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FIREFIGHTER’S INJURY FROM TOXIC FUMES UNRELATED TO A FIRE CONSTITUTED AN ACCIDENT ENTITLING FIREFIGHTER TO DISABILITY BENEFITS.

The Third Department, reversing the denial of accidental disability retirement benefits to a firefighter, over a two-justice dissent, determined injury caused by odorless toxic fumes (unrelated to a fire) was an accident within the meaning of the Retirement and Social Security Law. Petitioner-firefighter responded to an emergency at a supermarket where two people were unconscious. It was only after the fact that the presence of carbon monoxide and cyanogen chloride was discovered:

It is well settled that for purposes of the Retirement and Social Security Law, an accident is defined as “‘a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'” … . “Significantly, it must result from an activity that is not undertaken in the performance of ordinary job duties and that is not an inherent risk of such job duties” … . Petitioner bears the burden of establishing that the event producing the injury was an accident, and respondent’s determination will be upheld where it is supported by substantial evidence … . * * *

We have “held that exposure to toxic fumes while fighting fires is an inherent risk of a firefighter’s regular duties” … . Here, however, unlike our prior cases involving exposure to toxic gases or smoke, petitioner was not responding to a fire that presented the inherent and foreseeable risk of inhaling toxic gases … . The record evidence further reflects that petitioner was neither aware that the air within the supermarket contained toxic chemical gases … , nor did he have any information that could reasonably have led him to anticipate, expect or foresee the precise hazard when responding to the medical emergency at the supermarket … . Matter of Sica v DiNapoli. 2016 NY Slip Op 05420, 3rd Dept 7-7-16

 

RETIREMENT AND SOCIAL SECURITY LAW (FIREFIGHTER’S INJURY FROM TOXIC FUMES UNRELATED TO A FIRE CONSTITUTED AN ACCIDENT ENTITLING FIREFIGHTER TO DISABILITY BENEFITS)/ACCIDENT DISABILITY BENEFITS (FIREFIGHTER’S INJURY FROM TOXIC FUMES UNRELATED TO A FIRE CONSTITUTED AN ACCIDENT ENTITLING FIREFIGHTER TO DISABILITY BENEFITS)/FIREFIGHTERS (FIREFIGHTER’S INJURY FROM TOXIC FUMES UNRELATED TO A FIRE CONSTITUTED AN ACCIDENT ENTITLING FIREFIGHTER TO DISABILITY BENEFITS)/TOXIC FUMES (FIREFIGHTER’S INJURY FROM TOXIC FUMES UNRELATED TO A FIRE CONSTITUTED AN ACCIDENT ENTITLING FIREFIGHTER TO DISABILITY BENEFITS)

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NEGLIGENT SUPERVISION CAUSE OF ACTION STEMMING FROM HARASSMENT AND BULLYING BY FELLOW STUDENTS SHOULD NOT HAVE BEEN DISMISSED.

The Third Department, reversing Supreme Court, determined infant plaintiff had raised a question of fact whether the school was liable for negligent supervision stemming from harassment and bullying by fellow students. The Third Department further determined the Dignity for All Students Act (Education Law section 10) does not create a private right of action. With respect to negligent supervision, the court wrote:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “In that regard, a school district is held to the same degree of care as would a reasonably prudent parent placed in comparable circumstances” … . “In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . Furthermore, the injuries sustained by a plaintiff must be proximately caused by the school’s breach of its duty to provide adequate supervision … . Such issues regarding adequate supervision and proximate cause are generally questions left to the trier of fact to resolve … . Motta v Eldred Cent. Sch. Dist., 2016 NY Slip Op 05424, 3rd Dept 7-7-16

NEGLIGENCE (NEGLIGENT SUPERVISION CAUSE OF ACTION STEMMING FROM HARASSMENT AND BULLYING BY FELLOW STUDENTS SHOULD NOT HAVE BEEN DISMISSED)/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION CAUSE OF ACTION STEMMING FROM HARASSMENT AND BULLYING BY FELLOW STUDENTS SHOULD NOT HAVE BEEN DISMISSED)/BULLYING (NEGLIGENT SUPERVISION CAUSE OF ACTION STEMMING FROM HARASSMENT AND BULLYING BY FELLOW STUDENTS SHOULD NOT HAVE BEEN DISMISSED)/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION CAUSE OF ACTION STEMMING FROM HARASSMENT AND BULLYING BY FELLOW STUDENTS SHOULD NOT HAVE BEEN DISMISSED)

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MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING.

The Third Department determined Family Court should not have, sua sponte, dismissed mother’s pro se petition for custody modification without a hearing:

“‘In any modification proceeding, the threshold issue is whether there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the child[]'” … . While an evidentiary hearing is not required in every case, a hearing is generally “necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child[]’s best interests” … . In determining whether a pro se petitioner made a sufficient evidentiary showing to warrant a hearing, we construe the pleadings liberally and afford the petitioner the benefit of every favorable inference … .

In her pro se petition, the mother alleged that she had moved into an apartment with the child’s maternal grandmother, had enrolled as a full-time student and was attending “[a]lcohol counseling.” Inasmuch as the mother’s alcohol abuse was a primary factor in Family Court’s January 2015 custody determination, the mother’s factual allegations of improvement, construed liberally and if established after a hearing, could afford a basis for awarding the mother increased parenting time, unsupervised parenting time and/or access to the child’s medical and educational records. Accordingly, we find that Family Court erred in dismissing the mother’s petition without a hearing … . Matter of Miller v Bush, 2016 NY Slip Op 05413, 3rd Dept 7-7-16

 

FAMILY LAW (MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING)/CUSTODY (MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING)/MODIFICATION OF CUSTODY (MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING)

SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED.

The Third Department determined the severe abuse petition against mother (respondent) should not have been dismissed by Family Court. The abuse was apparently inflicted by mother’s boyfriend in her absence and resulted in the child’s death:

Respondent demonstrated reckless judgment and disregard for the safety and well-being of the older child by allowing the boyfriend — who she had dated for only a very brief period of time and knew went out at night to procure illegal drugs — to care for her children and, significantly, by permitting him to continue to care for her children and inflict further abuse after the older child had sustained serious and an abnormal degree of bruising, which she unreasonably attributed to accidental causes and the explanations provided by the boyfriend … . To that end, respondent was aware, or should have been aware, of the older child’s numerous injuries indicative of extensive, repeated and accumulating abuse.

Equally troubling is respondent’s failure to seek professional medical treatment for the older child notwithstanding her knowledge of numerous visible injuries. Matter of Mason F. (Katlin G.–Louis F.), 2016 NY Slip Op 05408, 3rd Dept 7-7-16

 

FAMILY LAW (SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED)/CHILD ABUSE (SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED)/SEVERE ABUSE (SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED)

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NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF ARRESTING OFFICER REVERSED.

The Third Department reversed, in the interest of justice, defendant’s conviction for assault of a police officer (Smith) because the officer did not have reasonable suspicion defendant had committed a crime at the time defendant was detained. Defendant was involved in an argument with someone when the police approached and did not answer the officer’s questions:

Viewing the evidence in the light most favorable to the People … , we find no valid line of reasoning and permissible inferences from which a rational jury could have concluded that Smith possessed the requisite reasonable suspicion of criminality necessary to forcibly detain defendant. As defendant’s subsequent conduct in assaulting Smith “cannot validate an encounter that was not justified at its inception” … , the evidence was legally insufficient to establish that Smith was injured while undertaking a lawful duty, and defendant’s conviction must be reversed … . People v Tucker, 2016 NY Slip Op 05400, 3rd Dept 7-7-16

CRIMINAL LAW (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/EVIDENCE (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/REASONABLE SUSPICION (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/STREET STOPS  (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/SUPRESSION (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSUALT OF POLICE OFFICER REVERSED)/POLICE OFFICERS (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSUALT OF A POLICE OFFICER REVERSED)/RESISTING ARREST (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/EVIDENCE (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)

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EVIDENCE COLLECTED AFTER REQUEST FOR COUNSEL SHOULD HAVE BEEN SUPPRESSED, NEW TRIAL ORDERED.

The Third Department determined statements made by and evidence collected from defendant after his request for counsel should have been suppressed in this vehicular homicide case. A new trial was ordered;

The People further conceded at oral argument that defendant invoked his constitutional and limited statutory right to counsel in response to those warnings and that, under the circumstances of this case, valid grounds existed to suppress his post-invocation statements and evidence related to the DRE [drug recognition evaluation], second breathalyzer and blood tests … . The erroneous admission of this evidence is reviewed under the harmless error doctrine, and such an error is considered harmless “when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict” … . The admissible evidence at trial established that defendant took twice his prescribed dosage of Clonazepam the morning of the accident and that he failed field sobriety tests administered at the scene. Nevertheless, inasmuch as defendant’s inadmissible statements, the recording of the DRE test and the evidence of the inadmissible test results themselves may well have contributed to the conviction, it cannot be said that the erroneous admission of that evidence was harmless … . People v Green, 2016 NY Slip Op 05399, 3rd Dept 7-7-16

 

GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY.

The Third Department, in a full-fledged opinion by Justice Garry, clarified the application of General Construction Law 25-a to the six-month speedy trial time limit for felonies:

At issue here is the deadline by which the People must declare readiness when a defendant is charged with a felony. It has also been held that for General Construction Law § 25-a to apply in any factual circumstance, “there must be an initially ascertainable certain day from which reckoning may be made” … . CPL 30.30 (1) (a) specifies such an ascertainable day — that is, the commencement of a criminal action — from which the six-month period within which the People are required to declare readiness for trial is to be computed. Thus, we find that when the last day of the six-month period specified by CPL 30.30 (1) (a) falls upon a Saturday, Sunday or legal holiday, the expiration of the period in which the People must declare readiness is extended to the next succeeding business day pursuant to General Construction Law § 25-a. Here, the People’s second declaration of readiness was made on the next succeeding business day following the legal holiday upon which the six-month period expired; it was therefore timely and effective, and dismissal of the indictment was not required. People v Mandela, 2016 NY Slip Op 05401, 3rd Dept 7-7-16

CRIMINAL LAW (GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY)/SPEEDY TRIAL (GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY)/GENERAL CONSTRUCTION LAW (SPEEDY TRIAL DEADLINE, GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY)

ALLEGED ORAL MODIFICATION OF A CONTRACT WHICH REQUIRED WRITTEN NOTICE UNENFORCEABLE.

The Third Department, reversing Supreme Court, determined the alleged oral modification of a contract which required written notice was not enforceable:

… [I]f an oral modification has not “been acted upon to completion” in a manner that “demonstrate[s], objectively, the nature and extent of the modification” … , it will be enforceable only upon a showing “of either partial performance . . ., which must be unequivocally referable to the oral modification, or equitable estoppel, based upon conduct which is not otherwise compatible with the agreement as written” … . * * *

The performance of the parties under [the] purported [oral] arrangement, in other words, was identical to that required under a renewed sales agreement. It cannot, as a result, be said that “there was [any] performance on [plaintiff’s] part that was unequivocally referable to the existence of an oral contract” … . Likewise, inasmuch as the behavior of the parties was “compatible with the agreement as written,” and given the absence of written notice of nonrenewal, there is no basis for estopping defendant from relying upon the agreement as written … . J. Triple S., Inc. v Aero Star Petroleum, Inc., 2016 NY Slip Op 05414, 3rd Dept 7-7-16

 

CONTRACT LAW (ALLEGED ORAL MODIFICATION OF A CONTRACT WHICH REQUIRED WRITTEN NOTICE UNENFORCEABLE)/MODIFICATION (CONTRACT LAW,  ALLEGED ORAL MODIFICATION OF A CONTRACT WHICH REQUIRED WRITTEN NOTICE UNENFORCEABLE)/ORAL MODIFICATION (CONTRACT LAW,  ALLEGED ORAL MODIFICATION OF A CONTRACT WHICH REQUIRED WRITTEN NOTICE UNENFORCEABLE)

FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED.

The Third Department determined mother presented sufficient evidence of a change in circumstances to survive father’s motion to dismiss her petition for a custody modification:

Viewed as a whole and accepted as true for this purpose, despite the existence of some apparent contrary evidence, the mother’s proof regarding physical discipline in the father’s household, together with the alleged improvement and stabilization of the mother’s living situation, constituted a change in circumstances sufficient to overcome a motion to dismiss … . The mother thus satisfied her initial burden, and a further and more complete inquiry as to whether a modification of custody is in the best interests of the children is warranted … . Accordingly, we find that Family Court erred in granting the father’s motion to dismiss on this ground.  Matter of Mary BB. v George CC., 2016 NY Slip Op 05406, 3rd Dept 7-7-16

FAMILY LAW (FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED)/CUSTODY (FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED)/MODIFICATION OF CUSTODY (FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED)

INTERPRETER WAS AN EMPLOYEE.

The Third Department determined a foreign language interpreter (linguist) was an employee of Legal Interpreting Services (LIS) entitled to unemployment insurance benefits:

The record establishes that LIS recruits through advertisements in newspapers and social media. Before adding an individual to its database of available interpreters, LIS recruiters meet with the applicant, review his or her resume, request certain personal identification information and negotiate his or her hourly pay rate. Claimants signed contracts, which set forth rules and regulations governing their conduct when providing translation or interpretation services. Although the principal of LIS testified that the rules and regulations were included at the insistence of certain customers and were merely “suggestions,” the contracts were drafted by an attorney hired by LIS and printed on LIS letterhead and do not indicate that the rules and regulations were merely suggestions.

When clients contacted LIS to request interpretation services, LIS selected a linguist from its database and provided that linguist with the specifics of the assignment, including the languages required and the date, time and location. Linguists were free to accept or decline assignments at their convenience. However, once they accepted an assignment, the linguists were required to notify LIS if they were running late, were unable to complete the assignment or were sending a substitute in their stead. With respect to pay, LIS required the linguists to submit time sheets, billed its clients and paid its linguists prior to receiving payment from those clients. A linguist’s payment was not contingent upon the client’s payment of the bill. Matter of Bin Yuan (Legal Interpreting Servs., Inc.–Commissioner of Labor), 2016 NY Slip Op 05200, 3rd Dept 6-30-16

 

UNEMPLOYMENT INSURANCE (INTERPRETER WAS AN EMPLOYEE)

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