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CLAIMANT PURCHASED OFFICE FURNITURE AFTER HE WAS HIRED TO WORK FROM HOME AND WAS INJURED CARRYING THE FURNITURE TO HIS HOME OFFICE; THE WORKER’S COMPENSATION BOARD SHOULD NOT HAVE ANALYZED THE CASE UNDER A RIGID NEW STANDARD FOR EMPLOYEES WORKING FROM HOME; MATTER REMITTED FOR APPLICATION OF THE LONG-ESTABLISHED STANDARD (THIRD DEPT). ​

The Third Department, reversing the denial of benefits and remitting the matter to the Workers’ Compensation Board, determined claimant, who was hired to work from home, may be entitled to workers’ compensation benefits stemming from moving boxes during claimant’s lunch hour. Claimant was told by his employer the company would not pay for office furniture. Claimant purchased the office furniture and was injured when carrying the boxes upstairs to his home office. The court addressed how workers’ compensation principles should be applied to working from home:

… [T]he Board eschewed the foregoing principles in favor of a rigid new standard for employees working from home under which injuries are only compensable if occurring during regular work hours and while the employee is actively engaged in work duties as opposed to, for example, taking a short break or using the bathroom. This novel standard is unsupported by precedent, is inconsistent with “the remedial nature of the Workers’ Compensation Law” and cannot be countenanced … . A “regular pattern of work at home” renders the employee’s residence “a place of employment” as much as any traditional workplace maintained by the employer … . As a result, inasmuch as the Board determined that claimant was injured during his regular work shift … , the compensability of his injury should have been determined using the long-established standard.

We accordingly remit for the Board to apply that standard and determine whether claimant, when moving the boxes, was engaged in a “purely personal” activity that was not “reasonable and sufficiently work related under the circumstances” … . Matter of Capraro v Matrix Absence Mgt., 2020 NY Slip Op 06000, Third Dept 10-22-20

 

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ALTHOUGH THERE WAS EVIDENCE CLAIMANT MADE A FALSE STATEMENT ABOUT THE LEVEL OF HER INVOLVEMENT IN AN ONLINE BUSINESS WHILE SHE WAS RECEIVING WORKERS’ COMPENSATION BENEFITS, SHE WAS FORTHRIGHT ABOUT HER INVOLVEMENT WHEN QUESTIONED; PERMANENT DISQUALIFICATION FROM FUTURE BENEFITS WAS NOT WARRANTED (THIRD DEPT).

The Third Department, modifying the Workers’ Compensation Board, determined there was support in the record for the finding claimant omitted from her application for benefits that she was selling items online while receiving benefits, but the record did not support a permanent disqualification from future benefits. Claimant omitted the information because she had not turned a profit, but she was forthright about the online business when questioned about it:

“The fact that claimant had not yet realized a profit from [the activities] does not diminish [her] obligation to provide true and accurate information regarding [her] employment activities and such misrepresentations are clearly material to [her] claim” … . The evidence here revealed that claimant failed to accurately disclose her level of activity … . …

We note that claimant was readily forthcoming about her activities when questioned and declined to cash benefits checks after she resumed part-time work with the employer … . Based on all the circumstances presented, we do not find adequate support for the Board’s determination that claimant engaged in “an egregious pattern of conduct,” thus warranting permanent disqualification from future wage replacement benefits … . Matter of Conliffe v Darden Rest., 2020 NY Slip Op 06001, Third Dept 10-22-20

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FAMILY COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION TO DECLARE THE PARENTAGE OF A CHILD BORN TO A MARRIED SAME-SEX COUPLE BECAUSE THE CHILD WAS NOT BORN “OUT-OF-WEDLOCK;” RECENTLY ENACTED LEGISLATION WILL SOON ALLOW SUCH A PETITION IN FAMILY COURT AND THE PARTIES MAY NOW SEEK A DECLARATORY JUDGMENT ON THE ISSUE IN SUPREME COURT, WHICH HAS SUBJECT MATTER JURISDICTION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Devine, determined Family Court did not have subject matter jurisdiction over the petition to declare petitioners, a same-sex married couple, as the legal parents of the child conceived with donated sperm. Although the Family Court Act allows the court to determine “paternity” for a female parent, the court’s jurisdiction in that regard is limited to children born out-of-wedlock. The Third Department noted that legislation will soon allow a Family Court petition for a judgment of parentage and Supreme Court has jurisdiction to hear an application for a declaratory judgment on the issue:

… [T]he Legislature has only empowered Family Court to hear “proceedings to determine [parentage] and for the support of children born out-of-wedlock” … and further defined a child in Family Ct Act article 5 as one “born out of wedlock” … . Petitioners were married at all relevant times, and their child was not born out of wedlock. …

We note the recent enactment of Family Ct Act article 5-C, which will soon allow a petition for a judgment of parentage … . Moreover, if petitioners articulate how “an adjudication of the merits will result in immediate and practical consequences to” them … , they are presently free “to bring a declaratory judgment action in Supreme Court to determine the status of the child and the rights of all interested parties” … . Matter of Alison RR, 2020 NY Slip Op 06002, Third Dept 10-22-20

 

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THE RECORD DOES NOT DEMONSTRATE WHETHER THE DEFENDANT REVIEWED THE VERDICT SHEET WHICH INCLUDED UNAUTHORIZED ANNOTATIONS BY THE JUDGE; MATTER REMITTED FOR A RECONSTRUCTION HEARING (THIRD DEPT).

