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NEWSPAPER CARRIER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, who delivered newspapers to residential customers, was an employee of Gannett Satellite Information Network:

… [W]e find that the indicators of control contained in Gannett Satellite’s contract with claimant are practically the same as the relevant factors previously identified to establish an employer-employee relationship; accordingly, we find that substantial evidence supports the Board’s decisions (see Matter of Smith [Gannett Satellite Info. Network, Inc.-Commissioner of Labor], ___ AD3d ___, ___, 85 NYS3d 796, 797 [2018]; Matter of Race [Gannett Satellite Info. Network, Inc.-Commissioner of Labor], 128 AD3d 1130, 1130 [2015]; Matter of Gager [Gannett Satellite Info. Network, Inc.-Commissioner of Labor, 127 AD3d 1348, 1348-1349 [2015]; Matter of Hunter [Gannett Co., Inc.-Commissioner of Labor], 125 AD3d 1166, 1167-1168 [2015]; Matter of Armison [Gannett Co., Inc.-Commissioner of Labor], 122 AD3d 1101, 1102-1103 [2014], lv dismissed 24 NY3d 1209 [2015]). Matter of Nicholas (Commissioner of Labor), 2018 NY Slip Op 08589, Third Dept 12-13-18

 

DANCE INSTRUCTOR WAS AN EMPLOYEE OF THE FOUNDATION CHARTERED BY THE NYS BOARD OF REGENTS TO SET UP ARTISTIC PROGRAMS IN SCHOOLS (THIRD DEPT).

The Third Department determined the claimant, a dance instructor, was an employee of the foundation which was chartered by the New York State Board of Regents to provide artistic programs in schools. Claimant was therefore entitled to unemployment insurance benefits:

The evidence adduced at the hearing established that the Foundation retained control over important aspects of claimant’s and other teaching artists’ services. To that end, the Foundation solicited and worked with schools to establish an appropriate artistic program to meet their needs and budget, screened the artists, matched their skills and experience to the schools’ needs and set the artists’ rate of pay, which was less than the Foundation received by contract from the Department, and helps artists work in the academic settings. The Foundation paid the artists directly, upon receipt of weekly invoices provided by the Foundation and completed by the artist documenting hours worked, provided guidelines for them to follow and monitored their progress and hours to stay within the schools’ budgets and program plans. The Foundation fielded and attempted to resolve complaints from schools regarding artists’ conduct or performance and found replacements when needed, and its officers attended the final performances and held evaluation meetings at the end with school personnel and the artists. Matter of Pearson (Commissioner of Labor), 2018 NY Slip Op 08588, Third Dept 12-13-18

 

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DEFENDANT CANNOT PLEAD GUILTY TO A VIOLATION OF A STATUTE WHICH HAD NOT BEEN ENACTED AT THE TIME OF THE OFFENSE, THE DEFECT IS JURISDICTIONAL AND SURVIVES A WAIVER OF APPEAL (THIRD DEPT).

The Third Department held that sexual abuse first degree charge in the superior court information (SCI) was based on a statute which had not yet been enacted at the time of the offense. The defect was jurisdictional and survived the waiver of appeal:

Initially, defendant contends that the waiver of indictment and the SCI are jurisdictionally defective with respect to the crime of sexual abuse in the first degree under Penal Law § 130.65 (4) because this provision of the Penal Law was not in effect in 2009 when the alleged criminal conduct occurred. Preliminarily, we note that defendant is not precluded by her unchallenged waiver of the right to appeal from raising this jurisdictional challenge … . The People concede that a jurisdictional defect exists inasmuch as the relevant Penal Law provision did not become effective until November 1, 2011 … , and a defendant may not be charged with a crime that does not exist at the time that the act was committed … . Consequently, defendant’s plea of guilty to sexual abuse in the first degree must be vacated and count 2 of the SCI charging her with this crime must be dismissed. People v Gannon, 2018 NY Slip Op 08582, Thrid Dept 12-13-18

 

THEORY THAT DEFENDANT VETERINARY CLINIC WAS LIABLE IN NEGLIGENCE FOR A DOG BITE WHICH OCCURRED IN THE CLINIC WAITING ROOM REJECTED, ONLY A STRICT LIABILITY THEORY COULD APPLY AND PLAINTIFF CONCEDED RELIEF WAS NOT AVAILABLE PURSUANT TO STRICT LIABILITY (THIRD DEPT).

