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QUESTION OF FACT WHETHER STACKED SCAFFOLDING, WHICH WAS ON THE SAME LEVEL AS PLAINTIFF, CONSTITUTED A “PHYSICALLY SIGNIFICANT ELEVATION DIFFERENTIAL,” SUMMARY JUDGMENT DISMISSING PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED.

The Third Department, reversing Supreme Court, determined defendants’ motions for summary judgment dismissing plaintiff’s Labor Law 240(1) cause of action should not have been granted. Plaintiff was severely injured when a row of stacked scaffolding frames fell forward like “dominos.” Whether Labor 240(1) applies depends on whether the scaffolding, which was on the same level as plaintiff, presented a risk related to a significant elevation differential:

… [W]e are unable to glean from the present record whether plaintiff’s injury arose from the requisite “physically significant elevation differential” … . In determining whether an elevation differential is physically significant or de minimis, we must consider not only the height differential itself, but also “the weight of the [falling] object and the amount of force it was capable of generating, even over the course of a relatively short descent” … . Critically absent from the record is any indication as to plaintiff’s height or any other evidence shedding light on the height differential between plaintiff and the stacked frames at the time they fell. Further, issues of fact remain with regard to such other relevant factors as the number of scaffolds stacked in the pile that collapsed, the weight of each scaffold and the manner in which the scaffold(s) struck plaintiff. Given these unresolved factual questions, summary judgment on plaintiff’s Labor Law § 240 (1) is not appropriate … . Wright v Ellsworth Partners, LLC, 2016 NY Slip Op 06927, 3rd Dept 10-20-16

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER STACKED SCAFFOLDING, WHICH WAS ON THE SAME LEVEL AS PLAINTIFF, CONSTITUTED A “PHYSICALLY SIGNIFICANT ELEVATION DIFFERENTIAL,” SUMMARY JUDGMENT DISMISSING PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED)/ELEVATION DIFFERENTIAL (LABOR LAW 240(1), QUESTION OF FACT WHETHER STACKED SCAFFOLDING, WHICH WAS ON THE SAME LEVEL AS PLAINTIFF, CONSTITUTED A “PHYSICALLY SIGNIFICANT ELEVATION DIFFERENTIAL,” SUMMARY JUDGMENT DISMISSING PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED)

FATHER WAS NOT AWARE FINAL HEARING ON TERMINATION OF HIS PARENTAL RIGHTS HAD BEEN SCHEDULED; HOLDING TERMINATION PROCEEDINGS IN HIS ABSENCE CONSTITUTED A DENIAL OF DUE PROCESS.

The Third Department, reversing Family Court, determined father (respondent) was denied due process when Family Court went ahead with proceedings to terminate his parental rights in his absence. Father was never informed that a final hearing or trial was scheduled:

A parent has a due process right to be present during proceedings to terminate parental rights, but that right “is not absolute and must be balanced with the child’s right to a prompt and permanent adjudication”… . “Absent unusual justifiable circumstances, a parent’s rights should not be terminated without his or her presence at the hearing” … . Under the circumstances here, a brief adjournment to allow participation by respondent would not have significantly impinged upon the child’s right to a prompt hearing … , especially since respondent may have been the only witness regarding his defense that he had attempted to contact the child … . Because the record does not provide any indication that either respondent or his counsel was aware that the August 4, 2015 proceeding was scheduled as a final hearing or trial on the petition, and because the record likewise provides no indication that either was aware of the stay expiring on September 25, 2015, we find that respondent was denied “some opportunity to participate in a meaningful way” … . Thus, respondent is entitled to a new hearing, with new counsel assigned to represent him. Matter of Chloe N. (Joshua N.), 2016 NY Slip Op 06926,  3rd Dept 10-20-16

FAMILY LAW (FATHER WAS NOT AWARE FINAL HEARING ON TERMINATION OF HIS PARENTAL RIGHTS HAD BEEN SCHEDULED; HOLDING TERMINATION PROCEEDINGS IN HIS ABSENCE CONSTITUTED A DENIAL OF DUE PROCESS)/PARENTAL RIGHTS, TERMINATION (FATHER WAS NOT AWARE FINAL HEARING ON TERMINATION OF HIS PARENTAL RIGHTS HAD BEEN SCHEDULED; HOLDING TERMINATION PROCEEDINGS IN HIS ABSENCE CONSTITUTED A DENIAL OF DUE PROCESS)

FAMILY COURT IMPROPERLY DELEGATED AUTHORITY TO DETERMINE VISITATION; CHILD’S ATTORNEY PROPERLY TOOK A POSITION ADVERSE TO THE CHILD’S WISHES.

