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ALTHOUGH DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION AT THE ORIGINAL PLEA AND SENTENCING, HE WAS SO INFORMED AT RESENTENCING; DEFENDANT HAD AN OPPORTUNITY AT RESENTENCING TO MOVE TO WITHDRAW HIS PLEA AND THE SENTENCING JUDGE WAS NOT OBLIGATED TO INFORM DEFENDANT, SUA SPONTE, OF THE AVAILABILITY OF A MOTION TO WITHDRAW; DEFENDANT’S MOTION TO SET ASIDE HIS RESENTENCE PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant’s motion to set aside his resentence was properly denied. Defendant was not informed of the period of post-release supervision (PRS) at the time of the original plea and the original sentence, but was so informed at the resentence: In 2002, defendant pleaded guilty without being informed of the mandatory postrelease […]

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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT ADDRESS THE CLAIM ASSOCIATED WITH TOOTH NUMBER 28 IN THIS DENTAL MALPRACTICE ACTION; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THAT CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The First Department, reversing (modifying) Supreme Court, noted that the plaintiff’s expert’s affidavit did not address the plaintiff’s dental malpractice claim with respect to one tooth (tooth number 28). Therefore defendant’s motion for summary judgment should have been granted on that claim: Even assuming, as defendant claims, that plaintiff would still have had to undergo […]

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WHEN THE MERITS OF A MOTION TO REARGUE ARE ADDRESSED THE DENIAL IS APPEALABLE; THE PERSONAL SERVICE REQUIREMENTS FOR THE NOTICE OF SALE PURSUANT TO THE LIEN LAW WERE NOT MET, THEREFORE THE 10-DAY PERIOD FOR BRINGING A SPECIAL PROCEEDING TO CONTEST THE VALIDITY OF THE LIEN DID NOT START TO RUN (THIRD DEPT).

The Third Department noted that where the court addresses the merits of a motion to reargue it will be deemed to have granted the motion to reargue for purposes of appeal. Therefore, although the denial of a motion to reargue is not appealable, the denial after addressing the merits is appealable. In that case the motion […]

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AN UNPAID PENALTY ASSESSED FOR DEFENDANT’S FAILURE TO MAINTAIN WORKERS’ COMPENSATION COVERAGE WAS ENTERED AS A SUPREME COURT JUDGMENT BY THE COUNTY CLERK IN ACCORDANCE WITH THE WORKERS’ COMPENSATION LAW; BY THE TERMS OF THE STATUTE, SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION AND DEFENDANT COULD NOT MOVE TO VACATE THE DEFAULT JUDGMENT (THIRD DEPT).

The Third Department determined a judgment entered in Supreme Court by the county clerk pursuant to the Workers’ Compensation Law 26  is not reviewable by Supreme Court. The Workers’ Compensation Board assessed a penalty against defendant for failure to maintain workers’ compensation coverage. When the penalty was not paid the judgment was entered by the […]

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CLAIMANT TRUCK DRIVER WAS AN EMPLOYEE OF FLS UNDER THE COMMON LAW AND UNDER THE LABOR LAW, DESPITE THE FACT THAT FLS DID NOT MAINTAIN A FLEET OF TRUCKS; CLAIMANT WAS THEREFORE ENTITLED TO UNEMPLOYMENT BENEFITS (THIRD DEPT).

The Third Department determined Fundamental Labor Strategies (FLS) was claimant truck driver’s employer, pursuant to common law and the Labor Law (NYS Commercial Goods Transportation Industry Fair Play Act), despite the fact FLS did not maintain a fleet of trucks: Labor Law § 862-b (1) provides, in relevant part, that “[a]ny person performing commercial goods […]

CLAIMANT, A HAIRCARE PRODUCT SALES REPRESENTATIVE, WAS NOT AN EMPLOYEE OF THE PRODUCER OF THE HAIRCARE PRODUCTS AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT). ​

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant, a haircare product sales representative, was not an employee of Alterna Holding Corporation, the producer of the haircare products: Alterna Holding Corporation produces haircare products that are sold at various retail stores. To facilitate its business, Alterna places sales and education representatives at the […]

CLAIMANT DELIVERY DRIVER WAS AN EMPLOYEE OF A BUSINESS LOGISTICS COMPANY WHICH ARRANGED DELIVERIES FOR ITS CLIENTS; CLAIMANT WAS THEREFORE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant delivery driver was an employee of TN Couriers (TNC) entitled to unemployment insurance benefits: TN Couriers LLC (hereinafter TNC) is a business logistics company that acts as a broker between delivery drivers and clients seeking to have products transported from one location to another. Claimant was retained by TNC to […]

CLAIMANT WAS SIMULTANEOUSLY ENTITLED TO A SCHEDULE LOSS OF USE (SLU) AWARD AND A PERMANENT PARTIAL DISABILITY CLASSIFICATION (THIRD DEPT).

The Third Department, reversing (modifying) the Workers’ Compensation Board, determined claimant was simultaneously entitled to an award for a schedule loss of use [SLU] and a permanent partial disability classification: For the reasons more fully discussed in Matter of Arias v City of New York (182 AD3d 170, 172 [2020]), we agree with claimant’s contention that the […]

CLAIMANT DID NOT TRY TO HIDE THE DOG-WALKING BUSINESS AND WAS ONLY TANGENTIALLY INVOLVED IN THE OPERATION OF THE BUSINESS; THEREFORE THE EVIDENCE DID NOT SUPPORT THE CONCLUSION SHE HAD MADE A MATERIAL FALSE STATEMENT IN HER CLAIM FOR WORKERS’ COMPENSATION BENEFITS STEMMING FROM HER FORMER EMPLOYMENT AS A BARTENDER (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant did not make a material false claim about her involvement in a dog-walking business after the injuries for which she sought Workers’ Compensation benefits. The Board had reversed the Workers’ Compensation Law Judge’s (WCLJ’s) finding to that effect. The Third Department held the evidence did […]

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