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EMPLOYEE’S ESTATE ENTITLED TO THE AMOUNT OF THE SCHEDULE LOSS OF USE AWARD THAT ACCRUED UP UNTIL THE EMPLOYEE’S DEATH, NOT THE ENTIRE SLU AWARD (THIRD DEPT).

The Third Department determined that the employee’s estate was entitled to the portion of the schedule loss of use (SLU) award that had accrued up until the time of the employee’s death:

In our view, the 2009 statutory amendments did not alter the longstanding rule that, where an injured employee dies without leaving a surviving spouse, child under 18 years old or dependent, only that portion of the employee’s SLU award that had accrued at the time of the death is payable to the estate, along with reasonable funeral expenses… . Nor did, as claimant contends, the amendments alter the rate at which an SLU award accrues to an injured employee who is posthumously awarded SLU benefits. Absent clear statutory language or an indication of statutory intent, we cannot conclude that, in granting the option of a lump-sum payment, the Legislature intended for the employee’s estate to collect any portion of the posthumous SLU award that had not accrued prior to death. Accordingly, claimant was not entitled to the entirety of decedent’s SLU award. Matter of Estate of Youngjohn v Berry Plastics Corp., 2019 NY Slip Op 01290, Third Dept 2-21-19

 

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POLICE DOG RELEASED TO TRACK SUSPECTS WENT OUT OF THE HANDLER’S SIGHT AND BIT PLAINTIFF, 42 USC 1983, NEGLIGENCE AND BATTERY ACTIONS SURVIVED SUMMARY JUDGMENT, QUESTION OF FACT WHETHER POLICE OFFICER ENTITLED TO QUALIFIED IMMUNITY, CITY ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE PROFESSIONAL JUDGMENT RULE (THIRD DEPT).

The Third Department determined several causes of action property survived summary judgment in this case where a police officer (Ashe) released his K-9 partner (a trained police dog named Elza) which bit plaintiff as he was walking to his car. After Elza was released she ran out of Ashe’s sight. Ashe was attempting to use Elza to track suspects who had just robbed a gas station. The Third Department held, inter aliia, that the 42 USC 1983 action properly survived summary judgment, Ashe was not entitled to qualified immunity as a matter of law, the battery action properly survived summary judgment, and the city was entitled to summary judgment on the common-law negligence action based on the professional judgment rule:

There is at least a question of fact as to whether a reasonable police officer, aware that the dog could not differentiate a suspect from an innocent bystander, would allow the dog to search off leash and out of sight of the handler. Moreover, the record contains evidence from which a jury could find that the City “fail[ed] to train its employees in a relevant respect [that] evidences a deliberate indifference to the rights of its inhabitants[, which] can . . . be properly thought of as a city policy or custom that is actionable under [42 USC] § 1983” … . …

… [P]laintiffs’ expert … opined in his affidavit that Ashe failed to comply with standard police practice, including keeping the K-9 within visual range and providing audible warnings. Based on the foregoing, there are triable issues of fact that preclude summary judgment on the issue of Ashe’s entitlement to qualified immunity … . …

… [T]he City was entitled to dismissal of the common-law negligence claims based on the professional judgment rule. ” That rule ‘insulates a municipality from liability for its employees’ performance of their duties where the . . . conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions’ … . Relf v City of Troy, 2019 NY Slip Op 01287, Third Dept 2-21-19

 

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SNOWPLOW DRIVER WAS EXEMPT FROM STANDARD NEGLIGENCE AND DID NOT ACT RECKLESSLY IN THIS TRAFFIC ACCIDENT CASE, COURT OF CLAIMS REVERSED (THIRD DEPT).

