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A CLAIMANT MAY NOT RECEIVE BOTH A SCHEDULE LOSS OF USE AWARD AND A NONSCHEDULE PERMANENT PARTIAL DISABILITY AWARD FOR INJURIES FROM THE SAME ACCIDENT, BUT BOTH INJURY CLASSIFICATIONS CAN BE CONSIDERED IN DETERMINING LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT).

The Third Department determined claimant cannot receive both a schedule loss of use (SLU) award and a nonschedule permanent partial disability award for injuries stemming from the same accident, but both classifications of injury can be considered in determining loss of wage-earning capacity:

The amount of an SLU award is based upon the body member that was injured and the degree of impairment sustained; it is not allocable to any particular period of disability and is independent of any time that the claimant might lose from work . By contrast, compensation for a permanent partial disability that arises from a nonschedule injury, i.e., an injury to a body member not specifically enumerated in [Workers’ Compensation Law 15 (3)], is based on a factual determination of the effect that the disability has on the claimant’s future wage-earning capacity (see Workers’ Compensation Law § 15 [3] [w]).

A claimant who sustains both schedule and nonschedule injuries in the same accident may receive only one initial award … , because an SLU award and an award made for permanent partial disabilities are both intended to compensate a claimant for loss of wage-earning capacity sustained in a work-related accident and concurrent payment of an award for a schedule loss and an award for a nonschedule permanent partial disability for injuries arising out of the same work-related accident would amount to duplicative compensation … . Nevertheless, all impairments sustained by a claimant, whether resulting from schedule or nonschedule injuries, must be considered in determining lost wage-earning capacity attributable to a nonschedule permanent partial disability classification … . However, in the unique circumstance where no initial award is made based on a nonschedule permanent partial disability classification, a claimant is entitled to an SLU award … . Matter of Taher v Yiota Taxi, Inc., 2018 NY Slip Op 04414, Third Dept 6-14-18

​WORKERS’ COMPENSATION LAW (A CLAIMANT MAY NOT RECEIVE BOTH A SCHEDULE LOSS OF USE AWARD AND A NONSCHEDULE PERMANENT PARTIAL DISABILITY AWARD FOR INJURIES FROM THE SAME ACCIDENT, BUT BOTH INJURY CLASSIFICATIONS CAN BE CONSIDERED IN DETERMINING LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT))/SCHEDULE LOSS OF USE (WORKERS’ COMPENSATION LAW, A CLAIMANT MAY NOT RECEIVE BOTH A SCHEDULE LOSS OF USE AWARD AND A NONSCHEDULE PERMANENT PARTIAL DISABILITY AWARD FOR INJURIES FROM THE SAME ACCIDENT, BUT BOTH INJURY CLASSIFICATIONS CAN BE CONSIDERED IN DETERMINING LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT))/NONSCHEDULE PERMANENT PARTIAL DISABILITY (WORKERS’ COMPENSATION LAW, A CLAIMANT MAY NOT RECEIVE BOTH A SCHEDULE LOSS OF USE AWARD AND A NONSCHEDULE PERMANENT PARTIAL DISABILITY AWARD FOR INJURIES FROM THE SAME ACCIDENT, BUT BOTH INJURY CLASSIFICATIONS CAN BE CONSIDERED IN DETERMINING LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT))

DIFFERENCE BETWEEN A SCHEDULE LOSS OF USE AND NONSCHEDULE PERMANENT PARTIAL DISABILITY EXPLAINED (THIRD DEPT).

