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CAUSES OF ACTION AGAINST ACCOUNTANTS STEMMING FROM A WORKERS’ COMPENSATION TRUST FOUND TO BE $8 MILLION IN DEBT SURVIVED MOTIONS TO DISMISS, SIX YEAR STATUTE OF LIMITATIONS APPLIES TO INTENTIONAL (AS OPPOSED TO NEGLIGENT) CONDUCT.

The Third Department determined Supreme Court should not have dismissed the breach of fiduciary duty cause of action against defendant accountants (Fuller) stemming from a workers’ compensation trust found to be more than $8 million in debt. The 2nd Department also found Supreme Court properly applied the six year statute of limitations to the allegedly intentional acts by the defendant accountants (designed to conceal the debt). The defendant accountants unsuccessfully argued the three-year (negligence/malpractice) statute of limitations should apply. Regarding the breach of fiduciary duty cause of action, the 2nd Department explained:

Although the duty owed by an accountant is generally not fiduciary in nature … , a fiduciary relationship exists where the accountant is “under a duty to act for or to give advice for the benefit of [the client] upon matters within the scope of the relation” … . This inquiry is “necessarily fact-specific” … , and the dispositive factor is whether there is “confidence on one side and resulting superiority and influence on the other” … . Plaintiff alleged that Fuller held itself out to have the requisite skill and expertise to maintain the trust’s financial records, provide auditing services and — importantly — provide advice to the trust regarding the trust’s financial status. According to plaintiff, Fuller breached its fiduciary duty by knowingly and consistently concealing the trust’s true financial condition and failing to properly advise the trust regarding its solvency, causing over $8 million in damages. Accepting these allegations as true and giving plaintiff the benefit of every favorable inference … , we find that plaintiff’s cause of action for breach of fiduciary duty is sufficiently stated to survive Fuller’s motion to dismiss … .  New York State Workers’ Compensation Bd. v Fuller & LaFiura, CPAs, P.C., 2017 NY Slip Op 00225, 3rd Dept 1-12-17

 

WORKERS’ COMPENSATION LAW (CAUSES OF ACTION AGAINST ACCOUNTANTS STEMMING FROM A WORKERS’ COMPENSATION TRUST FOUND TO BE $8 MILLION IN DEBT SURVIVED MOTIONS TO DISMISS)/FRAUD (CAUSES OF ACTION AGAINST ACCOUNTANTS STEMMING FROM A WORKERS’ COMPENSATION TRUST FOUND TO BE $8 MILLION IN DEBT SURVIVED MOTIONS TO DISMISS)/CIVIL PROCEDURE (SIX YEAR STATUTE OF LIMITATIONS APPLIED TO INTENTIONAL ACTS BY ACCOUNTANTS, CAUSES OF ACTION AGAINST ACCOUNTANTS STEMMING FROM A WORKERS’ COMPENSATION TRUST FOUND TO BE $8 MILLION IN DEBT SURVIVED MOTIONS TO DISMISS)/FIDUCIARY DUTY (BREACH OF FIDUCIARY DUTY CAUSE OF ACTION AGAINST ACCOUNTANTS STEMMING FROM A WORKERS’ COMPENSATION TRUST FOUND TO BE $8 MILLION IN DEBT SHOULD HAVE SURVIVED MOTION TO DISMISS)/ACCOUNTANTS (CAUSES OF ACTION AGAINST ACCOUNTANTS STEMMING FROM A WORKERS’ COMPENSATION TRUST FOUND TO BE $8 MILLION IN DEBT SURVIVED MOTIONS TO DISMISS, SIX YEAR STATUTE OF LIMITATIONS APPLIED TO INTENTIONAL ACTS BY ACCOUNTANTS)/STATUTE OF LIMITATIONS CAUSES OF ACTION AGAINST ACCOUNTANTS STEMMING FROM A WORKERS’ COMPENSATION TRUST FOUND TO BE $8 MILLION IN DEBT SURVIVED MOTIONS TO DISMISS, SIX YEAR STATUTE OF LIMITATIONS APPLIED TO INTENTIONAL ACTS BY ACCOUNTANTS)

HOMEOWNERS INSURANCE COMPANY HAD DUTY TO DEFEND IN AN ACTION STEMMING FROM A SHOOTING BY THE INSURED, SHOOTING MAY HAVE BEEN UNINTENTIONAL (RECKLESS).

