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DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT)

The Third Department, in a full-fledged opinion by Justice Devine, determined that the defendant did not have statutory authorization to appeal from a ruling by County Court which allowed the prosecutor access to a pre-sentence investigation report (PSI) prepared in connection with defendant’s prior conviction:

Defendant pleaded guilty to attempted criminal possession of a weapon in the third degree in Saratoga County, and a presentence investigation report (hereinafter PSI) was prepared for County Court prior to his 2006 sentencing. Several years later, an indictment was handed up in Schenectady County charging defendant with various offenses. The Schenectady County District Attorney believed that the PSI contained information relevant to the new criminal action and, as a result, applied to County Court for the limited disclosure and use of the PSI. County Court granted that request, prompting this appeal by defendant. * * *

… [T]he Schenectady County District Attorney’s Office applied for disclosure of the PSI with the aim of using it in a pending criminal action against defendant. The application therefore “relate[s] to a prospective, pending or completed criminal action” so as to constitute a criminal matter, and statutory authorization is required to appeal from any order emanating from it (CPL 1.20 [18] [b]). No such authorization can be found in CPL 450.10 or 450.15 and, thus, the present appeal must be dismissed … . People v Young, 2018 NY Slip Op 04596, Third Dept 6-21-18

​CRIMINAL LAW (DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT)).PRE-SENTENCE INVESTIGATION REPORT (PSI) (DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT))

QUESTION OF FACT WHETHER A FLOOR MAT NINE-SIXTEENTHS OF AN INCH THICK CREATED A TRIPPING HAZARD IN THIS SLIP AND FALL CASE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff, in response to defendant’s motion for summary judgment, had raised a question of fact about whether mats outside shower stalls created a dangerous condition, Plaintiff alleged she tripped on the exposed edge of a mat, which was nine-sixteenths of an inch thick:

… [P]laintiff submitted, among other things, her affidavit, photographs of the mats and the affidavit of Frederick Bremer, an architect who investigated the condition of the locker room. Plaintiff also relied on her own deposition testimony. Plaintiff testified that she was familiar with the locker room and showers because she had been utilizing them five days each week for 11 years and that the photographs accurately depict the condition of the mats. She noted that there were two large, square mats in the shower area that were each comprised of nine smaller interlocking squares. Plaintiff claimed that because the larger mats were never connected, they often moved in relation to each other so that they sometimes overlapped and at other times were located several inches apart — a condition that she claimed had existed continuously since the mats were installed. Plaintiff also stated that she had personally rearranged the mats on several occasions prior to her injury to eliminate the risk of her tripping on them. According to plaintiff, she fell when the toe of her sneaker caught the exposed edge of a mat near the exit to the shower in the location that she marked on one of the photographs that she had submitted.

Bremer concluded that the mats were not properly installed. Specifically, he opined that a gap was created between the mats because they were neither attached to each other nor otherwise properly secured. The resulting gap exposed the edges of the mats, and Bremer opined that the nine-sixteenth-inch height of the exposed mat edges constituted a tripping hazard that violated applicable design standards. He also noted that the manufacturer of the mats recommended installation of a sloped transition piece to eliminate such exposed edges, and that transition pieces were not utilized in the location where plaintiff fell. Facteau v Mediquest Corp., 2018 NY Slip Op 04631, Third Dept 6-21-18

​NEGLIGENCE (QUESTION OF FACT WHETHER A FLOOR MAT NINE-SIXTEENTHS OF AN INCH THICK CREATED A TRIPPING HAZARD IN THIS SLIP AND FALL CASE (THIRD DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER A FLOOR MAT NINE-SIXTEENTHS OF AN INCH THICK CREATED A TRIPPING HAZARD IN THIS SLIP AND FALL CASE (THIRD DEPT))/FLOOR MATS (SLIP AND FALL, QUESTION OF FACT WHETHER A FLOOR MAT NINE-SIXTEENTHS OF AN INCH THICK CREATED A TRIPPING HAZARD IN THIS SLIP AND FALL CASE (THIRD DEPT))

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DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT).

