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DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED; PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER.

The Third Department, reversing defendant’s conviction, determined the trial judge erred when the full circumstantial evidence jury instruction was not given. There was no direct evidence identifying defendant as the robber of the victim, who was sitting in his car at the time he was robbed. Blood matched to the defendant by DNA evidence was found on the handle of the door of the victim’s car. The Third Department also noted that the prosecutor exceeded the bounds of acceptable commentary during summation when he told the jury the blood on the victim’s car belonged to the robber:

Contrary to the People’s assertion, this was not a case “where both direct and circumstantial evidence [were] employed to demonstrate . . . defendant’s culpability[,] thereby negating the need for the [requested] charge” … . While there indeed is no question — based upon the victim’s testimony and the photographic evidence contained in the record — that the charged crimes did in fact occur, the record makes clear — and the People readily concede — that there was no direct evidence identifying defendant as the perpetrator. In this regard, while the People are correct that a DNA match “can provide strong evidence of a person’s presence at and participation in a criminal act” … , a defendant’s mere presence at the scene of the crime in close temporal proximity to its commission does not establish his or her identity as the perpetrator … . Simply put, where there is no direct evidence linking the defendant to the charged crimes, courts consistently have required that a circumstantial evidence charge be given … . As the People’s proof relative to the identity of the perpetrator here was entirely circumstantial, Supreme Court should have granted defendant’s request to charge the jury accordingly; moreover, as the proof against defendant was less than overwhelming, we cannot deem the court’s failure to grant the requested charge to be harmless error … . People v James, 2017 NY Slip Op 01409, 3rd Dept 2-23-17

CRIMINAL LAW (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/EVIDENCE (CRIMINAL LAW, DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/ATTORNEYS (CRIMINAL LAW, (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/PROSECUTORIAL MISCONDUCT (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/DNA (CRIMINAL LAW, (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/CIRCUMSTANTIAL EVIDENCE (CRIMINAL LAW,  DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)

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PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT SUBSTANTIALLY WEAKENED BUT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION; DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION.

The Third Department, reversing defendant’s conviction, determined the People should not have been allowed to impeach their own witness (Abellman) with a prior inconsistent statement which did not contradict the People’s theory of prosecution and the trial judge should have instructed the jury on circumstantial evidence:

Abellman indicated in a written statement to investigators and testimony before the grand jury that defendant was his heroin supplier and that defendant’s heroin was stashed at the apartment. Abellman testified at trial, however, that he did not know defendant, had never bought drugs from defendant and did not recall ever having been to the apartment. * * * … [T]he People extensively questioned Abellman regarding his prior statements by asking if he recalled previously saying, among other things, that defendant supplied him with heroin and that he and defendant frequently went to the apartment to bag heroin and cocaine for sale.

While “[e]vidence of a prior contradictory statement may be received for the limited purpose of impeaching [a] witness’s credibility with respect to his or her testimony,” it is inadmissible where “the testimony of the witness ‘does not tend to disprove the position of the party who called him [or her] and elicited [the contradictory] testimony'” … . Abellman’s trial testimony falls into the latter category, as he did not call defendant’s connection to the heroin into question and only maintained that he had no knowledge of whatever connection there might be. This claimed lack of knowledge “merely failed to corroborate or bolster the [People]’s case” and did not affirmatively “contradict or disprove” evidence presented by them … . …

There was direct evidence of defendant’s dominion and control over the apartment [where the herein was found] but, as things ultimately stood, proof of his dominion and control over the heroin and related items was circumstantial. County Court was obliged to, but did not, give a circumstantial evidence charge to the jury under these circumstances … . People v Gaston, 2017 NY Slip Op 01411, 3rd Dept 2-23-17

 

CRIMINAL LAW (PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/EVIDENCE (CRIMINAL LAW, PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/PRIOR INCONSISTENT STATEMENT (CRIMINAL LAW, EOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/CONSTRUCTIVE POSSESSION (PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/IMPEACHMENT (CRIMINAL LAW, PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/CIRCUMSTANTIAL EVIDENCE (CRIMINAL LAW, (PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)

UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS.

The Third Department, in the interest of justice, determined that the attempted kidnapping conviction merged with the sexual abuse and assault convictions:

The merger doctrine bars convictions for kidnapping “based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them” … . While application of the doctrine is dependent on the particular facts and circumstances of each case, “a kidnapping is generally deemed to merge with another offense . . . ‘where there is minimal asportation immediately preceding’ the other crime or ‘where the restraint and underlying crime are essentially simultaneous'” … .

