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PLAINTIFF’S USE OF AN AREA AS A WALKWAY WAS NOT FORESEEABLE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED 3RD DEPT.

The Third Department, affirming the grant of defendant property owner’s motion for summary judgment in this slip and fall case, determined the area where plaintiff tripped on a piece of pipe was not demonstrated to be an area used as a walkway. Therefore plaintiff’s use of the area as a walkway was not foreseeable:

 “A landowner has a duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition”… . To that end, “the scope of a landowner’s duty is measured in terms of foreseeability” …  Because “[t]he risk reasonably to be perceived defines the duty to be obeyed”… , the issue distills to whether it was foreseeable that plaintiff, despite being provided with established and alternative avenues of ingress and egress from defendant’s firehouse, would instead exit the rear of the structure at night and traverse a sloped, unlit strip of land — located between the firehouse and a row of trees/shrubbery — in order to reach the front parking lot of the firehouse and retrieve his vehicle. Upon reviewing the record as a whole, we are satisfied that defendant met its burden of establishing, as a matter of law, that plaintiff’s means of egress was not reasonably foreseeable and, further, that plaintiff failed to raise a triable issue of fact on this point. Kirby v Summitville Fire Dist., 2017 NY Slip Op 05652, 3rd Dept 7-13-17

NEGLIGENCE (FORESEEABILITY, PLAINTIFF’S USE OF AN AREA AS A WALKWAY WAS NOT FORESEEABLE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED 3RD DEPT)/SLIP AND FALL (FORESEEABILITY, PLAINTIFF’S USE OF AN AREA AS A WALKWAY WAS NOT FORESEEABLE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED 3RD DEPT)/FORESEEABILITY (SLIP AND FALL, PLAINTIFF’S USE OF AN AREA AS A WALKWAY WAS NOT FORESEEABLE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED 3RD DEPT)

QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT.

The Third Department, reversing Supreme Court, determined plaintiff had raised a question of fact about defendant’s (North’s) comparative fault in this intersection collision case, despite plaintiff’s pleading guilty to failure to yield the right of way. Therefore North’s motion for summary judgment should not have been granted:

In light of the conflicting accounts as to how the accident occurred, we conclude that Supreme Court erred in granting summary judgment in favor of North … . Furthermore, although plaintiff failed to yield the right-of-way and was convicted of violating Vehicle and Traffic Law § 1141, such finding “does not preclude the existence of a fact issue as to [North’s] comparative fault” …. Given plaintiff’s testimony regarding North’s distance from the subject intersection, the absence of other cars in front of North as she approached plaintiff and the evidence that North was “coming fast,” a question of fact exists regarding North’s comparative fault and whether she could have used reasonable care to avoid the collision … . Accordingly, viewing the evidence in a light most favorable to plaintiff, summary judgment in favor of North on the issue of liability should have been denied. London v North, 2017 NY Slip Op 05636, 3rd Dept 7-13-17

NEGLIGENCE (TRAFFIC ACCIDENTS, QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT)/TRAFFIC ACCIDENTS (QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT)/COMPARATIVE FAULT  (TRAFFIC ACCIDENTS, QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT)/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT)

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COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Devine, over a two-justice dissent, determined that counsel for a civilly committed sex offender (D.J.) was not entitled to attend meetings about the appropriate treatment of the sex offender:

Having been adjudicated “a dangerous sex offender requiring confinement” (Mental Hygiene Law § 10.10 [a]), petitioner D.J. was committed to the St. Lawrence Psychiatric Center and enrolled in the Sex Offender Treatment Program. Respondent Commissioner of Mental Health is required to “develop and implement a treatment plan” for D.J. and others in his position (Mental Hygiene Law § 10.10 [b]; see Mental Hygiene Law § 29.13 [a]) and, “[i]n causing such a plan to be prepared or . . . revised,” the patient and specified individuals must be “interviewed and provided an opportunity to actively participate” (Mental Hygiene Law § 29.13 [b]).