The Third Department, reversing the Court of Claims, determined the snowplow driver was not liable in this traffic accident case. The highway-work exemption from standard negligence applied and the driver was not reckless:

There is little dispute that the Court of Claims erred in applying Vehicle and Traffic Law § 1104, which affords certain privileges to “[t]he driver of an authorized emergency vehicle, when involved in an emergency operation” … and has no applicability to a vehicle such as a snowplow put to its intended use . The pertinent statute is instead Vehicle and Traffic Law § 1103 (b), which “exempts from the rules of the road all vehicles . . . which are ‘actually engaged …  in work on a highway,’ and imposes on such vehicles a recklessness standard of care” … . Inasmuch as “the snowplow [here] was clearing the road during a snowstorm” when the accident occurred, both the snowplow and its driver are exempted “from the rules of the road” … . As such, liability will only attach if defendant and its employees behaved in a reckless manner, meaning a “conscious disregard of ‘a known or obvious risk that was so great as to make it highly probable that harm would follow'” … . Howell v State of New York, 2019 NY Slip Op 01281, Third Dept 2-21-19

 

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IN COURT STIPULATION OF SETTLEMENT WAS BINDING DESPITE AGREEMENT TO FINALIZE IT IN WRITING (THIRD DEPT

The Third Department, reversing Supreme Court, determined that the in-court stipulation was binding, notwithstanding the agreement to memorialize it in writing:

The threshold question presented is whether the parties reached a binding settlement. A stipulation of settlement placed on the record by counsel in open court is binding, all the more so when, as here, the parties contemporaneously confirm their acceptance on the record (see CPLR 2104 … ). “To be enforceable, an open court stipulation must contain all of the material terms and evince a clear mutual accord between the parties” … . As a matter of policy, stipulations of settlement are encouraged to promote judicial economy and to “provide litigants with predictability and assurance that courts will honor their prior agreements” … . The nuance here concerns the additional component of a more specific writing to follow the open court settlement, as interjected by the court without objection by counsel. Following the October 19, 2017 appearance, plaintiffs forwarded a draft written settlement to defendant … . While acknowledging that it was prepared to finalize the settlement agreement, defendant raised concerns about the scope of the indemnification language and a provision requiring defendant “to make tax-related representations.” The agreement was not signed and the subject motion ensued.

The parties acknowledge that they agreed to memorialize the record stipulation in a written agreement and, at the same time, agree that the record stipulation is binding. Although defendant has professed an intent to finalize the settlement once certain language issues as to the release and indemnification are resolved, it is significant that defendant does not contend that there are any necessary material terms not included in the oral stipulation… . As recounted above, it bears emphasis that the scope of both the required release and indemnification are in fact outlined in the oral stipulation. In our view, defendant’s language concerns present an implementation issue that the parties expressly accounted for in the record stipulation by having Supreme Court retain jurisdiction. Given the above, we conclude that the record stipulation constitutes a binding settlement, notwithstanding the parties’ dispute over finalizing the written agreement. It follows that the court erred in declining to “so order” the transcript, and, given defendant’s default in payment, by denying plaintiffs’ motion for judgment. Birches At Schoharie, L.P. v Schoharie Senior Gen. Partner LLC, 2019 NY Slip Op 01277, Third Dept 2-21-19

 

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COURT OF CLAIMS DID NOT HAVE SUBJECT MATTER JURISDICTION OVER A WORKERS’ COMPENSATION ISSUE, REVIEW OF AN AGENCY DETERMINATION MUST BE BROUGHT AS AN ARTICLE 78 PROCEEDING (THIRD DEPT).

The Third Department determined the Court of Claims did not have subject matter jurisdiction over review of an agency determination, which must be brought as an Article 78 action:

At issue is whether the Court of Claims has subject matter jurisdiction over the action. While claimant seeks significant financial relief, the core of its claim challenges defendant’s determination to classify the therapists as employees for purposes of calculating the premium due under the workers’ compensation policy. This is a threshold agency determination that the Court of Claims lacks subject matter jurisdiction to address … . … Such agency determinations are subject to review in the context of a CPLR article 78 proceeding commenced in Supreme Court, where a successful petitioner would be entitled to recover an overpayment as incidental relief (see CPLR 7806 … ). As such, claimant’s application should have been denied. Family & Educ. Consultants, LLC v New York State Ins. Fund, 2019 NY Slip Op 01273, Third Dept 2-21-19

 

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VILLAGE CODE PROVISION WHICH REQUIRES WRITTEN NOTICE OF A SIDEWALK DEFECT BEFORE MUNICIPAL LIABILITY CAN BE IMPOSED APPLIES TO A STAIRWAY FROM A PUBLIC ROAD TO A MUNICIPAL PARKING LOT, STAIRWAY SLIP AND FALL ACTION PROPERLY DISMISSED (CT APP).

