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Entries by Bruce Freeman

Claimant Who Provided Computer-Training for Company’s Clients Properly Found to Be Employee of Company

In affirming the Unemployment Insurance Appeal Board’s determination claimant was an employee of a company (Eden Technologies) which provides computer-training personnel to clients, the Third Department wrote: The existence of an employer-employee relationship is a factual determination for the Board to resolve and its determination will not be disturbed if supported by substantial evidence … […]

Salesman Properly Found to Be an Employee

In affirming the Unemployment Insurance Appeal Board’s conclusion that claimant was an employee of Village Wine, the Third Department wrote: Claimant was a salesperson for Village Wine Imports Ltd., a wine importer and distributor.  Substantial evidence supports the Unemployment Insurance Appeal Board’s conclusion that claimant and those similarly situated were Village Wine’s employees and not […]

Hearing Officer’s Factual Misconduct Findings Cannot Be Ignored

In reversing the Unemployment Insurance Appeal Board’s grant of unemployment benefits to the claimant, the Third Department explained that the hearing officer’s factual findings of disqualifying misconduct cannot be ignored: While the Board was free to make “independent additional factual findings” and draw its own independent conclusion as to whether claimant’s behavior rose to the […]

Failure to Check Box on Cover Sheet Fatal to Designating Petitions

The Second Department affirmed Supreme Court’s determination that the designating petitions were properly rejected because the box on the cover sheet indicating that the required number of signatures were included was not checked: The Supreme Court properly denied the petition and dismissed the proceeding. Although the provisions of the Election Law “shall be liberally construed, […]

Conflicting Evidence About Whether Attorney Discharged for Cause (Thereby Prohibiting Recovery of Attorneys Fees) Required Hearing

The Second Department determined Supreme Court should not have ruled that an attorney was not discharged for cause, thereby entitling the attorney to attorneys fees, without a hearing, because there was conflicting evidence on the issue.  The court explained when an attorney who has been discharged is entitled to attorneys fees: A client has “an […]

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Evidence Supported Finding Certificate of Acknowledgment Attached to Deed Was Forged

In affirming the trial court’s determination a power of attorney (a certificate of acknowledgment) had been forged, thereby rendering a deed and five mortgages void, the Second Department wrote: “A certificate of acknowledgment attached to an instrument such as a deed raises a presumption of due execution” … . “[A] certificate of acknowledgment should not […]

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Authenticity of Document Not Demonstrated

In finding the existence of a contract had not been demonstrated, the Second Department explained the relevant evidentiary rules concerning the authenticity of a document submitted as proof of a contract: The general rule is that “[a] writing is ordinarily not relevant at trial unless evidence had been introduced to show that it was made, […]

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Question of Fact Whether General Releases Encompassed Environmental Damage from Leaking Fuel Tank

The Second Department determined that there was a question whether general releases contemplated damages related to environmental contamination and the action should not have been dismissed based on the releases. The action concerned gasoline which had leaked into the ground when defendant had leased the plaintiff’s property.  The court explained: Generally, a valid release completely […]

No Evidence Release Invalidated by Fraud or Duress

In upholding the validity of a release, the Second Department explained the relevant principles: ” A release is a contract, and its construction is governed by contract law’” … . “A release may be invalidated . . . for any of the traditional bases for setting aside written agreements’” … . However, “a signed release […]

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Petition Seeking Revocation of Building Permit Should Have Named the Director Who Had the Power to Revoke It

In affirming the grant of a building permit by the village board of appeals (BOA), the Second Department noted that only Director of Building, Code Enforcement and Land Use Administration had the power to revoke a building permit and therefore the Director should have been named in the Article 78 proceeding seeking revocation: …[I]n a […]

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