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AT THE SUPPRESSION HEARING THE PEOPLE DID NOT PROVE THE VALIDITY OF THE COMMUNICATIONS WITH THE ARRESTING OFFICERS ABOUT THE EXISTENCE OF AN ACTIVE WARRANT FOR DEFENDANT’S ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the conviction by guilty plea and dismissing the indictment, determined the People did not present sufficient proof at the suppression hearing to allow the suppression court to find there was probable cause for defendant’s arrest. After a traffic stop, defendant was arrested based upon information from the 911 Center and the Cortland Police Department about an active warrant for defendant’s arrest in Cortland. Cocaine seized in a search incident to arrest was the basis for the instant charges against the defendant. The defendant specifically challenged the validity of the communications with the arresting officers concerning the warrant. At the suppression hearing, the People did not present the warrant or any witness with first-hand knowledge about the warrant. The cocaine should have been suppressed:

Despite defendant’s explicit challenge to the reliability of the information justifying his arrest … , the People did not produce the arrest warrant itself prior to the conclusion of the hearing … . Instead, the People relied upon the officer’s testimony concerning his communications with an unidentified person or persons at the 911 Center and his assumptions about how the 911 Center confirmed the existence of an active and valid warrant. That testimony, however, rested “on a pyramid of hearsay, the information having been passed from” the arresting officer to unidentified persons at the 911 Center and the Cortland Police Department and back to the officer… . “In making an arrest, a police officer may rely upon information communicated to him by another police officer that an individual is the subject named in a warrant and should be taken into custody in the execution of the warrant . . . However, if the warrant turns out to be invalid or vacated . . . [,] or nonexistent . . . , any evidence seized as a result of the arrest will be suppressed notwithstanding the reasonableness of the arresting officer’s reliance upon the communication” … . Here, without producing the arrest warrant itself or reliable evidence that the warrant was active and valid, the People did not meet their burden of establishing that defendant’s arrest was based on probable cause … . People v Searight, 2018 NY Slip Op 04466, Fourth Dept 6-15-18

​CRIMINAL LAW (AT THE SUPPRESSION HEARING THE PEOPLE DID NOT PROVE THE VALIDITY OF THE COMMUNICATIONS WITH THE ARRESTING OFFICERS ABOUT THE EXISTENCE OF AN ACTIVE WARRANT FOR DEFENDANT’S ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, AT THE SUPPRESSION HEARING THE PEOPLE DID NOT PROVE THE VALIDITY OF THE COMMUNICATIONS WITH THE ARRESTING OFFICERS ABOUT THE EXISTENCE OF AN ACTIVE WARRANT FOR DEFENDANT’S ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SUPPRESS, MOTION TO (AT THE SUPPRESSION HEARING THE PEOPLE DID NOT PROVE THE VALIDITY OF THE COMMUNICATIONS WITH THE ARRESTING OFFICERS ABOUT THE EXISTENCE OF AN ACTIVE WARRANT FOR DEFENDANT’S ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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DEFENDANT’S EVIDENTIARY ARGUMENTS ARE VIEWED ON APPEAL THROUGH THE LENS OF THE JURY INSTRUCTIONS TO WHICH NO OBJECTIONS WERE MADE, NO NEED TO PRESENT SPECIFIC PROOF THE CAR DEALERSHIP WHICH WAS VANDALIZED WAS A PERSON (A CORPORATION IN THIS CONTEXT) WITHIN THE MEANING OF THE CRIMINAL MISCHIEF STATUTE, NO NEED TO PROVE THE PRECISE AMOUNT OF DAMAGE CAUSED BY THE DEFENDANT AS OPPOSED TO THE DAMAGE CAUSED BY ALL PARTICIPANTS, ORDERING RESTITUTION IN THE FULL AMOUNT OF THE DAMAGES, AS OPPOSED TO APPORTIONING THE DAMAGES AMONG ALL THE PARTICIPANTS, WAS NOT ERROR (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, affirming defendant’s criminal mischief conviction and the restitution order, looked at the evidentiary issues raised on appeal through the lens of the relevant jury instructions. Where there is no objection to the jury instructions, the proof required of the People is that which is laid out in the jury instructions. The indictment alleged that the defendant and several others vandalized cars at a dealership by scratching the cars with keys causing total damage in the amount of $40,000. On appeal defendant argued (1) the charged offense requires damage to property owned by a “person” and the People did not demonstrate that the car dealership was a “person” within the meaning of the statute, (2) the precise amount of damage attributable to the defendant was not proven, and (3) ordering defendant to pay restitution in the full amount of the damages was error. All of defendant’s arguments were rejected:

The court told the jury that defendant must have damaged the property of “another person” — not “another human being” — and it is common knowledge that personhood can and sometimes does attach to nonhuman entities like corporations or animals …. Indeed, the Court of Appeals has written that personhood is “not a question of biological or natural’ correspondence”…, and we can “presume[]” that the jurors had ” sufficient intelligence’ to make [the] elementary logical inferences presupposed by the language of [the court’s] charge” … . In short, defendant’s personhood argument effectively transforms an undefined but commonly understood term into an incorrectly defined term, and we decline to follow him down that path. …

… [T]he jury was instructed — without objection — that “[i]f it is proven . . . that the defendant acted in concert with others, he is thus criminally liable for their conduct. The extent or degree of the defendant’s participation in the crime does not matter” … . Perhaps this instruction was inconsistent with section 20.15 … but it still forecloses defendant’s claim of factual insufficiency as to value. …

… [T]he Court of Appeals previously upheld a restitution award that imposed the full value of the victim’s loss on a single perpetrator, instead of apportioning the loss among the defendant and his accomplices …— as defendant appears to seek here. People v Graves, 2018 NY Slip Op 04503, Fourth Dept 6-15-18

​CRIMINAL LAW (DEFENDANT’S EVIDENTIARY ARGUMENTS ARE VIEWED ON APPEAL THROUGH THE LENS OF THE JURY INSTRUCTIONS TO WHICH NO OBJECTIONS WERE MADE, NO NEED TO PRESENT SPECIFIC PROOF THE CAR DEALERSHIP WHICH WAS VANDALIZED WAS A PERSON (A CORPORATION IN THIS CONTEXT) WITHIN THE MEANING OF THE CRIMINAL MISCHIEF STATUTE, NO NEED TO PROVE THE PRECISE AMOUNT OF DAMAGE CAUSED BY THE DEFENDANT AS OPPOSED TO THE DAMAGE CAUSED BY ALL THE PARTICIPANTS, ORDERING RESTITUTION IN THE FULL AMOUNT OF THE DAMAGES, AS OPPOSED TO APPORTIONING THE DAMAGES AMONG ALL THE PARTICIPANTS, WAS NOT ERROR (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, (DEFENDANT’S EVIDENTIARY ARGUMENTS ARE VIEWED ON APPEAL THROUGH THE LENS OF THE JURY INSTRUCTIONS TO WHICH NO OBJECTIONS WERE MADE, NO NEED TO PRESENT SPECIFIC PROOF THE CAR DEALERSHIP WHICH WAS VANDALIZED WAS A PERSON (A CORPORATION IN THIS CONTEXT) WITHIN THE MEANING OF THE CRIMINAL MISCHIEF STATUTE, NO NEED TO PROVE THE PRECISE AMOUNT OF DAMAGE CAUSED BY THE DEFENDANT AS OPPOSED TO THE DAMAGE CAUSED BY ALL THE PARTICIPANTS, ORDERING RESTITUTION IN THE FULL AMOUNT OF THE DAMAGES, AS OPPOSED TO APPORTIONING THE DAMAGES AMONG ALL THE PARTICIPANTS, WAS NOT ERROR (FOURTH DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT’S EVIDENTIARY ARGUMENTS ARE VIEWED ON APPEAL THROUGH THE LENS OF THE JURY INSTRUCTIONS TO WHICH NO OBJECTIONS WERE MADE, NO NEED TO PRESENT SPECIFIC PROOF THE CAR DEALERSHIP WHICH WAS VANDALIZED WAS A PERSON (A CORPORATION IN THIS CONTEXT) WITHIN THE MEANING OF THE CRIMINAL MISCHIEF STATUTE, NO NEED TO PROVE THE PRECISE AMOUNT OF DAMAGE CAUSED BY THE DEFENDANT AS OPPOSED TO THE DAMAGE CAUSED BY ALL THE PARTICIPANTS, ORDERING RESTITUTION IN THE FULL AMOUNT OF THE DAMAGES, AS OPPOSED TO APPORTIONING THE DAMAGES AMONG ALL THE PARTICIPANTS, WAS NOT ERROR (FOURTH DEPT))/RESTITUTION (CRIMINAL LAW, (DEFENDANT’S EVIDENTIARY ARGUMENTS ARE VIEWED ON APPEAL THROUGH THE LENS OF THE JURY INSTRUCTIONS TO WHICH NO OBJECTIONS WERE MADE, NO NEED TO PRESENT SPECIFIC PROOF THE CAR DEALERSHIP WHICH WAS VANDALIZED WAS A PERSON (A CORPORATION IN THIS CONTEXT) WITHIN THE MEANING OF THE CRIMINAL MISCHIEF STATUTE, NO NEED TO PROVE THE PRECISE AMOUNT OF DAMAGE CAUSED BY THE DEFENDANT AS OPPOSED TO THE DAMAGE CAUSED BY ALL THE PARTICIPANTS, ORDERING RESTITUTION IN THE FULL AMOUNT OF THE DAMAGES, AS OPPOSED TO APPORTIONING THE DAMAGES AMONG ALL THE PARTICIPANTS, WAS NOT ERROR (FOURTH DEPT))

