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QUESTIONS OF FACT WHETHER CLUTTER AT A DAY CARE CENTER WAS A PROXIMATE CAUSE OF PLAINTIFF’S FALL AND WHETHER A BICYCLE RIDDEN BY A THREE-YEAR-OLD WAS A DANGEROUS INSTRUMENT REQUIRING SUPERVISION BY THE OPERATOR OF THE DAY CARE CENTER (THIRD DEPT).

The Third Department, over a two-justice partial dissent, determined there were questions of fact about whether a cluttered area at a day care center was a proximate cause of plaintiff’s falling and whether a bicycle ridden by a three-year-old was a dangerous instrument requiring supervision by the operator of the day care center. The plaintiff had picked up her infant when her three-year-old ran into her with the bicycle. Plaintiff alleged that, had the area not been cluttered with toys and furniture, she could have avoided falling. The dissenters argued that the bicycle was not a dangerous instrument and the negligent supervision cause of action failed as a matter of law:

Here, the actions of the three-year-old child were unquestionably the precipitating factor in plaintiff’s accident. However, plaintiff explained that, after being struck by the bicycle, she attempted to regain her balance but was unable to because she was “trapped” between a table and an ottoman and could not take a step in any direction without tripping on one of the various objects scattered about the porch. She further averred that, had the floor not been so cluttered with toys, objects and furniture, she would have been able to regain her balance before falling. Viewing this evidence in the light most favorable to plaintiff and affording her the benefit of every favorable inference that may be drawn therefrom … , we find a triable issue of fact as to whether the condition of the porch was a proximate cause of plaintiff’s injuries … . …

As the Court of Appeals has explained, “[c]hildren might, at various points in their development, be permitted, and properly so, to use bicycles, lawn mowers, power tools, motorcycles, or automobiles, all of which are, in some contingencies, ‘dangerous instruments'” … . “[T]he determination of whether a particular instrument is dangerous ‘depends upon the nature and complexity of the allegedly dangerous instrument, the age, intelligence and experience of the child, and his [or her] proficiency with the instrument'”… . Pineiro v Rush, 2018 NY Slip Op 04994, Third Dept 7-5-18

​NEGLIGENCE (QUESTIONS OF FACT WHETHER CLUTTER AT A DAY CARE CENTER WAS A PROXIMATE CAUSE OF PLAINTIFF’S FALL AND WHETHER A BICYCLE RIDDEN BY A THREE-YEAR-OLD WAS A DANGEROUS INSTRUMENT REQUIRING SUPERVISION BY THE OPERATOR OF THE DAY CARE CENTER (THIRD DEPT))/SLIP AND FALL (QUESTIONS OF FACT WHETHER CLUTTER AT A DAY CARE CENTER WAS A PROXIMATE CAUSE OF PLAINTIFF’S FALL AND WHETHER A BICYCLE RIDDEN BY A THREE-YEAR-OLD WAS A DANGEROUS INSTRUMENT REQUIRING SUPERVISION BY THE OPERATOR OF THE DAY CARE CENTER (THIRD DEPT))/NEGLIGENT SUPERVISION  (QUESTIONS OF FACT WHETHER CLUTTER AT A DAY CARE CENTER WAS A PROXIMATE CAUSE OF PLAINTIFF’S FALL AND WHETHER A BICYCLE RIDDEN BY A THREE-YEAR-OLD WAS A DANGEROUS INSTRUMENT REQUIRING SUPERVISION BY THE OPERATOR OF THE DAY CARE CENTER (THIRD DEPT))/BICYCLES (DANGEROUS INSTRUMENTS, NEGLIGENT SUPERVISION, QUESTIONS OF FACT WHETHER CLUTTER AT A DAY CARE CENTER WAS A PROXIMATE CAUSE OF PLAINTIFF’S FALL AND WHETHER A BICYCLE RIDDEN BY A THREE-YEAR-OLD WAS A DANGEROUS INSTRUMENT REQUIRING SUPERVISION BY THE OPERATOR OF THE DAY CARE CENTER (THIRD DEPT))/NEGLIGENT SUPERVISION (DAY CARE, QUESTIONS OF FACT WHETHER CLUTTER AT A DAY CARE CENTER WAS A PROXIMATE CAUSE OF PLAINTIFF’S FALL AND WHETHER A BICYCLE RIDDEN BY A THREE-YEAR-OLD WAS A DANGEROUS INSTRUMENT REQUIRING SUPERVISION BY THE OPERATOR OF THE DAY CARE CENTER (THIRD DEPT))/DAY CARE (NEGLIGENT SUPERVISION, QUESTIONS OF FACT WHETHER CLUTTER AT A DAY CARE CENTER WAS A PROXIMATE CAUSE OF PLAINTIFF’S FALL AND WHETHER A BICYCLE RIDDEN BY A THREE-YEAR-OLD WAS A DANGEROUS INSTRUMENT REQUIRING SUPERVISION BY THE OPERATOR OF THE DAY CARE CENTER (THIRD DEPT))

