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EXCLUSION OF INJURY FROM ASSAULT CONTROLLED, NEGLIGENCE CAUSES OF ACTION STEMMING FROM ASSAULT NOT COVERED.

The Third Department determined the policy exclusion for injury stemming from an assault controlled and defendant insurer was not required to defend the action by defendant bar patron, Christian, who alleged-plaintiff bar’s employee injured him when ejecting him from the bar. The language of the exclusion took precedence over the general liability provisions. Any negligence causes of action were not covered because the negligence claims stemmed from the assault:

The exclusion, which states that it “is subject to the terms contained in the General Liability Coverage,” provides that “[n]otwithstanding anything contained herein to the contrary, . . . this policy excludes any and all claims arising out of any assault, battery, fight, altercation, misconduct or other similar incident,” including claims of negligent hiring and supervision. * * *

Here … Supreme Court properly found that the terms of the exclusion controlled over those in the general liability coverage, as “language such as a ‘notwithstanding’ provision ‘controls over any contrary language’ in a contract” … .

Christian asserts that the assault and battery exclusion does not apply because the underlying action alleges acts of negligence. We disagree. “[I]f no cause of action would exist but for the assault, the claim is based on assault and the exclusion applies” and the fact that an insured might be liable under a theory of negligence does not change this … . Graytwig Inc. v Dryden Mut. Ins. Co., 2017 NY Slip Op 03229, 3rd Dept 4-27-17

INSURANCE LAW (EXCLUSION OF INJURY FROM ASSAULT CONTROLLED, NEGLIGENCE CAUSES OF ACTION STEMMING FROM ASSAULT NOT COVERED)/CONTRACT LAW (INSURANCE LAW, EXCLUSION OF INJURY FROM ASSAULT CONTROLLED, NEGLIGENCE CAUSES OF ACTION STEMMING FROM ASSAULT NOT COVERED)/ASSAULT (INSURANCE LAW, EXCLUSION OF INJURY FROM ASSAULT CONTROLLED, NEGLIGENCE CAUSES OF ACTION STEMMING FROM ASSAULT NOT COVERED)/EXCLUSIONS  (INSURANCE LAW, EXCLUSION OF INJURY FROM ASSAULT CONTROLLED, NEGLIGENCE CAUSES OF ACTION STEMMING FROM ASSAULT NOT COVERED)/THIRD PARTY ASSAULT

INMATE’S REQUESTS FOR UNIDENTIFIED WITNESSES IMPROPERLY DENIED.

The Third Department determined some of petitioner’s requests for testimony from unidentified witnesses to the underlying incident were improperly denied. The hearing officer should have checked logs before denying the request for an unidentified corrections officer alleged to have been present. And petitioner’s request for testimony from unidentified inmates who allegedly were delayed by the incident should not have been denied simply because of the number of potential inmate witnesses (50):

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Petitioner requested the testimony of a correction officer that he believed was present with the sergeant during the incident. Petitioner did not know the name of the witness, but gave the Hearing Officer a description and requested that the Hearing Officer review the logbooks to identify the witness. The Hearing Officer denied the witness, based upon the testimony of the sergeant that he was alone during the incident with petitioner. Inasmuch as the record does not reflect that the Hearing Officer reviewed the logbooks or made any other effort to identify the witness, we cannot say that a diligent effort was made to locate the witness … . …

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Petitioner also requested the testimony of 50 unidentified inmates who, according to the misbehavior report and hearing testimony, were delayed in returning to their cells from breakfast because of the incident involving petitioner. A correction officer testified that, because of the incident, she was unable to release those inmates to return to petitioner’s cellblock for approximately five to seven minutes. The Hearing Officer denied petitioner’s request, stating that he was not going to call 50 witnesses. We disagree with respondents’ contention that the requested testimony was irrelevant because the inmates did not witness the incident involving petitioner, inasmuch as their testimony was relevant to the charge of interfering with staff. In our view, petitioner was improperly denied the right to call a reasonable number of these witnesses, who were all housed on the same cellblock and should have been easily identifiable. Although calling all 50 witnesses would be impractical and unnecessary, the requested testimony was not irrelevant or redundant, and the Hearing Officer’s blanket denial of these witnesses was therefore improper … . Matter of Harriott v Koenigsmann, 2017 NY Slip Op 03240, 3rd Dept 4-27-1

 

DISCIPLINARY HEARINGS (INMATES) (INMATE’S REQUESTS FOR UNIDENTIFIED WITNESSES IMPROPERLY DENIED)

SENTENCE NOT CONTEMPLATED BY THE PLEA AGREEMENT MUST BE VACATED AS THE RESULT OF AN INVOLUNTARY PLEA.

