You are here: / Third Department

Tag Archive for: Third Department

LONG HAUL TRUCKERS NOT EMPLOYEES.

The Third Department, over a two-justice dissent, reversing the Unemployment Insurance Appeal Board, determined long haul truckers working for LaValle were not employees entitled to unemployment insurance benefits:

Here, long-haul drivers called a LaValle dispatcher to find out what loads were available. The drivers were free to accept or reject any load without penalty from LaValle. Simply stated, they could work when and if they wanted or not at all. Significantly, and unlike Matter of Harold … , the drivers were not required to work exclusively for LaValle and were free to accept jobs with other companies. Moreover, they were not required to lease their vehicles from LaValle. In fact, it is undisputed that about 40% of the drivers owned their vehicles and, of the remaining 60%, only about half leased from LaValle. Subject to compliance with insurance and regulatory requirements, the drivers who agreed to transport loads were allowed to hire other drivers to make the delivery and, in fact, some did so. The compensation rate for the drivers was not set solely by LaValle. Although drivers typically received 70% of the gross revenue for transporting the load, they were free to negotiate a higher percentage from LaValle, and the record reflects that such higher negotiated rates were not rare.

No one from LaValle supervised the drivers. They were free to choose whatever routes they desired in transporting loads. The drivers received no fringe benefits, there was no dress code, they were not required to attend meetings, they were not trained by LaValle and they were not reimbursed for their expenses. Drivers carried their own independent business cards. Claimant testified that he considered himself an independent contractor. He was issued an IRS 1099 form, and he reported that he was self-employed on his state and federal taxes. * * * LaValle and the long-haul drivers met virtually none of the criteria typically considered for an employer-employee relationship … . Matter of Bogart (Lavalle Transp., Inc.–Commissioner of Labor), 2016 NY Slip Op 04264, 3rd Dept 6-2-16

UNEMPLOYMENT INSURANCE (LONG HAUL TRUCKERS NOT EMPLOYEES)

,

JUSTICE CENTER DID NOT HAVE THE STATUTORY AUTHORITY TO MAKE A NEGLECT FINDING AGAINST A FACILITY FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES.

The Third Department, in a full-fledged opinion by Justice Peters, determined the controlling Social Services Law statutes did not give the Justice Center for the Protection of Persons with Special Needs (Justice Center) the authority to find make a “neglect” finding against a facility for people with developmental disabilities. When two staff members left a resident unsupervised the resident engaged in inappropriate sexual conduct. The resident had acted similarly in the past:

… [T]he issue before us “is one of pure statutory interpretation dependent only on accurate apprehension of legislative intent” … . In performing this function, we are “constitutionally bound to give effect to the expressed will of the Legislature and the plain and obvious meaning of a statute is always preferred to any curious, narrow or hidden sense that nothing but a strained interpretation of legislative intent would discern” … .

… While the Justice Center is indeed permitted to make a “concurrent finding” with respect to a facility or provider agency in conjunction with either a substantiated or unsubstantiated report, the scope of that “concurrent finding” is expressly circumscribed by the statute. By its terms, the only “concurrent finding” that may be made is “that a systemic problem caused or contributed to the occurrence of the incident” (Social Services Law § 493 [3] [b]). Had the Legislature intended to authorize the Justice Center to make a concurrent finding of neglect as against a facility or provider agency, it could have expressly said so. Likewise, if it was the intent of the Legislature to equate a finding “that a systemic problem caused or contributed to the occurrence of the incident” with a finding of “neglect,” it could have easily done so through use of the term “neglect.” It is axiomatic that “new language cannot be imported into a statute to give it a meaning not otherwise found therein” (McKinney's Cons Laws of NY, Book 1, Statutes § 94 at 190), nor can a court “amend a statute by inserting words that are not there” … . Matter of Anonymous v Molik, 2016 NY Slip Op 04288, 3rd Dept 6-2-16

SOCIAL SERVICES LAW (JUSTICE CENTER DID NOT HAVE THE STATUTORY AUTHORITY TO MAKE A NEGLECT FINDING AGAINST A FACILITY FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES)/DEVELOPMENTAL DISABILITIES, PEOPLE WITH (JUSTICE CENTER DID NOT HAVE THE STATUTORY AUTHORITY TO MAKE A NEGLECT FINDING AGAINST A FACILITY FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES)/NEGLECT (JUSTICE CENTER DID NOT HAVE THE STATUTORY AUTHORITY TO MAKE A NEGLECT FINDING AGAINST A FACILITY FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES)

, ,

QUESTION OF FACT WHETHER TOWN CREATED THE DANGEROUS CONDITION IN THIS TRIP AND FALL CASE, PRE-DISCOVERY SUMMARY JUDGMENT IN FAVOR OF DEFENDANT TOWN PREMATURE.