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DEFENDANT WAS NOT PRESENT IN THE COURTROOM WHEN HIS SENTENCE OF INCARCERATION WAS CHANGED, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT).

The Fourth Department, remitting the DWI case for resentencing, determined defendant’s sentence should not have been changed after defendant left the courtroom. The court further found that the five-year conditional discharge to monitor the ignition interlock device exceeded the maximum allowed term (three years):

“[D]efendants have a fundamental right to be present at sentencing’ in the absence of a waiver” of that right … , and here defendant did not waive his right to be present at sentencing. Thus, as the People correctly concede, the court erred in changing the sentence of incarceration after defendant left the courtroom inasmuch as a resentencing to correct an error in a sentence “must be done in the defendant’s presence” … . People v Perkins, 2018 NY Slip Op 04472, Fourth Dept 6-15-18

CRIMINAL LAW (SENTENCING, DEFENDANT WAS NOT PRESENT IN THE COURTROOM WHEN HIS SENTENCE OF INCARCERATION WAS CHANGED, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT))/SENTENCING (DEFENDANT WAS NOT PRESENT IN THE COURTROOM WHEN HIS SENTENCE OF INCARCERATION WAS CHANGED, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT))

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ACQUITTAL ON SOME COUNTS DID NOT RENDER PROOF OF OTHER COUNTS LEGALLY INSUFFICIENT, SERVICE ELEMENT OF CRIMINAL CONTEMPT PROVEN BY DEFENDANT’S RECEIPT OF THE ORDER IN COURT (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, rejected defendant’s arguments that (1) the People failed to prove the “service of the order” element of criminal contempt, and (2) his acquittal on some counts of the indictment rendered the evidence legally insufficient for the counts on which he was convicted.

… [D]efendant argues only that the convictions on counts two and five are legally insufficient due to the jury’s acquittals on the remaining counts. According to defendant, “when the conduct that was plainly rejected by the jury is removed from consideration, there is nothing left to support the physical menace conviction [count two] or the conviction for engaging in conduct that created a substantial risk of serious physical injury [count five].” Put differently, “the only conduct upon which defendant could be found guilty of the crimes for which he was convicted was smashing [his wife’s] car windows with a metal pipe while she was inside it. Because the jury was unwilling to find that defendant engaged in that conduct,” defendant continues, “the convictions must be reversed as unsupported by legally sufficient evidence.”

