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ALLEGATION THAT PETITIONER FAILED TO REPORT AN INCIDENT OF SUSPECTED ABUSE BY ANOTHER EMPLOYEE OF THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES WAS SUBSTANTIATED DESPITE THE FAILURE TO SUBSTANTIATE THE ALLEGATION OF ABUSE BY THE OTHER EMPLOYEE (THIRD DEPT).

The Third Department determined the NYS Office for People with Developmental Disabilities’s (OPWDD’s) finding that petitioner’s failure to report an incident of suspected abuse by another employee was substantiated was supported by the evidence, despite the fact that allegation of abuse by the other employee was not substantiated:

The evidence at the hearing established that the service recipient reported to petitioner every time the other employee was “rude” to him over the course of six months, and petitioner did not act on this information. By petitioner’s own testimony, she saw the other employee shout at and belittle the service recipient, yet she reported nothing. Although petitioner disputed the characterizations of her statements at the meeting or that she thought the other employee was abusive, and offered many reasons as to why she did not act on her observations, respondent was free to make credibility determinations and credit contrary testimony, as “it is the responsibility of [respondent] to weigh the evidence and choose from among competing inferences therefrom” … .

We reject petitioner’s contention that obstruction of reporting cannot be substantiated against her since the underlying allegations of abuse against the other employee were not substantiated. Pursuant to statute, reportable incidents must be reported when they are “suspected,” rather than confirmed … . Matter of Taylor v Justice Ctr. for the Protection of People with Special Needs, 2020 NY Slip Op 02299, Third Dept 4-16-20

 

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ZONING BOARD’S DENIAL OF A VARIANCE WAS BASED PRIMARILY ON COMMUNITY OPPOSITION; THE DENIAL WAS PROPERLY ANNULLED BY SUPREME COURT (THIRD DEPT).

The Third Department determined the Board of Zoning Appeals improperly denied petitioner’s application for a variance based primarily on community opposition:

… [W]e cannot say that respondent’s determination to deny the area variance was rational. Respondent’s findings reflect that an environmental review of the proposed project concluded that there would be no significant impacts to, among other things, aesthetic or historic resources, the air, land, drainage or open space area. The findings also indicated that the City of Ithaca Planning Board, at best, gave an equivocal opinion about the proposed project. In this regard, the findings stated that the Planning Board was “unsure” whether the requested variance was consistent with the neighborhood and that it was ‘conflicted’ about petitioner’s appeal to respondent. Furthermore, petitioner’s proposed use of the property was a permitted use in the neighborhood. In addition, the record contains comments from individuals in the neighborhood — some of which supported and some of which disapproved of petitioner’s request. Yet, respondent’s consideration of the requisite factors (see Code of City of Ithaca § 325-40 [C] [3] [b] [1]-[5]) rested primarily on the opposing comments provided by those individuals living in the neighborhood … . Given that the views of the community in opposition to petitioner’s request by itself does not suffice to deny a variance, respondent’s determination lacks a rational basis … . Matter of 209 Hudson St., LLC v City of Ithaca Bd. of Zoning Appeals, 2020 NY Slip Op 02311, Third Dept 4-16-20

 

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CLAIMANT, WHO WAS ON THE JOB OUT-OF-TOWN, WAS INJURED IN A TRAFFIC ACCIDENT WHILE DRIVING FROM HIS HOTEL TO WHERE THE EMPLOYEES PICKED UP THEIR TRUCKS; CLAIMANT WAS ENTITLED TO WORKERS’ COMPENSATION BENEFITS UNDER THE TRAVELING EMPLOYEE EXCEPTION (THIRD DEPT).

