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CLAIMANT PROVED HE WAS EMPLOYED BY A COMPANY WHICH DID NOT HAVE WORKERS’ COMPENSATION INSURANCE AND WHICH REFUSED TO APPEAR AT THE HEARING, GENERAL CONTRACTOR OBLIGATED TO PAY THE WORKERS’ COMPENSATION AWARDS (THIRD DEPT).

The Third Department affirmed the Workers’ Compensation Board’s findings that claimant, a construction worker, was employed by an uninsured company (George Villar/Atelier) that failed to appear at the hearing and that the general contractor (Omega) was responsible for payment of the workers’ compensation awards: ​ … [C]laimant testified that he had been hired by Mullady […]

SKIN CARE SPECIALIST WORKING FOR A SKIN CARE COMPANY WITH A DISPLAY IN A BLOOMINGDALE’S STORE WAS AN EMPLOYEE OF THE SKIN CARE COMPANY AND WAS ENTITLED TO BENEFITS, LATE NOTICE EXCUSED, CLAIMANT FELL ON THE WAY TO THE RESTROOM (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board’s finding that claimant, a skin care specialist and spokesmodel, was an employee of Task Essential, who had a display in a Bloomingdale’s store. Claimant fell on the way to a restroom. The court rejected the argument that claimant was a special employee of Bloomingdale’s and that recovery […]

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CLAIMANT NOT ENTITLED TO PRESUMPTION OF AN EMPLOYER-EMPLOYEE RELATIONSHIP PURSUANT TO LABOR LAW 511 WHICH IS AFFORDED TO PERFORMING ARTISTS, CLAIMANT IS PAID TO PROMOTE CALL-IN RADIO SHOWS BY CALLING DURING THE SHOWS, AN ACTIVITY THAT REQUIRES NO ARTISTIC TALENT (THIRD DEPT).

The Third Department, reversing the appeal board, determined claimant was not entitled to the presumption of an employee-employer relationship afforded by Labor Law 511, which specifically applies to the performing arts. Claimant is a “caller” paid to participate in radio call-in shows to promote the shows. The caller need have no artistic skill or talent. […]

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PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF’S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT).

The Third Department, affirming Supreme Court's preclusion of plaintiff's (Colucci's) expert evidence and the grant of summary judgment to defendant, determined the failure of plaintiff to meet the deadline for expert disclosure warranted preclusion. Plaintiff had leased business space from defendant and alleged that exposure to sewage and mold at the premises caused health problems. […]

PORTION OF SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL WAS SUBJECT TO A SPECIAL USE BY DEFENDANT PARKING GARAGE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT).

The Second Department determined defendant parking garage's (New York Parking's) motion for summary judgment in this sidewalk slip and fall case was properly denied. Plaintiff alleged he tripped and fell on a portion of the sidewalk subject to a special use by the parking garage: The record presents triable issues of fact as to whether […]

QUESTION OF FACT WHETHER THERE HAD BEEN A SURRENDER OF THE LEASED PREMISES BY OPERATION OF LAW, THEREBY LIMITING TENANT’S LIABILITY FOR ABANDONMENT OF THE LEASE WITH TEN YEARS REMAINING (FIRST DEPT).

The First Department, reversing Supreme Court, determined the tenant raised a trial issue of fact about whether there was a surrender of the leased premises (a parking garage with ground-floor subtenants) by operation of law. The tenant had abandoned the lease with ten years remaining: …[T]the tenant raised a viable issue of fact as to […]

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2008 LETTER INFORMING DEFENDANT SHE WAS IN DEFAULT DID NOT ACCELERATE THE DEBT, THEREFORE THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN AND THE CURRENT FORECLOSURE PROCEEDING IS TIMELY (THIRD DEPT).

The Third Department determined a 2008 letter from the bank's counsel informing defendant she was in default did not expressly accelerate the debt. Therefore the statute of limitations did not begin to run in 2008 and the current proceeding is timely: “The six-year statute of limitations in a mortgage foreclosure action begins to run from the […]

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NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT).

The Second Department, reversing Family Court, determined that the appellant did not have an intimate relationship with petitioner and therefore Family Court did not have jurisdiction over the family offense proceeding against appellant and could not issue an order of protection. Even though the order of protection had expired, the continuing reputational consequences of the […]

PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant-wife's motion to set aside the prenuptial agreement should have been granted: “An agreement between spouses or prospective spouses should be closely scrutinized, and may be set aside upon a showing that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair […]

PRIMA FACIE CASE OF NEGLECT BASED UPON MOTHER’S MENTAL CONDITION HAD BEEN MADE OUT, THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED, FACT THAT MOTHER HAD NOT BEEN DIAGNOSED AS SUFFERING FROM A MENTAL ILLNESS WAS NOT DISPOSITIVE (SECOND DEPT).

The Second Department, reversing Family Court, determined a prima facie showing of neglect based upon mother's mental condition had been made. Therefore mother's motion to dismiss the neglect petition should not have been granted. The court noted that the fact that mother had not been diagnosed as having a mental illness was not dispositive: … […]

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