… [T]he mixed verdicts provide no basis to question the legal sufficiency of the convictions… . In fact, defendant’s argument is a classic “masked repugnancy” argument … , and it suffers from the same premise error that dooms all “masked repugnancy” arguments: it assumes that a jury’s verdict on one count can be weaponized to attack the legal or factual sufficiency of its verdict on another count. But that is not the law. To the contrary, the Court of Appeals has repeatedly held that “[f]actual inconsistency [in a verdict]— which can be attributed to mistake, confusion, compromise or mercy—does not provide a reviewing court with the power to overturn a verdict’ ” on legal sufficiency grounds … . * * *

… [D]efendant says that the People failed to prove the so-called “service element” of that crime, i.e., that the underlying protective order was “duly served” upon him or that he had “actual knowledge [thereof] because he . . . was present in court when [it] was issued” … . Because the service element is phrased disjunctively — i.e., it is satisfied if the defendant violates either a “duly served” protective order or a protective order of which he or she has “actual knowledge” because of his or her presence in court …) — the People need prove only one of the statutory alternatives beyond reasonable doubt … . People v Nichols, 2018 NY Slip Op 04502, Fourth Dept 6-15-18

​CRIMINAL LAW (ACQUITTAL ON SOME COUNTS DID NOT RENDER PROOF OF OTHER COUNTS LEGALLY INSUFFICIENT, SERVICE ELEMENT OF CRIMINAL CONTEMPT PROVEN BY DEFENDANT’S RECEIPT OF THE ORDER IN COURT (FOURTH DEPT))/VERDICTS (CRIMINAL LAW, ACQUITTAL ON SOME COUNTS DID NOT RENDER PROOF OF OTHER COUNTS LEGALLY INSUFFICIENT, SERVICE ELEMENT OF CRIMINAL CONTEMPT PROVEN BY DEFENDANT’S RECEIPT OF THE ORDER IN COURT (FOURTH DEPT))/INCONSISTENT VERDICTS  (CRIMINAL LAW, ACQUITTAL ON SOME COUNTS DID NOT RENDER PROOF OF OTHER COUNTS LEGALLY INSUFFICIENT, SERVICE ELEMENT OF CRIMINAL CONTEMPT PROVEN BY DEFENDANT’S RECEIPT OF THE ORDER IN COURT (FOURTH DEPT))/CONTEMPT, CRIMINAL (SERVICE ELEMENT OF CRIMINAL CONTEMPT PROVEN BY DEFENDANT’S RECEIPT OF THE ORDER IN COURT (FOURTH DEPT))

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CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined class certification under CPLR 901 for employees alleging defendant did not pay prevailing wages required by article I, § 17 of the New York Constitution and section 220 (3) of the Labor Law:

… [T]he court erred in determining that plaintiffs failed to establish the first and second CPLR 901 prerequisites, numerosity and commonality. Plaintiffs established the numerosity prerequisite by submitting evidence of approximately 350 class members at a minimum … . Plaintiffs established the commonality prerequisite because one common legal issue dominates the claims of all putative class members, i.e., whether similarly situated employees who worked on public projects were deprived of the prevailing wages to which they were entitled… . Contrary to defendant’s contention, the fact that the amount of damages will vary among the putative class members does not prevent this lawsuit from going forward as a class action … . Vandee v Suit-Kote Corp., 2018 NY Slip Op 04456, Fourth Dept 6-15-18

​CIVIL PROCEDURE (CLASS ACTIONS, CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT))/CPLR 901 (CLASS ACTIONS, CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT))/CLASS ACTION (CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT))/EMPLOYMENT LAW (CLASS ACTIONS, CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT))/LABOR LAW (CLASS ACTIONS, CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT))

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this dog bite case should have been granted:

It is well established that “an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities—albeit only when such proclivity results in the injury giving rise to the lawsuit” … . “A known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant[] liable for damages resulting from such an act” … . “In contrast, normal canine behavior’ such as barking and running around’ does not amount to vicious propensities” … .

