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Four-Year Rent-Overcharge Statute of Limitations Does Not Apply Where There Is Fraud

The First Department noted that the four-year statute of limitations for rent-overcharge actions does not apply where fraud in involved, because the fraud renders the underlying lease void:

We are not persuaded that plaintiffs’ overcharge claim is barred by the four-year statute of limitations. As we noted in Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin. (68 AD3d 29, 32, affd 15 NY3d 358, 366 [2010] [citations ommitted]), “while the applicable four-year statute of limitations reflects a legislative policy to alleviate the burden on honest landlords to retain rent records indefinitely,’ and thus precludes us from using any rental history prior to the base date, where there is fraud . . . the lease is rendered void[,]” and the legal rent is to be determined by the default formula … . We went on to note that “[s]anctioning the owner’s behavior on a statute of limitations ground can result in a future tenant having to pay more than the legal stabilized rent for a unit, a prospect which militates in favor of voiding agreements such as this in order to prevent abuse and promote enforcement of lawful regulated rents'” … . We thus hold that the four year statute of limitations is not a bar in a rent overcharge claim where there is significant evidence of fraud on the record… . Conason v Megan Holding LLC, 2013 NY Slip Op 05956, 1st Dept 9-24-13

 

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Hearsay Not Assessed for Reliability—Determination Annulled

The Third Department annulled a determination that was based upon hearsay which had not been assessed for reliability:

While hearsay evidence may constitute substantial evidence to support a determination of guilt, it must be sufficiently detailed to allow the Hearing Officer to independently assess its reliability and credibility … .   The basis for the charges here were written and oral statements by inmates implicating petitioner as the thief.  There is no indication, however, that those statements were independently reviewed by the Hearing Officer, who based his determination solely upon the misbehavior report and testimony of the correction lieutenant who authored it.  Matter of Carrasquillo…, 515970, 3rd Dept 9-19-13

 

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Insufficient Justification for Removing Inmate from Hearing

The Third Department reversed a determination of guilt because the petitioner was removed from the hearing without sufficient justification:

“An inmate has a fundamental right to be present during a prison disciplinary hearing unless he or she is excluded for reasons of institutional safety or correctional goals” … .  Petitioner here was first warned that he could be removed from the hearing after he attempted to suggest questions for a witness he had requested who claimed to have been threatened and refused to testify.  The Hearing Officer then invited petitioner to explain his defense, namely, that the author of the misbehavior report had set him up after they had sexual contact.  Petitioner referred to the officer by her first name, prompting the Hearing Officer to direct him to refrain from doing so.  Petitioner then attempted to explain – despite the Hearing Officer’s repeated interruptions – that the officer “told me to call her” by her first name and that such was “the only way” he could accurately describe what had occurred.  Instead of allowing petitioner to explain further or present his account of events, however, the Hearing Officer abruptly cut petitioner off and removed him from the hearing.  Even if petitioner’s conduct could legitimately be viewed as indecorous or disrespectful, “our review of the record reveals no evidence that [it] rose to the level of disruption that justified his exclusion from the proceedings”… . Matter of Watson v Fischer, 515197, 3rd Dept 9-19-13

 

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Hearing Conducted in Absence of Inmate Okay Due to Inmate’s Assaultive and Menacing Conduct

The Third Department affirmed a guilty determination even though the hearing was conducted in the inmate’s absence.  The inmate had a history of assaults and menacing conduct:

It is well settled that an inmate has a fundamental right to be present at a disciplinary hearing, unless “he or she refuses to attend, or is excluded for reasons of institutional safety or correctional goals” (7 NYCRR 254.6 [a] [2]…). When an inmate is denied the right to be present at a hearing, there must be a factual basis in the record supporting the Hearing Officer’s decision … .  Here, the Hearing Officer set forth on the record his reasons for excluding petitioner from the hearing, including petitioner’s menacing conduct at a hearing earlier that same day, which he personally witnessed,  as well as petitioner’s multiple assaults on staff during the past several months.  Based upon these incidents, the Hearing Officer could reasonably conclude that petitioner’s presence at the hearing would jeopardize institutional safety and correctional goals.  Matter of Barnes v Prack, 514889, 3rd Dept 9-19-13

 

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Statements Made In Plea Allocution Negated Guilt

The Third Department vacated defendant’s plea to forgery because, during the plea allocution, the defendant indicated he signed his own name on the credit card receipts.  Signing one’s own name cannot constitute forgery:

Although defendant waived his right to appeal and did not preserve his challenge to the voluntariness of his plea by moving to withdraw his plea or vacate the judgment of conviction, the narrow exception to the preservation rule is triggered because he made a statement during the allocution that cast doubt upon his guilt … .  During the allocution, defendant admitted to purchasing several items at various stores using a credit card that did not belong to him. When asked whether he had signed the credit card receipts using the name of the person to whom the card had been issued, defendant informed County Court that he did not know whose name was on the card and that he had signed the receipts in his own name.  * * *

Here, defendant’s signing of his own name to the credit card receipts would render him both the actual and ostensible maker of the instrument, and the making of the instrument would not constitute a forgery … .  Accordingly, defendant’s statement that he signed his own name to the receipts implicated the voluntariness of his guilty plea to forgery in the second degree, requiring further inquiry from County Court.  As the court failed to conduct such an inquiry, defendant’s plea must be vacated and the matter remitted to County Court.  People v Morehouse, 104770, 3rd Dept 9-19-13

 

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Imposition of Fine After Promise No Fine Would Be Imposed Required Vacation of Guilty Plea

The Third Department vacated defendant’s sentence because County Court promised the sentence would not include a fine, but County Court imposed a fine because a fine was required by law.  The court wrote:

Defendant pleaded guilty to an indictment charging him with two counts of aggravated unlicensed operation of a motor vehicle in the first degree.  County Court agreed, in return, to sentence him to an aggregate jail term of one year with no fines.  While County Court sentenced defendant to the contemplated jail term, it further imposed a fine of $1,000 on each count.  Defendant now appeals.

