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PATIENT ADVOCATES WHO ACCOMPANY THE CLIENTS OF PERSONAL INJURY LAW FIRMS TO INDEPENDENT MEDICAL EXAMINATIONS ARE EMPLOYEES ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimants were employees of IME, which paid claimants (patient advocates) to accompany clients of personal injury law firms during independent medical examinations. Therefore claimants were entitled to unemployment insurance benefits:

IME advertised for patient advocates, who were required to submit resumÉs and to be interviewed. IME then imposed very specific requirements governing nearly every aspect of the work of the patient advocates that it hired. An official handbook set forth detailed instructions specifying the procedures that advocates were expected to follow during patient examinations, including instructions to immediately call the IME office upon arrival or if the examining physician required intake paperwork. The handbook also contained a script that advocates were expected to read to physicians at the beginning of every examination and specified the precise content of the reports that were required to be prepared. IME exercised control over work assignments by determining which patient advocates would be offered the opportunity to attend any particular examination, by assigning specific patient advocates in response to customer requests and by arranging for replacements when a patient advocate was unable to report to an assigned examination. IME staff reviewed all reports that were submitted. In response to complaints that it had received from customers, IME sent a memorandum to patient advocates describing common errors and admonishing them to follow the prescribed protocol and thereafter conducted a mandatory meeting regarding the required content and format of the reports. Matter of Bloomfield (IME Watchdog, Inc.), 2019 NY Slip Op 06556, Third Dept 9-12-19

 

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DEFENDANT’S AFFIRMATIVE DEFENSES SHOULD HAVE BEEN CONSIDERED IN ITS MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S ACTION AGAINST DEFENDANT BASED UPON HER DISMISSAL FROM A NURSING PROGRAM SHOULD HAVE BEEN BROUGHT IN AN ARTICLE 78 PROCEEDING AND WAS THEREFORE TIME-BARRED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the court should have considered defendant’s affirmative defenses, including the statute of limitations defense, in determining defendant’s summary judgment motion. Plaintiff brought fraud, breach of contract and prima facie tort causes of action against defendant. Plaintiff was enrolled in defendant’s licensed practical nurse (LPN) program and was dismissed by defendant based upon plaintiff’s performance in a clinical setting. The Third Department held that the action should have been brought in an Article 78 proceeding and was time-barred:

Supreme Court should have considered defendant’s affirmative defenses on the summary judgment motion. Although the notice of motion did not cite CPLR 3211 (a), it did seek dismissal of the complaint in its entirety, as well as “such other and further relief” as the court deemed just and proper, and defendant’s memorandum of law, submitted with the motion, addressed dismissal based on the statute of limitations and failure to exhaust administrative remedies, thereby providing plaintiff with adequate notice of these bases for the motion. … A defendant may raise an affirmative defense listed in CPLR 3211 (a) in a pre-answer motion to dismiss or, for most of those grounds, “may instead choose to raise that defense in its answer, and either move on that ground later in a motion for summary judgment, or wait until trial to have it determined” … . * * *

Plaintiff’s separate causes of action sounding in breach of contract, fraud and prima facie tort are all, at their core, challenges to defendant’s actions in dismissing her from the LPN program in a manner that allegedly was not in good faith and was without a sound factual basis, rendering her dismissal arbitrary and capricious. Thus, she should have brought her challenge in a CPLR article 78 proceeding. Although courts generally possess the authority to convert a plenary action to a CPLR article 78 proceeding if jurisdiction of the parties has been obtained (see CPLR 103 [c]), conversion is not appropriate where the claims are barred by the four-month statute of limitations governing CPLR article 78 proceedings … . Meisner v Hamilton, Fulton, Montgomery Bd. of Coop. Educ. Servs., 2019 NY Slip Op 06558, Third Dept 9-12-19

 

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OUT-OF-POSSESSION LANDLORD NOT LIABLE FOR A SLIP AND FALL ON ICE ON THE RENTAL PROPERTY, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant out-of-possession landlord did not have a contractual duty to remove ice and snow and did not have actual or constructive notice of the icy condition on the rental property in this slip and fall case:

“As a general rule, an out-of-possession landlord is not responsible for dangerous conditions existing upon leased premises after possession of the premises has been transferred to the tenant. Exceptions to this rule include situations where the landlord retains control of the premises, has specifically contracted to repair or maintain the property, has through a course of conduct assumed a responsibility to maintain or repair the property or has affirmatively created a dangerous condition thereon” … . “[W]hen a landowner and one in actual possession have committed their rights and obligations with regard to the property to a writing, [courts] look not only to the terms of the agreement but to the parties’ course of conduct . . . to determine whether the landowner in fact surrendered control over the property such that the landowner’s duty is extinguished as a matter of law” … . However, the fact that a landlord “retain[s] the right to visit the premises, or even to approve alterations, additions or improvements, is insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord” … .

