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COUNTY COURT SHOULD HAVE INQUIRED INTO THE REASON FOR DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, SENTENCE VACATED (THIRD DEPT)

The Third Department determined the court should have inquired into the reasons for defendant’s failure to appear at sentencing before sentencing him in absentia:

When defendant did not appear for sentencing on April 2, 2015, the court noted that defendant had been present for “each and every other occasion,” before issuing a bench warrant and adjourning sentencing to April 9, 2015. When defendant again failed to appear, his counsel represented that the only contact he had had with defendant was a conversation on April 1, 2015, when defendant informed counsel that he had additional doctors’ appointments to attend, and counsel advised him to appear in court for sentencing on April 2, 2015. There is no indication in the record that defendant was advised that sentencing was adjourned to April 9, 2015. The court was aware of defendant’s medical condition, which had required hospitalization in October 2014 and was the reason that sentencing was first adjourned from January 2015 to April 2, 2015. The court specifically observed that no explanation for defendant’s absence had been provided by defendant or his counsel but, nonetheless, made no inquiry on the record into the status of any efforts to locate defendant since April 2, when it had issued the bench warrant, before it proceeded to sentence him in absentia. In light of its failure to make any inquiry whatsoever into the reason for defendant’s absence, County Court erred when it sentenced defendant in absentia … . People v Sassenscheid, 2018 NY Slip Op 04037, Third Dept 6-7-18

CRIMINAL LAW (SENTENCING, COUNTY COURT SHOULD HAVE INQUIRED INTO THE REASON FOR DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, SENTENCE VACATED (THIRD DEPT))/SENTENCING (COUNTY COURT SHOULD HAVE INQUIRED INTO THE REASON FOR DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, SENTENCE VACATED (THIRD DEPT))

BECAUSE A MATERIAL INDUCEMENT TO DEFENDANT’S GUILTY PLEA WAS NULLIFIED THE PLEA MUST BE VACATED (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the complicated facts of this case nullified  a benefit that was expressly promised as inducement to a guilty plea. Defendant had pled guilty to burglaries in two counties (Schenectady and Albany) as a persistent felony offender. Both persistent felony offender guilty pleas were overturned. His subsequent plea was reversed in this case:

Defendant pleaded guilty here upon the understanding that the imposed sentence would run concurrently to the aggregate prison sentence of 16½ years to life imposed in Albany County. He was also aware that a higher aggregate sentence would be imposed in Albany County if he successfully challenged his status as a persistent violent felony offender, and Supreme Court promised that any resentence in this case would run concurrently to that increased sentence.

During the pendency of this appeal, this Court reversed the judgment of conviction in Albany County, vacated defendant’s guilty plea and remitted for further proceedings … . The sentencing exposure that prompted defendant’s concern about concurrent sentencing here accordingly dissolved and, indeed, he entered into a new plea arrangement in Albany County where he received, among other things, a much shorter prison term of six years. In short, the “reduction of the preexisting sentence [in Albany County] nullified a benefit that was expressly promised and was a material inducement to the guilty plea” here … . Inasmuch as “we cannot say that defendant would have foregone pretrial and trial rights and pleaded guilty” had he known that his guilty plea in Albany County would be vacated, his plea must also be vacated here … . People v Brewington, 2018 NY Slip Op 04035, Third Dept 6-7-18

​CRIMINAL LAW (PLEA AGREEMENTS, BECAUSE A MATERIAL INDUCEMENT TO DEFENDANT’S GUILTY PLEA WAS NULLIFIED THE PLEA MUST BE VACATED (THIRD DEPT))/PLEA AGREEMENTS (BECAUSE A MATERIAL INDUCEMENT TO DEFENDANT’S GUILTY PLEA WAS NULLIFIED THE PLEA MUST BE VACATED (THIRD DEPT))/GUILTY PLEAS (PLEA AGREEMENTS, BECAUSE A MATERIAL INDUCEMENT TO DEFENDANT’S GUILTY PLEA WAS NULLIFIED THE PLEA MUST BE VACATED (THIRD DEPT))

QUESTION OF FACT WHETHER AN ORAL CONTRACT WAS FORMED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined plaintiff had raised a question of fact whether there was an oral contract for dock space for and storage of plaintiff’s boat at defendant marina:

… [P]laintiff submitted a copy of an invoice from defendant that itemized the charges for winter storage and spring launch and showed that no balance was due in April 2008. The invoice also acknowledged receipt of a $500 payment from plaintiff on April 14, 2008 for a monthly slip charge. Plaintiff also submitted an affidavit in which he averred that the $500 payment accepted by defendant is evidence that the parties entered into an oral agreement for rental of dock space for the 2008 boating season. The facts alleged in plaintiff’s affidavit are consistent with his deposition testimony, which was submitted by defendant, in which he claimed that he made an oral agreement with defendant’s employee. Plaintiff’s argument that the oral agreement was consistent with the parties’ prior dealings because he had entered into a written agreement for only one season during his long period of occupancy is corroborated by [defendant’s] allegation that “[o]ver the years[, plaintiff] refused to sign any license agreement.” When viewed in the light most favorable to plaintiff, as the nonmoving party … , plaintiff’s submissions are sufficient to establish the existence of a triable issue of fact regarding formation of an oral contract. Carroll v Rondout Yacht Basin, Inc., 2018 NY Slip Op 04051, Third Dept 6-7-18

​CONTRACT LAW (QUESTION OF FACT WHETHER AN ORAL CONTRACT WAS FORMED (THIRD DEPT))/ORAL CONTRACTS (QUESTION OF FACT WHETHER AN ORAL CONTRACT WAS FORMED (THIRD DEPT))

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ANNOUNCING A NEW RULE GOVERNING THE DISCLOSURE OF PROSPECTIVE EXPERT WITNESS’S QUALIFICATIONS IN MEDICAL MALPRACTICE ACTIONS, THE THIRD DEPT REQUIRES COMPLETE DISCLOSURE OF THE QUALIFICATIONS, EVEN IF SUCH DISCLOSURE FACILITATES THE IDENTIFICATION OF THE WITNESS (THIRD DEPT).

The Third Department, announcing a new Third-Department rule governing expert witness disclosure in medical malpractice actions, in a full-fledged opinion by Justice McCarthy, determined plaintiffs are obligated to provide full disclosure of a prospective expert witness’s qualifications, even if the disclosure will identify the witness. Defendants may be entitled to a protective order prohibiting the intimidation or harassment of a witness whose identity has effectively been revealed by his or her qualifications:

Inasmuch as this state’s expert disclosure statute is already the most restrictive in the nation, there is no reason for this Court to continue to interpret the statute in a way that permits parties to severely limit the amount of information they provide regarding their expert witnesses.

Like the 2nd Department held in Thomas v Alleyne [302 AD2d 36], we conclude that our current standard is not only impractical, but contrary to the statutory language and “the salutary policy of encouraging full pretrial disclosure so as to advance the fundamental purpose of litigation, which is to ascertain the truth” … . Accordingly, we adopt that Court’s rule that parties in medical malpractice cases “will ordinarily be entitled to full disclosure of the qualifications of [an opponent’s] expert, [except for the expert’s name,] notwithstanding that such disclosure may permit such expert’s identification,” but a party may obtain a protective order under CPLR 3103 (a) by making a factual showing that there exists a reasonable probability, “under the special circumstances of a particular case, that a prospective expert medical witness would be subjected to intimidation or threats if his or her name were revealed before trial” … . Kanaly v DeMartino, 2018 NY Slip Op 04060, Third Dept 6-7-18

​CIVIL PROCEDURE (DISCLOSURE, MEDICAL MALPRACTICE, ANNOUNCING A NEW RULE GOVERNING THE DISCLOSURE OF PROSPECTIVE EXPERT WITNESS’S QUALIFICATIONS IN MEDICAL MALPRACTICE ACTIONS, THE THIRD DEPARTMENT REQUIRES COMPLETE DISCLOSURE OF THE QUALIFICATIONS, EVEN IF SUCH DISCLOSURE FACILITATES THE IDENTIFICATION OF THE WITNESS (THIRD DEPT))/MEDICAL MALPRACTICE (EXPERT WITNESSES, DISCLOSURE, ANNOUNCING A NEW RULE GOVERNING THE DISCLOSURE OF PROSPECTIVE EXPERT WITNESS’S QUALIFICATIONS IN MEDICAL MALPRACTICE ACTIONS, THE THIRD DEPARTMENT REQUIRES COMPLETE DISCLOSURE OF THE QUALIFICATIONS, EVEN IF SUCH DISCLOSURE FACILITATES THE IDENTIFICATION OF THE WITNESS (THIRD DEPT))/DISCLOSURE (MEDICAL MALPRACTICE, EXPERT WITNESSES, ANNOUNCING A NEW RULE GOVERNING THE DISCLOSURE OF PROSPECTIVE EXPERT WITNESS’S QUALIFICATIONS IN MEDICAL MALPRACTICE ACTIONS, THE THIRD DEPARTMENT REQUIRES COMPLETE DISCLOSURE OF THE QUALIFICATIONS, EVEN IF SUCH DISCLOSURE FACILITATES THE IDENTIFICATION OF THE WITNESS (THIRD DEPT))/EXPERT WITNESSES (MEDICAL MALPRACTICE, ANNOUNCING A NEW RULE GOVERNING THE DISCLOSURE OF PROSPECTIVE EXPERT WITNESS’S QUALIFICATIONS IN MEDICAL MALPRACTICE ACTIONS, THE THIRD DEPARTMENT REQUIRES COMPLETE DISCLOSURE OF THE QUALIFICATIONS, EVEN IF SUCH DISCLOSURE FACILITATES THE IDENTIFICATION OF THE WITNESS (THIRD DEPT))/QUALIFICATIONS (EXPERT WITNESSES, ANNOUNCING A NEW RULE GOVERNING THE DISCLOSURE OF PROSPECTIVE EXPERT WITNESS’S QUALIFICATIONS IN MEDICAL MALPRACTICE ACTIONS, THE THIRD DEPARTMENT REQUIRES COMPLETE DISCLOSURE OF THE QUALIFICATIONS, EVEN IF SUCH DISCLOSURE FACILITATES THE IDENTIFICATION OF THE WITNESS (THIRD DEPT))