ALTHOUGH MOTHER VIOLATED THE TERMS OF HER SUSPENDED JUDGMENT, FAMILY COURT SHOULD NOT HAVE TERMINATED HER PARENTAL RIGHTS WITHOUT A FINDING, BASED UPON A HEARING, THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD (THIRD DEPT).

The Third Department, reversing Family Court, determined that although mother violated the terms of her suspended judgment, her parental rights should not have been terminated without a finding, based upon a hearing, that termination was in the best interests of the child:

A suspended judgment is intended to provide a parent who has permanently neglected his or her child with a brief period within which to become a fit parent that the child can be returned to in safety … . “A parent’s noncompliance with the terms of the suspended judgment during this grace period, if established by a preponderance of the evidence, may end with revocation of the suspended judgment and termination of his or her parental rights”… .

Family Court determined, and we agree, that numerous violations of the terms of the suspended judgment were established by a preponderance of the evidence. …

… [V]iolations that could warrant a revocation of the suspended judgment and termination of parental rights do not automatically have that effect… . It is instead the best interests of the child, which is “relevant at all stages of a permanent neglect proceeding, including at the revocation of a suspended judgment,” that determines the appropriate disposition … . Family Court did not make a best interests finding and, absent hearing evidence relating to “the child[]’s present circumstances and relationship with [respondent] and the effect upon the[] [child] of the termination of [respondent’s] parental rights and [the child’s] potential adoption,” it is unclear how Family Court could have done so … . Matter of Cecilia P. (Carlenna Q.), 2018 NY Slip Op 04993, Third Dept 7-5-18

​FAMILY LAW (PARENTAL RIGHTS, ALTHOUGH MOTHER VIOLATED THE TERMS OF HER SUSPENDED JUDGMENT, FAMILY COURT SHOULD NOT HAVE TERMINATED HER PARENTAL RIGHTS WITHOUT A FINDING, BASED UPON A HEARING, THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD (THIRD DEPT))/PARENTAL RIGHTS (ALTHOUGH MOTHER VIOLATED THE TERMS OF HER SUSPENDED JUDGMENT, FAMILY COURT SHOULD NOT HAVE TERMINATED HER PARENTAL RIGHTS WITHOUT A FINDING, BASED UPON A HEARING, THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD (THIRD DEPT))/SUSPENDED JUDGMENTS (FAMILY LAW, PARENTAL RIGHTS,  ALTHOUGH MOTHER VIOLATED THE TERMS OF HER SUSPENDED JUDGMENT, FAMILY COURT SHOULD NOT HAVE TERMINATED HER PARENTAL RIGHTS WITHOUT A FINDING, BASED UPON A HEARING, THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD (THIRD DEPT))/NEGLECT (FAMILY LAW, PARENTAL RIGHTS,  ALTHOUGH MOTHER VIOLATED THE TERMS OF HER SUSPENDED JUDGMENT, FAMILY COURT SHOULD NOT HAVE TERMINATED HER PARENTAL RIGHTS WITHOUT A FINDING, BASED UPON A HEARING, THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD (THIRD DEPT))