The Third Department noted: (1) Family Court improperly delegated the authority to determine mother’s visitation to a counselor; and (2) under the circumstances, it was appropriate for the child’s attorney to take a position that did not reflect the child’s wishes:

Considering the evidence as a whole and particularly considering the psychologist’s work with all of the parties and her reasoned explanation of how numerous factors led her to conclude that there was “no credible evidence of abuse” by the father but that there was evidence of “coaching, coercion and brainwashing” of the child by the mother, we find no reason to depart from Family Court’s determination to credit the psychologist. * * *

Family Court erred by delegating the determination of the mother’s visitation to the child’s counselor. A court cannot delegate its authority to determine visitation to a mental health professional … . * * *

… [W]e find no fault in the attorney for the child’s decision to advocate for a position contrary to the child’s wishes, of which Family Court was aware, given that such wishes were “likely to result in a substantial risk of imminent, serious harm to [her]” … . Matter of Zakariah SS. v Tara TT., 2016 NY Slip Op 06923, 3rd Dept 10-20-16

 

FAMIILY LAW (FAMILY COURT IMPROPERLY DELEGATED AUTHORITY TO DETERMINE VISITATION; CHILD’S ATTORNEY PROPERLY TOOK A POSITION ADVERSE TO THE CHILD’S WISHES)/VISITATION (FAMILY COURT IMPROPERLY DELEGATED AUTHORITY TO DETERMINE VISITATION)/ATTORNEYS (FAMILY LAW, CHILD’S ATTORNEY PROPERLY TOOK A POSITION ADVERSE TO THE CHILD’S WISHES)

PESTICIDE COMPANY WAS ENTITLED TO A HEARING BEFORE IMPLEMENTATION OF A CLEAN-UP PLAN BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION.

The Third Department, in a detailed decision, reversing Supreme Court, determined petitioner, a pesticide manufacturer, had not been afforded a hearing on a clean-up plan (CMA 9) which the respondent Department of Environmental Conservation sought to implement. Therefore the Department could not find that the pesticide company had “refused” to obey the implementation order and could not proceed with the clean-up itself:

… [W]e conclude that the procedural framework set forth in ECL 27-1313 applies … . Where, as here, respondent has determined that a site poses a “significant threat to the environment,” the agency may order an owner “(i) to develop an inactive hazardous waste disposal site remedial program, subject to the approval of [respondent], at such site, and (ii) to implement such program within reasonable time limits specified in the order” (ECL 27-1313 [3] [a]). Prior to issuing such an order, the owner is entitled to “notice and the opportunity for a hearing” (ECL 27-1313 [4]). Where a responsible party “has failed” to comply with a remedial order, either because it is unable or unwilling to do so, respondent may implement the remedial program itself (ECL 27-1313 [5] [a], [b], [c]).

Here, under the consent order, petitioner developed the CMA report. The focus in this proceeding turns to remedy selection and implementation. Under this statutory framework, petitioner was entitled to both notice (which was provided through the statement of basis process) and an opportunity for a hearing prior to the issuance of an order directing petitioner to implement CMA 9. As it turns out, petitioner was not accorded an opportunity for a hearing to assert its challenge to CMA 9 and no implementation order was issued. Absent such an order, we must agree with petitioner that respondent’s determination that it was authorized to proceed with the remedial work based on petitioner’s “refusal” to perform the work was arbitrary and capricious. Matter of FMC Corp. v New York State Dept. of Envtl. Conservation, 2016 NY Slip Op 06929, 3rd Dept 10-20-16

ENVIRONMENTAL LAW (PESTICIDE COMPANY WAS ENTITLED TO A HEARING BEFORE IMPLEMENTATION OF A CLEAN-UP PLAN BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION)/HAZARDOUS WASTE (PESTICIDE COMPANY WAS ENTITLED TO A HEARING BEFORE IMPLEMENTATION OF A CLEAN-UP PLAN BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION)/PESTICIDE MANUFATURE (PESTICIDE COMPANY WAS ENTITLED TO A HEARING BEFORE IMPLEMENTATION OF A CLEAN-UP PLAN BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION)

FAMILY COURT IMPROPERLY DELEGATED ITS AUTHORITY TO STRUCTURE VISITATION.

