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CLAIMANT’S BEHAVIOR, ALLEGED TO HAVE CONSTITUTED HARASSMENT AND INSUBORDINATION, DID NOT RISE TO THE LEVEL OF DISQUALIFYING MISCONDUCT, CLAIMANT WAS ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant’s behavior did not rise to the level of misconduct which would disqualify him from receiving unemployment insurance benefits. Claimant had objected to the way he was treated by his supervisor after claimant had been accused by a coworker of sending a harassing text message:

During the course of his employment as a design assistant for a clothing manufacturer, claimant sent a text message to a coworker. The coworker forwarded this message to the attention of claimant’s supervisor, complaining that it was harassment. On the following business day, the supervisor verbally reprimanded claimant for sending the message. Claimant disagreed with the discipline and was advised that he could come back to discuss the matter further if he wished. Later that day, claimant approached the supervisor and demanded to see the text message. Using a tone that the supervisor described as “angry,” “hostile” and “aggressive,” claimant disputed the supervisor’s position that the message was work-related and told her how he believed she should have handled the matter. Another employee overheard the discussion and described claimant’s voice as “disrespectful” and “increasing [in] volume.” The employer’s co-owner subsequently terminated claimant’s employment, concluding that he had violated the employer’s anti-harassment policy by sending the message and had been insubordinate to the supervisor. …

Although the employer’s witnesses testified that claimant sent a harassing message and spoke loudly and rudely to the supervisor, they also testified that he had not previously engaged in insubordinate behavior and had not received prior warnings … . The Board further noted that claimant did not make abusive statements, refuse to follow the supervisor’s directions or take other actions that had previously been held to constitute disqualifying misconduct … . Matter of Salcedo (E.H. Mfg. Inc.–Commissioner of Labor), 2019 NY Slip Op 03125, Third Dept 4-25-19

 

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CLAIMANT, A SUBWAY CLEANER, WAS ASSAULTED AFTER GETTING OFF THE SUBWAY ON HIS WAY HOME, CLAIMANT’S INJURIES WERE NOT COMPENSABLE (THIRD DEPT).

The Third Department determined that a third-party assault on claimant, a subway cleaner, after claimant had clocked out of work and traveled some distance on the subway to get home, was not compensable:

According to claimant, he finished his shift at 7:50 a.m., 10 minutes early, and clocked out, as he was permitted to do to compensate for coming in early. He left his assigned work train station and traveled on a train six stops on his way home, and was assaulted as he exited the train at approximately 7:55 a.m. Accordingly, at the time of the assault, claimant was not at his assigned train station, having clocked out of work, he was not on duty or performing any of the duties of his employment, and he was not on an errand for the employer … . Rather, claimant was commuting home, “using the subways like the general public” … . There is no evidence that claimant was required to use the trains to commute to work or that the employer benefited from the route that he used to travel home. …

Although injuries resulting from work-related assaults are compensable under certain circumstances, given that the incident occurred six train stops away from claimant’s assigned station, after he had completed his shift, and that he was not performing any services for the employer on his commute home, the record supports the Board’s determination that there was no nexus between the motivation for the assault and claimant’s employment … . Matter of Warner v New York City Tr. Auth., 2019 NY Slip Op 03122, Third Dept 4-25-19

 

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NEWSPAPER ASSEMBLY AND DELIVERY PERSON WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, who assembled and delivered newspapers for Herald Publishing Company, was an employee entitled to unemployment insurance benefits:

… [T]he record reflects that claimant was assigned specific routes within defined delivery areas …, assembled and bagged her papers at the leased premises utilizing plastic bags and rubber bands purchased from Herald Publishing … and was required to provide Herald Publishing with proof of a driver’s license and automobile liability insurance … . The record further reveals that claimant elected to purchase accident liability insurance from a carrier referenced in the distribution agreements entered into between claimant and Herald Publishing and that the corresponding premiums for such coverage were deducted from the invoices generated in connection with her delivery services … . Finally, consistent with the terms of the distributor agreements signed by claimant, she was required to “pick up all newspapers at the agreed pick-up point,” i.e., the leased premises, deliver the newspapers to subscribers “at or before the target delivery time[s]” — for which she would be paid on a weekly basis at a specified per-paper rate … — and was precluded from placing any inserts or additional materials in the newspapers that she was delivering … . Matter of Fecca (Herald Publ. Co.–Commissioner of Labor), 2019 NY Slip Op 03120, Third Dept 4-25-19

 

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A PERSON ADJUDICATED A YOUTHFUL OFFENDER CAN REFUSE TO ANSWER QUESTIONS ABOUT THE CHARGES, THE POLICE INVESTIGATION, THE PLEA AND THE ADJUDICATION, BUT CANNOT REFUSE TO ANSWER QUESTIONS ABOUT THE UNDERLYING FACTS (SECOND DEPT).

