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A REVOLVER WHICH COULD NOT BE CONNECTED TO THE SHOOTING SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; ERROR HARMLESS HOWEVER (THIRD DEPT).

The Third Department determined the admission into evidence of a revolver which could not be connected to the shooting at issue was (harmless) error:

Defendant next argues that County Court erred in admitting into evidence an operable .38-caliber revolver, containing five spent rounds, that was recovered from a nearby rooftop a few days after the shooting. Testing could not conclusively show that the revolver was used in the shooting or that it had been handled by defendant, but it remained relevant given the circumstances of its recovery and the fact that it could not be ruled out as the one used by the shooter … . The revolver was accordingly admissible unless its probative value was “substantially outweighed by the danger that it [would] unfairly prejudice the other side or mislead the jury,” and County Court attempted to reduce that danger by telling the jury why the revolver was being admitted into evidence and urging it to give the revolver whatever weight it deemed appropriate … . County Court’s ameliorative efforts arguably fell short but, in our view, any resulting error was harmless “in light of the overwhelming testimony identifying defendant as [the] assailant” … . People v Banks, 2020 NY Slip Op 01525, Third Dept 3-5-20

 

THE USE OF THE TERM “VICTIM” TO REFER TO THE COMPLAINING WITNESS AT TRIAL WHERE THE WITNESS’S CREDIBILITY IS IN ISSUE SHOULD BE AVOIDED (THIRD DEPT).

The Third Department noted that referring to the complaining witness using the term “victim” should be avoided at trial where the witness’s credibility is in issue, but found no error in the way the trial judge handled the matter in this sexual-offense case:

In [a] motion in limine, defense counsel sought to preclude references to the “victim,” arguing that they would dilute the presumption of innocence and deprive defendant of a fair trial. Several New York courts have examined this issue in the specific context of jury instructions and have held that it is improper for a trial court to refer to a complainant as the “victim” in a jury charge, but that reversal is not required unless, taken as a whole, the charge does not otherwise convey the proper standards to the jury … . It does not appear that any New York court has analyzed the issue outside the context of jury instructions, but several courts in other jurisdictions have held that the use of the term “victim” by the prosecution or its witnesses should be avoided where, as here, the credibility of the complaining witness is in issue, and that facts such as the context and frequency of the references and the strength of other evidence should be taken into account in determining whether use of the term is reversible error … . Here, although Supreme Court denied defendant’s application, it also agreed that his concern was “well-grounded” and warned counsel to use caution, stating that “[i]t might call the attorneys over” if a witness repeatedly used terms like “victim” or “assailant,” and that police witnesses should not use such terms in such a way as to have an emotional impact on the jury. While we agree with defendant that references to the complaining witness as the “victim” at trial should be avoided when his or her credibility is in issue, we find no error in the court’s treatment of the issue under the circumstances presented here. People v Horton, 2020 NY Slip Op 01530, Third Dept 3-5-20

 

EMPLOYER’S ANSWER TO A QUESTION ON ITS APPLICATION FOR A BOARD REVIEW OF A WORKERS’ COMPENSATION LAW JUDGE’S AWARD OF BENEFITS WAS ADEQUATE AND SHOULD NOT HAVE BEEN THE BASIS OF THE BOARD’S DENIAL OF THE APPLICATION; THE QUESTION CONCERNED WHEN THE EMPLOYER’S OBJECTION TO THE RULING WAS MADE (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the employer’s answer to a question in its application for Board review of the Workers’ Compensation Law Judge’s award of benefits was adequate and did not warrant denial of the application. The question concerned when the objection to the ruling was made:

When the employer filed its application for Board review on March 2, 2018, question number 15 on that form, as well as the accompanying instructions in effect at that time, requested that it “[s]pecify the objection or exception interposed to the ruling and when the objection or exception was interposed as required by 12 NYCRR 300.13 (b) (2) (ii)” … . In response to question number 15, the employer stated, “Upon information and belief an exception/objection was noted prior to the conclusion of the hearing.” The Board found that the employer’s response was incomplete because the employer “failed to identify the date it interposed an objection on the record in response to [question number] 15” … . Although the Board has consistently found that listing the hearing date at which the objection or exception was made constitutes a complete response to question number 15, the regulation only requires the applicant to state when the objection or exception occurred … . Here, the employer’s response to question number 15 stated when the objection was made, that is, at “the conclusion of the hearing,” at which time the employer stated, “A protective exception, please, your Honor.” In our view, the employer’s response stated when the objection occurred, … and, therefore, the response was complete and complied with the Board’s regulatory formatting requirements … . …

We recognize that, in Subject No. 046-1119, the Board announced that “the [hearing] date when the objection or exception was interposed must be listed” in response to question number 15 on the RB-89 form … . However, Subject No. 046-1119 — as well as the Board’s other November 2018 documents providing clarification of its formatting requirements … postdate the instant March 2018 application for Board review and are, therefore, of no import here … . Matter of Granica v Town of Hamburg, 2020 NY Slip Op 01542, Third Dept 3-5-20

 

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PLAINTIFF’S EXPERT DID NOT PRESENT ANY EVIDENCE DEMONSTRATING THE REMOTELY OPERATED CRANE COULD FEASIBLY BE MADE SAFER; THEREFORE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS PRODUCTS LIABILITY CASE WAS PROPERLY GRANTED (THIRD DEPT).

