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PLAINTIFF’S ATTEMPT TO AMEND THE COMPLAINT TO ADD A PARTY INITIALLY NAMED AS JOHN DOE TIME-BARRED (THIRD DEPT).

The Third Department determined plaintiff’s attempt to file an amended complaint naming a defendant (Rytec) which had been identified as John Doe was time-barred. The initial complaint was filed three days before the statute of limitations expired and the John Doe designation did not toll the statute:

The statutory provision allowing commencement of an action against unknown parties does not toll the statute of limitations (see CPLR 1024… ). As Supreme Court held, plaintiff was required to serve all parties within 120 days of filing, or seek leave to extend the time for service “upon good cause shown or in the interest of justice” (CPLR 306-b… ). Here, plaintiff failed to seek leave to extend the time for service prior to expiration of the statutory limitations period.

Further, a party seeking to apply the relation-back doctrine under CPLR 1024 carries the burden “of establishing that diligent efforts were made to ascertain the unknown party’s identity prior to the expiration of the statute of limitations” … .

Plaintiff’s third amended complaint was filed nearly 10 months after the statute of limitations expired, with the delay essentially unexplained but for a statement that Rytec’s identity could not be ascertained until the door was inspected in May 2015. There was no effort to explain any basis for the precommencement delay, and no discussion relative to any of the potential additional discovery efforts that might or could have been undertaken prior to the expiration of the limitations period… .

Accordingly, we find that Supreme Court properly granted Rytec’s motion to dismiss the third amended complaint against it, as it was barred by the statute of limitations … . Walker v Hormann Flexon, LLC, 2017 NY Slip Op 06023, Third Dept 8-3-17

CIVIL PROCEDURE (UNKNOWN PARTIES, PLAINTIFF’S ATTEMPT TO AMEND THE COMPLAINT TO ADD A PARTY INITIALLY NAMED AS JOHN DOE TIME-BARRED (THIRD DEPT))/UNKNOWN PARTIES (CIVIL PROCEDURE, PLAINTIFF’S ATTEMPT TO AMEND THE COMPLAINT TO ADD A PARTY INITIALLY NAMED AS JOHN DOE TIME-BARRED (THIRD DEPT))/JOHN DOES (CIVIL PROCEDURE, PLAINTIFF’S ATTEMPT TO AMEND THE COMPLAINT TO ADD A PARTY INITIALLY NAMED AS JOHN DOE TIME-BARRED (THIRD DEPT))

PROOF THAT CLAIMANT’S PROSTATE CANCER WAS CAUSED BY TOXINS TO WHICH CLAIMANT WAS EXPOSED AS A FIREFIGHTER WAS SPECULATIVE, CLAIM PROPERLY DENIED (THIRD DEPT).

The Third Department, over a dissent, determined the evidence linking claimant’s prostate cancer to exposure to toxins as a firefighter was properly rejected as speculative:

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Lawrence Garbo, an oncologist appointed as the impartial specialist by the full Board, reported, based upon his review of the relevant record evidence, that claimant did not present with any elevated risk factors typically associated with prostate cancer and that the incidence of new cases of prostate cancer in claimant’s “age group is well under 0.5%.” Garbo stated that although claimant had been exposed to inhalant toxins, polycyclic aromatic hydrocarbons and diesel exhaust, he could not accurately quantify, or describe the extent of, that exposure. Nevertheless, Garbo concluded that it was “reasonable to assume that [claimant’s] employment as a firefighter for 24 years may have [had] a causal relationship to the development of prostate cancer.” In his testimony, however, Garbo conceded that he was unaware of claimant’s other previous employment consisting of cleaning furnaces and delivering kerosene or of the minimal number of exposure reports submitted by claimant during his 24-year career as a firefighter and that, upon being apprised of this information, he could not assign a causal relationship … . In view of the foregoing conflicting evidence, including the prevalence of prostate cancer and the other possible explanations for claimant contracting the condition … , we find that the full Board acted within its discretion in characterizing as speculative and ultimately rejecting the reports … with regard to the existence of a causal relationship … . Matter of Tucker v City of Plattsburgh Fire Dept., 2017 NY Slip Op 06013, Third Dept 8-2-17