In 2016, D.J. asked that his counsel in the Mental Hygiene Law article 10 proceeding, assigned through petitioner Mental Hygiene Legal Service (hereinafter MHLS), accompany him to treatment planning meetings. The requests of D.J. and, later, his counsel were denied, with the chief of service for the Sex Offender Treatment Program, Bryan Shea, explaining that counsel was not entitled to attend treatment planning meetings as a matter of law and that counsel’s presence would be therapeutically counterproductive. Shea left open the possibility that a MHLS attorney could participate in a patient’s treatment planning, but explained that such would be contingent upon the attorney having a “genuine[] interest[] in the care of the patient” and guaranteeing “that [he or she was] no longer acting in the role of legal representative” and would keep “any information [received] during treatment planning . . . confidential” from MHLS. * * *

Counsel from MHLS … comes from an agency whose “statutory mission is to provide legal assistance to the residents of certain facilities” such as D.J., and legal advocacy may easily conflict with crafting an appropriate treatment plan if the medically advisable treatment conflicts with the client’s legal goals … . Matter of Mental Hygiene Legal Serv. v Sullivan, 2017 NY Slip Op 05656, 3rd Dept 7-13-17

MENTAL HYGIENE LAW (COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT)/ATTORNEYS (MENTAL HYGIENE LAW, COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT)/SEX OFFENDERS (MENTAL HYGIENE LAW, ATTORNEYS, COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT)

PRIME CONTRACTOR WAS A STATUTORY AGENT OF THE OWNER, LABOR LAW 200 AND 241(6) CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF TRIPPED OVER EXTENSION CORDS ON THE FLOOR 3RD DEPT.

The Third Department determined defendant prime contractor was a statutory agent of the owner such that liability under the Labor Law could be imposed. Plaintiff (Mitchell) tripped over extension cords on the floor. Labor Law 200 and 241(6) causes of action survived summary judgment:

Labor Law § 200 “codifies the common-law duty of an owner or employer to provide employees with a safe place to work” … . Liability, however, will only be imposed upon a showing that the party charged with the duty to provide a safe work place had “the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition”… . In a case, such as this, where the injury is caused by a dangerous condition at the work site, the prerequisite of control necessary to impose liability requires “control of the place of injury and actual or constructive notice of the unsafe condition”… . …

A statutory agency relationship is created where the owner or contractor delegates the work giving rise to the Labor Law § 241 (6) duties to a third party, at which point “that third party then obtains the concomitant authority to supervise and control that work”… . While prime contractors are immune from liability pursuant to Labor Law § 241 (6) where they lack contractual privity with the injured plaintiff’s employer and have “no authority to supervise or control the work being performed at the time of the injury” … ,the record establishes that defendant was in contractual privity with TBS [plaintiff’s employer] and that the owner had delegated all mechanical work to defendant by hiring it as the sole mechanical contractor for the project, thereby demonstrating the owner’s intent to delegate supervisory control over TBS’s work to defendant as its statutory agent … . Mitchell v T. McElligott, Inc., 2017 NY Slip Op 05653, 3rd Dept 7-13-17

LABOR LAW-CONSTRUCTION LAW (PRIME CONTRACTOR WAS A STATUTORY AGENT OF THE OWNER, LABOR LAW 200 AND 241(6) CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF TRIPPED OVER EXTENSION CORDS ON THE FLOOR 3RD DEPT)

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QUESTION OF FACT WHETHER PLAINTIFF WAS A RESIDENT OF THE HOME WHICH WAS DAMAGED BY FIRE WITHIN THE MEANING OF THE POLICY LANGUAGE, DESPITE PLAINTIFF’S ADMISSION SHE PRIMARILY RESIDED IN ANOTHER HOME TEN MINUTES AWAY 3RD DEPT.

