the motion or his concerns during the trial.  The judge, based on his observations during the trial, determined many of the circled claims on the form were not true. The judge asked the attorney about what he had done prior to trial and the attorney explained what he had done.  In so doing, the attorney did not take a position adverse to the defendant’s:

“The right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at defendant’s option” … . A defendant may be entitled to new counsel, however, “upon showing good cause for a substitution, such as a conflict of interest or other irreconcilable conflict with counsel” (id. [internal quotation marks omitted]). Here, defendant claims that he was entitled to new defense counsel because counsel’s responses to the allegations of ineffectiveness created an actual conflict of interest.

Although an attorney is not obligated to comment on a client’s pro se motions or arguments, he may address allegations of ineffectiveness “when asked to by the court” and “should be afforded the opportunity to explain his performance” … .

We have held that counsel takes a position adverse to his client when stating that the defendant’s motion lacks merit …, or that the defendant, who is challenging the voluntariness of his guilty plea, “made a knowing plea . . . [that] was in his best interest” … . Conversely, we have held that counsel does not create an actual conflict merely by “outlin[ing] his efforts on his client’s behalf” … and “defend[ing] his performance” … .

Applying these settled principles to the facts in this case, we conclude that defense counsel’s comments in response to the judge’s questions did not establish an actual conflict of interest. Defense counsel did not suggest that his client’s claims lacked merit. Rather, he informed the judge when he met with defendant and for how long, what they discussed, what the defense strategy was at trial and what discovery he gave or did not give to defendant. Thus, he never strayed beyond a factual explanation of his efforts on his client’s behalf.  People v Washington, 2015 NY Slip Op 05511, CtApp 6-25-15

 

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Unambiguous Language in Rider Covered Loss Caused by Hackers Gaining Unauthorized Access to the Insured’s Computers, Not Loss Caused by Fraudulent Billing Entries by Authorized Users

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the rider in a financial institution bond covered loss caused by hackers gaining access to the insured’s computer system, not loss caused by the entry of fraudulent billing information into the computer system by authorized users.  Here fraudulent medical claims made by authorized users of the computer system cost the insured (Universal) $18 million. The language of the relevant rider was deemed unambiguous:

… [W]e conclude that it unambiguously applies to losses incurred from unauthorized access to Universal’s computer system, and not to losses resulting from fraudulent content submitted to the computer system by authorized users. The term “fraudulent” is not defined in the Rider, but it refers to deceit and dishonesty (see Merriam Webster’s Collegiate Dictionary [10th ed 1993]). While the Rider also does not define the terms “entry” and “change,” the common definition of the former includes “the act of entering” or “the right or privilege of entering, access,” and the latter means “to make different, alter” (id.). In the Rider, “fraudulent” modifies “entry” or “change” of electronic data or computer program, meaning it qualifies the act of entering or changing data or a computer program. Thus, the Rider covers losses resulting from a dishonest entry or change of electronic data or computer program, constituting what the parties agree would be “hacking” of the computer system. The Rider’s reference to “fraudulent” does not also qualify what is actually acted upon, namely the “electronic data” or “computer program” itself. The intentional word placement of “fraudulent” before “entry” and “change” manifests the parties’ intent to provide coverage for a violation of the integrity of the computer system through deceitful and dishonest access.

Other language in the Rider confirms that the Rider seeks to address unauthorized access. First, the Rider is captioned “Computer Systems,” and the specific language at issue is found under the subtitle “Computer Systems Fraud.” These headings clarify that the Rider’s focus is on the computer system qua computer system. Second, under “EXCLUSIONS,” the Rider exempts from coverage losses resulting directly or indirectly from fraudulent instruments “which are used as source documentation in the preparation of Electronic Data, or manually keyed into a data terminal.” If the parties intended to cover fraudulent content, such as the billing fraud involved here, then there would be no reason to exclude fraudulent content contained in documents used to prepare electronic data, or manually keyed into a data terminal. Universal Am. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA., 2015 NY Slip Op 05516, CtApp 6-25-15

 

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No Appeal to the Court of Appeals Lies from the Appellate Division’s Affirmance of the Denial of Resentencing Pursuant to the 2004 Drug Law Reform Act (DLRA)