Here, the victim’s testimony, as well as the surveillance footage, established that defendant immediately began punching the victim upon opening the door to her vehicle and that, after dragging her roughly 58 feet, he continued to punch the victim while forcibly subjecting her to sexual contact. This brutal encounter lasted between three and four minutes. Under these circumstances, because the conduct underlying the charge of attempted kidnapping in the second degree was simultaneous to, and inseparable from, the conduct underlying the charges of sexual abuse in the first degree and assault in the second degree … , we must apply the doctrine of merger, reverse defendant’s conviction of attempted kidnapping in the second degree and dismiss that count of the indictment … . People v Bautista, 2017 NY Slip Op 01410, 3rd Dept 2-23-17

CRIMINAL LAW (UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS)/KIDNAPPING (UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS)/MERGER (CRIMINAL LAW, UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS)

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AGREEMENT TO FOREGO APPLYING FOR A REAL PROPERTY TAX EXEMPTION IN RETURN FOR THE TRANSFER OF TWO BUILDINGS FOR ONE DOLLAR WAS ENFORCEABLE.

The Third Department determined defendant non-profit breached material terms of its contract with the city. The city transferred two buildings to the non-profit in return for promises to bring the buildings into compliance and not to seek a property tax exemption for 20 years. The buildings were not brought into compliance, and defendant sought and received property tax exemptions. Because the tax exemptions were granted, the Third Department found there was a question of fact whether the city waived that term of the contract:

… [P]laintiff demonstrated that the compliance provision was an integral and material part of the contract and that defendant’s breach substantially defeated the contract’s purpose … . Plaintiff’s proof also established that, under the circumstances presented here, rescission of the contract is the only adequate remedy … . * * *

… “[T]he Constitution and the State Legislature, in the furtherance of the general welfare, have established a clear policy that [educational] institutions are to be free, if they so choose, from local taxes” … . Contrary to defendant’s contention, we find that nothing in NY Constitution, article XVI, § 1 or RPTL 420-a prohibits an educational organization, such as defendant, from freely choosing to refrain from applying for a real property tax exemption. Rather, the prohibition set forth is to restrain municipalities from denying a real property tax exemption to a statutorily exempt organization once an application has been submitted or attempting to extort the organization’s waiver of the exemption … . Accordingly, we find that the tax exemption provision is enforceable. * * *

… [A]lthough we agree that rescission is the appropriate remedy for defendant’s established breaches of the contract, rescission would be premature at this point because issues of fact exist as to defendant’s affirmative defense of waiver. City of Schenectady v Edison Exploratorium, Inc., 2017 NY Slip Op 01427, 3rd Dept 2-23-17

 

CONTRACT LAW (MUNICIPAL LAW, AGREEMENT TO FOREGO APPLYING FOR A REAL PROPERTY TAX EXEMPTION IN RETURN FOR THE TRANSFER OF TWO BUILDINGS FOR ONE DOLLAR WAS ENFORCEABLE)/REAL PROPERTY TAX LAW (MUNICIPAL LAW, AGREEMENT TO FOREGO APPLYING FOR A REAL PROPERTY TAX EXEMPTION IN RETURN FOR THE TRANSFER OF TWO BUILDINGS FOR ONE DOLLAR WAS ENFORCEABLE)/MUNICIPAL LAW (CONTRACT LAW, AGREEMENT TO FOREGO APPLYING FOR A REAL PROPERTY TAX EXEMPTION IN RETURN FOR THE TRANSFER OF TWO BUILDINGS FOR ONE DOLLAR WAS ENFORCEABLE)

COMPLAINT BY PLAINTIFF, WHO HAD COMMITTED MURDER, SUFFICIENTLY ALLEGED THE FILM ABOUT HIM WAS INTENDED TO BE FICTIONAL AND THEREFORE WAS SUBJECT TO THE PRIVACY PROTECTIONS OF THE CIVIL RIGHTS LAW, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED.

