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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LIABILITY, DEFENDANT CROSSED DOUBLE YELLOW LINE, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY.

The Third Department, reversing Supreme Court, over a two-justice partial dissent, determined plaintiff was entitled to summary judgment on liability in this traffic accident case and plaintiff had raised questions of fact whether he suffered serious physical and psychological injury within the meaning of the no-fault law.  Plaintiff alleged defendant’s car struck his after crossing the double yellow line and defendant had pled guilty to crossing the double yellow line. The dissent argued plaintiff did not demonstrate psychological injury and did not meet the 90/180 day no-fault criteria:

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This evidence, viewed in the light most favorable to plaintiff … , raised a triable issue of fact as to whether plaintiff’s alleged neck, back and left shoulder injuries constitute a serious injury under the significant limitation of use category  … . …

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As for plaintiff’s alleged psychological injuries, “[i]t has been established ‘that a causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury'” … .  * * *

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… [P]laintiff proffered the affirmed narrative report of Barry Goldman, his primary care physician. Goldman stated that plaintiff visited his primary care practice more than a dozen times between August 2014 and November 2015 — three of which predated the second motor vehicle accident in September 2014 — for treatment relating to anxiety, stress, insomnia, nightmares, irritability, temperament changes and reliving and experiencing flashbacks of the June 2014 accident. Based on his review of the medical records generated from these visits, as well as his own examinations of plaintiff, Goldman concluded that plaintiff’s diagnosis of posttraumatic stress disorder was causally related to the June 2014 motor vehicle accident. He stated that, although the death of plaintiff’s wife and the second motor vehicle accident “may have added to his symptoms, the trauma of his first accident was the cause and directly related to his complaints.” This evidence was sufficient to raise a question of fact as to whether the June 2014 motor vehicle accident caused plaintiff to suffer psychological injuries constituting a significant limitation of use of a body function or system … .  Fillette v Lundberg, 2017 NY Slip Op 04180, 3rd Dept 5-24-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LIABILITY, DEFENDANT CROSSED DOUBLE YELLOW LINE, NO-FAULT,PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY)/INSURANCE LAW (NO-FAULT, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY)/PSYCHOLOGICAL INJURY (NO-FAULT, TRAFFIC ACCIDENTS, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY)/SERIOUS INJURY (TRAFFIC ACCIDENTS, NO-FAULT, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY)/TRAFFIC ACCIDENTS (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LIABILITY, DEFENDANT CROSSED DOUBLE YELLOW LINE, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER HIS PHYSICAL AND PSYCHOLOGICAL INJURIES MET THE NO-FAULT CRITERIA FOR SERIOUS INJURY)

CLAIMANT PROPERLY FOUND TO HAVE A 35% LOSS OF WAGE EARNING CAPACITY DESPITE HIS HAVING RETURNED TO WORK FULL-TIME.

The Third Department determined claimant was properly determined to have a 35% loss of wage earning capacity even though he had returned to work full-time. Because claimant had returned to work, he was not awarded any compensation. However, should his ability to work change, he would be entitled to up to 275 weeks of compensation. The court explained the different meanings of “wage earning capacity” and “loss of wage earning capacity:”

The employer argues that, because claimant returned to work full time at his preaccident wages, claimant’s wage-earning capacity at the time of classification was 100%; therefore, the employer’s argument continues, the Board’s finding that claimant sustained a 35% loss of wage-earning capacity was in error and unlawful. The employer’s argument on this point ignores the fact that the terms “wage-earning capacity” (see Workers’ Compensation Law § 15 [5-a]) and “loss of wage-earning capacity” (see Workers’ Compensation Law § 15 [3] [w]) “are to be used for separate and distinct purposes” … . As this Court recently reiterated, “wage-earning capacity is used to determine a claimant’s weekly rate of compensation,” whereas “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” … . “Unlike wage-earning capacity, which can fluctuate based on a claimant’s employment status, loss of wage-earning capacity [is] intended to remain fixed” … . Contrary to the employer’s assertion, “[t]he durational limits imposed by Workers’ Compensation Law § 15 (3) (w) do not distinguish between claimants who are employed at the time of classification and those who are not” … . Matter of De Ruggiero v City of N.Y. Dept. of Citywide Admin. Servs., 2017 NY Slip Op 03999, 3rd Dept 5-18-17

WORKERS’ COMPENSATION LAW (CLAIMANT PROPERLY FOUND TO HAVE A 35% LOSS OF WAGE EARNING CAPACITY DESPITE HIS HAVING RETURNED TO WORK FULL-TIME)

CLAIMANT, WHO WAS UNABLE TO WORK BECAUSE OF DOMESTIC ABUSE, WAS ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS.

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant was willing and able to work, within the meaning of the Unemployment Insurance Law, when she took a leave of absence because of domestic abuse. Claimant alleged she was unable to leave her house and walk to work because her former boyfriend would harass her both as she walked to work and at work:

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Here, the uncontroverted evidence is that claimant was ready, willing and able to work during the period in issue. Under the circumstances presented, we disagree with the Board that her leave of absence necessitated by the actions of a perpetrator of domestic abuse rendered her legally unavailable for work … . To that end, and pursuant to Labor Law § 593 (1) (b) (i), the Legislature has provided that an employee may not be disqualified from receiving unemployment insurance benefits for separating from employment “due to any compelling family reason,” which includes “domestic violence . . . which causes the individual reasonably to believe that such individual’s continued employment would jeopardize his or her safety or the safety of any member of his or her immediate family”… . The progenitor of Labor Law § 593 (1) (b) (i) was enacted  … in response to a New Jersey appeals court ruling that a woman who was forced to quit her job due to domestic violence was not entitled to collect unemployment benefits … and was intended to ensure that victims of domestic violence “may be eligible for [u]nemployment [i]nsurance” … . When the provision was amended to its current form in 2009 … , the legislative intent remained to ensure that “individuals who are voluntarily separated from employment due to compelling family reasons are eligible for [unemployment insurance] benefits” … . The Board credited claimant’s uncontroverted account that she was the victim of domestic violence, stalking and harassment, as well as her testimony that she was willing and able to work during the period in issue but was prevented from leaving her home to get to work due to her justifiable fear of further violence by her former boyfriend … .  Matter of Derfert (Commissioner of Labor),,2017 NY Slip Op 04016, 3rd Dept 5-18-17

UNEMPLOYMENT INSURANCE (CLAIMANT, WHO WAS UNABLE TO WORK BECAUSE OF DOMESTIC ABUSE, WAS ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS)/

AUNT DID NOT HAVE STANDING TO SEEK VISITATION, AWARDING ADDITIONAL VISITATION TO GRANDPARENTS NOT SUPPORTED BY THE RECORD.

The Third Department, reversing Family Court, determined: (1) the aunt did not have standing to seek visitation because there was a loving and responsible relationship between mother and child; and (2) awarding additional visitation to the grandparents was not supported by the record (no testimony taken from the grandparents):

Turning first to the merits of the aunt’s petition seeking visitation … , we find that Family Court erred in awarding visitation to the aunt inasmuch as the aunt does not have standing to seek such relief … . While the aunt and the attorney for the child contend that extraordinary circumstances exists to confer standing upon the aunt, such rule does not apply to this case … , especially where Family Court found that the mother was a “loving and responsible parent.” We further note that although the mother originally consented to the aunt having minimal visitation with the child, she later changed her position and orally moved to dismiss the aunt’s petition for visitation immediately prior to the commencement of trial … . Accordingly, Family Court erred in granting the aunt visitation with the child over the mother’s objections and the aunt’s petition should have been dismissed … . * * *

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… [W]e conclude that Family Court’s determination to award the grandparents increased visitation lacks a sound and substantial basis in the record. The increased visitation did not stem from the consideration of any documentary evidence or testimony but, instead, from Family Court’s own familiarity with the parties based upon prior petitions. Such information, however, is not part of the record … . Matter of Romasz v Coombs, 2017 NY Slip Op 04001, 3rd Dept 5-18-17

 

FAMILY LAW (AUNT DID NOT HAVE STANDING TO SEEK VISITATION, AWARDING ADDITIONAL VISITATION TO GRANDPARENTS NOT SUPPORTED BY THE RECORD)/VISITATION (FAMILY LAW, AUNT DID NOT HAVE STANDING TO SEEK VISITATION, AWARDING ADDITIONAL VISITATION TO GRANDPARENTS NOT SUPPORTED BY THE RECORD)

HEARING OFFICER’S REFUSAL WITHOUT EXPLANATION TO CALL A WITNESS TO THE INCIDENT REQUIRED ANNULMENT AND EXPUNGEMENT.

The Third Department, annulling the misbehavior determination, found the hearing officer’s refusal without explanation to call a witness to the confrontation between petitioner and guards to be a constitutional violation:

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“An inmate has a right to call witnesses at a disciplinary hearing so long as the testimony is not immaterial or redundant and poses no threat to institutional safety or correctional goals”… . This report indicated that, without provocation, petitioner punched the officer conducting the frisk in the eye. Petitioner maintained that he did not assault either officer, that the officer conducting the frisk was the aggressor, grabbing petitioner’s genitals during the frisk and punching him, and that both officers attacked him in retaliation for him filing a grievance against a fellow officer. The requested witness submitted a memorandum to his superior on the day of the incident stating that he observed the frisk, that petitioner turned off the wall and that a struggle ensued with the correction officer. According to the memorandum, the officer called for a response team and, by the time the team arrived, both petitioner and the officer involved in the altercation were inside of petitioner’s cell and out of his sight. Following the initial request for this witness at the hearing, the Hearing Officer stated that he would address the request later. Petitioner clearly requested testimony from this witness a second time and the Hearing Officer did not respond. The Hearing Officer subsequently closed the hearing without calling the witness and without providing a reason for not calling him.  Matter of Reyes v Keyser, 2017 NY Slip Op 04007, 3rd Dept 5-18-17

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S REFUSAL WITHOUT EXPLANATION TO CALL A WITNESS TO THE INCIDENT REQUIRED ANNULMENT AND EXPUNGEMENT)

LABOR LAW 240(1) LIABILITY IS NONDELEGABLE AND EXTENDS TO INDEPENDENT CONTRACTORS.

The Third Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. The scaffolding plaintiff was using collapsed and he fell 40 feet. The defendants alleged that the improper assembly of the scaffolding caused the collapse and plaintiff assembled the scaffolding. Therefore the defendants argued plaintiff’s acts constituted the sole proximate cause of his injuries, precluding recovery. However a contract indicated that another party was responsible for supplying safety equipment and meeting OSHA requirements. The court further noted that the general contractor (Varish) could not escape liability on the ground plaintiff was an independent contractor, not an employee:

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We find no merit in Varish’s contention that Labor Law § 240 (1) does not apply in that plaintiff was allegedly an independent contractor, not an employee. The duty to provide a safe working environment is nondelegable, and a contractor or owner and its agents may be liable “even though it exercised no control over, or supervision of, an independent contractor who performed the job” … . Griffin v AVA Realty Ithaca, LLC, 2017 NY Slip Op 03829, 3rd Dept 5-11-17

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 240(1) LIABILITY IS NONDELEGABLE AND EXTENDS TO INDEPENDENT CONTRACTORS)/INDEPENDENT CONTRACTORS (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 240(1) LIABILITY IS NONDELEGABLE AND EXTENDS TO INDEPENDENT CONTRACTORS)

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MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER.

The Third Department, after noting that orders issued upon default are not appealable, determined mother, contrary to Family Court’s ruling, was not in default and therefore the order could be appealed:

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In the circumstances presented, the mother was not required to seek to vacate the default judgment before taking this appeal. A party may not appeal from an order entered on default (see CPLR 5511), but a party’s absence does not necessarily constitute a default, “particularly where counsel appears upon the absent party’s behalf and offers an explanation for his or her failure to attend” (… . Here, the mother’s counsel appeared and advised Family Court that he had communicated with the mother several times by phone and email, that she was then at a considerable distance in either Florida or South Carolina, and that she had a limited income. The mother’s counsel further advised the court relative to the mother’s position in the matter and participated in the proceedings by consenting to the requested relief, that is, to permit the child to remain temporarily with the father. Counsel also unsuccessfully requested a continuance, and ultimately advised that he did not have authority to consent to a final order of permanent physical placement to the father. In light of these circumstances, we find that the mother was not in default and that the order is appealable … . Matter of Linger v Linger, 2017 NY Slip Op 03822, 3rd Dept 5-11-17

FAMILY LAW (MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)/APPEALS (FAMILY COURT, DEFAULT, MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)/DEFAULT (FAMILY COURT, MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)

TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER.

The Third Department determined the prosecutor should not have elicited testimony from an investigator about defendant’s exercise of his right to remain silent. The error was deemed harmless however:

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We agree with defendant that Supreme Court erred in permitting the People to elicit testimony about defendant’s invocation of his right to silence and to comment on that testimony in summation. “[I]t is axiomatic that when a defendant invokes his or her constitutional right against self-incrimination, the People may not use his or her silence against him or her on their direct case”… . The principle applies when a defendant unequivocally states his or her desire to halt all questioning, even if he or she has previously responded to other questions … . A State Police investigator testified at trial that he interviewed defendant after his arrest and read him his Miranda rights, which defendant stated that he understood. Defendant then willingly answered a series of questions about various topics. However, when asked if he had punched or pushed the trooper, defendant responded that “he didn’t want to say any more.” During summation, the prosecutor remarked upon this testimony, noting that when defendant was asked about striking the trooper, he had not denied that he had done so or offered an explanation, but instead had stated that he did not want to say anything else. Defendant’s counsel objected twice to these remarks, but was overruled. Contrary to the People’s assertion, defendant’s statement that he did not want to say any more was an “unequivocal and unqualified invocation of [the] right” to remain silent … . People v Johnson, 2017 NY Slip Op 03804, 3rd Dept 5-11-17

CRIMINAL LAW (TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER)/SELF-INCRIMINATION, RIGHT TO AVOID (TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER)/EVIDENCE (CRIMINAL LAW, TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER)

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ORAL OFFER TO SELL SHARES IN FAMILY CORPORATION FORMED SOLELY TO OWN ONE PIECE OF REAL PROPERTY WAS SUBJECT TO THE STATUTE OF FRAUDS, THE WRITING REQUIREMENT WAS NOT REMOVED BY PART PERFORMANCE. 

The Third Department determined defendant’s oral offer to sell to plaintiff her shares in a family corporation (SEI) formed solely to hold one piece of property (Beach Cove) as its single asset was subject to the statute of frauds (and therefore unenforceable). The court further found that certain actions, like opening a bank account, did not amount to part performance sufficient to overcome the writing requirement of the statute of frauds:

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SEI was a single-asset corporation — that single asset being its ownership of Beach Cove — and, inasmuch as the alleged oral agreement involved the sale of plaintiff’s shares of stock in a corporation whose only asset was an interest in real property, the statute of frauds indeed applied here … . As the alleged oral agreement was not reduced to writing, plaintiff could avoid application of the statute of frauds only if her conduct fell within the part performance exception. In this regard, while the actions upon which plaintiff relies — i.e., opening a bank account in anticipation of a wire transfer of funds from defendant, retrieving her SEI stock certificates to relinquish to defendant, hiring an attorney to coordinate with defendant and/or reduce the alleged oral agreement to writing, timely removing her personal possessions from Beach Cove and promptly vacating the premises in accordance with defendant’s alleged wishes — are consistent with plaintiff’s assertion that she and defendant had a deal to sell plaintiff’s shares in SEI to defendant for $900,000, such actions are not unequivocally referable to — or unintelligible without reference to — the alleged oral agreement, nor so substantial in quality to irremediably alter the situation. Wells v Hodgkins, 2017 NY Slip Op 03824, 3rd Dept 5-11-17

CONTRACT LAW (ORAL OFFER TO SELL SHARES IN FAMILY CORPORATION FORMED SOLELY TO OWN ONE PIECE OF REAL PROPERTY WAS SUBJECT TO THE STATUTE OF FRAUDS, THE WRITING REQUIREMENT WAS NOT REMOVED BY PART PERFORMANCE)/REAL PROPERTY (ORAL OFFER TO SELL SHARES IN FAMILY CORPORATION FORMED SOLELY TO OWN ONE PIECE OF REAL PROPERTY WAS SUBJECT TO THE STATUTE OF FRAUDS, THE WRITING REQUIREMENT WAS NOT REMOVED BY PART PERFORMANCE)/STATUTE OF FRAUDS (ORAL OFFER TO SELL SHARES IN FAMILY CORPORATION FORMED SOLELY TO OWN ONE PIECE OF REAL PROPERTY WAS SUBJECT TO THE STATUTE OF FRAUDS, THE WRITING REQUIREMENT WAS NOT REMOVED BY PART PERFORMANCE)/CORPORATION LAW  (ORAL OFFER TO SELL SHARES IN FAMILY CORPORATION FORMED SOLELY TO OWN ONE PIECE OF REAL PROPERTY WAS SUBJECT TO THE STATUTE OF FRAUDS, THE WRITING REQUIREMENT WAS NOT REMOVED BY PART PERFORMANCE)

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REPORT REGARDING CARE OF PLAINTIFF’S DECEDENT WAS NOT PART OF A MEDICAL OR QUALITY ASSURANCE PROGRAM, WAS NOT PRIVILEGED UNDER THE EDUCATION LAW OR PUBLIC HEALTH LAW, AND WAS THEREFORE SUBJECT TO DISCOVERY IN THIS MEDICAL MALPRACTICE ACTION. 

The Third Department, reversing Supreme Court, determined that a report sought by plaintiffs was not part of a medical or quality assurance review function or participation in a medical malpractice prevention program and therefore was not privileged pursuant to Education Law § 6527 (3) and Public Health Law § 2805-m:

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…[W]we find that defendants failed to meet their burden of establishing the report’s privilege. Defendants did not submit an affidavit or other information from anyone with first-hand knowledge establishing that a review procedure was in place or that the report was obtained or maintained in accordance with any such review procedure … . Nevertheless, defendants argue that the face and content of the report clearly establish that it is a quality assurance review which is precluded from disclosure. Yet, nothing in the report reflects that the hospital’s Department of Patient Safety and Quality Improvement ever reviewed it … . Further, the report’s conclusory statement that it was prepared for quality assurance purposes and was shielded by the subject statutes is patently insufficient to satisfy the required standard … .

In short, the purpose of the Education Law and Public Health Law discovery exclusions is to encourage a candid peer review of physicians, and thereby improve the quality of medical care and prevent malpractice… , but such protections are not automatically available and do not prevent full disclosure where it should otherwise be provided … . Estate of Savage v Kredentser, 2017 NY Slip Op 03825, 3rd Dept 5-11-17

CIVIL PROCEDURE (MEDICAL MALPRACTICE, DISCOVERY, REPORT REGARDING CARE OF PLAINTIFF’S DECEDENT WAS NOT PART OF A MEDICAL OR QUALITY ASSURANCE PROGRAM, WAS NOT PRIVILEGED UNDER THE EDUCATION LAW OR PUBLIC HEALTH LAW, AND WAS THEREFORE SUBJECT TO DISCOVERY IN THIS MEDICAL MALPRACTICE ACTION)/MEDICAL MALPRACTICE (REPORT REGARDING CARE OF PLAINTIFF’S DECEDENT WAS NOT PART OF A MEDICAL OR QUALITY ASSURANCE PROGRAM, WAS NOT PRIVILEGED UNDER THE EDUCATION LAW OR PUBLIC HEALTH LAW, AND WAS THEREFORE SUBJECT TO DISCOVERY IN THIS MEDICAL MALPRACTICE ACTION)/PRIVILEGE  (MEDICAL MALPRACTICE, DISCOVERY, REPORT REGARDING CARE OF PLAINTIFF’S DECEDENT WAS NOT PART OF A MEDICAL OR QUALITY ASSURANCE PROGRAM, WAS NOT PRIVILEGED UNDER THE EDUCATION LAW OR PUBLIC HEALTH LAW, AND WAS THEREFORE SUBJECT TO DISCOVERY IN THIS MEDICAL MALPRACTICE ACTION)

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