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LOST PENSION BENEFITS AS DAMAGES IN THIS SEXUAL HARASSMENT CASE WERE PROPERLY CALCULATED USING THE TOTAL OFFSET METHOD (THIRD DEPT).

The Third Department, in a matter of first impression, determined the damages award for loss of Seabury’s pension benefits in this sexual harassment case was properly calculated using the “total offset” method:

We … reject petitioner’s contention that SDHR [State Division of Human Rights] erred by failing to reduce the damages awarded for loss of pension benefits to present value. Citing Stratton v Department of Aging for City of New York (132 F3d 869, 882 [2d Cir 1997]), SDHR explained that it had not discounted the award to present value because it had not factored future salary increases into its award … . Whether the Human Rights Law (see Executive Law art 15) requires that awards for future damages be discounted to present value is an issue of first impression in the appellate courts of New York. However, the Court of Appeals has noted that federal case law is instructive in the employment discrimination context… . We acknowledge that the award for Seabury’s lost pension benefits can only be a “rough approximation” of the amount necessary to restore her to the position that she would have occupied had she not been the victim of sexual harassment, because neither her lost income stream nor the effect of future price inflation can be predicted with complete confidence … . One permissible method for approximating damages that arises from a loss of future income — known as the “total offset” method — is to neither consider future salary increases nor discount the damages to present value based on the presumption that future salary increases are offset by the discount rate used to calculate the present value of a damages award… . Thus, SDHR did not err by adopting the total offset method to determine the value of Seabury’s lost pension benefits … . Matter of Rensselaer County Sheriff’s Dept. v New York State Div. of Human Rights, 2018 NY Slip Op 05719, Third Dept 8-9-18

EMPLOYMENT LAW (HUMAN RIGHTS LAW, SEXUAL HARASSMENT, LOST PENSION BENEFITS AS DAMAGES IN THIS SEXUAL HARASSMENT CASE WERE PROPERLY CALCULATED USING THE TOTAL OFFSET METHOD (THIRD DEPT))/HUMAN RIGHTS LAW (SEXUAL HARASSMENT, LOST PENSION BENEFITS AS DAMAGES IN THIS SEXUAL HARASSMENT CASE WERE PROPERLY CALCULATED USING THE TOTAL OFFSET METHOD (THIRD DEPT))/DAMAGES (HUMAN RIGHTS LAW, EMPLOYMENT LAW, LOST PENSION BENEFITS AS DAMAGES IN THIS SEXUAL HARASSMENT CASE WERE PROPERLY CALCULATED USING THE TOTAL OFFSET METHOD (THIRD DEPT))/MUNICIPAL LAW (HUMAN RIGHTS LAW, SEXUAL HARASSMENT, LOST PENSION BENEFITS AS DAMAGES IN THIS SEXUAL HARASSMENT CASE WERE PROPERLY CALCULATED USING THE TOTAL OFFSET METHOD (THIRD DEPT))/TOTAL OFFSET METHOD (DAMAGES, HUMAN RIGHTS LAW, SEXUAL HARASSMENT, LOST PENSION BENEFITS AS DAMAGES IN THIS SEXUAL HARASSMENT CASE WERE PROPERLY CALCULATED USING THE TOTAL OFFSET METHOD (THIRD DEPT))/PENSION BENEFITS, LOSS OF  (DAMAGES, HUMAN RIGHTS LAW, SEXUAL HARASSMENT, LOST PENSION BENEFITS AS DAMAGES IN THIS SEXUAL HARASSMENT CASE WERE PROPERLY CALCULATED USING THE TOTAL OFFSET METHOD (THIRD DEPT))

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APPELLATE COURT EXERCISED ITS POWER TO REDUCE A SENTENCE EVEN THOUGH THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION, NOTING EXTRAORDINARY CIRCUMSTANCES (THIRD DEPT).