WORKERS’ COMPENSATION LAW (PROOF THAT CLAIMANT’S PROSTATE CANCER WAS CAUSED BY TOXINS TO WHICH CLAIMANT WAS EXPOSED AS A FIREFIGHTER WAS SPECULATIVE, CLAIM PROPERLY DENIED (THIRD DEPT))/CANCER (WORKERS’ COMPENSATION LAW, PROOF THAT CLAIMANT’S PROSTATE CANCER WAS CAUSED BY TOXINS TO WHICH CLAIMANT WAS EXPOSED AS A FIREFIGHTER WAS SPECULATIVE, CLAIM PROPERLY DENIED (THIRD DEPT))

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EMPLOYER DID NOT SUBMIT SUFFICIENT PROOF THAT CLAIMANT RECEIVED UNREPORTED INCOME FROM THE SALE OF DRUGS, THEREFORE CLAIMANT WAS NOT DISQUALIFIED FROM RECEIVING WORKERS’ COMPENSATION BENEFITS 3RD DEPT.

The Third Department determined claimant was entitled to resume receiving workers’ compensation benefits when he left prison for offenses related to the sale of drugs. The employer argued claimant should be disqualified because he received benefits while he had unreported income from selling drugs. The Third Department found that the plea allocutions were not sufficient evidence that claimant received income from drug sales:

In support of its assertion that claimant violated Workers’ Compensation Law § 114-a (1), the employer submitted the transcripts of the 2012 plea allocutions resulting in claimant’s convictions for a violation of probation, criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in the fifth degree. As a result of recording or transcription errors, the transcript of the Alford plea proceeding is, at times, indecipherable. In addition, both transcripts of the 2012 criminal convictions were insufficient to establish that claimant received income while receiving workers’ compensation benefits or that he otherwise concealed his work status. Further, the employer did not submit the certificate of conviction for claimant’s 2010 convictions or the transcript of that underlying plea allocution. Although we agree with the employer that the Board incorrectly analyzed the 2012 criminal proceedings, we do not find that these inaccuracies warrant reversal and remittal to the Board, given that the Board primarily found that there was insufficient evidence to find a violation of Workers’ Compensation Law § 114-a … . Matter of Pompeo v Auction Direct USA LP, 2017 NY Slip Op 05910, 3rd Dept 7-27-17

WORKERS’ COMPENSATION LAW (CRIMINAL LAW, EMPLOYER DID NOT SUBMIT SUFFICIENT PROOF THAT CLAIMANT RECEIVED UNREPORTED INCOME FROM THE SALE OF DRUGS, THEREFORE CLAIMANT WAS NOT DISQUALIFIED FROM RECEIVING WORKERS’ COMPENSATION BENEFITS 3RD DEPT)/CRIMINAL LAW (WORKERS’ COMPENSATION LAW, EMPLOYER DID NOT SUBMIT SUFFICIENT PROOF THAT CLAIMANT RECEIVED UNREPORTED INCOME FROM THE SALE OF DRUGS, THEREFORE CLAIMANT WAS NOT DISQUALIFIED FROM RECEIVING WORKERS’ COMPENSATION BENEFITS 3RD DEPT)

DESPITE CLAIMANT’S SIGNING A STIPULATION AGREEING TO RESIGN, A HOSTILE WORK ENVIRONMENT PROVIDED GOOD CAUSE FOR HER RESIGNATION 3RD DEPT.

The Third Department determined claimant was properly awarded unemployment insurance benefits, despite her signing a stipulation agreeing to resign. The stipulation did not mention any misconduct by the claimant. Claimant’s testimony demonstrated a hostile work environment which provided good cause for her leaving:

As a general proposition, a claimant who voluntarily leaves his or her employment without good cause will not be entitled to receive unemployment insurance benefits … , and the same holds true for a claimant who engages in disqualifying misconduct … . That said, “[a] claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct” … . “Whether a claimant has engaged in disqualifying misconduct is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence” … .