The Third Department noted Family Court improperly delegated its authority to structure visitation and remitted the matter:

… [W]e find a sound and substantial basis in this record for Family Court’s decision to modify the prior visitation order by limiting the mother’s visitation to a counseling format — which the mother acknowledged was the best she could hope for given her strained relationship with the child … . That said, by effectively making further visitation contingent on the success of counseling and the father’s approval, Family Court improperly delegated its authority to structure a visitation schedule … . We conclude that the matter must be remitted to Family Court for a determination as to whether a resumption of visitation with the mother would be in the child’s best interests and, if so, under what conditions … . Matter of Christine TT. v Dino UU., 2016 NY Slip Op 06910, 3rd Dept 10-20-16

FAMILY LAW (FAMILY COURT IMPROPERLY DELEGATED ITS AUTHORITY TO STRUCTURE VISITATION)/VISITATION (FAMILY COURT IMPROPERLY DELEGATED ITS AUTHORITY TO STRUCTURE VISITATION)

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SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE.

The Third Department, reversing County Court’s risk level assessment, determined defendant was not given a meaningful opportunity to respond to the assessment of points:

A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment … . Not only did County Court fail to give defendant notice of its intention to sua sponte assess points for the category of use of violence, it affirmatively misled defendant by its assurance that it had already “made a decision . . . regarding a point score,” which included no assignment of points for that risk factor. Accordingly, defendant was denied due process … . Considering the fact that defendant was never aware of the potential of the assignment of such points until a point in time where he no longer had an opportunity to object — his only remaining opportunity to be heard being explicitly limited to arguing for a downward departure — he need not have taken any further action to preserve the issue for our review … . People v Griest, 2016 NY Slip Op 06907, 33rd Dept 10-20-16

CRIMINAL LAW (SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE)/SEX OFFENDER REGISTRATION ACT (SORA) (SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE)/APPEALS (SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE, NO FURTHER ACTION NECESSARY TO PRESERVE ISSUE FOR APPEAL)

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NO INTENT TO PERMANENTLY DEPRIVE OWNER OF HIS PROPERTY, GRAND LARCENY CONVICTION REVERSED.

The Third Department, reversing defendant’s grand larceny conviction, determined there was insufficient evidence defendant intended to permanently deprive the owner of his all-terrain vehicle (ATV). Defendant planned to return the ATV in exchange for return of his tools:

Larcenous intent is the “intent to deprive another of property or to appropriate the same to himself or to a third person” … . The terms “deprive” and “appropriate” are both essential to larcenous intent and refer to a purpose “to exert permanent or virtually permanent control over the property taken, or to cause permanent or virtually permanent loss to the owner of the possession and use thereof” … . For this reason, “[t]he mens rea element of larceny is simply not satisfied by an intent to temporarily take property without the owner’s permission” … . The proof introduced at trial supported the singular reasonable conclusion that defendant was executing a plan to temporarily deprive the tenant of the ATV in order to force him to return defendant’s missing tools … . People v Drouin, 2016 NY Slip Op 06906, 3rd Dept 10-20-16

CRIMINAL LAW (NO INTENT TO PERMANENTLY DEPRIVE OWNER OF HIS PROPERTY, GRAND LARCENY CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, NO INTENT TO PERMANENTLY DEPRIVE OWNER OF HIS PROPERTY, GRAND LARCENY CONVICTION REVERSED)/LARCENY (NO INTENT TO PERMANENTLY DEPRIVE OWNER OF HIS PROPERTY, GRAND LARCENY CONVICTION REVERSED)

COUNTY COURT DID NOT HAVE THE AUTHORITY TO REQUIRE DEFENDANT TO PAY COSTS ASSOCIATED WITH AN ALCOHOL-MONITORING BRACELET.

