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As a Contingent Remainder of the Subject Trust, the “Charitable Trust” Had the Right to Intervene in a Proceeding to Remove and Replace the Trustee of the Subject Trust

The Second Department determined that the contingent remainder, Charitable Trust, of the subject trust had standing to intervene in a proceeding which removed the father and appointed the mother trustee of the subject trust:

…[T]he Charitable Trust, as a contingent remainder of the subject trust, has standing to intervene in this proceeding …, and a real and substantial interest in the outcome of the proceeding …. Thus, the Supreme Court should have granted it leave to intervene as a party respondent (see CPLR 1012[a];[2], [3]…). Upon granting the Charitable Trust leave to intervene as a party respondent, the Supreme Court should have granted that branch of the motion which was to vacate the order …removing the father as the trustee of the subject trust and appointing the mother as successor trustee of the subject trust, and thereupon directed that the petition be amended by adding the Charitable Trust as a party respondent and that the Charitable Trust be permitted to serve a verified answer and counterclaims if it be so advised. Matter of Ramm v Allen, 2014 NY Slip Op 04015, 2nd Dept 6-4-14

 

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City Was Not Required to Consider the Petitioners’ Preferred Scenario for Development—City Was Required Only to Consider the “No Action” Alternative

The First Department determined the city (NYC) took the requisite “hard look” at a development project and provided a “reasoned elaboration” of the basis for its approval of the project. The court noted that, although the City Environmental Quality Review (CEQR) requires that the Final Environmental Impact Statement (FEIS) include an analysis of a “No Action” alternative (an analysis based on the assumption the project will not be constructed), the CEQR does not require the FEIS to consider the petitioners’ preferred alternative development scenario. Matter of Residents for Reasonable Dev. v City of New York, 2015 NY Slip Op 04560, 1st Dept 5-28-15

 

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Documents Which Reveal the Identity of Sex Offense Victims Are Categorically Excluded from Disclosure Under the Civil Rights Law and Public Officers Law (Even If the Identifying Information Can Be Redacted)

The Third Department determined petitioner’s request for evidence held by the district attorney’s office was properly denied.  The requested evidence consisted of chat logs and the contents of computers which identified the victims of sex offenses. The court noted that, even if the identification could be reacted, the documents are categorically excluded from disclosure under the Civil Rights Law and Public Officers Law.  Matter of MacKenzie v Seiden, 2015 NY Slip Op 04537, 3rd Dept 5-28-15

 

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Contract Attorney Was an Employee Despite “Independent Contractor” Designation in a Written Employment Agreement

The Third Department determined a “contract attorney” hired by an attorney (Brody) for document-review in a class-action case was an employee entitled to unemployment insurance benefits, despite claimant’s designation as an independent contractor in a written agreement:

Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence” … . As here, “in cases where the rendering of professional services is involved, an employment relationship can be found where there is substantial evidence of control over important aspects of the services performed other than results or means” … .

Here, claimant was paid an agreed-upon hourly rate and required to work at least 45 hours a week, but not more than 50. He was also given specified hours each day to report to his assigned work station, he was required to take a daily unpaid 30 minute lunch break and was occasionally required to report to work on weekends. He was allowed to take unpaid days off, provided that he requested the time off in advance. He received daily assignments from an associate attorney of Brody, who supervised his work. In addition to document review, claimant also assisted in the litigation by providing Brody with written memoranda summarizing deposition testimony, work that included claimant’s attendance at meetings with attorneys from other firms involved in the litigation. In our view, substantial evidence supports the Board’s decision that Brody retained sufficient overall control of claimant’s services to establish an employment relationship, despite evidence in the record that could support a contrary conclusion … . The fact that claimant signed a written agreement designating him as an independent contractor does not compel a different result … . Matter of Singhal (Commissioner of Labor), 2015 NY Slip Op 04550, 3rd Dept 5-28-15

 

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Election Poll Worker Not an Employee—Not Entitled to Unemployment Insurance Benefits

The Third Department determined an election poll worker was not an employee entitled to unemployment insurance benefits:

“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 [although] control over the means [used to achieve those results] is the more important factor to be considered” … .

