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Time Constraints, In Workers’ Compensation Law 25, for Seeking Reimbursement for Compensation Paid by Self-Insured Employer Applied to Workers’ Compensation Law 30 As Well

The Third Department determined the self-insured employer waived its right to reimbursement for compensation payments made to its employee because it failed to make a timely claim under Workers’ Compensation Law 25(4)(a).  The court concluded that the wording of Workers’ Compensation Law 30 did not require a different result.  Section 30 was interpreted to include the time constraints imposed by section 25:

Here, the Board correctly determined that the employer was required to file timely requests for reimbursement, but did not do so. Workers’ Compensation Law § 25 (4) (a) provides that “[i]f the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, [the employer] shall be entitled to be reimbursed out of an unpaid instalment or instalments of compensation due, provided [the employer’s] claim for reimbursement is filed before award of compensation is made.” If this statute alone is applied here, the employer is precluded from recovering the full wages paid to claimant pursuant to General Municipal Law § 207-c because the employer did not file requests for reimbursement prior to the initial awards of compensation benefits for the relevant time periods … .

The employer contends that Workers’ Compensation Law § 30 applies instead. That statute provides that “any salary or wages paid to . . . [a claimant] under and pursuant to [General Municipal Law § 207-c] shall be credited against any award of compensation . . . under this chapter” (Workers’ Compensation Law § 30 [3]). To analyze these provisions, “the text of a statute is the best evidence of legislative intent and, where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” … . Because these two provisions are related statutes in the Workers’ Compensation Law, they “must be construed together unless a contrary legislative intent is expressed, and courts must harmonize the related provisions in a way that renders them compatible” … . Workers’ Compensation Law §§ 25 and 30 both provide a right to reimbursement out of future benefits, with section 30 being more specific regarding the statutory basis for the wage replacement payments sought to be reimbursed. Workers’ Compensation Law § 25 (4) (a) additionally provides that the employer will waive that right if it fails to timely submit a claim for reimbursement. “If by any fair construction, a reasonable field of operation can be found for [both of these related] statutes, that construction should be adopted” … . A reasonable construction of these two statutes is to read them together and conclude that the right of reimbursement granted by both statutes will be waived if the employer fails to submit a timely request for reimbursement. Matter of O’Brien v Albany County Sheriff’s Dept., 2015 NY Slip Op 01842, 3rd Dept 3-5-15

 

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“Attempted Felony Assault” Charge Jurisdictionally Defective

The Third Department determined the “attempted felony assault” charge in the indictment was jurisdictionally defective because there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended:

We do find that the conviction for attempted assault in the first degree cannot stand. Defendant was charged under the theory that, during the course of the kidnapping, he attempted to cause serious physical injury when he choked the victim a second time after she made an abortive effort to get help (see Penal Law § 120.10 [4]). An attempt to commit a crime requires that a person, “with intent to commit a crime, . . . engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00). In contrast, felony assault punishes a felon for the actual consequences of his or her actions, and “there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended” … . Accordingly, notwithstanding the fact that defendant did not advance this specific issue in his appellate brief, the count of the indictment charging him with attempted felony assault is jurisdictionally defective and must be dismissed … . People v Mccann, 2015 NY Slip Op 01830, 3rd Dept 3-5-15

 

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Questions of Fact Existed Re: Whether Plaintiffs Were Entitled to Rely on Defendant’s Assurances Dog Was Not Aggressive

Plaintiff was seriously injured by a dog procured from defendant after defendant had assured plaintiffs the dog (Brutus) was not aggressive. The Third Department determined plaintiffs were entitled to rely on defendant’s assurances, in spite of three minor biting incidents when the dog was in plaintiffs’ possession:

Defendants argue that because Brutus bit plaintiffs three times prior to the attack that is the subject of the complaint, plaintiffs could not have reasonably relied on defendants’ representations as to the dog’s behavior and cannot state a claim for fraudulent or negligent misrepresentation. Defendants also argue that those causes of action must fail because plaintiffs could have learned of Brutus’ aggressive nature with due diligence. We are not persuaded. In order to establish their claims for negligent and fraudulent misrepresentation, plaintiffs must demonstrate that they justifiably relied on defendants’ misrepresentations … . Here, plaintiffs allege that they would not have adopted Brutus if they had been told the truth regarding his prior owner’s reason for turning him over to the Center. Plaintiffs also allege that, after the three biting incidents, they sought the assistance of trainers to deal with what they perceived as a minor issue. Plaintiffs, who have experience owning and training animals, note that the three prior bites did not break the skin and were far different from the aggressive nature of the later attack. Plaintiffs only learned about Brutus’ prior history when they were able to track down the prior owner by posting flyers and they submitted affidavits from the prior owner and her friend regarding their experiences with Brutus and their intent to have him euthanized when they took him to the Center. Under these circumstances, issues of fact exist as to whether plaintiffs reasonably relied on defendants’ misrepresentation and whether plaintiffs could have discovered Brutus’ dangerous nature with due diligence … . Lawrence v North Country Animal Control Ctr., Inc., 2015 NY Slip Op 01846, 3rd Dept 3-5-15

 

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Criteria for Intervention as of Right and Permission to Intervene Explained (Not Met Here)

The Third Department determined a fund, which was entitled to reimbursement from any damages awarded plaintiff in a pending medical malpractice action, did not have the right to intervene and was properly denied permission to intervene in the medical malpractice action.  The court explained the relevant analytical criteria:

As relevant here, any person may intervene as of right “when the representation of the person’s interest by the parties is or may be inadequate and the person is or may be bound by the judgment” (CPLR 1012 [a] [2]). The Fund would be bound by any judgment because plaintiff has sought to recover medical costs, as well as other damages, in his complaints in these actions. Despite the Fund’s argument, however, it appears that plaintiff is and will adequately represent the Fund’s interests. At oral argument, the Fund acknowledged that plaintiff’s counsel is competent and will act in good faith. Plaintiff has an incentive to maximize his recovery, considering that he will not receive anything personally if he obtains a settlement or verdict of $537,273.12 or less. Plaintiff is also contractually bound to protect the Fund’s right to subrogation and has agreed to a lien on any recovery … . Supreme Court correctly found that plaintiff is adequately representing the Fund’s interests, and any argument that plaintiff may not do so in the future is pure speculation … .

A court may permit intervention, in its discretion, when the person’s claim has a common question of law or fact with the main action, but “the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party” (CPLR 1013). Although the Fund’s asserted claim has common questions of law and fact with plaintiff’s claims, intervention was properly denied. Intervention would cause some delay because it would lead to duplicative discovery and motion practice, as the Fund and plaintiff could each separately seek demands and relief from the multiple defendants … . This could also cause some prejudice to defendants, who would be required to respond to similar repetitive demands and motions, as well as the possibility of the Fund calling additional witnesses or even experts at trial. The Court of Appeals has even acknowledged that allowing a provider of medical benefit payments to intervene could create tension between the injured party and his or her insurer,… and “inevitably complicates settlement negotiations” … . Mavente v Albany Med. Ctr. Hosp., 2015 NY Slip Op 01849, 3rd Dept 3-5-15

 

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Court Should Not Have Summarily Determined Declaratory Judgment Action In Absence of a Request to Do So/The Mootness Doctrine Precluded Court Rulings on an Expired Contract/The Open Meetings Law Was Violated by the Town

The Third Department determined Supreme Court should not have summarily considered the declaratory judgment aspect of this hybrid action without a request to do so and without converting the proceeding to a summary judgment action.  The Third Department further determined the mootness doctrine precluded the Supreme Court from ruling on the provisions of an expired contract, and the town had violated the Open Meetings Law by holding closed sessions.  The action concerned the use of property for motorcycle events. Local property owners brought the action alleging that the events violated the allowed use of the land:

It is well settled that a court’s jurisdiction extends only to live controversies” …, and a matter becomes moot “unless the rights of the parties will be directly affected by the determination of the [claim] and the interest of the parties is an immediate consequence of the judgment” … . Where, as here, the passage of time or “a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy,” the claim must be dismissed … . The 2013 agreement, by its own terms, pertained solely to Safety Track’s land uses and events that occurred during the 2013 track season and expired at the end of that year, thereby rendering the challenges to the 2013 agreement moot … . Further, we do not agree with Supreme Court’s finding that the exception to the mootness doctrine was satisfied… . …

In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those which seek declaratory relief, on the other hand” … . In the absence of a formalized motion requesting the “summary determination of the causes of action which seek . . . declaratory relief, it is error for [a court] to summarily dispose of those causes of action” … .

It is undisputed that there was no pending motion for summary disposition of the declaratory judgment action when Supreme Court rendered its 2014 judgment. Nor did the court provide notice to the parties that it was considering the summary disposition of the declaratory judgment action, such that the parties would be afforded an opportunity to further develop the evidentiary record and offer competent proof supportive of their respective positions … .

… Generally, “[e]very meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [Public Officers Law § 105]” (Public Officers Law § 103 [a]). While a governing body may enter into an executive session, it may do so only for certain purposes, including, as is relevant here, the consideration of an appointment or to engage in private discussions relating to proposed or pending litigation (see Public Officers Law § 105 [1] [f]…). However, the body must “identify the subject matter to be discussed . . . with some degree of particularity”… . * * * As the Town failed to demonstrate that it comported with the relevant statutory provisions when conducting the instant executive sessions, such sessions were violative of the Public Officers Law … . Matter of Ballard v New York Safety Track LLC. 2015 NY Slip Op 01845, 3rd Dept 3-5-15

 

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Trustee’s Settlement of Claims Against Countrywide/Bank of America Stemming from Sale of Mortgage-Backed Securities Approved

The First Department, in a full-fledged opinion by Justice Saxe, determined the trustee properly exercised its discretion in settling the claims stemming from mortgage-backed securities sold by Countrywide Home Loans between 2004 and 2008. Countywide was subsequently purchased by Bank of America (BofA). The First Department explained the courts’ powers re: reviewing the settlement under CPLR Article 77:

The ultimate issue for determination here is whether the trustee’s discretionary power was exercised reasonably and in good faith … . It is not the task of the court to decide whether we agree with the Trustee’s judgment; rather, our task is limited to ensuring that the trustee has not acted in bad faith such that his conduct constituted an abuse of discretion … .

We agree with Supreme Court that the Trustee did not abuse its discretion or act unreasonably or in bad faith in embarking on the settlement here. The Trustee acted within its authority throughout the process, and there is no indication that it was acting in self-interest or in the interests of BofA rather than those of the certificateholders.

Importantly, “if a trustee has selected trust counsel prudently and in good faith, and has relied on plausible advice on a matter within counsel’s expertise, the trustee’s conduct is significantly probative of prudence” (Restatement [Third] of Trusts § 77, Comment b[2]). While reliance on the advice of counsel may not always be the end of the analysis regarding a claimed breach of trust — it is possible for a trustee to specifically seek out legal advice that would support the trustee’s desired course of conduct, or there may be other circumstances establishing that it was unreasonable to follow the legal advice (id.) — a party challenging the decisions of a trustee who followed the advice of a highly-regarded specialist in the relevant area of law can prevail only upon a showing that, based on the particular circumstances, the reliance on such counsel’s assessment was unreasonable and in bad faith. Court approval of the settlement does not require that the court agree with counsel’s judgment or assessment; all that is required is a determination that it was reasonable for the Trustee to rely on counsel’s expert judgment. Matter of Bank of N.Y. Mellon, 2015 NY Slip Op 01880, 1st Dept 3-5-15

 

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Proof at Trial Did Not Sufficiently Pinpoint Time of the Alleged Sexual Offenses—Convictions Vacated

The Second Department determined the proof at trial did not sufficiently pinpoint the time of the alleged sexual offenses.  The offenses were alleged at trial to have been committed within a four-year time period for one victim and within a one-year time period for another.  The related convictions were vacated:

Here, numerous counts of the consolidated indictment charged various acts of criminal sexual act (see Penal Law § 130.45[1]) and sexual abuse (see Penal Law §§ 130.55, 130.60), which involved several single acts. These acts spanned a time period of at least four years with respect to Gabrielle, and approximately one year with respect to Angela. In an effort to specify a time period that was not unreasonably excessive, the District Attorney drafted the indictment to divide these time periods mostly into two-month intervals. Although the indictment, on its face, may have been sufficient, the trial testimony revealed that the complainants lacked any ability “to particularize the date and time of the alleged . . . offense[s]” …, and that there was no real basis in fact for the intervals alleged with respect to these counts … . Thus, “[t]he mere fact that the District Attorney artfully drafted the indictment by arbitrarily dividing” those otherwise excessive time periods into two-month intervals despite the absence of any basis in fact, “cannot detract from the conclusion that the time periods” with respect to these single-act crimes “were unreasonable” under the circumstances here … . Under the circumstances of this case, despite the defendant’s failure to preserve the issue for appellate review, we reach the issue in the interest of justice, and we vacate the defendant’s convictions of criminal sexual act in the second degree, sexual abuse in the second degree, and sexual abuse in the third degree … . People v Atta, 2015 NY Slip Op 01809, 2nd Dept 3-4-15

 

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Under a Batson Analysis, the Prosecutor’s Peremptory Challenges to Two Black Jurors Were “Pretextual” Requiring Reversal

The Second Department determined the reasons proffered by the prosecutor for the peremptory challenge of two black jurors were “pretextual” under a Batson analysis, requiring reversal.  With regard to one of the two pretextual challenges, the court wrote:

A new trial is necessary because the prosecutor exercised her peremptory challenges in a discriminatory manner (see Batson v Kentucky, 476 US 79) as to two black prospective jurors. In Batson, the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used to exclude potential jurors on the basis of race, gender, or other protected categories … . In step one, the moving party must make a prima facie case of purposeful discrimination by “showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason” … . If the moving party makes a prima facie showing, the inquiry proceeds to step two, and the burden shifts to the adversary to provide a facially neutral explanation for the challenge. If the nonmoving party “offers facially neutral reasons supporting the challenge, the inference of discrimination is overcome” … . Once facially neutral reasons are provided, the inquiry proceeds to step three, and the burden shifts back to the moving party to prove purposeful discrimination, and ” the trial court must determine whether the proffered reasons are pretextual'” …, including whether the reasons apply to the facts of the case, and whether the reasons were applied to only a particular class of jurors and not to others… . * * *

With respect to the first prospective juror, the prosecutor employed a peremptory challenge to strike him as a juror because of a concern that his position as a church deacon would make it difficult for him to sit in judgment of another individual. Although the prospective juror indicated during voir dire that his position as a church deacon would not affect his decision making, the prosecutor maintained that it was “just [his] feeling that it may be difficult having [someone in] that position to then sit in judgment of someone.”

Contrary to the Supreme Court’s determination, the facially race-neutral reason advanced by the prosecutor for employing a peremptory challenge was pretextual. The prosecutor did not offer any explanation for how employment as a church deacon related to the factual circumstances of the case or qualifications to serve as a juror … . Furthermore, the prosecutor’s challenge was admittedly based on his “feeling” that a church deacon would have difficulty sitting in judgment of another, and the prosecutor failed to pursue questioning of the prospective juror to ascertain whether this intuitive feeling was founded in fact … . When the reason advanced for a peremptory challenge relates to a juror’s appearance, deference must be afforded to the trial court’s findings with regard to pretext, as the trial court has the distinct advantage of being able to observe the juror … . However, the same cannot be said when the reason advanced for the challenge is based on the juror’s profession or background … . Indeed, it would not “be acceptable for this Court to invoke the rule providing for deference to the trial court in matters of credibility in order to rubber stamp every determination relating to the legitimacy of a peremptory challenge” … . People v Bell, 2015 NY Slip Op 01812, 2nd Dept 3-4-15