The Third Department, reversing Supreme Court, determined the pre-discovery granting of the defendant-town's motion for summary judgment in this trip and fall case was premature. Although the town proved it did not have written notice of the defect, the plaintiffs raised a question of fact whether the town created the dangerous condition, thereby eliminating the written notice requirement:

In opposition to defendant's motion, plaintiffs provided an affidavit from … Debra Rodriguez. According to Rodriguez, … she heard a “loud bang while one of the [d]efendant's snowplows was clearing the roadway in front of [her] house.” Then, “[a]fter the snow melted, [she] saw that the end of the culvert pipe was mangled, bent upwards and protruding above the surrounding surfaces . . . [and] [she] believe[s] that this dangerous condition was created by [defendant's] snowplow.” * * *

“[A] summary judgment motion is properly denied as premature when the nonmoving party has not been given reasonable time and opportunity to conduct disclosure relative to pertinent evidence that is within the exclusive knowledge of the movant” … . We find that the Rodriguez affidavit is sufficient to demonstrate that discovery is required and, therefore, defendant's motion should have been denied as premature. Greener v Town of Hurley, 2016 NY Slip Op 04291, 3rd Dept 6-2-16

NEGLIGENCE (QUESTION OF FACT WHETHER TOWN CREATED THE DANGEROUS CONDITION IN THIS TRIP AND FALL CASE, PRE-DISCOVERY SUMMARY JUDGMENT IN FAVOR OF DEFENDANT TOWN PREMATURE)/MUNICIPAL LAW (QUESTION OF FACT WHETHER TOWN CREATED THE DANGEROUS CONDITION IN THIS TRIP AND FALL CASE, PRE-DISCOVERY SUMMARY JUDGMENT IN FAVOR OF DEFENDANT TOWN PREMATURE)/SLIP AND FALL (QUESTION OF FACT WHETHER TOWN CREATED THE DANGEROUS CONDITION IN THIS TRIP AND FALL CASE, PRE-DISCOVERY SUMMARY JUDGMENT IN FAVOR OF DEFENDANT TOWN PREMATURE)/CIVIL PROCEDURE (QUESTION OF FACT WHETHER TOWN CREATED THE DANGEROUS CONDITION IN THIS TRIP AND FALL CASE, PRE-DISCOVERY SUMMARY JUDGMENT IN FAVOR OF DEFENDANT TOWN PREMATURE)

,

PETITIONER’S EMPIRE ZONE CERTIFICATION PROPERLY REVOKED.

The Third Department determined decertification of petitioner's Empire Zone status was supported by sufficient evidence, including, but not limited to, petitioner's affirmative response to whether it was subject to a Tax Law provision which required it to demonstrate the business was formed for a valid business purpose:

As a participant in the Empire Zones Program, petitioner was required to complete and submit business annual reports (hereinafter BARs) that provided information about its activities, employment and investments (see 5 NYCRR 11.7). The BAR that petitioner completed for 2006 included a section inquiring whether its business was subject to a recently-enacted Tax Law provision that excluded certain firms from receiving tax benefits unless they could establish that they had been formed for a valid business purpose (see Tax Law § 14 [j] [4] [B]). Petitioner responded affirmatively and, as required by the form, attached a statement explaining that it had been formed by combining two previously-existing accounting firms for various valid business purposes. We find that petitioner's affirmative response on the 2006 BAR, taken together with facts set forth in the attached explanatory statement, provided a rational basis for the Commissioner's decertification decision.

Petitioner's mere affirmative response to the question whether the Tax Law provision was applicable to its business, without more, would not have sufficed to provide a rational basis for the determination that it was a shirt-changer. * * * However, the statement that petitioner attached to the 2006 BAR to demonstrate that it was formed for a valid business purpose contained factual information that was relevant to the Commissioner's 2009 analysis. In the statement, petitioner averred that it was formed in 2002 by combining two previously existing accounting firms, one of which — then known as Dermody, Burke & Brown, P.C. — had been engaged in the practice of public accountancy for 50 years. According to the statement, the 14 shareholders of this firm joined with the seven partners of a second accounting firm, Pasquale and Bowers, LLP, to become members of a new entity, which subsequently carried on the combined practices of the two previous firms. These factual assertions were sufficient to give rise to the reasonable inference that petitioner had caused individuals to transfer from existing employment with the previous two accounting firms to similar employment with petitioner, and that — as petitioner's members were the same individuals who had been the members and shareholders of its predecessors — its ownership was similar to that of the prior firms. Accordingly, there was an evidentiary basis for the determination that petitioner was a shirt-changer within the meaning of the 2009 legislation … . Matter of Dermody, Burke & Brown, CPAs, LLC v Department of Economic Dev., 2016 NY Slip Op 04286, 3rd Dept 6-2-16

MUNICIPAL LAW (PETITIONER'S EMPIRE ZONE CERTIFICATION PROPERLY REVOKED)/TAX LAW (PETITIONER'S EMPIRE ZONE CERTIFICATION PROPERLY REVOKED)/EMPIRE ZONES PROGRAM (PETITIONER'S EMPIRE ZONE CERTIFICATION PROPERLY REVOKED)

,

PETITIONER’S EMPIRE ZONE CERTIFICATION SHOULD NOT HAVE BEEN REVOKED.

