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Claimant Did Not Receive a Bona Fide Offer of Suitable Employment that She Was Compelled to Accept After Her Lay Off—Details of Project Not Finally Established—Terms Less Favorable than Those of Prior Job

The Third Department determined claimant was entitled to unemployment benefits because she did not receive a bona fide offer of employment and, even she had been given a bona fide offer of employment she was not compelled to accept it because the terms were substantially less favorable than the terms of her employment prior to her layoff:

Initially, it is for the Board to decide whether a claimant has refused an offer of suitable employment for which he or she is reasonably fitted by training and experience (see Labor Law § 593 [2]), and its decision in this regard will be upheld if supported by substantial evidence … . Here, evidence was presented that the details of the project were not finally established at the time the employer made its inquiry, and the time frame and required hours were also not definitive … . In view of this, substantial evidence supports the Board’s finding that claimant was not given a bona fide offer of suitable employment which she refused. Moreover, even if we were to conclude that she was given a bona fide offer of employment, the terms were substantially less favorable than the terms of her employment prior to her lay off and, consequently, she was not compelled to accept it … . Matter of Gibbons …, 2014 NY Slip Op 06351, 2nd Dept 9-25-14

 

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Under the Circumstances, Caring for Husband While Awaiting a Kidney Transplant in Florida Did Not Constitute “Good Cause” for Claimant’s Leaving her Employment–Employer Had Offered to Accommodate Claimant with Leaves of Absence

The Third Department determined claimant voluntarily left her employment without good cause.  Claimant moved to Florida to care for her husband while they awaited a kidney transplant.  Claimant’s employer had offered to accommodate claimant’s needs for leaves of absence:

“Relocating to retire with and care for one’s spouse does not constitute good cause for leaving employment absent proof of a compelling medical necessity for the move” … . Claimant provided no medical documentation indicating that she had received medical advice to join her husband in Florida …, nor did she explain the five-month delay in relocating to Florida after she resigned. In any event, claimant’s husband received a kidney transplant six months after she resigned, and the employer indicated both that it would have granted her an additional leave of absence and that continuing work was available to her. Under these circumstances, substantial evidence supports the Board’s determination that claimant voluntarily left her employment without good cause. Matter of Marie C Lahens…, 2014 NY Slip Op 06349, 3rd Dept 9-25-14

 

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The Continuing Treatment Was Not Shown to Relate to the Condition Which Caused the Alleged Injury

The Second Department determined the plaintiffs failed to raise a question of fact about whether the continuing treatment doctrine tolled the statute of limitations.  The medical malpractice action was therefore time-barred:

To establish that the continuous treatment doctrine applies, a plaintiff is ” required to demonstrate that there was a course of treatment, that it was continuous, and that it was in respect to the same condition or complaint underlying the claim of malpractice'” . It is undisputed that the radiology defendants were monitoring the plaintiff Robert Ceglio (hereinafter Robert) for postsurgical changes after he had a pituitary tumor removed. The plaintiffs allege that Robert suffered injuries as a result of a colloid cyst, which the radiology defendants failed to notice on his MRI scans when they were monitoring him for postsurgical changes. However, the plaintiffs presented no evidence to suggest that the colloid cyst, which allegedly caused the injuries complained of, was in any way connected to the pituitary changes for which the radiology defendants were monitoring Robert. Consequently, the plaintiffs failed to raise a question of fact as to whether Robert received continuous treatment for the same condition underlying the claim of malpractice … . Ceglio v BAB Nuclear Radiology PC, 2014 NY Slip Op 06291, 2nd Dept 9-24-14

 

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Dismissal of Complaint Pursuant to CPLR 3211 Appropriate Where Documentary Evidence Flatly Contradicts Allegations in the Complaint

In finding that the defendants were entitled to a dismissal of the complaint for failure to state a cause of action pursuant to CPLR 3211, the Second Department explained the effect of documentary evidence which refutes allegations in the complaint:

“A motion pursuant to CPLR 3211 (a) (1) . . . may appropriately be granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law'” … . On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must “afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “However, factual allegations which are flatly contradicted by the record are not presumed to be true and, [i]f the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action'” … .  Coastal Purch Group LLC v JPMCC 2005-CIBC Collins Lodging LLC, 2014 NY Slip Op 06292, 2nd Dept 9-24-14

 

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No Manifest Necessity for Declaring a Mistrial Over Defendant’s Objection–Double Jeopardy Barred Retrial

The Second Department determined there was no “manifest necessity” for the trial court’s declaring a mistrial (over defendant’s objection) and therefore retrial was precluded.  The jury informed the court it had reached a verdict one count but could not reach a verdict on the remaining two counts. The defendant asked the court to accept a partial verdict and the court refused.  Subsequently a juror asked to be excused due to an emergency.  The defendant, at the court’s urging, agreed to excuse the juror and renewed his request for a partial verdict.  The request was again refused and the defendant did not agree to the substitution of an alternate juror.  The court, on its own motion, declared a mistrial. When the court ruled defendant could be retried on the two counts on which the jury could not agree, defendant brought an application for prohibition:

Prohibition is the traditional remedy where a defendant seeks protection against double jeopardy … and the writ lies in this case. * * *

When a mistrial is granted over the defendant’s objection or without the defendant’s consent, double jeopardy will, as a general rule, bar retrial … . However, the right to have one’s case decided by the first empaneled jury is not absolute, and a mistrial granted as the product of manifest necessity will not bar a retrial … . ” Manifest necessity’ means a high degree of necessity’; the reasons underlying the grant of a mistrial must be necessitous, actual and substantial'” … . Even if the reasons for declaring a mistrial are deemed actual and substantial, the court must explore all appropriate alternatives prior to declaring a mistrial … .

Here, the trial court failed to explore all appropriate alternatives before declaring, on its own motion, a mistrial … . Accordingly, there was no manifest necessity for the declaration of a mistrial and, thus, retrial on counts two and three of the indictment is precluded.  Matter of Gentil v Margulis, 2014 NY Slip Op 06314, 2nd Dept 9-24-14

 

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Criteria for Judgment as a Matter of Law and Finding a Verdict to be Against the Weight of the Evidence Explained

In the context of a personal injury action, where the issue was whether plaintiff’s injury was “serious” within the meaning of Insurance Law 5102 (d), the Second Department explained the criteria for a judgment as a matter of law pursuant to CPLR 4401 and finding a verdict to be against the weight of the evidence.  The Second Department affirmed the denial of defendant’s post-verdict motions but found the damages awarded by the jury to be excessive:

” To be entitled to judgment as a matter of law pursuant to CPLR 4401, a defendant has the burden of showing that there is no rational process by which the jury could find in favor of the plaintiff and against the moving defendant'” … . In considering the motion for judgment as a matter of law, “the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” … .  * * *

A jury verdict is contrary to the weight of the evidence when the evidence so preponderates in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence … . Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert’s opinion, and reject that of another expert … . “Issues of credibility are for the jury, which had the opportunity to observe the witnesses and the evidence. Its resolution is entitled to deference” … . “[A] successful party is entitled to a presumption that the jury adopted a reasonable view of the evidence” … .  Cicola v County of Suffolk, 2014 NY Slip Op 06293, 2nd Dept 9-24-14

 

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Pulling Defendant from Inside His Home for Warrantless Arrest Violated the Fourth Amendment

The Second Department determined that a new trial was required because defendant’s statement should have been suppressed.  The police pulled the defendant from inside his home to arrest him without a warrant, a violation of the Fourth Amendment.  The Second Department noted, however, that the trial court did not err in refusing the suppress evidence of a post-arrest lineup identification:

Here, the police knocked on the defendant’s door at approximately 6:50 a.m. When the defendant answered the door he appeared to be “half asleep,” and was naked from the waist down. He only partially opened the door, was never in full view of the police, and never crossed the threshold of his apartment. When the police directed the defendant to step fully into view, the defendant instead attempted to shut the door, trapping a detective’s arm as the detective tried to keep the door from closing. After law enforcement officials successfully pushed the door open, they pulled the defendant from the area behind the door into the public hallway, where he was then arrested.

