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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

 

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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

 

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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

 

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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

 

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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

 

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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

 

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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

 

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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

 

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INJURY CAUSED BY THE INHALATION OF ASPERGILLUS FUNGUS PROPERLY DEEMED A COMPENSABLE ACCIDENTAL INJURY ENTITLING CLAIMANT TO WORKERS’ COMPENSATION BENEFITS (THIRD DEPT).

The Third Department determined injury from the inhalation of aspergillus fungus was properly classified as an accidental injury entitling claimant to workers’ compensation benefits. Claimant was exposed to the fungus at work and suffers from allergic bronchopulmonary aspergillosis:

“To be compensable under the Workers’ Compensation Law, an accidental injury must arise both out of and in the course of employment” … . “Notably, this is a factual issue for the Board to resolve, and its determination will be upheld if supported by substantial evidence” … . “To establish an accidental work-related condition that developed over time, rather than from a sudden event, [a] claimant [is] required to demonstrate by competent medical evidence that his or her condition resulted from unusual environmental conditions or events assignable to something extraordinary” … . “[T]he concept of time-definiteness required of an accident can be thought of as applying to either the cause or the result, . . . and it is not decisive that a claimant is unable to pinpoint the exact date on which the incident occurred” … . Matter of Connolly v Covanta Energy Corp., 2019 NY Slip Op 04244, Third Dept 5-30-19

 

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ALLEGEDLY OPERATING A TREE-TRIMMING BUSINESS WITHOUT A LICENSE AND ENTRUSTING THE TREE-TRIMMING TRUCK TO PLAINTIFF’S CO-WORKER, IF NEGLIGENT, WERE NOT PROXIMATE CAUSES OF PLAINTIFF’S INJURY, THE DANGEROUS CONDITION ON THE TRUCK WHICH CAUSED PLAINTIFF’S INJURY WAS OPEN AND OBVIOUS, AND THE ACCIDENT WAS AN ‘EXTRAORDINARY OCCURRENCE,’ SO THERE WAS NO DUTY TO WARN (SECOND DEPT).

The Second Department determined the allegations that defendants were operating a tree-trimming business without a license and negligently entrusted the tree-trimming to one Perez (with whom plaintiff worked) were not proximate causes of the injury. Plaintiff caught a ring on his finger on a spike on a metal step on the truck and his finger was severed. The court noted that the danger was open and obvious and the accident was an ‘extraordinary occurrence’ so there was no duty to warn:

“Evidence of negligence is not enough by itself to establish liability. It must also be proved that the negligence was [a proximate] cause of the event which produced the harm”… . Thus, ” liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes'” … . Further, “proximate cause is no less essential an element of liability because the negligence charged is premised in part or in whole on a claim that a statute or ordinance . . . has been violated” … .

… [E]ven if the defendants were negligent in operating a tree-trimming business without a license or in lending or renting or entrusting the truck to Perez, such negligent acts only furnished the occasion for the plaintiff’s accident … , but were not a proximate cause of the accident. The defendants additionally demonstrated, prima facie, that they did not have any “special knowledge concerning a characteristic or condition peculiar to [Perez] which render[ed] [his] use of the [truck] unreasonably dangerous,” as is required to establish a negligent entrustment cause of action … . In opposition, the plaintiff failed to raise a triable issue of fact as to either negligence or negligent entrustment.

With respect to the cause of action alleging a violation of the defendants’ duty to warn, the defendants demonstrated … that any danger posed by the stairs was open and obvious and known to the plaintiff from his prior use of the truck … . Moreover, the plaintiff’s accident was an “extraordinary occurrence” … . “[T]here is no duty to warn against an extraordinary occurrence, which would not suggest itself to a reasonably careful and prudent person as one which should be guarded against”… . Deschamps v Timberwolf Tree & Tile Serv., 2019 NY Slip Op 04133, Second Dept 5-29-19

 

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