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PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs’ motion for a continuance to allow their expert to testify in this medical malpractice action should have been granted.

When the expert … arrived in the late morning of December 1, 2016, he did not have his original file with him. According to the expert, he left the original file in his hotel and it was his belief that it was not necessary for him to have it in order to testify. Defendant objected to having the expert testify until the original file was with him. Supreme Court directed the expert to have his office make arrangements to immediately bring the original file to the courthouse with the hope that it would arrive in the afternoon. According to the court, the expert could then testify that afternoon and finish the next day, on Friday, December 2, 2016. Plaintiffs’ counsel, however, advised the court that the expert had scheduled appointments with patients on December 2, 2016 and was unavailable to testify that day or on December 5, 2016. The next available day for the expert was Tuesday, December 6, 2016. The court, however, instructed the expert to reschedule his appointments. The expert testified in the afternoon of December 1, 2016, but by the completion of direct examination by plaintiffs’ counsel, the original file had not arrived. …

On December 2, 2016, plaintiffs’ expert did not appear. …

We conclude that plaintiffs’ motion for a continuance should have been granted … . The record does not support Supreme Court’s finding that the failure of plaintiffs’ expert to appear and complete his testimony on December 2, 2016 stemmed from a lack of due diligence by plaintiffs … . Normandin v Bell, 2018 NY Slip Op 04053, Third Dept 6-7-18

​CIVIL PROCEDURE (CONTINUANCE, PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT))/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT))/MEDICAL MALPRACTICE (EXPERT WITNESS, PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT))/EXPERT OPINION (MEDICAL MALPRACTICE, PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT))/CONTINUANCE (PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT))

COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT).

The Third Department determined the Commissioner of Health’s denial of petitioner’s application to the NYS Medical Indemnity Fund for about $12,000 for a lift which would allow a disabled child to use a pool was arbitrary and capricious:

… [T]he Commissioner determined that the pool lift did not qualify, reasoning that “[a] pool is not deemed an exterior modification of a residence because it is typically outside the confines of the [home].” This reasoning mischaracterizes the proposal. By definition, Emods [environmental home modifications] include exterior physical adaptations to a residence, including ramps. As demonstrated in the home evaluation, the backyard deck is attached to and directly accessed from the house through two back doors … . We readily recognize the attached deck as part of the residence, and the proposed modification here is to install two deck sockets that extend below the deck, i.e., the physical modification would be to the deck, not the pool. The pool lift is not directly attached to either the deck or the pool, but positioned in either socket depending on the intended use of either the pool or hot tub. As such, we find that the pool lift qualifies as an Emod and that the Commissioner’s contrary finding was arbitrary and capricious. Matter of Anson v Zucker, 2018 NY Slip Op 04063, Third Dept 6-7-18

​ADMINISTRATIVE LAW (COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT))/NYS MEDICAL INDEMNITY FUND (COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT))/ENVIRONMENTAL HOME MODIFICATIONS (COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT))/DISABLED PERSONS (ENVIRONMENTAL HOME MODIFICATIONS, COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT))

CLAIMANT WAS ASSAULTED ON TRANSIT AUTHORITY PROPERTY WHILE WEARING HER TRANSIT AUTHORITY UNIFORM, ALTHOUGH SHE WAS COMMUTING TO WORK, HER COMMUTE HAD NOTHING TO DO WITH HER WORK, WORKERS’ COMPENSATION BENEFITS PROPERLY DENIED (THIRD DEPT).