The Third Department explained the difference between a schedule loss of use and a nonschedule permanent partial disability:

Workers’ Compensation Law § 15 (3) contains a schedule of awards for a permanent partial disability resulting from a loss of specific body parts or functions, such as vision and hearing (see Workers’ Compensation Law § 15 [3] [a]-[v]). Workers’ Compensation Law § 15 (3) (w) pertains to “all other cases of permanent partial disability” — i.e., those cases that are not amenable to a schedule award. Whether a schedule loss of use award or a nonschedulable permanent partial disability classification is appropriate constitutes a question of fact for the Board’s resolution, and its determination will be upheld if supported by substantial evidence … . A nonschedulable permanent partial disability classification, rather than a schedule loss of use award, “is indicated where there is a continuing condition of pain or continuing need for medical treatment or the medical condition remains unsettled” … . …

… [S]ubstantial evidence, in the form of the medical evidence that claimant suffers from RSD/CRPS, a chronic continuing pain of the face and the opinion that the ptosis of the eyebrow is worsening, supports the Board’s determination that an award of a nonschedulable permanent partial disability pursuant to Workers’ Compensation Law § 15 (3) (w), rather than a schedule loss of use award, is appropriate … . Matter of Tobin v Finger Lakes DDSO, 2018 NY Slip Op 04413, Third Dept 6-14-18

​WORKERS’ COMPENSATION LAW (DIFFERENCE BETWEEN A SCHEDULE LOSS OF USE AND NONSCHEDULE PERMANENT PARTIAL DISABILITY EXPLAINED (THIRD DEPT))/SCHEDULE LOSS OF USE (WORKERS’ COMPENSATION LAW, DIFFERENCE BETWEEN A SCHEDULE LOSS OF USE AND NONSCHEDULE PERMANENT PARTIAL DISABILITY EXPLAINED (THIRD DEPT))/NONSCHEDULE PERMANENT PARTIAL DISABILITY (WORKERS’ COMPENSATION LAW, DIFFERENCE BETWEEN A SCHEDULE LOSS OF USE AND NONSCHEDULE PERMANENT PARTIAL DISABILITY EXPLAINED (THIRD DEPT))

RECENT AMENDMENT TO THE WORKERS’ COMPENSATION LAW APPLIES RETROACTIVELY, CLAIMANT WITH A PERMANENT PARTIAL DISABILITY WHO HAS INVOLUNTARILY WITHDRAWN FROM THE LABOR MARKET NEED NOT DEMONSTRATE A CONTINUED ATTACHMENT TO THE LABOR MARKET (THIRD DEPT).

The Third Department determined a recent amendment to the Workers’ Compensation Law applied retroactively and was properly applied to claimant’s case. The amendment provides that a worker who has involuntarily withdrawn from the labor market with a permanent partial disability need not demonstrate a continued attachment to the labor market:

… [T]he Board panel … issued an amended decision finding that claimant was not required to demonstrate an attachment to the labor market based upon a recent amendment to Workers’ Compensation Law § 15 (3) (w) … . That amendment states, in relevant part, that in cases such as claimant’s, “compensation . . . shall be payable during the continuance of such permanent partial disability, without the necessity for the claimant who is entitled to benefits at the time of classification to demonstrate ongoing attachment to the labor market” … ….

… [W]e find that the amendment is applicable here and relieves claimant from the need to demonstrate a continued attachment to the labor market. Although it is generally preferable to construe a statute in a prospective manner, a retroactive application is warranted if the statutory language expressly or by necessary implication so provides … . Matter of O’Donnell v Erie County, 2018 NY Slip Op 04410, Third Dept 6-14-18

​WORKERS’S COMPENSATION LAW (RECENT AMENDMENT TO THE WORKERS’ COMPENSATION LAW APPLIES RETROACTIVELY, CLAIMANT WITH A PERMANENT PARTIAL DISABILITY WHO HAS INVOLUNTARILY WITHDRAWN FROM THE LABOR MARKET NEED NOT DEMONSTRATE A CONTINUED ATTACHMENT TO THE LABOR MARKET (THIRD DEPT))

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ALTHOUGH THE INSURER COULD DISCLAIM COVERAGE FOR ANY INJURIES CAUSED BY THE INSURED ASSAILANT’S INTENTIONAL CRIMINAL ACTS UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL, THE INSURER COULD NOT DISCLAIM COVERAGE FOR ANY SUBSEQUENT INJURIES THAT MAY HAVE BEEN CAUSED BY THE ASSAILANT’S NEGLIGENCE (THIRD DEPT).