The Third Department determined defendant insurer (homeowners policies) had a duty to defend plaintiff in an action brought by one Prindle, who was shot by plaintiff. The shooting could have been unintentional and therefore covered under the policy:

An insurance company’s duty to defend “is exceedingly broad and an insurer will be called upon to provide a defense whenever the allegations of the complaint suggest a reasonable possibility of coverage” … . If the complaint’s allegations bring the claim “even potentially within the embrace of the policy, the insurer must defend its insured no matter how groundless, false or baseless the suit may be” … . …

Here, Prindle’s complaint alleged that plaintiff “assault[ed] [Prindle] . . . by shooting [Prindle] in the abdomen” and that “as a result of the assault,” Prindle sustained personal injuries. While Prindle’s complaint also alleged that plaintiff was arrested and criminally charged with assault, there was no further specification as to this criminal charge raised against plaintiff … . Inasmuch as an assault may derive from an individual’s recklessness or criminal negligence (see Penal Law § 120.00 [2], [3]), a reasonable possibility exists that plaintiff’s actions were not intentional, as defendant argues … . …

Because the shooting can be reasonably interpreted as having stemmed from plaintiff’s unintentional conduct, we conclude that defendant’s duty to defend was triggered under the insurance policy … . Guzy v New York Cent. Mut. Fire Ins. Co., 2017 NY Slip Op 00233, 3rd Dept 1-12-17

 

INSURANCE LAW (HOMEOWNERS INSURANCE COMPANY HAD DUTY TO DEFEND IN AN ACTION STEMMING FROM A SHOOTING BY THE INSURED, SHOOTING MAY HAVE BEEN UNINTENTIONAL (RECKLESS))/DUTY TO DEFEND (INSURANCE LAW, HOMEOWNERS INSURANCE COMPANY HAD DUTY TO DEFEND IN AN ACTION STEMMING FROM A SHOOTING BY THE INSURED, SHOOTING MAY HAVE BEEN UNINTENTIONAL (RECKLESS))/ASSAULT (INSURANCE LAW, HOMEOWNERS INSURANCE COMPANY HAD DUTY TO DEFEND IN AN ACTION STEMMING FROM A SHOOTING BY THE INSURED, SHOOTING MAY HAVE BEEN UNINTENTIONAL (RECKLESS))/SHOOTING (ASSAULT, INSURANCE LAW, HOMEOWNERS INSURANCE COMPANY HAD DUTY TO DEFEND IN AN ACTION STEMMING FROM A SHOOTING BY THE INSURED, SHOOTING MAY HAVE BEEN UNINTENTIONAL (RECKLESS))

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IN A LAWSUIT BY EMPLOYERS AGAINST THE ADMINISTRATORS AND TRUSTEES OF A WORKERS’ COMPENSATION TRUST FOUND TO BE $188 MILLION IN DEBT, THE EMPLOYERS WERE DEEMED THIRD PARTY BENEFICIARIES OF THE CONTRACT BETWEEN THE ADMINISTRATORS AND THE TRUST, MANY OF THE EMPLOYERS’ NONCONTRACTUAL CLAIMS WERE PROPERLY DISMISSED AS DERIVATIVE (PERTAINING TO THE TRUST) RATHER THAN DIRECT.

In a case related to State of N.Y. Workers’ Compensation Bd. v Wang, 2017 NY Slip Op 00057, 3rd Dept 1-5-17, referenced immediately above, the Third Department, in a full-fledged opinion by Justice Garry (much too complex to summarize here), determined, inter alia, (1) the employer plaintiffs could sue as third-party beneficiaries of the contract between the workers’ compensation trust and its administrators, and (2) many of the employers’ noncontractual claims were properly dismissed as derivative, i.e., pertaining to the trust, rather than direct:

This Court recently held that an employer member of a group self-insured trust successfully alleges third-party beneficiary status by asserting “(1) the existence of a valid and binding contract between [the trust and its administrators], (2) that the contract was intended for [the employer member’s] benefit, and (3) that the benefit to [the employer member] is sufficiently immediate to indicate the assumption by [the trust and its administrators] of a duty to compensate it if the benefit is lost” … . * * *