The Court of Appeals determined no appeal lies from the Appellate Division’s affirmance of the denial of resentencing pursuant to the 2004 Drug Law Reform Act (DLRA). The fact that the order (denying resentencing) was consolidated with appealable orders did not confer jurisdiction to hear the appeal upon the Court of Appeals:

“It is well established that no appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute,” and courts “may not resort to interpretative contrivances to broaden the scope and application of statutes” governing the availability of an appeal … . [W]e have held that no statutory provision authorizes a defendant to appeal from an Appellate Division order affirming the denial of the defendant’s resentencing application pursuant to the 2005 Drug Law Reform Act … . The 2004 DLRA includes similar language relating to appeals; accordingly, no appeal lies from an order of the Appellate Division affirming the denial of a resentencing application under the 2004 DLRA … . Faced with this barrier to our review, defendant contends that the Appellate Division’s consolidation of the order denying resentencing with other, appealable orders, transformed the nonappealable order into one that we may consider. We disagree. The Appellate Division’s authority to consolidate appeals stems from its inherent authority to administer and manage its proceedings. The Appellate Division’s use of this inherent authority does not expand or modify the scope of our jurisdiction, which is established by statute. People v Lovett, 2015 NY Slip Op 05512, CtApp 6-25-15

 

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Question of Fact Whether State Exercised Due Diligence In Addressing Recurrent Blowing-Snow Problem on Highway

The Third Department, reversing the Court of Claims, determined questions of fact had been raised about whether the state had taken adequate measures to address a recurrent “blowing snow” condition in the vicinity of plaintiff’s-decedent’s highway accident. The court rejected defendant’s argument that the “storm in progress” rule should be applied to blowing snow on a roadway. Rather the inquiry is whether the defendant exercised reasonable diligence in maintaining the roadway under the prevailing circumstances. There was evidence that the area in question was the site of several accidents and that installation of a snow fence may have prevented the problem. The state was unable to demonstrate it had undertaken a relevant study and was therefore unable to invoke qualified immunity:

… [I]t is a matter of established law that “[t]he pertinent inquiry is whether [defendant] exercised reasonable diligence in maintaining [the roadway] under the prevailing circumstances” … . Applying this analysis, ongoing adverse conditions do not excuse defendant from its duty to remediate dangerous conditions, but are relevant to the inquiry as to whether it exercised reasonable diligence in doing so … . * * *

Defendant may be held liable in negligence where it “failed to diligently remedy [a] dangerous condition[] once it was provided with actual or constructive notice or [where] it did not correct or warn of a recurrent dangerous condition of which it had notice” … . “Once [defendant] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger” … . * * *

… [A]n issue of fact exists with respect to whether defendant’s actions in seeking to remedy the recurring hazard of windblown snow by relying solely on plowing were reasonable. * * *

… [D]efendant failed to show that it was entitled to summary judgment on the basis of qualified immunity. When defendant undertakes a “stud[y] [of] a dangerous condition and determines as part of a reasonable plan of governmental services that certain steps need not be taken, that decision may not form the basis of liability” … . Although defendant contends that its decision not to utilize a snow fence or other measures intended to mitigate the hazard of windblown snow resulted from a “reasoned plan or study,” the record is inadequate to demonstrate, as a matter of law, that such a study was undertaken … . Frechette v State of New York, 2015 NY Slip Op 05538, 3rd Dept 6-25-15

 

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Transcriber of Administrative Hearings Was an Employee Entitled to Unemployment Insurance Benefits—Appeals Board Not Required to Follow or to Explain Why It Didn’t Follow an “Unappealed” Ruing by an Administrative Law Judge

The Third Department determined claimant, who transcribed administrative hearings for “The Mechanical Secretary,” was an employee entitled to unemployment insurance benefits. The court noted that the unemployment insurance appeals board was not required to explain why it did not follow a prior “unappealed” ruling by an administrative law judge which went the other way:

“Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the [Board], if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion” … . “An employer- employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results” … . Here, the record establishes that The Mechanical Secretary advertised for transcriber positions. The president would interview the applicants and assess the quality of their work. The transcriber was required to have certain equipment, but The Mechanical Secretary would loan the transcriber a transcription machine if needed. The Mechanical Secretary arranged to have the work delivered to and picked up from the transcribers within a certain area. In claimant’s case, however, because she did not live in close proximity to the company, she was required to pick her work up at its office and to return the completed work to that office by 9:00 a.m. Claimant was occasionally reimbursed for her travel expenses. Significantly, The Mechanical Secretary set the nonnegotiable pay rate, supplied all the paper needed by the transcribers, and reviewed the final product for mistakes and would correct any minor mistakes or, where the mistakes were significant, send it back to be corrected by the transcriber. Furthermore, The Mechanical Secretary had to be notified if a transcriber was going to take any vacation. Given the evidence produced, we find that there is substantial evidence to support the Board’s finding that The Mechanical Secretary exercised a sufficient degree of control over claimant’s work to establish an employment relationship … .

We are unpersuaded by The Mechanical Secretary’s contention that the Board was bound by a prior unappealed Administrative Law Judge decision that found medical transcribers that it had used to be independent contractors. Claimant, who is not a medical transcriber, was not involved in that prior proceeding such that there was a full and fair opportunity for her to contest the decision, nor is the Board “required to conform to the precedent established in the prior unappealed decision or offer a rational explanation for not doing so” … . Matter of Ingle (The Mech. Secretary, Inc.–Commissioner of Labor), 2015 NY Slip Op 05553, 3rd Dept 6-25-15

 

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Factory-Work Packaging Yogurt Was Not “Suitable Employment” for a Skilled Carpenter

The Third Department reversed the Unemployment Insurance Appeals Board’s determination claimant was not eligible for unemployment insurance benefits because he refused suitable employment.  Claimant is a skilled carpenter.  He refused a yogurt-packaging job in a factory.  The yogurt-packaging job was not, under the circumstances, “suitable employment” for the claimant:

Pursuant to Labor Law § 593 (2), a claimant who refuses “an offer of employment for which he or she is reasonably fitted by training and experience” will be disqualified from receiving unemployment insurance benefits … . Significantly, a “claimant need not accept every job offered but, rather[,] only those job offers which bear a reasonable relationship to [the] claimant’s skills” … . Here, it is undisputed that claimant was skilled in finish carpentry and had no experience working in a factory. Consequently, substantial evidence does not support the Board’s decision that he refused an offer of suitable employer … . The Board’s decision, in fact, runs contrary to a similar case in which the Board awarded benefits to another claimant who worked at the millwork company as a skilled craftsman and refused the same offer to work as a packager in a yogurt factory … . In view of the foregoing, the Board’s decision must be reversed. Matter of Reisen (Commissioner of Labor), 2015 NY Slip Op 05560, 3rd Dept 6-25-15

 

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Petitioner Was Entitled to a Reduction in the Assessed Value of a Home Depot Store Based Upon Its Expert’s Appraisal

The Third Department determined the trial court had properly found petitioner’s expert-appraisal of the value of a Home Depot store to be the most appropriate. Petitioner was therefore entitled to a reduction in the assessed value of the property. The Third Department carefully explained the valuation methods used by the competing experts (that discussion is not summarized here). As to the courts’ role in property-tax assessment proceedings, the Third Department explained:

A local tax assessment is presumptively valid and, to overcome that presumption, a petitioner must present substantial evidence that the property is overvalued … . Petitioner met this threshold burden here through its submission of the detailed appraisal of Harland, a certified real estate appraiser with considerable experience, who utilized accepted methodologies and adequately set forth his calculations and the necessary details regarding the properties … . The appropriateness of the comparable properties used by Harland in his analysis goes to the weight to be given to his appraisal, not, as respondents contend, the appraisal’s competency to raise a valid dispute regarding valuation … .