Under the discrete circumstances of this case, where the police officers crossed the threshold into the defendant’s apartment, pulled him into the hallway, and arrested him without a warrant, the defendant’s Fourth Amendment rights were violated … . People v Riffas, 2014 NY Slip Op 06333, 2nd Dept 9-24-14

 

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Police Had “Reasonable Suspicion” Justifying Only Forcible Detention of the Defendant to Conduct a Brief Investigation—Arrest of the Defendant in the Absence of Probable Cause Required Suppression of Defendant’s Statement

The Second Department, over a dissent, determined that defendant’s statement should have been suppressed because the police arrested him in the absence of probable cause.  Two persons for whom the police had probable cause to arrest were in the backseat of a legally parked vehicle.  Defendant was in the driver’s seat, fumbling with the ignition keys when the police first saw him.  The police pulled him from the vehicle and arrested him.  The Second Department found the arrest premature. Because of the presence of the two persons for whom the police had probable cause to arrest, there was only a reasonable suspicion of the defendant’s involvement which justified only forcible detention for a brief investigation:

The hearing testimony established that at approximately 8:00 a.m. on June 10, 2009, the police received a radio transmission regarding a robbery in progress, perpetrated by two black males, at a Queens residence. The police activated their sirens and lights and went to the specified house, arriving within two minutes of receiving the transmission. When the police arrived, two of the complainants, still gagged and partially bound, were on the porch of the house. The complainants used gestures to direct the officers’ attention to two men, Myers and Santos, who were walking on the sidewalk, about four houses away. Myers and Santos, who were the only civilians on the block, started running, and the officers chased them. During the chase, Santos discarded an object, which the police later recovered and found to be a gun. When Myers and Santos turned a corner several blocks from the complainants’ house, the officers lost sight of them briefly. When one of the officers turned the corner, he did not see any people, but saw the rear passenger door on a sport utility vehicle being closed. The vehicle was legally parked and the engine was off. The officer ran to the vehicle and peered inside through the tinted windows. After spotting Myers and Santos in the rear passenger seat, the officer “punched” the driver’s side window to alert the driver not to drive away. The officer pulled the driver’s door open and saw the defendant in the driver’s seat, “fumbling” with the keys and trying to put them in the ignition. The officer pulled the defendant out of the car, placed him face-down on the ground, and handcuffed him. Eventually, the defendant was placed in a police car. People v Delvillartron, 2014 NY Slip Op 06327, 2nd Dept 9-24-14

 

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Marriage of an Incapacitated Person Properly Annulled

The Second Department determined there was sufficient evidence to justify the annulment of the marriage of an incapacitated person (Aldo D.). for whom a temporary guardian had been appointed, to the appellant:

…[C]lear and convincing evidence was presented at the hearing that Aldo D. was incapacitated … . Among other things, testimony was adduced that Aldo D. suffered from Parkinson’s disease, and the temporary guardian testified that he observed symptoms of dementia in Aldo D. For example, the temporary guardian related that Aldo D. did not seem to understand that he was being evicted from his apartment, and that he had married without intending to do so. The temporary guardian further testified that Aldo D. was very limited in his ability to walk and dress himself, and he could not cook for himself. He did not recognize his need for help. When questioned by the court, Aldo D. repeatedly denied marrying the appellant, said that he did not remember marrying the appellant, and did not want to be married to her. The appellant acknowledged during her testimony that they had, “to a degree,” two marriage ceremonies, because, at the time of the first ceremony, Aldo D. “wasn’t feeling well.” The evidence before the Supreme Court was legally sufficient to establish that Aldo D. was incapacitated. Because there was legally sufficient evidence presented to the Supreme Court establishing that Aldo D. was incapacitated, it was proper to annul the marriage between him and the appellant pursuant to Mental Hygiene Law § 81.29(d) … . Matter of Dandridge, 2014 NY Slip Op 06311, 2nd Dept 9-24-14

 

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