​The Third Department determined the sentence imposed was not in accordance with the plea agreement. Therefore defendant’s plea was not voluntarily made and must be vacated. Defendant was initially sentenced as a persistent felon and that sentence was overturned on appeal. The plea agreement contemplated sentencing either as a persistent felon, or, if the appeal succeeded, as a second felony offender. After the successful appeal, however, defendant was sentenced as a first-time felon:

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The People concede, and we agree, that the parties’ plea agreement, as set forth in the record before us, did not contemplate the possibility that defendant would be sentenced as a first-time felony offender in the event of a successful appeal to this Court … . Indeed, the record before us establishes that the parties’ contingent plea agreement and ensuing plea colloquy were limited to whether defendant could be sentenced as a second felony offender — versus sentencing as a mandatory persistent felony offender — upon a successful appeal. Accordingly, because the record reflects a mutual mistake at the time of defendant’s plea regarding his predicate status and potential sentencing exposure in the event that he was successful on appeal, his decision to plead guilty was not a knowing, voluntary and intelligent one and, therefore, the plea must be vacated … . People v Brewington, 2017 NY Slip Op 03224, 3rd Dept 4-27-17

CRIMINAL LAW (SENTENCE NOT CONTEMPLATED BY THE PLEA AGREEMENT MUST BE VACATED AS THE RESULT OF AN INVOLUNTARY PLEA)/SENTENCING (SENTENCE NOT CONTEMPLATED BY THE PLEA AGREEMENT MUST BE VACATED AS THE RESULT OF AN INVOLUNTARY PLEA)/GUILTY PLEAS (SENTENCE NOT CONTEMPLATED BY THE PLEA AGREEMENT MUST BE VACATED AS THE RESULT OF AN INVOLUNTARY PLEA)

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UNDER THE CRITERIA OF THE FAIR PLAY ACT, WINDOW, GUTTER, SIDING INSTALLERS WERE EMPLOYEES, NOT INDEPENDENT CONTRACTORS.

The Third Department determined the installers of windows, siding, gutters, etc. sold by Barrier were employees of Barrier, not independent contractors. The decision has a clear explanation of the “substantial evidence” standard for court review of an administrative agency’s ruling and a substantive discussion of the employee/independent contractor criteria of the Fair Play Act (Labor Law 861-c):

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The Fair Play Act, codified in Labor Law article 25-B, was enacted as a measure to curb widespread abuses in the construction industry stemming from the misclassification of workers as independent contractors resulting in unfavorable consequences for both the workers and the public (see Labor Law § 861-a). In accordance therewith, the Fair Play Act contains a statutory presumption that a person performing services for a contractor engaged in construction shall be classified as an employee unless it is demonstrated that such person is an independent contractor or a separate business entity … . In order to be considered an independent contractor, a person must satisfy three criteria set forth in the statute: (a) the person must be free from the contractor’s direction and control in performing the service; (b) the service performed must be outside the usual course of the contractor’s business; and (c) the person must be customarily engaged in an independently established occupation similar to the service performed … . This new statutory test is sometimes referred to as the ABC test … . The separate business entity test, codified in Labor Law § 861-c (2), sets forth 12 criteria to be used to determine whether a person is a separate business entity and, thus, not subject to the presumption that he or she is an employee of the contractor. Notably, in each test, all of the criteria must be met to overcome the statutory presumption of an employment relationship. Matter of Barrier Window Sys., Inc. (Commissioner of Labor), 2017 NY Slip Op 03093, 3rd Dept 4-20-17

UNEMPLOYMENT INSURANCE (UNDER THE CRITERIA OF THE FAIR PLAY ACT, WINDOW, GUTTER, SIDING INSTALLERS WERE EMPLOYEES, NOT INDEPENDENT CONTRACTORS)/WINDOW INSTALLERS  (UNDER THE CRITERIA OF THE FAIR PLAY ACT, WINDOW, GUTTER, SIDING INSTALLERS WERE EMPLOYEES, NOT INDEPENDENT CONTRACTORS)/FAIR PLAY ACT  (UNDER THE CRITERIA OF THE FAIR PLAY ACT, WINDOW, GUTTER, SIDING INSTALLERS WERE EMPLOYEES, NOT INDEPENDENT CONTRACTORS)/INDEPENDENT CONTRACTORS (UNDER THE CRITERIA OF THE FAIR PLAY ACT, WINDOW, GUTTER, SIDING INSTALLERS WERE EMPLOYEES, NOT INDEPENDENT CONTRACTORS)

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RECORD DID NOT SUPPORT DENIAL OF SPECIAL USE PERMIT, ZONING BOARD IMPROPERLY BOWED TO THE OBJECTIONS BY TWO NEIGHBORS.