The Third Department determined plaintiff insurer could not completely disclaim coverage of injuries suffered by the defendant at the insured home (owned by the McCabe’s). McCabe was convicted of assaulting and strangling the defendant. Defendant alleges that after McCabe assaulted her she fell over a tripping hazard in the McCabe home and was injured in the fall. Although the insurer can properly disclaim coverage for any injuries inflicted by McCabe’s intentional criminal conduct under the collateral estoppel doctrine, the insurer could not, at this early stage, disclaim coverage for any injuries that might have been caused by McCabe’s negligence (tripping hazard, failure to seek medical care, etc.):

Plaintiff asserts that, to convict McCabe, the criminal jury must have disbelieved his version of events. It is possible, however, that the jury disbelieved only some portions of his testimony … . The jury may have found it incredible that all of defendant’s facial and head injuries were caused when she tried to walk on her own, fell over a raised threshold in the doorway and hit her head on a cinder block wall during that fall. It is also possible that the jury believed that McCabe slammed defendant’s head into the ground or a wall, thereby causing some of her injuries, but the jury did not render any findings regarding what happened after the choking and slamming, such as whether defendant then got up, tried to walk and fell. To establish the convictions, it was unnecessary for the jury to have made findings regarding whether McCabe created a tripping hazard, allowed defendant to walk on her own after he had rendered her partially incapacitated or failed to seek medical help for her after the criminal assault. Hence, the issues as to insurance coverage and exclusions are not identical to the issues decided in McCabe’s criminal trial, and defendants here did not have a full and fair opportunity in the criminal trial to address some of the issues regarding McCabe’s negligence allegedly committed before and after the criminal assault. Plaintiff failed to demonstrate that there was no possible factual or legal basis to support a finding that some of defendant’s injuries were unintended by McCabe, so as to bar coverage under the policy exclusion … . Accordingly, collateral estoppel does not apply here, except as to the more narrow issues necessarily decided in the criminal trial, and plaintiff was not entitled to summary judgment or a declaratory judgment at this early stage of this coverage action … . State Farm Fire & Cas. Co. v Chauncey McCabe, 2018 NY Slip Op 04416, Third Dept 6-14-18

​INSURANCE LAW (ALTHOUGH THE INSURER COULD DISCLAIM COVERAGE FOR ANY INJURIES CAUSED BY THE INSURED ASSAILANT’S INTENTIONAL CRIMINAL ACTS UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL, THE INSURER COULD NOT DISCLAIM COVERAGE FOR ANY SUBSEQUENT INJURIES THAT MAY HAVE BEEN CAUSED BY THE ASSAILANT’S NEGLIGENCE (THIRD DEPT))/CIVIL PROCEDURE (INSURANCE LAW, COLLATERAL ESTOPPEL, ALTHOUGH THE INSURER COULD DISCLAIM COVERAGE FOR ANY INJURIES CAUSED BY THE INSURED ASSAILANT’S INTENTIONAL CRIMINAL ACTS UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL, THE INSURER COULD NOT DISCLAIM COVERAGE FOR ANY SUBSEQUENT INJURIES THAT MAY HAVE BEEN CAUSED BY THE ASSAILANT’S NEGLIGENCE (THIRD DEPT))/COLLATERAL ESTOPPEL (INSURANCE LAW, ALTHOUGH THE INSURER COULD DISCLAIM COVERAGE FOR ANY INJURIES CAUSED BY THE INSURED ASSAILANT’S INTENTIONAL CRIMINAL ACTS UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL, THE INSURER COULD NOT DISCLAIM COVERAGE FOR ANY SUBSEQUENT INJURIES THAT MAY HAVE BEEN CAUSED BY THE ASSAILANT’S NEGLIGENCE (THIRD DEPT))/CRIMINAL LAW (INSURANCE LAW, COLLATERAL ESTOPPEL, ALTHOUGH THE INSURER COULD DISCLAIM COVERAGE FOR ANY INJURIES CAUSED BY THE INSURED ASSAILANT’S INTENTIONAL CRIMINAL ACTS UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL, THE INSURER COULD NOT DISCLAIM COVERAGE FOR ANY SUBSEQUENT INJURIES THAT MAY HAVE BEEN CAUSED BY THE ASSAILANT’S NEGLIGENCE (THIRD DEPT))/NEGLIGENCE (INSURANCE LAW, CRIMINAL LAW, COLLATERAL ESTOPPEL, ALTHOUGH THE INSURER COULD DISCLAIM COVERAGE FOR ANY INJURIES CAUSED BY THE INSURED ASSAILANT’S INTENTIONAL CRIMINAL ACTS UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL, THE INSURER COULD NOT DISCLAIM COVERAGE FOR ANY SUBSEQUENT INJURIES THAT MAY HAVE BEEN CAUSED BY THE ASSAILANT’S NEGLIGENCE (THIRD DEPT))