The Third Department determined claimant, who worked for the NYC Transit Authority, was not entitled to Workers’ Compensation benefits for injuries suffered in an assault on the way to work. Although she was wearing her uniform and was on Transit Authority property when she was assaulted, her commute to her work station was deemed to have no connection to her work for the Transit Authority:

“An injury is only compensable under the Workers’ Compensation Law if it arose out of and in the course of a worker’s employment and, in general, injuries sustained in the course of travel to and from the place of employment do not come within the statute” … . Injuries incurred while commuting to work are generally not covered because “the risks inherent in traveling to and from work relate to the employment only in the most marginal sense” … . There are recognized exceptions but, here, substantial evidence supports the Board’s determination that claimant’s injuries sustained while commuting are not compensable, as none of the relevant exceptions to this rule applies … .

According to claimant, the assault occurred almost an hour before the start of her shift, on her way to work, before signing in at her assigned station as required at the start of her shift. The employer neither encouraged nor benefitted from her commute route. Thus, at the time of the assault, claimant was not yet on duty or at her assigned station and was not performing any duties of her employment or undertaking an errand for the employer … . Although claimant had opted to wear her work uniform on her commute, she was not required to do so, nor was she required to use public transportation to get to work. The employer provided a transportation pass, but there was no evidence that it was contractually bound to provide free transit, and the use of the pass did not make claimant’s commute a part of her employment… . Rather, at the relevant time, claimant was a commuter using the subways like the general public and, while she was on property owned and operated by the employer, substantial evidence supports the Board’s determination that this did not establish a casual connection between her employment and the assault … . Matter of Rodriguez v New York City Tr. Auth., 2018 NY Slip Op 03887, Third Dept 5-31-18

​WORKERS’ COMPENSATION LAW (CLAIMANT WAS ASSAULTED ON TRANSIT AUTHORITY PROPERTY WHILE WEARING HER TRANSIT AUTHORITY UNIFORM, ALTHOUGH SHE WAS COMMUTING TO WORK, HER COMMUTE HAD NOTHING TO DO WITH HER WORK, WORKERS’ COMPENSATION BENEFITS PROPERLY DENIED (THIRD DEPT))/COMMUTE (WORKERS’ COMPENSATION LAW, CLAIMANT WAS ASSAULTED ON TRANSIT AUTHORITY PROPERTY WHILE WEARING HER TRANSIT AUTHORITY UNIFORM, ALTHOUGH SHE WAS COMMUTING TO WORK, HER COMMUTE HAD NOTHING TO DO WITH HER WORK, WORKERS’ COMPENSATION BENEFITS PROPERLY DENIED (THIRD DEPT))

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CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, reversing defendant’s conviction, determined the indictment charging defendant sex offender with a violation of the Correction Law for failing to disclose his use of Facebook was jurisdictionally defective. Disclosure of his Facebook use is not required by the Correction Law and, therefore, failure to disclose is not a crime. Defendant had complied with the requirements of Correction Law §§ 168-f (4) and 168-a (18) by disclosing his email address and screen names:

… [W]e conclude that the social media website or application — be it Facebook or any other social networking website or application — does not constitute a “designation used for the purposes of chat, instant messaging, social networking or other similar [I]nternet communication” (Correction Law § 168-a [18]). An Internet identifier is not the social networking website or application itself; rather, it is how someone identifies himself or herself when accessing a social networking account, whether it be with an electronic mail address or some other name or title, such as a screen name or user name. Defendant’s failure to disclose his use of Facebook is not a crime, rendering the indictment jurisdictionally defective … . People v Ellis, 2018 NY Slip Op 03873, Third Dept 5-31-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT))/CORRECTION LAW  (SEX OFFENDER REGISTRATION ACT (SORA), CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT))/FACEBOOK (SEX OFFENDER REGISTRATION ACT (SORA), CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT))/SOCIAL NETWORKING (SEX OFFENDER REGISTRATION ACT (SORA), CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT))

PAROLE BOARD PROPERLY CONSIDERED PETITIONER’S YOUTH AT THE TIME HE COMMITTED SERIOUS CRIMES, PAROLE PROPERLY DENIED (THIRD DEPT).

