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DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION.

The Fourth Department, reversing Supreme Court, determined the New York State Department of Human Rights’ (SDHR’s) ruling, without a hearing, there was no probable cause to believe petitioner was discriminated or retaliated against because of her disability was not arbitrary or capricious and had a rational basis:

“Where, as here, SDHR renders a determination of no probable cause without holding a hearing, the appropriate standard of review is whether the probable cause determination was arbitrary and capricious or lacked a rational basis’ ” … . We agree with respondent that the court erred in disturbing SDHR’s determination based upon, inter alia, its failure to conduct a hearing. “Courts give deference to SDHR due to its experience and expertise in evaluating allegations of discrimination” … , and “such deference extends to [SDHR’s] decision whether to conduct a hearing” … . SDHR has the discretion to determine the method to be used in investigating a claim, and “a hearing is not required in all cases” … . Inasmuch as “the parties made extensive submissions to [SDHR], petitioner was given an opportunity to present [her] case, and the record shows that the submissions were in fact considered, the determination cannot be arbitrary and capricious merely because no hearing was held’ … . * * *

Here, we conclude that “the conflicting evidence before SDHR did not create a material issue of fact that warranted a formal hearing” … . Rather, we agree with respondent that a rational basis supports SDHR’s determination that, based upon all of the facts and circumstances, there is no factual basis in the evidence sufficient to warrant a cautious person to believe that respondent unlawfully discriminated against petitioner based on her disability ,,, . In addition, SDHR rationally determined that the evidence did not support petitioner’s allegation that respondent subjected her to a hostile work environment … . Finally, we conclude that SDHR’s determination that there was no probable cause to believe that respondent retaliated against petitioner is not arbitrary or capricious, and it has a rational basis in the record … . Matter of McDonald v New York State Div. of Human Rights, 2017 NY Slip Op 01060, 4th Dept 2-10-17

 

EMPLOYMENT LAW (DISABILITY DISCRIMINATION, DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION)/HUMAN RIGHTS LAW (NYS) (EMPLOYMENT DISCRIMINATION, DISABILITY DISCRIMINATION, DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION)/DISABILITIES (EMPLOYMENT DISCRIMINATION, HUMAN RIGHTS LAW, DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION)

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GLAZIERS ENROLLED IN AN APPRENTICE PROGRAM SHOULD BE PAID AS APPRENTICES EVEN IF THE WORK FOR WHICH THEY ARE PAID IS NOT IN THE SAME TRADE AS THE APPRENTICESHIP PROGRAM.

The Fourth Department, over a dissent, determined the Department of Labor’s interpretation of a statute was wrong and reversed. The case concerned whether glaziers enrolled in an apprentice program should be paid as apprentices even if the work for which they are paid is not in the same trade or occupation as the apprenticeship program:

In reviewing Labor Law § 220 as a whole, we conclude that nothing in that statute establishes any basis for a different interpretation of section 220 (3-e). Rather, we note that the very limitation defendants seek to impose on section 220 (3-e), i.e., a limitation to work in the same trade or occupation, was added to other subdivisions of Labor Law § 220 (see § 220 [3] [a], [b]). When “the Legislature uses unlike terms in different parts of a statute it is reasonable to infer that a dissimilar meaning is intended” … . The fact that the Legislature did not add similar restrictive language to section 220 (3-e) further supports our conclusion that no such restriction was intended, and this Court will not “amend [the] statute by inserting words that are not there” … .

Inasmuch as “the language of [the] statute is clear and unambiguous, [we] must give effect to its plain meaning” … , and we may not “resort to extrinsic material such as legislative history or memoranda” … . We thus conclude that Labor Law § 220 (3-e), by its terms, permits glazier apprentices who are registered, individually, under a bona fide glazier apprenticeship program to work and be paid as apprentices even if the work they are performing is not work in the same trade or occupation as their apprenticeship program. International Union of Painters & Allied Trades v New York State Dept. of Labor, 2017 NY Slip Op 01112. 4th Dept 2-10-17

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AFTER APPEAL AND REMITTAL, DEFENDANT WAS ENTITLED TO PUT ON A DEFENSE AFTER THE MOTION FOR A TRIAL ORDER OF DISMISSAL WAS DENIED; PRIOR TO THE APPEAL THE VERDICT HAD BEEN PREMATURELY ANNOUNCED WITHOUT ANY RULING ON THE TRIAL ORDER OF DISMISSAL MOTION.