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PEOPLE SHOULD HAVE PROVIDED NOTICE OF BURGLARY VICTIM’S IDENTIFICATION OF DEFENDANT ON THE POLICE DEPARTMENT’S FACEBOOK PAGE AFTER THE VICTIM HAD BEEN GIVEN THE DEFENDANT’S NAME BY THE POLICE, ERROR HARMLESS HOWEVER (THIRD DEPT).

The Third Department determined it was error to fail to provide notice to the defendant of an identification procedure involving the victim of the burglary, Febus. The error was deemed harmless, however:

Febus testified that approximately one week prior to the burglary, she answered a ringing doorbell to find a stranger who asked for a person who was unknown to her. The individual left before she could respond to his inquiry. She described the individual as an older black man with long hair who was carrying a satchel. Approximately 10 days after the burglary, Febus went to the police station and identified various objects that had been taken from her residence. While she was at the police station, she asked a police officer about the identity of the individual who had broken into her residence, and the officer provided defendant’s name. She then asked the officer if she could see a picture of the individual, and the officer responded that it “was online on the Albany Police Department’s [Facebook page].” Febus testified that she returned home and accessed the Facebook page. Over defendant’s objection, County Court permitted Febus to continue her testimony regarding her prior identification of defendant. In that regard, she testified that when she accessed the police department’s Facebook page, she saw a number of mugshots and immediately identified defendant as the person who had knocked on her door approximately one week prior to the burglary.

We are not presented with the issue of whether maintenance by a police department of a Facebook page or website with mugshot photos of arrested individuals — or referral of individuals to such a website — are, without more, police-initiated identification procedures because, in this case, the police officer also provided Febus with defendant’s name when he told her that she could view a picture of the person who had been arrested for burglarizing her home on the police department’s Facebook page. The fact that she had been provided with defendant’s name could have influenced her identification of defendant when she subsequently viewed the Facebook page. This, in our view, was sufficient police involvement to invoke the notice requirement of CPL 710.30 (1) … . Inasmuch as notice was not provided, County Court erred in permitting Febus to identify defendant as the person who came to her home prior to the burglary. People v Cole, 2018 NY Slip Op 04391, Third Dept 6-14-18

​CRIMINAL LAW (IDENTIFICATION, PEOPLE SHOULD HAVE PROVIDED NOTICE OF BURGLARY VICTIM’S IDENTIFICATION OF DEFENDANT ON THE POLICE DEPARTMENT’S FACEBOOK PAGE AFTER THE VICTIM HAD BEEN GIVEN THE DEFENDANT’S NAME BY THE POLICE, ERROR HARMLESS HOWEVER (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, IDENTIFICATION, PEOPLE SHOULD HAVE PROVIDED NOTICE OF BURGLARY VICTIM’S IDENTIFICATION OF DEFENDANT ON THE POLICE DEPARTMENT’S FACEBOOK PAGE AFTER THE VICTIM HAD BEEN GIVEN THE DEFENDANT’S NAME BY THE POLICE, ERROR HARMLESS HOWEVER (THIRD DEPT))/IDENTIFICATION (CRIMINAL LAW, NOTICE, PEOPLE SHOULD HAVE PROVIDED NOTICE OF BURGLARY VICTIM’S IDENTIFICATION OF DEFENDANT ON THE POLICE DEPARTMENT’S FACEBOOK PAGE AFTER THE VICTIM HAD BEEN GIVEN THE DEFENDANT’S NAME BY THE POLICE, ERROR HARMLESS HOWEVER (THIRD DEPT))/FACEBOOK (CRIMINAL LAW, MUG SHOTS, IDENTIFICATION, PEOPLE SHOULD HAVE PROVIDED NOTICE OF BURGLARY VICTIM’S IDENTIFICATION OF DEFENDANT ON THE POLICE DEPARTMENT’S FACEBOOK PAGE AFTER THE VICTIM HAD BEEN GIVEN THE DEFENDANT’S NAME BY THE POLICE, ERROR HARMLESS HOWEVER (THIRD DEPT))

