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NONWORKING CLAIMANT SUBJECT TO THE 75% CAP ON WAGE-EARNING CAPACITY IS NOT AUTOMATICALLY ENTITLED TO NO LESS THAN 25% LOSS OF WAGE- EARNING CAPACITY FOR PURPOSES OF DETERMINING THE DURATION OF BENEFITS; HERE A 15% LOSS OF WAGE-EARNING CAPACITY UPHELD.

The Third Department rejected the argument by the permanently disabled claimant that, because of a conflict between two applicable statutes, she could not be deemed to have sustained anything less than a 25% loss of wage-earning capacity. The Third Department determined the two statutory provisions were not in conflict and the evidence supported a 15% loss of wage-earning capacity:

Claimant argues that, because Workers’ Compensation Law § 15 (5-a) limited her wage-earning capacity as a nonworking claimant to no more than 75% of her “former full time actual earnings,” the Board was statutorily prohibited from determining that she had less than a 25% loss of wage-earning capacity under Workers’ Compensation Law § 15 (3) (w). She asserts that Workers’ Compensation Law § 15 (3) (w) (xi) and (xii) are in conflict with Workers’ Compensation Law § 15 (5-a) and that, to reconcile this perceived conflict, we should construe these provisions as applying only to claimants who are employed at the time of classification — i.e., those claimants who are not subject to the 75% restriction imposed by Workers’ Compensation Law § 15 (5-a). * * *

As relevant here, in cases of permanent partial disability that are not amenable to schedule awards, “wage-earning capacity” is used to determine a claimant’s weekly rate of compensation. Specifically, in such cases, a claimant’s rate of compensation is two thirds of the difference between his or her average weekly wage and his or her wage-earning capacity (see Workers’ Compensation Law § 15 [3] [w]). Where a claimant is unemployed, wage-earning capacity is fixed by the Board — subject to a 75% cap (see Workers’ Compensation Law § 15 [5-a]). In contrast, “loss of wage-earning capacity,” a term that was added in 2007 as part of a comprehensive reform of the Workers’ Compensation Law (see L 2007, ch 6, § 4), 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 (see Workers’ Compensation Law § 15 [3] [w]). For instance, where, as here, a claimant is found to have sustained a 15% loss of wage-earning capacity, he or she is entitled to receive benefits for 225 weeks (see Workers’ Compensation Law § 15 [3] [w] [xii]). Matter of Till v Apex Rehabilitation, 2016 NY Slip Op 07247, 3rd Dept 11-3-16

 

WORKERS’ COMPENSATION LAW (NONWORKING CLAIMANT SUBJECT TO THE 75% CAP ON WAGE-EARNING CAPACITY IS NOT AUTOMATICALLY ENTITLED TO NO LESS THAN 25% LOSS OF WAGE- EARNING CAPACITY FOR PURPOSES OF DETERMINING THE DURATION OF BENEFITS)

VOCATIONAL FACTORS PROPERLY CONSIDERED IN SETTING COMPENSTATION FOR PERMANENTLY DISABLED LABORER.

The Third Department determined the Workers’ Compensation Board properly took into account the claimant’s “vocational factors,” i.e., limited education, language barrier, work history, when setting the appropriate compensation. Claimant suffered a permanent partial disability and had been employed as a landscaper:

Here, … claimant suffered a permanent partial disability, there is no expectation that he will ever return to his former or similar employment as a laborer, and the Board necessarily considered vocational factors when it established his loss of wage-earning capacity. Because the evidence established that claimant did not earn actual wages, the statute authorized the Board to “[fix] in the interest of justice . . . such wage[-]earning capacity as shall be reasonable . . . having due regard to the nature of his injury and his physical impairment” (Workers’ Compensation Law § 15 [5-a]). … [W]e find that the [statute’s] broad discretionary language authorized the Board to consider vocational factors that reflected claimant’s true ability to secure employment, particularly in the absence of evidence to negate claimant’s testimony that his injury contributed to his loss of wage-earning capacity … . Consequently, under the circumstances presented, we perceive no error in the Board’s determination to fix claimant’s wage-earning capacity based on the undisputed evidence of his physical disability and loss of wage-earning capacity resulting from his functional limitations and vocational impediments … . Matter of Rosales v Eugene J. Felice Landscaping, 2016 NY Slip Op 07239, 2nd Dept 11-3-16