Claimant and the employer’s witnesses presented competing accounts of claimant’s work history, her work product, her general demeanor and her interaction with others in her office. Without recounting the extensive testimony offered on these points, suffice it to say that the employer portrayed claimant as an insubordinate malcontent who failed to timely and appropriately complete assignments or respond to various emails or directives. Claimant, on the other hand, testified at length as to the “bullying” and harassment that she endured at the hands of her supervisors, recounted the manner in which she was verbally threatened by certain individuals in her office and disputed the employer’s account of her overall work performance. This conflicting testimony presented factual and credibility issues for the Board to resolve … . As noted previously, the stipulation of settlement entered into between claimant and the employer contained no finding or admission of wrongdoing on the part of claimant. Further, upon crediting claimant’s testimony as to the nature of her work environment and her reasons for resigning, the Board agreed with the ALJ’s findings that claimant’s actions did not rise to the level of disqualifying misconduct but, rather, were undertaken in direct response to her “hostile” and “untenable” work environment — an environment that, in turn, provided “a compelling reason for her to resign.” Matter of Cohen (Commissioner of Labor), 2017 NY Slip Op 05885, 3rd Dept 7-27-17

 

UNEMPLOYMENT INSURANCE (GOOD CAUSE, DESPITE CLAIMANT’S SIGNING A STIPULATION AGREEING TO RESIGN, A HOSTILE WORK ENVIRONMENT PROVIDED GOOD CAUSE FOR HER RESIGNATION 3RD DEPT)/HOSTILE WORK ENVIRONMENT (UNEMPLOYMENT INSURANCE, DESPITE CLAIMANT’S SIGNING A STIPULATION AGREEING TO RESIGN, A HOSTILE WORK ENVIRONMENT PROVIDED GOOD CAUSE FOR HER RESIGNATION 3RD DEPT)

THE TRUST AGREEMENT INDICATED THE DECEDENT INTENDED A CHARITABLE GIFT BE MADE TO A PARTICULAR LOCAL CATHOLIC SCHOOL WHICH HAD CLOSED, NOT TO THE ROMAN CATHOLIC CHURCH WHICH HAD OPERATED THE CLOSED SCHOOL 3RD DEPT.

The Third Department determined the intent of the decedent was to support a particular local (Oneonta) Catholic school with a charitable gift. The school had closed in 2011. The trustee wanted to distribute the gift equally to the two other named beneficiaries of the trust. Respondents, St. Mary’s Roman Catholic Church, New York and Roman Catholic Diocese of Albany, New York, which operated the closed school, argued the gift should be made to them. The court looked at the nature of the trust as a whole and determined the intent of the gift was to benefit the particular school which closed, not the larger Roman Catholic church generally:

The gift to the school was “charitable in nature and, for cy pres relief [to be appropriate], it was further necessary that the instrument[] establishing the gift[] revealed a general charitable intent and that circumstances had changed rendering impracticable or impossible strict compliance with the terms of the gift instrument[]”… . Strict compliance with the terms of the trust agreement was impossible due to the closure of the school. We accordingly turn to whether the evidence evinces a general charitable intent on the part of decedent, defined “as a desire to give to charity generally, rather than merely to give to a particular object or institution” … . In answering that question, we will read the trust agreement in its entirety and afford its words “their ordinary and natural meaning” … .

Turning to that agreement, all of the institutions to which decedent made gifts are in the City of Oneonta, Otsego County, suggesting an intent to limit her largesse to organizations in that area. When viewed in that context, a direction to distribute part of the residuary trust corpus “to the [school at] 5588 State Route 7, Oneonta, New York 13820” indicates a desire to support a school at that location rather than religious education projects in general. This reading is bolstered by the silence of the trust agreement as to decedent’s Catholic faith and the absence of gifts to the parish or other Roman Catholic institutions. Matter of Gurney, 2017 NY Slip Op 05902, 3rd Dept 7-27-17

