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Contract Could Potentially Be Performed Within a Year—Dismissal on Statute of Fraud Grounds Properly Denied

The Fourth Department affirmed the denial of defendant’s motion to dismiss the complaint on the ground that the oral agreement violated the statute of frauds.  The court determined the contract was capable of being performed within a year:

“As long as [an] agreement may be fairly and reasonably interpreted’ such that it may be performed within a year, the [s]tatute of [f]rauds will not act as a bar [to enforcing it] however unexpected, unlikely, or even improbable that such performance will occur during that time frame” … . Here, although the parties’ original agreement provided that the purchase price would be paid in monthly installments over a period of five years, the agreement was revised to provide that if plaintiff, inter alia, transferred the accounting practice or ceased to practice for a period of 30 days, plaintiff would owe defendant the remainder of the purchase price in a lump sum. Thus, because plaintiff could have fully performed the alleged agreement within the first year by paying defendant such a lump sum, defendant did not meet her burden of establishing that the statute of frauds renders the agreement void and unenforceable … . Stevens v Perrigo, 2014 NY Slip Op 08195, 4th Dept 11-21-14

 

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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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Complaint Against Highest Bidder on Real Property Which Subsequently Refused to Execute the Contract of Sale Properly Dismissed—No Agreement Which Satisfied the Statute of Frauds and No Part Performance

The Third Department affirmed Supreme Court’s dismissal of the complaint seeking specific performance of a real estate contract or damages for breach of contract.  Defendant executed and delivered the bidding package and the required down payment, bid on the property on line and was the highest bidder.  When the contract of sale was delivered to the defendant, the defendant refused to execute it.  Supreme Court dismissed the complaint because there was no agreement which satisfied the statute of frauds and there was no part performance.  The court explained the relevant analytical criteria:

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The statute of frauds provides, as relevant here, that a contract for the sale of real property “is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged” (General Obligations Law § 5-703 [2]). To satisfy that statute, the memorandum “must designate all parties, identify and describe the subject matter and state all of the essential terms of a complete agreement” … . The memorandum is not required to be contained in one document; separate “signed and unsigned writings [can] be read together, provided that they clearly refer to the same subject matter or transaction,” contain all of the essential terms of a binding contract …, and the “unsigned writing [was] prepared by the party to be charged” .. . At least one document signed by the party to be charged must “establish[] a contractual relationship between the parties,” with the unsigned documents referring on their face to the same transaction … . * * *

A contract may be enforced, despite failing to comply with the statute of frauds, “in cases of part performance” (General Obligations Law § 5-703 [4]). When analyzing part performance for potential invocation of equitable principles, courts should only consider the actions and detrimental reliance of the party seeking enforcement of the contract … . Additionally, the conduct must be “unequivocally referable” to the alleged agreement … . Post Hill LLC v E Tetz & Sons Inc, 2014 NY Slip Op 08089, 3rd Dept 11-20-14

 

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Employer Did Not Submit Employee Benefit Plan as Required by Workers’ Compensation Law 25 (4) (c)—Therefore the Employer Was Entitled to Reimbursement Only for the Workers’ Compensation Benefits Paid to the Employee and Not for the Amounts Paid Under the Employee Benefit Plan

The Third Department determined the employer was entitled to reimbursement only of the amount paid to an injured employee as worker’s compensation benefits, and not for the payments to the injured employee from a supplement (employee benefit) plan which paid the difference between the worker’s salary and the benefits:

The employer argues that the Board erred in applying Workers’ Compensation Law § 25 (4) (c), rather than subdivision (4) (a) of that section, in resolving its reimbursement request. Section 25 (4) (c) requires that employers seeking reimbursement for benefits paid to an injured employee pursuant to an employee benefit “plan . . . [that] provide[s] that the injured employee . . . shall be limited in the amount of benefits or payments thereunder if he or she shall be entitled to [workers’ compensation] benefits under this chapter” must file “proof of the terms of [the employee benefit] plan . . . before award of compensation is made” (Workers’ Compensation Law § 25 [4] [c]…). This Court has held that an employer’s right to “seek credits against schedule awards for moneys paid pursuant to an employee benefit plan . . . stems from Workers’ Compensation Law § 25 (4) (c) and is limited by the restrictions in that provision” … . We concluded that subdivision (4) (a), which imposes no requirement to file the terms of a plan and, indeed, “makes no reference to proof of plan terms[,] . . . was not intended to address moneys paid from an employee benefit plan” …

Here, …the employer’s workers’ compensation supplement plan limited the amount of benefits that an employee with a work-related injury would receive as compared to an employee entitled to benefits under the employer’s short-term disability plan–essentially deducting workers’ compensation benefits from the amount paid in salary under the short-term disability plan. Even considering the workers’ compensation supplement plan alone, we conclude that the injured employee is limited in the amount of benefits paid “thereunder”–meaning from the plan itself–if he or she is awarded workers’ compensation benefits (Workers’ Compensation Law § 25 [4] [c]). While the employee initially receives his or her full salary from the supplement plan, if the employer is reimbursed out of a workers’ compensation award, then the employee has received less in (or is “limited in the amount of”) benefits from the supplement plan itself due to his or her entitlement to those workers’ compensation benefits. Thus, Workers’ Compensation Law § 25 (4) (c) is applicable and, inasmuch as the employer admittedly failed to file proof of the terms of the plan prior to the first award of benefits, the Board properly determined that the employer’s right to compensation was limited to the amount paid to claimant as workers’ compensation benefits… . NYS Workers’ Compensation Bd v Bast Hatfield Inc, 2014 NY Slip Op 08082, 3rd Dept 11-20-14

 

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Fact that Prosecutor Had Represented the Defendant in the Past Did Not Require Disqualification—No Substantial Risk of an Abuse of Confidence

The Third Department determined that the fact that the District Attorney had represented the defendant 16 years before did not require disqualification:

Ordinarily, “[a] public prosecutor should be removed only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence” … . Here, the fact that the District Attorney may have previously represented defendant in prior, unrelated criminal matters, without more, does not require his disqualification … . Further, although the District Attorney sought to impeach defendant using prior contempt convictions arising from marital problems that defendant alleges he had discussed with the District Attorney, County Court’s refusal to allow any inquiry into the underlying facts of these convictions eliminated any possible avenue by which the District Attorney might have utilized any confidential information that he may have acquired … . As 16 years had passed since any such alleged confidences had been shared, the passage of time had also diminished the risk of prejudice … . As defendant did not demonstrate a substantial risk of an abuse of confidence or any actual prejudice, we find no error in County Court’s determination … . People v Giroux, 2014 NY Slip Op 08060, 3rd Dept 11-20-14

 

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