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DEFENDANT WAS A PRIME, NOT A GENERAL, CONTRACTOR AND DEMONSTRATED HE DID NOT EXERCISE SUPERVISION OR CONTROL OVER PLAINTIFF’S WORK; THEREFORE DEFENDANT WAS NOT LIABLE UNDER LABOR LAW 240(1) AND 241(6); HOWEVER, DEFENDANT DID EXERCISE SOME CONTROL OVER WORK-SITE SAFETY AND THEREFORE MAY BE LIABLE UNDER LABOR LAW 200 (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant prime contractor, Kilian, did not supervise or control plaintiff’s work and therefore was not liable on the Labor Law 240(1) and 241(6) causes of action stemming from plaintiff’s fall down an open stairway at a house under construction. The Fourth Department noted the difference between a general contractor and a prime contractor. Here, Kilian (the prime contractor) demonstrated he did not exercise supervision or control over plaintiff’s work. However, Kilian did exercise some control over work-site safety and therefore may be liable under Labor Law 200 for the dangerous condition (open stairwell):

“A general contractor will be held liable under [Labor Law §§ 240 (1) and 241 (6)] if it was responsible for coordinating and supervising the entire construction project and was invested with a concomitant power to enforce safety standards and to hire responsible contractors” … . Here, Collins, not Kilian, hired plaintiff’s employer to perform work on the project, and Kilian established through the documentary evidence and deposition testimony that he exercised no control or supervision over plaintiff’s work and had no authority to enforce safety standards against plaintiff … . Thus, Kilian established as a matter of law that he was not a general contractor subject to liability pursuant to Labor Law §§ 240 (1) or 241 (6), and plaintiff failed to raise a triable issue of fact … . …

… [T]o the extent that the section 200 claim against Kilian is based on the theory that he was negligent with respect to the dangerous condition of the stairwell, we conclude that Kilian failed to establish as a matter of law that he did not have control over the work site or that he lacked actual or constructive notice of the dangerous condition, i.e., the unguarded, open stairwell … . Clifton v Collins, 2022 NY Slip Op 00780, Fourth Dept 2-4-22

 

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ALTHOUGH THE PRELIMINARY INJUNCTION IN THIS BREACH OF CONTRACT ACTION WAS PROPERLY IMPOSED, SUPREME COURT SHOULD HAVE REQUIRED THE POSTING OF AN UNDERTAKING (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined that, although the preliminary injunction in this breach of contract action was properly imposed, Supreme Court should have provided for an undertaking:

… [T]he court erred in granting the preliminary injunction without providing for an undertaking. With certain exceptions that are not applicable here, prior to the court granting a preliminary injunction, a plaintiff must post an undertaking in an amount fixed by the court (see CPLR 6312 [b] … ), and that requirement may not be waived … . TDA, LLC v Lacey, 2022 NY Slip Op 00779. Fourth Dept 2-4-22

 

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CLAIMANTS’ APPLICATION TO FILE A LATE NOTICE OF CLAIM AGAINST THE COUNTY IN THIS TRAFFIC ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimants’ application to file a late notice of claim against the county in this traffic accident case should not have been granted. Claimants alleged ice and snow had been allowed to accumulate on the road causing the driver to lose control and strike a tree. Claimants’ eight-year-old son was injured. The Fourth Department, in a comprehensive discussion, went through each “late-notice-of-claim” factor and found only one (county not prejudiced by the delay) favored the claimants:

… [O]f all the relevant circumstances evaluated—infancy, reasonable excuse, actual knowledge, and substantial prejudice—only one, lack of substantial prejudice, favored granting claimants’ application. Despite the well-settled principle that “actual knowledge of the claim is the factor that is accorded ‘great weight’ in determining whether to grant leave to serve a late notice of claim” … and instead “weigh[ed] heavily” the lack of substantial prejudice, even though claimants’ showing in that regard, while adequate, was not particularly strong. Under these circumstances—which include the nearly 22-month period between the accident and claimants’ application for leave to serve a late notice of claim, the improper weighing of the substantial prejudice factor at the expense of the actual knowledge factor, and claimants’ failure to demonstrate a nexus between the son’s infancy and the delay or to otherwise proffer a reasonable excuse for the delay—we conclude that the court abused its discretion in granting that part of the application seeking leave to serve a late notice of claim on the County … . Matter of Antoinette C. v County of Erie, 2022 NY Slip Op 00776, Fourth Dept 2-4-22

 

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THE SCHOOL BOARD DID NOT VIOLATE THE OPEN MEETINGS LAW WHEN IT CONSULTED WITH ITS ATTORNEY IN A CLOSED SESSION BEFORE DECIDING NOT TO RENEW PLAINTIFF FOOTBALL COACH’S EMPLOYMENT; THERE IS AN EXCEPTION TO THE OPEN MEETINGS LAW FOR LEGAL ADVICE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff high school football coach was not entitled to summary judgment on the cause of action alleging the school board violated the Open Meetings Law by deciding not to renew plaintiff’s employment after a closed meeting. The Open Meetings Law did not apply to the board’s closed-door consultation with its attorney:

It is well settled that “[e]very meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [section 105]” (Public Officers Law § 103 [a] … ). While an executive session may be called to discuss, inter alia, “matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person” (§ 105 [1] [f]), the public body may do so only upon a majority vote of its membership and after “identifying the general area or areas of the subject or subjects to be considered” (§ 105 [1]). However, section 108 (3) clarifies that “[n]othing contained in [the Open Meetings Law] shall be construed as extending the provisions hereof to . . . any matter made confidential by federal or state law.” Because “communications made pursuant to an attorney-client relationship are considered confidential under the [CPLR] . . . , communications between a . . . board . . . and its counsel, in which counsel advises the board of the legal issues involved in [a] determination . . . , are exempt from the provisions of the Open Meetings Law” … .

There is no dispute that, during the closed session … , the Board and the District superintendent met with the District’s counsel seeking legal advice “regarding the [p]laintiff’s legal employment status, employment rights, [and] the process for appointing school employees.” We thus agree with defendants that the attorney-client exemption applies and that the court erred in determining that there was a violation of the Open Meetings Law … . Sindoni v Board of Educ. of Skaneateles Cent. Sch. Dist., 2022 NY Slip Op 00772, Fourth Dept 2-4-22

 

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PETITIONER-MOTHER’S APPLICATION TO HAVE THE MALTREATMENT FINDING DEEMED UNFOUNDED AND EXPUNGED PROPERLY DENIED; MOTHER WOULD NOT ALLOW HER 16-YEAR-OLD DAUGHTER INTO THE HOME; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, affirmed the NYS Office of Children and Family Services’ (OCFS’s) denial of petitioner-mother’s application to have reports by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged. Petitioner allegedly refused to allow her 16-year-old daughter into the home, which caused her daughter to find other places to stay. The dissent agreed with the majority’s conclusion that mother’s failure to exercise adequate care and supervision constituted maltreatment, but disagreed with the majority’s finding that the daughter was placed in imminent risk of danger:

From the dissent:

OCFS’s decision recited a plethora of facts relative to petitioner’s failure to exercise the requisite degree of care or supervision. The same cannot be said regarding whether such failure harmed the child or imminently harmed the child. Rather, only in a conclusory fashion did OCFS find that petitioner’s failure to exercise a minimum degree of care caused the child’s physical, mental or emotional condition to be impaired or to be in imminent danger of being impaired. Indeed, OCFS’s decision noted, and the record confirms, that, when the child stayed with the neighbor, the neighbor’s residence was “safe” and posed “no concerns.” OCFS also noted that the neighbor was approached about potentially obtaining custody of the child. Based on what OCFS found, substantial evidence, in our view, does not support the determination that the child was harmed or was in imminent risk of harm … . Matter of Tammy OO. v New York State Off. of Children & Family Servs., 2022 NY Slip Op 00706, Third Dept 2-3-22

 

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE STEPS ON WHICH SHE SLIPPED AND FELL, ALTHOUGH ON A PUBLIC RIGHT-OF-WAY, WERE SUBJECT TO A SPECIAL USE BY THE ABUTTING PROPERTY OWNER (POTENTIALLY RENDERING THE ABUTTING PROPERTY OWNER LIABLE) (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff in this slip and fall case should have been allowed to present evidence of defendant synagogue’s special use of steps which were part of the public right-of-way but which lead to the synagogue entrance. Plaintiff slipped on ice on the “public right-of-way” portion of the steps and broke her ankle:

… [D]efendant proffered evidence in support of its motion for summary judgment that plaintiff’s fall occurred on public property, thereby shifting the burden to plaintiff to raise an issue of fact as to defendant’s liability as an abutter … . With respect to its special use theory of recovery, plaintiff points to the deposition testimony of defendant’s secretary and bookkeeper, who testified that she was unaware of who initially built the subject set of steps, or when, but that defendant rebuilt them prior to plaintiff’s fall. Photographs submitted by both parties make clear that the subject steps are not only directly in line with the synagogue’s main entrance, but match that entrance’s width with near exactitude, the entrance notably being wide enough to encompass two sets of double doors. There is proof that congregants attending Sabbath services and holiday services would access the synagogue via this entrance only. In addition, photographic evidence reveals that the portion of the raised sidewalk between the two sets of steps is constructed of more decorative pavers or cobblestones, laid by defendant, setting that area apart from the otherwise concrete sidewalk, arguably improving the overall appearance of the main entrance and visually linking the two sets of steps up to the synagogue.