The Third Department determined plaintiff’s expert did not raise a question of fact in this products liability case. Plaintiff’s decedent was killed by a crane operated remotely by plaintiff’s decedent. Defendants’ experts attributed the accident to plaintiff’s decedent’s acts of leaning into the path of the crane and bending over with the remote attached to his hip, causing the crane to be activated inadvertently. Both leaning into the path of the crane and bending over with the remote attached were known to be dangerous and plaintiff’s decedent had trained others accordingly. Although plaintiff’s expert averred that a dead man’s switch would have prevented the accident, he did not present any supporting evidence:

“An expert’s [Darby’s] affidavit — offered as the only evidence to defeat summary judgment — must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation, and would, if offered alone at trial, support a verdict in the proponent’s favor” … . Initially, although Derby alleged that he inspected the remote, his affidavit was not supported by facts of his own independent testing of the device; rather, he relied on deposition testimony of other witnesses to explain the functions of the remote … . Furthermore, although Derby averred that the remote could be made safer by adding a dead man’s switch or by implementing joysticks, he offered no proposed designs that could feasibly be installed … , and, moreover, he pointed to no industry standards or data to support his conclusion that the absence of a dead man’s switch rendered the remote unsafe … . After all, “[a] factual issue regarding design defect is not established merely by pointing to efforts within the industry to make a safer product, without providing some detail as to how the current product is not reasonably safe and how a feasible alternative would be safer” … . Given Derby’s failure to elaborate, and mindful of the testimony of multiple witnesses for defendants who averred that they were not aware of any remote controls in the industry that use a dead man’s switch for crane operations, plaintiff’s proof was insufficient to raise a triable issue regarding design defect … . Darrow v Hetronic Deutschland GMBH, 2020 NY Slip Op 01543, Third Dept 3-5-20

 

BENEFICIARY OF DECEASED CLAIMANT IS ENTITLED TO THE REMAINING WEEKS OF CLAIMANT’S NONSCHEDULE PERMANENT DISABILITY AWARD WHERE CLAIMANT’S DEATH WAS NOT RELATED TO THE COMPENSATED INJURY (THIRD DEPT).

The First Department, in a full-fledged opinion by Justice Colangelo, reversing the Workers’ Compensation Board, in a matter of first impression, determined that claimant’s surviving child was entitled to the weeks of the nonschedule permanent disability award which remained upon claimant’s death, where claimant’s death was not related to the compensated injury:

“With respect to schedule injuries, SLU [schedule loss of use] awards are made to compensate for the loss of earning power or capacity that is presumed to result, as a matter of law, from permanent impairments to statutorily-enumerated body members” … . “By contrast, compensation for a permanent partial disability that arises from a nonschedule injury, i.e., an injury to a body member not specifically enumerated in subsections (a)-(u) [of Workers’ Compensation Law § 15 (3)], is based on a factual determination of the effect that the disability has on the [worker’s] future wage-earning capacity” … . In that regard, whereas an SLU award “is not allocable to any particular period of disability and is independent of any time that the [worker] might lose from work” … , a nonschedule permanent partial disability award under Workers’ Compensation Law § 15 (3) (w) requires a calculation of a worker’s weekly rate of compensation using the worker’s average weekly wages and wage-earning capacity and “specifies the [duration or maximum] number of weeks the worker will receive that weekly sum[] based upon the [worker’s] percentage of lost wage-earning capacity” … . * * *

Until now, we have not had the occasion to address whether any remaining portion or weeks of a nonschedule permanent partial disability award is payable to the beneficiaries identified in Workers’ Compensation Law § 15 (4) upon a claimant’s death “arising from causes other than the [established] injury”… . Subdivision (3) includes both SLU [schedule loss of use] and nonschedule permanent partial disability awards … , and the unqualified language of subdivision (4) — which pertains to “[a]n award made to a claimant under subdivision three” … — neither distinguishes SLU awards from nonschedule permanent partial disability awards, nor contains any limiting language excepting nonschedule permanent partial disability awards from its scope. Given the unambiguous and unqualified language of subdivision (4) … , we see no basis to distinguish SLU and nonschedule awards where the plain language of subdivision (4) applies to any and all awards made under Workers’ Compensation Law § 15 (3). Accordingly, the language employed in Workers’ Compensation Law § 15 (4) reflects that the Legislature intended this subdivision to apply to all permanent partial disability awards made pursuant to subdivision (3) — that is, both SLU and nonschedule permanent partial disability awards … . Matter of Green v Dutchess County BOCES, 2020 NY Slip Op 01546, Third Dept 3-5-20

