You are here: / INDUSTRIAL CODE PROVISION WHICH REFERRED TO THE REQUIREMENT THAT A ‘DESIGNATED...

Search Results

/

INDUSTRIAL CODE PROVISION WHICH REFERRED TO THE REQUIREMENT THAT A ‘DESIGNATED PERSON’ OPERATE A POWER BUGGY IS SPECIFIC ENOUGH TO SUPPORT A LABOR LAW 241 (6) CLAIM, PLAINTIFF WAS STRUCK BY A POWER BUGGY OPERATED BY SOMEONE WHO WAS NOT A ‘DESIGNATED PERSON’ (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over a two-justice dissent, determined that an Industrial Code provision requiring that a power buggy be operated by a “designated person” was specific enough to support a Labor Law 241 (6) claim. Plaintiff was injured when he was struck in the back by a power buggy operated by someone who was horsing around and fell off the buggy before it struck plaintiff. The First Department searched the record and awarded summary judgment to the plaintiff:

We agree with the dissent that the regulation’s requirement that a “trained and competent operator . . . shall” operate the power buggy is general, as it lacks a specific requirement or standard of conduct. However, since the term “designated person” has been held to be specific, 12 NYCRR 23-9.9(a) is a proper predicate for a claim under Labor Law § 241(6).

The dissent’s concern that we are exposing a defendant to liability for injury caused by a power buggy operated by an unauthorized person is misplaced … . We note that the Court of Appeals has reiterated that, while the duty imposed by Labor Law § 241(6) may be “onerous[,] . . . it is one the Legislature quite reasonably deemed necessary by reason of the exceptional dangers inherent in connection with constructing or demolishing buildings or doing any excavating in connection therewith'” … , and that “[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” … .

Moreover, liability under Labor Law § 241(6) “is dependent on the application of a specific Industrial Code provision and a finding that the violation of the provision was a result of negligence” … .

The fact that the operating engineer was “horse playing” prior to operating the power buggy does not absolve defendant from liability under Labor Law § 241(6) … . ​Toussaint v Port Auth. of N.Y. & N.J., 2019 NY Slip Op 04302, First Dept 5-30-19

 

/ ,

PETITIONER DID NOT LIVE IN THE TOWN WHERE THE CHALLENGED CANDIDATE WAS RUNNING FOR OFFICE AND THEREFORE DID NOT HAVE STANDING TO CHALLENGE THE DESIGNATING PETITIONS, SUPREME COURT SHOULD NOT HAVE STRUCK THE RESPONDENT CANDIDATES’ ANSWER BASED UPON ALLEGED DEFECTS IN THE VERIFICATION AND DENIALS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the respondent candidates’ answer should not have been stricken based upon alleged defects in the verification and denials and petitioner did not have standing to contest the designating petition because she did not reside in the town where the single challenged candidate was running for office:

CPLR 3026 provides that “[p]leadings shall be liberally construed” and that “[d]efects shall be ignored if a substantial right of a party is not prejudiced.” Here, we conclude that petitioner did not establish substantial prejudice from any alleged defect in the verification, and thus candidate respondents’ answer should not have been stricken on that ground … . Moreover, “the CPLR does not provide for the striking of improper denials” … .

Furthermore, we note that candidate respondents properly raised standing as an affirmative defense in their April 24 answer, and we agree with candidate respondents that petitioner lacked standing to commence this proceeding pursuant to Election Law article 16. A condition precedent to commencing a proceeding as an objector pursuant to section 16-102 is compliance with the requirements of section 6-154, including that the objector be a “voter registered to vote for such public office” (§ 6-154 [2]).