The Third Department determined claimant was entitled to workers’ compensation benefits for injuries stemming from a traffic accident on his way to the site where the employees pickup up their bucket trucks for tree-trimming work. Claimant was working about five or six hours from his home and his employer was paying a portion of his hotel costs. The traffic accident occurred when claimant was driving from the hotel to where the trucks were kept:

Under the traveling employee exception, “injuries to a traveling employee may be compensable even if the employee at the time of the accident was not engaged in the duties of his [or her] employment,” provided that the employee is engaged in a reasonable activity … . We are not persuaded by the carrier’s contention that the Board erred in applying this exception. The Board observed that claimant was working in an area about a 5½-to 6-hour drive from home. Although the employer’s supervisor testified that claimant was not required to stay at the hotel, he agreed that it would not have been practical for claimant to commute from home. All of claimant’s coworkers, including the general foreman, stayed at the hotel. Under these circumstances, the Board determined that claimant’s status as an employee continued throughout his stay away from home. As claimant was engaged in a reasonable activity at the time of the accident, the record provides substantial evidence for the Board’s conclusion that claimant’s injuries arose out of and in the course of his employment … . Matter of Wright v Nelson Tree Serv., 2020 NY Slip Op 02312, Third Dept 4-20-20

 

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SERVICES PROVIDED TO A DISABLED MAN BY THE NYS OFFICE OF PEOPLE WITH DEVELOPMENTAL DISABILITIES COULD NOT BE CURTAILED BECAUSE OF A LACK OF FUNDS (THIRD DEPT).

The Third Department determined the NYS Office for People with Developmental Disabilities (OPWDD) was properly prohibited from curtailing services to and disabled man, M,D., because of a lack of funds:

Even if the catch-all of “any other relevant considerations advanced by the parties” (OPWDD Policy and Procedures, Topic No. CP-10 [Rev (Feb. 1995)], at 4, ¶ 10) includes a provider agency’s financial difficulties connected to the provision of services to an individual, the Hearing Officer noted that petitioner “may well have valid fiscal concerns,” but concluded that it would not be proper or in M.D.’s best interest to discharge him on the basis of a lack of funding. We acknowledge the conundrum raised by petitioner — that providers face a difficulty in providing excellent services to a population with special needs but with no avenue of relief to help them financially when those services are more expensive than expected or than the maximum allowed under the HCBS [Home Community Based Services] waiver program. While we applaud providers such as petitioner for striving to provide excellent services to an underserved population, and are cognizant of their frustration when they deem the funding available for such services to be inadequate, the remedy must be for the service providers to apply to or lobby the relevant agencies, the Legislature or the Governor to provide more funding; the answer cannot be that administrative agencies or courts should allow service providers to simply discharge individuals with developmental disabilities from their services whenever the providers deem them too expensive. Based on consideration of the relevant factors, substantial evidence supports the Commissioner’s determination that it was not reasonable to allow petitioner to discharge M.D. from its program. Matter of Community, Work, & Independence, Inc. v New York State Off. for People with Dev. Disabilities, 2020 NY Slip Op 02301, Third Dept 4-16-20

 

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NONSIGNATORY NOT BOUND BY ARBITRATION CLAUSE IN ENGAGEMENT LETTER (FIRST DEPT).

The First Department, noting that Supreme Court should have decided whether a nonsignatory was bound by an arbitration clause and deciding the issue in the interest of judicial economy, determined the nonsignatory was not bound:

Millennium Lab Holdings, Inc. and Millennium Lab Holdings II, LLC (Millennium Holdings, LLC), pursuant to an engagement letter, retained petitioner KPMG LLP to audit their financial statements for certain time periods. The engagement letter contained a clause requiring arbitration of “[a]ny dispute or claim arising out of or relating to this Engagement Letter or the services provided hereunder.” * * *

The parties agree that the only theory under which respondent, as a nonsignatory to the engagement letter containing the arbitration clause, can be required to arbitrate is on the equitable estoppel/direct benefits grounds. We find that petitioner has not met its “heavy burden” … under that theory.