The Third Department, remitting the matter for a reconstruction hearing, determined the defendant’s consent to the judge’s annotations on the verdict sheet was required. Although the record indicated defense counsel was aware of the annotations and did not object, it was not clear from the record whether the defendant was shown the verdict sheet with the annotations:

“CPL 310.20 (2) allows the trial court, when submitting two or more counts charging offenses from the same article of law, to set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished. Absent a defendant’s consent, any other notations on the verdict sheet offend the letter of the law” … . “Although generally the lack of an objection to the annotated verdict sheet by defense counsel cannot be transmuted into consent, it is well settled that consent to the submission of an annotated verdict sheet may be implied where defense counsel fails to object to the verdict sheet after having an opportunity to review it” … . …

… [T]he notations as to counts 3 and 4 were not [authorized] … . Accordingly, defendant’s consent was required. To that end, at the conclusion of the court’s instructions to the jury, including an explanation of the annotations on the verdict sheet, the court explicitly asked the People and defense counsel if they had any additional requests or exceptions to the charge. Defense counsel answered in the negative. … [W]e cannot determine from the record whether defendant had an opportunity to review the verdict sheet because the charge conference was held off the record in County Court’s chambers. People v Chappell, 2020 NY Slip Op 05978, Third Dept 10-22-20

 

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NEW YORK DOES NOT RECOGNIZE A COMMON LAW CAUSE OF ACTION FOR SEXUAL HARASSMENT (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined New York does not recognize a cause of action for sexual harassment:

… New York does not recognize an independent, common-law cause of action to recover damages for sexual harassment … . Rather, allegations of sexual harassment—which typically arise in the context of an asserted violation of Title VII of the Civil Rights Law of 1964 (42 USC, ch 21, § 2000e et seq.), the New York State Human Rights Law (Executive Law § 296), and/or the New York City Human Rights Law (Administrative Code of City of NY § 8-107)—may form the basis of cognizable common-law tort theories such as, inter alia, assault and battery, negligent training and supervision, and intentional infliction of emotional distress … .

Accordingly, the Court of Claims should have granted that branch of the State’s cross motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the claim as was predicated upon a purported common-law cause of action to recover damages for sexual harassment. Budha T. v State of New York, 2020 NY Slip Op 05966, Second Dept 10-21-20

 

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THE EVIDENCE OF DEFENDANT’S DEFAULT WAS HEARSAY, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. The proof of defendant’s default was hearsay:

For evidence of default, the plaintiff relied upon the affidavit of a foreclosure manager employed by the plaintiff, wherein she attested, among other things, that the defendant defaulted under the loan in February 2011. By attesting that she was familiar with the record-making practices of her employer, that the records were made in the regular course of business, that it was the regular course of such business to make the record, and that the records were made “at or about the time of the event being recorded” … , the foreclosure manager satisfied the requirements for establishing a foundation for the admission of business records (see CPLR 4518[a] …). However, since the foreclosure manager failed to submit any of the business records upon which she contends she relied in making her affidavit, her averment as to the defendant’s purported default “‘constitute[s] inadmissible hearsay and lack[s] probative value'” … . As “it is the business record itself, not the foundational affidavit, [*2]that serves as proof of the matter asserted” … , and “a witness’s description of a document not admitted into evidence is hearsay” … , the assertions by the foreclosure manager as to the contents of the records were “inadmissible hearsay to the extent that the records she purport[ed] to describe were not submitted with her affidavit” … . Selene Fin., L.P. v Coleman, 2020 NY Slip Op 05962, Second Dept 10-21-20

 

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DEFENDANT PLED GUILTY TO POSSESSION OF A GRAVITY KNIFE WHICH WAS DE-CRIMINALIZED SHORTLY THEREAFTER; CONVICTION REVERSED IN THE INTEREST OF JUSTICE WITH THE PEOPLE’S CONSENT (SECOND DEPT).

The Second Department, in the interest of justice and as a matter of discretion, with the People’s consent, reversed defendant’s conviction of possession of a gravity knife, which was de-criminalized shortly after the conviction:

On November 29, 2018, during his plea allocution to attempted criminal possession of a weapon in the third degree (see Penal Law §§ 110.00, 265.02[1]), the defendant admitted that on or about January 9, 2018, he attempted to possess a gravity knife. On January 31, 2019, pursuant to his negotiated plea agreement, the defendant was sentenced to an indeterminate term of imprisonment of 1½ to 3 years.