Here, petitioner served her specifications of objections upon Vickman and upon the chairwoman and the secretary of the Party only, and not on any of the other candidate respondents listed on the authorization. Petitioner, however, lacked standing to challenge the designating petition of Vickman or to challenge the authorization as it pertained to Vickman, who was running for public office in the Town of Farmersville, because petitioner was not a resident of that town … . Matter of Augostini v Bernstein, 2019 NY Slip Op 04312, Fourth Dept 5-30-19

 

/

ALTHOUGH THE CANDIDATE’S RESIDENCE WAS BEING RENOVATED AND SHE TEMPORARILY LIVED ELSEWHERE SHE INTENDED TO RETURN TO THE RESIDENCE WHICH WAS INDICATED ON THE DESIGNATING PETITION, THE DESIGNATING PETITION SHOULD NOT HAVE BEEN INVALIDATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined respondent candidate’s designating petition should not have been invalidated on the ground that the she did not live at the address provided on the petition:

The record reflects that respondent was actively engaged in renovating the property at the address provided on the designating petitions, that respondent signed a temporary lease for a property also located within the relevant voting district, and that respondent intended on permanently residing at the property listed on the designating petitions once renovations were complete. Indeed, Supreme Court expressly noted that it did not “question . . . the integrity of [respondent’s] testimony in saying that [it was] her intention to live [at the address].” Notwithstanding the fact that the address listed on the designation petitions was not respondent’s current residence and thus did not comply with Election Law § 6-132, “[w]here, as here, there is no proof of any intention on the part of the candidate or of those who have solicited signatures on his [or her] behalf to mislead or confuse, and no evidence that the inaccuracy did or would lead or tend to lead to misidentification or confusion on the part of those invited to sign the petition or seeking to verify his [or her] qualification,” the petition should not be invalidated … . Matter of McNiel v Martin, 2019 NY Slip Op 04305, Fourth Dept 5-30-19

 

/ ,

ONE FRAUDULENT SIGNATURE DID NOT CONSTITUTE CLEAR AND CONVINCING EVIDENCE THE DESIGNATING PETITION WAS PERMEATED BY FRAUD (THIRD DEPT).

The Third Department determined that Supreme Court properly declined to invalidate the entire designating petition after finding one signature should be invalidated:

Petitioner presented a witness who testified unequivocally that the signature on the petition attributed to her was not her own, noting that her name appears the way it does when her husband signs it. The witness’s husband also testified confirming that he had signed both his own name and that of his wife, which they both agreed was a common practice for them throughout their 40-year marriage. The subscribing witness who gathered the foregoing signatures, however, testified, with notable detail, that he recalled both the husband and the wife signing for themselves. William Nicholas, who had accompanied the subscribing witness but did not formally witness any signatures, gave similar, strikingly-specific testimony. Supreme Court credited the testimony of the husband and the wife and, while reticent to find that the subscribing witness and Nicholas had perjured themselves, rejected their version of events and thereby invalidated the subject signature. We perceive no reason not to give deference to those findings … . However, one fraudulent signature is not clear and convincing evidence that a designating petition is permeated with fraud … . Further, there was no evidence that [the candidate] herself participated in the procurement or submission of any fraudulent signature … . Matter of Overbaugh v Benoit, 2019 NY Slip Op 04261, Third Dept 5-30-19

 

/

CLAIMANT WAS AN EMPLOYEE OF A CONSULTING COMPANY FOR AFTERSCHOOL PROGRAMS AND WAS THEREFORE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant was an employee of a consulting company for afterschool programs (LaRue) and was therefore entitled to unemployment insurance benefits:

Claimant was hired by LaRue to perform site observations, work on grant applications and conduct training workshops. For site observations, LaRue provided guidance and direction to claimant on what to look for and provided forms for claimant to use, some of which were developed by LaRue. Claimant would submit a report to LaRue following the site observation, which, at LaRue’s direction, had to contain resource references. LaRue would then make changes and edits to the report and submit a final report to the client. For training workshops, claimant was provided with all materials needed, including a power point presentation, props, workshop sign-in sheets and evaluations that were returned to LaRue afterward. For grant applications, LaRue provided claimant with prior applications for reference and set deadlines for the grants to be submitted to her for review. LaRue would then compile the final grant project application for the client by a specified deadline.