The Second Department determined defendant’s youthful offender adjudication allows defendant to refuse to answer questions about the charges, the police investigation, whether she pled guilty and whether a youthful offender adjudication was made, but defendant cannot refuse to answer questions about the facts underlying the adjudication. Here plaintiff sued defendant for personal injuries stemming from a fight with defendant, which was the basis for the youthful offender adjudication:

“[A] person adjudicated a youthful offender may refuse to answer questions regarding the charges and police investigation, whether he or she pleaded guilty, and whether a youthful offender adjudication was made” … . However, “not all of the information contained within the protected records is necessarily privileged” … . The statutory grant of confidentiality afforded to official records and the information contained therein does not extend to the facts underlying the incident which gave rise to the youthful offender adjudication (see CPL 720.35[2]). Thus, an eligible youth may not refuse, on grounds of confidentiality, to answer questions about the facts underlying the subject incident, even though those facts also form the basis of his or her youthful offender adjudication … . Arma v East Islip Union Free Sch. Dist., 2019 NY Slip Op 03019, Second Dept 4-24-19

 

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PLAINTIFF DID NOT SUBMIT EVIDENCE SUFFICIENT TO PIERCE THE CORPORATE VEIL AND HOLD A MEMBER OF DEFENDANT LLC PERSONALLY LIABLE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST THE LLC MEMBER PERSONALLY SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the motion for summary judgment in this construction accident case against a member of defendant LLC should not have been granted. The motion papers did not support piercing the corporate veil to reach the LLC member (Albaliya) personally:

As a limited liability company, Nadlan is a separate legal entity from its members (see Limited Liability Company Law § 609). “A member of a limited liability company cannot be held liable for the company’s obligations by virtue of his [or her] status as a member thereof'” … .

“However, a party may seek to hold a member of an LLC individually liable despite this statutory proscription by application of the doctrine of piercing the corporate veil” … . “Generally, . . . piercing the corporate veil requires a showing that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury” … . Singh v Nadlan, LLC, 2019 NY Slip Op 03100, Second Dept 4-24-19

 

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WHERE THERE IS CONFLICTING EXPERT OPINION EVIDENCE IN A MEDICAL MALPRACTICE ACTION, SUMMARY JUDGMENT IS NOT APPROPRIATE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant hospital’s motion for summary judgment in this medical malpractice action should not have been granted. Although the hospital made out a prima facie case with expert evidence, the plaintiff produced conflicting expert evidence:

On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff’s injuries  … . In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s complaint and bill of particulars … . If the defendant makes such a showing, the burden then shifts to the plaintiff to raise a triable issue of fact, but only as to those elements on which the defendant met its prima facie burden of proof … .

Here, [defendant] Brookhaven met its initial burden of demonstrating its entitlement to judgment as a matter of law dismissing the first cause of action by submitting an expert’s affirmation establishing that the diagnostic testing and consultations performed by its personnel were, within a reasonable medical certainty, appropriate and within prevailing standards of practice. In opposition, however, the plaintiff’s expert opined that the delay in performing and reviewing the second CT scan …, constituted a departure from prevailing standards of care. Where, as here, the parties submit conflicting medical expert opinions, summary judgment is not appropriate … . Sheppard v Brookhaven Mem. Hosp. Med. Ctr., 2019 NY Slip Op 03097, Second Dept 4-24-18

 

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INSPECTION WOULD NOT HAVE DISCOVERED THE LATENT DEFECT, A SNOW COVERED HOLE IN AN AREA NOT USED AS A WALKWAY, THE LANDOWNER WAS ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined the defendant landowner, JWB, did not have constructive notice of a snow covered hole in a grassy area which was not intended to be a public walkway. Because the area was not a public walkway, the landowner did not have a duty to keep the area clear of snow. Plaintiff, in this slip and fall case, was injured when he stepped into the hole:

” [A] defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected'” … . When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed … . To meet its initial burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s accident  … . However, “it is well established that the failure to make a diligent inspection constitutes negligence only if such inspection would have disclosed the defect” … .