The Court of Appeals, over an extensive two-judge dissent, determined that the village code provision which requires written notice of a sidewalk defect before the village can be held liable applies to a stairway connecting a public road to a municipal parking lot. Because plaintiff did not plead or prove written notice of a stairway defect, plaintiff’s slip and fall action was properly dismissed:

In Woodson v City of New York, this Court determined that a stairway may be classified as a sidewalk for purposes of a prior written notice statute if it “functionally fulfills the same purpose that a standard sidewalk would serve” (93 NY2d 936, 937-938 [1999] …). * * *

The courts below correctly applied Woodson in holding that the stairway at issue “functionally fulfills the same purpose” as a standard sidewalk, and therefore plaintiff was required to show that the Village received prior written notice of the allegedly defective condition … . Hinton v Village of Pulaski, 2019 NY Slip Op 01261, CtApp 2-21-19

 

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LOCAL LAW WHICH HAD BEEN DECLARED VOID COULD NOT BE THE BASIS FOR DETERMINING WHETHER PETITIONER’S USE OF THE LAND FOR MINING WAS A VALID PREEXISTING NONCONFORMING USE (THIRD DEPT).

The Third Department determined that a local law which had been declared void could not be the basis for determining whether the petitioner’s use of the property for mining was a valid preexisting nonconforming use. Once the local law had been declared void the prior law went back into effect. That law was not changed until 2015. So the 2015 law is the proper basis for determining whether the property is subject to a valid preexisting nonconforming use:

Central to petitioner’s contention is the general premise that the judicial nullification and voidance of an ordinance revives, by operation of law, the prior ordinance in effect before the null and void law was adopted … . Even more fundamental, a voided law can have no lasting effect … . To that end, “a void thing is no thing. It changes nothing and does nothing. It has no power to coerce or release. It has no effect whatever. In the eye of the law it is merely a blank, the same as if the types had not reached the paper”… . Therefore, inasmuch as an annulled law can have no lingering effect, petitioner is entitled to have its nonconforming use rights evaluated as of the effective date of the 2015 ordinance, unless, of course, that ordinance is also annulled prior to any such determination … . To hold otherwise would not only give the annulled Local Law No. 2 complete effect, i.e., render mining a nonconforming use in petitioner’s zoning district as of the date of the illegally-enacted law, but it would incentivize municipalities to rush to enact local laws with any number of infirmities, including SEQRA violations. Matter of Cobleskill Stone Prods., Inc. v Town of Schoharie, 2019 NY Slip Op 01272, Third Dept 2-21-19

 

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MOTION TO PURGE THE CONTEMPT ORDER REGARDING THE REMOVAL OF SOLID WASTE THAT HAD BEEN DUMPED ON A FIELD BY DEFENDANTS SHOULD HAVE BEEN GRANTED AND THE INCARCERATED DEFENDANT SHOULD BE RELEASED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendants’ motion to purge the contempt order should have been granted and one of the defendants, Cascino, who had been incarcerated for more than a year to force compliance with the underlying order, should be released. The court had ordered defendants to remove solid waste that had been dumped by then on a field. Much of the material had been removed but questions of fact remained whether all of it had been removed:

… [A] question of fact remains as to whether defendants completed the required remediation. This impasse brings us back to the fundamental problem that the disputed material looks like regular topsoil to the human eye. Despite ongoing removal efforts and Supreme Court having concluded multiple hearings throughout 2016 and 2017 as to the remediation performed, the difficulty of identifying the precise location of any remaining material has left the parties at a continuing impasse.