Claimant was paid for travel time in connection with site visits. LaRue billed the clients and intervened with any difficulty regarding site visits, and any complaints about claimant from a client would be directed to LaRue. In addition, LaRue routinely communicated with claimant regarding the status of the work. Matter of Loewecke (Larue–Commissioner of Labor), 2019 NY Slip Op 04255, Third Dept 5-30-19

 

/ ,

CLAIMANT’S CONVICTION FOR THE UNLAWFUL MANUFACTURE OF METHAMPHETAMINES DID NOT CONSTITUTE PROOF THAT CLAIMANT PERFORMED WORK OR MADE FALSE STATEMENTS REGARDING WORK SUCH THAT CLAIMANT SHOULD BE DISQUALIFIED FROM RECEIVING BENEFITS UPON RELEASE FROM PRISON (THIRD DEPT).

The Third Department determined that claimant’s conviction for the unlawful manufacture of methamphetamine did not constitute work within the meaning of Workers’ Compensation Law 114-a. Therefore, claimant did not perform any work or make any false statements regarding work which would disqualify him from receiving benefits upon release from prison:

Workers’ Compensation Law § 114-a (1) provides, in relevant part, that “[i]f for the purpose of obtaining compensation . . ., or for the purpose of influencing any determination regarding any such payment, a claimant knowingly makes a false statement or representation as to a material fact, such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation.” “In making such a determination, the Board is the sole arbiter of witness credibility and its determination as to whether a claimant violated Workers’ Compensation Law § 114-a will be upheld if supported by substantial evidence” … .

To be guilty of unlawful manufacture of methamphetamine in the third degree, a person must possess, at the same time and location, “[t]wo or more items of laboratory equipment and two or more precursors, chemical reagents or solvents in any combination,” with the intent to use such products to unlawfully manufacture, prepare, or produce methamphetamine, or knowing that another intends to do so (Penal Law § 220.73 [1]). The elements of the crime do not require that any work be performed. Substantial evidence supports the Board’s finding that the conviction alone is insufficient to establish any work activity by claimant or that he received any type of remuneration … . Matter of Stone v Saulsbury/Federal Signal, 2019 NY Slip Op 04250, Third Dept 5-30-19

 

/ , ,

DEFENDANT’S SUBCONTRACTOR USED A PAINT STRIPPING PRODUCT DURING AN OFFICE BUILDING RENOVATION, PLAINTIFF, AN EVENING OFFICE CLEANER, ALLEGED INJURY FROM BREATHING TOXIC FUMES, THERE IS EVIDENCE DEFENDANT HAD A DUTY TO WARN, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment in this toxic tort case was properly denied. Plaintiff, an evening cleaner in an office building, allege she was injured by inhaling toxic fumes from a paint stripping product used by a defendant’s subcontractor (Island Painting):

Defendant failed to establish prima facie that it did not have actual or constructive notice of the alleged dangerous condition of the premises in time to take corrective measures … . Defendant submitted no evidence with respect to notice. However, there is evidence in the record that defendant had superintendents on site who oversaw the subcontractors’ work and that defendant had a duty to notify and warn the building owner and its occupants of hazardous work undertaken on the project site so as to safeguard the building’s occupants against exposure to such hazards. Thus, issues of fact exist as to whether defendant knew of the scheduled use of the paint stripper and of the product’s toxicity and yet failed to warn the building owner and occupants to prevent harm to them. These issues of fact as to negligence also preclude summary judgment in defendant’s favor on its claim for contractual indemnification by Island Painting … . Arias v Recife Realty Co., N.V., 2019 NY Slip Op 04269, First Dept 5-30-19

 

/ , ,

ALTHOUGH CLAIMANT WAS REHIRED AFTER THE STRIKE, THE EMPLOYER HAD NOT ASSURED CLAIMANT OF THE RIGHT TO RETURN TO WORK DURING THE STRIKE, THEREFORE THE EMPLOYER WAS NOT ENTITLED TO THE SEVEN-WEEK SUSPENSION OF UNEMPLOYMENT BENEFITS DURING A STRIKE PERMITTED BY LABOR LAW 592 (THIRD DEPT).