The Third Department exercised its power to reduce a sentence in the absence of an abuse of discretion by the sentencing judge. In the midst of difficult divorce proceedings defendant deposited a check made out to her and her husband. The evidence demonstrated the husband’s signature was forged and defendant was convicted of criminal possession of a forged instrument. The Third Department did not explain the extraordinary circumstances but deemed the four-month sentence inappropriate and imposed a time-served sentence of 13 days:

“Ordinarily, we refrain from exercising our power to modify a sentence unless the sentencing court abused its discretion or extraordinary circumstances exist warranting such a modification” … . In our view, the circumstances surrounding the commission of the crime and defendant herself are extraordinary and warrant the exercise of that power. Defendant has already served 13 days in jail and, as a matter of discretion in the interest of justice, we reduce the jail component of her sentence to time served … . People v Gretzinger, 2018 NY Slip Op 05716, Third Dept 8-9-18

CRIMINAL LAW (SENTENCING, APPELLATE COURT EXERCISED ITS POWER TO REDUCE A SENTENCE EVEN THOUGH THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION, NOTING EXTRAORDINARY CIRCUMSTANCES (THIRD DEPT))/SENTENCING (APPELLATE COURT EXERCISED ITS POWER TO REDUCE A SENTENCE EVEN THOUGH THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION, NOTING EXTRAORDINARY CIRCUMSTANCES (THIRD DEPT))/APPEALS (CRIMINAL LAW, SENTENCING, APPELLATE COURT EXERCISED ITS POWER TO REDUCE A SENTENCE EVEN THOUGH THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION, NOTING EXTRAORDINARY CIRCUMSTANCES (THIRD DEPT))

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DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department determined defense counsel was ineffective in failing to request a Frye hearing concerning a computer program, the TrueAllele Caaswork system, used to interpret mixed DNA samples. The appeal was held in abeyance and the matter remitted for the hearing:

​Defendant asserts that his trial counsel should have challenged, by way of a Frye hearing, the reliability of the TrueAllele Casework system, the proprietary “computer program that use[d] mathematics and statistics to interpret” the electronic data generated from the DNA mixtures taken from the lavender gloves and determine the statistical probability of a match between defendant’s DNA and that found on the inside of the gloves. A Frye hearing ascertains the reliability of “novel scientific evidence” by determining “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally”… . At the time of defendant’s pretrial proceedings in 2014, there were no reported trial court or appellate court decisions in this state establishing that the reliability of the TrueAllele Casework system had been assessed through a Frye hearing or that any court in the state had otherwise accepted expert testimony regarding that proprietary computer program… . Given these circumstances, we do not find that it would have been futile for defense counsel to have requested a Frye hearing to challenge the reliability of the TrueAllele Casework system or that such an application would have had little or no likelihood of success … . People v Wilson, 2018 NY Slip Op 05715, Third Dept 8-9-18

CRIMINAL LAW (DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/APPEALS (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/DNA (CRIMINAL LAW, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/FRYE HEARING (CRIMINAL LAW, DNA, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/TRUEALLELE CASEWORK SYSTEM (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/INEFFECTIVE ASSISTANCE (DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/APPEALS (CRIMINAL LAW, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))

ATTORNEY HIRED FOR DOCUMENT REVIEW WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS, DESPITE THE ATTORNEY’S SIGNING A DOCUMENT INDICATING SHE WAS AN INDEPENDENT CONTRACTOR (THIRD DEPT).

The Third Department determined claimant, an attorney hired to do document review, was an employee of a law firm (Brody) entitled to unemployment insurance benefits, despite the attorney’s signing a document indicating she was an independent contractor:

The record reflects that Brody paid claimant an hourly set wage, required her to work at least 10 hours per day, Monday through Friday, and required her to obtain approval to take time off. Claimant was required to undergo training on how to do the work, was provided with a computer and workspace, and was assigned documents to review. She was, moreover, required to document her hours and meet with her supervisor to review her submitted hours and receive updates on the case. Claimant did not have an independent legal practice or business … .