The Third Department determined defendant Kain had raised two non-negligent explanations for rear-ending the car in front of him and therefore plaintiffs’ motion for summary judgment was properly denied. Kain had testified that his brakes didn’t work properly and the cars in front of him stopped abruptly. Although Kain had not raised brake failure as an affirmative defense, the court noted that the defense could be considered in opposition to a summary judgment motion absent surprise and provided the moving party has a chance to respond:

The claim that an accident was unavoidable due to brake failure is an affirmative defense … . However, “[e]ven an unpleaded defense may be raised on a summary judgment motion, as long as it would not be likely to surprise the adverse party or raise issues of fact not previously apparent” … .. Accordingly, a nonmovant may invoke a waived defense to defeat a motion for summary judgment if the movant has the opportunity to respond … . Kain testified at his deposition that the brakes in his vehicle failed, and plaintiffs addressed that issue in their moving papers and again in their reply.

… [D]efendants met their burden to provide a nonnegligent explanation for the accident. Kain testified that the brakes did not operate normally when he applied them and, further, that the application of the brakes did not appreciably slow the speed of the vehicle as he approached the vehicles that were stopped at the traffic signal. Further, he testified that his vehicle was relatively new and was in good working order, and that the only mechanical problems he had experienced prior to the accident were unrelated to the brakes. He further testified that the brakes operated properly prior to the accident, the inspection was current and the malfunction caused him to apply his emergency brake. …

Kain also testified [the two cars in front of him] abruptly stopped directly in front of his vehicle. He specifically stated that [plaintiffs’] vehicle approached the intersection without slowing, as if it was going to proceed, and that it stopped immediately when the light turned red, thereby forcing the [car behind plaintiffs’] to also stop abruptly. He further testified that he was traveling at or below the speed limit and that he applied his brakes immediately upon seeing that both vehicles had stopped abruptly in his path. Warner v Kain, 2018 NY Slip Op 04630, Third Dept 6-21-18

​NEGLIGENCE (REAR-END COLLISIONS, DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/REAR-END COLLISIONS (DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/SUMMARY JUDGMENT (A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/AFFIRMATIVE DEFENSES (SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))/BRAKE FAILURE (REAR-END COLLISIONS, DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT))

PRISON’S FAILURE TO COMPLY WITH DEPARTMENT OF CORRECTIONS DIRECTIVE RE OPENING INMATES’ MAIL REQUIRED ANNULMENT OF THE MISBEHAVIOR DETERMINATION (THIRD DEPT).

The Third Department annulled the misbehavior determination because there was no proof the superintendent provided written permission to open petitioner’s mail as required by a Department of Corrections directive. All the disciplinary rule violations stemmed from the contents of the mail:

Petitioner’s sole claim is that the Superintendent did not provide written authorization pursuant to Department of Corrections and Community Supervision Directive No. 4422 (III) (B) (9) (see 7 NYCRR 720.3 [e]) for opening the outgoing correspondence that led to the investigation implicating him as the sender. Significantly, such correspondence provided the basis for all of the disciplinary rule violations of which petitioner was found guilty. The directive at issue specifically provides that “[o]utgoing correspondence . . . shall not be opened, inspected, or read without express written authorization from the facility superintendent” … . It further states that “[s]uch written authorization shall set forth the specific facts forming the basis for the action” … . Here, there was no proof presented that the Superintendent issued a written authorization supported by specific facts permitting the correction official to open the correspondence. Rather, the record suggests that the authorization was verbal, as no written instrument was ever produced and the Superintendent did not testify at the hearing. Under these circumstances, the determination of guilt must be annulled … . Matter of Sudler v Annucci, 2018 NY Slip Op 04629, Third Dept 6-21-18

