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DECEDENT’S WORK-RELATED COVID DEATH ENTITLED DECEDENT’S DAUGHTER, DECEDENT’S “STATUTORY BENEFICIARY,” TO “ACCIDENTAL DEATH BENEFITS” UNDER A RECENT STATUTE; PETITIONER, DECEDENT’S PARTNER, WHO WAS DECEDENT’S “DESIGNATED BENEFICIARY” FOR “ORDINARY DEATH BENEFITS,” WAS NOT ENTITLED TO THE “ACCIDENTAL DEATH BENEFITS” (CT APP).

The Court of Appeals, affirming the Appellate Division, determined the respondent Teachers’ Retirement System properly awarded “accidental death benefits” to decedent’s daughter under a recent law which classified certain work-related COVID death as “accidental.” The dispute here was between the “statutory beneficiary,” decedent’s daughter who received the “accidental death benefits,” and the “designated beneficiary,” decedent’s partner, who was entitled to any “ordinary death benefits:”

he statutory text refutes petitioner’s argument that respondent’s denial of her claim for ordinary death benefits was irrational. Retirement and Social Security Law § 607-i (a) (3) provides that the accidental death benefit “shall” be paid to a member’s statutory beneficiary if the member meets the stated criteria. This is consistent with the recognition in the legislative history that “[o]nce the statutory beneficiary demonstrates this proof, entitlement to the [a]ccidental [d]eath [b]enefit is mandatory” … . Additionally, preexisting law provided that an ordinary death benefit is only available when accidental death benefits are unavailable (see Retirement and Social Security Law § 606-a [a] [3]). Matter of Colon v Teachers’ Retirement Sys. of the City of N.Y., 2024 NY Slip Op 01331, CtApp 3-14-24

Practice Point: Here decedent’s daughter was the “statutory beneficiary” of “accidental death benefits” under the Retirement and Social Security Law, and decedent’s partner was the “designated beneficiary” for “ordinary death benefits” under the Retirement and Social Security Law. Decedent’s daughter was properly awarded the “accidental death benefits” under a recent statute covering work-related COVID deaths.

 

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​ THE DENIAL OFTHE NON-RESIDENT’S APPLICATION FOR EMPLOYMENT IN NEW YORK CITY IS SUBJECT TO THE EMPLOYMENT-DISCRIMINATION PROHIBITIONS IN THE NEW YORK CITY AND NEW YORK STATE HUMAN RIGHTS LAW (CT APP).

The Second Department, answering a certified question from the Second Circuit, in a full-fledged opinion by Judge Singas, determined that the denial of an non-New-York-resident’s application for employment in New York City is subject to the prohibitions of employment discrimination under the NYS and NYC Human Rights Law. Plaintiff was employed by defendant in Washington DC and sought, but was denied, a new position with the defendant in New York City:

… [A] nonresident who has been discriminatorily denied a job in New York City or State loses the chance to work, and perhaps live, within those geographic areas. The prospective employee personally feels the impact of a discriminatory refusal to promote or hire in New York City or State, because that is where the person wished to work (and perhaps relocate) and where they were denied the chance to do so. When applying the required liberal construction of “inhabitants” and “individual within this state” (Executive Law § 290 [3]; Administrative Code § 8-101), a prospective inhabitant or employee, who was denied a job opportunity because of discriminatory conduct, fits comfortably within the Human Rights Laws’ protection. Syeed v Bloomberg L.P., 2024 NY Slip Op 01330, CtApp 3-14-24

Practice Point: Plaintiff worked for defendant in Washington DC and sought, but was denied, a new position with defendant in New York City. Although a non-resident, plaintiff could bring a failure-to-hire/failure-to-promote employment-discrimination action in New York pursuant to the NYC and NYS Human Rights Law.

