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COLLATERAL ESTOPPEL CONTROLLED THIS ARBITRATION PROCEEDING TO DETERMINE HEALTH BENEFITS FOR RETIRED FIREFIGHTERS PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined that collateral estoppel controlled this proceeding concerning firefighter health benefits as provided for in the collective bargaining agreement (CBA). The issue had been resolved in prior arbitration proceedings for firefighters who had retired before 2010. The instant proceeding was brought on behalf of firefighters who have or will retire after 2010:

Arbitration awards are entitled to collateral estoppel effect and will bar a party from relitigating a material issue or claim resolved in the arbitration proceeding after a full and fair opportunity to litigate … . It is undisputed that the arbitration award, rendered after a formal evidentiary hearing at which the parties were represented by counsel, afforded defendant a full and fair opportunity to litigate the issues therein. Accordingly, the only question is whether plaintiffs, as the parties seeking to invoke collateral estoppel, satisfied their burden of “show[ing] the identity of the issues” between those resolved in the arbitration awards and those in play here … . * * *

The 2010 and 2012 arbitration awards were never vacated — indeed, the 2012 award was confirmed — and are binding. Inasmuch as plaintiffs retired during the period that the reimbursement was provided to retirees under CBAs containing section 27.1, the finding in those awards “that [defendant] is obligated to reimburse retired firefighters for these payments under the CBA is dispositive of the claims raised here” … . Holloway v City of Albany, 2019 NY Slip Op 00940, Third Dept 2-7-19

 

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FINDING THAT PETITIONER’S BACK INJURY WAS NOT RELATED TO THE ACCIDENT WAS NOT SUPPORTED BY THE EXPERT TESTIMONY (THIRD DEPT).

The Third Department, reversing the comptroller, determined the petitioner, a police crossing guard, was entitled to disability benefits resulting from her being struck by a car. The finding that petitioner’s back injuries were not related to the accident was not supported by the record:

… [I]nasmuch as the parties concede that petitioner is permanently incapacitated from performing her duties, the only issue to be resolved is whether she met her burden of demonstrating that her back injuries were causally related to the … accident… . Notably, the medical experts who examined petitioner all agreed that she suffers from degenerative disc disease of the lumbar spine, including spinal stenosis and disc displacement. These experts, however, provided conflicting medical opinions as to the cause of petitioner’s disabling back condition. Although the Comptroller retains the authority to resolve conflicting medical opinions and to credit the opinion of one expert over another … , the credited expert must articulate a “rational and fact-based opinion founded upon a physical examination and review of the pertinent medical records” … . Matter of Petras-Ross v DiNapoli, 2019 NY Slip Op 00939, Third Dept 2-7-19

 

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DEFENSE COUNSEL’S TAKING A POSITION ADVERSE TO DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS GUILTY PLEA VIOLATED DEFENDANT’S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (THIRD DEPT).

The Third Department determined defense counsel violated defendant’s right to effective assistance of counsel by taking a position adverse to defendant’s pro se motion to vacate his guilty plea:

Defense counsel’s repeated assertions that there was no basis for defendant’s motion and that his plea had been entered knowingly and voluntarily created a conflict of interest between him and defendant, thereby giving rise to County Court’s obligation to assign new counsel before deciding the motion … . Accordingly, we vacate the sentence and remit the matter for assignment of new counsel and reconsideration of defendant’s motion. People v Faulkner, 2019 NY Slip Op 00645, Third Dept 1-31-19

 

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REGULATIONS PROMULGATED BY THE OFFICE OF VICTIM SERVICES WHICH LIMITED THE AVAILABILITY OF ATTORNEY’S FEES IN THE EARLY STAGES OF A CLAIM CONFLICT WITH THE CONTROLLING STATUTE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined that certain changes made by the Office of Victim Services (OVS) to regulations affecting the availability of attorney’s fees in early stages of a claim conflicted with the controlling statute:

Executive Law § 626 (1) requires OVS to reimburse crime victims for out-of-pocket loss, which “shall . . . include . . . the cost of reasonable attorneys’ fees for representation before [OVS] and/or before the [A]ppellate [D]ivision upon judicial review” … . Our primary purpose in interpreting this provision “is to discern the will of the Legislature and, as the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” … . Applying these principles, we find no authorization in the statute’s plain language for OVS to conclude that counsel fees are never”reasonable” during the early stages of a claim and, thus, to categorically exclude awards of counsel fees for such representation in every instance. Neither this statutory language nor the similar language of Executive Law § 623 (3) — that authorizes OVS to promulgate regulations for the approval of counsel fees “for representation before [OVS] and/or before the [A]ppellate [D]ivision” — distinguishes among the stages of a victim’s representation before OVS, nor does the statutory text suggest that OVS may do so. Matter of Juarez v New York State Off. of Victim Servs., 2019 NY Slip Op 00653, Third Dept 1-31-19

 