The Third Department determined defendant veterinary clinic could not be held liable for a dog bite which occurred in the clinic waiting room under a negligence (failure to provide a safe waiting room area) theory. Plaintiff contended the strict liability theory did not apply because defendant clinic did not own the dog:

… [W]e hold that for defendant to be liable for the personal injuries allegedly sustained due to the dog attack that occurred in the waiting room, plaintiff must establish that defendant knew or should have known about the dog’s vicious propensities.

… [P]laintiff acknowledges in her appellate brief that she is not asserting a claim for strict liability against defendant and that her claims against it are grounded in negligence and premises liability. In her opposition to defendant’s summary judgment motion, plaintiff likewise conceded that she did not have a strict liability claim against defendant. In any event, even if a strict liability claim could be extrapolated from plaintiff’s pleadings… . As such, Supreme Court correctly granted defendant’s motion for summary judgment and denied plaintiff’s cross motion for partial summary judgment … . Hewitt v Palmer Veterinary Clinic, PC, 2018 NY Slip Op 08396, Third Dept 12-6-18

ANIMAL LAW (DOG BITE, THEORY THAT DEFENDANT VETERINARY CLINIC WAS LIABLE IN NEGLIGENCE FOR A DOG BITE WHICH OCCURRED IN THE CLINIC WAITING ROOM REJECTED, ONLY A STRICT LIABILITY THEORY COULD APPLY AND PLAINTIFF CONCEDED RELIEF WAS NOT AVAILABLE PURSUANT TO STRICT LIABILITY (THIRD DEPT))/DOG BITE  (DOG BITE, THEORY THAT DEFENDANT VETERINARY CLINIC WAS LIABLE IN NEGLIGENCE FOR A DOG BITE WHICH OCCURRED IN THE CLINIC WAITING ROOM REJECTED, ONLY A STRICT LIABILITY THEORY COULD APPLY AND PLAINTIFF CONCEDED RELIEF WAS NOT AVAILABLE PURSUANT TO STRICT LIABILITY (THIRD DEPT))

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GENERAL RELEASE WAS NOT LIMITED TO A 2007 ACTION AND THEREFORE PRECLUDED THE 2014 ACTION, A UNILATERAL MISTAKE DOES NOT INVALIDATE A CONTRACT (THIRD DEPT).

The Third Department determined that, although the release signed by plaintiff (Moore) mentioned a 2007 action, the release stated it was not limited to the 2007 action. Therefore it applied to the instant action. The fact that plaintiff may not have intended that it apply to the current proceedings, a unilateral mistake, does not invalidate a contract:

The general release, executed by Moore after he commenced the present action, released defendant “from all manner of . . . claims and demands . . . in law or in equity that against [defendant] he ever had, now has or which he . . . shall or may have for any reason from the beginning of the world to the date of this release.” Plaintiffs nonetheless argue that the release is limited by its terms to the 2007 action, noting that “where a release contains a recital of a particular claim . . . and there is nothing on the face of the instrument other than general words of release to show that anything more than the matters particularly specified was intended to be discharged, the general words of release are deemed to be limited thereby” … . The release, however, does not limit or otherwise restrict itself to the 2007 action. Rather, it clearly and unambiguously specifies that it “includes, but is not limited to,” the incident that led to the 2007 action … . Moore executed the release with full knowledge that this action was pending against defendant, and the “timing and unequivocal and unconditional language” of the release therefore demonstrates its applicability to the 2014 action at issue here … . …

Although plaintiffs claim that Moore did not intend for the release to encompass this action when he executed it, “the fact that [Moore] may have intended something else is irrelevant[, as] a mere unilateral mistake . . . with respect to the meaning and effect of the release . . . does not constitute an adequate basis for invalidating” it … . Stevens v Town of Chenango (Forks), 2018 NY Slip Op 08389, Third Dept 12-6-18