 

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IN THIS CHILD VICTIM’S ACT (CVA) ACTION, THE COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR NEGLIGENT SUPERVISION, NEGLIGENT RECRUITMENT AND NEGLIGENT FAILURE TO WARN AGAINST BIG BROTHERS BIG SISTERS OF AMERICA (BBBS) AND FAMILY SERVICES OF WESTCHESTER (FSW) BASED ON THE ALLEGED SEXUAL CONDUCT BY A VOLUNTEER MENTOR (SECOND DEPT). ​

The Second Department determined defendant Big Brothers Big Sisters of America (BBBS)’s and defendant Family Services of Westchester (FSW)’s motions to dismiss the negligent supervision, negligent recruitment and negligent failure to warn causes of action were properly denied in this Child Victims Act (CVA) lawsuit. Plaintiff alleged he was sexually abused by a mentor associated with defendants:

… [T]he amended complaint adequately alleged that the defendants owed a duty of care to the plaintiff and that the sexual abuse by the mentor was foreseeable. Specifically, the amended complaint alleged that the mentor groomed and sexually abused the plaintiff “in connection with [the mentor’s] position as a volunteer with BBBS and FSW” and “in connection with BBBS and FSW sponsored activities.” During all relevant times, BBBS and FSW had allegedly assumed custody and control over the plaintiff “as a minor child in their care.” The amended complaint alleged that the defendants had a duty to “take reasonable measures to guard against child sexual abuse by volunteers” and that the defendants failed to ensure that there were reasonable screening or recruitment measures in place to prevent such abuse. The amended complaint further alleged that BBBS published two reports demonstrating that, while the plaintiff’s abuse was ongoing, BBBS was aware that the services it offered “attract[ed] child sexual abusers,” that the clients of BBBS were at “high risk” for potential abuse, and that the selection process used to match mentors with mentees did not appropriately incorporate child sexual abuse prevention training (internal quotation marks omitted). Moreover, the amended complaint alleged that the mentor had “dangerous propensities,” that the defendants “should have known” that the mentor had a propensity to sexually abuse children, and that oversight and monitoring of the mentor’s interactions with his prior mentees “would have revealed [the mentor’s] pattern of predatory behavior.” At the pleading stage of the litigation, where the plaintiff’s allegations are accepted as true and are accorded the benefit of every possible favorable inference, the plaintiff adequately alleged that the defendants owed the plaintiff a duty of care and that the sexual abuse by the mentor was foreseeable … . Brophy v Big Bros. Big Sisters of Am., Inc., 2024 NY Slip Op 00993, Second Dept 2-28-24

Practice Point: Here in this Child Victims Act (CVA) case, the complaint adequately alleged negligent supervision, negligent recruitment and negligent failure to warn.

 

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THE CONTRACTOR WHICH UNDERTOOK THE DUTY TO INSTALL FLOORING WAS REQUIRED TO PERFORM THAT DUTY WITH REASONABLE CARE; THE OWNER OF THE PROPERTY HAD A SEPARATE NONDELEGABLE DUTY TO KEEP THE PROPERTY SAFE WHICH MAY ALLOW THE CONTRACTOR’S NEGLIGENCE TO BE IMPUTED TO THE OWNER; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS TRIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) defendant contractor (AW&S) undertook the duty to install flooring and was therefore required to perform that duty with reasonable care, and (2) the owner of the property (UJA) had a separate, nondelegable duty to keep the premises safe. There was evidence AW&S failed to secure portions of the flooring it installed and that failure was the proximate cause of plaintiff’s trip and fall. Defendants did not present any evidence of when the floor was last inspected prior to the fall and therefore did not demonstrate the absence of constructive notice of the defect:

Defendants failed to establish prima facie that they were not negligent in the installation and maintenance of the Masonite flooring on which plaintiff tripped and fell … . Although defendants claim that they neither created nor had actual or constructive notice of the condition that caused plaintiff’s injuries, the record establishes that defendant owner … (UJA) requested that defendant … (AW&S) protect the floors during a renovation project in its building for which AW&S served as general contractor. … AW&S specifically undertook responsibility for the installation, maintenance, and inspection of the protective Masonite flooring while it was on site, and the project superintendent noted that there were sections of Masonite that lacked duct tape securing it to the floor in the area where plaintiff tripped and fell. Based on this testimony, there are questions of fact as to whether AW&S’s failure to secure the Masonite, or to note that it was not secured upon inspection, was the proximate cause of plaintiff’s injuries … . … [W]here a defendant has undertaken a specific duty, it is obligated to perform that duty with reasonable care or be liable for any hazards it creates … . UJA, as owner, has a separate, nondelegable duty to maintain its premises, and AW&S’s negligent maintenance of the Masonite, if established, could be imputed to UJA …

