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THIRD DEPT, UNLIKE THE OTHER DEPARTMENTS, REQUIRES THE CPLR EXPERT-WITNESS NOTICE EVEN FOR A TREATING PHYSICIAN, PLAINTIFF WILL HAVE TO DECIDE IF THE DOCTOR WILL TESTIFY AS A FACT WITNESS, AN EXPERT WITNESS, OR BOTH, WITH THE CONSEQUENCES OF THE NOTICE FAILURE TO BE IMPOSED ACCORDINGLY.

The Third Department, over a two-justice concurrence, determined plaintiff in this slip and fall case was required to supply defendant with the expert-opinion notice required by the CPLR, even though the doctor to be deposed (Cicoria) was a treating physician (the other departments do not so require). The deposition was video-taped. The Third Department fashioned a sanction. The videotaped deposition my be used if the doctor acts as a fact witness. If the doctor is to act as an expert witness, the doctor must testify in person or submit to another deposition:

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Having concluded that plaintiffs failed to provide the required expert disclosure, we turn our attention to the appropriate remedy for such noncompliance. Plaintiffs’ counsel candidly conceded that he was unaware of this Court’s interpretation of CPLR 3101 (d) (1) (i) and the corresponding need to file an expert disclosure for a treating physician, and the record is otherwise devoid of any indication that counsel’s failure to file such disclosure was willful. Hence, we see no need to preclude plaintiffs from calling Cicoria to testify at trial. That said, defendant is correct in noting that the current procedural posture of this matter places defendant at something of a disadvantage in that defense counsel prepared for and cross-examined Cicoria as a fact witness and in the context of preserving such testimony for use at trial, which is appreciably different than deposing and cross-examining someone who has been denominated as an expert witness prior to trial. For that reason, simply permitting plaintiffs to file the required expert disclosure at this point will not suffice.

Plaintiffs need to decide whether they wish to utilize Cicoria as a fact witness or as an expert witness (or both). If plaintiffs wish to utilize Cicoria as a fact witness, they may either introduce his previously videotaped testimony at trial (see CPLR 3117 [a] [4]) — subject to defendant’s objections to the expert opinions expressed therein (see CPLR 3115 [a]) and/or a protective order relative thereto (see CPLR 3103 [a]) — or they may call Cicoria to testify in person at trial, in which case Cicoria’s prior recorded testimony may be used solely for impeachment purposes (see CPLR 3117 [a] [1]).  Plaintiffs cannot, however, as they now propose in their brief, have it both ways, i.e., they cannot utilize Cicoria’s recorded testimony as a fact witness and then call him live as an expert witness. Stated another way, Cicoria may testify only once. If plaintiffs desire to utilize Cicoria as an expert witness (or as both a fact witness and as an expert witness), they must — within 30 days of the date of this Court’s decision — tender an expert disclosure that satisfies all of the requirements of CPLR 3101 (d) (1) (i) and — within 60 days of the date of this Court’s decision — produce Cicoria (at their expense) for the purpose of being deposed as an expert. Schmitt v Oneonta City Sch. Dist., 2017 NY Slip Op 04527, 3rd Dept 6-8-17

 