CONTRACT LAW (GENERAL RELEASE WAS NOT LIMITED TO A 2007 ACTION AND THEREFORE PRECLUDED THE 2014 ACTION, A UNILATERAL MISTAKE DOES NOT INVALIDATE A CONTRACT (THIRD DEPT))/RELEASES  (GENERAL RELEASE WAS NOT LIMITED TO A 2007 ACTION AND THEREFORE PRECLUDED THE 2014 ACTION, A UNILATERAL MISTAKE DOES NOT INVALIDATE A CONTRACT (THIRD DEPT))/CIVIL PROCEDURE (GENERAL RELEASE WAS NOT LIMITED TO A 2007 ACTION AND THEREFORE PRECLUDED THE 2014 ACTION, A UNILATERAL MISTAKE DOES NOT INVALIDATE A CONTRACT (THIRD DEPT))

ALTHOUGH THE CRIME WITH WHICH DEFENDANT WAS CHARGED, ATTEMPTED DISSEMINATION OF INDECENT MATERIAL TO A MINOR FIRST DEGREE, CAN BE A FELONY SEX OFFENSE, THE ABSENCE OF STATUTORILY REQUIRED LANGUAGE IN THE ACCUSATORY INSTRUMENT PRECLUDED SENTENCING DEFENDANT AS A FELONY SEX OFFENDER (THIRD DEPT).

The Third Department determined the absence of statutorily-required language in the accusatory instrument precluded sentencing defendant as a felony sex offender:

Although a conviction of attempted dissemination of indecent material to a minor in the first degree (see Penal Law §§ 110.00, 235.22) can be considered a felony sex offense subject to sentencing in accordance with Penal Law § 70.80, the accusatory instrument must specify that the offense is charged “as a sexually motivated felony” (CPL 200.50 [4]; see Penal Law § 130.91 [2]). Here, the accusatory instrument did not contain the requisite language, nor did it make any reference to Penal Law § 130.91. As such, defendant was not subject to the sentencing provisions of Penal Law § 130.91, rendering the imposed sentence illegal. People v Lavelle, 2018 NY Slip Op 08378, Third Dept 12-6-18

CRIMINAL LAW (SENTENCING, ALTHOUGH THE CRIME WITH WHICH DEFENDANT WAS CHARGED, ATTEMPTED DISSEMINATION OF INDECENT MATERIAL TO A MINOR FIRST DEGREE, CAN BE A FELONY SEX OFFENSE, THE ABSENCE OF STATUTORILY REQUIRED LANGUAGE IN THE ACCUSATORY INSTRUMENT PRECLUDED SENTENCING DEFENDANT AS A FELONY SEX OFFENDER (THIRD DEPT))/SEX OFFENDERS (SENTENCING, ALTHOUGH THE CRIME WITH WHICH DEFENDANT WAS CHARGED, ATTEMPTED DISSEMINATION OF INDECENT MATERIAL TO A MINOR FIRST DEGREE, CAN BE A FELONY SEX OFFENSE, THE ABSENCE OF STATUTORILY REQUIRED LANGUAGE IN THE ACCUSATORY INSTRUMENT PRECLUDED SENTENCING DEFENDANT AS A FELONY SEX OFFENDER (THIRD DEPT))/DISSEMINATION OF INDECENT MATERIAL TO A MINOR (SENTENCING, ALTHOUGH THE CRIME WITH WHICH DEFENDANT WAS CHARGED, ATTEMPTED DISSEMINATION OF INDECENT MATERIAL TO A MINOR FIRST DEGREE, CAN BE A FELONY SEX OFFENSE, THE ABSENCE OF STATUTORILY REQUIRED LANGUAGE IN THE ACCUSATORY INSTRUMENT PRECLUDED SENTENCING DEFENDANT AS A FELONY SEX OFFENDER (THIRD DEPT))

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ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction under New York’s terrorism statute, applying a weight of the evidence review, determined that, although the defendant threatened to kill a judge in letters to his wife, there was no proof the threat was made to influence or affect the policy or conduct of a unit of government:

As relevant here, “[a] person is guilty of making a terroristic threat when[,] with intent to . . . influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping, he or she threatens to commit or cause to be committed a specified offense and thereby causes a reasonable expectation or fear of the imminent commission of such offense”… .