The defendant contends that the judgment of conviction should be reversed because, inter alia, shortly after his conviction, Penal Law § 265.01(1) was amended to decriminalize the simple possession of a gravity knife. The People, in the exercise of their broad prosecutorial discretion, agree that the judgment should be vacated and the indictment dismissed. Even though the statute decriminalizing the simple possession of a gravity knife did not take effect until May 30, 2019 (see L 2019, ch 34, § 1), under the circumstances of this case, we vacate the judgment and dismiss the indictment, as a matter of discretion in the exercise of our interest of justice jurisdiction … . People v Merrill, 2020 NY Slip Op 05936, Second Dept 10-21-20

 

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DEFENDANT’S WAIVER OF APPEAL WAS INVALID; DEFENDANT’S ONE-YEAR SENTENCE, WHICH HAD ALREADY BEEN SERVED, WAS REDUCED BY ONE DAY IN PART TO ADDRESS THE IMMIGRATION CONSEQUENCES OF A ONE-YEAR SENTENCE (SECOND DEPT).

The Second Department, finding the waiver of appeal invalid, reduced defendant’s sentence by one day based in part on the immigration consequences of a one-year sentences:

The defendant’s purported waiver of his right to appeal was invalid because the Supreme Court’s colloquy mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal, and failed to inform the defendant that appellate review remained available for certain issues … . Further, the written waiver form signed by the defendant was insufficient to overcome the deficiencies in the court’s explanation of the waiver of the right to appeal, since it did not contain language clarifying that appellate review remained available for certain issues … . Thus, the purported waiver does not preclude this Court from reviewing the issue of whether the defendant’s sentence was excessive … .

Although the defendant has served his sentence, the question of whether the sentence imposed should be reduced is not academic, since the sentence may have potential immigration consequences … . People v Joseph, 2020 NY Slip Op 05928, Second Dept 10-21-20

 

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APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE A MODE OF PROCEEDINGS ERROR CONCERNING A JURY NOTE ON APPEAL; WRIT OF CORAM NOBIS GRANTED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, granting the writ of coram nobis and ordering a new trial, determined defendant’s appellate counsel was ineffective in failing to raise a mode of proceedings error on appeal. The was no evidence on the record that the trial judge notified counsel of a substantive note from the jury:

… [O]n the afternoon of the first day of jury deliberations, the Supreme Court received a jury note stating “11 of the 12 jurors find the defendant guilty on all counts. One juror after lengthy discussion still has a reasonable doubt on 9 counts. Juror feels we cannot change her/his mind no matter what we say or do. We need direction.” The record does not indicate that the court read the contents of the note to the parties, discussed its contents with counsel, or allowed trial counsel an opportunity to propose a response for the jury. * * *

The failure to provide counsel with meaningful notice of a substantive jury note requires reversal, regardless of whether the Supreme Court provided the jurors with a meaningful response to their note … . In short, in the absence of record evidence that the court complied with its core responsibilities under CPL § 310.30, a mode of proceedings error occurred requiring reversal … . People v Grant, 2020 NY Slip Op 05922, Second Dept 10-21-20

 

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THE MANSLAUGHTER AND CRIMINALLY NEGLIGENT HOMICIDE CONVICTIONS STEMMING FROM A FATAL TRAFFIC ACCIDENT WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (SECOND DEPT).

The Second Department, reversing the manslaughter and criminally negligence homicide convictions stemming from a traffic accident, determined the evidence was legally insufficient. There was evidence provided by another driver (Duke) that defendant was driving above the speed limit before the collision (which Duke did not witness), but nothing else. Two passengers and an unborn child died in the collision:

… [T]he evidence was legally insufficient to establish “the kind of seriously condemnatory behavior” in addition to speeding that is necessary to “transform ‘speeding’ into ‘dangerous speeding'” … . While Duke testified that the defendant’s vehicle “swerv[ed] around” her into the left lane to pass, she did not testify that the defendant’s vehicle came close to hitting her vehicle, that she had to engage in any evasive measures to avoid an accident, that there were any vehicles in the left lane when the defendant moved into it, or that the defendant swerved back in front of her after passing her … . Rather, Duke testified that after the defendant moved into the left lane, she waited for him to pass before getting into the left lane behind him. Moreover, Duke testified that the defendant was driving at a slower rate while moving into the left lane to pass her before speeding up after he moved into the left lane, and that the defendant obeyed a red traffic signal, pausing and not again accelerating until the traffic signal “turned green.” Duke also stated that there were “no more lights” between that traffic signal and the location of the accident, and thus, there is no indication that the defendant disregarded any red traffic signals. Further, the People presented no evidence that the defendant proceeded in disregard of a warning to slow down or of a dangerous driving condition … . Evidence was presented that Kent Avenue, which is partly situated in an industrial area, is not a busy road and generally has “very few cars” on it around the time when the accident occurred. Thus, the People failed to establish that the defendant engaged in “some additional affirmative act aside from driving faster than the posted speed limit,” as required to support a finding of recklessness or criminal negligence … . People v Acevedo, 2020 NY Slip Op 05909, Second Dept 10-21-20

 

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