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Re: a Third-Party Settlement, Consent of Special Fund Required Before Carrier Entitled to Reimbursement from Special Fund

The First Department determined an employee must obtain the consent of the Special Fund (or judicial approval) before accepting a third-party settlement:

Workers’ Compensation Law § 29(5) permits an employee to settle a lawsuit arising out of the same accident as gave rise to his workers’ compensation claim for less than the amount of the compensation he has received only if the employee has obtained written consent to the settlement from the carrier or, in the alternative, judicial approval. We find that, just as the employee is required to obtain the carrier’s consent prior to settlement, the carrier is required to obtain the Special Funds Conservation Committee’s consent prior to the settlement where it is entitled to reimbursement by the Committee pursuant to Workers’ Compensation Law § 15(8)(d) … . Ace Fire Underwriters Inc Co v Special Funds Conservation Comm, 2015 NY Slip Op 01574, 1st Dept 2-24-15

 

 

FOIL Request for Police “Intelligence Division” Documents Re: Surveillance of “Middle Eastern, South Asian or Muslim Persons” Properly Denied

The First Department determined the New York City Police Department (NYPD) properly denied a Freedom of Information Law (FOIL) request seeking documents generated by the Intelligence Division of the NYPD which related, in part, to broad categories, such as businesses “frequented” by Middle Eastern, South Asian or Muslim persons.  The court determined the requests were “overbroad,” exempt under the Public Officers Law (law enforcement privilege and danger to  life and safety), and would constitute an invasion of privacy.  With regard to  “danger to life and safety” and “invasion of privacy,” the court wrote:

The court also properly found that the requested disclosure “could endanger the life or safety of any person” (Public Officers Law § 87[2][f]). Granting the broadly worded request for a trove of NYPD Intelligence Division documents replete with sensitive information about the unit’s methods and operations, which could be publicly disseminated and potentially exploited by terrorists, would create “a possibility of endangerment” … . In addition, the court properly recognized that the requested records are exempt from FOIL because disclosure would constitute an unwarranted invasion of personal privacy … . Petitioners emphasize the public interest in scrutinizing whether NYPD engaged in improper surveillance or profiling of certain communities, but this is outweighed by the privacy interests at stake given the specific purpose of this counterterrorism police operation. The revelation that a certain person, business, or organization was the subject of counterterrorism-related surveillance would not only have the potential to be embarrassing or offensive, but could also be detrimental to the reputations or livelihoods of such persons or entities. Matter of Asian Am Legal Defense & Educ Fund v New York City Police Department, 2015 NY Slip OP 01559, 1st Dept 2-24-15

 

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Insufficient Foundation for Introduction of Grand Jury Testimony as Past Recollection Recorded—No Showing Recollection Was “Fairly Fresh” and Accurate at the Time of the Grand Jury Appearance

The First Department, in a full-fledged opinion by Justice Andrias (disagreeing at length with the rationale of the concurring opinion), reversed defendant’s perjury conviction because a witness’ (Woods’) grand jury testimony was wrongly admitted under the past recollection recorded hearsay exception.  Woods testified and remained available to testify when the hearsay exception was invoked.  Woods claimed that he did not know whether he had actual knowledge of past events or whether his memory stemmed from the many “prep” discussions he had had with the prosecutor over a six-year period. There was a six-year gap between the underlying events and Woods’ grand jury appearance. The First Department determined the prosecutor did not lay a sufficient foundation for admission of the grand jury testimony in that it was not shown that Woods’ recollection was “fairly fresh” at the time of the grand jury testimony:

Although there is no rigid rule as to how soon after the event the statement must have been made …, here the assurance of the accuracy of the recordation and its trustworthiness are diminished by the six- year gap between the underlying events, which concluded in 2000, and Woods’s grand jury testimony in 2006 * * * .

The People argue that Woods’s testimony is admissible despite the six-year gap because the trial court found that he was “feigning a lack of memory.” However, even if Woods’s lack of memory demonstrates that he was unable or unwilling to testify, it does not abrogate the People’s obligation to satisfy the foundational requirement that the recollection was fairly fresh when [*5]recorded or adopted.

Nor was Woods able to “presently testify that the record correctly represented his knowledge and recollection when made” … . Although Woods testified that he believed his grand jury testimony was truthful and accurate, he also testified that “[a]s I sit here right now, I can’t tell you if everything that’s in that Grand Jury that I said was … accurate”; that although he “wanted to be accurate” and “wouldn’t testify untruthfully,” he could not swear that “what’s in the … Grand Jury … was exactly what happened,” and that he could not “remember [if] … what I was talking to was my clear recollection or … was resulting from [my prep sessions] with people.” Thus, Woods’s testimony reflects that although he would not have purposefully lied to the grand jury, he could not presently state that his testimony accurately reflected his own recollection of the events in question at the time that he testified before it … . People V DiTommaso, 2015 NY Slip Op 01592, 1st Dept 2-14-15

