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Complaint Based Upon Injury Caused by a Horse Which Had Gotten Loose After Defendant Rode the Horse to a Tavern Could Be Amended to Plead Negligence of the Horse’s Owner as Well as Strict Liability/Vicious Propensities in the Alternative

The Third Department determined plaintiff should be allowed to amend the complaint to include a negligence cause of action against the owner of a horse (Whiskey) which injured plaintiff.  The two theories, negligence and strict liability, can be pled in the alternative. The defendant rode the horse to a tavern.  While the defendant was in the tavern, the horse broke loose.  Plaintiff helped get control of the horse and was injured when he was holding the reigns.  The Third Department noted the 2013 Court of Appeals decision (Hastings) which held that a lawsuit based upon injury caused by a cow which had escaped the farm could be based upon the negligence of the owner in allowing the cow to escape, and not upon strict liability for the vicious propensities of the cow.  Here, both the negligence of the owner and vicious propensity/strict liability issues are raised by the facts:

Defendant apparently disputes plaintiff’s claim that Whiskey’s conduct constituted a vicious propensity–as opposed to normal equine behavior–upon which strict liability can be based. If defendant were successful in establishing the absence of a vicious propensity, this would lead to the very outcome of which the Court of Appeals disapproved in Hastings — defendant would be immunized for Whiskey’s behavior despite having been allegedly negligent in allowing the horse to roam from where it was being kept [FN3]. Inasmuch as we cannot predict how a jury will decide the question of whether Whiskey’s actions constituted a vicious propensity, we discern no reason why the two theories could not be pleaded in the alternative. Thus, if Whiskey’s actions were determined to constitute a vicious propensity, plaintiff would be limited to pursuing a claim based on strict liability … . If, however, a jury determined that Whiskey’s conduct did not constitute a vicious propensity, the jury could then decide whether defendant is liable based upon his alleged negligence in allowing the horse to stray from where it was kept… . Carey v Burton P Schwab, 2014 NY Slip Op 08096, 3rd Dept 11-20-14

 

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Slip and Fall Suit Against Out-Of-Possession Landlord Properly Dismissed

The Third Department affirmed the dismissal of the complaint against the out-of-possession landlord (SJM).  The plaintiff slipped and fell because of a loose stairway-tread block.  The stairway was constructed by defendant-company, Stanley, with which SJM had contracted.  However SJM did not supervise or control Stanley’s work. There was evidence the stairway (used only by employees of the tenant, not the general public) did not conform to the tread-width requirements of the building code:

As a general rule, “‘an out-of-possession landlord who relinquishes control of the premises and is not contractually obligated to repair unsafe conditions is not liable to employees of a lessee for personal injuries caused by an unsafe condition existing on the premises'” … . There are exceptions. For example, a landlord has a “‘nondelegable duty to provide the public with a reasonably safe premises and a safe means of ingress and egress'” … . Liability may attach where the out-of-possession landlord has contracted to repair or maintain the premises, has affirmatively created the condition … or has retained a right to reenter the premises for inspection or repairs and the injury arises from a structural defect or specific statutory violation … . …

SJM’s nondelegable duty to the public is not relevant because plaintiff’s injury did not occur in an area open to the public * * * Although SJM retained a right under the lease to re-enter the premises, this “‘is insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord'” … .

….[T]he condition of the stairway was not sufficient to impose liability upon SJM. Assuming, without deciding, that the stairway did not conform to the New York State Building Code provision with regard to the width of stair treads (see 9 NYCRR former 713.1), the condition does not constitute a significant structural defect or statutory violation as would be necessary to find that SJM had constructive notice of the loose concrete block … . Accepting plaintiff’s descriptions of the accident, the stairway and the condition of the step, his fall was not attributable to the width of the tread, but rather its instability. …Supreme Court properly determined that SJM did not create the allegedly dangerous condition. Plaintiff’s expert does not assert that the stairs were negligently designed, but rather that they were not constructed in accordance with the specifications. Although SJM retained Stanley to construct the stairway in accordance with the architectural plans, as a general rule, SJM is not liable for the independent contractor’s alleged negligent construction … . Wayman v Roy Stanley Inc, 2014 NY Slip Op 08087, 3rd Dept 11-20-14

 

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New “Medical Treatment Guidelines” Do Not Exceed Statutory Authority of the Workers’ Compensation Board

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined that the Workers’ Compensation Board did not exceed its statutory authority when in promulgated its “Medical Treatment Guidelines” ( 12 NYCRR 324.2 [a]-[f]).  The Board had rejected payment for claimant’s acupuncture treatments which exceeded the duration of such treatments allowed by the guidelines:

The Guidelines include the list of pre-authorized medical procedures and set forth limitations on the scope and duration of each procedure. They also set forth a variance procedure, under which medical treatment providers can, on behalf of a claimant, request authorization for medical care not included in the Guidelines or in excess of the scope and/or duration that is pre-authorized (see 12 NYCRR § 324.3 [a] [1]). The medical treatment provider requesting a variance must demonstrate that the requested treatment is appropriate for the claimant and medically necessary … . * * *

The Board is authorized to “adopt reasonable rules consistent with and supplemental to the [Workers’ Compensation Law]” (Workers’ Compensation Law § 117 [1]). Courts will uphold regulations that have “a rational basis and [are] not unreasonable, arbitrary, capricious or contrary to the statute under which [they were] promulgated” … . * * *

Under the regulations, the burden of proof to establish that a variance is appropriate and medically necessary rests on the treating medical provider (12 NYCRR 324.3 [a] [2]). Whether a treating medical provider has met this burden is a threshold determination that must be made whenever a carrier properly and timely articulates an objection to a variance request. Matter of Kigin v State of NY Workers’ Compensation Bd, 2014 NY Slip OP 08052, CtApp 11-20-14

 

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Defendant-Doctor’s Failure to Mention He Was Under a Stayed License-Suspension In His Affidavit In Support of His Motion for Summary Judgment Was One Factor In Finding the Affidavit Insufficient to Meet Defendant’s Burden on the Motion

The Third Department determined defendant’s motion for summary judgment in a medical malpractice action was properly denied on several grounds.  The court noted that it was troubled that the defendant doctor’s (Stanger’s) license was under a stayed suspension at the time he wrote his affidavit in support of the summary judgment motion, and he failed to mention the stayed suspension in his affidavit.  For that reason, among others, the court deemed the affidavit an insufficient basis for summary judgment:

…[W]e nonetheless are … by the fact that Stanger failed to disclose the status of his medical license when he prepared his affidavit in support of defendants’ motions for summary judgment. The very first paragraph of Stanger’s affidavit recites, “I am a physician duly licensed to practice in the State of New York.” Noticeably absent from both that opening paragraph and Stanger’s affidavit as a whole is any mention of the fact that, only two months earlier, a one-year stayed suspension of his medical license had been imposed and that he was practicing medicine subject to certain terms of probation. This glaring omission is entirely inconsistent with Stanger’s ethical obligations as a practicing physician and, in our view, [*4]seriously calls into question the medical opinion he has rendered regarding his diagnosis, care and treatment of decedent. Additionally, further review of Stanger’s affidavit reveals that the opinion set forth therein was “[b]ased on [Stanger’s] review of the [medical] records in this matter, as well as [his] personal recollection of the care and treatment rendered to [decedent].” In this regard, Stanger acknowledged that he did not complete his charting of decedent’s January 29, 2009 hospital visit until after he (1) learned that decedent had returned to the emergency department the following day, (2) was advised that decedent had died, and (3) had been questioned by another physician regarding the care and treatment he had provided to decedent the previous day. Under these circumstances, we do not find Stanger’s affidavit to be sufficient to satisfy defendants’ initial burden on the motions for summary judgment, thereby warranting the denial thereof. Howard v Stanger, 2014 NY Slip Op 08088, 3rd Dept 11-20-14

 

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Defendant, a County Sheriff, May Not Have Had the Authority to Order the Plaintiff to Leave the Airport/Questions of Fact Raised About Whether Defendant Had Probable Cause to Arrest Plaintiff for Trespass and Disorderly Conduct/Questions of Fact Raised About Whether Excessive Force Was Used and Whether Plaintiff Was Subjected to Retaliation for the Use of Protected Speech

The Third Department determined Supreme Court properly denied defendant’s motion for summary judgment on plaintiff’s “false arrest” cause of action, and Supreme Court erred in granting the defendant’s motion for summary judgment on plaintiff’s “excessive force” and “retaliation for the use of protected speech” causes of action. The lawsuit stemmed from plaintiff’s being told by airport personnel that her daughter had not arrived as expected because she missed a connecting flight.  Plaintiff became upset when she couldn’t learn more about the status of her daughter.  Defendant, a county sheriff, came on the scene, ordered plaintiff to leave the airport, and, when plaintiff refused, arrested her for trespass and disorderly conduct. The Third Department determined there were questions of fact about whether defendant had probable cause to arrest plaintiff, as well as whether excessive force was used and whether the defendant acted in retaliation for protected speech. With respect to the trespass arrest, the court noted that defendant may not have had the authority to order plaintiff to leave the airport:

In assessing whether defendant met his initial burden of establishing that he had arguable probable cause to arrest plaintiff for trespass, proof of defendant’s authority to issue the blanket order directing plaintiff to leave the public facility must be examined. This is so because the “right to exclude ‘has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights'” … and, unless otherwise authorized, police do not have the inherent and general rights of a property owner (see e.g. US Const 4th Amend). The record demonstrates that, on the day in question, defendant was a county employee working in the county airport, a public facility. In support of his motion, defendant provided no proof that he was either prescribed by law or directed by the Tompkins County legislature to exercise any authority to lawfully order a citizen to leave this public property (see County Law § 650…). Nor did defendant’s proffer demonstrate that he was asked to remove plaintiff from the airport property by someone with the authority to do so … . Therefore, defendant did not establish as a matter of law that he had arguable probable cause to arrest plaintiff for criminal trespass because issues of fact exist as to whether, at the time of arrest, it was reasonable for defendant to believe that plaintiff was disobeying a lawful order … . Brown v Hoffman, 2014 NY Slip Op 08099, 3rd Dept 11-20-14

 

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Payroll Deduction for Health Benefits Should Be Added to Teacher’s Salary When Calculating Retirement Benefit

The Third Department reversed Supreme Court finding that the pre-tax payroll deduction from a teacher’s pay for health benefits must be added to the teacher’s salary to determine the retirement benefit:

We agree with petitioner’s assertion that respondents’ exclusion of the premium surcharge payment from the calculation of her final average salary was irrational and arbitrary and capricious and, therefore, we reverse. A teacher’s final average salary for purposes of determining public retirement benefits is “the average regular compensation earned as a teacher during the three years of actual service immediately preceding his [or her] date of retirement” (Education Law § 501 [11] [b]). The “wages” used in calculating the final average salary consist of “regular compensation earned by and paid to a member by a public employer” (21 NYCRR 5003.4 [b]). Notably, Retirement and Social Security Law § 79 provides, as relevant here, that, “[t]o the extent permitted by [26 USC § 125] and any regulations adopted pursuant thereto, any salary reduction elected by an employee who is a participant in [the Retirement System] under a cafeteria plan or flexible benefit plan shall be considered part of annual compensation for the purpose of . . . computing retirement benefits.”  Matter of Felice-zwaryzuk v NYS Teachers’ Retirement System, 2014 NY Slip Op 08095, 3rd Dept 11-20-14

 

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Defendant Cannot Meet Its Burden In a Summary Judgment Motion Solely by Pointing to Proof Problems in the Plaintiff’s Case/Court, Pursuant to Its Power to Search the Record in Determining a Summary Judgment Motion, Cannot Address Claims that Were Not the Subject of the Motion

In a private nuisance action, the Third Department noted that a defendant cannot prevail on a summary judgment motion solely by arguing gaps or proof problems in the plaintiff’s case and the court cannot “search the record” to dismiss claims that were not the subject of the summary judgment motion:

In support of their motions for summary judgment, defendants did nothing more than argue that plaintiffs failed to plead — and ultimately will be unable to prove — compensable damages and, therefore, dismissal of plaintiffs’ first and second causes of action sounding in private nuisance and trespass was warranted. Even assuming, without deciding, that defendants’ assessment of plaintiffs’ pleadings and examination before trial testimony is accurate, the case law makes clear that the moving party must affirmatively demonstrate its entitlement to summary judgment “and does not meet its burden [in this regard merely] by noting gaps in its opponent’s proof” … . * * *

…Although CPLR 3212 (b) — cited by Supreme Court here — indeed permits a court to search the record and grant summary judgment to a nonmoving party, Supreme Court’s authority in this regard extends “only . . . to a cause of action or issue that is the subject of the motions before the court” … . Stated another way, “[a] motion for summary judgment addressed to one claim or defense does not provide a basis for the court to search the record to grant summary judgment on an unrelated claim or defense” … . Schillaci v Sarris, 2014 NY Slip Op 08072, 3rd Dept 11-20-14

 

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Plaintiff Was Injured When an Anvil Fell Out of a Co-Worker’s Vehicle When Plaintiff Opened the Tailgate to Retrieve a Hat—Because Retrieving the Hat Was Work-Related, Plaintiff Was Unable to Sue the Defendant In Negligence (Failure to Warn Re: the Anvil) Under the Theory that Placement of the Anvil in the Vehicle Was Not Work-Related

