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CLAIMANT-NURSE’S MENTAL HEALTH PROBLEMS WERE NOT COMPENSABLE AS THEY WERE NOT CAUSED BY GREATER THAN NORMAL STRESSORS (THIRD DEPT). ​

The Third Department determined claimant-nurse's mental health problems were not compensable because they were not deemed to have been caused by stress greater than that experienced in the normal work environment:

We find that substantial evidence supports the Board's factual determination that claimant's depressive condition was not compensable, as the work-related incidents and conditions that led to her mental injuries did not involve stressors that were “greater than that which other similarly situated workers experienced in the normal work environment” … . Claimant's supervisors described normal oversight and monitoring practices undertaken to assist her in correcting deficiencies in and improving her performance, and claimant failed to identify any unusual stressors or conduct that would constitute harassment or bullying as alleged in her claim for benefits. With regard to her job transfer, the testimony established that it was voluntary and, while it appears that the transition and organization of the new unit were somewhat chaotic and that her accommodations were not immediately communicated to her new supervisors, there was no credible evidence that the transfer was retaliatory or that she was knowingly denied accommodations. Further, claimant was never disciplined, reprimanded or singled out for unfair treatment, and the work evaluations and feedback were undertaken in a good faith. Matter of Lanese v Anthem Health Servs., 2018 NY Slip Op 06845, Third Dept 10-11-18

WORKERS' COMPENSATION (CLAIMANT-NURSE'S MENTAL HEALTH PROBLEMS WERE NOT COMPENSABLE AS THEY WERE NOT CAUSED BY GREATER THAN NORMAL STRESSORS (THIRD DEPT))

CLAIM DID NOT MEET THE SPECIFICITY REQUIREMENTS OF COURT OF CLAIMS ACT 11 AND WAS PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined the claim, alleging employment discrimination, did not comply with the specificity requirements of Court of Claims Act section 11 and was properly dismissed:

“Pursuant to Court of Claims Act § 11 (b), a claim must set forth the nature of the claim, the time when and place where it arose, the damages or injuries and the total sum claimed” … . “The purpose of the pleading requirements contained therein is to provide a sufficiently detailed description of the particulars of the claim to enable defendant to investigate and promptly ascertain the existence and extent of its liability” … . To that end, the Court of Claims Act does not require defendant “to ferret out or assemble information that section 11 (b) obligates the claimant to allege”… . Strict compliance with the pleading requirements contained in Court of Claims Act § 11 (b) is required, and the failure to satisfy any of the pleading requirements is a jurisdictional defect … .

We agree with the Court of Claims that the claim, consisting of 88 prolix paragraphs, raises vague, conclusory and non-linear allegations that lack context and fail to provide a coherent and sufficiently detailed description of the particulars of the claim to enable defendant to investigate and promptly ascertain the existence and extent of its liability… . Many of the allegations fail to provide a time and place when and where the alleged conduct occurred (see Court of Claims Act § 11 [b]), and, for those allegations that specify a date or general time period when alleged conduct occurred, the nature of the claim or identity and role of the individuals involved cannot be adequately ascertained… . Clark v State of New York, 2018 NY Slip Op 06844, Third Dept 10-11-18

COURT OF CLAIMS (CLAIM DID NOT MEET THE SPECIFICITY REQUIREMENTS OF COURT OF CLAIMS ACT 11 AND WAS PROPERLY DISMISSED (THIRD DEPT))/CIVIL PROCEDURE (COURT OF CLAIMS ACT, CLAIM DID NOT MEET THE SPECIFICITY REQUIREMENTS OF COURT OF CLAIMS ACT 11 AND WAS PROPERLY DISMISSED (THIRD DEPT))

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CLAIMANT’S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined the fact that the claimant was terminated from her employment as a city tax assessor because of two drunk-driving-related crimes did not preclude her from eligibility for unemployment insurance, The drunk driving incidents had nothing to do with her job and there was evidence she could have continued doing her job even though her license had been suspended for 90 days:

The disciplinary determination was founded, in part, upon claimant's two convictions for driving while under the influence of alcohol and her resulting license suspension. Whether this amounted to disqualifying misconduct posed a factual question for the Board, “and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct” … . …

