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Reasons for Refusal of Temporary Job Not Sufficient; Claimant Disqualified

The Third Department upheld the disqualification of an unemployment-insurance claimant who refused a temporary job offer because the pay was lower than at his previous temporary job and a 20-mile commute was required:

“A claimant who  refuses to accept a job for which  he  or she is reasonably suited by  training and  experience will be  disqualified from receiving unemployment  insurance benefits” ….   Here, the record confirms that claimant was  qualified for the job offered to him  and  the position paid the prevailing wage ….   As for claimant’s rejection of the job offer due  to its location, “dissatisfaction with the length of one’s commute does not constitute good cause for rejecting an otherwise  suitable  offer of  employment”  … Notably, claimant admitted receiving the unemployment  insurance handbook explaining his obligations regarding reasonable commuting  distances under these circumstances.  Matter of Neuman, 509590, 3rd Dept, 4-18-13

 

 

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Claimant, Who Had Been Diagnosed With Job-Related Stress, Did Not Have Good Cause to Resign

After a doctor diagnosed claimant with job-related stress and authorized a month’s leave from work, claimant resigned from his job.  The Third Department affirmed the Unemployment Insurance Appeal Board’s finding claimant was not eligible for unemployment insurance on the ground he left his employment without good cause:

It is well settled that general dissatisfaction with a job or the inability to get along with a supervisor does not constitute good cause for leaving one’s employment … .   Here, claimant expressed extreme displeasure with his work environment as well as the demeanor of his supervisor, which undoubtedly contributed to the stress he was experiencing. While his physician provided him with a note setting forth medical reasons justifying a  leave of  absence,  claimant  did  not receive medical advice to quit his job … .   Moreover, although claimant  cited safety concerns  as another  reason  for his leaving, his supervisor testified that he  accepted  claimant’s suggestions concerning  the  operation  of the  machinery  and  did  not  have  him engage in potentially dangerous work practices. Matter of Bielak v Commissioner of Labor, 514536, 3rd Dept, 4-18-13

 

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Injured Party, as Well as the Insured Defendant, Has a Duty to Inform Insured’s Carrier of Incident; Failure of Timely Notice by Both the Insured and the Injured Party Allowed Carrier to Disclaim

In this case the insurer [Tower] disclaimed coverage because it was not given notice of the claim.  The Second Department determined that both the insured [Xu] and the injured party [Gomez] had a duty to inform the carrier of the incident:

The question before us is whether Tower may be required to afford coverage to its defaulting insured (Xu) for the benefit of the injured party (Gomez) pursuant to Insurance Law § 3420(a)(3). Gomez is not accountable, of course, for Xu’s failure to provide notice to Tower during the period of nearly a year and a half  … . Still, even though “[i]n determining the reasonableness of an injured party’s notice, the notice required is measured less rigidly than that required of the insureds” …, some level of diligence was required of Gomez, as the dissent reluctantly concedes, once his counsel, upon receipt of the certificate evidencing that coverage had been renewed five months after the incident, was put on notice of the likelihood (even if not a certainty) that Xu had been covered by a Tower policy at the time of the incident (see Kalthoff v Arrowood Indem. Co., 95 AD3d 1413, 1415 [3d Dept 2012] [where the insured has failed to comply with the notice conditions of the policy, “the injured party bears the burden of demonstrating that it made reasonable efforts to identify the insurer and provide it with prompt notice”] …). Tower Ins Co of NY v Rong Rong Sun, 2013 NY Slip Op 02645, 8777, 108391/10, 1st Dept, 4-18-13

 

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Claimant’s Failure to Give Timely Written Notice of Injury Excused

In finding claimant’s failure to give timely written notice of her injury to her employer was excused, the Third Department wrote:

While claimant did not give timely written notice of her injury, her failure to do so may be excused “on the ground that notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced” (…see Workers’ Compensation Law § 18). Claimant testified that she verbally informed  the bus  dispatcher of the accident shortly after it occurred, and the employer’s employee benefits supervisor confirmed that the dispatcher would be an appropriate individual to whom  to report an accident if claimant’s  supervisor  was  unavailable. Claimant  also  testified that she orally notified her supervisor of the accident – perhaps the following day … .  Matter of Rankin v Half Hollow Hills Central School District, et al, 514956, Third Dept 4-18-13

 

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Question of Fact About Whether Driving to or from Work Constitutes an Act Within the Scope of Employment

Finding that issues of fact had been raised about whether the plaintiff was acting within the scope of his employment (thereby making Workers’ Compensation his only remedy), the First Department wrote:

Defendant contends that workers’ compensation benefits are plaintiff’s exclusive remedy for the injuries he sustained when he was struck by the truck defendant was driving (see Workers’ Compensation Law § 29[6]). However, issues of fact exist whether the parties were “acting within the scope of their employment, as coemployees, at the time of injury” … . * * * While, generally, traveling to and from work is not deemed to be within the scope of employment, as an employee approaches the site of his employment, “there develops a gray area where the risks of street travel merge with the risks attendant with employment” … . Then the test of compensability is whether there is a causal relationship between the employment and the accident and whether the employee “was exposed to a particular risk not shared by the public generally” … . Issues of fact exist whether defendant’s accident was causally related to a risk attendant with his employment rather than one shared by the public generally. Ortiz v Lynch, 2013 NY Slip Op 02667, 9839, 302254/11, 1st Dept, 4-18-13