TRUSTS AND ESTATES (CY PRES, THE TRUST AGREEMENT INDICATED THE DECEDENT INTENDED A CHARITABLE GIFT BE MADE TO A PARTICULAR LOCAL CATHOLIC SCHOOL WHICH HAD CLOSED, NOT TO THE ROMAN CATHOLIC CHURCH WHICH HAD OPERATED THE CLOSED SCHOOL 3RD DEPT)/CY PRES (THE TRUST AGREEMENT INDICATED THE DECEDENT INTENDED A CHARITABLE GIFT BE MADE TO A PARTICULAR LOCAL CATHOLIC SCHOOL WHICH HAD CLOSED, NOT TO THE ROMAN CATHOLIC CHURCH WHICH HAD OPERATED THE CLOSED SCHOOL 3RD DEPT)/CHARITABLE GIFTS (TRUSTS, CY PRES, THE TRUST AGREEMENT INDICATED THE DECEDENT INTENDED A CHARITABLE GIFT BE MADE TO A PARTICULAR LOCAL CATHOLIC SCHOOL WHICH HAD CLOSED, NOT TO THE ROMAN CATHOLIC CHURCH WHICH HAD OPERATED THE CLOSED SCHOOL 3RD DEPT)

RECORD DID NOT DEMONSTRATE PETITIONER KNOWINGLY WAIVED HIS RIGHT TO BE PRESENT AT THE HEARING, DETERMINATION ANNULLED AND EXPUNGED 3RD DEPT.

The Third Department annulled and expunged the misbehavior determination because the record did not reflect the petitioner’s knowing and intelligent waiver of his right to be present at the hearing:

“[A]n inmate has a fundamental right to be present at his or her disciplinary hearing and, in order for an inmate to make a knowing, voluntary and intelligent waiver of that right, he or she must be informed of that right and of the consequences of failing to appear at the hearing” … . Here, while there was testimony at the continuation of the hearing that the correction officers assigned to transport petitioner advised him that the hearing would continue in his absence, a videotape of the interaction between petitioner and the officers that resulted in his refusal to attend the hearing reveals no such advisement. Notably, the correction officer did not elaborate on the reason for petitioner’s refusal, and the Hearing Officer did not inquire … . Although the record also contains a written form, signed by one of the correction officers assigned to transport petitioner to the hearing, attesting to the fact that petitioner was aware of the consequences of his refusal, petitioner did not sign the form and there is no indication on the form or anywhere else in the record as to the steps taken to either “ascertain the legitimacy of petitioner’s refusal or to inform him of . . . the consequences of his failure to [attend]” …  to assert that petitioner forfeited his right to be present is unavailing because the hearing was not nearing completion at the time of the refusal. In light of the foregoing, we cannot conclude that petitioner knowingly, intelligently and voluntarily relinquished his right to attend the hearing … . Matter of Micolo v Annucci, 2017 NY Slip Op 05893, 3rd Dept 7-27-17

DISCIPLINARY HEARINGS (INMATES) (RECORD DID NOT DEMONSTRATE PETITIONER KNOWINGLY WAIVED HIS RIGHT TO BE PRESENT AT THE HEARING, DETERMINATION ANNULLED AND EXPUNGED 3RD DEPT)

QUESTION OF FACT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR PLAINTIFF’S COLLIDING WITH THE REAR OF DEFENDANT’S CAR 3RD DEPT.

The Third Department determined plaintiff had raised a question of fact about a nonnegligent explanation for his colliding with the rear of defendant’s car. Plaintiff was riding a motorcycle when the car in front of him (driven by Daunais) suddenly swerved to the left and plaintiff struck the defendant’s car, which was in front of Daunais. Daunais alleged the defendant suddenly stopped dead in the road and Daunais swerved to the left to avoid colliding with defendant:

It is undisputed that defendant has satisfied his initial summary judgment burden inasmuch as “[a] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle” … . The burden therefore shifted to plaintiff to demonstrate a nonnegligent explanation for the collision … . As relevant here, “[e]vidence that the vehicle which was rear-ended came to a sudden and abrupt stop will defeat summary judgment” … .