The Third Department determined the plaintiff’s complaint, alleging a violation of privacy under Civil Rights Law 50 and 51, stated a cause of action and should not have been dismissed. Plaintiff was convicted of the murder of his father and the attempted murder of his mother. The defendant made a film about the plaintiff and the crime which was aired nationally. Even films which purport to deal with factual, newsworthy events can violate the Civil Rights Law if the films are deemed to have fictionalized the events. The Third Department determined the allegations sufficiently supported plaintiff’s claim that the film was intended to be fictional to avoid dismissal at the pleading stage:

New York provides a limited statutory right of privacy. Pursuant to Civil Rights Law § 50, it is a misdemeanor when a firm or corporation “uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such a person” … . Similarly, Civil Rights Law § 51 allows a plaintiff to “maintain an equitable action in the supreme court of this state against the [firm or corporation] so using his [or her] name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use” … . The Legislature intended for this statutory protection of privacy to be “strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person” … , and these statutory provisions “do not apply to reports of newsworthy events or matters of public interest” … .

The scope of the newsworthiness exception to liability, however, must be construed in accordance with binding Court of Appeals precedent. The Court of Appeals has held that statutory liability applies to a materially and “substantially fictitious biography” … where a “knowing fictionalization” amounts to an “all-pervasive” use of imaginary incidents … and a biography that is “nothing more than [an] attempt[] to trade on the persona” of the plaintiff … . Porco v Lifetime Entertainment Servs., LLC, 2017 NY Slip Op 01421, 3rd Dept 2-23-17

CIVIL RIGHTS LAW (COMPLAINT BY PLAINTIFF, WHO HAD COMMITTED MURDER, SUFFICIENTLY ALLEGED THE FILM ABOUT HIM WAS INTENDED TO BE FICTIONAL AND THEREFORE WAS SUBJECT TO THE PRIVACY PROTECTIONS OF THE CIVIL RIGHTS LAW, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED)/NEWSWORTHINESS EXCEPTION (CIVIL RIGHTS LAW, COMPLAINT BY PLAINTIFF, WHO HAD COMMITTED MURDER, SUFFICIENTLY ALLEGED THE FILM ABOUT HIM WAS INTENDED TO BE FICTIONAL AND THEREFORE WAS SUBJECT TO THE PRIVACY PROTECTIONS OF THE CIVIL RIGHTS LAW, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED)

ALTHOUGH DEFECTS IN GUILTY PLEA NOT PRESERVED BY A MOTION, PLEA VACATED IN THE INTEREST OF JUSTICE BECAUSE JUDGE DID NOT ENSURE DEFENDANT UNDERSTOOD THE CONSTITUTIONAL RIGHTS HE WAS GIVING UP.

The Third Department determined defendant’s waiver of appeal was inadequate and there was no assurance defendant understood the constitutional rights waived by his guilty plea. The plea was vacated, in the interest of justice, on that ground:

Although defendant’s challenge to the plea was not preserved through an appropriate postallocution motion … , we exercise our interest of justice jurisdiction to reverse the judgment … . “While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights” … .

Here, County Court made no effort to explain the consequences of a guilty plea, making only a passing reference to them by asking defendant if anyone was forcing him to give up his “right[] to [a] jury trial” … . The court further failed to establish that defendant had consulted with his counsel about the trial-related rights that he was forfeiting by pleading guilty or the constitutional consequences of a guilty plea, “instead making a vague inquiry into whether defendant had spoken to defense counsel” … or had any questions of his counsel regarding his “rights,” “the plea bargain, the trial and anything else that [was] important to [him]” … . With no affirmative showing on the record that defendant understood and waived his constitutional rights when he entered the guilty plea, the plea was invalid and must be vacated … . People v Herbert, 2017 NY Slip Op 01408, 3rd Dept 2-23-17

CRIMINAL LAW (ALTHOUGH DEFECTS IN GUILTY PLEA NOT PRESERVED BY A MOTION, PLEA VACATED IN THE INTEREST OF JUSTICE BECAUSE JUDGE DID NOT ENSURE DEFENDANT UNDERSTOOD THE CONSTITUTIONAL RIGHTS HE WAS GIVING UP)/GUILTY PLEA (ALTHOUGH DEFECTS IN GUILTY PLEA NOT PRESERVED BY A MOTION, PLEA VACATED IN THE INTEREST OF JUSTICE BECAUSE JUDGE DID NOT ENSURE DEFENDANT UNDERSTOOD THE CONSTITUTIONAL RIGHTS HE WAS GIVING UP)

EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S FINDING PLAINTIFF’S HEAD INJURY WAS A SERIOUS INJURY WITHIN THE MEANING OF INSURANCE LAW 5102, SUPREME COURT REVERSED.

