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Resignation in the Face of Immediate Termination Constituted Termination by Final Agency Action (Reviewable by a Court)

The Third Department upheld the determination of the Division of State Police Hearing Board and the termination of the petitioner (a State Trooper). The fact that petitioner had resigned did not deprive the court of its review power, despite the resulting absence of a “final agency determination.”  The petitioner had been shown the superintendent’s termination determination and was told he would be terminated if he did not immediately resign.  Petitioner resigned. The Third Department held that resignation under such a circumstance is effectively a termination by a final agency action and is therefore reveiwable by a court:

… [W]e consider respondents’ argument that, since petitioner resigned, there was no final agency action over which the Court has jurisdiction. Although a resignation “would ordinarily be beyond our review, exceptions exist where . . . the resignation was allegedly ineffective and involuntary” … . It is undisputed that the Superintendent had signed a written decision terminating petitioner’s employment. Significantly, the document was handed to petitioner and he was then told that he had 10 minutes to accept an “option” of resigning. Under the narrow circumstances, petitioner was effectively terminated by a final agency action when he was handed the signed termination document. Matter of Lyons v Superintendent of State Police, Joseph D’Amico, 2015 NY Slip Op 04892, 3rd Dept 6-11-15

 

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Approval of an MRI Within Seven Years of Closure of Claimant’s Case Effectively Reopened the Case—Transfer to the Special Fund for Closed Cases Was Error

The Third Department determined the fact that an MRI had been approved demonstrated that the claimant’s case had not been closed for the requisite seven years. Liability therefore was not shifted to the Special Fund for closed cases:

Pursuant to Workers’ Compensation Law § 25-a, the Special Fund becomes liable for claims that are reopened more than seven years from the date of the injury and three years after the last payment of compensation … . There is no dispute that this case was initially closed as of June 20, 2005. In its amended decision, the Board determined that the case was first reopened in April 2012 when the MRI was requested, but closed once that application was approved. Finding that the case was again reopened when surgery was requested on June 26, 2012, the Board determined that the requisite seven-year time period had passed, shifting liability to the Special Fund.

This sequence calls into question whether the case was “truly closed” when the MRI request was approved. We have previously recognized that a “decision authorizing [an] MRI [does] not constitute a true closing of the case as [the] claimant’s future treatment depended upon the results of the MRI and, thus, further action was contemplated although not planned at that time” … . The same holds true here. As such, we conclude that the Board erred in concluding that the case was closed when the MRI was authorized. Correspondingly, since the case was reopened when the MRI was requested in April 2012, within the statutory seven-year period, liability does not shift to the Special Fund. Matter of Bank v Village of Tuckahoe, 2015 NY Slip Op 04894, 3rd Dept 6-11-15

 

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No Interlocutory Appeal Lies from a Pre-Trial Ruling on the Admissibility of Evidence Which Did Not Limit the Scope of the Issues or Theories of Liability to Be Tried

Defendant was intoxicated when her vehicle collided with plaintiff’s decedent’s vehicle.  Plaintiff, the administrator of decedent’s estate, sought to introduce expert testimony demonstrating that, based upon defendant’s blood-alcohol content six hours after the accident, she would have been visibly intoxicated and had a higher blood-alcohol content when she was served at defendant tavern.  The tavern moved to preclude the expert testimony and, after a Frye hearing, the court granted the motion.  The Third Department determined the court’s ruling on the evidentiary issue did not limit the scope of the issues or theories of liability to be tried and was not, therefore, appealable as of right or by permission. Appeal would have to wait until the trial is concluded:

It is well settled that “an order which merely determines the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . Supreme Court precluded plaintiff from offering an expert opinion as to “the extrapolated blood alcohol content [and] the physiological condition” of [defendant] while she was at the tavern, crediting the testimony of [the tavern’s] expert that such an opinion could not be reliably drawn from the available proof. Regardless of whether Supreme Court abused its discretion in making that determination, it was plainly an evidentiary ruling that did not “limit[] the scope of the issues or the theories of liability to be tried” … . Indeed, counsel for plaintiff acknowledged at oral argument that the preclusion of the proffered expert evidence is not fatal to his claims and that a trial will occur even if the evidence is not allowed. Appellate review thus must wait until after trial, when the relevance of the evidence and the effect of the evidentiary ruling may be properly assessed … . Hurtado v Williams, 2015 NY Slip Op 04912, 3rd Dept 6-11-15

 

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Even When the Injured Worker, Who Had Received Workers’ Compensation Benefits, Successfully Sues His Employer (As Opposed to a “Stranger”) for His Injuries, the Workers’ Compensation Carrier Has a Lien Against the Recovery Pursuant to Workers’ Compensation Law 29(1)

The Third Department noted that, even though the worker who had received workers’ compensation benefits successfully sued his employer (as opposed to a third party) for his injuries, the workers’ compensation carrier still had a lien against the recovery (Workers’ Compensation Law 29(1)):

“When a claimant obtains recovery in a civil action for the same injuries that were the predicate for workers’ compensation benefits, the carrier has a lien against any recovery (see Workers’ Compensation Law § 29 [1]), even where the action is brought against an employer” … . Indeed, as the Court of Appeals has recently reaffirmed, “‘[Workers’ Compensation Law § ] 29, read in its entirety and in context, clearly reveals a legislative design to provide for reimbursement of the compensation carrier whenever a recovery is obtained in tort for the same injury that was a predicate for the payment of compensation benefits'” … . The Court reasoned that “[i]t would be unreasonable to read the statute as mandating a different result merely because the recovery came out of the pockets of a coemployee [or the employer] and not from the resources of a stranger” … . Ronkese v Tilcon N.Y., Inc., 2015 NY Slip Op 04908, 3rd Dept 6-11-15

 

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Arbitrator Did Not Have the Authority (CPLR 7511) to Modify an Award by Adding Interest, Even If Interest Should Have Been Awarded as a Matter of Law

The Third Department determined the arbitrator did not have the authority to modify an award by including an additional amount for interest. Even if the interest should have been awarded initially as a matter of law, modification by adding interest exceeded the powers enumerated in CPLR 7511. The court explained the arbitrator’s authority in this context:

“[I]t has been recognized that an arbitrator’s power to modify an award is extremely limited and that, absent compliance with the statutory requirements, an arbitrator is without authority to modify an award” … . The statutory requirements for modification are set forth in CPLR 7509, which allows an arbitrator to modify his or her award upon the grounds set forth in CPLR 7511 (c) if a timely application for modification is made. Because a timely request was made by petitioner, modification was permissible if: “1. there was a miscalculation of figures or a mistake in the description of any person, thing or property referred to in the award; or 2. the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or 3. the award is imperfect in a matter of form, not affecting the merits of the controversy”(CPLR 7511 [c]). The arbitrator determined that the first two grounds were inapplicable, but that modification was warranted because the failure to assess the requested interest constituted an imperfection in the form of the original award.

Supreme Court correctly determined that CPLR 7511 (c) (3) had no applicability to the modification at issue here, which significantly affected the amount of the award and “was not merely one of form, but one which affect[ed] the substantive rights of the parties” … . Even accepting as true that the arbitrator was obliged to award interest as a matter of law …, “[i]t is clear that an arbitrator’s award cannot be . . . modified due to an error of fact or law unless the correction comes within the corrective or regulatory sections of the CPLR” … . Because the error here does not, the arbitrator lacked authority to correct it … .Matter of David Frueh Contr., LLC (BCI Constr., Inc.), 2015 NY Slip Op 04913, 3rd Dept 6-11-15

 

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Presumption, Pursuant to Banking Law 675, that a Joint Bank Account Created a Joint Tenancy with Right of Survivorship Is Not Triggered Unless the Signature Card for the Account Indicates a Right of Survivorship Was Intended