 

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Parent Who, Under a Shared Custody Schedule, Has Custody of the Child the Majority of the Time, Can Not Be Ordered to Pay Child Support to the Other Parent, Financial Issues Are Irrelevant

The motion court awarded child support from the father to the mother, who, by virtue of the motion court’s schedule, did not have custody of the child the majority of the time.  In a full-fledged opinion by Justice Richter, including a dissent, the First Department reversed the motion court, finding that the award of child support, in a shared custody arrangement, must be based solely on the amount of time the child spends with each parent, and not on their respective financial situations.  Therefore, the parent who has custody the majority of the time is deemed the “custodial parent “who cannot be ordered to pay child support to the “noncustodial” parent.  The First Department wrote:

Under the CSSA’s [Child Support Standards Act’s] plain language, only the noncustodial parent can be directed to pay child support. Domestic Relations Law § 240(1-b)(f)(10) and FCA § 413(1)(f)(10) state that, after performing the requisite calculations, “the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation (emphasis added)” … . The mandatory nature of the statutory language undeniably shows that the Legislature intended for the noncustodial parent to be the payer of child support and the custodial parent to be the recipient. The CSSA provides for no other option and vests the court with no discretion to order payment in the other direction. * * *

…[T]he father has 56% of time with the child compared to 44% for the mother — an almost 30% difference. Thus, the child spends significantly more time with the father, making the father the custodial parent for child support purposes… . * * *

 In finding that the father could be considered the noncustodial parent, the motion court improperly focused on the parties’ financial circumstances rather than their custodial status. In doing so, the court endorsed an approach where the determination of the custodial parent is based not on whom the child spends the majority of the time with, but instead on which parent has the lesser monetary means. No matter how well-intentioned the court may have been, neither the CSSA, nor Bast v Rossoff [91 NY2d 723], allows for economic disparity to govern the determination of who is the custodial parent where the custodial time is not equal. Rubin v Della Salla, 2013 NY Slip OP 02681, 6669, 1st Dept 4-18-13

 

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Failure to Make Sufficient Effort to Transport Injured Inmate to His Hearing Required Annulment

In annulling a disciplinary determination, the Third Department ruled the inmate’s statement to the escort officer that he had injured his foot and could not put on a shoe (to walk to the disciplinary hearing) did not constitute a refusal to attend the hearing:

“[A]n inmate has a fundamental right to be present at his or her disciplinary hearing, unless he or she waives such right or refuses to attend”  …. Here, instead of “transporting petitioner to the hearing by  wheelchair, stretcher or other appropriate conveyance  or arranging to have medical personnel examine petitioner or otherwise developing a record on the issue of petitioner’s physical ability to walk” … – or even exploring the possibility of allowing petitioner to leave his SHU cell with only one shoe – the Hearing Officer summarily accepted the  escort  officer’s characterization of  petitioner’s conduct  as a blatant refusal to attend the hearing … .Under these circumstances, the record does not support the finding that petitioner “willfully refused”… .  Matter of Brooks v James, 514707, 3rd Dept, 4-18-13

 

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Failure to Make Sufficient Effort to Have Inmate’s Witness Testify Required a New Hearing

The Third Department ordered a new disciplinary hearing where insufficient efforts were made to procure the testimony of a witness requested by the inmate:

When  petitioner requested that a fellow inmate  testify at the  disciplinary  hearing,  the Hearing  Officer merely  noted  that the witness had informed petitioner’s employee assistant that he refused  to  testify. Such a notation by the Hearing Officer, without any attempt to determine the reason for the witness’s refusal, is not a sufficient basis upon which to deny petitioner’s right to call the witness … Matter of Dickerson v Fischer, 514685, 3rd Dept, 4-18-13

 

 

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A Party Can Not Appeal from a Portion of an Order Where the Party Is Not Aggrieved by the Order

The Second Department noted that a party can not appeal from a portion of an order which does not grant relief the party did not request, even where the order includes reasoning with which the party does not agree:

“A party is not aggrieved by an order which does not grant relief [he or she] did not request” … . “Merely because the order appealed from contains language or reasoning that a party deems adverse to its interests does not furnish a basis for standing to take an appeal'” … . Here, the plaintiffs are not aggrieved by so much of the order as, in denying the … defendants’ motion for summary judgment and reaching a result which was not adverse to the plaintiffs, determined that a prior judgment did not have res judicata or collateral estoppel effect on the motion before it … . Since the plaintiffs are not aggrieved by the portion of the order from which they appeal, their appeal must be dismissed. Spielman v Mehraban, 2013 NY Slip Op 02565, 2011-10855, Index No 19056/10, 2nd Dept, 4-17-13

 

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