Although defendant contends that he was attempting to turn into a driveway when plaintiff rear-ended him and that he had appropriately slowed his vehicle and activated his turn signal prior to turning, Daunais contradicted him, testifying that defendant “stopped dead in the road.” Daunais averred that he then “took a chance” and swerved left into the oncoming traffic lane to avoid colliding with defendant’s vehicle. Plaintiff explained that he was unable to do the same because another motorcyclist was by then blocking him from safely veering to the left. Other motorcyclists traveling with plaintiff also testified that they observed Daunais’ van swerve into the oncoming traffic lane to reveal defendant’s vehicle stopped in the road. This proof, when viewed “in the light most favorable to plaintiff and affording him the benefit of every favorable inference”… , demonstrates a triable issue of fact as to whether a nonnegligent explanation exists for the rear-end collision … . Bell v Brown, 2017 NY Slip Op 05898, 3rd Dept 7-27-17

NEGLIGENCE (TRAFFIC ACCIDENTS, REAR-END COLLISION, QUESTION OF FACT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR PLAINTIFF’S COLLIDING WITH THE REAR OF DEFENDANT’S CAR 3RD DEPT)/TRAFFIC ACCIDENTS (REAR-END COLLISION, QUESTION OF FACT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR PLAINTIFF’S COLLIDING WITH THE REAR OF DEFENDANT’S CAR 3RD DEPT)/REAR-END COLLISION (QUESTION OF FACT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR PLAINTIFF’S COLLIDING WITH THE REAR OF DEFENDANT’S CAR 3RD DEPT)

THE PROOF OF PLAINTIFF’S CLAIM FOR LOST EARNINGS WAS INSUFFICIENT AS A MATTER OF LAW, DEFENDANT INSURER’S MOTION FOR SUMMARY JUDGMENT IN THIS NO-FAULT CASE SHOULD HAVE BEEN GRANTED 3RD DEPT.

The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff’s evidence of lost earnings was insufficient to support his claim for no-fault benefits. The insurer’s motion for summary judgment should, therefore, have been granted. The dissenters argued that there was enough evidence of lost earnings to raise a question of fact:

… {The potential employer’s and] plaintiff’s subjective beliefs about the financial health of the parts business and/or their subjective beliefs about plaintiff’s skills are immaterial to the resolution of whether it is reasonable to project that the parts business would have employed plaintiff at a salary of $2,000 a week. In contrast, the uncontradicted evidence that the parts business was failing, that it had not made any efforts to acquire or open an automobile repair shop, and that, even if it had, plaintiff had a demonstrated history of being unable to run a profitable automobile repair shop all bear on the reasonableness of such a projection. That material evidence established as a matter of law that the projection that plaintiff would have received $2,000 a week from the parts business is unreasonable … . Freligh v Government Empls. Ins. Co., 2017 NY Slip Op 05911, 3rd Dept 7-27-17

INSURANCE LAW (NO-FAULT, LOST EARNINGS, THE PROOF OF PLAINTIFF’S CLAIM FOR LOST EARNINGS WAS INSUFFICIENT AS A MATTER OF LAW, DEFENDANT INSURER’S MOTION FOR SUMMARY JUDGMENT IN THIS NO-FAULT CASE SHOULD HAVE BEEN GRANTED 3RD DEPT)/NO-FAULT BENEFITS (LOST EARNINGS,  THE PROOF OF PLAINTIFF’S CLAIM FOR LOST EARNINGS WAS INSUFFICIENT AS A MATTER OF LAW, DEFENDANT INSURER’S MOTION FOR SUMMARY JUDGMENT IN THIS NO-FAULT CASE SHOULD HAVE BEEN GRANTED 3RD DEPT)

RAISED FIST DID NOT SUPPORT AN INTERFERENCE-WITH-AN-EMPLOYEE CHARGE 3RD DEPT.