The drunk driving incidents did not occur while claimant was working. Notably, possession of a valid driver's license was not listed among the qualifications necessary to hold the position of Sole Assessor and claimant testified that she was not advised that this was a requirement … . Claimant was not incarcerated as a result of her convictions and she testified that she was ready and able to fulfill her job duties notwithstanding the suspension of her driver's license … . Moreover, while claimant acknowledged that she occasionally did site visits, she testified that she could perform her duties while her license was temporarily suspended given that much of the data needed to compute the assessments had already been compiled and she could obtain a lot of the information online. Matter of Stack (City of Glens Falls–Commissioner of Labor), 2018 NY Slip Op 06840, Third Dept 10-11-18

UNEMPLOYMENT INSURANCE (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/EMPLOYMENT LAW (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/MUNICIPAL LAW  (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/CRIMINAL LAW (UNEMPLOYMENT INSURANCE, CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

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THE WORKERS’ COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS’ COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT).

The Third Department determined that claimant, a tractor trailer driver, was an employee of Eaton's Trucking Service and a special employee of Quality Carrier, with which Eaton had entered a contract. Therefore the Workers' Compensation Board properly found Eaton and Quality were each responsible for 50% of the workers' compensation awards:

… [W]e find that substantial evidence supports the Board's factual determination that claimant was a special employee of Quality … . Looking at “the underlying facts of the parties' relationship” … , the evidence established that Eaton and Quality had an arrangement whereby Eaton's drivers, including claimant, hauled products exclusively for Quality's customers and did so in furtherance of Quality's business, and that Eaton operated under Quality's logo and license without which Eaton could not have conducted its hauling operation. Their arrangement was the type of arrangement in which the “employee and equipment of [the] general employer were necessarily used and temporarily assigned to work for th[e] business” of the special employer, which has been recognized as creating a special employment relationship … . While Quality did not control the day-to-day oversight of claimant, this is not dispositive as Eaton and claimant operated entirely under Quality's authority and pursuant to its policies. As a result, Quality had sufficient control over the “details and ultimate result” of claimant's work, and Quality's working relationship with claimant was “sufficient in kind and degree so that [Quality] may be deemed [to be his] employer” … . Matter of Mitchell v Eaton's Trucking Serv., Inc., 2018 NY Slip Op 06839, Third Dept 10-11-18

WORKERS' COMPENSATION (THE WORKERS' COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS' COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT))/EMPLOYMENT LAW  (THE WORKERS' COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS' COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT))/SPECIAL EMPLOYEE (THE WORKERS' COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS' COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT))

CORRECTION OFFICER’S FALL DOWN A STAIRWAY WAS PROXIMATELY CAUSED BY THE ACT OF AN INMATE, THE RESULTING DISABILITY IS THEREFORE COMPENSABLE (THIRD DEPT).

The Third Department, annulling the hearing officer’s decision, determined that petitioner, a county correction officer, suffered a disability that resulted from the act of an inmate and was therefore compensable:

… [W]e find that petitioner has demonstrated that the injuries that he sustained from his fall occurred “contemporaneously with, and flowed directly, naturally and proximately from, the inmate’s” disobedient and affirmative act of descending down the stairs unexpectedly prior to receiving permission to do so … . Although “losing one’s footing — without more — does not constitute an affirmative act” … , petitioner’s misstep and fall flowed directly, naturally and proximately from the inmate’s act of being out of place without permission and startling petitioner by running down the stairs … . Having determined that petitioner’s injury was a natural and proximate result of an act of an inmate, the matter must be remitted for further proceedings on the issue of the permanency of petitioner’s alleged disability … . Matter of Garcia v DiNapoli, 2018 NY Slip Op 06602, Third Dept 10-4-18

RETIREMENT AND SOCIAL SECURITY LAW (CORRECTION OFFICER’S FALL DOWN A STAIRWAY WAS PROXIMATELY CAUSED BY THE ACT OF AN INMATE, THE RESULTING DISABILITY IS THEREFORE COMPENSABLE (THIRD DEPT))/CORRECTION OFFICERS (RETIREMENT AND SOCIAL SECURITY LAW, CORRECTION OFFICER’S FALL DOWN A STAIRWAY WAS PROXIMATELY CAUSED BY THE ACT OF AN INMATE, THE RESULTING DISABILITY IS THEREFORE COMPENSABLE (THIRD DEPT))