The Third Department, in a comprehensive decision, determined the parole board had properly considered petitioner’s youth at the time of the commission of the crimes and had properly denied parole. Petitioner was a few weeks from his eighteenth birthday when he committed the crimes and was 44 years old at his 2016 appearance before the parole board:

… [R]eview of the record leads us to the conclusion that the Board did consider the necessary statutory factors, as well as petitioner’s youth at the time of the crimes. Specifically, at the hearing, the Board explored the facts underlying petitioner’s crimes in detail and his insight into his crimes, as well as his release plans, prior criminal record, educational and institutional achievements, lengthy prison disciplinary record, sentencing minutes, COMPAS Risk and Needs Assessment instrument and numerous letters of support. Also, the hearing transcript demonstrates that petitioner’s youth at the time that he committed the crimes was adequately explored. * * *

A thorough review of the Board’s decision evinces that all necessary statutory factors, as well as petitioner’s youth and its attendant characteristics, were considered. Although the Board assigned greater weight to the seriousness of petitioner’s crimes, his history of violence, his failure to complete recommended programming and his lengthy prison disciplinary record, we find that the ultimate determination is rational and, therefore, we will not disturb it … . Matter of Allen v Stanford, 2018 NY Slip Op 03888, Third Dept 5-31-18

CRIMINAL LAW (PAROLE BOARD PROPERLY CONSIDERED PETITIONER’S YOUTH AT THE TIME HE COMMITTED SERIOUS CRIMES, PAROLE PROPERLY DENIED (THIRD DEPT))/PAROLE (PAROLE BOARD PROPERLY CONSIDERED PETITIONER’S YOUTH AT THE TIME HE COMMITTED SERIOUS CRIMES, PAROLE PROPERLY DENIED (THIRD DEPT))

TENDER AGE PT (TAPT), WHICH PROVIDED SUPPLEMENTAL EDUCATION SERVICES TO THE DEPARTMENT OF EDUCATION, WAS NOT THE EMPLOYER OF CLAIMANT, A BEHAVIORAL ANALYST THERAPIST WHO RECEIVED WORK ASSIGNMENTS FROM TAPT (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined a that Tender Age PT (TAPT), which provided supplemental education services to the Department of Education, was not required to make additional unemployment insurance contributions based on remuneration paid to claimant, a behavior analyst therapist who received assignments from TAPT:

TAPT’s overall control over important aspects of the service professionals’ work is lacking largely because the policies and procedures related thereto are “dictated by statutes and regulations governing the provision of supplemental educational and related services”… . Indeed, although TAPT collected resumes and interviewed candidates wishing to be placed on its registry, this was primarily for the purpose of insuring that they met the requirements imposed by the Department of Health with regard to certification and licensing. Once candidates became approved service professionals, TAPT offered assignments based upon availability and other criteria, but the service professionals were free to reject an assignment or work for other agencies. If an assignment was accepted, TAPT supplied the service professionals with documentation furnished by the client, including the child’s treatment plan and a prescription for the service, as well as other legally mandated documents. The service professionals then worked directly with the child and his or her parent, providing all necessary equipment and materials, and scheduling appointments without any involvement or oversight by TAPT, usually at the child’s home, school or day care center.

The compensation paid to the service professionals was negotiable, but was limited by the amount that TAPT received from its clients. Although the service professionals prepared daily work logs, as well as periodic status reports, on preprinted forms that they submitted to TAPT, this was done in order to comply with the requirements of TAPT’s clients. In accordance with such requirements, they also submitted monthly invoices containing treatment information that TAPT compared with the daily logs. They would not, however, get paid until TAPT received payment from its clients. Matter of Giordano (Commissioner of Labor), 2018 NY Slip Op 03573, Third Dept 5-17-18

​UNEMPLOYMENT INSURANCE (TENDER AGE PT (TAPT), WHICH PROVIDED SUPPLEMENTAL EDUCATION SERVICES TO THE DEPARTMENT OF EDUCATION, WAS NOT THE EMPLOYER OF CLAIMANT, A BEHAVIORAL ANALYST THERAPIST WHO RECEIVED WORK ASSIGNMENTS FROM TAPT (THIRD DEPT))/EDUCATIONAL SERVICES (UNEMPLOYMENT INSURANCE, TENDER AGE PT (TAPT), WHICH PROVIDED SUPPLEMENTAL EDUCATION SERVICES TO THE DEPARTMENT OF EDUCATION, WAS NOT THE EMPLOYER OF CLAIMANT, A BEHAVIORAL ANALYST THERAPIST WHO RECEIVED WORK ASSIGNMENTS FROM TAPT (THIRD DEPT))

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