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CLAIMANT, IN HIS APPLICATION FOR BOARD REVIEW, DID NOT SPECIFY WHEN THE OBJECTION SUBJECT TO BOARD REVIEW WAS MADE; THEREFORE THE BOARD PROPERLY DENIED REVIEW OF THE WORKERS’ COMPENSATION LAW JUDGE’S DECISION (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board properly rejected claimant’s application for review because the question “when” the objection subject to review was made was not answered:

When claimant filed his application for Board review in September 2018, both the relevant version of form RB-89 and the corresponding instructions then in effect required an appellant to “specify the objection or exception that was interposed to the [WCLJ’s] [Workers’ Compensation Law Judge’s] ruling, and when the objection or exception was interposed” (12 NYCRR 300.13 [b] [2] [ii] …) In response to question number 15, claimant identified his objection to the WCLJ’s ruling; however, the Board found that claimant’s response was incomplete because there were multiple hearings held in this case, and claimant’s response to question number 15 failed to indicate when the objection or exception was interposed. Inasmuch as the regulation and instructions both expressly required claimant to “specify . . . when the objection or exception was interposed” … , we cannot say that the Board abused its discretion in deeming claimant’s response to question number 15 to be incomplete … . Matter of Martinez v New York Produce, 2020 NY Slip Op 02519, Third Dept 4-30-20

Similar issue and result in Matter of Turcios v NBI Green, LLC, 2020 NY Slip Op 02518, Third Dept 4-30-20

 

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CLAIMANT’S INJURIES DID NOT ARISE OUT OF HIS EMPLOYMENT; CLAIMANT WAS STRUCK BY A CAR CROSSING THE STREET IN FRONT OF HIS PLACE OF EMPLOYMENT (THIRD DEPT).

The Third Department determined claimant’s injury did not arise out of his employment and he was not entitled to workers’ compensation benefits. Claimant was struck by a car in front of his place of employment:

Generally, “accidents that occur outside of work hours and in public areas away from the workplace are not compensable” … . Where an accident occurs near a claimant’s place of employment, as is the case here, “there develops a gray area where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation” … . …

At the time of the accident, claimant had arrived more than one hour early for his shift, had not yet reported to work and had not been approved for overtime. Further, although the public road and parking area used by claimant when he was injured was located in front of his workplace, they were open to and used by the public “and there was no showing that [they were] otherwise controlled by the employer, that workers were encouraged to use [them] or that [they] existed solely to provide access to the workplace” … . Thus, the risk of getting hit by a car while crossing the public road was unrelated to claimant’s employment and merely constituted a danger that ” existed to any passerby traveling along the street in that location” … . Moreover, notwithstanding claimant’s assertion that his choice to drive to work and his general parking location was known to his supervisor and reduced his commute so that he could be well rested for work, “[t]here is no evidence that the method or route [he] chose served any business purpose, or that the employer benefitted from that route” … . Matter of Johnson (New York City Tr. Auth.), 2020 NY Slip Op 02521, Third Dept 4-30-20

 

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THE MOTION COURT APPLIED THE WRONG CRITERIA WHEN RULING ON WHETHER THE DEFENDANT WAS PREJUDICED BY THE ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL; DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON DEFENSE COUNSEL’S ALLEGED FAILURE TO INFORM HIM OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING; ASSESSING DEFENDANT’S CHANCES AT TRIAL IS NOT THE PROPER ANALYSIS (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Renwick, over a dissent, determined the motion court applied the wrong criteria for assessing whether the defendant was prejudiced by the alleged ineffective assistance of counsel. Defendant moved to vacate his conviction, alleging defense counsel did not inform him of the deportation consequences of his guilty plea. The defendant’s chance of success at trial is irrelevant to whether defendant was entitled to a hearing. The First Department succinctly summarized the issues and the ruling as follows:

We find that the trial court improperly denied the motion without a hearing pursuant to CPL 440.30(4)(d) (i) & (ii). This section permits a court to reach the merits of a postjudgment motion without a hearing to dismiss frivolous claims … . In the case at bar, however, as the dissent concedes, there is independent support for defendant’s assertion that his plea was induced by erroneous advice given by his trial counsel, namely that his felony guilty plea would not subject defendant to mandatory deportation. Nevertheless, the dissent argues that summary denial of the CPL 440.10 motion is still proper, because defendant’s allegations did not raise a reasonable possibility that he was prejudiced by the misadvice. We disagree. Like the court below, the dissent applies the wrong prejudice standard, by focusing exclusively on defendant’s alleged lack of a viable defense and the likelihood he would have been convicted after trial, and disregards the particular circumstances of defendant’s desire to remain in the United States. The dissent’s reasoning is contradicted by the recent United States Supreme Court holding in Lee v United States (582 US __, 137 S Ct 1958, 1966 [2017]), which rejects any per se rule that prevents a defendant from establishing prejudice by an attorney’s erroneous advice simply because the defendant may not have a strong defense. Instead, as Lee v United States mandates, even if the chance of success at trial is low, the prejudice inquiry should focus on the defendant’s decision-making and whet her it was reasonable for one in defendant’s position, facing mandatory deportation, to choose to take a shot a trial. People v Lantigua, 2020 NY Slip Op 02557, First Dept 4-30-20

 

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THE INFORMATION SUFFICIENTLY ALLEGED THE ELEMENTS OF OFFICIAL MISCONDUCT; THE ‘OBTAIN A BENEFIT’ ELEMENT OF THE OFFENSE CAN BE INFERRED FROM THE OTHER ALLEGATIONS (CT APP).

The Court of Appeals determined the information charging defendant with official misconduct in violation of Penal Law section 195 was not jurisdictionally defective because the “obtain a benefit” element of the offense could be inferred from the allegations. The defendant, an alcohol and substance abuse treatment program aide at a prison, was charged with the unauthorized provision of prison documents concerning an incident at the prison to an inmate. The allegations were sufficient to infer that the defendant intended that providing the documents benefited the inmates involved:

With respect to the third element—that defendant must act with the intent to obtain a benefit or deprive another of a benefit—defendant’s intent may be reasonably inferred from her conduct and the surrounding circumstances … . …[T]he information, with defendant’s statement attached as a supporting deposition, sufficiently alleged that defendant disclosed information to an inmate that the inmate was not authorized to have, and that defendant knew that this disclosure was unauthorized. From those allegations, coupled with defendant’s admissions in her statement regarding inappropriate contact with and favors conducted for inmates involved in the unusual incident and the disclosure, one can reasonably infer that defendant committed the unauthorized disclosure with the intent to benefit herself or the inmates involved. Notably.”benefit” is defined as “any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary” (Penal Law § 10.00 [17]). In this case, the People were not required to specify in the information whether defendant intended to benefit herself or the inmates, because either or both would satisfy this element of the statute and both theories are supported by defendant’s statement to police … . People v Middleton, 2020 NY Slip Op 02530, CtApp 4-30-20

 

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THE OMISSION OF THE TIME AND PLACE OF THE OFFENSE FROM THE SUPERIOR COURT INFORMATION WAS NOT A JURISDICTIONAL DEFECT AND ANY ERRORS WERE FORFEITED BY THE GUILTY PLEA (THIRD DEPT).

The Third Department determined that the failure to include the time and place of the crime in the superior court information (SCI) was not a jurisdictional defect and any errors were forfeited by the guilty plea:

… [D]efendant contends that the waiver of indictment and SCI omitted essential information required by CPL 195.20, rendering the waiver of indictment invalid and the SCI jurisdictionally defective. In support of this claim, defendant points to the fact that neither the waiver of indictment nor the SCI sets forth the approximate time of the crime, and the waiver of indictment also failed to set forth the place where it occurred. While we acknowledge these deficiencies, we do not find that they mandate dismissal of the SCI and reversal of the judgment of conviction given our recent decisions in People v Shindler (179 AD3d 1306, 1307 [2020]) and People v Elric YY., (179 AD3d 1304, 1305 [2020]), and the Court of Appeals’ decision in People v Lang (___ NY3d ___, ___, 2019 NY Slip Op 08545, *7-9 [2019]). As is relevant here, the Court of Appeals found in Lang that the date, approximate time and place of the crime in the waiver of indictment constituted non-elemental factual information, the omission of which did not amount to a jurisdictional defect (see People v Lang, 2020 NY Slip Op 08545 at *8-9). In view of this decision, we abandoned the standard enunciated in People v Busch-Scardino (166 AD3d 1314 [2018]) and concluded in Shindler and Elric YY. that the omission of the approximate time and place was not a jurisdictional defect rendering the waiver of indictment invalid.

Here, defendant was provided adequate notice of the crime charged based upon a reading of the waiver of indictment and the SCI together … , as well as the felony complaint, which set forth in detail the nature of the crime and the approximate time and place where it occurred … . Significantly, defendant did not raise any objection to the sufficiency of the waiver of indictment or the SCI before County Court, or demand a bill of particulars. Therefore, the subject omissions are nonjurisdictional defects that were forfeited by defendant’s guilty plea … .People v Morgan-Smith, 2020 NY Slip Op 02501, Third Dept 4-30-20

 

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THE PARTIES DID NOT AGREE THAT THE INITIAL ‘PARTIAL’ ARBITRATION AWARD WAS A FINAL AWARD; THEREFORE THE ARBITRATORS HAD THE AUTHORITY TO REVISIT THE MATTER AND ISSUE A VALID FINAL AWARD (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined the arbitrators had the power to revisit a “partial final award” and issue a valid final award. The Appellate Division had held the doctrine of functus officio prohibited the arbitrators from revisiting the initial award:

… [T]he Appellate Division held, that the arbitration panel exceeded its authority because it violated the common law doctrine of functus officio … . Functus officio, Latin for “having performed [one’s] office” … , has operated historically as a restriction on the authority of arbitrators, precluding them from taking additional actions after issuing a final award. As this Court stated well over one hundred years ago, “[a]s soon as [the arbitrators] have made and delivered their award, they become functus officio, and their power is at an end. After having once fully exercised their judgment upon the facts submitted to them and reached a conclusion which they have incorporated into their award, they are not at liberty at another and subsequent time to exercise a fresh judgment on the case and alter their award” … . * * *

This Court has not had occasion to determine whether or under what circumstances parties may agree to the issuance of a final award that disposes of some, but not all, of the issues submitted to the arbitrators; nor must we resolve that question in this case. Even assuming that parties to an arbitration may agree to the issuance of a partial determination that constitutes a final award, the parties here, as the arbitration panel below concluded, did not reach any such agreement. American Intl. Specialty Lines Ins. Co. v Corporation, 2020 NY Slip Op 02529, Second Dept 4-30-20

 

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CPL 300.40 (3) (b), WHICH REQUIRES DISMISSAL OF INCLUSORY CONCURRENT COUNTS, APPLIES ONLY TO VERDICTS AFTER TRIAL, NOT TO GUILTY PLEAS (THIRD DEPT).

The Third Department determined that Criminal Procedure Law 300.40 (3) (b), which requires dismissal of inclusory concurrent counts, applies only to verdicts after trial and not to cases resolved by guilty plea. Defendant confessed to killing a mother and daughter and he was charged with two counts of first degree murder and two counts of second degree murder. He pled guilty to the two counts of second degree murder. On appeal defendant argued the second degree murder counts should have been dismissed as inclusory concurrent counts of first degree murder:

CPL 300.40 (3) (b) provides, with respect to inclusory concurrent counts, that “[a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted” … . Even assuming, without deciding, that counts 3 and 4 of the indictment indeed are inclusory concurrent counts of counts 1 and 2, defendant’s reliance upon both the statute and the cases applying it … is misplaced, as CPL article 300 “‘deals only with trials, and has no application to convictions obtained on a plea of guilty'” … . Having elected to plead guilty to the entire indictment, as was defendant’s right (see CPL 220.10 [2]), he cannot now avail himself of the provisions of CPL 300.40 (3) (b) … . People v Redden, 2020 NY Slip Op 02502, Third Dept 4-30-20