The Fourth Department determined defendant was entitled to the opportunity to present a defense after the motion for a trial order of dismissal was denied:

When the appeal was previously before us, we held the case, reserved decision, and remitted the matter to County Court for a ruling on the motion for a trial order of dismissal “following such further proceedings as may be necessary” … . Upon remittal, the court … denied the motion … . … [T]he court did not afford defendant the opportunity to present a defense, notwithstanding that defendant had not rested and the proof was not closed. Contrary to the court’s conclusion, the fact that we did not set aside its premature verdict [the motion for a trial order of dismissal had not been ruled on] when the appeal was previously before us did not preclude it from considering further proof or making new factual determinations … . We therefore hold the case, reserve decision, and remit the matter to County Court to afford defendant the opportunity to present a defense. People v White, 2017 NY Slip Op 01058, 4th Dept 2-10-17

CRIMINAL LAW (AFTER APPEAL AND REMITTAL, DEFENDANT WAS ENTITLED TO PUT ON A DEFENSE AFTER THE MOTION FOR TRIAL ORDER OF DISMISSAL WAS DENIED, PRIOR TO THE APPEAL THE VERDICT HAD BEEN PREMATURELY ANNOUNCED WITHOUT ANY RULING ON THE TRIAL ORDER OF DISMISSAL MOTION)/TRIAL ORDER OF DISMISSAL, MOTION FOR AFTER APPEAL AND REMITTAL, DEFENDANT WAS ENTITLED TO PUT ON A DEFENSE AFTER MOTION FOR TRIAL ORDER OF DISMISSAL DENIED, PRIOR TO THE APPEAL THE VERDICT HAD BEEN PREMATURELY ANNOUNCED WITHOUT ANY RULING ON THE TRIAL ORDER OF DISMISSAL MOTION)/APPEALS (CRIMINAL LAW, AFTER APPEAL AND REMITTAL, DEFENDANT WAS ENTITLED TO PUT ON A DEFENSE AFTER THE MOTION FOR TRIAL ORDER OF DISMISSAL WAS DENIED, PRIOR TO THE APPEAL THE VERDICT HAD BEEN PREMATURELY ANNOUNCED WITHOUT ANY RULING ON THE TRIAL ORDER OF DISMISSAL MOTION)

CROSSING THE CENTER LINE AND TRAVELING IN THE ONCOMING LANE PROVIDED PROBABLE CAUSE FOR THE VEHICLE STOP, GRANT OF MOTION TO SUPPRESS REVERSED.

The Fourth Department, reversing County Court, determined there was probable cause for the stop in this DWI case. Defendant was observed the deputy driving in the oncoming traffic lane for two tenths of a mile:

We agree with the People that the stop was based on probable cause and thus that County Court erred in granting that part of defendant’s motion seeking suppression. The arresting deputy testified at the Dunaway hearing that he personally observed defendant’s vehicle cross the center line and proceed into the lane for oncoming traffic. The vehicle remained in that lane for approximately two-tenths of a mile, in violation of Vehicle and Traffic Law § 1120 (a). Thus, the deputy, having personally observed the violation, had probable cause to stop the vehicle … . Once the deputy effectuated the stop, he noticed that defendant’s eyes were watery and bloodshot, and he smelled the strong odor of alcohol on her breath. He conducted a series of field sobriety tests, all of which defendant failed. Thus, the deputy had probable cause to arrest defendant for driving while intoxicated ,,, , People v Lewis, 2017 NY Slip Op 01059, 4th Dept 2-10-17

CRIMINAL LAW (CROSSING THE CENTER LINE AND TRAVELING IN THE ONCOMING LANE PROVIDED PROBABLE CAUSE FOR THE VEHICLE STOP, GRANT OF MOTION TO SUPPRESS REVERSED)/VEHICLE STOPS (CROSSING THE CENTER LINE AND TRAVELING IN THE ONCOMING LANE PROVIDED PROBABLE CAUSE FOR THE VEHICLE STOP, GRANT OF MOTION TO SUPPRESS REVERSED)

JUDGE DID NOT PUT ON THE RECORD THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS, CASE REMITTED.