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QUESTIONS OF FACT ABOUT WHETHER THERE WAS A MISREPRESENTATION BY THE INSURED ABOUT A PRIOR BITE BY A DOG, AND WHETHER THERE ACTUALLY WAS A PRIOR BITE, PRECLUDED SUMMARY JUDGMENT ON WHETHER A CANINE POLICY EXCLUSION APPLIED AND WHETHER THERE WAS A TIMELY DISCLAIMER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined there were questions of fact whether the insured made a misrepresentation to the insurer and whether the insurer timely disclaimed coverage for a dog bite. There were questions of fact whether the insured was asked about a prior bite by the dog and gave a false answer, and whether there had actually been a prior bite by the dog which would trigger a policy exclusion:

“When construing Insurance Law § 3420 (d), which requires an insurer to issue a written disclaimer of coverage for death or bodily injuries arising out of accidents ‘as soon as is reasonably possible,’ [the Court of Appeals has] made clear that timeliness almost always presents a factual question, requiring an assessment of all relevant circumstances surrounding a particular disclaimer[, and] cases in which the reasonableness of an insurer’s delay may be decided as a matter of law are exceptional and present extreme circumstances” … . “The timeliness of an insurer’s disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage” … . The insurer has an obligation not only to promptly provide notice of disclaimer once it has reached that decision, but to promptly investigate and reach a decision on whether to disclaim … . …

[The insurer] argues that it was entitled to rely on [the insured’s] statement that the dog had not previously bitten anyone. As noted above, there is a question of fact regarding whether [the insurer’s] claims manager actually asked [the insured] if she knew of any prior biting events. If the claims manager never asked that question, the record evidence presents a triable issue of fact as to whether [the insurer] failed to conduct a reasonable and prompt investigation into the potential applicability of the canine exclusion … . If the claims manager asked that question and received a negative answer, as she averred, then [the insurer] would be justified in relying on the representation by its insured … ; however, given that the [insured] had owned the dog for only approximately one month, there would still be a triable question of fact regarding the reasonableness of [the insured’s] investigation. As neither party established, as a matter of law, the reasonableness or unreasonableness of the delay in [the insured’s  disclaimer, neither party was entitled to summary judgment … . Battisti v Broome Coop. Ins. Co., 2018 NY Slip Op 04992, Third Dept 7-5-18

​INSURANCE LAW (DOG BITES, QUESTIONS OF FACT ABOUT WHETHER THERE WAS A MISREPRESENTATION BY THE INSURED ABOUT A PRIOR BITE BY A DOG, AND WHETHER THERE ACTUALLY WAS A PRIOR BITE, PRECLUDED SUMMARY JUDGMENT ON WHETHER A CANINE POLICY EXCLUSION APPLIED AND WHETHER THERE WAS A TIMELY DISCLAIMER (THIRD DEPT))/ANIMAL LAW (DOG BITES, INSURANCE LAW, QUESTIONS OF FACT ABOUT WHETHER THERE WAS A MISREPRESENTATION BY THE INSURED ABOUT A PRIOR BITE BY A DOG, AND WHETHER THERE ACTUALLY WAS A PRIOR BITE, PRECLUDED SUMMARY JUDGMENT ON WHETHER A CANINE POLICY EXCLUSION APPLIED AND WHETHER THERE WAS A TIMELY DISCLAIMER (THIRD DEPT))/DISCLAIMERS (INSURANCE LAW, DOG BITES, QUESTIONS OF FACT ABOUT WHETHER THERE WAS A MISREPRESENTATION BY THE INSURED ABOUT A PRIOR BITE BY A DOG, AND WHETHER THERE ACTUALLY WAS A PRIOR BITE, PRECLUDED SUMMARY JUDGMENT ON WHETHER A CANINE POLICY EXCLUSION APPLIED AND WHETHER THERE WAS A TIMELY DISCLAIMER (THIRD DEPT))

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INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing County Court, determined there was sufficient evidence before the Grand Jury to support several counts dismissed by the motion court. The dismissed counts related to allegedly false information on business records about farm employees’ hours and pay and the employment of a minor (a 14-year-old killed operating heavy farm equipment) in violation of the Labor Law:

“To dismiss an indictment or counts thereof on the basis of insufficient evidence before a grand jury, a reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury” … . “In the context of grand jury proceedings, ‘legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'” … . “The reviewing court’s inquiry is limited to ‘whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether ‘the [g]rand [j]ury could rationally have drawn the guilty inference'” … . * * *