The Third Department, reversing Supreme Court, determined there were questions of fact whether plaintiff was a resident of the home where the fire occurred within the meaning of the policy language. Although plaintiff had moved to a house 10 minutes away and plaintiff’s daughter lived in the damaged house, there was evidence that plaintiff never completely moved and frequented the house to care for her grandchildren:

The policy at issue defines the “insured location” as the “resident premises.” Relevant here, the term “resident premises” is defined as “[t]he one family dwelling where [the insured] reside[s].” As the party seeking to disclaim coverage, defendant bore the burden of “establishing that the exclusions or exemptions apply . . . and that they are subject to no other reasonable interpretation”… . If a term is ambiguous, it should be construed against the insurer … . * * *

In our view, it is “arguable that the reasonable expectation of the average insured” is that plaintiff’s occupancy of the premises, coupled with her claim that she never fully left the premises, was enough to permit coverage pursuant to the terms of the policy … . We do not agree that plaintiff’s evidence constituted a feigned attempt to create a question of fact … . We are mindful that she signed a statement prepared by the adjuster on the morning of the fire that destroyed the home she had built with her husband for their family. That statement confirmed that she resided [in another home], but did not deny that she also resided at the premises for purposes of insurance coverage. Craft v New York Cent. Mut. Fire Ins. Co., 2017 NY Slip Op 05655, 3rd Dept 7-13-17

INSURANCE LAW (QUESTION OF FACT WHETHER PLAINTIFF WAS A RESIDENT OF THE HOME WHICH WAS DAMAGED BY FIRE WITHIN THE MEANING OF THE POLICY LANGUAGE, DESPITE PLAINTIFF’S ADMISSION SHE PRIMARILY RESIDED IN ANOTHER HOME TEN MINUTES AWAY 3RD DEPT)/CONTRACT LAW (INSURANCE POLICY, QUESTION OF FACT WHETHER PLAINTIFF WAS A RESIDENT OF THE HOME WHICH WAS DAMAGED BY FIRE WITHIN THE MEANING OF THE POLICY LANGUAGE, DESPITE PLAINTIFF’S ADMISSION SHE PRIMARILY RESIDED IN ANOTHER HOME TEN MINUTES AWAY 3RD DEPT)

SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT.

The Third Department, reversing Supreme Court, reinstated the petitioner as a student at Skidmore College and expunged from his school record any reference to the sexual misconduct allegations and findings which led to his expulsion. The court noted that, as a private college, the due process requirements imposed upon a state school were not applicable. However, the Third Department concluded the school’s failure to follow its own procedures severely prejudiced petitioner. The decision is too detailed to fully summarize here. The following quotation illustrates the nature of the court’s criticism of the way the college handled this matter:

Petitioner … contends that respondent failed to follow its own procedures in implementing the disciplinary process. Where, as here, no hearing is required by law, a court reviewing a private university’s disciplinary determination must determine “whether the university substantially adhered to its own published rules and guidelines for disciplinary proceedings so as to ascertain whether its actions were arbitrary or capricious” … . The determination must be annulled only where there has been a lack of substantial compliance, or where the determination lacks a rational basis … . Perfect adherence to every procedural requirement is not necessary to demonstrate substantial compliance … . Nevertheless, we find that there were multiple failures that here, taken together, demonstrated a lack of substantial compliance.

Respondent’s first such failure occurred at the outset of the investigation. Section XI of respondent’s 2015-2016 policy provides that an accused student must be given notice through a “[f]ormal [c]omplaint,” which must “includ[e] the date, time, location and factual allegations concerning a violation” … . The complaint provided to petitioner stated the date, time and location of the incident, but included no factual allegations identifying the specific actions that were alleged to be policy violations. Instead, it merely provided the text of the two policy provisions that petitioner was accused of violating — and nothing more. Thus, the complaint provided petitioner with no notice of the specific conduct that formed the basis of the alleged violations. Contrary to respondent’s argument, this failure was not remedied by the fact that the complaint recited the text of the provisions. Both provisions include such a broad range of actions that it would be impossible for an accused student to discern what particular conduct he or she was alleged to have committed. Matter of Doe v Skidmore Coll., 2017 NY Slip Op 05654, 3rd Dept 7-13-17