The Third Department determined petitioner, whose name was on a joint bank account with decedent and another, was not entitled to one-half of the proceeds in the account upon decedent’s death. The court explained that the presumption (Banking Law 675) that a joint bank account creates a joint tenancy with right of survivorship is triggered only when the signature card for the account indicates the parties intended the right of survivorship to apply.  Here the signature card made no mention of the right of survivorship:

Banking Law § 675 (a) provides, in relevant part, that, “[w]hen a deposit of cash . . . has been made . . . in the name of [the] depositor . . . and another person and in form to be paid or delivered to either, or the survivor of them, such deposit . . . and any additions thereto made, by either of such persons, . . . shall become the property of such persons as joint tenants and the same, together with all additions and accruals thereon, . . . may be paid or delivered to either during the lifetime of both or to the survivor after the death of one of them.” Further, Banking Law § 675 (b) provides that “[t]he making of such deposit . . . in such form shall, in the absence of fraud or undue influence, be prima facie evidence, in any action or proceeding to which the . . . surviving depositor. . . is a party, of the intention of both depositors . . . to create a joint tenancy and to vest title to such deposit . . ., and additions and accruals thereon, in such survivor.” Thus, “[w]here an account has been formed in compliance with the statute, it is presumed, absent a showing of fraud or undue influence, that the depositors intended to create a joint tenancy with rights of survivorship” … . That said, the statutory presumption embodied in Banking Law § 675 (b) will not be triggered unless the signature card for the account in question specifically references rights of survivorship … . Assuming the statutory presumption has been invoked, the burden then shifts to the party challenging the survivorship rights “to establish — by clear and convincing evidence — fraud, undue influence, lack of capacity or, as [respondent] asserts here, that the account[] [was] only opened as a matter of convenience and [was] never intended to be [a] joint account[]” … .

Here, the signature card for the Citizens money market account contains no survivorship language. Accordingly, under prevailing case law, petitioner simply is not entitled to the presumption afforded by Banking Law § 675 (b) … . Matter of Farrar, 2015 NY Slip Op 04902, 3rd Dept 6-11-15

 

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Townhouse Residents, Members of a Community Homeowners’ Association, Entered an Implied Contract to Pay a Proportionate Share of the Fees for Authorized and Necessary Services in Connection with the Maintenance of the Townhouse Facilities

The Third Department affirmed Supreme Court’s ruling that defendants (townhouse residents) had entered an implied contract to pay a proportionate share of the full cost of maintaining the facilities. The defendants had refused to pay membership fees after a dispute with other residents arose.  The Third Department, applying the “business judgment rule,” determined the fees assessed by the plaintiffs were for authorized and necessary services provided by the plaintiff:

… [T]he Court of Appeals has made clear that an implied contract for a community homeowners’ association “includes the obligation to pay a proportionate share of the full cost of maintaining . . . facilities and services, not merely the reasonable value of those actually used by any particular resident” … . We review plaintiff’s action in undertaking such expenditures under the business judgment rule, which, in the absence of “claims of fraud, self-dealing, unconscionability, or other misconduct,” is limited to an inquiry of “whether the action was authorized and whether it was taken in good faith and in furtherance of the legitimate interests of the corporation” … . Bluff Point Townhouse Owners Assn., Inc. v Kapsokefalos, 2015 NY Slip Op 04905, 3rd Dept 6-11-15

 

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Plaintiff Not Competent When Release Was Signed/Statute of Limitations Tolled by Plaintiff’s Mental Disability

The Third Department determined Supreme Court properly concluded the release signed by the plaintiff was not enforceable, because the plaintiff was not competent at the time it was signed, and the statute of limitations was tolled by plaintiff’s mental disability. Plaintiff suffered a brain injury when he was struck by a car in 1991. A few months later plaintiff signed a release provided by an insurance adjuster in return for $5000.  The case languished for years and Supreme Court denied defendant’s motion for summary judgment dismissing the case in 2014. The court explained the relevant law:

With respect to the release signed by plaintiff, “the burden of proving incompetence rests upon the party asserting incapacity to enter into an agreement [and], to prevail, plaintiff was required to establish that [his] ‘mind was so affected as to render [him] wholly and absolutely incompetent to comprehend and understand the nature of the transaction'” … . The incapacity must be shown to exist at the time the pertinent document was executed … . Regarding the statute of limitations issue, the toll for “insanity” provided by CPLR 208 is narrowly interpreted, the concept of insanity is “equated with unsoundness of mind” … and encompasses “only those individuals who are unable to protect their legal rights because of an over-all inability to function in society” … . The mental incapacity must exist at or be caused by the accident and continue during the relevant time … . Lynch v Carlozzi, 2015 NY Slip Op 04893, 3rd Dept 6-11-15

 

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Sworn Juror Who Was From the Same Neighborhood as Defendant Stated His Fear of Drug Dealers Would Prevent Him from Reaching an Impartial Verdict—the Juror Was Properly Discharged as “Grossly Unqualified” and “For Cause” Based Upon a Newly Discovered Ground

The First Department determined a sworn juror was properly discharged as “grossly unqualified,” as well as “for cause.” The juror lived in the neighborhood where the crime occurred and where defendant and his accomplices lived. The juror told the court that his fear of drug dealers in his neighborhood would prevent him from reaching an impartial verdict. The juror had not mentioned his fear before he was sworn:

The juror’s fear provided grounds for the court to dismiss him as “grossly unqualified to serve” pursuant to CPL 270.35(1), even if the court did not cite the statutory phrasing, because it was clear that the juror could not remain impartial. Additionally, since the juror had not mentioned that he feared for his safety when questioned by the court and the parties before being sworn, he was properly discharged for cause, on a newly discovered ground, pursuant to CPL 270.15(4). People v Ward, 2015 NY Slip Op 04928, 1st Dept 6-11-15

 

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The Absence of Proof Defendants Disclosed Slanderous Statements Included in Letters to Plaintiff Precluded a “Name-Clearing” Hearing/The Jury Should Not Have Been Allowed to Consider “Ostracism and Rejection” Damages Absent Proof Defendants Were Responsible for Republication of the Slanderous Remarks by Third Persons

In a lawsuit stemming from allegedly slanderous remarks made by defendants in connection with plaintiff’s termination from employment by the defendant school district, the Third Department determined plaintiff’s petition for a name-clearing hearing should have been dismissed, because there was no evidence defendants disclosed the relevant letters to anyone, and the jury should not have been allowed to consider rumor-related “ostracism and rejection” damages, because there was no evidence defendants were responsible for the alleged repetition of the slander by third persons. A new trial on damages was ordered:

Proof of “ostracism and rejection” to establish damages for defamation is only admissible if the proof is “‘the direct and well-connected result'” of a defamatory statement at issue … . Further, even when a defendant’s slanderous statement is connected by proof to that statement’s republication, “‘one who utters a slander . . . is not responsible for its voluntary and unjustifiable repetition, without his [or her] authority or request, by others over whom he [or she] has no control and who thereby make themselves liable to the person injured'” … . This is because “each person who repeats the defamatory statement is responsible for the resulting damages” … .

Plaintiff’s proof regarding rumors and ostracism fail these tests. Plaintiff and her witnesses offered no proof that directly connected [defendants’] slanderous statements to the ostracism that plaintiff allegedly suffered … . Further, even assuming that the content of the rumors allegedly spread by community members allowed for a reasonable inference that said community members were aware of [defendants’] slanderous statements, proof of republication was nonetheless improper given the absence of evidence that defendants had any knowledge of or played any role in such republication … . Compounding the effect of the error, Supreme Court did not instruct the jury that plaintiff had the burden of proving that the ostracism harms that plaintiff allegedly suffered were actually connected to [defendants’] statements, despite defendants’ request that it do so. Wilcox v Newark Val. Cent. School Dist., 2015 NY Slip Op 04890, 3rd Dept 6-11-15

 

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