The evidence establishes that, on the day of the incident, plaintiff sent a text message to a group of people that included defendant, as she had on previous occasions, to inform them that she would be at the dog park with her dog, who often played with Kane [defendant’s dog]. Immediately prior to the incident, plaintiff threw a ball for her dog, plaintiff’s dog retrieved the ball and, as he had frequently done in the past, Kane ran alongside plaintiff’s dog back toward plaintiff. Both dogs were running fast in plaintiff’s direction and, when it appeared that Kane was not going to veer off to the side, plaintiff turned away, whereupon Kane allegedly struck her leg. Despite evidence that Kane may have clumsily run around the dog park and similarly made contact with another visitor on a prior occasion, we conclude that, unlike situations in which a dog purposefully jumps onto or charges at a person … , “[Kane’s alleged] act of running into plaintiff in the course of . . . playfully [running alongside another dog at a dog park] merely consisted of normal canine behavior that does not amount to a vicious propensity” … . Long v Hess, 2018 NY Slip Op 04475, Fourth Dept 6-15-18

ANIMAL LAW (DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/DOG BITE (DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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A CLAIMANT MAY NOT RECEIVE BOTH A SCHEDULE LOSS OF USE AWARD AND A NONSCHEDULE PERMANENT PARTIAL DISABILITY AWARD FOR INJURIES FROM THE SAME ACCIDENT, BUT BOTH INJURY CLASSIFICATIONS CAN BE CONSIDERED IN DETERMINING LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT).

The Third Department determined claimant cannot receive both a schedule loss of use (SLU) award and a nonschedule permanent partial disability award for injuries stemming from the same accident, but both classifications of injury can be considered in determining loss of wage-earning capacity:

The amount of an SLU award is based upon the body member that was injured and the degree of impairment sustained; it is not allocable to any particular period of disability and is independent of any time that the claimant might lose from work . By contrast, compensation for a permanent partial disability that arises from a nonschedule injury, i.e., an injury to a body member not specifically enumerated in [Workers’ Compensation Law 15 (3)], is based on a factual determination of the effect that the disability has on the claimant’s future wage-earning capacity (see Workers’ Compensation Law § 15 [3] [w]).

A claimant who sustains both schedule and nonschedule injuries in the same accident may receive only one initial award … , because an SLU award and an award made for permanent partial disabilities are both intended to compensate a claimant for loss of wage-earning capacity sustained in a work-related accident and concurrent payment of an award for a schedule loss and an award for a nonschedule permanent partial disability for injuries arising out of the same work-related accident would amount to duplicative compensation … . Nevertheless, all impairments sustained by a claimant, whether resulting from schedule or nonschedule injuries, must be considered in determining lost wage-earning capacity attributable to a nonschedule permanent partial disability classification … . However, in the unique circumstance where no initial award is made based on a nonschedule permanent partial disability classification, a claimant is entitled to an SLU award … . Matter of Taher v Yiota Taxi, Inc., 2018 NY Slip Op 04414, Third Dept 6-14-18