JWB showed that it lacked constructive notice of the snow-covered hole in the ground. Even though no evidence of prior inspections of the subject area was offered, JWB demonstrated that the snow-covered hole was a latent defect that could not have been discovered upon a diligent inspection. The plaintiff’s own deposition testimony indicated that he first noticed the hole after the accident, and that he had traversed the subject area prior to the accident on a number of occasions during the course of his work and did not see a hole in the grassy median … . JWB further demonstrated, prima facie, that as a matter of law it owed no duty of care to keep the grassy median clear of snow, as the unpaved median was not intended to be a public walkway … . Reed v 64 JWB, LLC, 2019 NY Slip Op 03094, Second Dept 4-24-19

 

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WHERE THE INDICTMENT ALLEGES MORE THAN ONE WAY TO COMMIT THE CHARGED OFFENSE, THE PEOPLE NEED ONLY PROVE ONE (SECOND DEPT).

The Second Department noted that the People are not required to prove all of the ways the indictment alleged the crime was committed. The People need only prove one:

” Where an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together and charge the defendant with having committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others'”… . Therefore, where ” the indictment charge[s] more than the People [are] required to prove under the statute,'” they are not required to prove that the defendant committed each of the charged acts … . Accordingly, the fact that the indictment charged the defendant with committing burglary in the third degree by both unlawfully entering and remaining in the subject premises did not require the People to prove both sets of facts and, since they proceeded only on the theory of unlawful entry, the Supreme Court properly instructed the jury on that theory only. People v Bynum. 2019 NY Slip Op 03067, Second dept 4-24-19

 

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FAILURE TO INFORM INSURER OF A SETTLEMENT WITH THE INSURED PARTY IN THIS TRAFFIC ACCIDENT CASE JUSTIFIED GRANTING THE INSURER’S PETITION TO PERMANENTLY STAY ARBITRATION ON AN UNINSURED MOTORIST BENEFITS CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer’s (State Farm’s) petition to permanently stay arbitration of an uninsured motorist benefits claim should have been granted. The insureds (McLaurin and Corbin) were involved in an accident with two other cars, one of which was uninsured. The insureds settled with the other insured party (Martinez) without informing State Farm:

“Where an automobile insurance policy expressly requires the insurer’s prior consent to any settlement by the insured with a tortfeasor, failure of the insured to obtain such prior consent from the insurer constitutes a breach of a condition of the insurance contract and disqualifies the insured from availing himself [or herself] of the pertinent benefits of the policy” … . It is undisputed that McLaurin and Corbin entered into the settlement of the Martinez action without State Farm’s consent. “Once the existence of a release in settlement of the relevant tort claim is established, the burden is on the insured to establish, by virtue of an express limitation in the release, or of a necessary implication arising from the circumstances of its execution, that the release did not operate to prejudice the subrogation rights of the insurer” … . Here, McLaurin and Corbin failed to establish that the release issued in the Martinez action did not operate to prejudice the subrogation rights of State Farm … . Matter of State Farm Fire & Cas. Co. v McLaurin, 2019 NY Slip Op 03057, Second Dept 4-24-19

 

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MOTHER’S REFUSING TO CONSENT TO AN INDIVIDUALIZED EDUCATION PROGRAM AND HER DELAY IN SCHEDULING AN INDEPENDENT NEUROPSYCHOLOGICAL EVALUATION OF THE CHILD DID NOT CONSTITUTE EDUCATIONAL OR MEDICAL NEGLECT, FAMILY COURT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support educational neglect or medical neglect on the part of mother. The mother had refused to consent to the Individualized Education Program (IEP) and had delayed in scheduling an independent neuropsychological evaluation, neither amounted to neglect:

Family Court Act § 1012(f) governs parental neglect as related to furnishing a child with an adequate education. Here, the petitioner failed to prove, by a preponderance of the evidence, that the mother had not furnished the child with an adequate education under the statute. Neither the mother’s refusal to consent to the IEP for the 2016-2017 school year nor her failure to follow up with independent neuropsychological testing of the child constituted educational neglect under the circumstances presented.

Moreover, the petitioner failed to meet its burden of establishing medical neglect by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][A]; 1046[b]). While the evidence adduced at the fact-finding hearing demonstrated that the mother delayed in scheduling an independent neuropsychological evaluation of the child, and that the child missed some doses of Adderall while he was staying at his father’s home, the evidence did not rise to the level of establishing a failure to supply the child with adequate medical care or demonstrate a resulting impairment or imminent danger of impairment of the child’s physical, mental, or emotional condition  … . Matter of Jahzir Barbee M. (Racine B.), 2019 NY Slip Op 03050, Second Dept 4-24-19

 

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