Supreme Court dismissed many of [the noncontractual] causes of action upon determining that they belonged in the first instance to the trust rather than to the employer members and were thus derivative rather than direct. The distinction between derivative and direct claims is grounded upon the principle that a stockholder does not have an individual cause of action that derives from harm done to the corporation, but may bring a direct claim when “the wrongdoer has breached a duty owed directly to the shareholder which is independent of any duty owing to the corporation” … . In determining whether a claim is direct or derivative, a court must “look to the nature of the wrong and to whom the relief should go” and should consider “(1) who suffered the alleged harm (the corporation or the suing stockholders, individually); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders, individually)” … . Accredited Aides Plus, Inc. v Program Risk Mgt., Inc., 2017 NY Slip Op 00058, 3rd Dept 1-5-17

 

WORKERS’ COMPENSATION LAW  (IN A LAWSUIT BY EMPLOYERS AGAINST THE ADMINISTRATORS AND TRUSTEES OF A WORKERS’ COMPENSATION TRUST FOUND TO BE $188 MILLION IN DEBT, THE EMPLOYERS WERE DEEMED THIRD PARTY BENEFICIARIES OF THE CONTRACT BETWEEN THE ADMINISTRATORS AND THE TRUST, MANY OF THE EMPLOYERS’ NONCONTRACTUAL CLAIMS WERE PROPERLY DISMISSED AS DERIVATIVE (PERTAINING TO THE TRUST) RATHER THAN DIRECT)/TRUSTS AND ESTATES (WORKERS’ COMPENSATION TRUST, IN A LAWSUIT BY EMPLOYERS AGAINST THE ADMINISTRATORS AND TRUSTEES OF A WORKERS’ COMPENSATION TRUST FOUND TO BE $188 MILLION IN DEBT, THE EMPLOYERS WERE DEEMED THIRD PARTY BENEFICIARIES OF THE CONTRACT BETWEEN THE ADMINISTRATORS AND THE TRUST, MANY OF THE EMPLOYERS’ NONCONTRACTUAL CLAIMS WERE PROPERLY DISMISSED AS DERIVATIVE (PERTAINING TO THE TRUST) RATHER THAN DIRECT)/CONTRACT LAW (WORKERS’ COMPENSATION TRUST, IN A LAWSUIT BY EMPLOYERS AGAINST THE ADMINISTRATORS AND TRUSTEES OF A WORKERS’ COMPENSATION TRUST FOUND TO BE $188 MILLION IN DEBT, THE EMPLOYERS WERE DEEMED THIRD PARTY BENEFICIARIES OF THE CONTRACT BETWEEN THE ADMINISTRATORS AND THE TRUST, MANY OF THE EMPLOYERS’ NONCONTRACTUAL CLAIMS WERE PROPERLY DISMISSED AS DERIVATIVE (PERTAINING TO THE TRUST) RATHER THAN DIRECT)

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MANY (BUT NOT ALL) CAUSES OF ACTION ALLOWED TO GO FORWARD IN AN ACTION AGAINST ADMINISTRATORS AND TRUSTEES OF A WORKERS’ COMPENSATION TRUST FOUND TO BE $188 MILLION IN DEBT.

The Third Department, in a full-fledged opinion by Justice Egan, determined that certain causes of action can go forward in a lawsuit by the Workers’ Compensation Board against administrators and trustees of the Health Care Providers Self-Insurance Trust. The trust, which was to provide workers’ compensation coverage for the trust’s members, was found to be $188 million in debt. The opinion is fact-specific and much too detailed to be summarized here. Breach of fiduciary duty, aiding and abetting breach of fiduciary duty, fraud, negligent misrepresentation, breach of contract, breach of good faith and fair dealing, gross negligence, alter ego liability, among other theories, were alleged. Many causes of action were deemed time-barred. Some causes of action dismissed by Supreme Court were reinstated. State of N.Y. Workers’ Compensation Bd. v Wang, 2017 NY Slip Op 00057, 3rd Dept 1-5-17

 

WORKERS’ COMPENSATION LAW (MANY CAUSES OF ACTION ALLOWED TO GO FORWARD IN AN ACTION AGAINST ADMINISTRATORS AND TRUSTEES OF A WORKERS’ COMPENSATION TRUST FOUND TO BE $188 MILLION IN DEBT)/TRUSTS AND ESTATES (WORKERS’ COMPENSATION, MANY CAUSES OF ACTION ALLOWED TO GO FORWARD IN AN ACTION AGAINST ADMINISTRATORS AND TRUSTEES OF A WORKERS’ COMPENSATION TRUST FOUND TO BE $188 MILLION IN DEBT)/FIDUCIARY DUTY (TRUSTS AND ESTATES, MANY CAUSES OF ACTION ALLOWED TO GO FORWARD IN AN ACTION AGAINST ADMINISTRATORS AND TRUSTEES OF A WORKERS’ COMPENSATION TRUST FOUND TO BE $188 MILLION IN DEBT)

HEARING OFFICER’S DENIAL OF REQUEST FOR A WITNESS AND FAILURE TO INQUIRE INTO INMATE WINTESSES’ REFUSAL TO TESTIFY REQUIRED A NEW HEARING.