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SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT). ​

The Third Department, over a two-justice dissent, affirmed the Workers' Compensation Board's finding that claimant's shoulder injury was not compensable because it did not arise out of and in the course of her employment. Claimant's injury occurred when she scanned her parking pass to enter a parking garage. The garage was not owned by her employer, but there were spaces reserved for employees and the employer paid for parking. The majority found sufficient evidence to support the Board's ruling. But the dissenters argued this was not a case which required weighing conflicting evidence, therefore precedent allowing recovery for injuries in employee parking areas should control:

In concluding that claimant's injury was not compensable, the Board found that the parking garage was utilized by members of the public, as well as other businesses located within the same building as the employer. The Board further noted that the employer did not own or maintain the garage. These facts, which the Board credited, lead to the conclusion that the employer did not extend its premises to the area where claimant's injury occurred … . Although facts exist that would support a contrary result, given that substantial evidence supports the Board's decision, we discern no basis to disturb it … .

From the dissent: We respectfully dissent. The proper disposition of this case is not based upon our substantial evidence standard of review, as this is not a case where the Workers' Compensation Board was weighing and balancing conflicting evidence. There was no relevant conflicting evidence. The location and circumstances of the underlying event are not disputed; claimant does not challenge the factual findings, but instead addresses the appeal solely to the resulting legal determination. In this case, the Board was required to apply the policy established by precedent to the relevant undisputed facts. As the Board failed to properly apply this precedent in rendering the determination, we would reverse, based upon the law. Matter of Grover v State Ins. Fund, 2018 NY Slip Op 06601, Third Dept 10-4-18

WORKERS' COMPENSATION LAW (SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT))/ADMINISTRATIVE LAW (WORKERS' COMPENSATION LAW, (SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT))/PARKING GARAGES (WORKERS' COMPENSATION LAW, (SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT))

PETITIONER, WHO WAS URINATING WHEN A FEMALE CORRECTION OFFICER PASSED HIS CELL, WAS NOT GUILTY OF LEWD CONDUCT (THIRD DEPT).

The Third Department, annulling the determination, held that the petitioner did not engage in lewd conduct merely by urinating in his cell:

… [T]he Attorney General concedes, and we agree, that substantial evidence does not support that part of the determination finding petitioner guilty of engaging in lewd conduct… . The female correction officer testified that, while petitioner continued to urinate when she passed his cell, he made no gestures and did not expose his genitals to her … . Matter of Burroughs v Annucci, 2018 NY Slip Op 06168, Third Dept 9-19-18

DISCIPLINARY HEARINGS (INMATES) (PETITIONER, WHO WAS URINATING WHEN A FEMALE CORRECTION OFFICER PASSED HIS CELL, WAS NOT GUILTY OF LEWD CONDUCT (THIRD DEPT))/LEWD CONDUCT (DISCIPLINARY HEARINGS (INMATES), PETITIONER, WHO WAS URINATING WHEN A FEMALE CORRECTION OFFICER PASSED HIS CELL, WAS NOT GUILTY OF LEWD CONDUCT (THIRD DEPT))

PARTY OBJECTING TO CONGRESSIONAL CANDIDATES’ NOMINATING PETITION DID NOT PROPERLY NOTIFY THE CANDIDATE OF THE OBJECTIONS, STATE BOARD OF ELECTIONS SHOULD NOT HAVE INVALIDATED THE PETITION (THIRD DEPT).

The Third Department, reversing the State Election Board, determined the nominating petition of a candidate for the US House of Representatives should not have been invalidated because the objecting party did not comply with the requirements for notifying the candidate of the objections:

9 NYCRR 6204.1 (b) provides that “[n]o specifications of objections to any petition will be considered by the [State B]oard unless the objector filing the specifications personally delivers or mails by registered or certified mail a duplicate copy of the specification[s] to each candidate for public office named in the petition . . . on or before the date of filing of [the] specifications with the [State B]oard” … . Suffice it to say, the elemental prerequisite of any service requirement is that a party is served with the correct documents … . Plainly, this did not occur. Here, petitioner was not served with “a duplicate copy” of the specifications of objections, but was instead served with specifications of objections related to another candidate. Moreover, even assuming, without deciding, that the service upon petitioner of an order to show cause and supporting papers seeking to invalidate the nominating petition — which contained the specifications of objections related to petitioner — could serve to remedy the original defect, such service was not effectuated “on or before the date of filing of [the] specifications with the [State B]oard” (9 NYCRR 6204.1 [b]). Further, the fact that petitioner thereafter actually received the correct specifications is irrelevant, as “notice received by means other than those authorized . . . cannot serve to bring [the objections] within the jurisdiction of the [State Board]”…. Inasmuch as 9 NYCRR 6204.1 (b) is “'mandatory and may not be disregarded,'” we are constrained to conclude that “[Liscum's] failure to abide by the mandatory service provisions thereof deprived the [State] Board of jurisdiction to properly consider the objections and thereafter rule to invalidate the petition” … . Matter of Neal v Liscum, 2018 NY Slip Op 06070, Third Dept 9-17-18

ELECTION LAW (PARTY OBJECTING TO CONGRESSIONAL CANDIDATES' NOMINATING PETITION DID NOT PROPERLY NOTIFY THE CANDIDATE OF THE OBJECTIONS, STATE BOARD OF ELECTIONS SHOULD NOT HAVE INVALIDATED THE PETITION (THIRD DEPT))

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SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT). ​

The Third Department, over a two-justice partial dissent, determined that Surrogate's Court properly granted summary judgment dismissing the objection that the decedent lacked testamentary capacity.

… [E]vidence of decedent's diagnosis of dementia and declining cognitive abilities “does not, without more, create a question of fact on the issue of testamentary capacity, as the appropriate inquiry is whether the decedent was lucid and rational at the time the will was signed” … .

From the dissent:

… “[S]ummary judgment is rare in a contested probate proceeding and where, as here, there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence, summary judgment is inappropriate” … . Although a diagnosis of dementia, standing alone, is insufficient to create a triable issue of fact regarding mental capacity … , where, as here, there is proof of a progressively worsening mental condition, evidence of specific facts that occur close in time to execution is probative of testamentary capacity at the relevant time and is sufficient to establish a triable issue of fact … . Matter of Giaquinto, 2018 NY Slip Op 06065, Third Dept 9-12-18

TRUSTS AND ESTATES (SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT))/EVIDENCE (TRUSTS AND ESTATES, SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT))/TESTAMENTARY CAPACITY  (SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT))/SUMMARY JUDGMENT (TRUSTS AND ESTATES, TESTAMENTARY CAPACITY, SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT))

FIREFIGHTER’S FALL EXITING AN AMBULANCE WAS AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT).

The Third Department determined the incident in which petitioner firefighter was injured constituted an accident within the meaning of the Retirement and Social Security Law:

Petitioner testified that he had entered and exited ambulances hundreds of times during the course of his career as a firefighter. He was familiar with the folding step located at the rear of the ambulance and indicated that it was usually down and in an open position so that people could safely get in and out of the ambulance. He explained that the step was designed to flip up temporarily when a stretcher was being loaded into the ambulance to keep the wheels from striking the step and then to flip back down. Petitioner stated that, when he entered the ambulance on the date in question, the stretcher had already been removed, so he assumed that the step was down when he went to exit. He indicated that, as he was exiting the ambulance, he placed his foot on the edge of the step, which was a color similar to the bumper, while it was flipped up and flush against the bumper. When he did so, it collapsed downward, causing him to fall to the ground.

Under these circumstances, the precipitating external event, i.e., the flipping down of the folding step, was sudden, unexpected and not a risk inherent in petitioner's ordinary job duties … . Likewise, petitioner's fall was not attributable to inattention or a mere misstep , but rather to an apparently malfunctioning piece of equipment that was designed, under normal circumstances, to promote safety … . Accordingly, respondent's denial of petitioner's application on the ground that the incident was not an accident within the meaning of the Retirement and Social Security Law is not supported by substantial evidence and must be annulled. Matter of Loia v DiNapoliI, 2018 NY Slip Op 05984, Third Dept 9-6-18

RETIREMENT AND SOCIAL SECURITY LAW (FIREFIGHTER'S FALL EXITING AN AMBULANCE WAS AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT))/FIREFIGHTERS (RETIREMENT AND SOCIAL SECURITY LAW, FIREFIGHTER'S FALL EXITING AN AMBULANCE WAS AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT))

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