The benefits that the investors whose interests respondent represents derived from the engagement letters between petitioner and nonparty Millennium were “merely indirect” … . Here … respondent pleaded solely common-law claims and did not invoke the engagement letter … . …

Millennium and petitioner did not contemplate that the investors represented by respondent would benefit from the engagement letter. …

… [T]here is no indication in the record that the investors whom respondent represents had actual knowledge of the engagement letters between petitioner and Millennium … . Matter of KPMG LLP v Kirschner, 2020 NY Slip Op 02286, First Dept 4-16-20

 

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OWNER OF A SOLAR ENERGY SYSTEM INSTALLED ON SCHOOL DISTRICT PROPERTY WAS ENTITLED TO THE STATUTORY EXEMPTION FROM REAL PROPERTY TAX DESPITE THE SCHOOL DISTRICT’S RESOLUTION OPTING OUT OF THE EXEMPTION; THE RESOLUTION WAS NEVER FILED AS REQUIRED BY THE REAL PROPERTY TAX LAW (THIRD DEPT).

The Third Department determined the petitioner, Laertes Solar, the owner of a solar energy system installed on school district property, was entitled to the statutory exemption from property tax on the system. The school district had adopted a resolution opting out of the exemption. But the resolution had never been filed with the NYS Department of Taxation and Finance (Department) or the NYS Energy and Research Development Authority (NYSEARDA) as required by the Real Property Tax Law (RPTL 487):

The … examination of “the language of the statute and the legislative intent underlying it” … leads us to agree with Supreme Court that the filing requirements of RPTL 487 (8) are mandatory and that the 2014 resolution was inapplicable to the system given the school district’s failure to meet those requirements during the relevant period (see RPTL 487 [8] [a]). Indeed, although we need not defer to the Department’s interpretation of RPTL 487 given that this case presents a question “of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent”… , it is notable that the Department has also taken the position that an opt-out resolution “must be filed” with both it and NYSERDA … . It follows that — even assuming that the system may be viewed as a distinct parcel of real property that may be taxed — Laertes was entitled to the RPTL 487 exemption for which it applied (see RPTL 487 [6]). Matter of Laertes Solar, LLC v Assessor of the Town of Harford, 2020 NY Slip Op 02302, Third Dept 4-16-20

 

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PLAINTIFF ENTITLED TO WORKERS’ COMPENSATION BENEFITS FOR INJURIES CAUSED BY A CO-EMPLOYEE’S INTENTIONAL TORT (ASSAULT) (FIRST DEPT).

The First Department determined plaintiff was entitled to workers’ compensation benefits for injuries from an intentional tort (assault) by an employee:

Plaintiff alleged that he was injured when, as he was attempting to sit down, defendant, his coworker, pulled his chair out from under him, causing him to fall to the ground. After plaintiff’s accident, the Workers’ Compensation Board determined that he was entitled to benefits for a work-related injury.

An employee’s rights to Workers’ Compensation benefits is the employee’s exclusive remedy against his employer or coemployee for injuries sustained during his employment (see Workers’ Compensation Law §§ 11, 29[6]) … ). The Workers’ Compensation Law, however, does not prevent an employee from recovering for intentional torts, such as an assault … .

Here, the motion court properly denied defendant’s motion for summary judgment dismissing the claim for assault. There are issues of fact as to whether defendant’s conduct placed plaintiff in “imminent apprehension of harmful contact” … . Donnelly v Christian. 2020 NY Slip Op 02279, First Dept 4-16-20

 

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THE APPEAL WAS RENDERED MOOT BY DEFENDANT’S TRANSFER OF THE PROPERTY AFTER SUPREME COURT RULED DEFENDANT HAD TITLE TO THE PROPERTY (THIRD DEPT).

The Third Department dismissed the appeal as moot. Property which had been validly foreclosed by defendant was transferred to a third party. Plaintiff had brought an action pursuant to Real Property Actions and Proceedings Law (RPAPL) Article 15 to determine its rights to a portion of the foreclosed property. Supreme Court granted defendant’s motion for summary judgment on its counterclaim for strict foreclosure (RPAPL 1352) and plaintiff appealed. The appeal was deemed moot and dismissed because defendant had a right to transfer the property after Supreme Court’s ruling:

[T]he jurisdiction of this Court extends only to live controversies and, as such, an appeal will be considered moot unless an adjudication of the merits will result in immediate and practical consequences to the parties” … . “Since the ability to transfer clear title is a natural incident of [property] ownership, it follows that when a complaint involving title to or the right to possess and enjoy real property has been dismissed on the merits and there is no outstanding notice of pendency or stay, the property owner has a right to transfer or otherwise dispose of the property unrestricted by the dismissed claim” … . “‘[A] purchaser’s actual knowledge of litigation and a pending appeal is not legally significant and[,] absent a validly recorded notice of pendency, an owner has the ability to transfer clear title'” … .