EDUCATION-SCHOOL LAW (SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT)/COLLEGES AND UNIVERSITIES (SEXUAL MISCONDUCT INVESTIGATIONS, SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT)/SEXUAL MISCONDUCT INVESTIGATIONS (COLLEGES AND UNIVERSITIES, SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT)

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INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT.

The Third Department determined there was insufficient proof of defendant’s criminal possession of a weapon under an accessorial liability theory:

… [A]s for defendant’s convictions of criminal possession of a weapon in the second degree, the conclusion that defendant was an accessory to Anderson or Bost [co-defendants] in their unlawful possession of weapons is against the weight of the evidence … . There was no proof presented during the trial that defendant ever personally possessed one of the handguns or in any way encouraged or intentionally aided Anderson or Bost in their possession of the handguns … .. Accordingly, as “there was no evidence that . . . defendant solicited, requested, commanded, importuned, or intentionally aided another individual to possess the firearm” … , we reverse defendant’s convictions of counts 3 and 4 of the indictment for criminal possession of a weapon in the second degree and dismiss said counts. People v Spencer, 2017 NY Slip Op 05631, 3rd Dept 7-13-17

CRIMINAL LAW (INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT)/EVIDENCE (CRIMINAL LAW, INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT)

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COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT.

The Third Department, vacating defendant’s guilty plea in the interest of justice, determined the judge did not adequately ensure defendant was aware of the rights he was giving up:

Defendant … contends that his guilty plea to criminal sale of a controlled substance in the third degree and violating his probation was not knowing, voluntary and intelligent because County Court failed to inform him of the constitutional rights he was waiving by pleading guilty. Although this contention is unpreserved for our review, inasmuch as he failed to make an appropriate postallocution motion … , we find that the error warrants reversal of the judgment in the interest of justice … .

“While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights”… . During the plea allocution, County Court merely asked whether defendant understood “what the attorneys have told me about you waiving your rights and entering pleas of guilty to a felony, violation of probation and all of that stuff” and whether defendant had “[a]ny questions at all regarding you giving up your rights to a jury trial, your rights to presumption of innocence, your rights to a violation of probation hearing, anything like that.” County Court further failed to ascertain whether defendant had discussed with counsel the trial-related rights being waiving by a guilty plea or its constitutional consequences. Rather, County Court simply inquired whether defendant “[had] the time, and did you talk to [counsel] regarding this case, the disposition, and anything else that is important to you, with respect to these charges” … . Additionally, County Court did not advise defendant of his rights or the consequences regarding an admission to violating probation … , including that he understood that he was entitled to a hearing on the issue and that he was waiving that right … . “With no affirmative showing on the record that defendant understood and waived his constitutional rights when he entered the guilty plea, the plea was invalid and must be vacated” … . People v Aubain, 2017 NY Slip Op 05632, 3rd Dept 7-13-17

CRIMINAL LAW (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/APPEALS (INTEREST OF JUSTICE JURISDICTION, COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/GUILTY PLEA (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)

FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Aarons, determined, because of a change in the Civil Procedure Law and Rules (CPLR), the failure to include a return date in a notice of petition is no longer a jurisdictional defect and can be corrected if there is no prejudice:

CPLR 2001 was amended in 2007 to permit courts to disregard mistakes, omissions, defects or irregularities made at the commencement of a proceeding, which includes commencement by the filing of a petition… . Indeed, the purpose behind amending CPLR 2001 was “to allow courts to correct or disregard technical defects, occurring at the commencement of an action [or proceeding], that do not prejudice the opposing party” and “to fully foreclose dismissal of actions for technical, non-prejudicial defects”… . In view of the amendment of CPLR 2001, the rule articulated in our prior decisions — a notice of petition lacking a return date is jurisdictionally defective and, therefore, prohibits a court from exercising its authority under CPLR 2001 — is no longer tenable.

