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CLAIMANT, A SUBWAY CLEANER, WAS ASSAULTED AFTER GETTING OFF THE SUBWAY ON HIS WAY HOME, CLAIMANT’S INJURIES WERE NOT COMPENSABLE (THIRD DEPT).

The Third Department determined that a third-party assault on claimant, a subway cleaner, after claimant had clocked out of work and traveled some distance on the subway to get home, was not compensable:

According to claimant, he finished his shift at 7:50 a.m., 10 minutes early, and clocked out, as he was permitted to do to compensate for coming in early. He left his assigned work train station and traveled on a train six stops on his way home, and was assaulted as he exited the train at approximately 7:55 a.m. Accordingly, at the time of the assault, claimant was not at his assigned train station, having clocked out of work, he was not on duty or performing any of the duties of his employment, and he was not on an errand for the employer … . Rather, claimant was commuting home, “using the subways like the general public” … . There is no evidence that claimant was required to use the trains to commute to work or that the employer benefited from the route that he used to travel home. …

Although injuries resulting from work-related assaults are compensable under certain circumstances, given that the incident occurred six train stops away from claimant’s assigned station, after he had completed his shift, and that he was not performing any services for the employer on his commute home, the record supports the Board’s determination that there was no nexus between the motivation for the assault and claimant’s employment … . Matter of Warner v New York City Tr. Auth., 2019 NY Slip Op 03122, Third Dept 4-25-19

 

NEWSPAPER ASSEMBLY AND DELIVERY PERSON WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, who assembled and delivered newspapers for Herald Publishing Company, was an employee entitled to unemployment insurance benefits:

… [T]he record reflects that claimant was assigned specific routes within defined delivery areas …, assembled and bagged her papers at the leased premises utilizing plastic bags and rubber bands purchased from Herald Publishing … and was required to provide Herald Publishing with proof of a driver’s license and automobile liability insurance … . The record further reveals that claimant elected to purchase accident liability insurance from a carrier referenced in the distribution agreements entered into between claimant and Herald Publishing and that the corresponding premiums for such coverage were deducted from the invoices generated in connection with her delivery services … . Finally, consistent with the terms of the distributor agreements signed by claimant, she was required to “pick up all newspapers at the agreed pick-up point,” i.e., the leased premises, deliver the newspapers to subscribers “at or before the target delivery time[s]” — for which she would be paid on a weekly basis at a specified per-paper rate … — and was precluded from placing any inserts or additional materials in the newspapers that she was delivering … . Matter of Fecca (Herald Publ. Co.–Commissioner of Labor), 2019 NY Slip Op 03120, Third Dept 4-25-19

 

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VALID EVIDENTIARY ISSUES WERE NOTICED BY APPELLATE COUNSEL BUT WERE NOT ADDRESSED AT TRIAL, THE STATE’S VERDICT IN THIS MALICIOUS PROSECUTION, FALSE ARREST AND UNLAWFUL IMPRISONMENT ACTION AFFIRMED (THIRD DEPT).

The Third Department, noting the validity of questions raised about the evidence that claimant sold the drugs, affirmed the verdict in favor of the state in this malicious prosecution, false arrest and unlawful imprisonment action. The evidentiary issues were noticed and raised by appellate counsel, but were not raised in the Court of Claims:

If taken at face value, this evidence would validate claimant’s testimony that he did not sell drugs to the informant and that defendant should have known as much. Critically important, however, is the fact that this timing discrepancy was never addressed at claimant’s criminal trial or the subject bench trial before the Court of Claims, and appears only to have been discerned by claimant’s counsel in his appellate brief. Defendant points out in its brief that it was unable to verify when the audio recording began because it did not have the original compact disc. The discrepancy between the commencement of the audio recording and the taking of the photographs is a matter of minutes at best. Missing from this record is any testimony expressly validating the timing as to when the audio recording began. Had this discrepancy been called to the attention of the Court of Claims, corresponding testimony could have been entertained … . As such, on this record, we decline to disturb the credibility determination made by the Court of Claims. Jenkins v State of New York, 2019 NY Slip Op 02932, Third Dept 4-18-19

 

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CHILD’S NAME CHANGE TO THE HYPHENATED SURNAMES OF BOTH PARENTS, WHO ARE NOT MARRIED, AFFIRMED (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the petition to change the child’s last name was properly granted to the extent that the hyphenated surnames of both parents, who are not married, were assigned to the child:

The parties have joint legal custody and the mother has always had primary physical custody of the child. Because he was overseas on active military duty, the father was not present at the time of the child’s birth. Prior to the child’s birth, however, the father had strongly expressed to the mother that the child should have his surname. Nevertheless, the mother gave the child her surname, Bafumo. The father commenced this proceeding in November 2016 under Civil Rights Law article 6 to change the surname of the child from Bafumo to Weinhofer, his surname. …

