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CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT).

The Third Department determined claimant, decedent’s husband, was entitled to Workers’ Compensation death benefits. Decedent was found on the floor after she had complained of job-related stress and chest pains. Decedent’s death certificate indicated that she died from cardiac arrhythmia due to arteriosclerotic heart disease with obesity as a contributing factor:

Here, there is no dispute that claimant was entitled to the statutory presumption in that decedent suffered a cardiac arrest while working in her office and died shortly thereafter as a result, an event with no known witnesses … . The carrier’s cardiologist reviewed decedent’s medical records and concluded that while it was not certain exactly what happened, decedent’s cardiac arrest was most likely due to preexisting coronary artery disease and was not causally related, finding insufficient evidence that it was due to work-related stress … . This evidence was sufficient to rebut the presumption of compensability, shifting the burden to claimant to demonstrate a causal relationship … .​

Claimant presented the report and testimony of an internal medicine physician who reviewed decedent’s medical records and concluded that she had underlying asymptomatic cardiac atherosclerotic disease, and that her work-related stress was a “significant contributing factor” that caused her sudden cardiac death. He relied on the emergency department records and the fact that decedent had no known history of cardiac symptoms or treatment. While claimant’s physician acknowledged that decedent had other cardiac risk factors, such as obesity and a daily smoking habit, decedent’s “work-related illness need not be the sole or even the most direct cause of death, provided that the claimant demonstrates that the compensable illness was a contributing factor in the decedent’s demise”… . Matter of Lavigne v Hannaford Bros. Co., 2017 NY Slip Op 06121, Third Dept 8-10-17

 

WORKERS’ COMPENSATION LAW (DEATH BENEFITS, CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT))/DEATH BENEFITS (WORKERS’ COMPENSATION LAW, CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT))/CARDIAC ARREST (WORKERS’ COMPENSATION LAW, CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT))

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FOR CAUSE CHALLENGE TO A SWORN JUROR, AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT).

The Third Department, reversing defendant’s conviction, over a dissent, determined that defendant’s for cause challenge to a sworn juror should have been granted. Defendant was accused of killing his ex-wife, Powell. The juror was a partner in a law firm which represented Powell’s parents in their action to gain custody of Powell’s (and defendant’s) child.

… [W]here the challenging party acquires new information that had not been previously available after a juror has already been sworn, the trial court may entertain a challenge made for cause made before the first trial witness is sworn … . …

The governing law dictates that a juror should be discharged for cause where the juror is shown to have an implied bias; that is, if the juror shares a relationship with any person involved in the trial the nature of which is likely to preclude him or her from rendering an impartial verdict … .

… It bears noting that the juror did not personally represent Powell’s parents, and that the relationship shared by her firm and Powell’s family was purely of a professional nature. Nonetheless, the law firm owed Powell’s family a clear and paramount duty to represent their interests. As the juror recognized and stated in response to the court’s inquiry, the conflicts that arise therefrom — under the particular circumstances presented here — are imputed to her by law … . Further, the effect of the juror’s involvement cannot be said to be remote, as the verdict reached by this jury would inevitably affect the custody proceedings; indeed, by direct application of statutory law, a guilty verdict in this criminal action necessarily precluded an award of custody or visitation to defendant in that matter … .

As a matter of well-established law, a juror’s assurances of impartiality are inadequate to cure an implied bias … . People v Powell, 2017 NY Slip Op 06104, Third Dept 8-10-17

CRIMINAL LAW (JURORS, IMPLIED BIAS, FOR CAUSE CHALLENGE TO A SWORN JUROR, AND ATTORNEY,  WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE TO A SWORN JUROR , AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))/ATTORNEYS (IMPLIED BIAS, CRIMINAL LAW, JURORS, FOR CAUSE CHALLENGE TO A SWORN JUROR, AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))/IMPLIED BIAS (ATTORNEYS, CRIMINAL LAW, JURORS, FOR CAUSE CHALLENGE TO A SWORN JUROR, AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))

MASSACHUSETTS ATTORNEYS’ REQUEST FOR A WAIVER OF THE JUDICIARY LAW REQUIREMENT THAT THEY MAINTAIN A PHYSICAL OFFICE IN NEW YORK IN ORDER TO PRACTICE IN NEW YORK DENIED (THIRD DEPT).

The Third Department denied the applications of two Massachusetts attorneys (Fee and Lawless) for a waiver of the Judiciary Law requirement that they maintain a physical office in New York in order to practice in New York. The Third Department, following the 2nd Department and disagreeing with the 1st Department, determined the legal work performed by the attorneys to date was not null and void:

Upon our review of Judiciary Law § 470, we find that it unambiguously provides, without exception, that a prerequisite for a nonresident attorney to practice law in this state is that he or she maintain a physical law office here. In our view, Fee’s and Lawless’ requests for a waiver of the clear mandate of Judiciary Law § 470 “finds no support in the wording of the provision and would require us to take the impermissible step of rewriting the statute” … . In addition to holding that no statutory authority exists for granting the waivers, we also find that creating an avenue for nonresident attorneys to obtain a waiver of the law office requirement would amount to the type of rulemaking reserved for the Ct. of Appeals (see generally Judiciary Law § 53). Accordingly, Fee’s and Lawless’ applications are denied.

