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Late Notice of Settlement of Negligence Action to Workers’ Compensation Carrier Did Not Preclude Court-Approval of Settlement Pursuant to Workers’ Compensation Law

Plaintiff was struck by a car driven by defendant while she was taking a walk during a layover between work assignments for her employer.  She filed for workers’ compensation benefits.  And she sued the driver in a negligence action.  While the workers’ compensation proceeding was progressing plaintiff settled with the driver’s carrier.  Upon notice to the employer’s workers’ compensation carrier, the carrier refused to approve the settlement. Plaintiff then moved for court-approval of the settlement pursuant to the Workers’ Compensation Law.  Supreme Court granted the motion and the Third Department affirmed, noting:

When,  as here, court approval of a  settlement is not sought within three months of the date of settlement, a  plaintiff seeking a nunc pro tunc order must establish the reasonableness of the settlement, the lack of any  fault or neglect in applying for approval and the lack of any prejudice to the carrier … .   These determinations are directed to the discretion of the court … . Lindberg, et al, v Ross, et al, 515373, 3rd Dept 4-11-13

TRAFFIC ACCIDENTS

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Injury to Officer Who Was Pursuing a Suspect Not an “Accident”

In finding that injury to a police officer was not the result of an “accident” within the meaning of the Retirement and Social Security Law, the Third Department wrote:

Here, petitioner was performing his regular police duties chasing a suspect within his authorized patrol area at the time he was injured. As we have recognized, the “pursuit of suspects is an ordinary employment duty of a police officer” … .  Petitioner’s pursuit took him through a wooded area to the edge of a ravine where he stopped because he recognized the danger of falling into it. Nevertheless, he stood too close to the edge, the edge gave way under his weight and he fell into the ravine in a manner that he reasonably could have anticipated… .  Matter Roth v DiNapoli, 515078, 3rd Dept, 4-11-13

 

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Contacts Insufficient for Long-Arm Jurisdiction

The Third Department upheld the trial court’s determination that plaintiff’s business-related contacts with out-of-state defendants were insufficient to confer New York jurisdiction over them:

Plaintiff entered into a three-month agreement with defendant Yodle, Inc. to conduct an Internet advertising campaign for his divorce document preparation business. Three weeks after agreeing to the terms of the contract, plaintiff emailed defendant Brad Leitch, a Yodle employee who lives and works in North Carolina, and stated that he could not afford to proceed due to unanticipated personal expenses. Relying on the terms of the contract, Yodle refused to refund plaintiff any money and continued the advertising campaign until – just before the end of the three-month term – plaintiff commenced this action seeking to recover damages for, among other things, fraud and breach of contract.

* * *Initially, we cannot agree with plaintiff’s contention that Supreme Court erred in determining that it lacked jurisdiction over Leitch and Long [another Yodle employee who lives and works in Arizona]. Given the nature of their work on plaintiff’s Internet advertising campaign and his limited contact with them via telephone and email, their conduct “did not amount to a purposeful invocation of the privileges of conducting business in New York” so as to confer personal jurisdiction under CPLR 302 (a) (1) … . Collins … v Yodle, Inc…, 514827, 3rd Dept 4-11-13

 

 

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Connection of Illness to Work at Trade Center Not Demonstrated

The Third Department upheld the denial of World Trade Center Accidental Disability benefits to a policeman who claimed a 12-hour stint looking for survivors exacerbated his pre-existing condition (ulcerative colitis).  The court determined the statutory presumption had been rebutted by the respondent and the petitioner failed to present sufficient evidence linking his condition to his work at the World Trade Center. Matter of Cardino v NY State and Local Retirement System, 514782, 3rd Dept 4-11-13

 

 

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Notice of Tax Foreclosure Proceeding Deemed Sufficient

In finding that the notice requirements in a tax foreclosure proceeding had been met, the Third Department wrote:

Tax foreclosure proceedings enjoy a presumption of regularity, such that “[t]he tax debtor has the burden of affirmatively establishing a jurisdictional defect or invalidity in [such] proceedings” … .  In a tax foreclosure proceeding, each property owner is entitled to personal notice of the proceeding (see RPTL 1125 [1] [a]), which “shall be sent to each . . . party both by certified mail and ordinary first class mail” (RPTL 1125 [1] [b] [i]). Such “notice shall be deemed received unless both the certified mailing and the ordinary first class mailing are returned by the United States postal service within forty-five days after being mailed” … .Here, while the notice sent by certified mail to the Bayonne address was returned, there is no question that the notice sent by ordinary first class mail to respondent … at that address was not returned. Therefore, such notice was deemed received by respondent (see RPTL 1125 [1] [b] [i]…) . Matter of Foreclosure … 514737, 3rd Dept, 4-11-13

 

 

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Son Entitled to Remain in Deceased Mother’s Apartment​

In annulling the ruling that petitioner (Carlos) was not entitled to “remaining family member (RFM)” status for the succession of his deceased mother’s apartment, the First Department wrote:

We annul NYCHA’s [New York Housing Authority’s] determination on the ground that it is not supported by substantial evidence. While the agency correctly asserts that Carlos’s RFM status is jeopardized by the fact that he never received written permission to be added to his mother’s lease while she was alive, the record is plain that Amparo [Carlos’ mother] took every step to have her son added to her lease, as required by 24 CFR 966.4(a)(1)(v), and it is undisputed that NYCHA violated a number of its own internal rules by determining that Carlos’s 1996 conviction precluded him from joining Amparo’s tenancy until May of 2008, without notifying Amparo or Carlos, and without giving them the opportunity to present evidence of Carlos’s rehabilitation. … .