County Court promised defendant that his sentence would not include a fine, but such sentence would have been illegal (see Vehicle and Traffic Law § 511 [3] [b]…). The legal sentence that County Court imposed was inconsistent with that promise.  Although defendant failed to preserve this issue by moving to withdraw the plea or vacate the judgment of conviction, the sentence must nevertheless “be vacated, and the matter remitted . . . to afford . . . defendant the opportunity to accept the sentence that was actually imposed, or permit him to withdraw his plea of guilty”… .  People v Faulcon, 104625, 3rd Dept 9-19-13

 

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Criteria for Payment from Special Fund Explained

In finding there was insufficient evidence to determine if claimant was entitled to be paid workers’ compensation benefits from the Special Fund (for previously closed cases), the Third Department wrote:

“Worker’s Compensation Law § 25-a provides for the transfer of liability to the Special Fund ‘when an application to reopen a closed case is made more than seven years from the date of injury and more than three years after the last payment of compensation'” … .  “Advance payments that are made voluntarily, in recognition of an employer’s liability, are payments of compensation” for purposes of Workers’ Compensation Law § 25-a … .  Thus, even where the requisite time periods have elapsed, if a claimant has – during the relevant time period – received advance payment of benefits in the form of full wages for the performance of light or limited duty work, liability is not appropriately shifted due to those advance payments … .  Here, the record contains numerous progress reports from claimant’s chiropractor indicating that she has been working for the employer since November 2004 with restrictions. Inasmuch as the record does not contain an affidavit or testimony of claimant or any other evidence regarding whether claimant was performing light or limited duties and, if so, whether she received full wages, we find that the Board’s decision is not supported by substantial evidence and the matter must be remitted for further development of the record… . Matter of Capodagli…, 516177, 3rd Dept 9-19-13

 

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Inability to Find Sufficient Childcare Was “Good Cause” for Leaving Employment

In affirming the Unemployment Insurance Appeal Board’s determination claimant had good cause for leaving her employment, the Third Department wrote:

“Whether a claimant has good cause to leave his or her employment is a factual determination to be made by the Board, and its decision will not be disturbed when supported by substantial evidence” … . Claimant offered multiple reasons that she was dissatisfied with her employment, but the record supports the Board’s conclusion that the impetus for her resignation was an inability to arrange appropriate childcare despite having made sufficient efforts in that regard.  We find that substantial evidence supports the Board’s determination that, under all of the circumstances presented here, claimant had good cause to leave her employment… . Matter of Cottone…, 516338, 3rd Dept 9-19-13

 

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Claimant Who Provided Computer-Training for Company’s Clients Properly Found to Be Employee of Company

In affirming the Unemployment Insurance Appeal Board’s determination claimant was an employee of a company (Eden Technologies) which provides computer-training personnel to clients, the Third Department wrote:

The existence of an employer-employee relationship is a factual determination for the Board to resolve and its determination will not be disturbed if supported by substantial evidence … .  This Court has held that “‘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'” … . In this case, there is proof that Eden sought, interviewed and selected claimant to perform services at the request of a client. On a weekly basis, claimant was required to submit time sheets provided by Eden, including information about what services were provided.  Eden then paid claimant directly on a biweekly basis at a set hourly rate and billed the client separately. Additionally, certain restrictions were placed upon claimant’s provision of services to Eden’s clients and other entities during her employment and for one year following separation.  Thus, although there is evidence that could support a different result, we find substantial evidence to support the Board’s decision… . Matter of Lamar…, 516039, 3rd Dept 9-19-13

 

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Salesman Properly Found to Be an Employee

In affirming the Unemployment Insurance Appeal Board’s conclusion that claimant was an employee of Village Wine, the Third Department wrote:

Claimant was a salesperson for Village Wine Imports Ltd., a wine importer and distributor.  Substantial evidence supports the Unemployment Insurance Appeal Board’s conclusion that claimant and those similarly situated were Village Wine’s employees and not independent contractors.  Village Wine set claimant’s commission rate, paid him a draw on his commission for a period of time, and reimbursed his travel and telephone expenses. Claimant was also trained by Village Wine, which assisted his sales efforts by providing product samples and business cards bearing the company name.  Village Wine also set the price, terms and conditions for all sales, gave claimant sales leads, required him to obtain approval for sales, and handled all shipping and invoicing matters.  While evidence in the record could support a contrary result, the Board was free to determine from the above that Village Wine exercised sufficient control over claimant to establish an employer-employee relationship… . Matter of Miciletto…, 515852, 3rd Dept 9-19-13

 

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