Here, claimant testified that she responded affirmatively to a card received in the mail from the Board of Elections asking if she was available to work on election day; she thereafter received training and was assigned to a polling place, where she worked as a poll worker or inspector on election day. Her duties included setting up and overseeing tables, signing in voters, showing them how to use the voting machines, keeping track of voting cards and printing a tally of votes at the end of the day, which were reported to the Board of Elections.

Poll clerks, like election inspectors, are appointed, trained, compensated and perform duties as mandated by statute and overseen by the New York State Board of Elections (see Election Law §§ 3-400, 3-402, 3-404, 3-412, 3-420; see also Election Law § 3-102). In the City of New York, they are compensated at a per diem rate established by the Mayor (see Election Law § 3-420 [1]). While, pursuant to those governing statutes, the Board of Elections may have exercised some supervision over the poll workers and their training, this is insufficient, by itself, to establish an employer-employee relationship, and the record is devoid of any proof that any such supervision exercised exceeded that required by law, or that additional duties or requirements were imposed beyond those provided by statute … . Matter of Chorekchan (New York City Bd. of Elections–Commissioner of Labor), 2015 NY Slip Op 04552, 3rd Dept 5-28-15

 

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Music Teachers Were Employees Entitled to Unemployment Insurance Benefits—Criteria for Professionals, Like Musicians, Who Do Not Lend Themselves to Direct Supervision or Control, Explained

The Third Department determined music teachers were employees of Encore Music, a service which connected students with teachers for a portion of the fees paid by the students.  Encore unsuccessfully argued the teachers were independent contractors:

…”[W]here the details of the work performed are difficult to control because of considerations such as professional . . . responsibilities,” courts have applied the “‘overall control'” test, which requires that the employer exercise control over “‘important aspects of the services performed'” …, a test which has been applied to musicians who “do not easily lend themselves to direct supervision or control” … . Further, “an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create an employment relationship” … .

…Encore screened the teachers, checked their references, conducted criminal background checks and then matched students to teachers based upon a variety of factors, including qualifications. Encore thereafter followed up with the students after lessons to ensure that they were satisfied. Encore set the lesson fees, which were generally the same for all teachers with some exceptions, billed students directly and paid teachers regardless of whether the students paid Encore. Although teachers used their own equipment, determined the lesson plans or methods and could decline students, they were required to sign a contract that provided that they would, “when reasonably requested by [Encore], act as a music lesson instructor.” The contract also contained a clause prohibiting teachers from soliciting Encore’s students that was in effect during the contract and for three years after its expiration, although teachers were allowed to work for competitors and to have their own private students. Matter of Encore Music Lessons LLC (Commissioner of Labor), 2015 NY Slip Op 04553, 3rd Dept 5-28-15

 

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Sales Rep Was an Employee Entitled to Unemployment Insurance Benefits

The Third Department determined a cellular phone sales representative was an employee entitled to unemployment insurance benefits:

Whether an employer-employee relationship exists within the meaning of the unemployment insurance law “is a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence” … . “While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important” …. .

… The record establishes that Cellular Sales precluded sales representatives from selling competing products and its products outside of the “territory” absent its prior written consent, suggested, and in certain instances required, that products be sold at a minimum price, set sales goals for the sales representatives to attain and provided a script that sales representatives were to “[s]tick to . . . on every customer opportunity” regarding a certain cellular phone. In addition, Cellular Sales specified a certain dress code and provided that any sales representative not meeting such dress code in its store would be “address[ed]” by a leader. Cellular Sales also required sales representatives to, among other things, complete certain mandatory training that it paid for, to “strictly comply” with its directives regarding use, disclosure and application of marketing information and to know and follow certain “procedures for the market.” …[T]he record establishes that Cellular Sales dictated the number of sales representatives that would work in the store on a given day, provided each sales representative with a Cellular Sales email address and business cards, required, for a certain period of time, that sales representatives send customers thank you cards that it provided and supplied the sales representatives with products for demonstrations. The record also indicates that Cellular Sales reprimanded sales representatives regarding tardiness, held mandatory meetings, required sale representatives who chose to work in the store to submit their availability and requests for days off and, once a shift was assigned, required a sales representative to secure coverage if he or she could not work on the assigned shift. Matter of Pratt (Cellular Sales of N.Y., LLC–Commissioner of Labor), 2015 NY Slip Op 04549, 3rd Dept 5-28-15