The Third Department, in a full-fledged opinion by Justice Clark, over a dissent, reversing Supreme Court, determined plaintiff had proved at trial that he suffered a serious injury within the meaning of Insurance Law 5102 (d) and was therefore entitled to the jury’s damages award. Plaintiff was unloading his car when defendant’s car struck plaintiff’s, which then struck plaintiff. Plaintiff came out of his shoes and was thrown to the sidewalk. He was knocked unconscious, suffered a gash on the back of his head, and suffered a concussion. Plaintiff presented evidence at trial of traumatic brain injury with cognitive loss. The trial judge had granted defendant’s motion to set aside the verdict and dismissed the complaint, finding the evidence of serious injury insufficient:

Notwithstanding the negative scans, the absence of neurological testing and the subjectivity of plaintiff’s complaints, many of plaintiff’s reported symptoms, including his impaired concentration and balance and difficulty with problem solving and word retrieval, were objectively and personally observed by plaintiff’s primary care physician, who had the necessary historical knowledge and ability to compare his clinical, postaccident observations of plaintiff’s condition to his prior observations of plaintiff’s preaccident condition … . Contrary to the dissent’s assertion, the primary care physician’s treatment and assessment of plaintiff’s injuries were also informed by his review of the medical records of the rehabilitation psychologist and plaintiff’s physical and occupational therapists, which documented their objective observations of plaintiff’s physical and cognitive deficiencies and limited improvements over a period of nearly two years. Moreover, the bases for the primary care physician’s qualitative assessment of the seriousness of plaintiff’s injury, including his observations of plaintiff’s preaccident and postaccident conditions, as well as the accuracy of his memory, could “be tested during cross-examination, challenged by another expert and weighed by the trier of fact” … .

In our view, the comparative determination of plaintiff’s primary care physician, taken together with plaintiff’s defined head wound and subjective complaints immediately after the accident and continuing four years later, provided the jury with a valid line of reasoning and permissible inferences that could lead it to the rational conclusion that plaintiff suffered a permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system … . Rodman v Deangeles, 2017 NY Slip Op 01260, 3rd Dept 2-16-17

 

INSURANCE LAW (EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S FINDING PLAINTIFF’S HEAD INJURY WAS A SERIOUS INJURY WITHIN THE MEANING OF INSURANCE LAW 5102, SUPREME COURT REVERSED)/NO-FAULT (EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S FINDING PLAINTIFF’S HEAD INJURY WAS A SERIOUS INJURY WITHIN THE MEANING OF INSURANCE LAW 5102, SUPREME COURT REVERSED)/SERIOUS INJURY (NO-FAULT INSURANCE, EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S FINDING PLAINTIFF’S HEAD INJURY WAS A SERIOUS INJURY WITHIN THE MEANING OF INSURANCE LAW 5102, SUPREME COURT REVERSED)

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ATTORNEY’S FEE PROPERLY REDUCED TO $450, FEE APPLICATION NOT PROPERLY FILLED OUT.

The Third Department determined the Worker’s Compensation Board correctly reduced attorney’s fees because the fee application form was not properly completed:

… [C]laimant’s counsel contends that the Board erred in reducing the WCLJ’s award of counsel fees based upon counsel’s failure to complete the OC-400.1 fee application form with respect to dates or time spent on the services rendered. Where counsel requests a fee in excess of $450, the Board’s rules and regulations provide that an attorney must file a written application for such fee using form OC-400.1 and that form must be “accurately completed” (12 NYCRR 300.17 [d] [1]). The form specifically instructs an attorney to, among other things, include the dates that the services were rendered and the time spent [FN3]. Such information, which is also required to be provided to a claimant, is relevant to the Board’s evaluation of the services rendered (see 12 NYCRR 300.17 [e], [f], [g]). “The Board may approve counsel fees ‘in an amount commensurate with the services rendered'” … , and its award will not be disturbed absent a showing that it is arbitrary and capricious or an abuse of discretion … . Here, counsel listed the services rendered, but inserted “35 hours” for the time spent on the services and did not indicate any dates upon which the services were performed or the amount of time spent on each service rendered. Under these circumstances, we do not find that the Board abused its discretion or acted in an arbitrary and capricious manner in finding the OC-400.1 fee application form defective and reducing the counsel fees to the maximum $450 fee permitted in the absence of the accurate completion of such application form … . Matter of Curcio v Sherwood 370 Mgt. LLC, 2017 NY Slip Op 01047, 3rd Dept 2-9-17