Viewed most favorably to the People, we find that the evidence before the grand jury provided a prima facie case of falsifying business records in the first degree and offering a false instrument for filing in the first degree. Although there was no proof that defendant himself compiled the relevant time sheets or submitted them to [the bookkeeper], the evidence established that employees reported their hours directly to defendant — who regularly paid them in cash off the books — and that defendant was solely responsible for the accuracy of the payroll information, personally certified the accuracy of two amended [the unemployment insurance] forms and instructed one of his employees to lie about the number of hours he worked. * * *

“[W]here an indictment count incorporates by reference the statutory provision applicable to the crime intended to be charged, it has been repeatedly held that this is sufficient to apprise [a] defendant of the charge and, therefore, renders the count jurisdictionally valid” … . Here, counts 14 and 15 of the indictment each begin by accusing defendant of the crime of prohibited employment of a minor in violation of Labor Law § 145, which provides that a knowing violation of a provision of article 4 of the Labor Law is punishable by a misdemeanor. While County Court correctly noted that Labor Law § 145 does not state a substantive offense, each count then goes on to specify the particular section of article 4 of the Labor Law which defendant is alleged to have violated, as well as the conduct forming the basis of the charges. People v Park, 2018 NY Slip Op 04985, Third Dept 7-5-18

​CRIMINAL LAW (EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/INDICTMENTS (EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/GRAND JURY (EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/EMPLOYMENT LAW (CRIMINAL LAW, FALSE BUSINESS RECORDS, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/LABOR LAW (CRIMINAL LAW, INDICTMENTS, GRAND JURY, EVIDENCE,  INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/MINORS (EMPLOYMENT LAW, CRIMINAL LAW, LABOR LAW, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/UNEMPLOYMENT INSURANCE (CRIMINAL LAW, EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))

SEX OFFENDER MANAGEMENT PROCEEDING IN THIS HIGH PROFILE CASE SHOULD BE CLOSED TO THE PUBLIC TO PROTECT THE IDENTITIES OF THE VICTIMS (THIRD DEPT).

The Third Department determined the respondent’s sex offender management proceeding should be held in a closed courtroom and the record should be sealed to protect the identities of the victims in this high profile sex offense case:

Here, Supreme Court has taken steps to preserve the victims’ anonymity that include orders directing the media to withhold their names, sealing the trial record and granting anonymity to respondent. Nevertheless, our review of the factual details that may be discussed by petitioner’s experts persuades us that, in this particular case, media coverage of a public trial could well lead to the identification of the victims in the media, on the Internet or by those who followed the high profile proceedings in the past. The risk is particularly acute in view of the online presence that permits many of today’s media outlets to disseminate news beyond their subscribers and their local geographic area, in a form that may foster public discussion in comments or on social media, and which then remains permanently available.

Generally, public policy disfavors “limitations on public access to court proceedings” … . However, the right to such access is not without limitation and “must be balanced against other interests which might justify the closing of the courtroom to the public” … . We note that Mental Health Law § 10.08 reflects the strong public policy in favor of protecting the confidentiality of victims of sex offenses by including provisions that prohibit or limit the disclosure of identifying information … . Further, the controlling regulation cites “the nature of the proceedings and the privacy of the parties” as factors that may justify closing the courtroom during civil management proceedings … . Upon balancing the competing interests, we find that — in the limited and particular circumstances presented here — there is a significant risk that a public trial may compromise the anonymity of respondent’s victims. Thus, good cause has been shown to close the courtroom to the public during respondent’s civil management trial … . Matter of State of New York v John T.. 2018 NY Slip Op 05012, Third Dept 7-5-18

​MENTAL HYGIENE LAW (SEX OFFENDER MANAGEMENT PROCEEDING IN THIS HIGH PROFILE CASE SHOULD BE CLOSED TO THE PUBLIC TO PROTECT THE IDENTITIES OF THE VICTIMS (THIRD DEPT))/COURTROOM CLOSURE (MENTAL HYGIENE LAW, SEX OFFENDER MANAGEMENT PROCEEDING IN THIS HIGH PROFILE CASE SHOULD BE CLOSED TO THE PUBLIC TO PROTECT THE IDENTITIES OF THE VICTIMS (THIRD DEPT))