 

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Open Question About Whether Claimant Was Permanently Disabled Indicated Claimant’s Case Was Not Truly Closed in 2005—Transfer of Claim to the Special Fund (for Closed Cases) Properly Denied

The Third Department determined open questions about whether the claimant was permanently disabled demonstrated that claimant’s case was not truly closed in 2005.  Therefore transfer of the claim to the Special Fund was not warranted:

“Workers’ Compensation Law § 25-a shifts liability for a claim to the Special Fund where a workers’ compensation case that was fully closed is reopened more than seven years after the underlying injury occurred and more than three years after the last payment of compensation” … . “Whether there has been a true closing of the case is a factual issue for the Board to resolve and its determination in this regard will be upheld if supported by substantial evidence” … .

Here, a report based upon an independent medical examination of claimant was filed with the Board in 2005 in which the examiner opined that claimant had reached maximum medical improvement at that time and classified her as suffering from a mild degree of disability. Inasmuch as this report raised the issue of claimant having a permanent disability, which remained unresolved in 2011 when the employer requested that liability shift to the Special Fund, substantial evidence supports the Board’s decision that the case was not truly closed at that time and Workers’ Compensation Law § 25-a did not apply … . Matter of Kettavong v Livingston County SNF, 2015 NY Slip Op 04556, 3rd Dept 5-28-15

 

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Sole Officer of Dissolved Corporation Personally Liable for Post-Dissolution Debts Attributed to “New Business”

The Third Department determined the sole officer of a corporation dissolved in 1997 was personally liable for the post-dissolution debts incurred for the purchase of fuel. The court explained the relevant law:

Business Corporation Law § 1005 (a) (1) provides, in relevant part, that, following dissolution, “[t]he corporation shall carry on no business except for the purpose of winding up its affairs.” Winding up, in turn, is defined as “the performance of acts directed toward the liquidation of the corporation, including the collection and sale of corporate assets” (…see Business Corporation Law § 1005 [a] [2]…). Notably, a dissolved corporation is precluded from engaging in new business … and “has no existence, either de jure or de facto, except for a limited de jure existence for the sole purpose of winding up its affairs” … . As a result, “[a] person who purports to act on behalf of a dissolved corporation is personally responsible for the obligations incurred” … . Long Oil Heat, Inc. v Polsinelli, 2015 NY Slip Op 04542, 3rd Dept 5-28-15

 

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Conclusory Affidavit Insufficient to Meet Burden of Demonstrating Documents Were Privileged Because the Documents Were Prepared Solely In Anticipation of Litigation—Motion for a Protective Order Limiting Discovery Properly Denied

The Second Department determined the appellants were not entitled to a protective order precluding discovery of documents pursuant to CPLR 3103.  The appellants argued the documents were privileged because they were prepared in anticipation of litigation.  However, the conclusory attorney affidavit offered in support of the protective order did not meet the appellants’ burden to demonstrate the specific documents sought were “prepared solely in anticipation of litigation or trial…”:

CPLR 3101(a) mandates “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Unlimited disclosure is not mandated, however, and a court may issue a protective order pursuant to CPLR 3103 denying, limiting, conditioning or regulating the use of any disclosure device “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (CPLR 3103[a]…). “The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed” … .

In support of that branch of their motion which was pursuant to CPLR 3103 for a protective order preventing the disclosure of certain witness statements and certain investigation and inspection reports, the appellants contended that such evidence was privileged as it was prepared in anticipation of litigation (see CPLR 3101[d][2]). “The burden of proving that a statement is privileged as material prepared solely in anticipation of litigation or trial is on the party opposing discovery” … . Such burden is met “by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” … .

Here, the appellants failed to meet their burden of establishing that the requested material was prepared solely in anticipation of litigation and, therefore, is protected from disclosure by the qualified immunity privilege of CPLR 3101(d)(2). An attorney’s affirmation containing conclusory assertions that requested materials are conditionally immune from disclosure pursuant to CPLR 3101(d)(2) as material prepared in anticipation of litigation, without more, is insufficient to sustain a party’s burden of demonstrating that the materials were prepared exclusively for litigation … . Ligoure v City of New York, 2015 NY Slip Op 04456, 2nd Dept 5-27-15

 

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