WORKERS’ COMPENSATION LAW (VOCATIONAL FACTORS PROPERLY CONSIDERED IN SETTING COMPENSTATION FOR PERMANENTLY DISABLED LABORER)

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ACCEPTING A VERDICT BEFORE REQUESTED TESTIMONY WAS READ BACK TO THE JURY WAS NOT A MODE OF PROCEEDINGS ERROR AND WAS NOT PRESERVED FOR REVIEW.

The Third Department determined any error associated with a jury-request for a readback of testimony not a mode of proceedings error and was unpreserved for review. Before the requested testimony was readback, the jury indicated it had reached a verdict. The verdict was accepted without the readback taking place:

The court read the note from the jury verbatim and announced its intention to permit a readback of the requested testimony one witness at a time, to which defense counsel did not object. In explaining the procedure to the jury, the court stated, “once you’ve heard the first readback . . . it might answer your questions” and explained that the jury could return to deliberations while the court reporter prepared additional testimony for readback, to which defense counsel did not object. After the readback of the relevant portions of one witness’s testimony, and presumably while the court reporter was preparing additional testimony for readback, the jury informed the court that it had reached a verdict. As defendant concedes, no mode of proceedings error occurred … , and, thus, defendant’s failure to lodge any complaint to any of the steps that the court took to respond to the request renders the issue unpreserved for our review … . Moreover, defendant’s current contention that the court should not have allowed the jury to reach a verdict until the entire readback had been completed is unavailing. By informing the court that it had reached a verdict prior to the completion of the readback, the jury unambiguously indicated that it was no longer in need of previously requested information … . People v Robtoy, 2016 NY Slip Op 07232, 3rd Dept 11-3-16

CRIMINAL LAW (ACCEPTING A VERDICT BEFORE REQUESTED TESTIMONY WAS READ BACK TO THE JURY WAS NOT A MODE OF PROCEEDINGS ERROR AND WAS UNPRESERVED FOR REVIEW)/APPEALS (CRIMINAL LAW, ACCEPTING A VERDICT BEFORE REQUESTED TESTIMONY WAS READ BACK TO THE JURY WAS NOT A MODE OF PROCEEDINGS ERROR AND WAS UNPRESERVED FOR REVIEW)

THE FACT THAT THE AMOUNT TO BE USED TO CALCULATE DEFENDANT’S COMPENSATION WAS NOT SET IN THE CONTRACT, BUT RATHER WAS TO BE ESTABLISHED AND AGREED TO, DID NOT INVALIDATE THE CONTRACT AS A MERE AGREEMENT TO AGREE; THE AMOUNT COULD BE DETERMINED BY EXTRINSIC INFORMATION.

The Third Department, reversing (modifying Supreme Court) determined a material term of a contract could be adequately fleshed out by extrinsic evidence. Therefore the contract should not have been invalidated as a mere “agreement to agree.” Defendant was hired as a consultant by plaintiff, the parent company of a number of banks, to maximize income from overdrafts. Defendant’s fee was to be based on plaintiff’s income over a “baseline” amount to be established by defendant (and agreed to by plaintiff):