… “[W]ithout notice of a specific dangerous condition, an out-of-possession landlord cannot be faulted for failing to repair or otherwise rectify it” … . “Accordingly, the [ultimate] burden is on the plaintiff to prove actual or constructive notice and a reasonable opportunity to repair or remedy the dangerous condition” … . Rose v Kozak, 2019 NY Slip Op 06559, Third Dept 9-12-19

 

AMENDMENT OF THE WORKERS’ COMPENSATION LAW TO REMOVE THE REQUIREMENT THAT A CLAIMANT DEMONSTRATE ATTACHMENT TO THE LABOR MARKET TO BE ENTITLED TO PERMANENT PARTIAL DISABILITY PAYMENTS DID NOT APPLY RETROACTIVELY TO CLAIMANT (SECOND DEPT).

The Third Department determined claimant was deemed to have involuntarily retired and no longer attached to the labor market in August 2015, well before the amendment of the Workers’ Compensation Law which removed the requirement that a claimant demonstrate attachment to the labor market to be entitled to permanent partial disability payments. The amendment did not apply to claimant retroactively:

… [T]he amendment states, in pertinent part, that in some cases of permanent partial disability, “[c]ompensation . . . shall be payable during the continuance of such permanent partial disability, without the necessity for the claimant who is entitled to benefits at the time of classification to demonstrate ongoing attachment to the labor market” (Workers’ Compensation Law § 15 [3] [w] … ). In sum, the amendment relieves some claimants who have been classified as permanently partially disabled of the burden of having to demonstrate ongoing attachment to the labor market in order to continue to receive wage replacement benefits … . * * *

… [C]laimant was classified as permanently partially disabled in July 2014, and proceedings were conducted before the WCLJ in August 2014 on the issues of claimant’s labor market attachment and voluntary withdrawal. The WLCJ concluded that claimant did not voluntarily retire and was not attached to the labor market, and the Board affirmed the WCLJ’s decision in August 2015. … [T]he Board’s August 2015 decision was issued well before the effective date of the amendment and, as such, this is not a situation in which retroactive application of the amendment is appropriate. Given that the Board declined to apply the amendment retroactively so as to relieve claimant of his obligation to demonstrate ongoing attachment to the labor market in order to continue to receive permanent partial disability benefits, we decline to disturb the Board’s decision. Matter of Pryer v Incorporated Vil. of Hempstead, 2019 NY Slip Op 06561, Third Dept 9-12-19

 

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TOWN LAW DID NOT PROHIBIT PETITIONER FROM RUNNING FOR TOWN JUSTICE IN TWO DIFFERENT TOWNS SIMULTANEOUSLY (THIRD DEPT).

The Third Department determined the Town Law did not prohibit simultaneously running for Town Justice in two different towns:

At issue is the portion of Town Law § 20 (4) providing that “[n]o person shall be eligible to hold more than one elective town office.” Petitioner interprets this to mean that no person may hold more than one elective office, even if those offices are in separate towns. Bacon [respondent] asserts that this language prohibits a person from holding more than one elective office only within the same town. Because the quoted language is ambiguous and both proffered interpretations are reasonable, we must view the language in the context of the whole statute … . …

Viewing the prohibition in context, Town Law § 20 makes provision for town offices for each town, by class, and contains no other language suggesting that one person cannot fulfill elective town offices in more than one town. Moreover, the prohibition is contained in the same sentence as a provision allowing a town board to consolidate its own town offices and positions, strongly suggesting that the entire subdivision (4) of Town Law § 20 refers to what is permitted in an individual town. …

We further agree with Supreme Court that the offices of town justice in separate towns are not incompatible offices. …Serving as town justice in two separate towns involves jurisdiction over separate, defined geographic town boundaries and each town court thereof (see Town Law § 2). Moreover, the Legislature has expressly recognized that one person may, under certain circumstances, serve as town justice in more than one town (see UJCA 106 [2]; 106-a, 106-b). Although those circumstances are not present here, these statutes indicate the Legislature’s view that no conflict exists to prevent a person from serving as town justice in two towns simultaneously. Matter of Nichols v Bacon, 2019 NY Slip Op 06434, Third Dept 8-29-19

