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BUILDING AND HOME INSPECTORS WERE EMPLOYEES OF ENGINEERING FIRM.

The Third Department determined architects and engineers hired by Tauscher to conduct building and home inspections were employees entitled to unemployment insurance benefits:

Here, although the inspectors signed a standard agreement identifying them as independent contractors, the agreement contained a noncompete clause prohibiting the inspectors from working directly or indirectly with competing engineering firms within Tauscher’s geographic region, including 100 miles from the Empire State Building in New York City. The agreement further provided that the inspectors perform their inspections in accordance with industry and professional standards and that their post-inspection reports be drafted on forms provided by Tauscher and submitted to Tauscher within a limited time frame. The inspectors were also required to participate in Tauscher’s self-insurance fund, as well as pay for professional liability insurance obtained by Tauscher, and to share in the costs of any litigation arising out of the inspections. Tauscher scheduled the time of the inspections, which were not subject to modification by the inspectors, and would seek a replacement inspector if the original inspector was unavailable. Tauscher also provided the inspectors with business cards bearing Tauscher’s name to provide to its clients.

With regard to compensation, Tauscher established the fees that clients were required to pay for the inspections and also unilaterally set the percentage of the fees that constituted payment for the inspectors. In order for the inspectors to receive payment, they were required to submit invoices to Tauscher, which in turn would pay the inspectors directly. In addition, Tauscher managed the billing of, and collection from, clients. Notwithstanding the proof in the record that could support a contrary result, the foregoing evidence demonstrates that Tauscher retained overall control over important aspects of the services performed by the inspectors, and we therefore find that substantial evidence supports the determination of the Board assessing Tauscher additional unemployment insurance contributions for remuneration paid to the inspectors … . Matter of Tauscher Cronacher PE PC (Commissioner of Labor). 2017 NY Slip Op 02488. 3rd Dept 3-30-17

 

INSUFFICIENT SHOWING BY THE STATE POLICE TO JUSTIFY DENIAL OF REQUEST FOR RECORDS PERTAINING TO A VICTIM OF CRIMES COMMITTED BY PETITIONER, MATTER REMITTED.

The Third Department determined the state police did not make sufficient assertions to justify the denial of petitioner’s request for records concerning a victim of crimes committed by petitioner (an inmate). The state police did not provide factual information to support the claims that the records would disclose non-routine investigatory techniques and would violate privacy. The state police further failed to show that redaction could address those concerns. The matter was remitted to Supreme Court:

The State Police merely paraphrased the statutory language of the exemptions without describing the records withheld or providing any factual basis for its conclusory assertions that disclosure would constitute an unwarranted invasion of personal privacy and would reveal nonroutine criminal investigative techniques and procedures … . Further, with respect to the personal privacy exemption, the State Police offered no proof that the requested records fell into any enumerated categories and failed to specify the implicated privacy interests, if any, against which the public interest in disclosing the records were to be balanced … .

Moreover, Public Officers Law § 89 (2) (a) expressly permits an agency to delete “identifying details” from records that it makes available to the public in order to prevent unwarranted invasions of personal privacy … , and the State Police failed to make any showing as to whether the requested documents could be redacted in such a manner as to protect personal privacy … . Nor did it submit the documents to Supreme Court for an in camera review to allow an “informed determination” by the court on that issue … . Matter of McFadden v Fonda, 2017 NY Slip Op 02101, 3rd Dept 3-23-17

 

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DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY.

The Third Department determined defendant was entitled to a hearing on his motion to vacate his conviction. Defendant alleged he was not informed of the intoxication defense prior to pleading guilty:

… [R]egarding defendant’s claim in his CPL 440.10 motion that counsel’s representation was ineffective for failing to inform him that the required element of criminal intent for burglary in the second degree (see Penal Law § 140.25) could be negated by the defense of intoxication[:] The victims’ statements to police include the observations that defendant “looked high and his speech was slow” and that defendant appeared “either drunk or stoned.” Additionally, his criminal record reflects a history of alcohol-related arrests and convictions. Insofar as a defendant’s knowledge that the element of intent may be negated by the potential defense of intoxication is essential to a knowing and voluntary plea … and there is no indication that defendant was aware of the intoxication defense and knowingly waived his right to present such evidence, we are persuaded that defendant has raised an issue sufficient to require a hearing … . People v Perry, 2017 NY Slip Op 02095, 3rd Dept 3-23-17

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/ATTORNEYS (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/INEFFECTIVE ASSISTANCE (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/VACATE CONVICTION, MOTION TO DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/INTOXICATION DEFENSE (MOTION TO VACATE CONVICTION, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)

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AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE.

The Third Department, in a full-fledged opinion by Justice Garry, determined the Department of Corrections and Community Services (DOCCS) did not give the petitioner, an indigent sex offender who had completed his sentence, adequate assistance in finding housing in a residential treatment facility (RTF) upon release. Although petitioner had been provided RTF housing by the time the matter was heard, the Third Department reached the issue as an exception to the mootness doctrine. DOCCS’s insufficient assistance in finding RTF housing for released sex offenders was deemed a recurring problem that needed to be addressed:

We agree with petitioner that, due to the “recognized difficulty in securing acceptable housing” for persons subject to sex offender residency restrictions, there is a likelihood of repetition regarding individuals being placed in RTFs due to the failure to secure suitable housing … . Given the transitory purpose of RTFs and considering the lack of appellate precedent regarding challenges to RTF placements and programing, we further recognize that the phenomenon typically evades review … . Finally, we find the issues novel and substantial given that petitioner’s challenges concern whether RTFs are serving their distinct purpose, as contrasted with confinement facilities generally … . * * *

The feasibility and appropriateness of the specific means by which DOCCS may choose to provide affirmative assistance in locating housing to petitioner are, of course, discretionary and beyond the reach of judicial review unless they are shown to be irrational, arbitrary and capricious. Accordingly, we may not specify the particular actions that DOCCS should have taken. Nevertheless, its passive approach of leaving the primary obligation to locate housing to an individual confined in a medium security prison facility 100 miles from his family and community, without access to information or communication resources beyond that afforded to other prison inmates, falls far short of the spirit and purpose of the legislative obligation imposed upon DOCCS to assist in this process. Matter of Gonzalez v Annucci, 2017 NY Slip Op 02099, 3rd Dept 3-23-17

CRIMINAL LAW (AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)/SEX OFFENDERS (AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)/RESIDENTIAL TREATMENT FACILITY (SEX OFFENDERS, AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)/APPEALS (AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)

INSURANCE BROKER ENGAGED IN UNTRUSTWORTHY CONDUCT STEMMING FROM A MISLEADING AD FOR VIATICAL SETTLEMENT AGREEMENTS AND WAS PROPERLY FINED.

The Third Department determined petitioner, a licensed insurance agent/broker, had engaged in untrustworthy conduct and was properly fined. Petitioner sold so-called viatical settlement agreements involving the purchase of interests in life insurance policies of elderly and terminally ill persons. Whether the purchased interests would return a profit depended on whether the amounts paid for the policies and premiums was less than the amount the policies paid out upon death. Petitioner took out an ad which was deemed misleading and there was evidence petitioner did not inform purchasers of the risks:

Insurance Law article 21 tasks respondent’s superintendent with, among other things, the dual responsibility of “ensuring that licenses are issued only to trustworthy and competent [insurance] producers” … and disciplining any insurance producer who demonstrates untrustworthiness or incompetence … . These statutory mandates are designed “to protect the public by requiring and maintaining professional standards of conduct on the part of all insurance brokers acting as such within this state” … . * * *

… [W]e agree with respondent’s determination that the subject advertisement was misleading. As a starting point, the language at issue indeed could be read as suggesting that an investor would receive a fixed rate of return at the end of a predetermined period of time — a representation that was not universally true, as the timing of the payout was entirely dependent upon when the viator died; more to the point, the promised fixed rate of return could effectively be diminished if the viator exceeded his or her life expectancy, i.e., did not die within the “plan” period, and the investor’s profit might be eliminated altogether if he or she was required to assume responsibility for paying the premiums due.  * * *

We reach a similar conclusion with respect to the finding that respondent failed to fully disclose the risks of viatical settlements to some of his clients. … [R]espondent’s finding that petitioner acted in an untrustworthy manner in this regard stems from petitioner’s failure to “sufficiently disclose the risks in his oral presentations to some of his clients.” Without recounting the extensive testimony adduced on this point, suffice it to say that the record contains conflicting evidence as to what petitioner did or did not say to investors regarding the nature and risks of viatical settlements. Matter of Nichols v New York State Dept. of Fin. Servs., 2017 NY Slip Op 01944m 3rd Dept 3-16-17

INSURANCE LAW (INSURANCE BROKER ENGAGED IN UNTRUSTWORTHY CONDUCT STEMMING FROM A MISLEADING AD AND WAS PROPERLY FINED)/UNTRUSTWORTHY CONDUCT (INSURANCE LAW, INSURANCE BROKER ENGAGED IN UNTRUSTWORTHY CONDUCT STEMMING FROM A MISLEADING AD AND WAS PROPERLY FINED)/VIATICAL SETTLEMENT AGREEMENTS (INSURANCE LAW, INSURANCE BROKER ENGAGED IN UNTRUSTWORTHY CONDUCT STEMMING FROM A MISLEADING AD AND WAS PROPERLY FINED)

FAILURE TO PRODUCE A COPY OF THE MAIL WATCH AUTHORIZATION REQUIRED THAT THE DETERMINATION BE ANNULLED AND EXPUNGED.

The Third Department determined the respondent did not demonstrate the mail watch which led to the charges against petitioner was properly authorized. The related evidence could not be the basis for the determination, which was annulled and expunged:

… [P]etitioner requested a copy of the mail watch authorization four times during the course of the hearing, but it was never produced and is not part of the record. Although the senior investigator testified that the mail watch was authorized by the Superintendent of the facility, the reason for its issuance and the specific facts underlying it were never disclosed and are not apparent from the record. Under these circumstances, we find that authorization for the mail watch was not established in accordance with the requirements of 7 NYCRR 720.3 (e) (1) … . Inasmuch as correspondence obtained through the unlawful mail watch was instrumental in finding petitioner guilty of solicitation and violating facility correspondence procedures, that part of the determination must ,,, be annulled … . Matter of Wilson v Commissioner of N.Y. State Dept. of Corr. & Community Supervision, 2017 NY Slip Op 01921, 3rd Dept 3-16-17

DISCIPLINARY HEARINGS (INMATES) (FAILURE TO PRODUCE A COPY OF THE MAIL WATCH AUTHORIZATION REQUIRED THAT THE DETERMINATION BE ANNULLED AND EXPUNGED)/MAIL WATCH AUTHORIZATION (INMATE DISCIPLINARY HEARINGS, FAILURE TO PRODUCE A COPY OF THE MAIL WATCH AUTHORIZATION REQUIRED THAT THE DETERMINATION BE ANNULLED AND EXPUNGED)

DEFENDANT’S OMISSIONS, INCONSISTENT STATEMENTS AND LIES AFTER A ROUTINE TRAFFIC STOP JUSTIFIED THE CANINE SNIFF.

The Third Department, over a two-justice dissent, determined the motion to suppress cocaine discovered using a canine sniff after a traffic stop for tinted windows was properly denied. Enough information and inconsistencies came to the officers’ attention after the stop to warrant the dog sniff. Defendant was on parole but initially did not inform the officer of that fact, the stop was outside the county in which defendant was paroled, defendant lied about his cell phone being broken, etc.:

The prolonged diet of inconsistencies and lies provided by defendant about his travels, when coupled with his parole situation and his nervous demeanor throughout the encounter, combined to give the officers a “founded suspicion of criminality” … . This founded suspicion justified both the extension of the stop after its initial justification had been exhausted and the exterior canine sniff that followed … . … The alert gave the troopers probable cause to search the vehicle and recover the bookbag from the back seat that contained cocaine … . People v Banks, 2017 NY Slip Op 01916, 3rd Dept 3-16-17

CRIMINAL LAW (DEFENDANT’S OMISSIONS, INCONSISTENT STATEMENTS AND LIES AFTER A ROUTINE TRAFFIC STOP JUSTIFIED THE CANINE SNIFF)/SUPPRESSION (DEFENDANT’S OMISSIONS, INCONSISTENT STATEMENTS AND LIES AFTER A ROUTINE TRAFFIC STOP JUSTIFIED THE CANINE SNIFF)/TRAFFIC STOP (DEFENDANT’S OMISSIONS, INCONSISTENT STATEMENTS AND LIES AFTER A ROUTINE TRAFFIC STOP JUSTIFIED THE CANINE SNIFF)/CANINE SNIFF (DEFENDANT’S OMISSIONS, INCONSISTENT STATEMENTS AND LIES AFTER A ROUTINE TRAFFIC STOP JUSTIFIED THE CANINE SNIFF)

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ALTHOUGH PLAINTIFF INJURED BY CO-WORKER, QUESTION OF FACT WHETHER DEFENDANT’S ACTIONS WERE GROSSLY NEGLIGENT AND THEREFORE NOT WITHIN THE SCOPE OF EMPLOYMENT, ALSO A QUESTION OF FACT WHETHER EMPLOYER CONDONED DEFENDANT’S ACTIONS, PLAINTIFF’S SUIT NOT PRECLUDED BY WORKERS’ COMPENSATION LAW.

The Third Department determined plaintiff could sue in negligence, despite the fact that defendant was a co-worker. Defendant struck plaintiff with a golf club inflicting an injury that required the removal of a testicle. There was a question of fact whether defendant’s actions were grossly negligent or reckless and there not within the scope of defendant’s employment. There was also a question of fact whether the employer condoned defendant’s actions:

There is no dispute that plaintiff and defendant were coemployees, that plaintiff was injured in the course of his employment and that he collected workers’ compensation benefits for his injuries. Pursuant to Workers’ Compensation Law § 29 (6), these benefits are the exclusive remedy for an employee injured “by the negligence or wrong of another in the same employ.” Having the same employer is not synonymous with being “in the same employ” and, to be shielded from liability, a defendant “must himself [or herself] have been acting within the scope of his [or her] employment and not have been engaged in a willful or intentional tort” … . Here, there is no indication that plaintiff was involved in any horseplay … . The differing versions of the event presented by the parties, as well as the two club employees who supported plaintiff’s version, raise genuine questions of fact as to whether defendant intended to strike plaintiff and did so in an excessive manner given the sensitive area of impact. Although defendant was not directly disciplined by the club and resigned to take a new position a few months after the incident, a question of fact also remains as to whether the club condoned defendant’s actions. As such, we conclude that Supreme Court properly determined that questions of fact existed as to whether defendant acted in a “grossly negligent and/or reckless” manner when he swung the golf club shaft and struck plaintiff, as alleged in the complaint … . Montgomery v Hackenburg, 2017 NY Slip Op 01744, 3rd Dept 3-9-17

NEGIGENCE (WORKERS’ COMPENSATION LAW, ALTHOUGH PLAINTIFF INJURED BY CO-WORKER, QUESTION OF FACT WHETHER DEFENDANT’S ACTIONS WERE GROSSLY NEGLIGENT AND THEREFORE NOT WITHIN THE SCOPE OF EMPLOYMENT, ALSO A QUESTION OF FACT WHETHER EMPLOYER CONDONED DEFENDANT’S ACTIONS, PLAINTIFF’S SUIT NOT PRECLUDED BY WORKERS’ COMPENSATION LAW)/WORKERS’ COMPENSATION LAW (NEGLIGENCE, (ALTHOUGH PLAINTIFF INJURED BY CO-WORKER, QUESTION OF FACT WHETHER DEFENDANT’S ACTIONS WERE GROSSLY NEGLIGENT AND THEREFORE NOT WITHIN THE SCOPE OF EMPLOYMENT, ALSO A QUESTION OF FACT WHETHER EMPLOYER CONDONED DEFENDANT’S ACTIONS, PLAINTIFF’S SUIT NOT PRECLUDED BY WORKERS’ COMPENSATION LAW)/EMPLOYMENT LAW (WORKERS’ COMPENSATION LAW, ALTHOUGH PLAINTIFF INJURED BY CO-WORKER, QUESTION OF FACT WHETHER DEFENDANT’S ACTIONS WERE GROSSLY NEGLIGENT AND THEREFORE NOT WITHIN THE SCOPE OF EMPLOYMENT, ALSO A QUESTION OF FACT WHETHER EMPLOYER CONDONED DEFENDANT’S ACTIONS, PLAINTIFF’S SUIT NOT PRECLUDED BY WORKERS’ COMPENSATION LAW)

THERE WAS NO GOOD REASON TO DENY PETITIONER’S REQUEST FOR A WITNESS, DETERMINATION ANNULLED AND EXPUNGED.

The Third Department determined the hearing officer improperly and without good cause refused to call a witness requested by the petitioner. The determination was therefore annulled and expunged:

Among petitioner’s many contentions is that he was improperly denied his right to call certain witnesses at the hearing. Notably, his defense that he did not act in the manner alleged in the misbehavior report was very much dependent on the testimony of witnesses, correction officers and inmates alike, who were present in the mess hall and who may have observed his actions. In this regard, petitioner asserts that he was improperly denied the right to call the correction officer who was stationed in the gas booth overseeing the mess hall at the time of the incident. The Hearing Officer denied this witness on the basis that “the staff in the gas booth have the entire messhalls . . . to watch and would not be expected to know the details of each incident.” Petitioner objected, stating at the hearing that “the guy in the gas booth would be able to honestly see this incident and give the perfect testimony . . . of what transpired because he’s the guy that controls the gas and if it was a bigger incident tha[n] what it was he’d have to drop the gas.” …

Respondent, however, urges that remittal for a new hearing is the appropriate remedy. Under the particular circumstances presented here, we disagree. Although the Hearing Officer articulated a reason for the denial, the legitimacy of that reason is suspect given that the gas booth officer was in the mess hall for the very purpose of watching the activities of the inmates and responding to problems. There is no support in the record for the Hearing Officer’s baseless conclusion that the officer on duty did not have knowledge of the incident involving petitioner. Matter of Balkum v Annucci, 2017 NY Slip Op 01741, 3rd Dept 3-9-17

 

DISCIPLINARY HEARINGS (INMATES) (THERE WAS NO GOOD REASON TO DENY PETITIONER’S REQUEST FOR A WITNESS, DETERMINATION ANNULLED AND EXPUNGED)

MINERAL RIGHTS INCLUDE THE RIGHT TO REMOVE SAND AND GRAVEL.

The Third Department explained the meaning of mineral rights (as opposed to surface rights) as that term appeared in a 1917 deed. The court held that the term encompassed all inorganic material, including sand and gravel:

Supreme Court correctly determined as a matter of law that those mineral rights that plaintiffs owned and that were originally derived from a 1917 deed from a grantor, who was the common grantor of plaintiffs’ mineral rights and at least certain of [defendant’s]  surface rights, included the right to extract and remove sand and gravel. The Court of Appeals has directly passed on the meaning of the term “minerals” as used in a conveyance and concluded that the term “will include all inorganic substances [that] can be taken from the land” where the term’s meaning is not restricted “b[y] qualifying words, or language, evidencing that the parties contemplated something less general than all substances legally cognizable as minerals” … . Thus, unless qualifying and restrictive language related to the term minerals renders the term ambiguous in any particular conveyance, the meaning of minerals is determinable as a matter of law and is not subject to extrinsic proof … . The 1917 deed conveyed a minerals estate that included “all . . . minerals in, under and upon” the specified properties together with the right to “dig, mine and remove” those minerals from the land free from any liability for damage. Accordingly, given that the language in the 1917 deed does not qualify or restrict the term minerals, the Court of Appeals’ interpretation controls. Therefore, as sand and gravel are “inorganic substances [that] can be taken from the land,” they fall within the mineral rights conveyed by the 1917 deed … . Champlain Gas & Oil, LLC v People of The State of New York, 2017 NY Slip Op 01610, 3rd Dept 3-2-17

REAL PROPERTY (MINERAL RIGHTS INCLUDE THE RIGHT TO REMOVE SAND AND GRAVEL)/MINERAL RIGHTS (MINERAL RIGHTS INCLUDE THE RIGHT TO REMOVE SAND AND GRAVEL)/SAND AND GRAVEL (REAL PROPERTY, (MINERAL RIGHTS INCLUDE THE RIGHT TO REMOVE SAND AND GRAVEL)/MINERAL RIGHTS (MINERAL RIGHTS INCLUDE THE RIGHT TO REMOVE SAND AND GRAVEL)

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