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BRAND AMBASSADOR NOT AN EMPLOYEE.

The Third Department determined a brand ambassador was not an employee of Attack, a marketing outfit that hired ambassadors to promote particular products at events:

Here, the record evidence reflects that Attack retained little or no control over the means or results of the work performed by claimant and the other brand ambassadors. Although Attack required claimant to fill out a profile page and provide certain personal information and work experience, Attack did not interview or audition claimant, nor did it conduct a background check. Significantly, pursuant to the written agreement that claimant executed with Attack, the rate of pay of compensation, as well as the nature and duration of the services that claimant would provide, were dictated by the clients and not Attack. Similarly, Attack did not provide any training, supervision or materials and did not establish claimant’s work schedule. Nor did Attack provide claimant with any benefits, and claimant was not paid until the client paid Attack. Although claimant could not directly solicit work from Attack’s clients, he was also free to work as a brand ambassador for other companies. Matter of Burgess (Commissioner of Labor), 2016 NY Slip Op 08410, 3rd Dept 12-15-16

UNEMPLOYMENT INSUREANCE (BRAND AMBASSADOR NOT AN EMPLOYEE)/BRAND AMBASSADOR (UNEMPLOYMENT INSURANCE, BRAND AMBASSADOR NOT AN EMPLOYEE)

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PROPER FOUNDATION HAD BEEN LAID, FACEBOOK MESSAGES BETWEEN MOTHER AND CHILD SHOULD HAVE BEEN ALLOWED IN EVIDENCE IN THIS ABANDONMENT PROCEEDING.

In an abandonment proceeding, Family Court erred when it would not allow Facebook messages between mother and child into evidence. The Third Department determined a proper foundation for the Facebook messages had been laid. The messages were crucial to mother’s attempt to demonstrate she had maintained contact with her child:

A recorded conversation — such as a printed copy of the content of a set of cell phone instant messages — may be authenticated through, among other methods, the “testimony of a participant in the conversation that it is a complete andaccurate reproduction of the conversation and has not been altered” … . Notably, “[t]he credibility of the authenticating witness and any motive she [or he] may have had to alter the evidence go to the weight to be accorded this evidence, rather than its admissibility” … . Respondent testified that she was present when her counsel printed the Facebook messages at his office, and that she reviewed the entire document to ensure that it was a full and complete copy. The … stipulation and respondent’s testimony, when combined with her adult son’s testimony confirming that he had provided respondent with his account information, password and permission to use the account for communication with the child, constituted a sufficient foundation for the admission into evidence of the printed messages and her related testimony … .

By erroneously precluding this proffered evidence, Family Court deprived respondent of her due process right to a full and fair opportunity to be heard. In a proceeding to terminate parental rights “the court is obliged to ensure that the proceeding is fair and that due process is afforded to an individual whose parental rights may be terminated” … . The frequency and content of these Facebook communications are relevant in determining whether respondent initiated or maintained substantial contact with the child during the statutory period … .  Matter of Colby II. (Sheba II.), 2016 NY Slip Op 08402, 3rd Dept 12-15-16

 

FAMILY LAW (PROPER FOUNDATION HAD BEEN LAID, FACEBOOK MESSAGES BETWEEN MOTHER AND CHILD SHOULD HAVE BEEN ALLOWED IN EVIDENCE IN THIS ABANDONMENT PROCEEDING)/ABANDONMENT (FAMILY LAW, PROPER FOUNDATION HAD BEEN LAID, FACEBOOK MESSAGES BETWEEN MOTHER AND CHILD SHOULD HAVE BEEN ALLOWED IN EVIDENCE IN THIS ABANDONMENT PROCEEDING)/EVIDENCE (FAMILY LAW, PROPER FOUNDATION HAD BEEN LAID, FACEBOOK MESSAGES BETWEEN MOTHER AND CHILD SHOULD HAVE BEEN ALLOWED IN EVIDENCE IN THIS ABANDONMENT PROCEEDING)/FACEBOOK MESSAGES (FAMILY LAW, PROPER FOUNDATION HAD BEEN LAID, FACEBOOK MESSAGES BETWEEN MOTHER AND CHILD SHOULD HAVE BEEN ALLOWED IN EVIDENCE IN THIS ABANDONMENT PROCEEDING)/RECORDED CONVERSATION (FACEBOOK MESSAGES, FAMILY LAW, PROPER FOUNDATION HAD BEEN LAID, FACEBOOK MESSAGES BETWEEN MOTHER AND CHILD SHOULD HAVE BEEN ALLOWED IN EVIDENCE IN THIS ABANDONMENT PROCEEDING)

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HEARING SHOULD HAVE BEEN HELD ON BIRTH PARENT’S PETITION TO ENFORCE A POSTADOPTION AGREEMENT ALLOWING THE BIRTH PARENT’S VISITATION WITH THE CHILD.

The Third Department determined a hearing should have been held on a birth parent’s petition to enforce a postadoption agreement which allowed visitation by the parent:

Family Court erred in dismissing the petition without an evidentiary hearing. Pursuant to Domestic Relations Law § 112-b (4), birth parents and adoptive parents may enter into a legally enforceable agreement regarding postadoption contact that may thereafter be enforced by filing a petition in Family Court … . Enforcement of a postadoption contact agreement, however, “will only be ordered if it is determined to be in the child’s best interests” … , and “[a]n evidentiary hearing is generally necessary to determine what is in the best interests of the child” … .

Here, while there were three appearances in Family Court on the petition at which the interested parties made factual representations, primarily through counsel, and legal arguments on the merits of the petition, no testimony was taken and no documentary evidence was admitted for consideration. The child’s adoptive parents and the attorney for the child opposed enforcement of the postadoption contact agreement and any contact between the child and petitioner based upon, among other factors, an alleged multi-year lapse in contact between petitioner and the child. The information submitted to the court raised factual questions regarding whether visits with petitioner would be in the child’s best interests or detrimental to those interests, necessitating an evidentiary hearing on that determinative issue … .

Further, the adoptive parents are persons whose interests may be adversely or inequitably affected by an order enforcing the postadoption contact agreement and, therefore, they should have been named as parties … . Matter of Lynn X. (Joseph W.), 2016 NY Slip Op 08415, 3rd Dept 12-15-16

 

FAMILY LAW (HEARING SHOULD HAVE BEEN HELD ON BIRTH PARENT’S PETITION TO ENFORCE A POSTADOPTION AGREEMENT ALLOWING THE BIRTH PARENT’S VISITATION WITH THE CHILD)/POSTADOPTION AGREEMENT (HEARING SHOULD HAVE BEEN HELD ON BIRTH PARENT’S PETITION TO ENFORCE A POSTADOPTION AGREEMENT ALLOWING THE BIRTH PARENT’S VISITATION WITH THE CHILD)/VISITATION (FAMILY LAW, HEARING SHOULD HAVE BEEN HELD ON BIRTH PARENT’S PETITION TO ENFORCE A POSTADOPTION AGREEMENT ALLOWING THE BIRTH PARENT’S VISITATION WITH THE CHILD)/ADOPTION (POSTADOPTION AGREEMENTS, HEARING SHOULD HAVE BEEN HELD ON BIRTH PARENT’S PETITION TO ENFORCE A POSTADOPTION AGREEMENT ALLOWING THE BIRTH PARENT’S VISITATION WITH THE CHILD)

HEARING OFFICER’S REFUSAL TO CALL A REQUESTED WITNESS REQUIRED ANNULMENT OF THE DETERMINATION.

The Third Department determined the hearing officer’s refusal to call a witness requested by the inmate required annulment:

Petitioner contends, among other things, that he was improperly denied the right to call as a witness an inmate who allegedly overheard a conversation between petitioner and the author of the misbehavior report establishing that the author lied about seeing petitioner place drugs on the food tray. According to petitioner, during this conversation the correction officer admitted that he reported that he saw petitioner put the drugs in the food tray in order to “cover his ass” after being advised to do so by another correction officer. At the hearing, petitioner maintained that the verbal exchange between the two officers revealing that the author was advised to make this misrepresentation was captured on a videotape of the area outside the observation room. When the videotape was played at the hearing, however, the audio was not working. Consequently, the only evidence that could potentially corroborate petitioner’s defense was the testimony of the other inmate.  Matter of McFarlane v Annucci, 2016 NY Slip Op 08432, 3rd Dept 12-15-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S REFUSAL TO CALL A REQUESTED WITNESS REQUIRED ANNULMENT OF THE DETERMINATION)

SUPREME COURT CANNOT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE ZONING BOARD, EVEN IN AFFIRMING THE BOARD’S DETERMINATION, CRITERIA FOR ALLOWING THE CONTINUATION OF A NONCONFORMING USE EXPLAINED.

The Third Department upheld the zoning board’s (ZBA’s) determination that the application for the nonconforming use of the property as a boarding house was properly denied. There was evidence that the initial nonconforming use was a nursing home, not a boarding house. The court noted that Supreme Court, which affirmed on different grounds, should not have substituted its own judgment for that of the board. The court further explained the criteria for allowing nonconforming use of property:

Supreme Court, apparently rejecting the ZBA’s conclusion that the property was a nursing home at the time that the zoning law was enacted in 1963, independently determined that the property was used as a boarding house in 1963, but that its current use as a boarding house was nonetheless a nonconforming use because its “ownership, occupancy and usage . . . [was] far removed from what it was in 1963.” This was improper. A reviewing court cannot, as the court did here, “search the record for a rational basis to support [an administrative agency’s] determination, substitute its judgment for that of the [agency] or affirm the underlying determination upon a ground not invoked . . . in the first instance” … . …

In recognition of the “undue financial hardship that immediate elimination of nonconforming uses would cause to property owners,” nonconforming uses that predate the enactment of a zoning ordinance are constitutionally protected and will grudgingly be permitted to continue notwithstanding the contrary law of the ordinance … . However, “[t]he law . . . generally views nonconforming uses as detrimental to a zoning scheme, and the overriding public policy of zoning in New York State and elsewhere is aimed at their reasonable restriction and eventual elimination” … . A preexisting nonconforming use is “closely restricted” such that it cannot be restored after substantial damage or conversion to a different nonconforming use and may be deemed abandoned following substantial discontinuation … . Matter of Tri-Serendipity, LLC v City of Kingston, 2016 NY Slip Op 08292, 3rd Dept 12-8-16

 

ZONING (SUPREME COURT CANNOT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE ZONING BOARD, EVEN IN AFFIRMING THE BOARD’S DETERMINATION, CRITERIA FOR ALLOWING THE CONTINUATION OF A NONCONFORMING USE EXPLAINED)/NONCONFORMING USE (ZNONING, SUPREME COURT CANNOT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE ZONING BOARD, EVEN IN AFFIRMING THE BOARD’S DETERMINATION, CRITERIA FOR ALLOWING THE CONTINUATION OF A NONCONFORMING USE EXPLAINED)

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DEPOSITION OF TOWN ASSESSOR PROPERLY ALLOWED IN THIS SELECTIVE REASSESSMENT PROCEEDING.

The Third Department, affirming Supreme Court, determined the deposition of the town tax assessor was properly allowed in this proceeding challenging a tax assessment of a golf course as “selective reassessment:”

“A property owner may challenge an assessment pursuant to RPTL article 7 on several grounds, including that the assessment is excessive, unequal or unlawful” … . Furthermore, “[i]t is well settled that a system of selective reassessment that has no rational basis in law violates the equal protection provisions of the constitutions of the United States and the State of New York” … .

“[D]iscovery in a RPTL article 7 proceeding is governed by CPLR 408, pursuant to which trial courts have broad discretion in directing the disclosure of material and necessary information” … . The trial court’s decision to compel discovery is accorded deference on appeal and should not be disturbed absent an abuse of discretion as a matter of law … . Additionally, to obtain discovery, a party must submit an affirmation showing “a good faith effort to resolve the issues raised by the [discovery] motion” or indicating “good cause” why no communications occurred between the parties in this regard (22 NYCRR 202.7 [a] [2]; [c]…). Matter of City of Troy v Assessor of The Town of Brunswick, 2016 NY Slip Op 08280, 3rd Dept 12-8-16

REAL PROPERTY TAX LAW (DEPOSITION OF TOWN ASSESSOR PROPERLY ALLOWED IN THIS SELECTIVE REASSESSMENT PROCEEDING)/CIVIL PROCEDURE (REAL PROPERTY TAX LAW, DEPOSITION OF TOWN ASSESSOR PROPERLY ALLOWED IN THIS SELECTIVE REASSESSMENT PROCEEDING)

DEFENDANTS’ ERRONEOUSLY DESCRIBED EASEMENT PROPERLY RELOCATED BY PLAINTIFF.

The Third Department affirmed Supreme Court’s determination that defendants had an easement over plaintiff’s land and, because the description of the easement erroneously placed it on another’s land, the easement was properly relocated by plaintiff:

“[I]n the absence of a claim for reformation, courts may as a matter of interpretation” transpose, reject or supply words in a contract or conveyance in order to effectuate the intent of the agreement if “some absurdity has been identified or the contract would otherwise be unenforceable either in whole or in part” … . Supreme Court did so here because the use of the metes and bounds description in the 1988 conveyance would have led to the absurd result of a right-of-way being granted over property that the grantor did not own, and preserved the stated intent of creating a right-of-way “for the purpose of ingress and egress” by jettisoning the defective description … . …

Defendants accordingly have a right-of-way over plaintiff’s property but, inasmuch as it lacks a specific metes and bounds description or other expression to the contrary, plaintiff is free to unilaterally relocate it “so long as the change does not frustrate the parties’ intent or object in creating the right of way, does not increase the burden on the easement holder, and does not significantly lessen the utility of the right of way”… . Anzalone v Costantino, 2016 NY Slip Op 08277, 3rd Dept 12-8-16

 

REAL PROPERTY (DEFENDANTS’ ERRONEOUSLY DESCRIBED EASEMENT PROPERLY RELOCATED BY PLAINTIFF)/EASEMENTS (DEFENDANTS’ ERRONEOUSLY DESCRIBED EASEMENT PROPERLY RELOCATED BY PLAINTIFF)

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TRANSFERS MADE WITHIN FIVE YEARS JUSTIFIED FIVE MONTH PERIOD OF INELIGIBILITY FOR MEDICAID BENEFITS.

The Third Department confirmed the determination of the Department of Health that petitioner was ineligible for Medicaid coverage for a period of five months based upon transfers of property made during the five-year look-back period:

“In reviewing a Medicaid eligibility determination rendered after a hearing, this Court must review the record, as a whole, to determine if the agency’s decisions are supported by substantial evidence and are not affected by an error of law” … . For purposes of determining Medicaid eligibility, “any transfer of an asset by the individual or the individual’s spouse for less than fair market value made within or after the look-back period shall render the individual ineligible for nursing facility services” for a period of time based on the amount transferred … . Such a transfer will not result in a penalty period where the applicant has made a satisfactory showing that the individual intended to dispose of the assets at fair market value or the assets were transferred exclusively for a purpose other than to qualify for medical assistance … . The burden is on the applicant to demonstrate his or her eligibility for Medicaid by rebutting the “presumption that the transfer of funds was motivated, in part if not in whole, by . . . anticipation of a future need to qualify for medical assistance” … . …

Substantial evidence is “less than a preponderance of the evidence” and “demands only that a given inference is reasonable and plausible, not necessarily the most probable” … . * * * We cannot say that respondents erred in rejecting [the] proof as inadequate and note that the Department of Social Services duly credited petitioner for expenses in which receipts were provided. Matter of Krajewski v Zucker, 2016 NY Slip Op 08287, 3rd Dept 12-8-16

MEDICAID (TRANSFERS MADE WITHIN FIVE YEARS JUSTIFIED FIVE MONTH PERIOD OF INELIGIBILITY FOR MEDICAID BENEFITS)

RESTRICTIONS ON PARTICIPATION IN HIGH SCHOOL SPORTS BY TRANSFER STUDENTS UPHELD.

The Third Department determined the rules promulgated by respondent NY Public High School Athletic Association concerning restrictions on the eligibility of transfer students to participate in school sports were valid:

… [I]t is settled that “courts should not interfere with the internal affairs, proceedings, rules and orders of a high school athletic association unless there is evidence of acts which are arbitrary, capricious or an abuse of discretion” … . Such “determination rests on whether the athletic association’s actions have a sound basis in reason and a foundation in fact” … .

We find that petitioners have failed to demonstrate that the actions taken by respondent warrant our interference. The purpose of the transfer rule, which was promulgated by respondent pursuant to its constitution and by authority delegated to it through the regulations of the Commissioner of Education … , is to deter athletic school-shopping and the recruitment of high school athletes by schools. By establishing an objective standard for eligibility that prohibits, with certain limited exceptions, immediate eligibility upon a transfer not accompanied by a parental change of residence, the transfer rule reasonably and rationally furthers these legitimate goals. Indeed, “[t]he absence of such a rule might reasonably invite strategically motivated transfers thinly disguised as transfers in the best (nonathletic) interest of the student” … . Matter of Albany Academies v New York State Pub. High Sch. Athletic Assn., 2016 NY Slip Op 08290, 3rd Dept 12-8-16

 

EDUCATION-SCHOOL LAW (RESTRICTIONS ON PARTICIPATION IN HIGH SCHOOL SPORTS BY TRANSFER STUDENTS UPHELD)/TRANSFER STUDENTS (RESTRICTIONS ON PARTICIPATION IN HIGH SCHOOL SPORTS BY TRANSFER STUDENTS UPHELD)

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TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL.

The Third Department, over a two-justice dissent, determined the probation violation petition gave sufficient notice of the charges and a woman (Nichols) who had been convicted of misdemeanor DWI was a “convicted criminal” within the meaning of a condition of probation (prohibiting association with convicted criminals). The court held that it was not necessary to prove petitioner knew of the DWI conviction. The probationer apparently went to the Nichol’s apartment for the purpose of taking a dog for a walk. The dissent argued that simply taking a dog for a walk  was not “contact” or “association” with a convicted criminal:

Special condition No. 17 required defendant to refrain from associating with “convicted criminals” — as opposed to “known criminals.” Accordingly, defendant cannot avoid a violation of the subject condition simply by claiming either that he did not know that a particular individual had been convicted of a crime or that he believed that said individual was guilty of only a traffic violation. …

With respect to the issue of whether defendant “associate[d]” with Nichols within the meaning of special condition No. 17, the testimony at the hearing further demonstrated that, on approximately four occasions … , defendant called either Nichols or her daughter and thereafter went to Nichols’ apartment for the purpose of picking up and walking the dog that defendant and Nichols once shared. Notably, Nichols confirmed that she spoke with defendant, with whom she remained friends, on the telephone to make arrangements regarding the dog and testified that she personally exchanged the dog with defendant “[a]bout four times,” stating, “I would hand him the dog and he would take the dog and go down the street.” People v Kislowski, 2016 NY Slip Op 08261, 3rd Dept 12-8-16

 

CRIMINAL LAW (TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL)/EVIDENCE (CRIMINAL LAW, TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL)/PROBATION (VIOLATION, TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL)

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