Here, Supreme Court canceled plaintiff’s notice of pendency and this Court denied his motion for a stay pending appeal. Therefore, defendants had the right to transfer the property when they did, and the purchaser obtained clear title despite its knowledge of the pending appeals. Govel v Trustco Bank, 2020 NY Slip Op 02306, Third Dept 4-16-20

 

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MOTION TO VOLUNTARILY DISCONTINUE THE FORECLOSURE ACTION WAS PROPERLY GRANTED WITHOUT PREJUDICE (THIRD DEPT).

he Third Department determined plaintiff’s motion to voluntarily discontinue the foreclosure action (CPLR 3217(b)) was properly granted without prejudice. The litigation was still in the early stages and, although defendant had interposed a counterclaim, defendant did not move for a default judgment within a year and thereby abandoned the counterclaim:

Although this action had been pending for approximately three years at the time of the motion, the litigation itself remained in its early stages. In addition, the record confirms that defendant never sought default nor moved to compel discovery. Furthermore, the parties had not yet participated in the mandatory settlement conference (see CPLR 3408). Indeed, determination of plaintiff’s motion was the first occasion where Supreme Court was called upon to intervene in this action. Although defendant alleged that she would sustain prejudice if her discovery went unanswered, Supreme Court correctly determined that there was no evidence of prejudice to defendant or other improper consequences flowing from the discontinuance, as the parties can engage in necessary discovery in a subsequent foreclosure action … . …

… [T]he interposition of a counterclaim in and of itself is not dispositive with respect to the discontinuance. The discontinuance must work a particular prejudice against a defendant. Here, defendant is not prejudiced, as she will be able to assert her counterclaim in a subsequent foreclosure action. Although defendant argues that “one’s home is an interest that is unquantifiable,” she will be able to continue to reside in the mortgaged premises pending another action and will have the same rights available to her as were in the discontinued action … . Green Tree Servicing LLC v Shiow Fei Ju, 2020 NY Slip Op 02307, Third Dept 4-16-20

 

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LABOR LAW 200, 241(6) AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT IN THIS WORKPLACE SLIP AND FALL CASE (FIRST DEPT).

The First Department determined plaintiff’s Labor law 200, 241(6)  and common law negligence causes action properly survived summary judgment in this workplace slip and fall case. Plaintiff fell going down a staircase and there was evidence that dust and perhaps paint was on the stairway associated with sanding and painting the walls. Although the stairway was not a passageway pursuant to the Industrial Code, there was a question of fact whether the stairway was a work area, even though no work was being done at the time of the fall. The defendant responsible for cleaning up, Magnetic, could be liable as a statutory agent:

… [P]laintiff’s identification of the cause of his slip and fall is not merely speculation. He testified that after he fell down the stairs, the steps he could see from the bottom of the staircase were dusty, his clothes were dusty, and his jacket was wet with paint. Further, there is testimony in the record that the walls of the stairway had been sanded and painted before plaintiff’s accident. * * *

Industrial Code § 23-1.7(e)(2) may serve as a predicate for plaintiff’s Labor Law § 241(6) claim, as it applies to slipping as well as tripping hazards … . …

Industrial Code § 23-1.7(d) is applicable to plaintiff’s accident. While a staircase used to provide access to a job site is not a passageway or other working surface within the meaning of the provision unless it is the sole means of access … , the provision is applicable if the staircase was a work area … . …

Insofar as Magnetic was delegated authority for the injury-producing work, retained subcontractors to perform the injury-producing work, and was responsible for clean-up at the site, it may be held liable under Labor Law § 241(6) as a statutory agent … . Ohadi v Magnetic Constr. Group Corp., 2020 NY Slip Op 02278, First Dept 4-16-20

 

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