​WORKERS’ COMPENSATION LAW (A CLAIMANT MAY NOT RECEIVE BOTH A SCHEDULE LOSS OF USE AWARD AND A NONSCHEDULE PERMANENT PARTIAL DISABILITY AWARD FOR INJURIES FROM THE SAME ACCIDENT, BUT BOTH INJURY CLASSIFICATIONS CAN BE CONSIDERED IN DETERMINING LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT))/SCHEDULE LOSS OF USE (WORKERS’ COMPENSATION LAW, A CLAIMANT MAY NOT RECEIVE BOTH A SCHEDULE LOSS OF USE AWARD AND A NONSCHEDULE PERMANENT PARTIAL DISABILITY AWARD FOR INJURIES FROM THE SAME ACCIDENT, BUT BOTH INJURY CLASSIFICATIONS CAN BE CONSIDERED IN DETERMINING LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT))/NONSCHEDULE PERMANENT PARTIAL DISABILITY (WORKERS’ COMPENSATION LAW, A CLAIMANT MAY NOT RECEIVE BOTH A SCHEDULE LOSS OF USE AWARD AND A NONSCHEDULE PERMANENT PARTIAL DISABILITY AWARD FOR INJURIES FROM THE SAME ACCIDENT, BUT BOTH INJURY CLASSIFICATIONS CAN BE CONSIDERED IN DETERMINING LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT))

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DIFFERENCE BETWEEN A SCHEDULE LOSS OF USE AND NONSCHEDULE PERMANENT PARTIAL DISABILITY EXPLAINED (THIRD DEPT).

The Third Department explained the difference between a schedule loss of use and a nonschedule permanent partial disability:

Workers’ Compensation Law § 15 (3) contains a schedule of awards for a permanent partial disability resulting from a loss of specific body parts or functions, such as vision and hearing (see Workers’ Compensation Law § 15 [3] [a]-[v]). Workers’ Compensation Law § 15 (3) (w) pertains to “all other cases of permanent partial disability” — i.e., those cases that are not amenable to a schedule award. Whether a schedule loss of use award or a nonschedulable permanent partial disability classification is appropriate constitutes a question of fact for the Board’s resolution, and its determination will be upheld if supported by substantial evidence … . A nonschedulable permanent partial disability classification, rather than a schedule loss of use award, “is indicated where there is a continuing condition of pain or continuing need for medical treatment or the medical condition remains unsettled” … . …

… [S]ubstantial evidence, in the form of the medical evidence that claimant suffers from RSD/CRPS, a chronic continuing pain of the face and the opinion that the ptosis of the eyebrow is worsening, supports the Board’s determination that an award of a nonschedulable permanent partial disability pursuant to Workers’ Compensation Law § 15 (3) (w), rather than a schedule loss of use award, is appropriate … . Matter of Tobin v Finger Lakes DDSO, 2018 NY Slip Op 04413, Third Dept 6-14-18

​WORKERS’ COMPENSATION LAW (DIFFERENCE BETWEEN A SCHEDULE LOSS OF USE AND NONSCHEDULE PERMANENT PARTIAL DISABILITY EXPLAINED (THIRD DEPT))/SCHEDULE LOSS OF USE (WORKERS’ COMPENSATION LAW, DIFFERENCE BETWEEN A SCHEDULE LOSS OF USE AND NONSCHEDULE PERMANENT PARTIAL DISABILITY EXPLAINED (THIRD DEPT))/NONSCHEDULE PERMANENT PARTIAL DISABILITY (WORKERS’ COMPENSATION LAW, DIFFERENCE BETWEEN A SCHEDULE LOSS OF USE AND NONSCHEDULE PERMANENT PARTIAL DISABILITY EXPLAINED (THIRD DEPT))

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RECENT AMENDMENT TO THE WORKERS’ COMPENSATION LAW APPLIES RETROACTIVELY, CLAIMANT WITH A PERMANENT PARTIAL DISABILITY WHO HAS INVOLUNTARILY WITHDRAWN FROM THE LABOR MARKET NEED NOT DEMONSTRATE A CONTINUED ATTACHMENT TO THE LABOR MARKET (THIRD DEPT).

The Third Department determined a recent amendment to the Workers’ Compensation Law applied retroactively and was properly applied to claimant’s case. The amendment provides that a worker who has involuntarily withdrawn from the labor market with a permanent partial disability need not demonstrate a continued attachment to the labor market:

… [T]he Board panel … issued an amended decision finding that claimant was not required to demonstrate an attachment to the labor market based upon a recent amendment to Workers’ Compensation Law § 15 (3) (w) … . That amendment states, in relevant part, that in cases such as claimant’s, “compensation . . . shall be payable during the continuance of such permanent partial disability, without the necessity for the claimant who is entitled to benefits at the time of classification to demonstrate ongoing attachment to the labor market” … ….