The Third Department, reversing County Court, determined County Court did not have the statutory authority to require defendant to pay for a Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet. Therefore revoking defendant’s probation and imposing a prison sentence based on defendant’s failure to make payments was error:

… [W]e are compelled to find “that County Court did not have statutory authority for requiring [defendant] to pay for the cost of the electronic monitoring program” … . While County Court can require a defendant to submit to the use of an electronic monitoring device if it determines that such a condition would advance public safety (see Penal Law § 65.10 [4]), it could not require a defendant to pay the costs associated with such monitoring since such costs do not fall within the category of restitution, but are more in the nature of a law enforcement expense … . People v Hakes, 2016 NY Slip Op 06905, 3rd Dept 10-20-16

CRIMINAL LAW (COUNTY COURT DID NOT HAVE THE AUTHORITY TO REQUIRE DEFENDANT TO PAY COSTS ASSOCIATED WITH AN ALCOHOL-MONITORING BRACELET)/SCRAM BRACELET (COUNTY COURT DID NOT HAVE THE AUTHORITY TO REQUIRE DEFENDANT TO PAY COSTS ASSOCIATED WITH AN ALCOHOL-MONITORING BRACELET)

TENNIS PRO WAS AN EMPLOYEE.

The Third Department determined tennis pro who provided lessons for TDA, an indoor tennis club, was an employee entitled to unemployment insurance benefits:

The testimony at the hearing established that TDA is solely responsible for setting the court rental and lesson fees, scheduling lessons, assigning tennis pros to clients who sign up for lessons and dictating which particular tennis court is to be used for each lesson. For certain group lessons, TDA even directs what type of stroke the tennis pros must teach. If a client is dissatisfied with a tennis pro’s services, the complaint is handled by TDA. In addition, in the event that a tennis pro is unable to attend a scheduled lesson, TDA facilitates the rescheduling of the lesson or the coordinating of a substitute tennis pro to teach the lesson. According to the testimony of claimant and another tennis pro, which the Board explicitly credited, if a tennis pro misses a scheduled lesson and the court cannot be rented to another client, TDA deducts the cost of the court rental fee from the tennis pro’s weekly earnings.

As for payment, each tennis pro is paid per lesson and the pay rate varies depending on, among other things, the pro’s certifications. Seasonal clients — i.e., clients who reserve a court for an entire season — pay their court rental fee up front and then pay the tennis pros directly for each lesson at a rate suggested by TDA and set forth in a contract between TDA and the client.  Matter of Campbell (TDA Indus., Inc.–Commissioner of Labor), 2016 NY Slip Op 06528, 3rd Dept 10-6-16

 

UNEMPLOYMENT INSURANCE (TENNIS PRO WAS AN EMPLOYEE)/TENNIS PRO (UNEMPLOYMENT INSURANCE, TENNIS PRO WAS AN EMPLOYEE)

BRAND AMBASSADOR WAS NOT AN EMPLOYEE.

The Third Department determined a “brand ambassador” hired by G&R (an entertainment and communication business) to promote products at live events was not an employee and therefore was not entitled to unemployment insurance benefits:

Here, the uncontroverted testimony of G & R’s account executive established that G & R did not train or instruct claimant on his duties for this event, was not present on the event day and lacked any authority to and did not supervise claimant or the means by which he performed these duties for the client. G & R advertised the position on a Facebook page for brand ambassadors, using information about the event position provided by the client, and it received via email resumes and accompanying photographs from applicants, which it reviewed and submitted to the client, which selected its brand ambassadors. Claimant was free to decline the position and was permitted to and had worked for other brand promoters; after the client selected claimant and other individuals for this event, G & R provided them with written show information and guidelines supplied by the client, which outlined the details and expectations for the event.

G & R also sent claimant a welcome letter agreement — that the parties signed — designating him as an independent contractor and that required, among other provisions, that any substitutes be approved; it also set forth the client’s expectations and rules … . Matter of Berger (Gail & Rice, Inc.–Commissioner of Labor), 2016 NY Slip Op 06527, 3rd Dept 10-6-16

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

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