THE SCOPE OF A LANDOWNER’S DUTY TO KEEP PROPERTY IN A SAFE CONDITION IS MEASURED BY FORESEEABILITY, HERE A GRASSY PATH WAS CLEARED OF SNOW BY A SCHOOL CUSTODIAN, SO USE OF THE PATH WAS FORESEEABLE, HOWEVER THERE WAS A QUESTION OF FACT WHETHER THE PATH CONSTITUTED A DANGEROUS CONDITION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined there was a question of fact whether a grassy path used to walk from a parking lot to a school building constituted a dangerous condition in this slip and fall case. The path had been cleared of ice and snow by a custodian but the plaintiff described the path as wet and muddy, as opposed to having ice and snow on it. There was a paved walkway to the school and there was testimony the grassy path should not have been cleared of snow:

“As the party seeking summary judgment, defendant bore the initial burden of demonstrating that it had maintained the property in a reasonably safe condition and that it did not create or have actual or constructive notice of the specific allegedly dangerous condition that resulted in plaintiff’s injury” … . To that end, “the scope of a landowner’s duty is measured in terms of foreseeability” … . “Foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated” … .

Here, the evidence shows that defendant created the path on which plaintiff fell and, therefore, the only valid inference is that it was foreseeable that people would use the path once it had been cleared… . Thus, defendant had a duty to maintain the path in a reasonably safe condition … . However, whether “a dangerous condition exists is generally a question for the jury” … , unless “only a single inference can be drawn from the undisputed facts” … . The deposition testimony established that defendant’s employee created the path, but there was no testimony regarding whether there was any additional maintenance. Also, although plaintiff testified that the path was wet and muddy, she could not recall if there was snow or ice on it. Therefore, a triable question of fact exists as to whether the path constituted a dangerous condition … . Ellis v Lansingburgh Cent. Sch. Dist., 2018 NY Slip Op 05011, Third Dept 7-5-18

​NEGLIGENCE (SLIP AND FALL, THE SCOPE OF A LANDOWNER’S DUTY TO KEEP PROPERTY IN A SAFE CONDITION IS MEASURED BY FORESEEABILITY, HERE A GRASSY PATH WAS CLEARED OF SNOW BY A SCHOOL CUSTODIAN, SO USE OF THE PATH WAS FORESEEABLE, HOWEVER THERE WAS A QUESTION OF FACT WHETHER THE PATH CONSTITUTED A DANGEROUS CONDITION (THIRD DEPT))/SLIP AND FALL (THE SCOPE OF A LANDOWNER’S DUTY TO KEEP PROPERTY IN A SAFE CONDITION IS MEASURED BY FORESEEABILITY, HERE A GRASSY PATH WAS CLEARED OF SNOW BY A SCHOOL CUSTODIAN, SO USE OF THE PATH WAS FORESEEABLE, HOWEVER THERE WAS A QUESTION OF FACT WHETHER THE PATH CONSTITUTED A DANGEROUS CONDITION (THIRD DEPT))/FORESEEABILITY (SLIP AND FALL, THE SCOPE OF A LANDOWNER’S DUTY TO KEEP PROPERTY IN A SAFE CONDITION IS MEASURED BY FORESEEABILITY, HERE A GRASSY PATH WAS CLEARED OF SNOW BY A SCHOOL CUSTODIAN, SO USE OF THE PATH WAS FORESEEABLE, HOWEVER THERE WAS A QUESTION OF FACT WHETHER THE PATH CONSTITUTED A DANGEROUS CONDITION (THIRD DEPT))

NEW LAW THAT WENT INTO EFFECT WHEN THE CLAIM WAS BEING RECONSIDERED SHOULD HAVE BEEN APPLIED, CLAIMS MAY NO LONGER BE DENIED ON THE FACTUAL FINDING THAT THE STRESS EXPERIENCED BY CLAIMANT IS NOT GREATER THAN THAT WHICH USUALLY OCCURS IN THE WORK ENVIRONMENT, POLICE OFFICER CLAIMED ANXIETY AND PHOBIAS RELATED TO THE SIGHT OF BLOOD (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined that a new provision of the Workers’ Compensation Law, which directly related to claimant police officer’s disability claim (anxiety and phobias related to the sight of blood), was intended to take effect immediately and should have been applied by the Board. The Board had denied the claim finding that the sight of blood is a usual occurrence in police work:

In September 2016, claimant applied for reconsideration and/or full Board review, which the carrier opposed. On April 10, 2017, while that application was pending, Workers’ Compensation Law § 10 (3) (b) was materially amended, effective immediately. The amendment provided that, as relevant here, “[w]here a police officer . . . files a claim for mental injury premised upon extraordinary work-related stress incurred in a work-related emergency, the [B]oard may not disallow the claim, upon a factual finding that the stress was not greater than that which usually occurs in the normal work environment” … . …

In our view, by directing that the apparent substantive change in the law was to take effect immediately, “the Legislature clearly indicated that th[is] amendment[ is] to be viewed as remedial, designed to correct imperfections in prior law, by giving relief to [an] aggrieved party”… . Moreover, as a general rule, “the law as it exists at the time a decision is rendered on appeal is controlling”… . Consequently, we find that, under these circumstances, the Board was bound to apply the law as it existed at the time it was considering and determining the reconsideration and/or review application, notwithstanding the parties’ apparent failure to make supplemental arguments in submissions to the Board addressing this change in the law. Matter of McMillan v Town of New Castle, 2018 NY Slip Op 04801, Third Dept 6-28-18

WORKERS’S COMPENSATION LAW (NEW LAW THAT WENT INTO EFFECT WHEN THE CLAIM WAS BEING RECONSIDERED SHOULD HAVE BEEN APPLIED, CLAIMS MAY NO LONGER BE DENIED ON THE FACTUAL FINDING THAT THE STRESS EXPERIENCED BY CLAIMANT IS NOT GREATER THAN THAT WHICH USUALLY OCCURS IN THE WORK ENVIRONMENT, POLICE OFFICER CLAIMED ANXIETY AND PHOBIAS RELATED TO THE SIGHT OF BLOOD (THIRD DEPT))/POLICE OFFICERS (WORKERS’ COMPENSATION LAW, NEW LAW THAT WENT INTO EFFECT WHEN THE CLAIM WAS BEING RECONSIDERED SHOULD HAVE BEEN APPLIED, CLAIMS MAY NO LONGER BE DENIED ON THE FACTUAL FINDING THAT THE STRESS EXPERIENCED BY CLAIMANT IS NOT GREATER THAN THAT WHICH USUALLY OCCURS IN THE WORK ENVIRONMENT, POLICE OFFICER CLAIMED ANXIETY AND PHOBIAS RELATED TO THE SIGHT OF BLOOD (THIRD DEPT))/BLOOD (ANXIETY RELATED TO THE SIGHT OF BLOOD, POLICE OFFICERS, WORKERS’ COMPENSATION LAW, NEW LAW THAT WENT INTO EFFECT WHEN THE CLAIM WAS BEING RECONSIDERED SHOULD HAVE BEEN APPLIED, CLAIMS MAY NO LONGER BE DENIED ON THE FACTUAL FINDING THAT THE STRESS EXPERIENCED BY CLAIMANT IS NOT GREATER THAN THAT WHICH USUALLY OCCURS IN THE WORK ENVIRONMENT, POLICE OFFICER CLAIMED ANXIETY AND PHOBIAS RELATED TO THE SIGHT OF BLOOD (THIRD DEPT))/ANXIETY (WORKERS’ COMPENSATION LAW, ANXIETY RELATED TO THE SIGHT OF BLOOD, POLICE OFFICERS, WORKERS’ COMPENSATION LAW, NEW LAW THAT WENT INTO EFFECT WHEN THE CLAIM WAS BEING RECONSIDERED SHOULD HAVE BEEN APPLIED, CLAIMS MAY NO LONGER BE DENIED ON THE FACTUAL FINDING THAT THE STRESS EXPERIENCED BY CLAIMANT IS NOT GREATER THAN THAT WHICH USUALLY OCCURS IN THE WORK ENVIRONMENT, POLICE OFFICER CLAIMED ANXIETY AND PHOBIAS RELATED TO THE SIGHT OF BLOOD (THIRD DEPT))

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DEFENDANT DID NOT HAVE NOTICE OF OR A CHANCE TO OBJECT TO A 20 POINT ASSESSMENT MADE BY THE JUDGE SUA SPONTE, NEW HEARING ORDERED (THIRD DEPT).