The Third Department determined a raised fist was sufficient to support the “creating a disturbance” charge, but not the “interference with an employee” charge:

… [A]s to the charge of interfering with an employee, while the evidence establishes that prison staff were alarmed by petitioner’s gesture resulting in additional staff reporting to the mess hall, we agree with petitioner that these facts, standing alone, do not constitute substantial evidence to support the finding that petitioner “physically or verbally obstruct[ed] or interfere[d] with an employee,” and, therefore, the determination should be annulled to that extent… . While the normal duties of the prison staff were presumably interrupted or redirected when they responded to the incident in the mess hall, this, in our view, is not the type of conduct that the at-issue rule was designed to prevent … . Matter of Taylor v Lee, 2017 NY Slip Op 05903, 3rd Dept 7-27-17

DISCIPLINARY HEARINGS (INMATES) (RAISED FIST DID NOT SUPPORT AN INTERFERENCE-WITH-AN-EMPLOYEE CHARGE 3RD DEPT)

ALTHOUGH THE SEIZED SUBSTANCE TESTED NEGATIVE FOR MARIJUANA, THE SUPERVISOR’S STATEMENT THAT THE SUBSTANCE WAS SYNTHETIC MARIJUANA WAS SUFFICIENT SUPPORT FOR THE CONTRABAND-POSSESSION CHARGE 3RD DEPT.

The Third Department, over a two-justice dissent, determined the contraband-possession charge was supported by sufficient evidence. The petitioner had a small package of a leafy green substance which tested negative for marijuana. The supervisor who seized the substance, after the test had been done, alleged it was synthetic marijuana. Because all of the substance was used up in the marijuana test, no further tests were possible. The dissent argued the proof was insufficient because the supervisor did not describe the nature of his experience which led to his conclusion the substance was contraband:

As for the … charge of possessing contraband, “an inmate shall not possess any item unless it has been specifically authorized” … . Given petitioner’s concessions and the supervisor’s representations in the misbehavior report that his identification was based upon his prior training and experience, we find that the item contained in the tobacco pouch was adequately identified as synthetic marihuana and, therefore, the determination that it was unauthorized contraband is supported by substantial evidence … . * * ​

FROM THE DISSENT:

The supervisor who identified the substance as synthetic marihuana offered no details regarding his training or experience, nor any explanation of how they qualified him to make such an identification. Indeed, he did not testify, so the Hearing Officer was left to rely on a vague and conclusory statement included in a misbehavior report and repeated in a memorandum. Moreover, the quantity of the substance recovered apparently allowed for only one drug test, and the record indicates that the substance was tested to discover whether it was marihuana. If the supervisor actually had the ability to identify synthetic marihuana and had, in fact, so identified the substance taken from petitioner when the supervisor viewed it before the testing was conducted, there is no explanation as to why he would thereafter have his subordinate use the entirety of the substance in a test for marihuana, which would not indicate a positive or a negative result for synthetic marihuana … . Thus, the record contains no evidence that the supervisor was qualified to identify synthetic marihuana, but does contain evidence that leads to an inference that he had, initially, incorrectly identified the substance as marihuana. The Hearing Officer should not have relied on the supervisor’s second guess as to the nature of the substance, supported by nothing other than his own vague and self-serving statement regarding his training and experience. Matter of King v Venettozzi, 2017 NY Slip Op 05899, 3rd Dept 7-27-17

DISCIPLINARY HEARINGS (INMATES) (CONTRABAND, ALTHOUGH THE SEIZED SUBSTANCE TESTED NEGATIVE FOR MARIJUANA, THE SUPERVISOR’S STATEMENT THAT THE SUBSTANCE WAS SYNTHETIC MARIJUANA WAS SUFFICIENT SUPPORT FOR THE CONTRABAND-POSSESSION CHARGE 3RD DEPT)/CONTRABAND (DISCIPLINARY HEARINGS, INMATES, ALTHOUGH THE SEIZED SUBSTANCE TESTED NEGATIVE FOR MARIJUANA, THE SUPERVISOR’S STATEMENT THAT THE SUBSTANCE WAS SYNTHETIC MARIJUANA WAS SUFFICIENT SUPPORT FOR THE CONTRABAND-POSSESSION CHARGE 3RD DEPT)

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