WORKER’S COMPENSATION LAW (ATTORNEY’S FEE PROPERLY REDUCED TO $450, FEE APPLICATION NOT PROPERLY FILLED OUT)/ATTORNEYS (WORKER’S COMPENSATION LAW, ATTORNEY’S FEE PROPERLY REDUCED TO $450, FEE APPLICATION NOT PROPERLY FILLED OUT)

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

The Third Department explained the different purposes for the terms “loss of wage-earning capacity” and “wage-earning capacity:”

The employer argues that claimant’s compensation must be calculated based upon his wage-earning capacity pursuant to Workers’ Compensation Law § 15 (5-a) and that, because he was working at full wages, his wage-earning capacity was 100% at the time of classification and that the finding of a 25% loss of wage-earning capacity was accordingly unlawful.

The term “loss of wage-earning capacity” was added in 2007 as part of the reform of the Workers’ Compensation Law …, and “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 contrast, wage-earning capacity is used to determine a claimant’s weekly rate of compensation … . As this Court recently explained in detail, “the legislative history makes clear that ‘wage-earning capacity’ and ‘loss of wage-earning capacity’ are to be used for separate and distinct purposes” … . Indeed, “[u]nlike wage-earning capacity, which can fluctuate based on the claimant’s employment status, loss of wage-earning capacity was intended to remain fixed” … . In light of the separate and distinct purposes for the calculation of a loss of wage-earning capacity and the wage-earning capacity, the Board was free to establish the duration of claimant’s benefits by classifying him with a 25% loss of wage-earning capacity in order to set a fixed durational limit on potential benefits. Matter of Barrett v New York City Dept. of Transp., 2017 NY Slip Op 01037, 3rd Dept 2-9-17

 

WORKER’S COMPENSATION LAW (THE DIFFERENT PURPOSES OF THE TERMS “LOSS OF WAGE-EARNING CAPACITY” AND “WAGE-EARNING CAPACITY” EXPLAINED)

EMPLOYER ENTITLED TO FULL REIMBURSEMENT OF WAGES PAID TO CLAIMANT SINCE THE ACCIDENT, DESPITE THE FACT THAT CLAIMANT WAS NOT PAID COMPENSATION BENEFITS FOR THE ENTIRE TIME SINCE THE ACCIDENT.

The Third Department determined that an employer who paid the claimant during the disability period was entitled to reimbursement from the award for the entire time beginning when the accident occurred, despite the fact that claimant was not awarded compensation for that entire period:

Claimant does not dispute that the employer paid him wages for the period of his disability prior to the schedule award and that the employer filed a timely claim for reimbursement with the Board as required by Workers’ Compensation Law § 25 (4) (a) … . Claimant challenges the Board’s reimbursement directive upon the ground that the reimbursement here covers a period of time when there were no awards of compensation made, arguing that, as a result, the employer is not entitled to reimbursement of wages paid to claimant during those periods of time and that the amount of reimbursement should be reduced.

However, under settled law, where, as here, a claimant ultimately receives a schedule loss of use award, “an employer has the right to reimbursement for the full amount of wages paid during a claimant’s period of disability from the claimant’s schedule award of worker[s’] compensation benefits” … . * * *  Inasmuch as claimant received a schedule award compensating him for the partial loss of use of his right foot, the Board was correct in finding that the employer was entitled to full reimbursement out of that award for all of its advanced payment of wages to claimant during that time (see Workers’ Compensation Law § 25 [4] [a]). The fact that a temporary disability award was denied during part of that period based upon missing medical evidence in the Board’s record is not relevant to the employer’s entitlement to reimbursement. Matter of Newbill v Town of Hempstead, 2017 NY Slip Op 01049, 3rd Dept 2-9-17

 

WORKER’S COMPENSATION LAW (EMPLOYER ENTITLED TO FULL REIMBURSEMENT OF WAGES PAID TO CLAIMANT SINCE THE ACCIDENT, DESPITE THE FACT THAT CLAIMANT WAS NOT PAID COMPENSATION BENEFITS FOR THE ENTIRE TIME SINCE THE ACCIDENT)

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