Finally, we reject plaintiff’s contention that all of the work performed by Fee and Lawless in this action should be declared void from the beginning. In reaching this conclusion, we adopt the 2nd Department’s reasoning in Elm Mgt. Corp. v Sprung (33 AD3d 753 [2006]) that “the fact that a party has been represented by a person who was not authorized or admitted to practice law under the Judiciary Law . . . does not create a ‘nullity’ or render all prior proceedings void per se” … , and we note our disagreement with the 1st Department’s cases holding to the contrary … . Stegemann v Rensselaer County Sheriff’s Off., 2017 NY Slip Op 06114, Third Dept 8-10-17

ATTORNEYS (OUT-OF-STATE ATTORNEYS, MASSACHUSETTS’ ATTORNEYS’ REQUEST FOR A WAIVER OF THE JUDICIARY LAW REQUIREMENT THAT THEY MAINTAIN A PHYSICAL OFFICE IN NEW YORK IN ORDER TO PRACTICE IN NEW YORK DENIED (THIRD DEPT))/JUDICIARY LAW (OUT-OF-STATE ATTORNEYS, MASSACHUSETTS’ ATTORNEYS’ REQUEST FOR A WAIVER OF THE JUDICIARY LAW REQUIREMENT THAT THEY MAINTAIN A PHYSICAL OFFICE IN NEW YORK IN ORDER TO PRACTICE IN NEW YORK DENIED (THIRD DEPT))

SUBSTANTIAL EVIDENCE SUPPORTED THE DETERMINATION THE UNWITNESSED ACCIDENT OCCURRED WHILE DECEDENT WAS PERFORMING WORK-RELATED DUTIES (THIRD DEPT).

The Third Department determined the deceased worker’s (claimant’s husband’s) statement to his wife indicating he fell from a ladder while doing his work on a subway car, coupled with a supervisor’s testimony decedent left work early holding his stomach, constituted substantial evidence supporting the claim for death benefits. Although the accident was not witnessed, and no report of the incident was made, the statutory presumption that the accident was work-related was not applicable:

Workers’ Compensation Law § 21 (1) provides a statutory presumption that “an unwitnessed accident which occurred ‘within the time and place limits’ of employment arose out of that employment” … . This presumption, however, “cannot be used to establish that an accident occurred” …  and “does not wholly relieve [a claimant] of the burden of demonstrating that the accident occurred in the course of, and arose out of, [his or] her employment” … . Significantly, whether a claimant’s injury resulted from an accident that arose out of and in the course of his or her employment is a factual issue for the Board to resolve, and its determination in this regard will not be disturbed if supported by substantial evidence … .

Although the Board applied the presumption set forth in Workers’ Compensation Law § 21 (1), we conclude that it is inapplicable here given that the issue in dispute is whether decedent was performing his duties at work when he sustained the injuries that led to his death, which is dispositive of whether the injuries arose out of and in the course of his employment. …

Decedent’s statement to claimant is the most direct evidence that he sustained his fatal injuries while performing his duties at work. Pursuant to Workers’ Compensation Law § 118, “[d]eclarations of a deceased employee concerning the accident shall be received in evidence and shall, if corroborated by the circumstances or other evidence, be sufficient to establish the accident and the injury.” Under the circumstances presented here, we find that claimant’s testimony, together with that of the supervisor who witnessed decedent holding his stomach, provided sufficient corroboration of decedent’s statement … . Matter of Silvestri v New York City Tr. Auth., 2017 NY Slip Op 06123, Third Dept 8-9-17

 

WORKERS’ COMPENSATION LAW (DEATH BENEFITS, UNWITNESSED ACCIDENT, SUBSTANTIAL EVIDENCE SUPPORTED THE DETERMINATION THE UNWITNESSED ACCIDENT OCCURRED WHILE DECEDENT WAS PERFORMING  WORK-RELATED DUTIES (THIRD DEPT))/DEATH BENEFITS (WORKERS’ COMPENSATION LAW, UNWITNESSED ACCIDENT, SUBSTANTIAL EVIDENCE SUPPORTED THE DETERMINATION THE UNWITNESSED ACCIDENT OCCURRED WHILE DECEDENT WAS PERFORMING  WORK-RELATED DUTIES (THIRD DEPT))

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ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT).