CIVIL PROCEDURE (EXPERT WITNESS, NOTICE, THIRD DEPARTMENT, UNLIKE THE OTHER DEPARTMENT, REQUIRES THE CPLR EXPERT-WITNESS NOTICE EVEN FOR A TREATING PHYSICIAN, PLAINTIFF WILL HAVE TO DECIDE IF THE DOCTOR WILL TESTIFY AS A FACT WITNESS, AN EXPERT WITNESS, OR BOTH, WITH THE CONSEQUENCES OF THE NOTICE FAILURE TO BE IMPOSED ACCORDINGLY)/EXPERT WITNESS (CPLR NOTICE,  THIRD DEPARTMENT, UNLIKE THE OTHER DEPARTMENT, REQUIRES THE CPLR EXPERT-WITNESS NOTICE EVEN FOR A TREATING PHYSICIAN, PLAINTIFF WILL HAVE TO DECIDE IF THE DOCTOR WILL TESTIFY AS A FACT WITNESS, AN EXPERT WITNESS, OR BOTH, WITH THE CONSEQUENCES OF THE NOTICE FAILURE TO BE IMPOSED ACCORDINGLY)/TREATING PHYSICIAN (CIVIL PROCEDURE, EXPERT WITNESS NOTICE, THIRD DEPARTMENT, UNLIKE THE OTHER DEPARTMENT, REQUIRES THE CPLR EXPERT-WITNESS NOTICE EVEN FOR A TREATING PHYSICIAN, PLAINTIFF WILL HAVE TO DECIDE IF THE DOCTOR WILL TESTIFY AS A FACT WITNESS, AN EXPERT WITNESS, OR BOTH, WITH THE CONSEQUENCES OF THE NOTICE FAILURE TO BE IMPOSED ACCORDINGLY)/EVIDENCE (CIVIL PROCEDURE, EXPERT WITNESS, NOTICE, THIRD DEPARTMENT, UNLIKE THE OTHER DEPARTMENT, REQUIRES THE CPLR EXPERT-WITNESS NOTICE EVEN FOR A TREATING PHYSICIAN, PLAINTIFF WILL HAVE TO DECIDE IF THE DOCTOR WILL TESTIFY AS A FACT WITNESS, AN EXPERT WITNESS, OR BOTH, WITH THE CONSEQUENCES OF THE NOTICE FAILURE TO BE IMPOSED ACCORDINGLY)/NEGLIGENCE (CIVIL PROCEDURE, EXPERT NOTICE, TREATING PHYSICIAN, THIRD DEPARTMENT, UNLIKE THE OTHER DEPARTMENT, REQUIRES THE CPLR EXPERT-WITNESS NOTICE EVEN FOR A TREATING PHYSICIAN, PLAINTIFF WILL HAVE TO DECIDE IF THE DOCTOR WILL TESTIFY AS A FACT WITNESS, AN EXPERT WITNESS, OR BOTH, WITH THE CONSEQUENCES OF THE NOTICE FAILURE TO BE IMPOSED ACCORDINGLY)

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NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD.

The Third Department, in a full-fledged opinion by Justice Garry, determined a village nuisance law was facially unconstitutional and could not be enforced against the owner of several properties which rented out single rooms. Apparently, criminal activity, including domestic abuse, at these properties was a concern for the village. The local village nuisance law assigned points for certain conditions or incidents at the properties. Points were assessed even when police were called to the properties by crime victims. Once a certain number of points are accumulated, the village can take certain enumerated actions against the property owner, including ordering the eviction of tenants. The reach of the nuisance statute therefore encroached on the tenant’s first amendment right to report crimes to the police (to petition the government for redress of grievances):

The Nuisance Law’s provisions pertaining to remedies demonstrate that the loss of a tenant’s home may result directly from the designation of a property as a public nuisance. As previously noted, the Nuisance Law expressly permits owners to include the eviction of tenants in the required plans to abate public nuisances — again, with no exception for tenants who may have caused points to be assessed against a property by summoning police because they were victimized by criminal activity, or who otherwise exercised their constitutionally-protected right to request police assistance. Further, as the relief permitted by article II of the Nuisance Law includes the property’s temporary closure, all tenants and occupants of a property where illegal activity occurs — not just those who actually commit a violation — are at risk of losing their homes upon a declaration that the property is a public nuisance. The plain language of the law therefore tends to discourage tenants from seeking help from police. As the amici curiae assert, this discouragement may have a particularly severe impact upon victims of domestic violence … . If a tenant who has an order of protection against an individual because of prior domestic violence calls police for assistance in enforcing the order, points may be assessed against the property. Further, if a tenant summons police because he or she has been the victim of a crime of domestic violence involving assault or one of the other offenses worth 12 points, the Nuisance Law automatically deems the property to be a public nuisance, placing the tenant at risk of losing his or her home solely because of this victimization. Board of Trustees of The Vil. of Groton v Pirro, 2017 NY Slip Op 04938, 3rd Dept 6-5-17

MUNICIPAL LAW (NUISANCE LAW, LANDLORD-TENANT, CONSTITUTIONAL LAW, NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)/CONSTITUTIONAL LAW (MUNICIPAL LAW, LANDLORD-TENANT, NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)/LANDLORD-TENANT (MUNICIPAL LAW, CONSTITUTIONAL LAW, NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)/NUISANCE LAW (MUNICIPAL LAW, CONSTITUTIONAL LAW,  NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)

DIFFERENT PURPOSES OF THE TERMS “LOSS OF WAGE-EARNING CAPACITY” AND “WAGE-EARNING CAPACITY” EXPLAINED.