…[W]hile estoppel is not available against a government agency engaging in the exercise of its governmental functions …, we have held that NYCHA’s knowledge that a tenant was living in an apartment for a substantial period of time can be an important component of the determination of a subsequent RFM application … . In re Gutierrez v Rhea, et al, 2013 NY Slip Op 02453, 8494 402789/10, 1st Dept, 4-11-13

 

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Attorney’s Failure to Investigate Client’s Premises Liability Claim Before Encouraging Settlement Raised Issue of Fact About Malpractice

In this legal malpractice action, the trial court ruled plaintiff had raised issues of fact concerning whether his attorney failed to adequately investigate the plaintiff’s premises liability claim before encouraging the plaintiff to settle.  In affirming the trial court, the First Department noted that the settlement agreement did not bar the legal malpractice action:

For a claim for legal malpractice to be successful, “a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for’ the attorney’s negligence” …. A client is not barred from a legal malpractice action where there is a signed “settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel” ….   *  *  *

In this specific case, given plaintiff’s lack of sophistication and his limited education, defendant’s statement that he never conducted any investigation, except for speaking to plaintiff for a very limited time, raises a question of fact as to whether defendant adequately informed himself about the facts of the case before he conveyed the settlement offer.  Angeles v Aronsky, 2013 NY Slip Op 02454, 8925, 100091/09, 1st Dept, 4-11-13

 

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Assets Allegedly Wrongly Appropriated by Fiduciary Deemed “Asset-Transfers” for Purpose of Qualifying for Medicaid 

Pursuant to a power of attorney granted to Williams, petitioners’ decedent’s assets were transferred to joint accounts with Williams and decedent on the accounts.  Some of the funds were used by Williams for personal purposes.  When decedent applied for Medicaid benefits to pay for nursing home care, the benefits were denied by the Department of Health because it was determined that certain assets had been transferred for the purpose of qualifying for Medicaid.  Petitioners brought an Article 78 proceeding arguing that Williams wrongly appropriated the assets and, therefore, the assets were not transferred to qualify for Medicaid.  In upholding the Department of Health’s asset-transfer finding, the Third Department wrote:

In this regard, petitioners contend that Williams breached her fiduciary duty to decedent and engaged in self-dealing, thus establishing that “the assets [in question] were transferred exclusively for a purpose other than to qualify for medical assistance” and invoking the exception set forth in Social Services Law § 366 (5) (e) (4) (iii) (B). Although there arguably is evidence in the record that could support such a conclusion, given the existence of the joint checking accounts and the powers conferred upon Williams with respect to financial transactions, substantial evidence supports the Department of Health’s conclusion that petitioners failed to overcome the presumption that the stocks were sold and “the proceeds were transferred – at least in part – in order to qualify for Medicaid” … .Petitioners’ related assertion – that decedent lacked the mental capacity to manage his finances – is equally unavailing, as the record does not establish that decedent was incapacitated at the time the power of attorney was granted or the  joint accounts at issue  were  established. Under such circumstances, substantial evidence supports the Department of Health’s determination that petitioners  did  not  demonstrate  their entitlement to the claimed exception.  Matter of Conners… v Berlin …, 515536, 3rd Dept, 4-11-13

 

 

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Criteria for Holding Parent Company Liable for Torts of Subsidiary

In a products liability case, the Third Department determined a question of fact had been raised about whether the parent company could be liable for the torts of a subsidiary.  The relevant legal standard was described as follows:

Liability of a parent company for the torts of a subsidiary does not arise from the mere ownership of a controlling shareholder interest. “Rather ‘there must be direct intervention by the parent in the management of the subsidiary to such an extent that the subsidiary’s paraphernalia of incorporation, directors and officers are completely ignored'” … .   The  parent  company  must  “exercise[] complete  dominion  and  control over the subsidiary” ….  Goodspeed, et al, v Hudson Sharp Machine Company, 515490, 3rd Dept, 4-11-13

 

 

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Electricity-Steam Generation Rate Changes Did Not Qualify as a “Rule” Under the State Administrative Procedure Act

In affirming the NYS Public Service Commission’s approval of electricity/steam generation rates, the Third Department determined that the “long-term cost allocation method” did not qualify as a “rule” and therefore did not trigger the notice requirements of the State Administrative Procedure Act:

The part of the order determining the long-term cost allocation method does not constitute a rule because it  does not impose “‘a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers'” … .   As such, the notice provisions of the State Administrative Procedure Act do not apply (see State Administrative Procedures Act §§ 102 [2] [a]; 202 [1] [a]…).   Further, the notices issued by the Commission in connection with the planning proceeding satisfied procedural due process by clearly indicating that the planning case included consideration of the long-term impacts of cost allocation, and petitioner was provided sufficient opportunity to be heard on the issue … .  We have considered petitioner’s remaining arguments and find them to be likewise without merit.  Matter of City of New York v NYS Public Service Commission, et al, 515472, 3rd Dept, 4-11-13

 

 

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