​DISCIPLINARY HEARINGS (INMATES) (PRISON’S FAILURE TO COMPLY WITH DEPARTMENT OF CORRECTIONS DIRECTIVE RE OPENING INMATES’ MAIL REQUIRED ANNULMENT OF THE MISBEHAVIOR DETERMINATION (THIRD DEPT))/MAIL (DISCIPLINARY HEARINGS (INMATES), PRISON’S FAILURE TO COMPLY WITH DEPARTMENT OF CORRECTIONS DIRECTIVE RE OPENING INMATES’ MAIL REQUIRED ANNULMENT OF THE MISBEHAVIOR DETERMINATION (THIRD DEPT)

DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT).

The Third Department determined that defendant did not rebut the presumption that the deed to the property where plaintiff fell was delivered and accepted the day before plaintiff’s fall:

… [D]efendant submitted, among other things, an executed copy of the referee’s deed transferring ownership of the subject property to defendant, dated March 28, 2013, one day before plaintiff’s alleged accident. Based on the foregoing, there is a strong presumption that the deed was delivered and accepted as of that date (see Real Property Law § 244…). The only additional documentation that defendant submitted to overcome the presumption was an affidavit from Anthony Iacchetta, an attorney who represented defendant’s predecessor in interest in its acquisition of the subject premises and a letter from Iacchetta’s firm dated April 11, 2013. In his affidavit, Iacchetta represents “that the transfer documents executed by the referee were not received by [his] firm until April 11, 2013,” and he provided a copy of the letter sent that same day forwarding said documentation to be countersigned. The documents submitted by defendant, however, do not address the parties’ intent or whether the deed was intended to be delivered and accepted as of April 11, 2013, as opposed to the deed’s March 28, 2013 execution date. Defendant, therefore, failed to rebut the presumption that the deed was delivered and accepted on March 28, 2013 … . Wisdom v Reoco, LLC, 2018 NY Slip Op 04628, Third Dept 6-21-18

​REAL PROPERTY (DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT))/DEEDS (DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT))/DELIVERY AND ACCEPTANCE (DEEDS, DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT))/SLIP AND FALL (OWNERSHIP OF PROPERTY, DEEDS, (DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT))

PETITIONER WAS NEVER INFORMED OF HIS RIGHT TO CALL WITNESSES, DETERMINATION ANNULLED AND RECORD EXPUNGED (THIRD DEPT).

The Third Department annulled the determination and expunged the inmate’s record because he was never informed of his right to call witnesses:

While petitioner did not, at the hearing, request that the inmate be called to testify or demand that there be a further inquiry into his refusal… , the record does not reflect that petitioner was ever advised of his constitutional or regulatory right to call witnesses at the hearing … . The constitutional right to call witnesses at a prison disciplinary proceeding “is not waivable in the absence of [an inmate] being informed of its existence”… . As such, the determination must be annulled. Given that petitioner’s due process rights were violated and that this situation is comparable to the outright denial of the constitutional right to call witnesses, expungement is the proper remedy … . Matter of Ballard v Annucci, 2018 NY Slip Op 04625, Third Dept 6-21-18

​DISCIPLINARY HEARINGS (INMATES) (PETITIONER WAS NEVER INFORMED OF HIS RIGHT TO CALL WITNESSES, DETERMINATION ANNULLED AND RECORD EXPUNGED (THIRD DEPT))/EXPUNGEMENT (DISCIPLINARY HEARINGS (INMATES), PETITIONER WAS NEVER INFORMED OF HIS RIGHT TO CALL WITNESSES, DETERMINATION ANNULLED AND RECORD EXPUNGED (THIRD DEPT))

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PETITIONER WAS ENTITLED TO A VARIANCE ON FINANCIAL HARDSHIP GROUNDS, REGULATORY TAKING CAUSE OF ACTION WAS NOT RIPE FOR REVIEW (THIRD DEPT).