The foregoing constitutes substantial evidence supporting the Board’s determination that Brody retained sufficient overall control of claimant’s services to establish an employer-employee relationship, notwithstanding evidence in the record that might support a contrary conclusion … . A different result is not compelled by the facts that claimant signed a written agreement labelling her as an independent contractor and believed that she performed in that capacity … . Matter of Philip (Brody–Commissioner of Labor), 2018 NY Slip Op 05648, Third Dept 8-2-18

UNEMPLOYMENT INSURANCE (ATTORNEY HIRED FOR DOCUMENT REVIEW WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS, DESPITE THE ATTORNEY’S SIGNING A DOCUMENT INDICATING SHE WAS AN INDEPENDENT CONTRACTOR (THIRD DEPT))/ATTORNEYS (UNEMPLOYMENT INSURANCE, ATTORNEY HIRED FOR DOCUMENT REVIEW WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS, DESPITE THE ATTORNEY’S SIGNING A DOCUMENT INDICATING SHE WAS AN INDEPENDENT CONTRACTOR (THIRD DEPT))

TUTOR WAS AN EMPLOYEE OF THE TUTORING SERVICE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT). ​

The Third Department determined a tutor employed by a tutoring service, Mulberry, was an employee entitled to unemployment insurance benefits:

Mulberry did not advertise for tutors, but received inquiries directly from potential tutors who heard about Mulberry through various means. It then collected their resumes and notified them when an opening became available. When claimant was notified, Mulberry’s director reviewed his resume and qualifications, verified his certifications and met with him to discuss the details of the tutoring position, including the pay rate, which was set at $40 per hour and was a percentage of the fee that it charged to its clients. After Mulberry matched a tutor with a student, it provided the tutor with a “student profile” containing pertinent information about the student, but it did not dictate the lesson plan, observe the tutoring sessions or oversee the instruction. Once a tutor accepted an assignment, the tutor set up the instructional schedule directly with the student and/or parent and Mulberry did not impose set work hours. A tutor, however, was free to reject an assignment.

Although tutors could conduct tutoring sessions at other locations, most sessions occurred at Mulberry’s learning center where it had books, supplies, computers and equipment available for the tutors to use even though they typically used either their own or their students’ instructional materials. When tutors worked at Mulberry’s learning center, they completed a time sheet or calendar detailing their hours and the students they tutored. Folders that were provided by Mulberry containing student information were maintained at the learning center. Mulberry also provided the tutors with a “tutoring record” to help them keep track of their hours, the students they instructed and the material covered, as well as a monthly invoice form that the tutors could submit to receive payment, which was tendered regardless of whether Mulberry received payment from its clients. Mulberry did not reimburse tutors for expenses, withhold taxes from their compensation or prohibit them from working for others. However, it sometimes assisted in resolving scheduling issues and intervened in the rare case when there was a problem with a student. Moreover, if a tutor had accepted an assignment and then became unavailable for an extended period of time, Mulberry would find a replacement. Significantly, Mulberry labeled the tutors “our teachers” and referred to their instruction as “our lesson plans” in its marketing literature, giving the impression that the tutors were, in fact, Mulberry’s employees.

In view of the foregoing, we find that Mulberry exercised control over important aspects of the tutors’ work notwithstanding its lack of involvement in the actual instruction provided by the tutors. Mulberry was not simply a referral agency, but held itself out as the tutors’ employer and acted as such. Matter of Eidelson (Mulberry Tree Ctr. LLC–Commissioner of Labor), 2018 NY Slip Op 05645, Third Dept 8-2-18

UNEMPLOYMENT INSURANCE (TUTOR WAS AN EMPLOYEE OF THE TUTORING SERVICE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/TUTORS (UNEMPLOYMENT INSURANCE, TUTOR WAS AN EMPLOYEE OF THE TUTORING SERVICE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

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NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT).

The Third Department determined the claimant, an inmate, did not have a private right of action for negligent performance of a governmental function against the Board of Parole. Claimant alleged the board did not comply with the Executive Law by promulgating certain written procedures for assessing an inmate’s eligibility for parole:

Inasmuch as Executive Law article 12-B, which sets forth the procedures governing parole, does not expressly authorize a private right of action for claimant to recover civil damages for a violation of its provisions, recovery may only be obtained if a private right of action may be implied … . “One may be fairly implied when (1) [claimant] is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme” … . “If one of these prerequisites is lacking, the claim will fail” … .