… [A] court may allow a petitioner to correct any mistake, omission, defect or irregularity in the filing process upon such terms as may be just … . CPLR 2001 also states that the court shall disregard any such mistake, omission, defect or irregularity if the right of a party is not substantially prejudiced. “[T]he primary purpose of a petition is to give notice to the respondent that the petitioner seeks a judgment against [a] respondent so that it may take such steps as may be advisable to defend the claim” … . A return date accomplishes this purpose by notifying the responding party when responsive papers must be served and when the petition will be heard … .

Here, the record reflects that respondents had sufficient notice of the petition. Indeed, respondents’ counsel conceded at oral argument before Supreme Court that they had “plenty of time to respond” and, on appeal, they do not contend that they suffered any prejudice. As such, the omission of a return date should have been disregarded as a mere technical infirmity … . Matter of Oneida Pub. Lib. Dist. v Town Bd. of The Town of Verona, 2017 NY Slip Op 05659, 3rd Dept 7-13-17

CIVIL PROCEDURE (FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT)/RETURN DATE (NOTICE OF PETITION, FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT)/NOTICE OF PETITION (RETURN DATE, FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT

EMPLOYER DID NOT DEMONSTRATE CLAIMANT’S PREEXISTING CONDITION HINDERED HER EMPLOYABILITY, THEREFORE EMPLOYER WAS NOT ENTITLED TO REIMBURSEMENT FROM THE SPECIAL DISABILITY FUND 3RD DEPT.

The Third Department determined claimant’s employer was not entitled to relief from the special disability fund. Claimant had work-related injuries. In order to recover from the fund, the employer was required to demonstrate the claimant: (1) had a preexisting disability (which affected her employability); and (2), the preexisting condition combined with the work-related injuries constituted a permanent disability greater than that caused by the work-related injuries alone:

“In order to be entitled to receive reimbursement from the Fund pursuant to Workers’ Compensation Law § 15 (8) (d), the employer must demonstrate that the claimant suffered from (1) a preexisting permanent impairment that hindered job potential, (2) a subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than would have resulted from the work-related injury alone”… . “The question with regard to the first requirement is not whether the preexisting condition is an obstacle or handicap to the claimant’s particular employment but, rather, whether it would be a hindrance to the claimant’s general employability” … .

We agree with the Board that the employer did not demonstrate that claimant’s preexisting asthma condition hindered, or was likely to hinder, her employability. The record reflects that, although claimant suffered from asthma since at least 1999, she was taking medication, including the use of an inhaler. The record contains no evidence that claimant was under any restrictions because of her asthma, that her asthma affected her ability to perform her job or that it hindered her employability. Notably, “preexisting conditions that are controlled by medication have been found, without more, not to constitute a hindrance to employability” … . Matter of Murphy v Newburgh Enlarged City Sch. Dist., 2017 NY Slip Op 05500, 3rd Dept 7-6-17

 

WORKERS’ COMPENSATION LAW (EMPLOYER DID NOT DEMONSTRATE CLAIMANT’S PREEXISTING CONDITION HINDERED HER EMPLOYABILITY, THEREFORE EMPLOYER WAS NOT ENTITLED TO REIMBURSEMENT FROM THE SPECIAL DISABILITY FUND 3RD DEPT)/SPECIAL DISABILITY FUND (WORKERS’ COMPENSATION LAW, EMPLOYER DID NOT DEMONSTRATE CLAIMANT’S PREEXISTING CONDITION HINDERED HER EMPLOYABILITY, THEREFORE EMPLOYER WAS NOT ENTITLED TO REIMBURSEMENT FROM THE SPECIAL DISABILITY FUND 3RD DEPT)

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