The Third Department determined the hearing officer’s denial of petitioner’s request for a witness and failure to inquire into the reasons witnesses refused to testify required a new hearing:

… [T]he Hearing Officer improperly denied petitioner’s request to have a State Police investigator testify and failed to make a proper inquiry into the reasons that certain inmate witnesses refused to testify. Although the Hearing Officer denied the investigator’s testimony as irrelevant because he was not present at the time of the attack and his investigation was separate from the one conducted by correction officials, petitioner maintained that the investigator obtained statements during the course of his investigation that materially contradicted the evidence relied upon by correction officials. Inasmuch as such testimony would have been potentially helpful to petitioner’s defense, the Hearing Officer erred in denying it. However, given that the Hearing Officer articulated a good-faith reason for such denial, this was at most a regulatory violation entitling petitioner to a new hearing and not expungement … .

As for the inmate witnesses’ refusal to testify, the Hearing Officer relied upon the notations contained in the employee assistant form indicating that they were interviewed as potential witnesses, but did not agree to testify. The Hearing Officer, however, did not make any inquiry into the reasons for their refusal or obtain written refusal forms from them. Although this constituted a denial of petitioner’s right to call witnesses, it too was only a regulatory violation inasmuch as the employee assistant had ascertained whether the inmate witnesses would be willing to testify and the Hearing Officer’s reliance on the employee assistant form constitutes a good-faith basis for denying petitioner’s request … . Matter of Mosley v Annucci, 2017 NY Slip Op 00061, 3rd Dept 1-5-17

 

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S DENIAL OF REQUEST FOR A WITNESS AND FAILURE TO INQUIRE INTO INMATE WINTESSES’ REFUSAL TO TESTIFY REQUIRED A NEW HEARING)

SECURITY OFFICERS NOT EMPLOYEES OF PLACEMENT SERVICE.

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant security officer was not an employee of TMR, which was essentially a placement service which posted security jobs on a secure website:

TMR posted security-related jobs on a secure website for its clients, who dictated the hours to be worked, as well as the scope of services that were needed. The security officers, after browsing through these postings, would request to work on any particular job, which TMR ultimately awarded on a “first come, first serve” basis. The security officers were free to select a job that they wanted and were not prohibited from seeking jobs from TMR’s competitors. TMR did not provide the security officers with training or equipment nor did TMR pay the security officers a set hourly rate. Furthermore, once TMR placed the security officer with a client, TMR did not enter into a contract with the security officer. While a security officer could be in the middle of a continuing job for a client, he or she was nonetheless free to leave at any point and work elsewhere. In addition, if an issue arose with the security officer’s performance, the client dealt with the security officer directly, and TMR would be notified if it needed to provide a substitute security officer. Matter of TMR Sec. Consultants, Inc. (Commissioner of Labor), 2016 NY Slip Op 08922, 3rd Dept 12-29-16

UNEMPLOYMENT INSURANCE (SECURITY OFFICERS NOT EMPLOYEES OF PLACEMENT SERVICE)/SECURITY OFFICERS (UNEMPLOYMENT INSURANCE, SECURITY OFFICERS NOT EMPLOYEES OF PLACEMENT SERVICE)

COURT SHOULD NOT HAVE GIVEN HUSBAND CREDIT FOR HIGHER CHILD SUPPORT PAYMENTS MADE BEFORE THE LOWER FINAL CHILD SUPPORT AWARD UPON DIVORCE.