We agree with the Court of Claims that a private action may not be fairly implied here. The Legislature provides recourse under CPLR article 78 for inmates to address perceived instances where the Board did not satisfy its statutory obligations in making parole release determinations… . As the Legislature has established procedures for review of parole release decisions, “it is fair to infer that had it intended to create a private right of action . . ., it would have specifically done so” … . Accordingly, permitting a private action here would be inconsistent with the legislative scheme … . Franza v State of New York, 2018 NY Slip Op 05641, Third Dept 8-2-18

CRIMINAL LAW  NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT))/ADMINISTRATIVE LAW (CRIMINAL LAW, PAROLE, NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT))/COURT OF CLAIMS (PAROLE, NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT))/PAROLE (NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT))/NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION  NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT))

WORKERS’ COMPENSATION CARRIER ENTITLED TO REIMBURSEMENT OF BOTH TEMPORARY TOTAL DISABILITY PAYMENTS AND TEMPORARY PARTIAL DISABILITY PAYMENTS (THIRD DEPT).

The Third Department determined the workers’ compensation carrier was entitled to reimbursement of both the temporary total disability and temporary partial disability payments in the years preceding the schedule loss of use (SLU) award by the Workers’ Compensation Law Judge. Claimant argued that, based on the wording of the statute, the carrier was entitled to only the temporary partial disability payments:

… [W]hile it is true that Workers’ Compensation Law § 15 (4-a) “expressly provides for . . . an offset in the case of an award for [a] temporary total disability [that] is not protracted” and that no corresponding language appears in Workers’ Compensation Law § 15 (5), which addresses temporary partial disability awards… , this Court consistently has held that “the schedule award is not allocable to any particular period of disability” … . …

As we discern no basis upon which to treat the carrier’s temporary total disability payments and temporary partial disability payments to claimant in a disparate fashion… , and in order to avoid what otherwise would be a significant windfall to claimant, we find that the Board’s decision — holding that “the carrier may take [a] credit for all prior [disability] payments” — to be supported by substantial evidence. Matter of Robinson v Workmen’s Circle Home, 2018 NY Slip Op 05652, Third Dept 8-2-18

WORKERS’ COMPENSATION (WORKERS’ COMPENSATION CARRIER ENTITLED TO REIMBURSEMENT OF BOTH TEMPORARY TOTAL DISABILITY PAYMENTS AND TEMPORARY PARTIAL DISABILITY PAYMENTS (THIRD DEPT))

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STUDENT PROPERLY DISMISSED FROM A STATE UNIVERSITY FOR VIOLATIONS OF THE STUDENT CODE OF CONDUCT, PROCEDURES AND PROOF REQUIREMENTS EXPLAINED (THIRD DEPT).

The Third Department affirmed the dismissal of a student from the State University of New York for violations of the student code of conduct. The decision is too detailed to fairly summarize here, but it provides a comprehensive explanation of the procedures and proof required of a state university in a disciplinary action against a student:

Although administrative determinations may be based entirely on hearsay evidence as long as “such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted”… , the record contains direct evidence against petitioner, as well as hearsay. * * *

Generally, due process requires that the accused student in a college disciplinary proceeding be given written notice of the charges prior to a hearing, the names of the witnesses against him or her, an opportunity to hear and confront evidence against him or her and to present a defense and to be advised in writing of the factual findings and discipline imposed… . However, “there is no general constitutional right to discovery in . . . administrative proceedings” … . …

The code does not contain a requirement that a party provide any documents or information that the party does not intend to submit as evidence at the hearing. It is undisputed that the investigator complied with the code’s directive by timely providing to the Community Standards Office the names of his proposed witnesses and the evidence he later presented at the hearing, which were provided to petitioner well in advance of the hearing. * * *