The Third Department determined Supreme Court properly dissolved a closely-held corporation, finding that the respondent shareholders had “breached their fiduciary duties owed to petitioners by engaging in oppressive conduct aimed at ‘freez[ing]’ petitioners out of the corporation, as well as looting, wasting and/or diverting corporate assets for noncorporate purposes.” The decision is detailed and fact-specific. The court noted that the shares of two of the petitioners were beneficial shares in that they were held in trust by their father, who was also a petitioner. Although the children did not have standing to bring an action to dissolve the corporation because the holders of beneficial shares cannot vote, their father, as trustee, could vote, which conferred standing. The court further noted that an action to dissolve a corporation based on a breach of a fiduciary duty is equitable in nature and therefore the six-year statute of limitations applies. The action was timely because the first overt repudiation of a fiduciary duty by the respondents occurred within six years of the action:

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Here, the gravamen of the petition is that respondents, as the majority shareholders, breached their fiduciary duties owed to petitioners, as the minority shareholders. Although the petition alleges fraudulent acts in the form of looting, the allegation of fraud is not essential to the breach of fiduciary duty claim. In light of this, and the fact that the remedy of a judicial dissolution is equitable in nature, we find that “the six-year limitations period of CPLR 213 (1) applies” … , and it does not commence “until there has been an open repudiation by the fiduciary or the relationship has otherwise been clearly terminated”… . In our view, respondents’ attempt in 2009 to force petitioners to sell their shares is the earliest point at which respondents can be said to have openly repudiated the fiduciary relationship. Given that this proceeding was commenced within six years of the 2009 force-out attempt, we agree with Supreme Court that this proceeding is not time-barred. * * *

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Business Corporation Law § 1104-a permits a court to dissolve a closely-held corporation where, as is relevant here, those in control of the corporation have engaged in “oppressive actions toward the complaining shareholders” or have “looted, wasted, or diverted” corporate assets for noncorporate purposes (Business Corporation Law § 1104-a [a] [1], [2] …). “Although the term ‘oppressive actions’ is not statutorily defined, the Court of Appeals has held that ‘oppression should be deemed to arise . . . when the majority conduct substantially defeats expectations that, objectively viewed, were both reasonable under the circumstances and were central to the petitioner[s’] decision to join the venture'”… . Contrary to respondents’ contention, this standard is equally applicable to passive shareholders, such as petitioners, inasmuch as the standard is not focused on the complaining shareholders’ level of involvement with the corporation but, rather, their reasonable expectations and whether those expectations were defeated … . Matter of Twin Bay Vil., Inc. v Kasian, 2017 NY Slip Op 06024, Third Dept 8-3-17

 

CORPORATION LAW (DISSOLUTION, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))/DISSOLUTION (CORPORATION LAW, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))/FIDUCIARY DUTY (CORPORATION LAW, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))/CLOSELY HELD CORPORATIONS (DISSOLUTION, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))/STATUTE OF LIMITATIONS (DISSOLUTION OF CORPORATIONS, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))

ATTORNEY’S INACTION NOT IMPUTED TO THE CLIENT, DEFAULT ORDER AND JUDGMENT PROPERLY VACATED (THIRD DEPT).

The Third Department determined Supreme Court properly vacated the default order and judgment which were issued because of plaintiff’s attorney’s failure to meet discovery deadlines and attend scheduled conferences. Plaintiff, upon learning of the default, promptly hired new counsel and moved to vacate the default order and judgment. The Third Department noted that an attorney’s misconduct is not necessarily to be imputed to the represented party:

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“A motion to vacate a prior judgment or order is addressed to the court’s sound discretion, subject to reversal only where there has been a clear abuse of that discretion”… . Further, “[c]ourts are not limited to vacating a judgment pursuant to the enumerated grounds set forth in CPLR 5015 . . ., as they retain inherent discretionary power to vacate their own judgments for sufficient reason and in the interests of substantial justice”… .

Here, even applying the arguably more exacting standard set forth in CPLR 5015 (a) (1), we do not find that Supreme Court abused its discretion in granting [plaintiff’s] motion. While there indeed may be instances where counsel’s inaction or dilatory conduct may be imputed to the client … , a review of [plaintiff’s] affidavit — together with the supporting documentation annexed thereto — reveals that she never intended to abandon either the pursuit of action No. 1 or the defense of action No. 2 … but, rather, reasonably believed that [her attorney] was actively pursuing and properly defending [plaintiff’s] interests in the context thereof … . Inwald Enters., LLC v Aloha Energy, 2017 NY Slip Op 06031, Third Dept 8-3-17

 

CIVIL PROCEDURE (DEFAULT, ATTORNEY’S INACTION NOT IMPUTED TO THE CLIENT, DEFAULT ORDER AND JUDGMENT PROPERLY VACATED (THIRD DEPT))/ATTORNEYS (DEFAULT,  ATTORNEY’S INACTION NOT IMPUTED TO THE CLIENT, DEFAULT ORDER AND JUDGMENT PROPERLY VACATED (THIRD DEPT))

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)

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