The Third Department, reversing Supreme Court, determined the record did not support the zoning board of appeals’ (ZBA’s) denial of a special use permit for keeping dogs on petitioner’s property. The Third Department found the only competent evidence of the noise level was petitioner’s scientific measurement and the neighbors’ complaints about the noise were not a proper basis for denial of the permit:

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The record shows that the ZBA advised petitioner that the noise from her property should not exceed 80 decibels … . At the public hearing, petitioner explained that she was certified as a nurse to take sound readings and had done so at the property line over a period of approximately one month at different intervals of the day. She claimed that the noise from her property had not exceeded 70 decibels … . She also offered at least two proposals to address the concerns of the neighbors regarding any noise issue. She proposed a six-foot-high stockade fence and moving the outside pens so that they would be blocked by a building. The nearest neighbor, located across the road from petitioner’s property, played a recording at the public hearing that he claimed was a recording that he made of noise emanating from petitioner’s property. He also claimed that the noise was cited by a prospective purchaser of his property … . Another neighbor, who has a horse training and boarding business approximately 500 feet from petitioner’s property, claimed that some of her customers expressed concerns about the noise from petitioner’s property, and she allegedly provided copies of emails from those customers. …

In its determination, the ZBA did not identify any specific shortcomings in petitioner’s mitigation measures, but summarily determined that petitioner had not offered measures that would sufficiently mitigate the dog noise impact from her business. We view this determination of the ZBA to be without sufficient support in the record. Petitioner offered scientific measurement of the noise level and there was no other objective measure of the noise offered at the public hearing. The neighbor’s recording of the noise is subject to an unreliable interpretation of its level based upon the ability to control the volume of the recording, and reliance on the recording would be unreasonable. Absent reliable proof that rebuts petitioner’s offer of her measurement of the sound level and her offer of measures to address any noise concerns, there is no basis in the record to determine that petitioner did not meet the conditions imposed by the Land Use Law, and it appears that the ZBA bowed to generalized objections from two neighbors … . Matter of Blanchfield v Hoosick, 2017 NY Slip Op 03097, 3rd Dept 4-20-17

 

ZONING (RECORD DID NOT SUPPORT DENIAL OF SPECIAL USE PERMIT, ZONING BOARD IMPROPERLY BOWED TO THE OBJECTIONS BY TWO NEIGHBORS)/SPECIAL USE PERMITS (RECORD DID NOT SUPPORT DENIAL OF SPECIAL USE PERMIT, ZONING BOARD IMPROPERLY BOWED TO THE OBJECTIONS BY TWO NEIGHBORS)/NEIGHBOR OBJECTIONS (ZONING, RECORD DID NOT SUPPORT DENIAL OF SPECIAL USE PERMIT, ZONING BOARD IMPROPERLY BOWED TO THE OBJECTIONS BY TWO NEIGHBORS)

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RECORDED PHONE CONVERSATION WITH INSURER PROTECTED AS A STATEMENT PREPARED FOR LITIGATION.

The Third Department, reversing Supreme Court, determined the audio recording of a conversation between defendant and his insurer was privileged as a statement prepared for litigation. Plaintiff was injured using a log splitter on defendant’s property. Defendant denied owning the log splitter and plaintiff alleged defendant admitted ownership in the statement:

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The statement was made during a phone conversation between Judy Gavin, the insurer’s claims representative, and defendant five days after the incident. At the start of the conversation, Gavin informed defendant that the conversation was being recorded and taken as part of the normal claims process. Gavin further agreed to provide defendant with a copy of the statement. We have long recognized that “[t]he purpose of liability insurance is the defense and settlement of claims and, once an accident has arisen, there is little or nothing that the insurer or its employees do with respect to accident reports except in preparation for eventual litigation or for a settlement which may avoid litigation” … . As such, an insurer’s file is generally protected by “a conditional immunity . . . as material prepared for litigation” … . This conditional privilege may have to yield to disclosure where the other party demonstrates a substantial need for the material and withholding same would result in undue hardship (see CPLR 3101 [d] [2]). Accident reports prepared with a mixed purpose, however, are not exempt from disclosure … .