Defendants also failed to make a prima facie showing that they lacked constructive notice of the condition. Neither defendant offered evidence of maintenance and inspection records despite testimony that the duct tape on the Masonite required routine replacement when it became curled or wet … .  …[P]laintiff was not required to establish how long the condition existed … . Bolson v UJA-FED Props. Inc., Ltd., 2024 NY Slip Op 00966, First Dept 2-27-24

Practice Point: A contractor which assumes the duty to do work, here floor-installation, is required to do so with reasonable care.

Practice Point: The property owner which hires a contractor to do work has a separate nondelegable duty to keep the premises safe such that a contractor’s negligence may be imputed to the owner.

 

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ALTHOUGH THE SPECIFIC CONTRACT WAS NOT IDENTIFIED IN THE COMPLAINT, THE NATURE OF THE BREACH OF CONTRACT CLAIM WAS SUFFICIENTLY ALLEGED BY REFERENCE TO THE NYC ADMINISTRATIVE CODE AND NYC DEPARTMENT OF TRANSPORTATION PERMITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the breach of contract cause of action was sufficiently alleged. Although the complaint did not specifically identify the breached contract, the reference to the relevant provisions of the NYC Administrative Code and the NYC Department of Transportation (DOT) permits gave sufficient notice of the nature of the claim:

… [P]laintiffs alleged that Con Edison failed to ensure payment of prevailing wages by codefendant … as required by the permits issued by the City Department of Transportation (DOT), in that it breached agreements required to be made, pursuant to Administrative Code of City of NY § 19-142, prior to obtaining such permits. Administrative Code § 19-142 required Con Edison “to agree that . . . the prevailing scale of union wages shall be the prevailing wage for similar titles as established by the fiscal officer pursuant to section [220] of the labor law, paid to those so employed,” and provides that “[n]o permit shall be issued until such agreement shall have been entered into with the” DOT. As required by the Administrative Code, the DOT permits issued to Con Edison stated that the permittee was required, “before such permit may be issued, to agree . . . that the prevailing scale of union wages shall be the prevailing wage for similar titles” established pursuant to Labor Law § 220 … …

… [T]he fact that the breach of contract cause of action in the complaint does not specifically identify the relevant contract but instead refers to “the promises required to be made pursuant to New York City Administrative Code § 19-142 prior to obtaining such permits,” does not require dismissal. Despite the non-specificity, the complaint “give[s] sufficient notice of the nature of the claim” by referencing Administrative Code § 19-142 and the DOT permits … . Ross v No Parking Today, Inc., 2024 NY Slip Op 00880, First Dept 2-20-24

Practice Point: Here the failure to identify the specific contract which was breached did not require dismissal of the breach of contract cause of action because the nature of the action was sufficiently alleged by reference to the applicable NYC Administrative Code provision and NYC Department of Transportation permits.

 

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PARTIAL PAYMENT OF A DEBT WITHIN THE STATUTE OF LIMITATIONS PERIOD MAY REVIVE OR TOLL THE STATUTE OF LIMITATIONS FOR AN ACTION BASED UPON THE DEBT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this suit against his employer seeking payment for work performed raised a question of fact whether the statute of limitations was revived by defendants’ partial payment:

There is a “long-standing common law rule” that partial payment of a debt, if made under “circumstances from which a promise to honor the obligation may be inferred,” will operate to start the statute of limitations running anew from the time the partial payment is made … . To show that the statute of limitations has been renewed by a partial payment, it must be shown that the payment was accompanied by circumstances amounting to “an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder” … .

Here, the plaintiff alleged that, over a course of years, the defendants made repeated assurances that they would pay him salary and bonus money that he was owed pursuant to his employment arrangement. Further, he alleged that the defendants made a partial payment of outstanding bonus money to the plaintiff on July 17, 2015, within the statute of limitations. Under these circumstances, the plaintiff raised a question of fact as to whether the statute of limitations was tolled or revived … . Costello v Curan & Ahlers, LLP, 2024 NY Slip Op 00758, Second Dept 2-14-24

Practice Point: Partial payment of a debt made within the statute of limitations period may revive or toll the statute of limitations for an action based on the debt.

 

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THE DENIAL OF RELIGIOUS EXEMPTIONS TO THE COVID VACCINE MANDATE WAS NOT ARBITRARY AND CAPRICIOUS (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Lynch, over a dissent, determined that the respondent NYS Unified Court System did not act arbitrarily and capriciously when it denied the petitioners’ (29 nonjudicial employees’) requests for religious exemptions from the COVID vaccine mandate. The Appellate Division, disagreeing with Supreme Court, held it was appropriate to deny exemptions based upon the employees’ acknowledging they have taken medication which was tested using fetal cells but now claim the testing of the COVID vaccine using fetal cells violated their religious beliefs:

Supreme Court found that respondents irrationally adopted an “all-or-nothing” approach by concluding that these petitioners could not have rejected the vaccine on religious grounds, without also rejecting the use or contemplated use of other medications or vaccinations developed using the same fetal cell lines. Supreme Court reasoned that it would not be inconsistent for an applicant to continue and/or consider taking other medications “critical to their lives or well-being, such as thyroid medication or hydroxychloroquine.” We disagree with Supreme Court’s thesis. The very purpose of the vaccine mandate was to protect and preserve the public health by “[s]temming the spread of COVID-19[, which] is . . . a compelling interest” … . From our perspective, the Committee could and did rationally conclude that an applicant’s continued and/or contemplated use of other medications or vaccinations tested on fetal cell lines — including the current version of medications originating before fetal cell lines were developed, but now tested utilizing fetal cell lines — while refusing to take the COVID-19 vaccination on that very basis, reflected an inconsistency undermining the sincerity of that applicant’s religious beliefs. Matter of Ventresca-Cohen v DiFiore, 2024 NY Slip Op 00664, Third Dept 2-8-24

Practice Point: The inquiry here was whether the request for exemption from the COVID vaccine mandate was based upon sincerely held religious belief. The fact that petitioners had taken other medication tested with fetal cells indicated the “fetal-cell-testing” objection to the COVID vaccine was not based upon a sincerely held religious belief.

 

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THE LABOR LAW DOES NOT PROVIDE A PRIVATE RIGHT OF ACTION ALLOWING A WORKER TO SUE FOR LIQUIDATED DAMAGES, PREJUDGMENT INTEREST, AND ATTORNEY’S FEES BECAUSE THE WORKER WAS PAID BIWEEKLY, NOT WEEKLY AS REQUIRED BY LABOR LAW 191 (SECOND DEPT).

The Second Department, disagreeing with the First Department, over a partial dissent, determined that Labor Law 191, entitled “Frequency of payments,” does not create a private right of action which would allow an employee, who was fully paid, to sue for liquidated damages, prejudgment interest and attorney’s fees because the employee was paid “biweekly,” not “weekly” as required by the statute:

… {The] … legislative history reveals that Labor Law § 198(1-a) was aimed at remedying employers’ failure to pay the amount of wages required by contract or law. There is no reference in the legislative history of Labor Law § 198 to the frequency or timing of wage payments, and nothing to suggest that the statute was meant to address circumstances in which an employer pays full wages pursuant to an agreed-upon, biweekly pay schedule that nevertheless does not conform to the frequency of payments provision of law.

[W]e conclude that Labor Law § 198 does not expressly provide for a private right of action to recover liquidated damages, prejudgment interest, and attorneys’ fees where a manual worker is paid all of his or her wages biweekly, rather than weekly, in violation of Labor Law § 191(1)(a). Grant v Global Aircraft Dispatch, Inc., 2024 NY Slip Op 00183, Second Dept 1-17-24

Practice Point: The Labor Law does not provide a private right of action allowing a worker to sue for liquidated damage, prejudgment interest and attorney’s fees because the worker was paid biweekly, not weekly as required by Labor Law 191.