 

DRIVERS FOR A LIMOUSINE SERVICE WERE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS, UNEMPLOYMENT INSURANCE APPEAL BOARD REVERSED (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined the drivers for the Park West limousine service were not employees and were not entitled to receive unemployment insurance benefits:

A driver apparently had full flexibility in deciding how much and how often to work; drivers would log on to the mobile application at the time and in the geographic zone in which they wanted to work, without an apparent requirement or expectation as to frequency or duration in any given period. The dispatch system would match the driver with work once the driver decided when and where to work … . The drivers determined the routes they wanted to take in transporting the passengers. Drivers had the freedom to utilize substitutes and to work for competitors while working for Park West, and they risked nonpayment of both fares and reimbursement of expenses in the event that the corporate client did not remit payment … . A witness for Park West testified that it encouraged drivers to attend informational sessions to learn how the dispatch system and application operated, as well as to dress and act professionally, so that drivers could maximize their own profits and have success in their entrepreneurial activity, but there was no set dress code … . Although Park West offered window signs to the drivers so that passengers could identify their rides, their use was not required.

… [T]he day-to- day activities of the drivers, including when and where they worked, were controlled by the decisions the drivers made themselves. The drivers had ultimate control over their vehicles and were solely responsible for maintenance and other related expenses in the ownership of their respective vehicles … . The requirements that Park West imposed with respect to licensing, registration and safety were necessitated by laws governing the industry and the rules of the New York City Taxi and Limousine Commission … . Although Park West acted as a liaison between drivers and clients when complaints arose, managing complaints from clients is not conclusive as to the type of employment relationship, as the “requirement that the work be done properly is a condition just as readily required of an independent contractor as of an employee” … . As such, we find that Park West’s control over the drivers was, at most, incidental … . Matter of Escoffery (Park W. Exec. Servs. Inc.–Commissioner of Labor), 2020 NY Slip Op 01422, Third Dept 2-27-20

 

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THE COLLECTIVE BARGAINING AGREEMENT DID NOT ALLOW THE AWARD OF BACK PAY TO AN EMPLOYEE WHO FACED DISCIPLINARY ACTION RELATING TO A CRIMINAL OFFENSE BUT WAS ULTIMATELY ACQUITTED AFTER TRIAL; THEREFORE THE ARBITRATOR EXCEEDED HIS AUTHORITY (THIRD DEPT).

The Third Department determined the arbitrator exceeded his authority in awarding back pay to a corrections officer (Spratley) who was terminated by the Department of Corrections and Community Services (DOCCS) after shooting someone while off-duty. The officer was found not guilty of the criminal offense but was subject to disciplinary action based upon the incident:

… Section 8.4 of the CBA [collective bargaining agreement] sets forth the procedures under which DOCCS may suspend an employee without pay prior to the service of a notice of discipline and the limited circumstances under which back pay is owed following that act. Spratley was suspended without pay pursuant to section 8.4 (a) (2), which, in relevant part, authorizes that step for “an employee charged with the commission of a crime.” The same section provides that, where DOCCS fails to serve a notice of discipline within 30 days of the suspension or seven days after learning of a disposition of the criminal charges, “whichever occurs first,” an award of back pay is called for. There is nothing to suggest, and the arbitrator did not find, that either of those conditions were satisfied. … Section 8.4 (a) (5) provides another path for an award of back pay where the suspended employee does not face related disciplinary action and is “not found guilty” of the pending criminal charges, but Spratley did face related disciplinary action. The CBA accordingly contains no provision for the “retroactive” invalidation of the interim suspension and award of back pay under the circumstances presented, and the arbitrator, who was expressly barred by a term of the CBA from adding to, subtracting from or otherwise modifying its provisions, was powerless to add one … . Thus, the arbitrator exceeded his authority in making an award of back pay, and Supreme Court should have granted respondents’ cross motion to the extent of vacating that award. Matter of Spratley (New York State Dept. of Corr. & Community Supervision), 2020 NY Slip Op 01424, Third Dept 2-27-20

 