Defendant’s burden was to demonstrate that his statement was obtained solely for litigation purposes … . To that end, defendant submitted the affidavit of Dennis Stauffer, who was Gavin’s supervisor at the time of the incident. Stauffer explained that Gavin was no longer employed by the insurer and that she procured the statement in accord with the insurer’s “normal practice in anticipation of future litigation.” In our view, Stauffer’s affidavit, coupled with Gavin’s own characterization of the interview as part of the normal claims process, satisfied defendant’s threshold burden of proof … . There is no dispute that ownership of the log splitter is a key issue, but plaintiffs have other means available to explore this issue, and they have not demonstrated any undue hardship if the statement is withheld. Nor is there any indication that the statement was taken for some purpose other than preparing for litigation. Curci v Foley, 2017 NY Slip Op 03100, 3rd Dept 4-20-17

 

INSURANCE LAW (RECORDED PHONE CONVERSATION WITH INSURER PROTECTED AS A STATEMENT PREPARED FOR LITIGATION)/PRIVILEGE (RECORDED PHONE CONVERSATION WITH INSURER PROTECTED AS A STATEMENT PREPARED FOR LITIGATION)/EVIDENCE (INSURANCE LAW, RECORDED PHONE CONVERSATION WITH INSURER PROTECTED AS A STATEMENT PREPARED FOR LITIGATION)

JUDGE’S REFUSAL TO ACCEPT PARTIES’ AGREEMENT ON ALL BUT ONE ISSUE WAS AN ABUSE OF DISCRETION.

The Third Department expressed concern with the Family Court judge’s refusal to accept the parties’ agreement on nearly all issues, holding a hearing on all issues, and then making a finding which did not reflect the agreement. The matter was remitted for a hearing in front of a different judge:

On January 22, 2015, the date on which the matter was scheduled for a hearing, the parties reported to Family Court that they had resolved all outstanding issues, except for their dispute over a 2½ hour block of time on the Fridays that the father had physical custody of the child. The court responded that, “if we have a trial, everything is opened up and I don’t know what the other issues are.” The mother’s counsel replied, “[W]e’ve agreed to all the other issues.” The father’s counsel then advised that, despite some initial hesitancy as to where the child went to school, “the year ha[d] gone well [and] the child [was] doing well.” The colloquy continued, with Family Court inexplicably cautioning that, if the parties did not fully settle the case, it would consider directing that the child be enrolled in private school — an option neither party proposed or desired, and which the court had characterized as “[o]utrageously expensive.” Counsel for the mother eventually reiterated that they were “prepared to go forward on the trial on th[e] two-hour [pick-up] issue . . ., with everything else being resolved.” The father’s counsel responded, “likewise.” Family Court, however, persisted, stating, “If I’m going to sit here and we’re gonna (sic) hear testimony, I want to hear it all.” After a brief recess, counsel informed the court that the pick-up issue remained in dispute. The court stated, “We’re trying it on the whole issue of where is this child going to school and whether or not there were violations of the order of custody.” A hearing on all matters then ensued at the insistence of Family Court.

Family Court abused its discretion by not accepting the parties’ resolution to continue the child’s enrollment in the mother’s school district when there was no evidence that such agreement was not in the child’s best interests. At the time, the attorney for the child supported the parties’ proposed agreement. Moreover, the court’s concern that the mother violated the prior joint custody order by enrolling the child in the kindergarten program, without first informing the father, was unwarranted. No such violation was asserted by the father, and the mother endeavored to explain several times, without contradiction, that since the child had attended the pre-kindergarten program in her school district, the district continued the child’s enrollment in the kindergarten program. For these reasons, a new judge must be assigned upon remittal. Matter of Woodrow v Arnold, 2017 NY Slip Op 03081, 3rd Dept 4-20-17

 

FAMILY LAW (JUDGE’S REFUSAL TO ACCEPT PARTIES’ AGREEMENT ON ALL BUT ONE ISSUE WAS AN ABUSE OF DISCRETION)/JUDGES (FAMILY LAW, JUDGE’S REFUSAL TO ACCEPT PARTIES’ AGREEMENT ON ALL BUT ONE ISSUE WAS AN ABUSE OF DISCRETION)

HEARING OFFICER’S FAILURE TO INQUIRE INTO A WITNESS’S REFUSAL TO TESTIFY REQUIRED ANNULMENT.

The Third Department annulled the determination because the hearing officer did not inquire into the reason for an inmate witness’s refusal to testify:

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… [P]etitioner] asserts that the Hearing Officer failed to make any inquiry into the reason that an inmate, who had initially agreed to testify, later changed his mind. The record discloses that this inmate told petitioner’s assistant that he would testify at the hearing, but subsequently refused. Although the inmate did not execute a witness refusal form, he signed a written statement indicating that he did not want to testify out of fear of retaliation. At the hearing, petitioner expressed his desire to have this inmate testify because he was housed in a location where he may have witnessed the incidents in question, and he requested that the Hearing Officer ascertain whether the inmate’s refusal was legitimate. The Hearing Officer did not conduct any further inquiry, and ultimately denied the inmate as a witness.

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The Court of Appeals recently held in Matter of Cortorreal v Annucci (28 NY3d 54, 60 [2016]) that where “a refusing inmate witness claims that he or she was coerced into refusing to testify at the hearing . . ., the hearing officer has an obligation to undertake a meaningful inquiry into the allegation.” Here, as in Matter of Cortorreal v Annucci (supra), the Hearing Officer did not make any inquiry of the inmate regarding his fear of retaliation, which was clearly a form of coercion. Rather, the Hearing Officer proceeded to deny petitioner’s request for this witness as redundant ,,, . In the circumstances presented, the subsequent denial does not excuse the Hearing Officer’s failure to make a further inquiry into the inmate’s refusal. Matter of Kalwasinski v Venettozzi, 2017 NY Slip Op 03092, 3rd Dept 4-20-17

 

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S FAILURE TO INQUIRE INTO A WITNESS’S REFUSAL TO TESTIFY REQUIRED ANNULMENT)

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COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN.

The Third Department noted that it was improper for County Court to require defendant to waive his right to appeal because there was no agreement associated with his guilty plea:

… [I]it was improper for County Court to require defendant to waive his right to appeal, as the record establishes that “there was no promise, plea agreement, reduced charge, or any other bargain or consideration given to . . . defendant in exchange for his plea” … . As such, defendant’s challenge to the sentence is not precluded. People v Tarver, 2017 NY Slip Op 03079, 3rd Dept 4-20-17

CRIMINAL LAW (COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN)/APPEALS (CRIMINAL LAW, COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN)/WAIVER OF APPEAL (CRIMINAL LAW, COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN)

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ALTHOUGH THE NOTE WAS NOT NEGOTIABLE, IT SUFFICIENTLY MEMORIALIZED THE DEBT UNDER CONTRACT PRINCIPLES.

The Third Department determined plaintiff was entitled a judgment based upon a note with was not negotiable but which was enforceable as a contract. Although the note did not specify when the money was to be paid back, payback in a reasonable time could be implied:

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Defendant asserts that the note was unenforceable as a matter of law. Although the note did not constitute a negotiable instrument, it may still be enforceable under traditional principles of contract law … . As Supreme Court found, the note “memorialize[d] a debt between the parties and by signing same . . . defendant has acknowledged that debt and his obligation to pay same.” And, while the note stated that the money was to be repaid at a time “[t]o be agreed upon” by the parties, “[w]hen a contract does not specify time of performance, the law implies a reasonable time” … ; here, plaintiff testified that there was an expectation that he would be repaid within two years. Shlang v Inbar, 2017 NY Slip Op 03107, 3rd Dept 4-20-17

CONTRACT LAW (ALTHOUGH THE NOTE WAS NOT NEGOTIABLE, IT SUFFICIENTLY MEMORIALIZED THE DEBT UNDER CONTRACT PRINCIPLES)/DEBTOR-CREDITOR  (ALTHOUGH THE NOTE WAS NOT NEGOTIABLE, IT SUFFICIENTLY MEMORIALIZED THE DEBT UNDER CONTRACT PRINCIPLES)/NOTES (ALTHOUGH THE NOTE WAS NOT NEGOTIABLE, IT SUFFICIENTLY MEMORIALIZED THE DEBT UNDER CONTRACT PRINCIPLES)

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