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WHETHER TO PRESENT PSYCHIATRIC EVIDENCE IS A STRATEGIC DECISION FOR DEFENSE COUNSEL, NOT DEFENDANT, DEFENSE COUNSEL DID NOT RELINQUISH HIS AUTHORITY TO DECIDE WHETHER TO REQUEST A MISTRIAL MERELY BY CONFERRING WITH THE DEFENDANT AND AGREEING WITH THE DEFENDANT’S REQUEST TO PROCEED, IT WAS NOT ERROR TO HANDCUFF DEFENDANT AND TO HAVE LAW ENFORCEMENT OFFICERS SEATED NEAR THE DEFENDANT DURING THE TRIAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, determined: (1) whether to introduce psychiatric evidence that defendant suffered from Secure Housing Unit Syndrome (Grassian Syndrome) was a strategic decision for defense counsel, not defendant; (2) defense counsel did not relinquish his authority to decide whether to request a mistrial merely by conferring with the defendant and agreeing with the defendant’s wish for the trial to proceed; (3) it was not error to handcuff the defendant during the trial and to have law enforcement officers seated near the defendant and in the gallery during the trial (defendant was on trial for allegedly attacking and stabbing a prison guard with an ice pick):

… [T]he decision of whether to present psychiatric evidence in furtherance of the affirmative defense of not criminally responsible by reason of mental disease or defect is a strategic decision involving the exercise of professional judgment, over which defense counsel retains ultimate decision-making authority … . Additionally, the record reflects that defense counsel “fully” investigated a possible psychiatric defense and, having done so, “made ‘a calculated trial strategy’ to fashion a different defense” … . …

Defense counsel’s statements on the record do not demonstrate, as defendant argues, that he ceded his decision-making authority to defendant. Rather, the record reflects that defense counsel consulted with defendant and received his input on the matter before withdrawing his motion for a mistrial … . …

County Court stated on the record that defendant had a “clear record of violence both within and outside the prison” and that it was therefore not “comfortable” with the security risks posed by allowing defendant to sit throughout the trial without restraints. Considering defendant’s violent criminal history, as well as the fact that the present charges arose out of allegations that defendant attacked the victim in the hopes that he would incite retaliatory actions from correction officers that would result in his death, we find that County Court’s stated security concerns provided a reasonable basis to require that defendant be restrained during the trial… . Nor do we find that defendant was deprived of a fair trial by County Court’s determination to allow, as a security measure, two correction officers to sit near defendant throughout the trial and other law enforcement personnel to sit in the court’s gallery … . People v Diaz, 2018 NY Slip Op 04389, Third Dept 6-14-18