 

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Under the Criteria Recently Announced by the Court of Appeals, the Proof Was Not Sufficient to Justify Placing the Respondent Under Strict and Intensive Supervision in the Community

The First Department, in a full-fledged opinion by Justice Renwick, applied the criteria recently announced by the Court of Appeals and determined the state had not presented sufficient proof to justify placing the respondent, a sex offender who had served 33 years in prison, under strict and intensive supervision (SIST) in the community.  The opinion is very detailed and defies summary.  Some of the main points follow:

The State of New York brought this Mental Hygiene Law (MHL) article 10 proceeding seeking civil commitment of respondent as a dangerous sex offender. This proceeding, however, preceded the recent pronouncement by the Court of Appeals in Matter of State of New York v Donald DD. (24 NY3d 174 [2014]). In Donald DD., the Court of Appeals limited the evidence that can be used to civilly commit a convicted sex offender, and clarified that a sex offender cannot be subject to civil commitment solely because the individual is diagnosed as suffering from an abnormality that predisposes him to commit sexual offenses. In so doing, the Court of Appeals clarifies the line between civil commitment and penal commitment. In this case, we heed this clarification by dismissing this MHL article 10 proceeding on the ground that the State has failed to establish by clear and convincing evidence that respondent has or will have serious difficulty controlling his behavior. * * *

…[T]he jury found that respondent suffers from a mental abnormality qualifying him for civil management under MHL article 10. Following a dispositional hearing where the State experts and respondent testified, Supreme Court found that respondent is not a dangerous sex offender in need of confinement, and ordered instead that he submit to strict and intensive supervision and treatment (SIST) in the community. * * *

…[T]he statute requires that all offenders subject to civil management, including SIST, must be found to have a mental abnormality as a threshold qualification. MHL § 10.03(i) defines a mental abnormality as “a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct.”

Article 10 authorizes civil confinement only of those sex offenders whose “mental abnormality” involves such a strong disposition to commit sexual misconduct and an inability to control behavior that the person is dangerous to society (MHL §§ 10.03[e], 10.07[f]). MHL article 10, as written, is also designed to provide courts with a mechanism for deciding whether the mental condition of a sex offender suffering from a mental abnormality is so extreme that the more restrictive alternative of confinement is warranted or whether, on the other hand, the least restrictive option, namely SIST, is permitted (see MHL § 10.07[f]).

…[I]n Donald DD. …, the Court of Appeals clarified that the State must prove, separate from a finding of mental abnormality required for civil commitment, that the defendant has serious difficulty controlling his behavior. Specifically, the State must demonstrate that as a result of the “serious mental illness, abnormality or disorder,” a person also would have serious difficulty controlling his behavior if released (24 NY3d at 187, 189).  Matter of State of New York v Frank P, 2015 NY Slip Op 01551, 1st Dept 2-19-15

 

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Presumption Tenants-In-Common Share Equally Can Be Rebutted

The First Department noted that the presumption that tenants-in-common share equally in the common tenancy, that presumption can be rebutted:

“While there is a presumption that tenants-in-common share equally in their common tenancy, such a presumption may be rebutted if the facts show that they hold the tenancy in unequal shares. A court acting in equity may take into account the amounts invested in the property by the respective tenants in determining the shares to which they are entitled” … . Here, the court properly considered defendant’s undisputed testimony that she alone contributed all of the funds utilized to purchase and maintain the property, and that she resided in the home since its purchase.  Ampratwum v Appiah, 2015 NY Slip Op 01533, 1st Dept 2-19-15

 

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Contract with Construction Manager Did Not Give the Manager Sufficient Supervisory Control to Impose Liability Under Labor Law 200, 240 (1) or 246 (1)

The First Department determined the terms of the contract with the construction manager did not afford the manager sufficient control to impose liability under Labor Law 200.  The court further determined the contract did not make the manager an agent for the property owner, such that the manager would be vicariously liable under Labor Law 240 (1) or 246 (1). Plaintiff fell when an elevated plank on which he was standing shifted:

… [T]he CMS (construction management services contra t) specified that [t]he [construction manager] will not supervise, direct, control or have authority over or be responsible for each contractor’s means, methods, techniques, sequences or procedures of construction or the safety precautions and programs incident thereto. If it became apparent that the means and methods of construction proposed by the construction contractors would constitute or create a hazard, then the construction manager was required to notify the Commissioner, or . . . his/her duly authorized representative.”

Where a claim under Labor Law § 200 is based on alleged defects or dangers arising from a subcontractor’s methods or materials, liability cannot be imposed on an owner or general contractor unless it is shown that it exercised some supervisory control over the work … . Defendants established that under the CMS they were not obligated to exercise supervisory control over the construction contractor’s means or methods of work, nor did they assume such responsibility … . Although under the CMS the construction manager had some general duties to monitor safety at the work-site, and defendants’ personnel were on site on a daily basis, these general supervisory duties are insufficient to form a basis for the imposition of liability … .