The Fourth Department remitted the case to Supreme Court because the reasons for denial of youthful offender status were not put on the record:

Where, as here, “a defendant has been convicted of an armed felony or an enumerated sex offense pursuant to CPL 720.10 (2) (a) (ii) or (iii), and the only barrier to his or her youthful offender eligibility is that conviction, the court is required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3). The court must make such a determination on the record even where [the] defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request’ pursuant to a plea bargain . . . If the court determines, in its discretion, that neither of the CPL 720.10 (3) factors exist and states the reasons for that determination on the record, no further determination by the court is required. If, however, the court determines that one or more of the CPL 720.10 (3) factors are present, and the defendant is therefore an eligible youth, the court then must determine whether or not the eligible youth is a youthful offender’ ” … . People v Dukes, 2017 NY Slip Op 01105, 4th Dept 2-10-17

CRIMINAL LAW (JUDGE DID NOT PUT ON THE RECORD THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS, CASE REMITTED)/YOUTHFUL OFFENDER (JUDGE DID NOT PUT ON THE RECORD THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS, CASE REMITTED)

LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED.

The Fourth Department, reversing defendant’s conviction, determined defense counsel’s late request to exercise a peremptory challenge to a juror should not have been denied:

Here, defense counsel momentarily lost count of the number of jurors who had been selected. As a result, defense counsel declined to exercise a peremptory challenge to prospective juror 21. When informed that prospective juror 21 was the 12th juror seated, defense counsel immediately asked the court to allow defendant to exercise his last peremptory challenge to that juror. The jury had not yet been sworn, the panel from which the alternates would be selected had not yet been called, and prospective juror 21 had not yet been informed that he had been selected. Furthermore, the People expressly declined to object to the request. Under the circumstances of this case, we conclude that the court abused its discretion in denying defendant’s request. Indeed, ” we can detect no discernable interference or undue delay caused by [defense counsel’s] momentary oversight . . . that would justify [the court’s] hasty refusal to entertain [the] challenge’ ” … . Such an error cannot be deemed harmless … . People v Scerbo, 2017 NY Slip Op 01073, 4th Dept 2-10-17

CRIMINAL LAW (LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED)/JURORS (CRIMINAL LAW, LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED)/PEREMPTORY CHALLENGE CRIMINAL LAW, JURORS, (LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED)

PLACE OF BUSINESS EXCEPTION TO CRIMINAL POSSESSION OF A WEAPON DID NOT APPLY WHERE DEFENDANT’S EMPLOYER PROHIBITED POSSESSION OF FIREARMS IN THE WORKPLACE.

The Fourth Department, over a dissent, determined defendant was not entitled to the exception to the criminal possession of a weapon statute for possession in a person’s “place of business” (reducing the offense to a misdemeanor). Here defendant brought a firearm to work at McDonald’s and shot himself in the leg. The court reasoned the “place of business” exception did not apply because McDonald’s prohibited its employees from carrying firearms:

Although the “place of business” exception is not statutorily defined, it has been “construed narrowly by the courts in an effort to balance the State’s strong policy to severely restrict possession of any firearm’ . . . with its policy to treat with leniency persons attempting to protect certain areas in which they have a possessory interest and to which members of the public have limited access” … . Inasmuch as the evidence at trial established that defendant was prohibited from bringing a gun to work, we conclude that to permit defendant to be subjected only to a misdemeanor “would certainly controvert the meaning and intent of the statute” … . People v Wallace, 2017 NY Slip Op 01071, 4th Dept 2-10-17

CRIMINAL LAW (PLACE OF BUSINESS EXCEPTION TO CRIMINAL POSSESSION OF A WEAPON DID NOT APPLY WHERE DEFENDANT’S EMPLOYER PROHIBITED POSSESSION OF FIREARMS IN THE WORKPLACE)/WEAPONS, CRIMINAL POSSESSION (PLACE OF BUSINESS EXCEPTION TO CRIMINAL POSSESSION OF A WEAPON DID NOT APPLY WHERE DEFENDANT’S EMPLOYER PROHIBITED POSSESSION OF FIREARMS IN THE WORKPLACE)

DEFENDANT SHOULD HAVE BEEN ALLOWED TO TESTIFY BEFORE THE GRAND JURY EVEN THOUGH THE REQUEST WAS MADE AFTER THE GRAND JURY HAD VOTED TO INDICT.