The Third Department determined the exclusive-remedy aspect of the Workers’ Compensation Law required the dismissal of a negligence suit.  Plaintiff and defendant were co-employees, horse trainers.  While they were working, plaintiff asked defendant for a hat because she was chilled.  Defendant gave plaintiff the keys to his vehicle, telling her the hat was in the rear cargo area. Plaintiff opened the tailgate of the vehicle and an anvil fell out, injuring her foot.  Although plaintiff received workers’ compensation benefits, she argued she should be able to sue under a negligence theory because the defendant’s placing an anvil in his vehicle had nothing to do with work.  The Third Department held that, because the request for a hat was work-related, the negligence suit was properly dismissed:

Whether defendant’s actions were “within the scope of employment or purely personal” involves an assessment of whether they were “both reasonable and sufficiently work related under the circumstances” … . While at work, defendant offered to lend an uncomfortable coworker a hat and, because “some advantage to the employer, even though slight, can be discovered in [that] conduct, his act cannot be regarded as purely personal and wholly unrelated to his employment” … . Notwithstanding the lack of any connection between the anvil and defendant’s employment, he was “acting within the scope of his employment” when he lent plaintiff the hat — and allegedly committed a tortious act by failing to warn plaintiff that objects may fall if she opened the tailgate — so as to trigger the exclusivity provisions of the Workers’ Compensation Law… .  Correa v Anderson, 2014 NY Slip Op 08093, 3rd Dept 11-20-14

 

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Tenured Teacher Subject to Discipline Is Entitled to a Hearing Pursuant to Education Law 3020-a Notwithstanding an Alternative Procedure in a Collective Bargaining Agreement

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined that a tenured teacher subject to discipline is entitled to a hearing pursuant to Education Law 3020-a, notwithstanding the existence of an alternative procedure agreed to in a collective bargaining agreement which was negotiated (or renegotiated) after Section 3020-a went into effect in 1994:

…[I]t is plain that the legislative intent informing its 1994 amendment (L 1994, ch 691) was to assure that tenured educators against whom formal disciplinary charges were lodged could avail themselves, if they so chose, of the procedural protections set forth in contemporaneously amended Education Law § 3020-a. While section 3020 (1) does “grandfather” pre-September 1, 1994 CBA discipline review procedures contained in unaltered CBAs, its evidently dominant purpose was prospectively to secure the right of tenured employees to avail themselves of the process set forth in Education Law § 3020-a. That purpose and the indefinite retention of mandatory alternative CBA review procedures are not easily, if at all, reconcilable. With that in mind, we believe the statute must be understood to sunset CBA provisions depriving tenured employees of the § 3020-a recourse to which they are otherwise entitled. Matter of Kilduff v Rochester City School District, 2014 NY Slip Op 08056, CtApp 11-20-14

 

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Persons Who Deliver Gannett Newspapers Are Employees Entitled to Unemployment Insurance Benefits Notwithstanding the “Independent Contractor” Designation in the Operating Agreements

The Third Department affirmed the unemployment insurance appeal board’s determination that the claimants, who delivered Gannett’s newspapers, were employees entitled to unemployment insurance benefits, notwithstanding the “independent contractor” designation in the operating agreements:

Whether an employer-employee relationship exists “is a factual determination for the Board, 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” … . Here, while there is evidence to support a contrary outcome …, we find that the record contains substantial proof to support the Board’s finding that Gannett exercised control over claimants’ work. Gannett assigned claimants specific routes within predetermined delivery areas, required proof of a driver’s license and vehicle insurance where a vehicle was used to make deliveries and, while claimants were permitted to use a substitute carrier to fulfill delivery duties, they were required by contract to provide Gannett with proof that the substitute had a driver’s license and insurance if a vehicle would be used to complete deliveries. Additional contractual provisions included, among other things, requirements that claimants remove unsold publications from newspaper racks, ensure that racks were properly maintained, reserve publications of vacationing customers and create and maintain accurate circulation records that could be turned over, upon notice, to Gannett. Further, Gannett controlled other aspects of claimants’ activities, including directives to not insert or attach “foreign matter on, into or with copies of any publication, nor insert copies of any publication into or with copies of any other publication” without receiving Gannett’s approval. Notwithstanding the existence of evidence in the record that could weigh in favor of a finding that claimants were independent contractors, including that the operating agreements expressly designated claimants as independent contractors, in light of the indicia of control that Gannett had over claimants, we find that substantial evidence supports the Board’s decisions in these matters… . Matter of Armison…, 2014 NY Slip Op 08079, 3rd Dept 11-20-14

 

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