Defendants also established that they were not the property owner’s statutory agent for purposes of Labor Law §§ 240(1) or 241(6) such that they should be held vicariously liable for plaintiff’s injuries …. The CMS did not confer upon the construction manager the right to exercise supervisory control over the individual contractors, nor were defendants authorized to stop the work if their personnel observed an unsafe practice … . The construction manager was only obligated to notify the project owner or its duly authorized representative of such a situation. DaSilva v Haks Engrs, 2015 NY Slip Op 01380, 1st Dept 2-17-15

 

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Landlord Not Entitled to Reformation of a Lease—Landlord Had Failed to Use Due Diligence Before Signing and Did Not Notice a Deletion Made by Plaintiff—Plaintiff Was Not Obligated to Highlight the Deletion

The First Department determined defendant landlord, sophisticated in business matters, was not entitled to reformation of a lease. The landlord had signed the agreement after the provision capping what the landlord would pay for renovations made by the tenant was deleted.  The renovations ended up costing nearly a year’s rental income. Plaintiff’s failure to “highlight” the deletion did not constitute fraud:

Defendant landlord failed to demonstrate that it was entitled to reformation of the lease amendment providing that it would reimburse plaintiff tenant the total cost of its alterations, rather than a capped amount as had been set forth in drafts circulated during negotiations over the renewal lease. Defendant’s failure to read the final document before signing it precludes its claim of unilateral mistake induced by fraud based on plaintiff’s failure to highlight its deletion of the portion of the provision capping the reimbursement amount, before presenting it to defendant’s in-house counsel for defendant’s signature … . Contrary to this sophisticated defendant’s contention, the justifiability of its reliance does not present an issue of fact barring summary disposition … . Even assuming an obligation to conduct pre-contractual negotiations in good faith in appropriate circumstances, such as would enable a party to rely on the adverse party negotiating in good faith and to assume that there are no new changes to earlier drafts unless the change is highlighted, defendant’s claim for reformation based on the allegation of fraud cannot stand. Defendant simply may not justifiably rely on the absence of such highlighting for its failure to fully review the final version of this four-page document before signing it, especially since the change is on the first page. US Legal Support Inc v Eldad Prime LLC, 2015 NY Slip Op 01386, 1st Dept 2-17-15

 

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First Responder, a NYC Police Officer, Was Entitled to the World Trade Center Presumption that Her Illness, Fibromyalgia, Was Caused by Environmental Exposure at the Site of the 2001 Collapse of the World Trade Center

The First Department, in a full-fledged opinion by Justice Acosta, determined a NYC police officer was entitled to the World Trade Center (WTC) presumption that her illness, fibromyalgia, was caused by her exposure at the site of the World Trade Center collapse in 2001.  The officer was therefore eligible for accidental disability retirement (ADR):

Administrative Code § 13-252.1 provides that “any condition or impairment of health … caused by a qualifying World Trade Center condition” as defined in the Retirement and Social Security Law “shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident … unless the contrary be proved by competent evidence” (§ 13-252.1[1][a]…). “Qualifying World Trade Center condition” is defined to include, among other conditions, “[n]ew onset diseases resulting from exposure as such diseases occur in the future including cancer, asbestos-related disease, heavy metal poisoning, and musculoskeletal disease” (§ 2 [36][c][v] [emphasis added]). * * *

Here, the evidence shows that petitioner did not have fibromyalgia before September 11, 2001, and that she developed disabling fibromyalgia and chronic fatigue syndrome in the wake of her WTC exposure.

Because it was “caused by a qualifying [WTC] condition,” petitioner’s fibromyalgia is presumed to have been “incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by [her] own willful negligence, unless the contrary be proved by competent evidence” (Administrative Code § 13-252.1[1][a]). Respondents bear the burden of showing that petitioner’s qualifying injury was not incurred in the line of duty … . The Board of Trustees’ determination must be supported by credible evidence in the record … .

The significance of the presumption is that, “unlike ordinary ADR claimants, first responders need not submit any evidence — credible or otherwise — of causation to obtain the enhanced benefits” … Thus, the Board “cannot deny ADR benefits by relying solely on the absence of evidence tying the disability to the exposure” … . * * *

…[R]espondents have failed to rebut the presumption that petitioner’s qualifying condition, fibromyalgia, was caused by hazards encountered at the WTC site.  Matter of Sheldon v Kelly, 2015 NY Slip Op 01404, 1st Dept 2-17-15

 

 

Determinative, Purely Legal Arguments Raised for the First Time on Appeal May Be Considered by the Appellate Court

In the context of a mortgage foreclosure action, the First Department noted that arguments raised for the first time on appeal may be considered if the issues are determinative and present purely legal arguments without raising new facts.  Bank of NY v Arthur, 2015 NY Slip Op 01392, 1st Dept 2-17-15

 

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