The Third Department, modifying Supreme Court, determined petitioner’s application for a variance should have been granted on financial hardship grounds, but the action alleging a regulatory taking was not ripe, an issue which can be raised on appeal for the first time. Petitioner demonstrated the character of the surrounding area had changed from residential to commercial over the past 30 years rendering the property unmarketable as residential property:

The ZBA [zoning board of appeals] actually agreed that “the location of this property on a corner may impact its value,” and its ultimate conclusion that the financial hardship was not unique seemingly ran counter to that observation … . Moreover, in light of the proof that the need for a use variance only arose decades after the property was acquired due to a gradual shift in the character of the area that rendered the permitted residential use onerous and obsolete, petitioners sufficiently alleged “that the hardship identified by [them] . . . was [not] self-created” … . Accepting the foregoing as true, as we must, petitioners stated a viable claim attacking the ZBA’s determination.

… [T]he remaining regulatory taking claim must be dismissed. The petition/complaint states, and petitioners’ arguments on appeal reflect, that the owner’s taking claim is solely premised upon a deprivation of rights afforded under the Federal Constitution (see US Const 5th Amend; 42 USC § 1983). In order for a 42 USC § 1983 claim based upon a regulatory taking to be ripe, however, it is necessary for a petitioner/plaintiff to “demonstrate that [he or] she has both received a ‘final decision regarding the application of the [challenged] regulations to the property at issue’ from ‘the government entity charged with implementing the regulations,’ and sought ‘compensation through the procedures the [s]tate has provided for doing so'”… . The denial of the application for a use variance constituted a final decision regarding the application of the zoning regulations to its property… , but there is no indication that the owner then asserted a state claim for inverse condemnation… . Thus, inasmuch as ripeness is a “matter[] pertaining to subject matter jurisdiction which can be raised at any time” and the second cause of action founded upon 42 USC § 1983 is “unripe because [the owner] failed to seek compensation from the [s]tate before” asserting it… , it must be dismissed. Matter of 54 Marion Ave., LLC v City of Saratoga Springs, 2018 NY Slip Op 04611, Third Dept 6-21-18

​ZONING (PETITIONER WAS ENTITLED TO A VARIANCE ON FINANCIAL HARDSHIP GROUNDS, REGULATORY TAKING CAUSE OF ACTION WAS NOT RIPE FOR REVIEW (THIRD DEPT))/VARIANCE (ZONING, PETITIONER WAS ENTITLED TO A VARIANCE ON FINANCIAL HARDSHIP GROUNDS, REGULATORY TAKING CAUSE OF ACTION WAS NOT RIPE FOR REVIEW (THIRD DEPT))/CIVIL PROCEDURE (RIPENESS, PETITIONER WAS ENTITLED TO A VARIANCE ON FINANCIAL HARDSHIP GROUNDS, REGULATORY TAKING CAUSE OF ACTION WAS NOT RIPE FOR REVIEW (THIRD DEPT))/RIPENESS (REGULATORY TAKING, PETITIONER WAS ENTITLED TO A VARIANCE ON FINANCIAL HARDSHIP GROUNDS, REGULATORY TAKING CAUSE OF ACTION WAS NOT RIPE FOR REVIEW (THIRD DEPT))/REGULATORY TAKING (RIPENESS, PETITIONER WAS ENTITLED TO A VARIANCE ON FINANCIAL HARDSHIP GROUNDS, REGULATORY TAKING CAUSE OF ACTION WAS NOT RIPE FOR REVIEW (THIRD DEPT))/APPEALS (RIPENESS, PETITIONER WAS ENTITLED TO A VARIANCE ON FINANCIAL HARDSHIP GROUNDS, REGULATORY TAKING CAUSE OF ACTION WAS NOT RIPE FOR REVIEW (THIRD DEPT))

COURIER FOR A WEB BASED DELIVERY SERVICE NOT AN EMPLOYEE (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeals Board, over a two-justice dissent, determined that a courier for a web based delivery service (Postmate) was not an employee entitled to unemployment insurance benefits:

… [I]n order to work as a courier or delivery professional for Postmates, claimant and others similarly situated need only download Postmates’ application software platform and provide his or her name, telephone number, Social Security number and driver’s license number; there is no application and no interview. Although Postmates thereafter obtains a criminal background check from a third-party provider and provides an orientation session on how to utilize the application software platform, significantly, claimant and those similarly situated are not thereafter required to report to any supervisor, and they unilaterally retain the unfettered discretion as to whether to ever log on to Postmates’ platform and actually work. When a courier does elect to log on to the platform, indicating his or her availability for deliveries, he or she is free to work as much or little as he or she wants — there is no set work schedule, there is no minimum time requirement that a courier must remain logged on to the platform and there is no minimum or maximum requirement with respect to the number of deliveries a courier must perform. In fact, once logged on to the platform, a courier may decline to do anything. When a customer requests a delivery using Postmates’ platform, the platform identifies the closest available courier(s) and sends basic information about the delivery request. Couriers, however, may accept, reject or ignore a delivery request, without penalty. Moreover, while logged on to Postmates’ platform, couriers maintain the freedom to simultaneously work for other companies, including Postmates’ direct competitors. Further, they are free to choose the mode of transportation they wish to use for deliveries, they provide and maintain their own transportation, they choose the route they wish to take for the delivery, they are not required to adhere to a stringent delivery schedule, they are not required to wear a uniform, they are not provided any identification card or logo, they are only paid for the deliveries they complete and they are not reimbursed for any of their delivery-related expenses. Matter of Vega (Commissioner of Labor), 2018 NY Slip Op 04610, Third Dept 6-21-18

​UNEMPLOYMENT INSURANCE (COURIER FOR A WEB BASED DELIVERY SERVICE NOT AN EMPLOYEE (THIRD DEPT))/COURIERS (UNEMPLOYMENT INSURANCE, COURIER FOR A WEB BASED DELIVERY SERVICE NOT AN EMPLOYEE (THIRD DEPT))/DELIVERY SERVICE (UNEMPLOYMENT INSURANCE, COURIER FOR A WEB BASED DELIVERY SERVICE NOT AN EMPLOYEE (THIRD DEPT))

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IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Rumsey, modifying Supreme Court, determined the amount of an applicant’s equity in an automobile, not the fair market value (FMV), should be used in calculating whether an applicant is eligible for public assistance. Here the applicant owed more than the car was worth, but she was erroneously deemed ineligible because of the fair market value of the car. The Third Department further determined that the applicant was entitled to discovery in her effort to get class action certification seeking retroactive relief for persons who had been wrongly denied public assistance under similar circumstances:

Only the net amount that could be received upon the sale of an asset that is encumbered by an outstanding loan balance, i.e., the FMV less the outstanding loan balance, could be available to eliminate or reduce an applicant’s need for public assistance. The arbitrary nature of OTDA’s [Office of Temporary and Disability Assistance’s] contrary position is aptly illustrated in this case, where the sale of the vehicle would not have generated any resources that petitioner could have used to meet her own support needs. Indeed, based on the automobile’s FMV, she would not have received enough upon its sale to pay the entire outstanding loan balance. For these reasons, we conclude that Supreme Court properly held that the extent to which the FMV of an automobile that exceeds the exempt amount is an available resource must be determined based on the applicant’s equity interest therein, and that OTDA’s contrary interpretation was irrational and unreasonable. * * *

… [T]he present record does not permit identification of the number of individuals who were the subject of adverse action based on application of respondent’s erroneous rule within the specified time period. The petition seeks a judgment directing respondent to identify all individuals meeting the characteristics of the proposed class and, in her brief on appeal, she again seeks discovery regarding class size. Timely requests for disclosure on the issue of numerosity must be granted … . Matter of Stewart v Roberts, 2018 NY Slip Op 04609, Third Dept 6-21-18