The Fourth Department, reversing County Court, determined defendant was entitled to testify before the grand jury, even though his request was received by the district attorney after deadlines had passed and after the grand jury had voted to indictment (but before filing of the indictment):

As the Court of Appeals has noted, a defendant has a right “under CPL 190.50 (5) (a) to provide notice and, therefore, the concomitant right to give testimony even perhaps after an indictment has been voted but before it is filed” … . Where, as here, defendant’s request to testify is received after the grand jury has voted, but before the filing of the indictment, defendant is entitled to a reopening of the proceeding to enable the grand jury to hear defendant’s testimony and to revote the case, if the grand jury be so advised … . People v White, 2017 NY Slip Op 01070, 4th Dept 2-10-17

CRIMINAL LAW (DEFENDANT SHOULD HAVE BEEN ALLOWED TO TESTIFY BEFORE THE GRAND JURY EVEN THOUGH THE REQUEST WAS MADE AFTER THE GRAND JURY HAD VOTED TO INDICT)/GRAND JURY (DEFENDANT SHOULD HAVE BEEN ALLOWED TO TESTIFY BEFORE THE GRAND JURY EVEN THOUGH THE REQUEST WAS MADE AFTER THE GRAND JURY HAD VOTED TO INDICT)

INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND.

The Fourth Department reduced defendant’s conviction from assault first to assault second based upon insufficient proof of serious physical injury. The victim was shot in the leg:

Although the victim displayed to the jury scars on his leg caused by his gunshot wounds, “the record does not contain any pictures or descriptions of what the jury saw so as to prove that these scars constitute serious or protracted disfigurement” … . Furthermore, although the victim testified that he “feel[s] pain in [his] leg” in cold weather, we conclude that such testimony does not constitute evidence of persistent pain so severe as to cause “protracted impairment of health” … . People v Romero, 2017 NY Slip Op 01069, 4th Dept 2-10-17

CRIMINAL LAW (INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND)/ASSAULT (CRIMINAL LAW, INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND)/SERIOUS PHYSICAL INJURY (CRIMINAL LAW, ASSSAULT, INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND)

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DISCLAIMER IN SUBCONTRACT IS AMBIGUOUS, MOTION TO DISMISS FRAUD COUNTERCLAIM BASED UPON THE DISCLAIMER SHOULD NOT HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether a disclaimer in a subcontract precluded the fraud counterclaim. The court further determined the fraud counterclaim was not duplicative of the breach of contract counterclaim and the fraud counterclaim was pled with sufficient specificity. Plaintiff, Pike, did concrete and steel construction work. Defendant subcontractor, Jersen, was hired to do masonry work:

The fraud counterclaim is the sole focus of this appeal. In that counterclaim, Jersen alleged that, before it began work on the project, Pike was informed by at least one of its other subcontractors that its substrate work was not “accurate, flat or level,” i.e., was deficient. Nevertheless, Pike represented to Jersen that the substrate work “had been erected in accordance with the contract requirements and was plumb, level, and true and that [Pike] had performed a professional survey of the structural steel to confirm the same.” Jersen alleged that Pike’s representations to Jersen “were false,” and that Pike “concealed and recklessly withheld from Jersen knowledge that the substrate was not dimensionally accurate, flat or level.” Additionally, Jersen alleged that Pike made those false representations “in order to deceive Jersen and induce Jersen to commence installation upon the substrate.” Jersen further alleged that it relied on Pike’s representations and would not have commenced installation of the masonry work had Pike not misrepresented to Jersen that the substrate had been installed in accordance with the contract requirements. According to Jersen, it suffered damages as a result of its reliance on Pike’s false representations. * * *

We conclude that the subcontract is ambiguous whether the disclaimer clause in section 1.8 precludes Jersen from relying on any opinions or representations concerning work performed by others after Jersen executed the subcontract, and thus that section 1.8 does not “conclusively establish[ ] a defense” to the counterclaim for fraud … . Pike Co., Inc. v Jersen Constr. Group, LLC, 2017 NY Slip Op 01116, 4th Dept 2-10-17

CONTRACT LAW (DISCLAIMER IN SUBCONTRACT IS AMBIGUOUS, MOTION TO DISMISS FRAUD COUNTERCLAIM BASED UPON THE DISCLAIMER SHOULD NOT HAVE BEEN GRANTED)/FRAUD (DISCLAIMER IN SUBCONTRACT IS AMBIGUOUS, MOTION TO DISMISS FRAUD COUNTERCLAIM BASED UPON THE DISCLAIMER SHOULD NOT HAVE BEEN GRANTED)/DISCLAIMER (CONTRACT LAW, FRAUD, DISCLAIMER IN SUBCONTRACT IS AMBIGUOUS, MOTION TO DISMISS FRAUD COUNTERCLAIM BASED UPON THE DISCLAIMER SHOULD NOT HAVE BEEN GRANTED)

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