The Third Department, in this divorce action, determined that Supreme Court’s attempt to give the husband credit for the difference between the higher child support payments imposed prior to the divorce and the lower payments ordered in the final child support award was error:

… [T]he temporary support payments already made by the husband pursuant to the pendente lite order exceeded the retroactive support obligation set forth by Supreme Court. Absent any statutory authority for recoupment of overpayments of child support and given the “‘strong public policy against restitution or recoupment of [such] overpayments'” … , we conclude that Supreme Court erred in crediting the husband for the temporary child support payments that he made in excess of what he was required to pay under the final child support award … . Sprole v Sprole, 2016 NY Slip Op 08911, 3rd Dept 12-29-16

FAMILY LAW (CHILD SUPPORT, COURT SHOULD NOT HAVE GIVEN HUSBAND CREDIT FOR HIGHER CHILD SUPPORT PAYMENTS MADE BEFORE THE LOWER FINAL CHILD SUPPORT AWARD UPON DIVORCE)/CHILD SUPPORT (CHILD SUPPORT, COURT SHOULD NOT HAVE GIVEN HUSBAND CREDIT FOR HIGHER CHILD SUPPORT PAYMENTS MADE BEFORE THE LOWER FINAL CHILD SUPPORT AWARD UPON DIVORCE)

BLOGGER FOR THE NATION MAGAZINE NOT AN EMPLOYEE.

The Third Department, in an extensive decision, reversed the Unemployment Insurance Appeal Board and found that claimant, a blog writer for the The Nation magazine, was not an employee and therefore was not entitled to unemployment insurance benefits:

At the outset, we are satisfied that claimant — an experienced, well-known and established writer, author and media critic — qualifies as a professional for purposes of our analysis. Hence, our focus will be whether the company exercised “control over important aspects of the services performed” by claimant … . …

While it is true that claimant was required to identify himself as a writer for The Nation, was paid an annual salary in monthly installments and was reimbursed for certain business-related expenses, it is equally true that claimant received a 1099 form each year, filed his taxes as self-employed, was not required to obtain permission prior to taking a vacation and neither received fringe benefitnor was covered by the union contract pertaining to The Nation’s staff writers … . …

Turning to the actual degree of supervision or control exercised over claimant’s work, the record reveals that claimant was not formally interviewed for his position … , worked from home utilizing his personal laptop, set his own hours and did not suffer any adverse consequences if he did not post a story … . Additionally, claimant did not have a supervisor …  and was not permitted to work from The Nation’s offices. Significantly, the record makes clear that claimant generally was not assigned to write on a particular topic and could post a story to his blog prior to it being edited by The Nation’s staff … . * * *

Although claimant was given “a broad direction to write about the media . . . and politics,” “the contents of the post and the topic were really . . . entirely his choice.” Unlike staff writers, claimant could not be compelled to write on a particular topic and, while The Nation preferred that claimant post his articles early in the workday and that such articles be submitted for editorial review prior to posting on the website, the senior editor made clear that claimant had no established work hours, could post whenever and from wherever he wished and that there were “no repercussions” and “no consequences” if claimant posted an article later in the day without editorial review or, alternatively, did not post at all on a given day. Matter of Mitchell (Nation Co. Ltd. Partners — Commissioner of Labor), 2016 NY Slip Op 08923, 3rd Dept 12-29-16

 

UNEMPLOYMENT INSURANCE (BLOGGER FOR THE NATION MAGAZINE NOT AN EMPLOYEE)/WRITERS (UNEMPLOYMENT INSURANCE, BLOGGER FOR THE NATION MAGAZINE NOT AN EMPLOYEE)/BLOGGERS (UNEMPLOYMENT INSURANCE, BLOGGER FOR THE NATION MAGAZINE NOT AN EMPLOYEE)

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QUESTION OF FACT WHETHER WORKER’S COMPENSATION LAW PRECLUDED SUIT IN NEGLIGENCE, DEFENDANT WAS BOTH AN OFFICER OF PLAINTIFF’S EMPLOYER AND OWNER, IN AN INDIVIDUAL CAPACITY, OF THE PREMISES WHERE PLAINTIFF SLIPPED AND FELL.

The Third Department, reversing Supreme Court, determined there was a question of fact whether the Workers’ Compensation Law precluded a lawsuit in negligence against the defendant, who was the president and a shareholder of plaintiff’s employer, Total Recall, and was the owner, in an individual capacity, of the building in which Total Recall is located. Plaintiff slipped and fell on ice in the parking lot behind the building:

… [W]hen an employee, during the course of his or her employment, is injured due to the negligence of a coemployee, the employee’s right to compensation lies under the exclusive provisions of the Workers’ Compensation Law (see Workers’ Compensation Law § 29 [6]…). Where the defendant is both the property owner and a corporate officer of the plaintiff’s employer, the defendant’s responsibility to provide the plaintiff with a safe place to work may be merged, in which case, workers’ compensation benefits are the sole remedy for the plaintiff … . If, however, the “defendant’s duty of care toward [the] plaintiff was owed purely in [the] capacity as owner of the property at the accident site, and not at all as a coemployee,” Workers’ Compensation Law § 29 (6) will not bar the plaintiff’s negligence action … .

