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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))

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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