The Third Department determined claimant was entitled to unemployment insurance benefits and were not subject to the seven-week suspension of benefits during a strike (Labor Law 592). The suspension of benefits is not applicable where, as here, the employer indicates it is hiring permanent replacements for the strikers:

Although it is unclear which of claimants’ positions were filled by the permanent replacement workers, the record unequivocally demonstrates that none of the claimants were notified in a certified writing that they would be able to return to their prior positions upon the conclusion of the strike. Moreover, although claimants ultimately were allowed to return to their prior positions following ratification of the parties’ … Memorandum of Agreement ending the strike, that agreement is of no consequence because the employer failed to provide any written certification during either the seven-week suspension period or at any time prior to the conclusion of the strike assuring claimants that they would retain the right to return to their prior positions upon conclusion of the strike … . Matter of D’Altorio (Clare Rose, Inc.–Commissioner of Labor), 2019 NY Slip Op 04249, Third Dept 5-30-19

 

/

NEWSPAPER DELIVERY CARRIERS ARE EMPLOYEES ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, a newspaper delivery carrier, was an employee of the The Hearst Corporation and was therefore entitled to unemployment insurance benefits:

… [T]he record demonstrates that Hearst established the delivery routes, determined the rate of pay for each route, provided carriers with customer lists containing the suggested order of delivery, handled customer complaints, imposed monetary penalties for unsatisfactory deliveries, prohibited carriers from inserting their own flyers into the newspapers without prior approval and required carriers to maintain a valid driver’s license and their own liability insurance. Notably, when new carriers were retained, Hearst arranged to have someone accompany them to show them their routes. In addition, Hearst imposed performance guidelines, set forth in written contracts like the ones it entered into with claimant, requiring carriers not to miss more than two deliveries per thousand. It also provided carriers, including claimant, with an orientation checklist setting forth additional information, such as delivery time deadlines, as well as the requirement that they provide a trained substitute if unable to cover a shift.

In view of the foregoing, the Board’s finding that Hearst exercised sufficient direction and control over claimant and similarly situated carriers so as to establish the existence of an employment relationship is supported by substantial evidence and is consistent with other newspaper delivery cases involving analogous facts … . Matter of Hennessy (Hearst Corp.–Commissioner of Labor), 2019 NY Slip Op 04245, Third Dept 5-30-19

 

/ ,

DEFENSE COUNSEL MISCALCULATED THE NUMBER OF DAYS OF DELAY ATTRIBUTABLE TO THE PEOPLE IN THE SPEEDY TRIAL MOTION, WHICH CONSTITUTED INEFFECTIVE ASSISTANCE, CONVICTION REVERSED, INDICTMENT DISMISSED (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined defense counsel’s failure to properly calculate the days of delay attributable to the People for the speedy trial motion constituted ineffective assistance:

Defendant was denied the effective assistance of counsel … with regard to his speedy trial motion. In his CPL 30.30(2) motion for defendant’s release, defense counsel mistakenly calculated 99 days of includable time, instead of the correct calculation of 103 days. The People conceded the 99 days, and the court released defendant. When defense counsel thereafter moved to dismiss the indictment under CPL 30.30(1), defense counsel and the prosecutor repeated that error in calculating the delay as 99 days, with the court ultimately finding only 181 days of includable time and denying the motion. Had counsel correctly calculated 103 days of chargeable time, the includable time would have totaled 185 days, rather than 181, and defendant’s speedy trial claim would have been meritorious. We have considered and rejected the People’s arguments concerning the 63-day period following defendant’s uncontested motion for release from custody, which the court found to be includable in its ultimate calculation on the dismissal motion. People v Coulibaly, 2019 NY Slip Op 04289, First Dept 5-30-19

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy