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ALTHOUGH THE POLICE HAD VISITED PLAINTIFF SEVERAL TIMES IN RESPONSE TO HER CALLS ABOUT HER EX-BOYFRIEND’S VIOLATIONS OF THE ORDER OF PROTECTION AND THE POLICE HAD SPOKEN TO HER EX-BOYFRIEND (WHO LIVED DIRECTLY ABOVE HER), THE MAJORITY CONCLUDED THERE WAS NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND THE POLICE SUCH THAT PLAINTIFF COULD HAVE JUSTIFIABLY RELIED ON THE POLICE FOR PROTECTION; HER EX-BOYFRIEND SUBSEQUENTLY THREW HER OUT OF A SECOND-FLOOR WINDOW (CT APP).

The Court of Appeals, over two extensive dissenting opinions, determined the fact plaintiff’s ex-boyfriend was subject to an order of protection at the time he attacked her and threw her out of a second-floor window did not create a special relationship with the police such that the municipality would be liable for failing to protect her. The majority concluded plaintiff could not have justifiably relied on any police promises that her ex-boyfriend would be arrested for violating the order of protection. “Justifiable reliance” is an essential element of a special relationship:

… [Plaintiff] failed to raise a triable issue concerning the “critical” fourth element of an assumed special duty … . Plaintiff testified during her deposition that she had no contact with the police on the day of the incident prior to the attack, that her ex-boyfriend was in fact at liberty that day, and that the officers never told her that her ex-boyfriend would be arrested for violating the order of protection. Plaintiff’s own testimony demonstrates that she did not relax her vigilance based on any police promises that her ex-boyfriend would be arrested for violating the order of protection. It also shows that the police were not on the scene or in a position to provide assistance if necessary … , nor had they promised to “provide assistance at some reasonable time” … . In these circumstances, plaintiff could not have justifiably relied on any promises made or actions taken by defendants.

From Judge Wilson’s dissent:

Mr. Gaskin [the ex-boyfriend] had violently assaulted Ms. Howell [plaintiff] before, beginning when she was pregnant with their child. The first time he assaulted her, he threw her on the floor and kicked her stomach, causing her to bleed and require hospitalization. On the basis of that assault, Ms. Howell obtained an order of protection against Mr. Gaskin, requiring him to stay away from and not communicate with her. Based on Mr. Gaskin’s subsequent conduct, Ms. Howell obtained seven additional orders of protection against him, the most recent of which issued less than two months before Mr. Gaskin threw her out of the window. How did it happen that a woman who obtained eight orders of protection against the same abuser wound up unprotected? * * *

In the week before Mr. Gaskin threw Ms. Howell out of the window, Ms. Howell called the police several times to report that Mr. Gaskin was violating the order of protection. … The officers told Ms. Howell that they would “ensure . . . that [Mr. Gaskin] would be removed from the premises.” The officers spoke to Mr. Gaskin, who told the officers that he would leave his apartment [which was above Ms. Howell’s] and stay at his uncle’s house. … The officers made Ms. Howell “feel assured he won’t be coming back.” Howell v City of New York, 2022 NY Slip Op 06633, CtApp 11-22-22

Practice Point: Although plaintiff had repeatedly made the police aware of her ex-boyfriend’s violations of the order of protection and the police had promised to arrest him, the majority concluded there was no special relationship between the police and plaintiff such that plaintiff could have justifiably relied on police protection. Ultimately, the ex-boyfriend, who lived directly above plaintiff, threw plaintiff out of a second-floor window. There were two strong dissenting opinions.

 

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PLAINTIFF’S DECEDENT WAS TORTURED AND MURDERED IN HER HOME BY HER MOTHER AND BROTHER; ALTHOUGH COUNTY AUTHORITIES HAD BEEN CALLED TO INVESTIGATE ALLEGATIONS PLAINTIFF’S DECEDENT HAD SUFFERED INJURIES AND SHERIFFS HAD RETURNED PLAINTIFF’S DECEDENT TO HER HOME AFTER SHE RAN AWAY, THERE WAS NO SPECIAL RELATIONSHIP WITH THE COUNTY SUCH THAT PLAINTIFF’S DECEDENT JUSTIFIABLY RELIED ON INTERVENTION BY COUNTY AUTHORITIES (CT APP).

​The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissenting opinion, determined plaintiff did not raise a question of fact about the existence of a special relationship between plaintiff’s decedent, Laura, and the county such that the county could be liable for the torture and murder of Laura by her mother, Eva, and brother, Luke. Laura, was a 23-year-old woman with developmental disabilities. Laura’s brother, Richard, called county authorities about injuries to his sister. Richard’s allegations were investigated and deemed unfounded. On one occasion Laura ran away from home after an argument with her mother and was returned by county sheriffs. The Court of Appeals held there was nothing about the way the authorities investigated Laura’s alleged injuries and Laura’s running away which met the criteria for a special relationship creating “justifiable reliance” on intervention by county authorities:

… [T]o establish that the government voluntarily assumed a duty to the plaintiff beyond what it generally owes to the public, the plaintiff must establish: ” ‘(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking’ ” … .

“[A]ll four elements must be present for a special duty to attach” … .

… [T]he justifiable reliance element “provides the essential causative link between the ‘special duty’ assumed by the municipality and the alleged injury. Indeed, at the heart of most of these ‘special duty’ cases is the unfairness that the courts have perceived in precluding recovery when a municipality’s voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced [the injured party] either to relax [their] own vigilance or to forego other available avenues of protection” …

Months before her death, both CPS [Child Protective Services] and APS [Adult Protective Services] investigated the reports that Laura was being abused, concluded that those reports were unfounded, closed their investigations, and advised Richard that the investigations were closed and would not be reopened without new information. … Richard “did not in fact relax his own vigilance inasmuch as he made two follow-up calls to the APS caseworker asking her to reopen the investigation, and he was not induced to forego other avenues of relief” … . Similarly, the Sheriff’s deputies took no action that could have induced reliance. Maldovan v County of Erie, 2022 NY Slip Op 06632, Ct App 11-22-22

Practice Point: Under the “special relationship” theory, to hold a municipality liable for failing to intervene to protect a plaintiff from injury by family members, the plaintiff must demonstrate a special relationship had developed with the county such that the plaintiff could justifiably rely on intervention by the municipality. No such ‘justifiable reliance” was demonstrated in this case where a developmentally disabled young woman was tortured and murdered by her mother and brother. County authorities had investigated allegations plaintiff’s decedent had been injured, but the allegations were deemed unfounded. The fact that county sheriff’s had returned plaintiff’s decedent to her home after she had run away because of an argument with her mother was not enough.

 

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PURSUANT TO UCC 9-406 A LENDER’S SECURITY INTEREST IN A DEBTOR’S ACCOUNTS-RECEIVABLES IS AN ASSIGNMENT SUCH THAT A THIRD-PARTY WHICH HAS NOTICE OF THE ASSIGNMENT MUST MAKE ANY PAYMENTS OWED TO THE DEBTOR DIRECTLY TO THE LENDER (CT APP). ​

​The Court of Appeals, reversing the appellate division, in a full-fledged opinion by Judge Wilson, determined that UCC 9-406 allowed the lender to collect the accounts-receivables owed to the debtor by third-parties. The lender (Worthy) had a security interest in payments made by a third-party (New Style) to the debtor (Checkmate) after the New Style received notice of the assignment:

We are called upon to determine whether, for purposes of New York’s Uniform Commercial Code § 9-406, an “assignee” includes the holder of a presently exercisable security interest in an assignor’s receivables. We hold that it does. Under UCC 9-406, a security interest is an assignment and the UCC is purposefully structured to permit a debtor to grant creditors security interests in a debtor’s receivables so that the secured creditor can direct account debtors to pay it directly. * * *

Worthy filed a UCC-1 Financing Statement against Checkmate with the Secretary of State of New Jersey, perfecting its secured position regarding Checkmate’s assets. … Worthy sent New Style a notice of its security interest and collateral assignment in the New Style accounts and directed New Style that “[a]ll remittances for Accounts shall be made payable only to Worthy.” … . * * *

An account debtor who receives a secured creditor’s notice asserting its right to receive payment directly can pay the secured creditor and receive a complete discharge (UCC 9-406 [a]) or, if in doubt, can seek proof from the secured creditor that it possesses a valid assignment and withhold payment in the interim (UCC 9-406 [c]). Worthy Lending LLC v New Style Contrs., Inc., 2022 NY Slip Op 06631, CtApp 11-22-22

Practice Point: Pursuant to UCC 9-406 a lender’s security interest in a debtor’s accounts-receivable is an assignment of the accounts-receivables to the lender such that, after notice of the assignment, a party owing payments to the debtor is obligated to make those payments directly to the lender.

 

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DEFENDANT, WHO WAS CHARGED WITH STRIKING A SMALL DOG WITH A BROOM HANDLE, WAS NOT ENTITLED TO THE “CHOICE OF EVILS” INSTRUCTION TO THE GRAND JURY; DEFENDANT ARGUED HE STRUCK THE DOG TO PREVENT A “GREATER EVIL,” I.E., AN INFECTION FROM A BITE; THE EVIDENCE DID NOT SUPPORT THE DEFENDANT’S ARGUMENT BECAUSE DEFENDANT TESTIFIED STRIKING THE DOG WAS AN ACCIDENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the defendant was not entitled to a “choice of evils” instruction in the grand jury proceedings. Defendant was charged with criminal mischief under Penal Law § 145.10, aggravated cruelty to animals under Agriculture and Markets Law § 353-a, and Overdriving, Torturing, or Injuring an Animal under Agriculture and Markets Law § 353. During a confrontation with a person, a small dog (Gigi) started biting at defendant’s pant leg and defendant struck the dog with a broom handle. Defendant argued the grand jury should have been instructed on the “choice of evils” defense because he struck the dog to prevent an infection from a dog bite:

Section 35.05 (2) of the Penal Law provides that conduct that would otherwise be criminal may be justifiable when “[s]uch conduct is necessary as an emergency measure to avoid an imminent . . . private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.” * * *

… [D]efendant testified before the grand jury that he was not afraid of Gigi, that he never intended to hurt her, and that he struck her by mistake during his struggle with the uncle and as a reaction to the surrounding circumstances. Thus, by his own account, defendant made no choice at all to strike Gigi, but acted without intending to hit anything or specifically to hurt her. The record, including defendant’s own testimony and the surveillance video, forecloses defendant’s argument that he chose to strike Gigi as an “emergency measure to avoid an imminent . . . private injury” … . Accordingly, the prosecutor was not obligated to instruct the grand jury on the “choice of evils” defense under section 35.05 (2) … . People v Jimenez, 2022 NY Slip Op 06541, CtApp 11-17-22

Practice Point: There is a “choice of evils” defense which allows the argument that the charged act was necessary to prevent a “greater evil.” Here the defendant argued the grand jury should have been so instructed, claiming that he struck the small dog to prevent an infection from a dog bite (the greater evil). However defendant testified he struck the dog by accident, which foreclosed the availability of the defense; no “choice” between evils was made.

 

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IN THIS FORECLOSURE ACTION DEFENDANT DEBTOR ENTERED A MORTGAGE MODIFICATION AGREEMENT WHICH CALLED FOR THREE PAYMENTS; DEFENDANT DEBTOR MADE FOUR ADDITIONAL PAYMENTS IN AMOUNTS HIGHER THAN CALLED FOR IN THE MORTGAGE; THE PAYMENTS AMOUNTED TO AN ACKNOWLEDGMENT OF THE MORTGAGE DEBT WHICH STARTED THE STATUTE OF LIMITATIONS FOR FORECLOSURE ON THE DATE OF THE LAST PAYMENT (CT APP). ​

The Court of Appeals, reversing the appellate division, determined the defendant debtor acknowledged the mortgage debt by paying more than was required by the Home Affordable Modification Trial Payment Plan. Therefore the statute of limitations for foreclosure started running when defendant debtor made the last payment:

In this mortgage foreclosure action, plaintiff contends that Supreme Court erred in concluding that the complaint was timely inasmuch as Maxi Jeanty (debtor) made four payments between August 2009 and March 2010 on account of the mortgage debt which were effective pursuant to General Obligations Law § 17-107 (1) to make the statute of limitations begin running anew on the date of the last such payment. We agree. Plaintiff met its prima facie burden on its motion … by submitting evidence that, after entering a Home Affordable Modification Trial Payment Plan (the Plan), the debtor made a total of seven payments from April 2009 through March 2010, each in an amount exceeding that of the regular installment payments required under the loan documents prior to the acceleration of the debt in August 2008. The first three payments were required pursuant to the Plan, but the remaining four were not. Those four payments established 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’ (… see General Obligations Law § 17-107 [1]). Federal Natl. Mtge. Assn. v Jeanty, 2022 NY Slip Op 06539, CtApp 11-17-22

Practice Point: In this foreclosure action, payments by the debtor which exceeded what was called for in the modification payment plan amounted to an acknowledgment of the mortgage debt. Therefore the statute of limitations on foreclosure began to run on the date of the last of those payments.

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THE ENABLING ACT WHICH TASKED A LEGISLATIVE COMMITTEE WITH DECIDING WHETHER THE SALARIES OF LEGISLATORS AND STATE OFFICIALS SHOULD BE INCREASED IS CONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over an extensive concurring opinion and a two-judge dissent, determined the enabling act which empowered a committee to decide whether to increase the salaries of legislators and state officials was constitutional. The opinions are far too comprehensive to fairly summarize here:

In this declaratory judgment action, plaintiffs challenge the constitutionality of part HHH of chapter 59 of the Laws of 2018 (the enabling act), in which the Legislature tasked the Committee on Legislative and Executive Compensation with determining, after consideration of various factors, whether “the salary and allowances of the members of the [L]egislature” and certain other state officials “warrant an increase” … . The enabling act further provided that the Committee’s recommendation with respect to any salary changes would become effective unless modified or abrogated by statute. Inasmuch as defendants have failed to overcome the presumption of constitutionality afforded to the enabling act as a duly enacted state statute … , we affirm. Delgado v State of New York, 2022 NY Slip Op 06538, CtApp 11-17-22

Practice Point: Here the enabling act which tasked a legislative committee with deciding whether the salaries of legislators and state officials should be increased was deemed constitutional.

 

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THE APPELLATE DIVISION AFFIRMED DEFENDANT’S CONVICTION BY GUILTY PLEA AFTER A FLAWED SPEEDY-TRIAL ANALYSIS OF THE EIGHT-YEAR PRE-INDICTMENT DELAY; THE COURT OF APPEALS REVERSED, EXPLAINED THE FLAWS AND REMITTED THE MATTER FOR A NEW ANALYSIS (CT APP). ​

The Court of Appeals, reversing the appellate division’s affirmance of defendant’s (Johnson’s) conviction by guilty plea and remitting the matter for another analysis, in a full-fledged opinion by Judge Wilson, determined the appellate division did not properly apply the “Taranovich” criteria to the eight-year pre-indictment delay in this rape/sexual abuse case.

In People v Taranovich, we established the following five factors for assessing speedy trial claims: (1) the extent of the delay; (2) the reasons for the delay; (3) the nature of the underlying charge; (4) whether there has been an extended period of pretrial incarceration; and (5) whether there is any indication that the defense has been impaired by reason of the delay … . Although this case concerns pre-indictment delay and is analyzed as a due process claim, we nevertheless apply the test established in Taranovich … . …

The Appellate Division “assume[d], arguendo, that the People failed to establish ‘good cause’ for the ‘protracted’ preindictment delay” … . However, some examination of the reason for the delay is required. Instead of attempting to evaluate the good faith reasons for the various periods of delay, the Appellate Division’s conclusion that the second factor favored Mr. Johnson is based upon an assumption for the sake of argument. …

Turning to the third factor, the “nature” of the underlying crime can refer to both its severity and, relatedly, the complexity and challenges of investigating the crime and gathering evidence to support a prosecution … . … Here, the Appellate Division held that its assumption that the People lacked good cause compelled the result that the “third factor[ ] favors[s] the defendant.” The crime here—the sexual assault of a minor found unresponsive on a city street—is quite serious. The nature of the crime here is directly related to the issues of complexity and may, therefore, account for some of the delay: the victim’s severe intoxication and lack of memory of the assault rendered her unable to identify her attacker. It is not clear on what basis the court concluded that its assumption of lack of good faith led to the conclusion that the third factor favored Mr. Johnson, but that conclusion, apparently based solely on that assumption with no analysis of the relevant concerns, is not supportable. …

In analyzing factor five, the Appellate Division held that because Mr. Johnson pled guilty only to rape in the second degree … , which depends solely on the age difference between the defendant and the victim, “the preindictment delay could not have ‘impaired’ defendant’s ability to defend himself on the charge of which he was convicted” … . This was error. When an indictment contains multiple counts, if delay impacts the defendant’s ability to defend one count, it may weaken that defendant’s position in plea bargaining, potentially adversely impacting the resulting plea … . Thus, the appellate court must consider prejudice measured against all counts pending when the dismissal motion is made, not merely against the crime of conviction. People v Johnson, 2022 NY Slip Op 06537, CtApp 11-17-22

Practice Point: Here the defendant pled guilty after an eight-year pre-indictment delay and the appellate division affirmed. The Court of Appeals reversed, finding the appellate division’s application of the “Taranovich” framework for determining whether a defendant’s constitutional right to a speedy trial has been violated seriously flawed. The Court of Appeals explained the flaws and remitted the matter to the appellate division for another speedy-trial analysis. The Court of Appeals noted that, where a defendant is charged with multiple counts, whether the delay impaired the defense must take into account all the charged counts, not just the count to which defendant pled guilty.

 

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THE BREACH OF CONTRACT (FIRE INSURANCE POLICY) CAUSE OF ACTION ALLEGED IN THE COMPLAINT DID NOT GIVE NOTICE OF THE CLAIM THE CONTRACT SHOULD BE REFORMED BASED UPON MUTUAL MISTAKE; THEREFORE THE PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO CONFORM THE PLEADINGS TO THE PROOF AND THE JURY SHOULD NOT HAVE BEEN ALLOWED TO CONSIDER WHETHER THE ENDORSEMENT REQUIRING A SPRINKLER SYSTEM ON THE INSURED PREMISES WAS INCLUDED IN THE POLICY BY MUTUAL MISTAKE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, determined plaintiff should not have been allowed to conform the pleadings to the proof and the jury should not have considered whether the contract, an insurance policy, should be reformed based upon mutual mistake. The complaint alleged defendant insurer breached the contract (the policy) by refusing to pay for fire damage. The insurance policy included a Protective Safeguards Endorsement (PSE) which required plaintiff to have a sprinkler system in good working order. The buildings apparently were vacant and did not have sprinkler systems. Based on testimony given at trial, plaintiff argued inclusion of the PSE was a mutual mistake and the contract (policy) should be reformed to exclude it. The jury and the appellate division so found. But the Court of Appeals held the courts should not have looked beyond the four corners of the pleadings, and the pleadings did not give notice of the reformation action:

[CPLR] Section 203 (f) requires the court to determine solely whether a plaintiff’s or a defendant’s original pleading gives notice of the transactions or occurrences underlying the proposed amendment …

To plead reformation, a plaintiff must allege sufficient facts supporting a claim of mutual mistake, meaning that “the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement” … . Given the “heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties, . . . [t]he proponent of reformation must show in no uncertain terms, not only that mistake or fraud exists, but exactly what was really agreed upon between the parties” … .

In contrast, to plead a cause of action for breach of contract, a plaintiff usually must allege that: (1) a contract exists … ; (2) plaintiff performed in accordance with the contract … ; (3) defendant breached its contractual obligations … ; and (4) defendant’s breach resulted in damages … . …

The complaint … alleges that plaintiffs complied “with all of the conditions precedent and subsequent pursuant to the terms of the subject policy.” This … allegation is fatal to plaintiffs’ assertion that the complaint provides notice of the transactions or occurrences to be proved in support of a reformation claim. In fact, if anything, it suggests the opposite because, by asserting total compliance, plaintiffs necessarily disclaimed any challenge to the policy’s terms, specifically the PSE. 34-06 73, LLC v Seneca Ins. Co., 2022 NY Slip Op 06029, CtApp 10-27-22

Practice Point: Here the complaint alleged defendant insurer breached the policy by refusing to pay for fire damage. The insured buildings were vacant and did not have sprinkler systems. The policy included an endorsement requiring sprinkler systems. The insurer refused payment citing plaintiff’s failure to comply with the “sprinkler” endorsement. Based on trial evidence, plaintiff moved to conform the pleadings to the proof to include a cause of action for reformation of the contract alleging that the endorsement requiring sprinkler systems was included by mutual mistake and should be excluded from the policy. The Court of Appeals ruled the complaint did not give notice of the reformation cause of action. Therefore the jury should have been allowed to consider it. The trial verdict, reforming the contract to exclude the “sprinkler” endorsement, and the affirmance by the appellate division were reversed.