Viewing the evidence in the light most favorable to plaintiff and affording her the benefit of every available inference, as we must, the foregoing was adequate to raise a triable issue of fact as to whether the subject steps were constructed or altered for defendant’s benefit. Podhurst v Village of Monticello, 2022 NY Slip Op 00707, Third Dept 2-3-22

 

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THE BOARD SHOULD NOT HAVE RELIED ON THE OPINION OF AN EXPERT WHO DID NOT FOLLOW THE IMPAIRMENT GUIDELINES BY REVIEWING THE UPDATED X-RAYS OF CLAIMANT’S HIP (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined the board relied on the opinion of an expert, Petroski, who did not follow the impairment guidelines by consulting the updated x-rays of claimant’s hip:

Nowhere in his … report … does Petroski … indicate that he had obtained and considered and reviewed updated X rays, as required by Special Consideration No. 8 of the impairment guidelines … , in arriving at his conclusion that claimant had sustained a 0% SLU [schedule loss of use] of her left leg. … [T]he deposition testimony of Petroski also does not reflect that had he obtained and considered updated X rays in rendering his opinion about the appropriate SLU of claimant’s left leg. Although Petroski stated that no new history was given at the time of or during his examination of claimant, he acknowledged that he did not recall declining to review X rays that claimant brought with her to the examination for him to review. … Inasmuch as Petroski did not obtain and consider updated X rays consistent with the impairment guidelines, the Board’s determination to credit Petroski’s finding that claimant sustained a 0% SLU was not supported by substantial evidence and must be reversed … . Matter of Strack v Plattsburgh City Sch. Dist., 2022 NY Slip Op 00710, Third Dept 2-3-22

 

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ALTHOUGH THE DOCTOR WAS AT WORK AT THE HOSPITAL WHEN HE WAS SHOT DURING A MASS SHOOTING, HIS INJURY WAS NOT WORK-RELATED WITHIN THE MEANING OF THE WORKERS’ COMPENSATION LAW (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined the shooting of a doctor, Justin Timperio, although it occurred while Timperio was working at the hospital, was not a work-related injury within the meaning of the Workers’ Compensation Law. Timperio had brought a negligence lawsuit against the hospital in federal court and, in the context of the hospital’s motion for summary judgment, the federal court ruled the injuries did not arise from Timperio’s employment. The federal ruling did not colaterally estop the Workers’ Compensation Board from considering the claim in the first place (because it was not a final ruling), but the Board’s ultimate conclusion the injury was work-related was reversed by the Third Department:

The undisputed facts in the record demonstrate that the attack was perpetrated by an individual who was not employed by the hospital at the time of the attack (and had not worked there for over two years), was not and never was Timperio’s coworker, did not know Timperio and provided no reason for the attack prior to taking his own life. Nor did Timperio know the attacker, and there is no evidence that the attack was based upon an employment-related animus between the two individuals or that the attack had any nexus to Timperio’s employment or “performance of h[is] job duties” … . Such proof was sufficient to rebut the presumption articulated in Workers’ Compensation Law § 21 (1) and to establish that the assault on Timperio resulted exclusively from arbitrary, broad-sweeping and gravely maligned personal animosity and not from work-related differences with Timperio … . Matter of Timperio v Bronx-Lebanon Hosp., 2022 NY Slip Op 00711, Third Dept 2-3-22

 

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ALTHOUGH CLAIMANT DID NOT SUCCEED IN DEMONSTRATING HER CONDITION HAD WORSENED SUCH THAT SHE WAS ENTITLED TO INCREASED BENEFITS, HER COUNSEL’S FEES SHOULD NOT HAVE BEEN RESCINDED BY THE WORKERS’ COMPENSATION BOARD (THIRD DEPT). ​

he Third Department, reversing (modifying) the Workers’ Compensation Board, determined the rescission of the award of claimant’s counsel’s fee on the ground that the claim was unsuccessful was arbitrary and capricious. Claimant was unable to show her condition had worsened entitling her to increased benefits:

The initial application submitted by claimant’s counsel, which sets forth in detail the services rendered and the time spent in connection therewith, reflects that counsel represented claimant for a number of years, engaged in extensive correspondence with, among others, claimant, Petroski [claimant’s treating physician] and the carrier, reviewed various reports, attended hearings and successfully sought and obtained a reopening of this matter. Although counsel ultimately did not succeed in obtaining an increase in claimant’s loss of wage-earning capacity, the Board rescinded the fee award solely upon counsel’s unsuccessful efforts in this regard. Notwithstanding the Board’s broad discretion, this single-factor reasoning strikes us as arbitrary and capricious — particularly in view of the fact that claimant clearly received an economic benefit from counsel’s overall representation of her. Matter of Simmons v Glens Falls Hosp., 2022 NY Slip Op 00712, Third Dept 2-3-22

 

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THE LENGTH OF THE SENTENCE WAS NOT PRONOUNCED; RESENTENCING IS REQUIRED (THIRD DEPT).

The Third Department, reversing County County, determined the failure to pronounce the length of sentence required resentencing:

“CPL 380.20 requires that courts must pronounce sentence in every case where a conviction is entered. When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter remitted for resentencing in compliance with the statutory scheme” … . This statutory requirement is “unyielding” … . Here, although the term of imprisonment was recited — on the record and more than once — at the time of sentencing, County Court “did not pronounce the length of the term of [imprisonment] in open court” … . People v Belcher-Cumba, 2022 NY Slip Op 00691, Third Dept 2-3-22

 

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