THE RELATIONSHIP BETWEEN THE ONLINE PLATFORM WHICH CONNECTED PERSONS WITH CERTAIN SKILLS TO THOSE SEEKING TO HIRE FOR ODD JOBS WAS NOT AN EMPLOYER-EMPLOYEE RELATIONSHIP, CLAIMANT WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Board, determined claimant was not entitled to unemployment benefits after leaving TaskRabbit, an online platform which connected people with certain skills to clients looking people to hire for odd jobs (taskers). The relationship between TaskRabbit and the taskers was not an employer-employee relationship:

By virtue of the nature of the platform, TaskRabbit exercised absolutely no control over the manner in which the taskers completed the jobs that they obtained from clients. Indeed, the taskers bidded on the jobs posted on the platform and were awarded jobs either by a client selecting the most competitive bid or by being the first tasker to submit a bid on a particular job. All communications regarding the job were between the client and the tasker. Although TaskRabbit required taskers to submit to an identification verification process and criminal background check, complete an online questionnaire and take a quiz on use of the platform, it did not review their qualifications, provide them with training or evaluate their work performance. TaskRabbit provided customer service support to both clients and taskers, but it was directed at helping them use the platform. Similarly, the guidelines that it provided to taskers were designed to assist them in effectively using the platform, and no penalties were imposed for noncompliance. Both taskers and clients were rated based upon the feedback that they received without any input from TaskRabbit. TaskRabbit, however, did require taskers and clients to comply with its terms of use and retained the authority to curtail a tasker’s access to the platform for safety and/or security reasons. Nevertheless, it used a third-party payment provider to facilitate payments between clients and taskers, did not provide taskers with any equipment, supplies or uniforms, and did not reimburse them for expenses. Furthermore, taskers were free to cancel jobs and to provide their services on other platforms. Matter of Walsh (Taskrabbit Inc.–Commissioner of Labor), 2019 NY Slip Op 00649, Third Dept 1-31-19

 

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QUESTION OF FACT WHETHER CITY HAD PRIOR WRITTEN NOTICE OF THE DEFECTS IN THE SIDEWALK AND RAILING WHERE PLAINTIFF’S DECEDENT FELL INTO A GORGE, CITY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (THIRD DEPT).

The Third Department determined the city’s motion for summary judgment in this slip and fall case was properly denied. Plaintiff’s decedent fell from a paved trail into a gorge. There were questions of fact about whether the city had prior written notice of the broken sidewalk and railing:

… [P]laintiff produced a police investigation report concluding that decedent had fallen along a part of the trail with multiple defects, including broken pavement, a “bent/unsecured hand railing . . . and huge gap spaces in sidewalk edge adjacent to [the] cliff side edge.” Plaintiff also demonstrated that, by the time of the fall, the Department of Public Works had received numerous written complaints about the condition of the trail. General complaints and the subsequent efforts of department personnel to evaluate the condition of the trail did not “obviate the need for prior written notice” of the particular defects implicated in decedent’s fall … . That said, one of the written complaints was a January 2012 email forwarded to an Assistant Superintendent of Public Works that was, according to his testimony, “probably” shared with the Superintendent of Public Works, and attached to the email is a map with photographs that appear to reference the defects in the area where decedent fell. Van Wageningen v City of Ithaca, 2019 NY Slip Op 00343, Third Dept 1-17-19

 

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APPLICATION FOR LEAVE TO FILE LATE NOTICES OF CLAIM AGAINST THE VILLAGE STEMMING FROM A HAZARDOUS SUBSTANCE IN THE WATER SUPPLY PROPERLY GRANTED, ALTHOUGH THERE WAS NO ADEQUATE EXCUSE FOR THE DELAY, THE VILLAGE HAD TIMELY NOTICE OF THE FACTS UNDERLYING THE CLAIM AND WAS NOT PREJUDICED BY THE DELAY (THIRD DEPT).

The Third Department determined Supreme Court properly granted petitioners’ application to file late notices of claim against the village stemming from a hazardous substance, PFOA, in the municipal water supply. Although petitioners did not have an adequate excuse for the delay, respondents had timely knowledge of the facts underlying the claim and were not prejudiced by the the delay:

… [I]t is evident that respondent was well aware of the PFOA contamination in its municipal water system, the likelihood of increased PFOA levels in the blood of its residents as a result of exposure to PFOA and the potential negative health consequences as a result thereof. On the record before us, therefore, respondent cannot plausibly claim that it had only a “general awareness” of the presence of PFOA in its municipal water system. Accordingly, we conclude that Supreme Court properly found that respondent had actual notice of all the essential facts underlying petitioners’ claims … . …

Further, there has been no demonstration of substantial prejudice to respondent as a result of petitioners’ delay in seeking to file late notices of claim … . Respondent has been aware of the subject PFOA contamination since at least October 2014, it was apprised of the potential negative health risks to its residents from PFOA exposure and, as a result of the blood testing program commenced by DOH, it learned of the elevated levels of PFOA in its residents — despite its efforts to downplay said results. Moreover, respondent alleges that it has located the source of the PFOA contamination and petitioners, as residents of respondent, remain available for any further investigation into whether respondent’s conduct was the proximate cause of their alleged injuries. In turn, other than the passage of time, respondent has offered no particularized evidence in opposition to establish that it suffered substantial prejudice … . Matter of Holbrook v Village of Hoosick Falls, 2019 NY Slip Op 00342, Third Dept 1-17-19

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PLAINTIFF’S DECEDENT WAS NOT ENGAGED IN CONSTRUCTION WORK COVERED BY LABOR LAW 240 (1) AND 241 (6) WHEN A BRIDGE FORM HE WAS UNLOADING FELL ON HIM, PLAINTIFF MADE A SUFFICIENT SHOWING OF LONG-ARM JURISDICTION TO WARRANT DISCOVERY (THIRD DEPT).