… [C]ritically missing is evidence demonstrating that defendant intended to influence a policy of a governmental unit by intimidation or coercion or affect the conduct of a governmental unit — a necessary element of the crime of making a terroristic threat … . …

… [T]he letters here do not indicate that defendant, by threatening violent acts, intended to influence the judge’s policy or conduct. Indeed, the record reflects that, in the time between when the two letters were written, defendant was granted visitation by the subject judge. In our view, they reflect defendant’s vented anger towards those individuals involved in his Family Court proceedings … . … [V]iewing the evidence in a neutral light, it cannot be concluded that defendant intended by his actions to influence a governmental policy or affect a governmental unit and, therefore, the verdict finding defendant guilty of making a terroristic threat is against the weight of the evidence … . People v Richardson, 2018 NY Slip Op 08368, Thirid Dept 12-6-18

CRIMINAL LAW (ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))/APPEALS (CRIMINAL LAW, ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, TERRORISM, ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))/TERRORISM (CRIMINAL LAW, EVIDENCE ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, TERRORISM, ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))/JUDGES (CRIMINAL LAW, APPEALS, TERRORISM, ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))

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BUILDING INSPECTOR WAS PROPERLY TERMINATED FOR FAILURE TO REQUIRE ASBESTOS ABATEMENT FOR A DEMOLISHED BUILDING, BECAUSE THE ACTIONS OF THE INSPECTOR CONSTITUTED CRIMES UNDER THE ENVIRONMENTAL CONSERVATION LAW AND PENAL LAW, THE EMPLOYMENT-RELATED CHARGES WERE TIMELY (THIRD DEPT). ​

The Third Department determined that petitioner, formerly a village building inspector, was properly terminated for failing to require asbestos abatement for a demolished building. Because the allegations constituted crimes pursuant to the Environmental Conservation Law (ECL) the charges were not time-barred. The evidence was deemed sufficient to support the charges:

Petitioner’s primary contention on appeal is that the charge should have been dismissed as untimely. Indeed, “no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges” (Civil Service Law § 75 [4… . However, this limitations period does not apply “where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime” … . …

… [P]etitioner is alleged to have “knowingly, unlawfully and intentionally engage[d] persons to effect the unauthorized demolition of the [building], knowing that unabated asbestos was located therein or thereupon, causing the release of a substance hazardous to public health, safety or the environment, said substance being asbestos.” If proven, these allegations would constitute the crime of endangering public health, safety or the environment in the fourth degree (see ECL 71-2711 [3]). As to count 9, petitioner is alleged, with regard to the demolition of the building, to have “engag[ed] persons neither certified nor qualified to abate the asbestos located therein, . . . knowing that asbestos was located therein, such demolition having been performed without asbestos abatement or any reasonable procedure to prevent the release of asbestos into the public air, . . . [and] having released a considerable amount of [asbestos] dust and debris into the air” in a populated area. These allegations would, if proven at trial, constitute the crime of criminal nuisance in the second degree (see Penal Law § 240.45 [1]). Likewise, we find that the allegations against petitioner as detailed in counts 5 through 7 would constitute, if established at trial, official misconduct (see Penal Law § 195.00 [2] …). Accordingly, the Hearing Officer properly found that the charge is not time-barred … . …

At the hearing, petitioner admitted that he was aware that the demolition of the building not only began without the requisite permits, but that the contractors hired to complete the job agreed to do so for only $5,000 — rather than an estimated $150,000 — in exchange for future contracts. It is further undisputed that the demolition resulted in the release of asbestos fibers where workers and passersby would be exposed to the legislatively-recognized carcinogenic agent… . As to the quantity of asbestos released, a report conducted more than a year prior to the building’s demolition found varying percentages of asbestos in the building’s products — from 1.4% to 23.5% — far exceeding the 1% threshold necessary to trigger abatement requirements … . Petitioner testified that, although he was aware that the building contained asbestos and had discussed this report with respondent’s civil engineer, John Fuller, he had not read the report and “assumed” that the quantity of asbestos present did not require abatement. When asked why he did not investigate the issue of abatement further in his role as respondent’s Code Enforcement Officer, he stated that he “had no obligation” to do so. Further, the Hearing Officer credited the testimony of Chief of Police Robert Mir that petitioner had told one of the demolition contractors, Sam Kearney, that he was “good to go” in response to concerns about whether asbestos was present in the building. Marciano Soto, a contractor hired to supervise the demolition of the building, similarly testified that petitioner told him on multiple occasions that the building did not contain asbestos. Upon our review, we find substantial evidence in the record to sustain the charge that petitioner “committ[ed] acts constituting crimes” — namely, endangering public health, safety or the environment in the fourth degree, official misconduct and criminal nuisance in the second degree — and, thus, to support the determination terminating petitioner’s employment … . Matter of Snowden v Village of Monticello, 2018 NY Slip Op 08226, Third Dept 11-29-18