 

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EXTRINSIC COLLATERAL DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN ADMITTED TO IMPEACH DEFENDANT DOCTOR’S CREDIBILITY IN THIS MEDICAL MALPRACTICE TRIAL; DEFENDANT’S MOTION TO SET ASIDE THE $400,000 VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice action, determined the defendant doctor’s motion to set aside the plaintiff’s $400,000 verdict should have been granted. The trial court should not have allowed extrinsic documentary evidence on collateral matters to impeach defendant’s credibility:

“A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise”  … . “In considering such a motion, [t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision'” … .

Here, the Supreme Court should not have permitted the plaintiff to introduce extrinsic documentary evidence concerning collateral matters solely for the purpose of impeaching the defendant’s credibility … . In view of the importance of the defendant’s testimony and the emphasis given to the improperly admitted credibility evidence by the plaintiff’s counsel during summation, the errors were sufficiently prejudicial to warrant a new trial … . Rudle v Shifrin, 2020 NY Slip Op 02487, Second Dept 4-29-20

 

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DEFECT WHICH CAUSED PLAINTIFF TO SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined the defect which caused plaintiff’s slip and fall was trivial as a matter of law:

The plaintiff testified that he stopped by one of the benches and when he started to walk away, “[his] foot got caught under the bench leg.” The plaintiff further testified that he returned to the site of the accident later that day and observed that the bench leg, which had allegedly caught his foot, was bent and protruding outward approximately two inches into the pedestrian walkway. The plaintiff, who had frequented that mall more than 100 times and had previously been to the area of the mall where the accident had occurred, had never noticed the bent bench leg. No one, including the plaintiff, had ever complained about the bent bench leg to the defendants. Nor had any prior accidents involving the bent bench leg been reported to the defendants. The plaintiff’s engineering expert opined that the defendants were negligent in permitting the bench leg to protrude into the pedestrian walkway so as to create a tripping hazard. * * *

“[A] property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes or trip” … . Photographs which fairly and accurately represent the accident site may be used to establish whether a defect is trivial and not actionable … .

Here, the evidence that the defendants submitted in support of their motion, including several photographs of the alleged defect, established prima facie that, as a matter of law, under all the circumstances, including the lighting conditions at the time of the accident, the plaintiff’s unobstructed view of the alleged defect, and the condition and location of the bench leg, the alleged defect was trivial and, therefore, not actionable … . Reich v Alexander’s, Inc., 2020 NY Slip Op 02486, Second Dept 4-29-20

 

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PLAINTIFF DID NOT HAVE AN EXCUSE FOR FAILING TO MOVE FOR A DEFAULT JUDGMENT FOR FOUR YEARS; THE ACTION WAS DISMISSED AS ABANDONED WITH NO NEED TO CONSIDER WHETHER THE ACTION WAS MERITORIOUS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s failure to timely seek a default judgment in this foreclosure action required the action to be dismissed as abandoned. Plaintiff’s failure to offer an adequate excuse mandated dismissal without considering whether plaintiff had a meritorious action:

… [T]he Supreme Court should have granted that branch of the defendant’s cross motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her as abandoned. CPLR 3215(c) provides, inter alia, that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, . . . unless sufficient cause is shown why the complaint should not be dismissed.” “To establish sufficient cause,’ the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action” … .

Here, the plaintiff provided no explanation for the almost four-year delay after the defendant defaulted in 2011 before it filed a request for judicial intervention in February 2015 requesting a residential mortgage foreclosure settlement conference. Under such circumstances, the Supreme Court should have found that the plaintiff had not demonstrated a reasonable excuse for its delay in seeking a default judgment … . Since the plaintiff failed to proffer a reasonable excuse, this Court need not consider whether the plaintiff demonstrated a potentially meritorious action … . Flushing Bank v Sabi, 2020 NY Slip Op 02461, Second Dept 4-29-20

 

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