Supreme Court determined that, because the baseline was an indefinite material term, the agreement was unenforceable as a “mere agreement to agree” … . We do not agree. “[W]here it is clear from the language of an agreement that the parties intended to be bound and there exists an objective method for supplying a missing term, the court should endeavor to hold the parties to their bargain. Striking down a contract as indefinite and in essence meaningless is at best a last resort” … . If, “at the time of agreement the parties have manifested their intent to be bound, a price term may be sufficiently definite if the amount can be determined objectively without the need for new expressions by the parties; . . . for example, [the price term might] be . . . ascertained by reference to an extrinsic event” … . Here, the parties’ conduct evinced that they intended to be bound by the agreement and, in our view, the baseline could be ascertained with reference to an extrinsic event, that is, defendant’s calculation derived from the existing historical data … . Accordingly, we find that the agreement was enforceable. Tompkins Fin. Corp. v John M. Floyd & Assoc., Inc., 2016 NY Slip Op 07252, 3rd Dept 11-3-16

CONTRACT LAW (THE FACT THAT THE AMOUNT TO BE USED TO CALCULATE DEFENDANT’S COMPENSATION WAS NOT SET IN THE CONTRACT, BUT RATHER WAS TO BE ESTABLISHED AND AGREED TO LATER, DID NOT INVALIDATE THE CONTRACT AS A MERE AGREEMENT TO AGREE; THE AMOUNT COULD BE DETERMINED BY EXTRINSIC INFORMATION)

OPERATOR OF A JANITORIAL CLEANING BUSINESS PURSUANT TO A FRANCHISE AGREEMENT WAS AN EMPLOYEE OF THE FRANCHISOR.

The Third Department determined claimant, who operated a janitorial cleaning business, based upon a franchise agreement with Jan-Pro, was an employee of Jan-Pro and was therefore entitled to unemployment insurance benefits:

The record evidence demonstrates that Jan-Pro assigned claimant a specific geographic territory and required new franchisees to undergo initial mandatory training, which was paid for by Jan-Pro. Franchisees were also required to operate the business in accordance with the procedures established at the training and the standards set forth by Jan-Pro … . To that end, franchisees had to use Jan-Pro-sanctioned equipment, supplies, products and business forms … . Jan-Pro helped resolve any complaints between a customer and a franchisee and retained the right to discontinue a franchisee’s services to any client any time … . Jan-Pro provided franchisees with a starter set of business cards, which contained Jan-Pro’s logo, and claimant’s business card listed Jan-Pro’s name, logo and address … . Although claimant had the option of designing his own business card, any such designs required Jan-Pro’s approval. Furthermore, according to the franchise agreement, if claimant developed any new concepts or techniques that improved Jan-Pro’s business, they became Jan-Pro’s property … .

The franchise agreement also contained a non-compete provision barring claimant from operating for one year in any area of Jan-Pro’s affiliates or franchises … . Moreover, the franchise agreement gave Jan-Pro the sole right to invoice and collect from claimant’s customer accounts, maintain revenue records with respect to such accounts and accept payment from claimant’s customers. While the franchise agreement designated claimant as an independent contractor, such terms are not dispositive of claimant’s status … . Matter of Baez (PD 10276, Inc.–Commissioner of Labor), 2016 NY Slip Op 07061, 3rd Dept 10-27-16

 

NEMPLOYMENT INSURANCE (OPERATOR OF A JANITORIAL CLEANING BUSINESS PURSUANT TO A FRANCHISE AGREEMENT WAS AN EMPLOYEE OF THE FRANCHISOR)

QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT.

The Third Department determined there was a question of fact whether the defect in a sidewalk was trivial, and whether plaintiff could identify the cause of her fall. Therefore, defendant’s motion for summary judgment was properly denied:

Photographs of the sidewalk where plaintiff fell depict a deteriorated area with various cracks in several adjacent slabs on the side of the walk bordering the street. In the location where plaintiff alleges her accident occurred, the deteriorated area takes up approximately one third of the sidewalk. The photographs reveal that the cracked section of concrete where plaintiff fell is depressed below the surface of the rest of the sidewalk, creating a raised, irregular vertical edge measuring, as previously noted, approximately one inch high and 18 inches long. In view of the length and depth of the crack where the fall occurred, the uneven surface of the walkway and the overall size of the deteriorated area, we agree with Supreme Court that it cannot be determined as a matter of law that the condition “was so trivial and slight in nature that it could not reasonably have been foreseen that an accident would happen” … .