Given these circumstances, we conclude that to continue Cascino’s incarceration any further would serve no viable purpose and cannot be sustained. We are satisfied that the record establishes a significant effort on defendants’ part to purge the contempt, while recognizing that there remains some dispute as to whether all the disputed material has been removed. That said, until such time as a definitive showing has been made that the disputed material actually remains and precisely where, it would be improvident to continue Cascino’s incarceration. For these reasons, we conclude that the order must be reversed and defendants’ motion to purge the contempt granted. Town of Copake v 13 Lackawanna Props., LLC, 2019 NY Slip Op 01271, Third Dept 2-21-19

 

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MONITORING AND RECORDING PHONE CALLS MADE BY PRETRIAL DETAINEES WHO ARE NOTIFIED THE CALLS ARE MONITORED AND RECORDED DOES NOT VIOLATE THE FOURTH AMENDMENT, THE RECORDINGS MAY BE SHARED WITH LAW ENFORCEMENT AND PROSECUTORS WITHOUT A WARRANT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a two-judge dissent, determined recording phone conversation of pretrial detainees who are notified the calls are monitored and recorded does not violate the Fourth Amendment. Therefore such recordings can be shared with law enforcement and prosecutors:

… [W]here detainees are aware that their phone calls are being monitored and recorded, all reasonable expectation of privacy in the content of those phone calls is lost, “and there is no legitimate reason to think that the recordings, like any other evidence lawfully discovered, would not be admissible” … . Moreover, the signs posted near the telephones used by the inmates state that calls are monitored in “accordance with DOC policy” which, according to the DOC Operations Order, provides that while recordings are confidential and not available to the public, the District Attorney’s Office may request a copy of an inmate’s recorded calls which will be provided upon approval by DOC … . …

We therefore reject defendant’s argument that he retained a reasonable expectation of privacy once the calls were lawfully intercepted by DOC and hold that there were no additional Fourth Amendment protections that would prevent DOC from releasing the recording to the District Attorney’s Office absent a warrant. People v Diaz, 2019 NY Slip Op 01260, CtApp 2-19-19

 

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RELEASE SIGNED BY PLAINTIFF’S DECEDENT IN 1997 DID NOT ENTITLE CHEVRON TO SUMMARY JUDGMENT IN THIS ASBESTOS-MESOTHELIOMA CASE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined that defendant Chevron was not entitled to summary judgment in this asbestos-mesothelioma action. Plaintiff’s decedent [Mr. South] signed a release in 1997 and Chevron argued the release precluded the subsequent lawsuit:

Like Supreme Court, the Appellate Division concluded that the record did not demonstrate Chevron’s entitlement to summary judgment, because the release did not specifically mention mesothelioma, which then required the court to determine whether extrinsic evidence entitled Chevron to summary judgment. Pointing to the “meager consideration” [$1,750] and the lack of any diagnosis of mesothelioma as to Mr. South at the time he settled, the Appellate Division concluded that the record left open the question of whether the release pertained to an existing pulmonary condition and the fear of some future asbestos-related disease, or if it was intended to release all future asbestos-related diseases arising from Mr. South’s employment by Texaco. The parties agree that, at the time he executed the release, Mr. South suffered from a nonmalignant pulmonary disease but not from mesothelioma or cancer. …

The sole question presented to us on this appeal is whether Chevron has established that the release, coupled with the 1997 complaint, eliminates all material questions of fact and proves that the release bars the claims here as a matter of law. Answering that question requires us to consider the protections afforded to Mr. South by admiralty law and Section 5 of FELA [Federal Employers’ Liability Act] (45 USC § 55), which is incorporated into the Jones Act by 46 USC § 30104. …

… [W]e conclude that Chevron has not met its burden to demonstrate the absence of any material question of fact. The 1997 release does not unambiguously extinguish a future claim for mesothelioma  … . The release itself does not mention mesothelioma. It does say that Mr. South “is giving up the right to bring an action against the Released Parties, or any of them, in the future for any new or different diagnosis that may be made about Claimant’s condition as a result of exposure to any product[.]” But “claimant’s condition” may cabin the “new or different diagnosis” to ones that related to his nonmalignant asbestos-related pulmonary disease—the “condition” both parties agree was the only one he suffered at the time. Matter of New York City Asbestos Litig., 2019 NY Slip Op 01259, CtApp 2-19-19

 

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