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ONCE A COURT SENTENCES A DEFENDANT TO SHOCK INCARCERATION, THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) DOES NOT HAVE THE AUTHORITY TO DETERMINE THE DEFENDANT IS NOT ELIGIBLE; APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department, in full-fledged opinion by Justice Reynolds Fitzgerald, determined the Department of Corrections and Community Supervision (DOCCS) did not have the authority to find the peititioner was not eligible for the shock incarceration based upon his drug-related prison disciplinary history. Although the appeal was moot because petitioner had completed the program, the appeal was heard as an exception to the mootness doctrine because the scenario is likely to recur:

Once an inmate has been judicially ordered into the program, DOCCS’ participation under Penal Law § 60.04 (7) is expressly limited to its administration of the program, i.e., the completion, discipline and removal of an inmate from the program. If the Legislature intended DOCCS to have administrative discretion as to the eligibility criteria, it could have said so. It is a canon of statutory interpretation that a court cannot by implication supply in a statute a provision that it is reasonable to suppose the Legislature intended to omit (see McKinney’s Cons Laws of NY, Statutes § 74). The doctrine of expressio unius est exclusio alterius applies. The specification that DOCCS shall oversee completion, discipline and removal from the program implies in the strongest sense that the omission of DOCCS’ administrative eligibility regulation was intentional and not inadvertent … . Matter of Matzell v Annucci, 2020 NY Slip Op 01425. Third Dept 2-27-20

 

CLAIMANT IS ENTITLED TO SIMULTANEOUSLY RECEIVE AN AWARD FOR A SCHEDULE LOSS OF USE AND A PERMANENT PARTIAL DISABILITY CLASSIFICATION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, reversing the Workers’ Compensation Board, determined claimant was entitled to simultaneously receive an award for a schedule loss of use (SLU) and a permanent partial disability classification:

… Workers’ Compensation Law § 15 (3) permits a simultaneous SLU award and nonschedule classification for impairments that arise out of the same work-related accident where the claimant has returned to work at preinjury wages. * * *

… [W]hen a claimant who has sustained a permanent impairment to a member has returned to work at preinjury wages, it is mere speculation that an award will ever be made for nonschedule injuries arising from the same accident. Although the Board may be appropriately concerned about the possibility of double payment or recovery if and when a claimant experiences actual lost wages, this circumstance was provided for within Matter of Taher v Yiota Taxi, Inc. (162 AD3d at 1290 n 2). Additionally, the withholding of an SLU award in favor of the “virtual banking” of nonschedule cap weeks adds unnecessary complexity in the event that a claimant suffers a death that is unrelated to the established sites of injury … .  We further note that the Board’s position strongly incentivizes injured claimants with schedule and nonschedule permanent impairments arising from the same work-related accident who are capable of returning to work at preinjury wages not to do so in order to collect a nonschedule award. Matter of Arias v City of New York, 2020 NY Slip Op 01429, Third Dept 2-27-20

 

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FAMILY COURT SHOULD NOT HAVE, SUA SPONTE, TERMINATED MOTHER’S PARENTAL RIGHTS ON MENTAL-ILLNESS GROUNDS IN THE ABSENCE OF THE STATUTORILY-REQUIRED PSYCHOLOGICAL EVALUATION (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have terminated mother’s parental right on mental-illness grounds without the results of the statutorily-required examination. The psychologist appointed to evaluate mother (Horenstein) did not do so and rendered his opinion based upon a review of records of her hospitalization:

Pursuant to Social Services Law § 384-b (6) (e), the court is required to order the parent, alleged to be mentally ill, to be examined by a qualified psychiatrist or psychologist and shall take testimony from the appointed expert … . Significantly, paragraph (c) of subdivision 6 prohibits a determination as to the legal sufficiency of the proof until such testimony is taken … . An exception exists “[i]f the parent refuses to submit to such court-ordered examination, or if the parent renders himself [or herself] unavailable . . . by departing from the state or by concealing himself [or herself] therein” … . In such instance, “the appointed psychologist or psychiatrist, upon the basis of other available information, . . . may testify without an examination of such parent, provided that such other information affords a reasonable basis for his [or her] opinion” … . * * *

… [W]e conclude that Family Court erred in proceeding with the termination of respondent’s parental rights without the statutorily-required examination. Horenstein pointed out that there was no basis to find that respondent refused to be evaluated. Nor did respondent make herself unavailable “by departing from the state or by concealing [herself] therein” … . To the contrary, her placement in CDPC was involuntary and, despite her release by December 1, 2017, no further attempt was made to schedule an evaluation. Because the statutory exception does not apply, Family Court lacked authority to determine the legal sufficiency of the proof without a contemporaneous evaluation … . Even though respondent raised no objection at the hearing, this statutory mandate requires that we remit the matter to Family Court for a new hearing and determination … . Matter of Rahsaan I. (Simone J.), 2020 NY Slip Op 01212, Third Dept 2-20-20

 

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