Defendant likewise failed to meet its burden to prove on a prima facie basis that plaintiff’s identification of the location of her fall was too uncertain to establish that the defect was the proximate cause of the fall. A defendant can meet this burden by proving “that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” … . However, even when a plaintiff is unable to identify the cause of a fall with certainty, “a case of negligence based wholly on circumstantial evidence may be established if the plaintiff[] show[s] facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred” … .

Here, although plaintiff acknowledged the delay in identifying the cause of her fall, she testified that she knew that her toe had caught on some object and decided to examine the location in question because she knew that it was “where something has to be.” She identified the cracked area as “exactly that spot that [her] shoe caught.” Brumm v St. Paul’s Evangelical Lutheran Church, 2016 NY Slip Op 07079, 3rd Dept 10-27-16

 

NEGLIGENCE (QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)/SLIP AND FALL (SIDEWALKS, QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)/SIDEWALKS (SLIP AND FALL, QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)/TRIVIAL DEFECTS (SIDEWALKS, QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)

DEPARTMENT OF FINANCE PROPERLY INCLUDED THE COSTS OF SUB-ALLOCATED PROGRAMS (ADMINISTERED BY OTHER DEPARTMENTS) IN ITS ASSESSMENTS OF OPERATING EXPENSES TO BE PAID BY INSURERS.

In an extensive, detailed opinion by Justice Clark (too detailed to be fairly summarized here), the Third Department determined statutes requiring insurers to pay pro rata shares of the annual operating expenses of the Department of Finance (formerly the Insurance Department), including expenses associated with certain programs administered by other departments (sub-allocated programs), are constitutional. The Third Department further found the assessments imposed on the insurers, which included the costs of the sub-allocated programs, were not arbitrary and capricious and were not imposed in excess of the authority of the Department of Finance. New York Ins. Assn., Inc. v State of New York, 2016 NY Slip Op 07076, 3rd Dept 10-27-16

 

INSURANCE LAW (DEPARTMENT OF FINANCE PROPERLY INCLUDED THE COSTS OF SUB-ALLOCATED PROGRAMS (ADMINISTERED BY OTHER DEPARTMENTS) IN ITS ASSESSMENTS OF THE DEPARTMENT’S OF OPERATING EXPENSES TO BE PAID BY INSURERS)/FINANCE, DEPARTMENT OF (DEPARTMENT OF FINANCE PROPERLY INCLUDED THE COSTS OF SUB-ALLOCATED PROGRAMS (ADMINISTERED BY OTHER DEPARTMENTS) IN ITS ASSESSMENTS OF THE DEPARTMENT’S OF OPERATING EXPENSES TO BE PAID BY INSURERS)

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FAMILY COURT DID NOT PROPERLY APPLY THE STATUTORY FACTORS, FORUM NON CONVENIENS FINDING REVERSED.

The Third Department, reversing Family Court, determined father’s petition should not have been dismissed on forum non conveniens grounds. Father, who is incarcerated, was entitled to six visits per year with the child. Mother, unbeknownst to father, relocated to Georgia and cut off all communication between the child and father:

[A “forum non conveniens”] determination “depends on the specific issue(s) to be decided in the pending litigation,” and must involve consideration of all relevant factors, including those set forth in the statute … .