The Third Department again explained the different purposes for “loss of wage-earning capacity” and “wage earning capacity” in the benefits determination:

Claimant contends that, because he had returned to work at full wages, the Board erred in finding that he had a 10% loss of wage-earning capacity. We disagree. The loss of wage-earning capacity “is used at the time of classification to set the maximum number of weeks over which a claimant with a permanent partial disability is entitled to receive benefits”… . In comparison, wage-earning capacity is used to determine a claimant’s weekly rate of compensation (see Workers’ Compensation Law § 15 [5-a]). As this Court has recently explained, wage-earning capacity and loss of wage-earning capacity “are to be used for separate and distinct purposes” … . While wage-earning capacity “can fluctuate based on a claimant’s employment status,” the loss of wage-earning capacity remains fixed after the time of classification… . In other words, “the determination of a claimant’s loss of wage-earning capacity is designed to establish duration of benefits, a finding which is unrelated to the traditional purpose of Workers’ Compensation Law § 15 (5-a), which is to calculate the weekly benefit rate” … . Accordingly, despite the fact that claimant was working at full wages, the Board was entitled to establish the loss of wage-earning capacity, which sets a fixed durational limit on potential benefits in the event that claimant incurs a subsequent reduction of wages as the result of his work-related injuries … . Matter of Perez v Bronx Lebanon Hosp. Ctr., 2017 NY Slip Op 04344, 3rd Dept 6-1-17

WORKERS’ COMPENSATION LAW (DIFFERENT PURPOSES OF THE TERMS LOSS OF WAGE-EARNING CAPACITY AND WAGE-EARNING CAPACITY EXPLAINED)/WAGE EARNING CAPACITY (WORKERS’ COMPENSATION LAW, DIFFERENT PURPOSES OF THE TERMS LOSS OF WAGE-EARNING CAPACITY AND WAGE-EARNING CAPACITY EXPLAINED)/LOSS OF WAGE-EARNING CAPACITY (WORKERS’ COMPENSATION LAW, DIFFERENT PURPOSES OF THE TERMS LOSS OF WAGE-EARNING CAPACITY AND WAGE-EARNING CAPACITY EXPLAINED)

CLAIMANT DID NOT REMOVE HIMSELF FROM EXPOSURE TO HARMFUL NOISE FOR THREE MONTHS PRIOR TO APPLYING FOR WORKERS’ COMPENSATION FOR HEARING LOSS, CLAIM PROPERLY DENIED.

The Third Department determined claimant was properly denied benefits for hearing loss. To qualify, claimant was required to show he used effective ear protection for three months. Claimant used the same type of ear protection he was using when he experienced the hearing loss:

Claimant contends that he has been removed from the workplace noise for the requisite time period. Claimant testified that he was exposed to workplace noise beginning in 1977 and that he has always worn the earplugs or headphones provided by the employer for protection from the noise. The statute requires, however, as relevant here, that claimant be removed from exposure to the harmful noise by “use of effective ear protection devices” (Workers’ Compensation Law § 49-bb). In light of claimant’s continued use of, for the three months in question, the same method of hearing protection against the workplace noise that he used while contracting occupational hearing loss, we conclude that substantial evidence supports the Board’s decision that claimant has not established, for the purpose of an accurate appraisal of his hearing loss, that he has been removed from the noise for the requisite time period … . We note that the statute requires claimant to use effective protection, but that it would be at the employer’s expense (see Workers’ Compensation Law § 49-bb). It does not appear, however, that claimant has availed himself of such protection, other than continuing to use the same devices he was wearing at the time that he contracted the hearing loss. Matter of Durkot v Newsday, 2017 NY Slip Op 04341, 3rd Dept 6-1-17

WORKERS’ COMPENSATION (CLAIMANT DID NOT REMOVE HIMSELF FROM EXPOSURE TO HARMFUL NOISE FOR THREE MONTHS PRIOR TO APPLYING FOR WORKERS’ COMPENSATION FOR HEARING LOSS, CLAIM PROPERLY DENIED)/HEARING LOSS (WORKERS’ COMPENSATION, CLAIMANT DID NOT REMOVE HIMSELF FROM EXPOSURE TO HARMFUL NOISE FOR THREE MONTHS PRIOR TO APPLYING FOR WORKERS’ COMPENSATION FOR HEARING LOSS, CLAIM PROPERLY DENIED)

EXOTIC DANCER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS.