A petition to change the surname of a child shall be granted as long as the opposing party does not have a reasonable objection to the proposed name change and “the interests of the [child] will be substantially promoted by the change” (Civil Rights Law § 63). Although it appears that Supreme Court rendered its determination based solely on the second element — whether the child’s interests would be substantially promoted by the name change — given that the record is sufficiently developed as to the first element — whether the mother’s objections to the father’s petition were reasonable — it is unnecessary to remit the matter for a new hearing … . That said, we find that the mother’s objections were not reasonable. Matter of Bafumo, 2019 NY Slip Op 02767, Third Dept 4-10-19

 

BOARD’S FINDING THAT CLAIMANT FRAUDULENTLY EXAGGERATED THE EFFECTS OF HIS INJURIES NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, BOARD’S DETERMINATION REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the finding that claimant fraudulently exaggerated the effects of his injuries was not supported by the record. The Board’s rulings were based upon claimant’s answering calls as a volunteer firefighter and some video surveillance footage. But there was no evidence of what activities claimant engaged in as a volunteer firefighter, and the video evidence was deemed to have been mischaracterized by the Board:

Regarding the video surveillance at a personal injury accident, the Board found that claimant exhibited no apparent difficulty or disability. In the video surveillance, claimant is observed walking around the accident scene; which is not inconsistent with his reports of injury given that he did not need an assistive device to walk but, as noted in his medical records, could walk independently with a mild antalgic gait. Furthermore, any conclusion by the Board that claimant’s movements of his neck, arms and back were inconsistent with his loss of range of motion were not supported by any medical testimony at the hearing and amount to speculation as to whether such movements were inconsistent with the degree of range of motion noted in his medical records. Again, claimant was not in need of any assistive device for his injuries and the degree to which claimant moved his neck, arm and back in the video surveillance, and whether it was inconsistent with his medical records, could not be ascertained without additional medical testimony. …

We also find that the Board mischaracterized the video surveillance depicting claimant “walking into a grocery store . . . and then bending fully at the waist to retrieve a loaf of bread.” Although claimant maintained that his daily living activities had been affected by his injuries, the video did not clearly reflect any heavy lifting or repetitive motion inconsistent with his complaints of pain. Significantly, claimant was deemed totally disabled from performing his job duties as a laborer, but not totally disabled from all activities. It is also noted that the addendum submitted … is factually inaccurate as it incorrectly indicates that claimant is seen “carrying packages” at the grocery store, but the video depicts claimant carrying only a loaf of bread. Matter of Persons v Halmar Intl., LLC, 2019 NY Slip Op 02760, Third Dept 4-11-19

 

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE BECAUSE THE VICTIM WAS NEARLY 17 AND NO FORCE WAS INVOLVED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a downward departure under risk level guidelines:

Here, the Board recommended a downward departure on the ground set forth in the above guidelines. Significantly, the victim was to turn 17 only two months after the incident and reported that no force was used and that she was a willing participant. Moreover, the victim had various communications with defendant on Facebook and spent time with him prior to the incident, which appears to have been their only sexual encounter. Notably, County Court declined to grant a downward departure on the basis that defendant had already benefited from the victim’s consent by obtaining a light criminal sentence. Clearly, this was not an appropriate factor to be considered under the guidelines. Therefore, under the circumstances presented, we find that defendant established by a preponderance of the evidence the existence of mitigating factors not taken into account by the guidelines and that County Court abused its discretion in denying his request for a downward departure … . Consequently, defendant’s total risk score of 90, which presumptively placed him in the risk level two classification, should be reduced by the 25 points allocable to risk factor 2 (sexual contact with victim), giving him a total risk score of 65 and placing him in the risk level one classification. People v Secor, 2019 NY Slip Op 02759, Third Dept 4-11-19

 

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WIFE’S STATUS AS A BENEFICIARY OF AN ANNUITY PAID TO THE HUSBAND WAS REVOKED BY OPERATION OF THE ESTATES, POWERS AND TRUST LAW (EPTL) UPON DIVORCE (THIRD DEPT). ​

The Third Department determined an annuity paid to the husband in settlement of a medical malpractice action was not payable to the former wife (Malizia), as a beneficiary of the annuity, because her status as a beneficiary was revoked upon divorce, pursuant to the Estates, Powers and Trust Law (EPTL):

EPTL 5-1.4 (a) provides that, “[e]xcept as provided by the express terms of a governing instrument, a divorce . . . revokes any revocable (1) disposition or appointment of property made by a divorced individual to, or for the benefit of, the former spouse.” Malizia’s argument that EPTL 5-1.4 does not apply to the annuity is unavailing. Although an annuity is not specifically identified as a governing instrument by EPTL 5-1.4 (f) (5), the statute expressly indicates that the list is illustrative and not exhaustive. An annuity is a testamentary substitute that operates similarly to the examples of governing instruments that are specifically named in the statute by providing for the disposition of property at death … . In that regard, the annuity specifically provided for payment of the monthly installments to decedent during his lifetime, and the beneficiary designation constituted a disposition of a property interest to the named beneficiary at decedent’s death, i.e., the right to receive any guaranteed payments required to be made after his death. The statute was enacted to prevent the inadvertent disposition of such property to a former spouse following termination of a marriage by creating a conclusive and irrebuttable presumption that any revocable disposition of property to a former spouse is automatically revoked upon divorce … . United States Life Ins. Co. In The City of New York v Shields, 2019 NY Slip Op 02593, Third Dept 4-4-19

 

WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION DID NOT INCLUDE THE TIME OF THE OFFENSE, GUILTY PLEA VACATED (THIRD DEPT).