 

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A NONSCHEDULE AWARD AND A SCHEDULE AWARD ARE CALCULATED DIFFERENTLY; A NONSCHEDULE AWARD IS CALCULATED BASED UPON EARNING CAPACITY, WHICH OBVIOUSLY CEASES UPON DEATH; HERE, WHERE THE INJURED WORKER DIED FROM A CAUSE UNRELATED TO THE INJURY, THE BENEFICIARY IS THEREFORE NOT ENTITLED TO THE UNACCRUED PORTION OF THE NONSCHEDULE AWARD (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Garcia, determined the unaccrued portions of a nonschedule award under Workers’ Compensation Law (WCL) section 15 (3) do not pass to the beneficiary of an injured employee who died from causes unrelated to the work injury:

WCL § 15 (3), provides for two categories of awards for injuries resulting in permanent partial disability. A “schedule loss of use” (SLU) award, provided for in section 15 (3) (a)-(u), is designed to “compensate for loss of earning power, rather than the time that an employee actually loses from work or the injury itself” … . A nonschedule award, in contrast, seeks to reimburse a claimant for earnings lost due to injury … . …

The nature of nonschedule awards, dependent on an employee’s actual earnings and the continuance of the disability, is such that there is no remaining portion of the award that can pass through to a beneficiary. …

Schedule and nonschedule awards are calculated differently, reflecting the different purposes they serve. Nonschedule awards require fact-specific, individual calculations based on the impairment of wage-earning capacity. …

More than 100 years ago, this Court urged recognition of the difference between schedule and nonschedule awards, explaining that cases “where the award is to be measured by the difference between wages and capacity [nonschedule awards] are, of course, not to be confused with those where the act prescribes a fixed and certain limit [schedule awards]” … . Matter of Green v Dutchess County BOCES, 2022 NY Slip Op 06028, CtApp 10-27-22

Practice Point: Under Workers’ Compensation Law section 15, nonschedule awards are calculated differently from schedule awards. Nonschedule awards are measured by the difference between wages and earning capacity (which ceases upon death). Therefore, after a worker dies from a cause unrelated to the injury for which the worker was being compensated by a nonschedule award, any unaccrued portion will not pass to a beneficiary. Schedule awards, on the other hand, prescribe a fixed amount with a certain limit.

 

BECAUSE PETITIONER POLICE OFFICER WAS AWARE THE DOOR COULD SLAM SHUT, THE FACT THAT THE DOOR DID SLAM SHUT CRUSHING HER FINGER WAS NOT A COMPENSABLE “UNEXPECTED” “ACCIDENT” PURSUANT TO THE RETIREMENT AND SOCIAL SECURITY LAW; STRONG DISSENTING OPINION (CT APP).

The Court of Appeals affirmed the denial of disability benefits on the ground the heavy door blowing shut on petitioner’s finger was not an “accident” within the meaning of the Retirement and Social Security Law. The affirmance is a brief memorandum decision. The dissent by Judge Wilson is a full-fledged opinion. The majority noted that the petitioner was aware the door slammed shut. The event was not “unexpected” and therefore was not a compensable “accident:”

An ” ‘injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury’ ” … .

Petitioner conceded that she knew that the heavy metal door slammed automatically and that on the day of the injury her movements were intended to avoid that quick and forceful closure. While the known condition may be a risk of the work site, it cannot be the cause of an accident compensable under Retirement and Social Security Law § 363. …​

From the dissent:

Rosa Rizzo worked for the Port Authority of New York and New Jersey as a police officer. On a cold February day, she trudged through the sleet and cold winds at the Lincoln Tunnel to tend to an ailing woman, staying with her until an ambulance arrived. Once it arrived, Officer Rizzo gathered the names of the parties and witness testimony and then headed towards the heated MTA booth so she could write her report. She had used the booth before and knew that its door could swing closed, but she had never heard of anyone being injured by it. As she squeezed into the booth, however, a violent gust of wind blew the 80 to 100 pound door shut, crushing her right index finger and permanently disabling her from returning to her to a full duty position. Matter of Rizzo v DiNapoli, 2022 NY Slip Op 06027, CtApp 10-27-22

Practice Point: In order for an injury to be compensable under the Retirement and Social Security Law it must be the result of an “unexpected” event. Here petitioner was aware the door could slam shut and took steps to avoid injury, but the door crushed her finger. That was not a compensable “accident.” There was a strong dissenting opinion.

 

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