 

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CRIME VICTIMS DO NOT HAVE STANDING TO CHALLENGE A PRISONER’S RELEASE ON PAROLE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, over a concurrence and a dissent, determined that the wife of a police officer murdered in 1971 did not, as a crime victim, have standing to bring an Article 78 proceeding challenging the release on parole of Herman Bell, who was convicted of the murder. Crime victims do not have standing to challenge parole determinations:

As noted by one court that has previously addressed the issue before us: “While a relative of a crime victim may be more emotionally affected by the crime than a member of the general public, that increased emotional effect is not sufficient to confer standing. While statutes have been enacted to permit crime victims the right to be heard at certain proceedings (see [CPL] 380.50), their status as crime victims has not been held to confer standing to them at any proceeding. Executive Law § 259[-]i sets forth the procedures to be followed by the [B]oard of [P]arole. Executive Law § 259[-]i (2) (c) (A) provides that when considering whether or not to grant discretionary parole release, the [B]oard must consider ‘any statement made to the [B]oard by the crime victim or the crime victim’s representative where the crime victim is deceased[.]’ The statute does not authorize any further participation in the process by a crime victim or the representative of a victim. It does not serve to confer standing to a victim who desires to challenge the determination. While the [c]ourt does not question whether the families of the victims of crime continue to suffer real emotional effects, there has not been a showing of any legal right that is affected by the determination which they seek to challenge” … . Matter of Piagentini v New York State Bd. of Parole, 2019 NY Slip Op 06229, Third Dept 8-22-19

 

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THE SOURCE CODE USED TO CONNECT DNA FROM THE MURDER SCENE TO THE DEFENDANT GENERATED A REPORT WHICH IMPLICATED THE DEFENDANT AND WAS THEREFORE TESTIMONIAL, HOWEVER, THE SOURCE CODE, AS A FORM OF ARTIFICIAL INTELLIGENCE, WAS NOT THE DECLARANT; THEREFORE THE FACT THAT DEFENDANT WAS NOT PROVIDED WITH THE SOURCE CODE DID NOT VIOLATE HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, over a concurrence, determined the evidence concerning the TrueAllele source code used to connect the DNA found at the murder scene to the defendant was testimonial, but the source code, as artificial intelligence, was not the declarant. Therefore the fact that the defendant was not provided with the source code (which was not requested by the defendant during the trial) did not deprive defendant of the right to confront the witnesses against him. Rather, the Third Department found, the witness who testified about how the source code was used in the DNA testing was the declarant. Defendant had raised the intriguing question whether the source code, as a form of artificial intelligence, was the actual declarant triggering the right of confrontation:

Cybergenetics was “acting in the role of assisting the police and prosecutors in developing evidence for use at trial” … . Also, the report reflects TrueAllele’s conclusions “upon review of the raw data associated with the testing” … . TrueAllele, by running at the source code’s direction, compared DNA found at the crime scene to that of defendant’s DNA and generated the report containing the likelihood ratios, which, in effect, implicates defendant in the murder; thus, it is clearly biased in favor of law enforcement … . Accordingly, application of the primary purpose test reveals that the TrueAllele report is testimonial in nature … .

Despite concluding that the TrueAllele report is testimonial, we do not find, given the particular facts of this case, that the source code, even through the medium of the computer, is a declarant. This is not to say that an artificial intelligence-type system could never be a declarant, nor is there little doubt that the report and likelihood ratios at issue were derived through distributed cognition between technology and humans … . Indeed, similar to many expert reports, the testimonial aspects of the TrueAllele report are formulated through a synergy and distributed cognition continuum between human and machine … , but this fact alone does not tip the scale so far as to transform the source code into a declarant. People v Wakefield, 2019 NY Slip Op 06143, Third Department, 8-15-19

 

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NO PRIVATE RIGHT OF ACTION FOR A DEVELOPMENTALLY DISABLED CHILD HOUSED FOR MORE THAN FIVE WEEKS IN A HOSPITAL EMERGENCY ROOM BECAUSE NO APPROPRIATE RESIDENTIAL FACILITY WAS AVAILABLE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, considering the appeal under an exception to the mootness doctrine, determined a 16-year-old developmentally disabled child (Olivia) did not have a private right of action against Champlain Valley Physicians Hospital (CVPH), the Office for People with Developmental Disabilities (OPWDD) or the Department of Health (DOH) for housing her in the CVPH emergency room when no appropriate residential facility was available. The opinion is too comprehensive and covers too many substantive issues to be fairly summarized here:

In 2018, Olivia CC. (hereinafter the child), a minor with complex developmental disabilities, was stranded in the emergency room of respondent Champlain Valley Physicians Hospital (hereinafter CVPH) for more than five weeks while she waited for a residential school placement. The child was not in need of medical or psychiatric care. However, neither her family nor the Office for People with Developmental Disabilities (hereinafter OPWDD) — the agency legislatively charged with protecting the welfare of persons with developmental disabilities — could provide her with safe interim housing. CVPH thus retained the child in the emergency room, where she could not attend school, participate in community activities or go outdoors, and CVPH was forced to use scarce medical resources to provide for her nonmedical needs. Unfortunately, the child is not the first minor with special needs to be marooned for weeks or months in an emergency room, as hospitals find themselves serving as the last resort for providing shelter to children in crisis … . The difficult legal issues presented here call into question the extent of the responsibilities of the legislative and administrative functions of government to some of our society’s most vulnerable members, and the limitations on the power of courts to protect them. * * *

Our conclusion that the amended petition/complaint provides this Court with no grounds to intervene in respondents’ operations should not be misunderstood as condonation of the child’s prolonged and unnecessary hospitalization or of respondents’ failure to provide her with appropriate assistance. Nevertheless, this record does not permit a determination of the propriety of constitutional or equitable relief, and relief grounded in the statutory provisions relied upon here must come from the Legislature or from respondents’ policy choices. Thus, we will not disturb Supreme Court’s judgment. Matter of Mental Hygiene Legal Serv. v Delaney, 2019 NY Slip Op 06119, Third Dept 8-8-19

 

FAMILY COURT SHOULD NOT HAVE CREDITED TO FATHER CHILD SUPPORT PAYMENTS HE MADE WHEN MOTHER WAS INTERFERING WITH HIS VISITATION (THIRD DEPT).

The Third Department noted that Family Court should not have credited back to father child support payments he made during the period when mother was interfering his visitation. Such a suspension of child support can only be made prospectively:

… Family Court erred in suspending the father’s child support obligation from June 21, 2017 to February 8, 2018 and ordering the money collected during that period to be credited back to the father. Although a court may suspend child support payments for a period where “the custodial parent has ‘wrongfully interfered with or withheld visitation'” … , absent special circumstances, not present here, the suspension must be prospective …. We further find that even where, as here, child support payments are suspended due to a parent’s interference, the “strong public policy against restitution or recoupment of support payments” is applicable … . Family Court therefore had no authority to “credit[] back” to the father the payments he made during the period of suspension against his current support obligation or the arrears … . Matter of Kanya J. v Christopher K., 2019 NY Slip Op 06030, Third Dept 8-1-19

 

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DOCTOR’S REPORTING PLAINTIFFS’ CHILD’S INJURIES TO CHILD PROTECTIVE SERVICES IS PROTECTED BY THE QUALIFIED IMMUNITY PROVISION IN THE SOCIAL SERVICES LAW, PLAINTIFFS’ DEFAMATION ACTION SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant doctor’s (Bludorn’s) and hospital’s motion for summary judgment in this defamation case should have been granted. The injury to plaintiffs’ child had been reported to Child Protective Services which ultimately determined the report to be unfounded:

Social Services Law § 413 requires certain individuals, including physicians like Bludorn, to make a child protective report whenever “they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child.” Where these mandated reporters discharge their reporting duties in good faith, they are accorded qualified immunity from civil liability (see Social Services Law § 419). A mandated reporter’s good faith “shall be presumed, provided [that] such person . . . was acting in the discharge of [his or her] duties and within the scope of [his or her] employment, and . . . such liability did not result from the willful misconduct or gross negligence of such person” … . “The reporting requirements [that] trigger the qualified immunity provision in Social Services Law § 419 are not predicated upon actual or conclusive proof of abuse or maltreatment. Rather, immunity attaches when there is reasonable cause to suspect that the infant might have been abused and when the party so reporting has acted in good faith in discharging the obligations and duties imposed by the statute” … . …

The child’s medical records and the social worker’s written assessment confirmed that plaintiffs had expressed uncertainty as to what had caused the child’s skull fracture and that they had offered two different possible explanations, both of which involved incidents that had occurred several days before they sought medical treatment for the child. Bludorn averred that he made the child protective report in good faith and that, in so reporting, he had no intent other than discharging his statutory duties under Social Services Law § 413 and protecting the interests of his patient. Hunter v Lourdes Hosp., 2019 NY Slip Op 05831, Third Dept 7-25-19

 

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