The issue distills to whether the accident site was in an area that was exclusive to Total Recall and its employees such that defendant, as the property owner and an executive officer of Total Recall, had indistinguishable obligations to maintain the area in a reasonably safe condition. Garelle v Geinitz, 2016 NY Slip Op 08916, 3rd Dept 12-29-16

NEGLIGENCE (QUESTION OF FACT WHETHER WORKER’S COMPENSATION LAW PRECLUDED SUIT IN NEGLIGENCE, DEFENDANT WAS BOTH AN OFFICER OF PLAINTIFF’S EMPLOYER AND OWNER, IN AN INDIVIDUAL CAPACITY, OF THE PREMISES WHERE PLAINTIFF SLIPPED AND FELL)/WORKERS’ COMPENSATION LAW (NEGLIGENCE, QUESTION OF FACT WHETHER WORKER’S COMPENSATION LAW PRECLUDED SUIT IN NEGLIGENCE, DEFENDANT WAS BOTH AN OFFICER OF PLAINTIFF’S EMPLOYER AND OWNER, IN AN INDIVIDUAL CAPACITY, OF THE PREMISES WHERE PLAINTIFF SLIPPED AND FELL)/SLIP AND FALL (QUESTION OF FACT WHETHER WORKER’S COMPENSATION LAW PRECLUDED SUIT IN NEGLIGENCE, DEFENDANT WAS BOTH AN OFFICER OF PLAINTIFF’S EMPLOYER AND OWNER, IN AN INDIVIDUAL CAPACITY, OF THE PREMISES WHERE PLAINTIFF SLIPPED AND FELL)/CORPORATION LAW (QUESTION OF FACT WHETHER WORKER’S COMPENSATION LAW PRECLUDED SUIT IN NEGLIGENCE, DEFENDANT WAS BOTH AN OFFICER OF PLAINTIFF’S EMPLOYER AND OWNER, IN AN INDIVIDUAL CAPACITY, OF THE PREMISES WHERE PLAINTIFF SLIPPED AND FELL)

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PLAINTIFF’S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW, NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION.

The Third Department, reversing Supreme Court, after finding the notice of claim was sufficient notice of the negligent supervision cause of action, determined the defendant town was entitled to summary judgment dismissing the complaint. Town workers were in the process of delivering a load of wood chips to plaintiff. When the wood chips stopped flowing from the dump truck, plaintiff attempted to free the chips by slamming the tailgate. Plaintiff's thumb and wrist were crushed by the tailgate. Although plaintiff alleged that he called out to the driver (Klopfer) to ask if he should slam the tailgate, there was no response. The Third Department found plaintiff's unilateral decision to slam the tailgate was the sole proximate cause of his injury:

The dispute centers on whether defendant owed a duty of care to plaintiff and, if so, whether defendant's breach of duty was a proximate cause of plaintiff's injuries. From a general perspective, we recognize that Klopfer had a duty to exercise reasonable care in the operation of a municipal dump truck. Moreover, Klopfer was certainly aware of plaintiff's presence during the unloading process. That said, the Court of Appeals has emphasized a “reluctance to extend liability to a defendant for failure to control the conduct of others” … . By his testimony, plaintiff confirmed that he acted of his own accord, slamming the tailgate twice within only a few seconds, providing little if any opportunity for Klopfer to respond — even if he heard plaintiff call out … . There was no defect in the tailgate and the risk of injuring one's hand when slamming a tailgate is obvious as a matter of common sense. No resident, including plaintiff, had ever previously attempted to intervene in the discharge process and, while [a second town worker] had stepped away, plaintiff knew he was on site and could have sought his assistance. Under these circumstances, we conclude that plaintiff's intervening action in slamming the tailgate was the sole proximate cause of his injuries … . Barone v Town of New Scotland, 2016 NY Slip Op 08927, 3rd Dept 12-29-16

NEGLIGENCE (PLAINTIFF'S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW)/MUNICIPAL LAW (NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION)/NOTICE OF CLAIM (NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION)/PROXIMATE CAUSE (PLAINTIFF'S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW)/NEGLIGENT SUPERVISION (PLAINTIFF'S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW, NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION)

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