The Third Department, reversing County Court, determined that defendant’s guilty plea must be vacated because the waiver of indictment and superior court information were defective. The time of the offense was not indicated:

We agree with defendant’s contention that, because there was not strict compliance with the statutory mandates of CPL 195.20, his waiver of indictment is invalid, thereby requiring reversal of the judgment of conviction … . The plain language of CPL 195.20 requires that a waiver of indictment include the date and approximate time of the charged offense. Although the waiver of indictment and the SCI, when filed together, may be read as a single document in order to satisfy the requirements of the statute, here, neither the waiver of indictment nor the SCI properly indicate the time of the charged offense … . Moreover, this is not “a situation where the time of the offense is unknown or, perhaps, unknowable” so as to excuse the absence of such information … . People v Titus, 2019 NY Slip Op 02588, Second Dept 4-4-19

Because defendant’s admission to a violation of probation was induced by the explicit promise his sentence for the probation violation would run concurrently with the sentence for attempted burglary, which was reversed above, defendant’s plea to the probation violation was vacated as well.  People v Titus, 2019 NY Slip Op 02589, Third Dept 4-4-19

 

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DEFENDANT HAD SERVED HIS ENTIRE SENTENCE BY THE TIME THE ASSAULT SECOND CONVICTION WAS OVERTURNED, THE IMPOSITION OF MORE PRISON TIME UPON HIS SUBSEQUENT PLEA TO THE ASSAULT SECOND CHARGE VIOLATED THE DOUBLE JEOPARDY CLAUSE, DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING TIME SERVED, BECAUSE THE ERROR AFFECTED THE VOLUNTARINESS OF DEFENDANT’S GUILTY PLEA THE WAIVER OF APPEAL DID NOT APPLY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction and set aside the sentence should have been granted. The court noted that the waiver of appeal did not apply because the alleged error affected the voluntariness of the guilty plea. At the time defendant’s assault second conviction was overturned he had completed his sentence. When he subsequently pled guilty to the assault second charge more prison time was imposed. That violated the prohibition against double jeopardy (punished twice for the same offense). Defense counsel was ineffective for not arguing defendant must be sentenced to time served:

At the time of remittal, it was clear that, more than 15 years earlier, defendant had been sentenced to seven years in prison for his conviction of assault in the second degree, which was the maximum permissible sentence for a second violent felony offender convicted of that crime … . It was also clear that his assault conviction had been overturned on appeal. These facts and circumstances alone would have alerted a reasonably competent attorney to the possibility that any subsequent sentence that included additional prison time might violate the constitutional prohibition against multiple punishments and, by extension, prompted an inquiry into the amount of time that defendant had already served in prison on his 2001 assault conviction. It is evident from the record that defense counsel did not recognize or investigate the obvious potential double jeopardy concern at the time of remittal for, if she had, she would have determined — as the People concede — that defendant had already served the maximum permissible prison term for assault in the second degree and, therefore, could be sentenced only to time served … . People v Jones, 2019 NY Slip Op 02586, Third Dept 4-4-19

 

A NEW HEARING ON FATHER’S PETITION TO RELOCATE IS REQUIRED BECAUSE THE COURT MAY HAVE PLACED TOO MUCH EMPHASIS ON THE CHILD’S ENROLLMENT IN A PARTICULAR SCHOOL AS THE BASIS FOR GRANTING THE PETITION (THIRD DEPT). ​

The Third Department, reversing Family Court, determined a new hearing on father’s relocation petition was required because the court may have put too much emphasis on the child’s enrollment in a particular school:

Family Court determined that it was in the best interests of the child to award the father physical custody of the child and to permit the child to relocate to New York City. In making this determination, we note that the court took into account the child’s relationship with the family members in each parties’ household, the child’s current school and Promise Academy, the parties’ relative fitness to provide a safe and healthy environment and the structure in each household to support the child’s educational needs. The court, however, conditioned such change of custody and relocation upon the child’s enrollment in Promise Academy for the 2017-2018 school year. In our view, by imposing such condition, the court erroneously elevated the child’s matriculation at Promise Academy from one factor to be considered in the best interests analysis to the sole dispositive factor. Inasmuch as no one factor is dispositive … , the order must be reversed and a new hearing to be conducted on the father’s modification petition within 20 days of this Court’s decision. Matter of Lionel PP. v Sherry QQ., 2019 NY Slip Op 02398, Third Dept 2-28-19

 

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