​CRIMINAL LAW (WHETHER TO PRESENT PSYCHIATRIC EVIDENCE IS A STRATEGIC DECISION FOR DEFENSE COUNSEL, NOT DEFENDANT, DEFENSE COUNSEL DID NOT RELINQUISH HIS AUTHORITY TO DECIDE WHETHER TO REQUEST A MISTRIAL MERELY BY CONFERRING WITH THE DEFENDANT AND AGREEING WITH THE DEFENDANT’S REQUEST TO PROCEED, IT WAS NOT ERROR TO HANDCUFF DEFENDANT AND TO HAVE LAW ENFORCEMENT OFFICERS SEATED NEAR THE DEFENDANT DURING THE TRIAL (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, WHETHER TO PRESENT PSYCHIATRIC EVIDENCE IS A STRATEGIC DECISION FOR DEFENSE COUNSEL, NOT DEFENDANT, DEFENSE COUNSEL DID NOT RELINQUISH HIS AUTHORITY TO DECIDE WHETHER TO REQUEST A MISTRIAL MERELY BY CONFERRING WITH THE DEFENDANT AND AGREEING WITH THE DEFENDANT’S REQUEST TO PROCEED, IT WAS NOT ERROR TO HANDCUFF DEFENDANT AND TO HAVE LAW ENFORCEMENT OFFICERS SEATED NEAR THE DEFENDANT DURING THE TRIAL (THIRD DEPT))/PSYCHIATRIC EVIDENCE (CRIMINAL LAW, DEFENSE, WHETHER TO PRESENT PSYCHIATRIC EVIDENCE IS A STRATEGIC DECISION FOR DEFENSE COUNSEL, NOT DEFENDANT, DEFENSE COUNSEL DID NOT RELINQUISH HIS AUTHORITY TO DECIDE WHETHER TO REQUEST A MISTRIAL MERELY BY CONFERRING WITH THE DEFENDANT AND AGREEING WITH THE DEFENDANT’S REQUEST TO PROCEED, IT WAS NOT ERROR TO HANDCUFF DEFENDANT AND TO HAVE LAW ENFORCEMENT OFFICERS SEATED NEAR THE DEFENDANT DURING THE TRIAL (THIRD DEPT))/MISTRIAL (CRIMINAL LAW, DEFENSE COUNSEL, WHETHER TO PRESENT PSYCHIATRIC EVIDENCE IS A STRATEGIC DECISION FOR DEFENSE COUNSEL, NOT DEFENDANT, DEFENSE COUNSEL DID NOT RELINQUISH HIS AUTHORITY TO DECIDE WHETHER TO REQUEST A MISTRIAL MERELY BY CONFERRING WITH THE DEFENDANT AND AGREEING WITH THE DEFENDANT’S REQUEST TO PROCEED, IT WAS NOT ERROR TO HANDCUFF DEFENDANT AND TO HAVE LAW ENFORCEMENT OFFICERS SEATED NEAR THE DEFENDANT DURING THE TRIAL (THIRD DEPT))/RESTRAINTS (CRIMINAL LAW, TRIAL, WHETHER TO PRESENT PSYCHIATRIC EVIDENCE IS A STRATEGIC DECISION FOR DEFENSE COUNSEL, NOT DEFENDANT, DEFENSE COUNSEL DID NOT RELINQUISH HIS AUTHORITY TO DECIDE WHETHER TO REQUEST A MISTRIAL MERELY BY CONFERRING WITH THE DEFENDANT AND AGREEING WITH THE DEFENDANT’S REQUEST TO PROCEED, IT WAS NOT ERROR TO HANDCUFF DEFENDANT AND TO HAVE LAW ENFORCEMENT OFFICERS SEATED NEAR THE DEFENDANT DURING THE TRIAL (THIRD DEPT))/TRIALS (CRIMINAL LAW, RESTRAINTS, EXTRA LAW ENFORCEMENT PERSONNEL, WHETHER TO PRESENT PSYCHIATRIC EVIDENCE IS A STRATEGIC DECISION FOR DEFENSE COUNSEL, NOT DEFENDANT, DEFENSE COUNSEL DID NOT RELINQUISH HIS AUTHORITY TO DECIDE WHETHER TO REQUEST A MISTRIAL MERELY BY CONFERRING WITH THE DEFENDANT AND AGREEING WITH THE DEFENDANT’S REQUEST TO PROCEED, IT WAS NOT ERROR TO HANDCUFF DEFENDANT AND TO HAVE LAW ENFORCEMENT OFFICERS SEATED NEAR THE DEFENDANT DURING THE TRIAL (THIRD DEPT))

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BOARD CONSIDERED MEDICAL FILE FROM A PRIOR INJURY WITHOUT NOTICE TO CLAIMANT, DENIAL OF CLAIM REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the claimant (wife of the decedent worker who died of cardiac arrest) was not notified the board would consider a medical file relating to a prior injury:

Here, the Board relied on medical records apparently contained in the case file for a separate claim filed by decedent based on a November 2014 fall at work. … The employer did not request that the Board rely on those 2014 records, nor did it adhere to the procedure for introducing additional evidence into the administrative appeal that was not before the Workers’ Compensation Law Judge… . The Board’s rule provides that, if that procedure is not followed, the Board “will not” consider such new evidence… .