Although Family Court articulated its consideration of each of the statutory factors, we disagree with the weight it accorded certain factors and find that it failed to view those factors in light of the sole issue to be decided in this proceeding, namely, whether the mother violated [the court order]. First, in considering whether the child or a sibling was the victim of violence, mistreatment or abuse that was likely to continue in the future … , Family Court found that the child was negatively affected by the father’s criminal actions, despite the fact that all of the parties agreed that this factor was not relevant, neither the child nor a sibling was involved in the 2008 [criminal case] case [against father] and Family Court had awarded the father six visits per year in 2011. Next, the father promptly commenced this proceeding four months after the mother relocated with the child … — which occurred without his knowledge or Family Court’s permission — and we find that the additional 12 months that it took to dispose of this proceeding does not militate in favor of finding that New York is an inconvenient forum. Further, the father and the paternal grandmother, whose testimony would be central to the issue of whether a violation occurred, are located in New York, and any testimony by the mother could be presented “by telephone, audiovisual means, or other electronic means” … . Matter of Snow v Elmer, 2016 NY Slip Op 07075, 3rd Dept 10-27-16

FAMILY LAW (FAMILY COURT DID NOT PROPERLY APPLY THE STATUTORY FACTORS, FORUM NON CONVENIENS FINDING REVERSED)/FORUM NON CONVENIENS (FAMILY LAW, FAMILY COURT DID NOT PROPERLY APPLY THE STATUTORY FACTORS, FORUM NON CONVENIENS FINDING REVERSED)

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ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER.

The Third Department, in a full-fledged opinion by Justice Peters, determined Supreme Court’s summary denial of youthful offender status, which had not even been addressed by counsel or the probation department, did not satisfy the statutory requirements. The Third Department, notwithstanding that the youthful offender issue had not been raised on appeal, stepped in and adjudicated the defendant a youthful offender. The defendant took sneakers from the victim after lifting his shirt, revealing what may have been a gun in his waistband:

The grievous error of the Probation Department, the People and defense counsel, while not specifically raised on appeal, cries out for resolution. Since we are vested with the broad, plenary power to modify a sentence in the interest of justice, we can address this injustice and, if warranted, exercise our power to adjudicate defendant a youthful offender … . * * *

Defendant was just 16 years old at the time of the present offense and, although he had served a period of juvenile probation, he had no prior criminal record or history of violence … . We reiterate that the crime, although serious, did not cause physical injury to anyone involved and defendant neither brandished the object nor uttered any direct threats of violence during the incident. After his arrest, defendant cooperated with police and provided a statement admitting that he had taken the shoes with no intention of returning them to the victim but denying that he had possessed or displayed anything that resembled a gun … . People v Marquis A., 2016 NY Slip Op 07060, 3rd Dept 10-27-16

 

CRIMINAL LAW (ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER)/APPEALS (CRIMINAL LAW, ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER)/YOUTHFUL OFFENDER STATUS (ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER)

IN THIS WILL CONSTRUCTION PROCEEDING, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT.

In this will construction proceeding, the Third Department determined Surrogate’s Court properly found that the decedent intended to benefit all ten children, including two stepchildren from her husband’s (Warren’s) prior marriage. The will did not anticipate that Warren would die before the decedent. If the laws of intestacy were applied, the two stepchildren would have been excluded. But because decedent’s contrary intent was clear, Surrogate’s Court properly ignored the laws of intestacy:

… [W]hile the residuary clause of the will is silent as to what would happen if decedent outlived Warren, all of her other testamentary dispositions evince the goal of equally dividing her assets among all 10 children, either at the time of her death or Warren’s death. There is nothing in the will to suggest that she intended a contrary result with regard to the residuary estate if Warren died before her, or that she had any interest in excluding petitioner and his sister from that part of her estate. The will implies the contrary and that decedent considered all 10 children as her own, as she named petitioner as one of several trustees in the will and regretted that she could not name all of her “other children” as well. Thus, Surrogate’s Court correctly “g[ave] effect to the expressed general testamentary plan and purpose of the testator” by implying a provision in decedent’s will leaving her residuary estate to all 10 children… . Matter of Warren, 2016 NY Slip Op 06925, 3rd Dept 10-20-16

TRUSTS AND ESTATES (IN THIS WILL CONSTRUCTION PROCEEDING, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT)/WILLS (IN THIS WILL CONSTRUCTION PROCEEDING, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT)/CONSTRUCTION PROCEEDING (WILLS, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT)

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