Pursuant to the code, to obtain relief on an administrative appeal based on new evidence, the student must not only show that the evidence was unavailable at the time of the hearing, but must also provide “[a] summary of the new evidence and its potential impact.” …

… [A] student has no right to counsel in disciplinary proceedings … . The code permits a student to have an advisor, but that person may only advise the student and cannot address the Student Conduct Board during the hearing. Matter of Agudio v State Univ. of N.Y., 2018 NY Slip Op 05647, Third Dept 8-2-18

EDUCATION-SCHOOL LAW (STUDENT PROPERLY DISMISSED FROM A STATE UNIVERSITY FOR VIOLATIONS OF THE STUDENT CODE OF CONDUCT, PROCEDURES AND PROOF REQUIREMENTS EXPLAINED (THIRD DEPT))/ADMINISTRATIVE LAW (EDUCATION-SCHOOL LAW, STUDENT PROPERLY DISMISSED FROM A STATE UNIVERSITY FOR VIOLATIONS OF THE STUDENT CODE OF CONDUCT, PROCEDURES AND PROOF REQUIREMENTS EXPLAINED (THIRD DEPT))/COLLEGES AND UNIVERSITIES (STUDENT PROPERLY DISMISSED FROM A STATE UNIVERSITY FOR VIOLATIONS OF THE STUDENT CODE OF CONDUCT, PROCEDURES AND PROOF REQUIREMENTS EXPLAINED (THIRD DEPT))/DISCIPLINARY PROCEEDINGS (COLLEGES AND UNIVERSITIES, STUDENT PROPERLY DISMISSED FROM A STATE UNIVERSITY FOR VIOLATIONS OF THE STUDENT CODE OF CONDUCT, PROCEDURES AND PROOF REQUIREMENTS EXPLAINED (THIRD DEPT))/STUDENTS (COLLEGES AND UNIVERSITIES, STUDENT PROPERLY DISMISSED FROM A STATE UNIVERSITY FOR VIOLATIONS OF THE STUDENT CODE OF CONDUCT, PROCEDURES AND PROOF REQUIREMENTS EXPLAINED (THIRD DEPT))

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NO AGREEMENT TO INCREASE INSURANCE COVERAGE OF HOME DESTROYED BY FIRE AFTER RENOVATIONS, NO SPECIAL RELATIONSHIP BETWEEN THE INSURANCE BROKERS AND THE INSUREDS (THIRD DEPT).

The Third Department determined defendant insurance brokers’ motion for summary judgment in this breach of contract-negligence action by the insureds was properly granted. The Insureds’ alleged there was an agreement to increase the insurance coverage on the insureds’ home which was destroyed by fire after renovations had been made and there was a special relationship between the brokers and the insureds. There evidence did not support either theory:

As a general principle, insurance brokers have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage” … . Thus, “[t]o set forth a case for negligence or breach of contract against an insurance broker, a plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy” … . * * *

Stressing that “special relationships in the insurance brokerage context are the exception, not the norm” … , the Court of Appeals has identified three “exceptional situations” that may give rise to a special relationship: “(1) the agent receives compensation for consultation apart from payment of the premiums; (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on” … . Hefty v Paul Seymour Ins. Agency, 2018 NY Slip Op 05547, Third Dept 7-26-18

INSURANCE LAW (NO AGREEMENT TO INCREASE INSURANCE COVERAGE OF HOME DESTROYED BY FIRE AFTER RENOVATIONS, NO SPECIAL RELATIONSHIP BETWEEN THE INSURANCE BROKERS AND THE INSUREDS (THIRD DEPT))/CONTRACT LAW (INSURANCE LAW, NO AGREEMENT TO INCREASE INSURANCE COVERAGE OF HOME DESTROYED BY FIRE AFTER RENOVATIONS, NO SPECIAL RELATIONSHIP BETWEEN THE INSURANCE BROKERS AND THE INSUREDS (THIRD DEPT))/NEGLIGENCE (INSURANCE LAW, NO AGREEMENT TO INCREASE INSURANCE COVERAGE OF HOME DESTROYED BY FIRE AFTER RENOVATIONS, NO SPECIAL RELATIONSHIP BETWEEN THE INSURANCE BROKERS AND THE INSUREDS (THIRD DEPT))/SPECIAL RELATIONSHIP (INSURANCE LAW, (NO AGREEMENT TO INCREASE INSURANCE COVERAGE OF HOME DESTROYED BY FIRE AFTER RENOVATIONS, NO SPECIAL RELATIONSHIP BETWEEN THE INSURANCE BROKERS AND THE INSUREDS (THIRD DEPT))