​SOCIAL SERVICES LAW (PUBLIC ASSISTANCE, IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))/PUBLIC ASSISTANCE (WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))/CIVIL PROCEDURE (CLASS ACTIONS, DISCOVERY , NUMEROSITY, IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))/CLASS ACTIONS (DISCOVERY, NUMEROSITY, IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))/DISCOVERY (CLASS ACTIONS, NUMEROSITY,  IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))/NUMEROSITY (CLASS ACTIONS, DISCOVERY,  IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))

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PETITIONER ENTITLED TO RENEWED STATUTE OF LIMITATIONS UNDER THE SON OF SAM LAW TO SEEK FUNDS IN THE CONVICTED MURDERER’S INMATE ACCOUNT, THE INMATE’S EARNED AND UNEARNED INCOME ARE AVAILABLE FOR RECOVERY (THIRD DEPT).

The Third Department determined petitioner was entitled to the renewed statute of limitations under the Son of Sam Law to seek earned and unearned income in the account of an inmate convicted of murder in 1986:

Generally, a crime victim of a violent felony offense has 10 years from the date of the crime to bring a civil action against the individual convicted of said crime to recover money damages for any injury or loss resulting therefrom (see CPLR 213-b [2]; Executive Law § 632-a [1] [d], [e] [i] [A]; Penal Law § 70.02 [1] [a]). The Son of Sam Law, however, creates a renewed limitations period whereby a crime victim may bring an action within three years of the discovery of “funds of a convicted person” (Executive Law § 632-a [3]). Here, the subject crimes occurred in 1986 … , thus, the statute of limitations has long since passed. Contrary to respondent’s assertion, however, the applicability of the extended statute of limitations provided for in Executive Law § 632-a (3) is not tethered to the $10,000 requirement that triggers the notice provisions of the statute… . Moreover, although Executive Law § 632-a does not statutorily mandate the type of notice that was provided for here, it does not prohibit it either. Thus, having received notice of newly discovered “funds of a convicted person” … , respondent’s victims are entitled to the benefit of the extended limitations period, without regard to the amount of funds in respondent’s inmate account.

Next, to the extent that respondent argues that his earned income should be excluded from any future recovery, and, thus, excluded from the purview of the subject preliminary injunction, this Court has previously held that “[t]he distinction between earned and unearned income is relevant only to determine whether petitioner must be notified, and has no effect on the ability of a crime victim or a victim’s representative to recover such income in a civil action” … . Matter of New York State Off. of Victim Servs. v Vigo, 2018 NY Slip Op 04608, Third Dept 6-21-18

​CRIMINAL LAW (SON OF SAM LAW, PETITIONER ENTITLED TO RENEWED STATUTE OF LIMITATIONS UNDER THE SON OF SAM LAW TO SEEK FUNDS IN THE CONVICTED MURDERER’S INMATE ACCOUNT, THE INMATE’S EARNED AND UNEARNED INCOME ARE AVAILABLE FOR RECOVERY (THIRD DEPT))/SON OF SAM LAW (PETITIONER ENTITLED TO RENEWED STATUTE OF LIMITATIONS UNDER THE SON OF SAM LAW TO SEEK FUNDS IN THE CONVICTED MURDERER’S INMATE ACCOUNT, THE INMATE’S EARNED AND UNEARNED INCOME ARE AVAILABLE FOR RECOVERY (THIRD DEPT))/CIVIL PROCEDURE (SON OF SAM LAW,  PETITIONER ENTITLED TO RENEWED STATUTE OF LIMITATIONS UNDER THE SON OF SAM LAW TO SEEK FUNDS IN THE CONVICTED MURDERER’S INMATE ACCOUNT, THE INMATE’S EARNED AND UNEARNED INCOME ARE AVAILABLE FOR RECOVERY (THIRD DEPT))

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