With petitioner having rebutted the presumptive validity of the assessments, Supreme Court was obligated to “weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued” … . “Where, as here, conflicting expert evidence is presented, we defer to the trial court’s resolution of credibility issues, and consider whether the court’s determination of the fair market value of the subject property is supported by or against the weight of the evidence” … . Matter of Home Depot U.S.A. Inc. v Assessor of the Town of Queensbury, 2015 NY Slip Op 05556, 3rd Dept 6-25-15

 

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Defendant Entitled to Summary Judgment–Activity (Routine Cleaning) Not Covered by Labor Law 240 (1)—Re: Labor Law 200 and Common Law Negligence: Equipment Provided by Defendant Not Defective; Defendant Did Not Have Authority to Control Plaintiff’s Work

The Second Department determined Supreme Court properly dismissed an action by plaintiff-janitor who fell from an A-frame ladder while cleaning the basketball backboard in a school gymnasium. The Labor Law 240 (1) cause of action was properly dismissed because cleaning the backboard was routine maintenance, not covered by Labor Law 240 (1).  The Labor Law 200 and common law negligence causes of action were properly dismissed because the defendant school demonstrated the ladder was not defective and it did not have the authority to control the manner in which plaintiff did his work:

… [T]he injured plaintiff’s work did not constitute “cleaning” within the meaning of Labor Law § 240(1). The defendant established that the injured plaintiff was performing routine maintenance of the basketball backboards, done regularly throughout the course of the basketball season, that did not require any specialized equipment, and was unrelated to any ongoing construction or renovation of the school. As such, it was not a covered activity under Labor Law § 240(1) … . …

Labor Law § 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably 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 a 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'” … . When an accident is alleged to involve defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards … . A defendant moving for summary judgment in such a case may prevail “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” … .

To the extent that the plaintiffs allege that the accident was caused by a defect in the ladder, which was owned and provided by the defendant, a premises condition is at issue … . However, the defendant established, prima facie, that the ladder was not in a defective condition and that, in any event, it did not create or have actual or constructive notice of any defect in the ladder … . …

To the extent that the plaintiffs allege that the accident was caused by the manner in which the work was performed, the defendant established, prima facie, that it did not have the authority to supervise or control the means and methods of the injured plaintiff’s work … . Torres v St. Francis Coll., 2015 NY Slip Op 05466, 2nd Dept 6-24-15

 

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Police Officer Who Refused a Light-Duty Assignment Was Not Entitled to Disability Benefits Pursuant to General Municipal Law 207-c

The Second Department determined a police officer was not entitled to refuse a light duty assignment during the period his entitlement to disability benefits pursuant to General Municipal Law 207-c was being determined:

A disabled officer receiving General Municipal Law § 207-c benefits is entitled to a due process hearing before those benefits may be terminated when the officer submits medical evidence contesting the finding of a municipality’s appointed physician that the officer is fit for duty … . Once such evidence has been submitted, an “order to report for duty may not be enforced, or benefits terminated, pending resolution of an administrative hearing, which itself is subject to review under CPLR article 78” … . However, where the municipality’s physician is of the opinion that the officer is able “to perform specified types of light police duty,” payment of the full amount of salary or wages may be discontinued should the officer refuse to perform such light police duty if same “is available and offered to [the officer]” and enables him or her “to continue to be entitled to his [or her] regular salary or wages” (General Municipal Law § 207-c[3]…). If an officer who refuses to return to light duty fails to provide medical proof that he or she is unable to do so, the municipality may discontinue disability payments without a hearing … . Matter of Garvey v Sullivan, 2015 NY Slip Op 05476, 2nd Dept 6-24-15

 

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Elements of Negligence, General Business Law 349 and Tortious Interference with Contract Causes of Action Succinctly Described

The Second Department determined that Supreme Court properly dismissed (for failure to state a cause of action) the negligence cause of action, should not have dismissed the General Business Law 349 cause of action, and properly denied the motion to dismiss the tortious interference with contract cause of action. The court succinctly described the elements of the three causes of action (facts not described in the decision):

To prevail on a negligence cause of action, a plaintiff must establish the existence of a legal duty, a breach of that duty, proximate causation, and damages. “Absent a duty of care, there is no breach, and without breach there can be no liability” … . * * *

To state a cause of action under General Business Law § 349, the complaint must allege that ” a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice'” … . * * *

The elements of a cause of action to recover damages for tortious interference with contract are the existence of a valid contract between it and a third party, the defendant’s knowledge of that contract, the defendant’s intentional procurement of the third party’s breach of that contract without justification, and damages … . MVB Collision, Inc. v Allstate Ins. Co., 2015 NY Slip Op 05453, 2nd Dept 6-24-15

 

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