The Third Department determined the Labor Law 240 (1) and 241 (6) causes of action were properly dismissed because plaintiff’s decedent was not involved in construction work when a 2500 pound bridge form fell on him. The court further found that plaintiff had made a sufficient showing that long-arm jurisdiction may apply to Spillman, the manufacturer of the bridge form, to allow discovery:

In support of her claimed violations of Labor Law §§ 240 (1) and 241 (6), plaintiff alleged that, at the time that decedent sustained the fatal injuries, he had been unloading a bridge form that had been delivered to the manufacturing facility operated by LHV so that it could be used in the manufacture and fabrication of construction materials that would be eventually used during unspecified construction at an unspecified construction site. As Supreme Court aptly concluded, these allegations “do not support any contention that the work being done at the time of the incident was, in any manner, an integral part of an ongoing construction contract or was being performed at an ancillary site, incidental to and necessitated by such construction project, where the materials involved were being readied for use in connection with a covered activity,” so as to bring it within the ambit of Labor Law § 240 (1) … . …

For the same reasons, plaintiff’s factual allegations did not support a conclusion that decedent’s injuries occurred in an “area[] in which construction, excavation or demolition work [was] being performed” (Labor Law § 241 [b]) and, thus, Supreme Court’s dismissal of plaintiff’s Labor Law § 241 (6) claim was proper … . …

Viewing the facts in the light most favorable to plaintiff as the nonmoving party, we agree with Supreme Court that the foregoing provided the “sufficient start” required to warrant further discovery on the issue of whether personal jurisdiction may be properly exercised over Spillman under CPLR 302 (a) (3), while also comporting with federal due process requirements … . Archer-Vail v LHV Precast Inc., 2019 NY Slip Op 00341, Third Dept 1-17-19

 

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QUESTIONS OF FACT ABOUT THE TIMELINESS OF THE NOTICE OF LIEN, THE CHARACTER OF THE WORK AND EXAGGERATION PRECLUDED SUMMARY DISCHARGE OF THE NOTICE OF LIEN, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the contractor’s notice of lien was valid on its face and should not have been summarily discharged because unresolved questions of fact required trial:

“A court has no inherent power to vacate or discharge a notice of lien except as authorized by Lien Law § 19 (6)” … . Pursuant to that provision, a court may summarily discharge a notice of lien where, among other things, “it appears from the face of the notice of lien that the claimant has no valid lien by reason of the character of the labor or materials furnished” or the notice was not timely filed … . …

“Because the lien was timely on its face, the court was not permitted to summarily discharge it on the basis of untimeliness” … . …

Petitioners attack the character of the labor furnished, asserting that respondent’s work in July 2016 was for a water line that was not part of any contract between the parties. This assertion merely “raises a factual issue as to the relationship of the last item of work to the parties’ contract … . …

“[A]lthough Lien Law § 39 provides that a willfully exaggerated lien is void, the issue of willful or fraudulent exaggeration is one that also ordinarily must be determined at the trial of [a lien] foreclosure action”  … . Matter of Beebe v Liebel, 2019 NY Slip Op 00337, Third Dept 1-17-19

 

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PETITION WAS PROPERLY DISMISSED BECAUSE IT DID NOT DEMONSTRATE SUBJECT MATTER JURISDICTION ON ITS FACE, BUT BECAUSE THE MERITS WERE NOT ADDRESSED THE PETITION SHOULD NOT HAVE BEEN DISMISSED WITH PREJUDICE (THIRD DEPT).

The Third Department determined Family Court properly dismissed a petition because there was no indication that New York had jurisdiction, the petition should not have been dismissed with prejudice because the merits were not reached:

Upon review of the petition, Family Court, sua sponte, found that the children resided in Georgia and dismissed the petition with prejudice for lack of subject matter jurisdiction. Petitioner appeals.

In his petition, petitioner alleged that respondent is an aunt of the children who obtained temporary guardianship of them following the mother’s death and, further, that the children reside with respondent in Georgia; notably, however, he did not allege that a New York court had made a prior custody determination involving the children, nor did he allege any circumstances involving the children that would support a specific basis for jurisdiction. Thus, the petition fails to allege any facts that would provide New York with jurisdiction to make the determination in this case … and, therefore, Family Court did not err by dismissing this proceeding without a hearing … . However, inasmuch as Family Court dismissed the proceeding for lack of subject matter jurisdiction based solely upon a review of petitioner’s sparse pro se petition and without reaching the merits, it erred in dismissing the proceeding with prejudice … . Matter of David EE. v Laquanna FF., 2019 NY Slip Op 00336, Third Dept 1-17-19

 

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