 

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Failure to Include Restitution in Plea Agreement Required that the Sentencing Court Give the Defendant the Opportunity to Withdraw Her Plea Before Including Restitution in the Sentence

The Second Department determined County Court erred when it, in the absence of a prior agreement, imposed restitution as part of defendant’s sentence without giving the defendant the opportunity to withdraw her plea:

Although a court is free to reserve the right to order restitution as part of a plea agreement, the County Court did not do so here. Instead, at the very end of the sentencing proceeding, after imposing the agreed-upon terms, the court briefly turned to other matters prior to stating that it was also signing restitution judgment orders.

The defendant contends, among other things, that, before adding restitution to the sentence, the County Court should first have given her the option to withdraw her plea of guilty or to accept a sentence including restitution. Preliminarily, we note that, in light of the fact that the court did not give the defendant a sufficient opportunity to withdraw her plea of guilty before imposing restitution, the defendant’s claim is not subject to the preservation requirement … . Moreover, we agree with the defendant that the County Court erred … . People v Molinaro, 2015 NY Slip Op 01820, 2nd Dept 3-4-15

 

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DLRA Provision Terminating Sentences After Three Years of Unrevoked Parole Did Not Apply to Non-Drug Related Offense by “Merger”

The Second Department, in a full-fledged opinion by Justice Rivera, determined that the provision of the Drug Law Reform Act (DLRA) [Executive Law former 259-j (3-a)] which allowed the termination of sentences for enumerated drug crimes after three years of unrevoked parole did not apply (under a merger theory) to a non-drug conspiracy offense where the maximum sentence for the conspiracy had not expired at the time the three-year-unrevoked-parole mark for the drug offenses had been reached:

The application of Executive Law former § 259-j(3-a) to this petitioner did not squarely fit within the express purpose of the 2004 DLRA. The 2004 DLRA was intended to grant specific relief to a clearly identified and circumscribed class, namely, “low level non-violent drug offenders” … . A “manager of a drug ring” cannot be deemed to be the low level offender contemplated by the statute. Further, it is unreasonable to perceive someone convicted of conspiracy to murder as “nonviolent.”

Notwithstanding the foregoing, the petitioner seeks more than the benefit heretofore conferred upon him by the 2004 DLRA and Executive Law former § 259-j(3-a). He seeks, in effect, to bootstrap the sentence imposed on the conspiracy conviction to the sentences imposed on the drug-related convictions in an attempt to discharge the remaining term thereof. However, this attempt must fail for the following reasons.

First, Executive Law former § 259-j(3-a) applies only to the specific drug-related felony offenses set forth in articles 220 and 221 of the Penal Law (see Correction Law § 205[4]). That statute cannot be reasonably construed to terminate the petitioner’s sentence on the conspiracy conviction, a non-drug-related conviction. The outcome sought by the petitioner is contrary to established precedent. Courts applying the DLRA are “not given the discretion to fashion new sentences or add terms of imprisonment, but are constrained to make an existing sentence determinate in the manner dictated by the DLRA” … .

Second, we disagree with the petitioner’s reading of Penal Law § 70.30(1) … . * * * The express language of Penal Law § 70.30(1) states that the maximum terms shall “be satisfied by discharge of the term which has the longest unexpired time to run.” … [A]t the time that [petitioner] became eligible for relief under Executive Law former § 259-j(3-a), none of the terms had expired or been discharged. The application of Executive Law former § 259-j(3-a) operated to effectively shorten the maximum term of his drug-related sentences (i.e., life) to the approximately 16 years that the petitioner served. Thus, upon the application of the early-termination provision under Executive Law former § 259-j(3-a), the maximum term of his sentence on the conspiracy conviction, which was 25 years, had the longest unexpired time to run (see Penal Law § 70.30[1][a]). People ex rel. Baez v Superintendent, Queensboro Corr. Facility, 2015 NY Slip Op 01827, 2nd Dept 3-4-15

 

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