The Third Department determined claimant, an exotic dancer, was an employee of a club (Jacaranda) entitled to unemployment insurance benefits:

Here, the record establishes that, before claimant was permitted to work in the club, she was required to attend an audition for Jacaranda to determine whether to hire her. While claimant provided the club with the dates on which she was available to perform, her proposed work schedule had to be approved by the club’s managers. Claimant testified that, once her schedule was set, she was required to report to work by a particular time. Claimant was also required to sign in when she arrived at the club, and, according to claimant, she was expected to notify the club’s managers when she could not come to work for her scheduled hours and was required to make up for any absences. Claimant testified that, while she provided her own costumes, each costume had to meet certain standards set by the club and be approved by the club’s managers. Claimant was required to use the stage, private dance rooms, sound equipment and music provided by the club. Furthermore, claimant testified that the club charged patrons an admission fee, set the prices that she could charge patrons for private dances and retained a percentage of those private bookings. Claimant also testified that, besides performing dances, she was required to sell alcohol to patrons and attend weekly meetings conducted by the club’s owners or managers. Lastly, claimant testified that she was prohibited from working for Jacaranda’s competitors while performing services for Jacaranda. Matter of Commissiong (Jacaranda Club LLC–Commissioner of Labor), 2017 NY Slip Op 04337, 3rd Dept 6-1-17

UNEMPLOYMENT INSURANCE (EXOTIC DANCER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS)/EXOTIC DANCERS (UNEMPLOYMENT INSURANCE, EXOTIC DANCER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS)

ALTHOUGH CLAIMANTS WERE TEMPORARY EMPLOYEES HIRED BECAUSE OF HURRICANE DAMAGE, THE EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE DID NOT APPLY, CLAIMANTS ENTITLED TO BENEFITS.

The Third Department determined claimants were entitled to unemployment insurance benefits. Claimants were hired on a temporary basis to address damage caused by a hurricane.  The employer argued claimants were hired to address an emergency and therefore were not entitled to coverage. In rejecting the emergency exception, the court noted claimants were hired a year after the hurricane and performed routine maintenance:

For purposes of determining a claimant’s eligibility for unemployment insurance benefits, Labor Law § 565 (2) (d) provides that “the term ’employment’ does not include services rendered for a governmental entity by . . . a person serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency” … . “Whether this exclusion applies presents a mixed question of law and fact, and the Board’s determination in this regard will be upheld if it has a rational basis” … . * * *

The record evidence reflects that claimants, who were hired on a temporary basis using federal grant money received as a result of the damage caused by the hurricane, performed routine maintenance duties, including cutting grass, raking leaves, shoveling snow, driving trucks and cleaning municipal parking lots. In determining that the services performed by claimants were related to the hurricane clean-up efforts but “not performed in case of an emergency,” the Board noted that claimants were hired almost a year after the hurricane and at a time when “there was no need for immediate action.” The Board also relied upon a Program Letter issued by the United States Department of Labor (hereinafter DOL) that provided the DOL’s interpretation of the exclusion from unemployment insurance coverage of governmental services performed in case of emergency … . That Program Letter provides that “the urgent distress caused by the emergency . . . must directly cause the need for the services to be performed” and that, if the services performed occur “after the need for immediate action has passed, they are not necessarily performed in case of emergency”… . Given the Board’s reliance upon the DOL’s Program Letter, as well as the non-exigent, routine nature of the services provided by claimants, who were hired by the employer nearly a year after the hurricane, there is a rational basis for the Board’s decision that the exclusion did not apply and that the services performed by claimants “were in covered employment.” … . Matter of Clemons (Village of Freeport–Commissioner of Labor), 2017 NY Slip Op 04333, 3rd Dept 6-1-17

 

UNEMPLOYMENT INSURANCE (ALTHOUGH CLAIMANTS WERE TEMPORARY EMPLOYEES HIRED BECAUSE OF HURRICANE DAMAGE, THE EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE DID NOT APPLY, CLAIMANTS ENTITLED TO BENEFITS)/EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE (ALTHOUGH CLAIMANTS WERE TEMPORARY EMPLOYEES HIRED BECAUSE OF HURRICANE DAMAGE, THE EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE DID NOT APPLY, CLAIMANTS ENTITLED TO BENEFITS)/LABOR LAW (EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE, ALTHOUGH CLAIMANTS WERE TEMPORARY EMPLOYEES HIRED BECAUSE OF HURRICANE DAMAGE, THE EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE DID NOT APPLY, CLAIMANTS ENTITLED TO BENEFITS)

CLAIMANT PROPERLY AWARDED 100% SLU FOR FOUR AMPUTATED FINGERS AND AN ADDITIONAL 100% SLU FOR THE REATTACHED NONFUNCTIONAL THUMB.