The Third Department, ordering a new SORA hearing, determined defendant did not have notice of or an opportunity to object to a 20 point assessment made by the judge sua sponte:

“A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment” … . To that end, SORA requires the People to provide defendant with written notice, at least 10 days prior to the hearing, if they intend to seek a presumptive risk level classification that differs from the Board’s recommendation along with their reasons for doing so… . Similarly, “a court’s sua sponte departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to be respond” … . People v Maus, 2018 NY Slip Op 04796, Third Dept 6-28-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT DID NOT HAVE NOTICE OF OR A CHANCE TO OBJECT TO A 20 POINT ASSESSMENT MADE BY THE JUDGE SUA SPONTE, NEW HEARING ORDERED (THIRD DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT DID NOT HAVE NOTICE OF OR A CHANCE TO OBJECT TO A 20 POINT ASSESSMENT MADE BY THE JUDGE SUA SPONTE, NEW HEARING ORDERED (THIRD DEPT))

POLICE OFFICER’S INJURY WHEN HELPING LIFT A HEAVY DECEASED PERSON WAS NOT THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT).

The Third Department, over a partial dissent, determined the injury to petitioner police officer’s hand was not caused by an “accident” within the meaning of the Retirement and Social Security Law. The injury occurred when officer was helping to lift a heavy deceased person:

With regard to accidental disability retirement benefits, “[p]etitioner bears the burden of demonstrating that his disability arose out of an accident as defined by the Retirement and Social Security Law, and respondent’s determination in that regard will be upheld if supported by substantial evidence”… . To qualify as an accident, the underlying incident “must be a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of regular or routine employment duties”… . “[A]n injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury”… .

Here, petitioner responded to a call and sustained an injury to his fingers while assisting the medical examiner in carrying a large, deceased male to a transport vehicle. Petitioner acknowledged that this work was within the scope of his job duties, regardless of the heft of the body to be carried. Matter of Iovino v DiNapoli, 2018 NY Slip Op 04814, Third Dept 6-28-18

RETIREMENT AND SOCIAL SECURITY LAW (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICE OFFICER’S INJURY WHEN HELPING LIFT A HEAVY DECEASED PERSON WAS NOT THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT))/POLICE OFFICERS (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICE OFFICER’S INJURY WHEN HELPING LIFT A HEAVY DECEASED PERSON WAS NOT THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT))/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (POLICE OFFICER’S INJURY WHEN HELPING LIFT A HEAVY DECEASED PERSON WAS NOT THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT))

DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT).

The Third Department determined the road defect which allegedly caused plaintiff to fall off her bicycle over the handlebars was properly found to be trivial and summary judgment was properly awarded to the defendant:

Although a landowner has a duty to maintain its property in a reasonably safe condition…, trivial defects are not actionable… . “[T]here is no predetermined height differential that renders a defect trivial”… . Instead, courts must consider “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury”… . Thus, “a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it unreasonably imperil[s] the safety of a pedestrian” …

The record includes photographs that confirm the size and location of the defect, relative to the roadway and crosswalk, and evinces that plaintiff previously traversed this area on bicycle several times prior to the accident, without incident. The photographs also reveal that the crosswalk against which the defect is located, made of bricks and demarcated from the asphalt with a granite boarder, would be visible to a bicyclist well before his or her tires made contact with the defect… . Gami v Cornell Univ.,2018 NY Slip Op 04812, Third Dept 6-28-18

NEGLIGENCE (BICYCLE ACCIDENT, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))/BICYCLES (NEGLIGENCE, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))/TRIVIAL DEFECT (NEGLIGENCE, BICYCLE ACCIDENT, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))/HIGHWAYS AND ROADS (NEGLIGENCE, BICYCLE ACCIDENTS, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))

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