Claimant was prejudiced because she was not on notice — until she received the Board decision — that the Board would rely on documents from another case file. The employer argues that the referenced medical reports cannot be objectionable because they accurately reflect the treatment rendered, but we cannot verify that without reviewing those reports. The employer further argues that no response to the medical records would change the strength of either side’s argument, but that proposition is mere speculation. Either party may have chosen to submit additional medical records reflecting on decedent’s medical treatment from November 2014 until his death in July 2015 had the parties been on notice that this period of treatment would be at issue. Matter of Kaplan v New York City Tr. Auth., 2018 NY Slip Op 04068, Third Dept 6-7-18

WORKERS’ COMPENSATION LAW (BOARD CONSIDERED MEDICAL FILE FROM A PRIOR INJURY WITHOUT NOTICE TO CLAIMANT, DENIAL OF CLAIM REVERSED (THIRD DEPT))/EVIDENCE (WORKERS’ COMPENSATION LAW, BOARD CONSIDERED MEDICAL FILE FROM A PRIOR INJURY WITHOUT NOTICE TO CLAIMANT, DENIAL OF CLAIM REVERSED (THIRD DEPT))

QUESTIONS OF FACT ABOUT THE APPLICABILITY OF THE EMERGENCY DOCTRINE IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant’s motion for summary judgment should not have been granted in this traffic accident case. Plaintiff’s decedent apparently backed into defendant’s lane of traffic from the median. There was conflicting evidence about defendant’s speed and the distance between decedent’s car and defendant (i.e., there was conflicting evidence about the applicability of the emergency doctrine):

Given the conflicting accounts about the distance and the elapsed time between when decedent’s vehicle moved into defendant’s lane and the collision and defendant’s speed prior to the accident, we conclude that triable issues of fact exist as to whether defendant’s actions, when confronted with an emergency situation, were reasonable and whether he could have taken evasive action to avoid decedent’s vehicle … . We further conclude that there are issues of fact as to whether decedent’s actions, under the circumstances of this case, were not the sole proximate cause of the accident. Accordingly, viewing the evidence in the light most favorable to plaintiff, Supreme Court should have denied defendant’s motion for summary judgment … . Brust v McDaniel, 2018 NY Slip Op 04069, Third Dept 6-7-18

NEGLIGENCE (QUESTIONS OF FACT ABOUT THE APPLICABILITY OF THE EMERGENCY DOCTRINE IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/TRAFFIC ACCIDENTS  (QUESTIONS OF FACT ABOUT THE APPLICABILITY OF THE EMERGENCY DOCTRINE IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, QUESTIONS OF FACT ABOUT THE APPLICABILITY OF THE EMERGENCY DOCTRINE IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))

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STATUTE OF LIMITATIONS FOR COMMENCING AN ACTION AGAINST THE MUNICIPALITY TOLLED WHEN PLAINTIFF MOVED FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff’s action against the municipality was timely commenced. The one-year-and-ninety-day statute of limitations was tolled when plaintiff filed a successful motion for leave to file a late notice of claim:

Pursuant to General Municipal Law, a plaintiff must first serve a notice of claim against a municipality within 90 days after the claim arises … and commence any subsequent tort action against the municipality within one year and 90 days after the claim arises (see General Municipal Law § 50-i). Because plaintiff’s claims against defendants, if any, arise from the fire that occurred on February 18, 2014, he was therefore required to file and serve a notice of claim by May 19, 2014 and commence any subsequent tort action by May 19, 2015. Having failed to file and serve his notice of claim by May 19, 2014, plaintiff was permitted to, and did, commence a special proceeding seeking leave to file a late notice of claim. While the applicable one year and 90-day statute of limitations began to run on February 18, 2014, upon plaintiff’s commencement of the proceeding, the provisions of CPLR 204 (a) operated to toll the remainder of the statute of limitations until the date that the court granted the requested relief, at which point the statute began to run once again … . To put it in mathematical terms, when plaintiff commenced the proceeding seeking leave to serve a late notice of claim on November 14, 2014, he had 186 days remaining in order to timely commence this action within the applicable statute of limitations. As of that date, the statute of limitations stopped running and did not resume until May 27, 2015, when Supreme Court issued its order granting plaintiff’s application. Thus, plaintiff had 186 days running from May 27, 2015 or until November 29, 2015 to timely commence this action. Since plaintiff commenced this action on October 20, 2015, it was timely commenced and may now proceed to a determination as to whether it has any merit. Kulon v Liberty Fire Dist., 2018 NY Slip Op 04062, Third Dept 6-7-18

MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, STATUTE OF LIMITATIONS FOR COMMENCING AN ACTION AGAINST THE MUNICIPALITY TOLLED WHEN PLAINTIFF MOVED FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (THIRD DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, STATUTE OF LIMITATIONS FOR COMMENCING AN ACTION AGAINST THE MUNICIPALITY TOLLED WHEN PLAINTIFF MOVED FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (THIRD DEPT))/CIVIL PROCEDURE (MUNICIPAL LAW, NOTICE OF CLAIM,, STATUTE OF LIMITATIONS FOR COMMENCING AN ACTION AGAINST THE MUNICIPALITY TOLLED WHEN PLAINTIFF MOVED FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (THIRD DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, STATUTE OF LIMITATIONS FOR COMMENCING AN ACTION AGAINST THE MUNICIPALITY TOLLED WHEN PLAINTIFF MOVED FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (THIRD DEPT))/STATUTE OF LIMITATIONS (MUNICIPAL LAW, NEGLIGENCE, NOTICE OF CLAIM, STATUTE OF LIMITATIONS FOR COMMENCING AN ACTION AGAINST THE MUNICIPALITY TOLLED WHEN PLAINTIFF MOVED FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (THIRD DEPT))

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PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined there was no special relationship between the town and the plaintiffs. The town had allowed fill to be dumped near a stream (Normanskill) by issuing a permit to the property owner, 165 Salisbury Road LLC. A landslide occurred which caused flooding on plaintiffs’ property:

To establish that a municipality created a special relationship by voluntarily assuming a duty, a plaintiff must show: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) the party’s justifiable reliance on the municipality’s affirmative undertaking”… . Plaintiffs failed to allege any assumption by the Town to act on their behalf, any direct contact between them and any agent of the Town or any justifiable reliance by plaintiffs … .

As for the third way of forming a special relationship, the municipality must not only assume positive direction or control when a known, blatant and dangerous safety violation exists, but must “affirmatively act to place the plaintiff in harm’s way,” through words or conduct that “induc[e] the plaintiff to embark on a dangerous course he or she would otherwise have avoided” … . Although we recently held that Normanskill and 165 Salisbury Road alleged a special relationship with the Town on this basis … , the alleged safety violation existed on property owned or leased by those parties. They were in a markedly different position than plaintiffs.

Plaintiffs are removed from the Normanskill property that was directly affected by the fill and permit activities, and the complaint contains no allegations that plaintiffs were even aware of, or had contact with any of the parties involved in, those activities. The allegations provide no indication of how plaintiffs could have been induced by the Town to embark on any course of action, let alone a dangerous one that they would otherwise have avoided … . Szydlowski v Town of Bethlehem, 2018 NY Slip Op 04066, Third Dept 6-7-18

MUNICIPAL LAW (NEGLIGENCE, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))/NEGLIGENCE (MUNICIPAL LAW, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))/LANDSLIDES (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))/FLOODING  (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT))

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