 

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​ ALTHOUGH NOT REQUIRED UNDER THE GENERAL MUNICIPAL LAW, FILING A NOTICE OF CLAIM FOR AN EMPLOYMENT DISCRIMINATION ACTION IS REQUIRED UNDER THE TOWN LAW; BECAUSE THE TOWN HAD TIMELY KNOWELDGE OF THE FACTS UNDERLYING THE ACTION, PLAINTIFF WAS ENTITLED TO LEAVE TO FILE A LATE NOTICE OF CLAIM (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) although plaintiff would not have been required to file a notice of claim for an employment discrimination action against a city pursuant to the General Municipal Law, plaintiff is required to file a notice of claim for the instant employment discrimination action against the town pursuant to the Town Law, and (2) plaintiff was entitled to leave to file a late notice of claim. The notice of claim provisions in the Town Law are broader than those in the General Municipal Law and include “wrong to a person” which encompasses employment discrimination:

Consistent with the purpose of the Human Rights Law, unlawful discrimination and retaliation is undoubtably considered a wrong against a person (see Executive Law § 290 [3]). Thus, the plain, unambiguous text of Town Law § 67 directs that a notice of claim is required for an action alleging violations of the Human Rights Law. * * *

Although the presence or absence of any given factor is not determinative, it is well settled that “[a] factor to be accorded great weight in determining whether to grant leave to serve a late notice of claim is whether the [public corporation] had actual knowledge of the facts underlying the claim, including knowledge of the injuries or damages” … . …

… [T]here is no dispute that the Town and its officers had timely actual knowledge of the facts underlying the claim … . Arnold v Town of Camillus, 2023 NY Slip Op 06627, Fourth Dept 12-22-23

Practice Point: Unlike the General Municipal Law, the Town Law requires the filing of a notice of claim for an employment discrimination action under the Human Rights Law.

Practice Point: The most important criterium for granting leave to file a late notice of claim is the defendant’s timely knowledge of the facts underlying the action.

 

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TEACHERS EMPLOYED AT STATE CORRECTIONAL FACILITIES WORKED FROM SEPTEMBER TO JUNE BUT WERE PAID AN ANNUAL SALARY; WHEN EXTRA SUMMER WORK WAS CANCELLED DUE TO COVID THEY APPLIED FOR UNEMPLOYMENT INSURANCE BENEFITS; BECAUSE THEY WERE NOT UNEMPLOYED THEY WERE NOT ENTITLED TO BENEFITS (THIRD DEPT)

The Third Department, in a full-fledged opinion by Justice Egan. affirming the Unemployment Insurance Appeal Board, determined claimants, who worked as teachers at state correctional facilities from September through June but were paid an annual salary, were not entitled to unemployment insurance benefits for the additional summer employment which was not available due to COVID. The fact that the claimants could elect to either be paid every month or only during the school year was not determinative. The claimants had an “annual” salary and therefore were not unemployed during the summer:

Under state law, regular unemployment insurance benefits require total unemployment …, which is defined as “the total lack of any employment on any day” (Labor Law § 522 [emphasis added]). “Whether a claimant is totally unemployed and thereby entitled to receive unemployment insurance benefits is a factual issue for the Board to decide and its decision will be upheld if supported by substantial evidence” … . In finding that claimants were not totally unemployed during the summer 2020 recess, the Board properly relied upon Civil Service Law § 136, which applies to teachers and instructors at state institutions, including those operated by DOCCS, and provides that the “annual salary” for those employees may be paid over 10 months or 12 months … . If they are required to work outside of the academic year, they must receive “additional compensation” beyond their annual salary, which, by definition, compensates them for the entire 12-month year including the summer recess … .

The fact that optional, additional work was not available over the summer of 2020, as it had been in prior years, does not change the analysis or conclusion that claimants remained employed over the summer recess, i.e., they were not totally unemployed … . Matter of Almindo (New York State Dept. of Corr. & Community Supervision–Commissioner of Labor), 2023 NY Slip Op 06424, 3rd Dept 12-14-23

Practice Point: Teachers who are paid an annual salary, even if paid September through June, are not unemployed during the summer. Therefore, if additional summer work becomes unavailable (due to COVID for example), the teachers are not entitled unemployment benefits for the summer months.

 

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