MUNICIPAL LAW (EMPLOYMENT LAW, BUILDING INSPECTOR WAS PROPERLY TERMINATED FOR FAILURE TO REQUIRE ASBESTOS ABATEMENT FOR A DEMOLISHED BUILDING, BECAUSE THE ACTIONS OF THE INSPECTOR CONSTITUTED CRIMES UNDER THE ENVIRONMENTAL CONSERVATION LAW, THE EMPLOYMENT-RELATED CHARGES WERE TIMELY (THIRD DEPT))/EMPLOYMENT LAW (ENVIRONMENTAL LAW, MUNICIPAL LAW, BUILDING INSPECTOR WAS PROPERLY TERMINATED FOR FAILURE TO REQUIRE ASBESTOS ABATEMENT FOR A DEMOLISHED BUILDING, BECAUSE THE ACTIONS OF THE INSPECTOR CONSTITUTED CRIMES UNDER THE ENVIRONMENTAL CONSERVATION LAW, THE EMPLOYMENT-RELATED CHARGES WERE TIMELY (THIRD DEPT))/ENVIRONMENTAL LAW (MUNICIPAL LAW, EMPLOYMENT LAW, BUILDING INSPECTOR WAS PROPERLY TERMINATED FOR FAILURE TO REQUIRE ASBESTOS ABATEMENT FOR A DEMOLISHED BUILDING, BECAUSE THE ACTIONS OF THE INSPECTOR CONSTITUTED CRIMES UNDER THE ENVIRONMENTAL CONSERVATION LAW, THE EMPLOYMENT-RELATED CHARGES WERE TIMELY (THIRD DEPT))

THE LIEN LAW DOES NOT PROVIDE THAT A TOWING COMPANY STORING A CAR PURSUANT TO A POLICE IMPOUND HAS THE RIGHT TO DEMAND A RELEASE FROM THE POLICE DEPARTMENT AND A HOLD HARMLESS AGREEMENT BEFORE RELEASING THE CAR, THE CAR SHOULD HAVE BEEN RELEASED WHEN PETITIONER FIRST REQUESTED IT, IN ADDITION, THE $50 A DAY STORAGE FEE IS EXCESSIVE (THIRD DEPT).

The Third Department determined respondent towing company, which was storing petitioner’s car pursuant to a police impound, did not have the authority to demand police approval for release of the car or a hold harmless agreement, and the $50 a day storage fee was excessive. The car should have been released when petitioner first requested it:

On October 29, 2016, respondent All County Towing and Recovery (hereinafter respondent) towed a vehicle to its facility at the direction of a local police department. On November 2, 2016, respondent mailed a notice to the registered owner of the vehicle and petitioner, a lienholder, advising that the vehicle was in its possession as a result of a police impound, that a lien was being asserted pursuant to Lien Law § 184, that storage fees were accruing in the amount of $50 per day and that, once the vehicle was released from police impound, it could be retrieved “upon full payment of all charges accrued” as of the date of release. That same day, petitioner offered to pay the fees then due in order to take possession of the vehicle, but respondent refused to surrender the vehicle unless petitioner obtained a release authorization from the local police department. Petitioner’s agent again attempted to recover the vehicle on November 7, 2016, and reported that respondent now demanded, in addition to a police release, the execution of a hold-harmless agreement in its favor. …

… [W]e conclude that nothing in Lien Law § 184 authorized respondent to condition the release of a vehicle upon the provision of a release authorization from law enforcement officials or the execution of a hold-harmless agreement in its favor … . …

… [W]e agree with Supreme Court that respondent’s $50 daily storage fee is unreasonable … . Matter of Ally Fin., Inc v All County Towing & Recovery, 2018 NY Slip Op 08223, Third Dept 11-29-18