The Third Department, over a dissent, determined claimant was properly awarded 100% schedule loss of use (SLU) for the amputation of four fingers on his right hand and an additional 100% SLU for the reattached non-functional thumb on his right hand:

… [T]he Board proportioned the loss of four fingers to the total loss of the hand as required by Workers’ Compensation Law § 15 (3) (q), and then separately evaluated the distinct and additional injury to the thumb, to which it awarded a 100% SLU. We defer to the Board’s determination to credit the sole proffered medical opinion of Paterson, and the Board’s conclusion based thereon that claimant sustained a separate and distinct injury to his thumb, which therefore warranted separate SLU determinations and awards for the thumb and the fingers … . Such result is supported by the guidelines, which contemplate awards greater than 100% for the loss of a hand (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 17, figure 2.8 [2012]) and provide that the loss of four fingers, excluding the thumb, constitutes a 100% SLU of the hand … . The guidelines, which address impairments to the thumb separately from fingers (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 12-14 [2012]), provide that “[t]he thumb deserves special consideration; it is the highest valued digit and the most important” (New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 17 [2012]). Under these circumstances, the Board’s determination to assign a separate SLU to the loss of the thumb and to make a distinct award is supported by the case law and the guidelines, and is not contrary to the statutory language. Therefore, we uphold the Board’s determination and affirm the amended decision. Matter of Deck v Dorr, 2017 NY Slip Op 04186, 3rd Dept 5-25-17

WORKERS’ COMPENSATION LAW (CLAIMANT PROPERLY AWARDED 100% SLU FOR FOUR AMPUTATED FINGERS AND AN ADDITIONAL 100% SLU FOR THE REATTACHED NONFUNCTIONAL THUMB)/SCHEDULE LOSS OF USE (SLU) (WORKERS’ COMPENSATION LAW, CLAIMANT PROPERLY AWARDED 100% SLU FOR FOUR AMPUTATED FINGERS AND AN ADDITIONAL 100% SLU FOR THE REATTACHED NONFUNCTIONAL THUMB)/HAND (WORKERS’ COMPENSATION LAW, CLAIMANT PROPERLY AWARDED 100% SLU FOR FOUR AMPUTATED FINGERS AND AN ADDITIONAL 100% SLU FOR THE REATTACHED NONFUNCTIONAL THUMB)

DRIVER FOR A MEDICAL DELIVERY SERVICE WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS, NOTWITHSTANDING THE DRIVER’S CONTRACT WITH A THIRD PARTY PAYROLL COMPANY.

The Third Department determined a driver for Medical Delivery Services (MDS), which delivers highly regulated time-sensitive radioactive medication, was an employee of MDS entitled to unemployment insurance benefits, notwithstanding that the driver’s contract was with a third-party administrator:

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Medical Delivery Services (hereinafter MDS) is a provider of courier services specializing in the transportation of time-sensitive radioactive medications that is regulated by state and federal law. MDS engaged the services of drivers to transport these medications and contracted with Subcontracting Concepts Inc. (hereinafter SCI), a payroll company, to act as the third-party administrator to handle employment-related matters involving the drivers. Claimant responded to an advertisement placed by MDS and, after satisfying necessary requirements, was retained as a driver using his own vehicle. He entered into an owner/operator agreement with SCI in connection therewith.  * * *

… MDS placed the advertisement for owner/operator drivers and, when claimant responded, it conducted the initial interview and screening, paid for necessary drug tests and provided claimant with hazardous material training that was required by the Department of Transportation. Although claimant was actually paid by SCI and was designated an independent contractor under the owner/operator agreement, MDS provided SCI with the funds to pay claimant, set claimant’s pay rate at 59 cents per mile and dictated other aspects of his compensation, including reimbursement for tolls and fuel surcharges. Significantly, claimant dealt with MDS, not SCI, in the performance of his work duties.