… [W]e find that the amendment is applicable here and relieves claimant from the need to demonstrate a continued attachment to the labor market. Although it is generally preferable to construe a statute in a prospective manner, a retroactive application is warranted if the statutory language expressly or by necessary implication so provides … . Matter of O’Donnell v Erie County, 2018 NY Slip Op 04410, Third Dept 6-14-18

​WORKERS’S COMPENSATION LAW (RECENT AMENDMENT TO THE WORKERS’ COMPENSATION LAW APPLIES RETROACTIVELY, CLAIMANT WITH A PERMANENT PARTIAL DISABILITY WHO HAS INVOLUNTARILY WITHDRAWN FROM THE LABOR MARKET NEED NOT DEMONSTRATE A CONTINUED ATTACHMENT TO THE LABOR MARKET (THIRD DEPT))

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EDUCATION LAW AND PUBLIC HEALTH LAW DID NOT PROHIBIT RELEASE OF THE IDENTITIES OF NONPARTY PARTICIPANTS IN A QUALITY ASSURANCE REVIEW INVOLVING PLAINTIFF DOCTOR (FIRST DEPT).

The First Department determined the Education Law and Public Health Law did not prohibit the release of the identities of persons who participated in a quality assurance review involving plaintiff doctor:

Plaintiffs’ claims in this suit are based on [Peconic Bay Medical Center’s] alleged misrepresentations about the existence of an investigation and the filing of an AAR [adverse action report], and the AAR did not report plaintiff for malpractice but for resigning during an ongoing investigation … . * * *

… [P]laintiffs’ request to compel defendants to un-redact the identities of nonparty participants in the quality assurance review process should be granted. Education Law § 6527(3) and Public Health Law § 2805-m protect documents “prepared by or at the behest of” a quality assurance committee … . However, they do not protect the mere identities of participants. Brook v Peconic Bay Med. Ctr., 2018 NY Slip Op 04432, First Dept 6-14-18

MEDICAL MALPRACTICE (EDUCATION LAW AND PUBLIC HEALTH LAW DID NOT PROHIBIT RELEASE OF THE IDENTITIES OF NONPARTY PARTICIPANTS IN A QUALITY ASSURANCE REVIEW INVOLVING PLAINTIFF DOCTOR (FIRST DEPT))/EDUCATION LAW (MEDICAL MALPRACTICE, EDUCATION LAW AND PUBLIC HEALTH LAW DID NOT PROHIBIT RELEASE OF THE IDENTITIES OF NONPARTY PARTICIPANTS IN A QUALITY ASSURANCE REVIEW INVOLVING PLAINTIFF DOCTOR (FIRST DEPT))/PUBLIC HEALTH LAW  (MEDICAL MALPRACTICE, EDUCATION LAW AND PUBLIC HEALTH LAW DID NOT PROHIBIT RELEASE OF THE IDENTITIES OF NONPARTY PARTICIPANTS IN A QUALITY ASSURANCE REVIEW INVOLVING PLAINTIFF DOCTOR (FIRST DEPT))/QUALITY ASSURANCE REVIEW (MEDICAL MALPRACTICE, EDUCATION LAW AND PUBLIC HEALTH LAW DID NOT PROHIBIT RELEASE OF THE IDENTITIES OF NONPARTY PARTICIPANTS IN A QUALITY ASSURANCE REVIEW INVOLVING PLAINTIFF DOCTOR (FIRST DEPT))/EVIDENCE (MEDICAL MALPRACTICE, EDUCATION LAW AND PUBLIC HEALTH LAW DID NOT PROHIBIT RELEASE OF THE IDENTITIES OF NONPARTY PARTICIPANTS IN A QUALITY ASSURANCE REVIEW INVOLVING PLAINTIFF DOCTOR (FIRST DEPT))

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