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PARENTS HAD STANDING TO BRING A MANDAMUS ACTION SEEKING A SOUND BASIC EDUCATION FOR THEIR CHILDREN, HOWEVER MANDAMUS LIES ONLY FOR GOVERNMENT ACTIONS WHICH ARE MANDATORY, NOT THE DISCRETIONARY ACTIONS SOUGHT BY THE PETITION HERE (THIRD DEPT).

The Third Department the petitioners, parents of children in the East Ramapo Central School District, had standing to bring an Article 78 (mandamus) proceeding seeking to enforce the children’s constitutional right to a sound basic education, but the petition must be dismissed because mandamus lies only for mandatory, not discretionary, actions:

… [P]etitioners have sufficiently alleged a threatened harm to the children’s constitutional right to receive a sound basic education based upon respondents’ alleged failure to take corrective action as identified in the petition’s cited reports … .

Notwithstanding the foregoing, we conclude that the petition was properly dismissed. Mandamus to compel is “an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought” … . It is beyond cavil that students are entitled to a sound basic education (see NY Const art XI). The manner in which such goal is achieved, however, involves discretionary decisions by respondents … . As such, to the extent that petitioners seek to compel respondents to implement specific recommendations set forth in the reports cited in the petition — an act involving “the exercise of reasoned judgment which could typically produce different acceptable results”… — they are not entitled to such relief. Matter of Curry v New York State Educ. Dept., 2018 NY Slip Op 05393, Third Dept 7-19-18

EDUCATION-SCHOOL LAW (PARENTS HAD STANDING TO BRING A MANDAMUS ACTION SEEKING A SOUND BASIC EDUCATION FOR THEIR CHILDREN, HOWEVER MANDAMUS LIES ONLY FOR GOVERNMENT ACTIONS WHICH ARE MANDATORY, NOT THE DISCRETIONARY ACTIONS SOUGHT BY THE PETITION HERE (THIRD DEPT))/CONSTITUTIONAL LAW (EDUCATION-SCHOOL LAW, PARENTS HAD STANDING TO BRING A MANDAMUS ACTION SEEKING A SOUND BASIC EDUCATION FOR THEIR CHILDREN, HOWEVER MANDAMUS LIES ONLY FOR GOVERNMENT ACTIONS WHICH ARE MANDATORY, NOT THE DISCRETIONARY ACTIONS SOUGHT BY THE PETITION HERE (THIRD DEPT))/CIVIL PROCEDURE (MANDAMUS, EDUCATION-SCHOOL LAW, PARENTS HAD STANDING TO BRING A MANDAMUS ACTION SEEKING A SOUND BASIC EDUCATION FOR THEIR CHILDREN, HOWEVER MANDAMUS LIES ONLY FOR GOVERNMENT ACTIONS WHICH ARE MANDATORY, NOT THE DISCRETIONARY ACTIONS SOUGHT BY THE PETITION HERE (THIRD DEPT))/MANDAMUS (EDUCATION-SCHOOL LAW, PARENTS HAD STANDING TO BRING A MANDAMUS ACTION SEEKING A SOUND BASIC EDUCATION FOR THEIR CHILDREN, HOWEVER MANDAMUS LIES ONLY FOR GOVERNMENT ACTIONS WHICH ARE MANDATORY, NOT THE DISCRETIONARY ACTIONS SOUGHT BY THE PETITION HERE (THIRD DEPT))

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