In accordance with regulatory and legal requirements, MDS required claimant to adhere to a strict delivery schedule, report each delivery via his cell phone and submit specific invoices to MDS for each delivery. In addition, MDS required claimant to carry certain safety equipment in his vehicle, including a dosimeter, which MDS monitored to detect radiation levels. MDS also imposed a dress code, providing claimant with polo shirts bearing its logo, and furnished him with an identification badge, lanyard and clipboard advertising its name. Furthermore, in the event that claimant wanted to take time off, he needed to provide MDS with advance notice, and MDS, not claimant, selected the replacement driver. Although much of the control exercised by MDS was occasioned by the highly regulated nature of the work performed, many other aspects of the control that MDS exercised were not. In view of the foregoing, we find that substantial evidence supports the Board’s finding of an employment relationship notwithstanding the evidence that would support a contrary conclusion … . Matter of Crystal (Medical Delivery Servs.–Commissioner of Labor), 2017 NY Slip Op 04185, 3rd Dept 5-25-17

 

UNEMPLOYMENT INSURANCE (DRIVER FOR A MEDICAL DELIVERY SERVICE WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS, NOTWITHSTANDING THE DRIVER’S CONTRACT WITH A THIRD PARTY PAYROLL COMPANY)/DRIVERS (UNEMPLOYMENT INSURANCE, DRIVER FOR A MEDICAL DELIVERY SERVICE WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS, NOTWITHSTANDING THE DRIVER’S CONTRACT WITH A THIRD PARTY PAYROLL COMPANY)

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PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER.

The Third Department determined defendant school district was entitled to summary judgment in this sports injury case. Plaintiff (Legac) was struck in the face by a baseball during tryouts held in the gymnasium (due to weather). The Third Department held that the school district demonstrated plaintiff had assumed the risk of injury. He was an experienced baseball player and was aware of the way the baseball was being hit by the coach and the way the baseball reacted when striking the gymnasium floor:

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While Legac testified that he believed that Potter was hitting the ball “too hard” and that the baseball traveled faster on the gymnasium floor than it would have on a baseball field, such conditions were open and obvious and clearly appreciated by Legac, who had the opportunity to watch the players ahead of him complete the ground ball fielding drill and had observed the ball interact with the flooring over three days of indoor tryouts … . Inasmuch as the conditions inherent in the indoor ground ball fielding drill were readily apparent to Legac and the risk of being struck by a ball was a reasonably foreseeable consequence of engaging in that drill, we find that defendants established their prima facie entitlement to summary judgment dismissing the complaint … . Legac v South Glens Falls Cent. Sch. Dist., 2017 NY Slip Op 04182, 3rd Dept 5-25-17

NEGLIGENCE (PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)/EDUCATION-SCHOOL LAW (SPORTS, PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)/ASSUMPTION OF THE RISK (EDUCATION-SCHOOL LAW, PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)/BASEBALL (EDUCATION-SCHOOL LAW, SPORTS, PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)

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INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS.

The Third Department, annulling the determination below, found that petitioner-police officer’s application for accidental and performance of duty retirement benefits should not have been denied. Although the comptroller can accept the opinion of one expert over another, in this case the inconsistencies in the retirement system’s expert’s (Hughes’) testimony did not provide substantial evidence for the finding against the petitioner:

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On cross-examination, however, Hughes acknowledged that petitioner complained of a number of post-concussion symptoms during his examination and he believed that petitioner was being truthful. When asked if these symptoms would preclude petitioner from performing the specific duties of a police officer, Hughes initially explained that he confined his opinion to “whether [petitioner’s] neck injury and post-concussion syndrome caused by the accident of 3/19/09 resulted in a permanent disability.” Nonetheless, he subsequently confirmed that petitioner’s symptoms could impede his ability to use a firearm, carry out complicated directions and perform other police-related tasks. Ultimately, Hughes agreed that petitioner suffered “an exacerbation or recurrence” of his post-concussion symptoms in July 2010, that would disable him from performing the duties of a police officer.

In our view, Hughes’ inconsistent testimony on the issue of permanent incapacity and failure to account for the July 2010 incident in rendering his opinion does not constitute a rational and fact-based opinion necessary to support the finding that petitioner was not permanently incapacitated from performing his duties as a police officer. To the contrary, the record contains ample medical evidence and documentation, most significantly Ward’s testimony, establishing that petitioner was permanently incapacitated by injuries sustained as a result of the March 19, 2009 incident that were later exacerbated in July 2010. Accordingly, inasmuch as we find that the Comptroller’s determination is not supported by substantial evidence, it must be annulled and the matter remitted for further proceedings … . Matter of Rawson v DiNapoli, 2017 NY Slip Op 04189, 3rd Dept 5-25-17

EMPLOYMENT LAW (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/EVIDENCE,  (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/POLICE OFFICERS (ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/RETIREMENT BENEFITS (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)

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