LIEN LAW (CAR STORAGE, THE LIEN LAW DOES NOT PROVIDE THAT A TOWING COMPANY STORING A CAR PURSUANT TO A POLICE IMPOUND HAS THE RIGHT TO DEMAND A RELEASE FROM THE POLICE DEPARTMENT AND A HOLD HARMLESS AGREEMENT BEFORE RELEASING THE CAR, THE CAR SHOULD HAVE BEEN RELEASED WHEN PETITIONER FIRST REQUESTED IT, IN ADDITION, THE $50 A DAY STORAGE FEE IS EXCESSIVE (THIRD DEPT))/VEHICLE STORAGE (THE LIEN LAW DOES NOT PROVIDE THAT A TOWING COMPANY STORING A CAR PURSUANT TO A POLICE IMPOUND HAS THE RIGHT TO DEMAND A RELEASE FROM THE POLICE DEPARTMENT AND A HOLD HARMLESS AGREEMENT BEFORE RELEASING THE CAR, THE CAR SHOULD HAVE BEEN RELEASED WHEN PETITIONER FIRST REQUESTED IT, IN ADDITION, THE $50 A DAY STORAGE FEE IS EXCESSIVE (THIRD DEPT))

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THE COMMUNICATION BETWEEN CLAIMANT’S ATTORNEY AND THE INDEPENDENT MEDICAL EXAMINER DID NOT CREATE THE APPEARANCE OF IMPROPRIETY, THE INDEPENDENT MEDICAL EXAMINER’S REPORT AND TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined that the communication between claimant’s counsel and the independent medical examiner (Saunders) who assessed claimant’s loss of use of his left foot, did not create the appearance of impropriety and did not warrant the preclude Sauders’ report and testimony:

Workers’ Compensation Law § 13-a (6) prohibits “the improper influencing or attempt by any person improperly to influence the medical opinion of any physician who has treated or examined an injured employee.” Moreover, “any substantive communication with an independent medical examiner, or his or her office, regarding the claimant from any person or entity, including a claimant, an insurance carrier, or a third[-]party administrator, that takes place or is initiated outside of the independent medical examination” … shall be filed with the Board within 10 days of the receipt of the communication … . …

Pursuant to Subject No. 046-124, the Board requires that, in addition to strictly complying with the requirements of Workers’ Compensation Law §§ 13-a (6) and 137 (1) (b), “parties and their representatives should make every effort to avoid even the appearance that they are attempting to influence the opinion of a health care professional” (Workers’ Comp Bd Release Subject No. 046-124). The Board further requires that “to avoid even the appearance that they are not acting in good faith, parties and their representatives are required to send a copy of any written communication with a health care professional to the opposing parties and their legal representative” … .

… [A]t the conclusion of Saunders’ deposition, the employer’s attorney inquired whether claimant’s attorney had communicated with him regarding the claim. Saunders responded that he had received a text message from the attorney the day before the deposition indicating that the deposition would address claimant’s schedule loss of use, but that there was no discussion with counsel. The employer’s attorney asked no further questions and made no request for claimant to produce a copy of the text message, a copy of which is not in the record. We are left then with what appears to be a limited communication between claimant’s counsel and Saunders confirming the subject of the deposition. Significantly, there is no dispute that Saunders’ ensuing deposition testimony fully comported with the report that he had previously filed with the Board — an outcome illustrating that claimant’s counsel in no way influenced Saunders’ testimony through the text message. In our view, verifying the subject of the deposition was simply ministerial in nature and does not reflect an effort to influence the witness testimony. Matter of Knapp v Bette & Cring LLC, 2018 NY Slip Op 08218, Third Dept 11-20-18

WORKERS’ COMPENSATION (THE COMMUNICATION BETWEEN CLAIMANT’S ATTORNEY AND THE INDEPENDENT MEDICAL EXAMINER DID NOT CREATE THE APPEARANCE OF IMPROPRIETY, THE INDEPENDENT MEDICAL EXAMINER’S REPORT AND TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED (THIRD DEPT))/ATTORNEYS (WORKERS’ COMPENSATION, THE COMMUNICATION BETWEEN CLAIMANT’S ATTORNEY AND THE INDEPENDENT MEDICAL EXAMINER DID NOT CREATE THE APPEARANCE OF IMPROPRIETY, THE INDEPENDENT MEDICAL EXAMINER’S REPORT AND TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED (THIRD DEPT))/EVIDENCE (WORKERS’ COMPENSATION, ATTORNEYS, THE COMMUNICATION BETWEEN CLAIMANT’S ATTORNEY AND THE INDEPENDENT MEDICAL EXAMINER DID NOT CREATE THE APPEARANCE OF IMPROPRIETY, THE INDEPENDENT MEDICAL EXAMINER’S REPORT AND TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED (THIRD DEPT))

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