The Third Department, reversing the Empire Zone Designation Board, determined the decision to revoke petitioner's Empire Zones Program certification was arbitrary and capricious. The court noted that petitioner's affirmative response to a question mandated by the Tax Law concerning whether petitioner had ever been required to demonstrate the business was formed for a valid business purpose was not, standing alone, a basis for decertification:

In deciding whether a business should be decertified for failing the shirt-changer test, the Commissioner was directed to determine whether the entity had “caused individuals to transfer from existing employment with another business enterprise with similar ownership . . . to similar employment with the certified business enterprise or if the enterprise acquired, purchased, leased, or had transferred to it real property previously owned by an entity with similar ownership, regardless of form of incorporation or organization” (General Municipal Law § 959 [a] [v] [5]; see General Municipal Law § 959 [w]). Petitioner contends that it never engaged in such transfers of real property or employment, that the administrative record lacks any evidence to the contrary, and, thus, that there is no factual basis for the determination that this provision was violated. We agree, and therefore find that the Board's denial of petitioner's appeal from the revocation of its certificate was “arbitrary and capricious and without a rational basis” … . Matter of PG Erie Props., LLC v Department of Economic Dev., 2016 NY Slip Op 04284, 3rd Dept 6-2-16

MUNICIPAL LAW (PETITIONER'S EMPIRE ZONE CERTIFICATION SHOULD NOT HAVE BEEN REVOKED)/TAX LAW (MUNICIPAL LAW, PETITIONER'S EMPIRE ZONE CERTIFICATION SHOULD NOT HAVE BEEN REVOKED)/EMPIRE ZONES PROGRAM (PETITIONER'S EMPIRE ZONE CERTIFICATION SHOULD NOT HAVE BEEN REVOKED)

,

COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM.

The Third Department, reversing Supreme Court, determined the county’s motion for summary judgment should have been granted. During a hurricane, a county drainage system overflowed and damaged plaintiffs’ property. The county was immune from suit based upon the design and placement of the drainage system. And the plaintiff’s failed to raise a question of fact concerning the allegation the county negligently maintained the drainage system:

… [T]o the extent that plaintiffs’ negligence claim alleges that defendant failed to adequately design or redesign the drainage system, it cannot be maintained. Decisions “‘determining when and where [drainage ditches] shall be built, of what size and at what level, are of a quasi judicial nature, involving the exercise of deliberate judgment and large discretion . . . [which] is not subject to revision by a court or jury in a private action for not sufficiently draining a particular lot of land'” … .

The act of maintaining a drainage system, on the other hand, is ministerial in nature and, thus, governmental immunity will not insulate defendant from plaintiffs’ alternative claim that it did so negligently … . “Nonetheless, [defendant] is not an insurer of its [drainage] system and cannot be held liable for injury unless it is shown that the injury was caused by active negligence in the maintenance of the system” … . Watt v County of Albany, 2016 NY Slip Op 04281, 3rd Dept 6-2-16

 

MUNICIPAL LAW (COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM)/IMMUNITY (GOVERNMENTAL IMMUNITY, COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM)/STORM DRAINAGE SYSTEMS (COUNTY IMMUNE FROM SUIT BASED UPON DESIGN OF STORM DRAINAGE SYSTEM, PLAINTIFFS DID NOT RAISE A QUESTION OF FACT ALLEGING NEGLIGENT MAINTENANCE OF THE SYSTEM)

DISMISSAL WITHOUT A HEARING ON PETITION TO MODIFY CUSTODY ARRANGEMENT WAS ERROR.

The Third Department, reversing Family Court, determined the dismissal without a hearing of mother's petition for modification of the custody arrangement was error:

In her petition, the mother alleged, among other things, that the father was charged with reckless endangerment, vehicular assault and driving while intoxicated after he crashed a car in January 2015, thereby causing injury to himself and his three passengers. The mother also alleged that the father engaged in a course of conduct that alienated the children from her, that the children desired to spend more time with her and that her work schedule had become more flexible since completing her medical residency. If established after a hearing, these allegations could afford a basis for modifying the prior custodial arrangement and, thus, Family Court erred in dismissing the petition without first conducting a hearing … . Given that the mother's petition places both legal and physical custody in issue, we further note that if, after a hearing, the mother makes the requisite showing of a change in circumstances sufficient to warrant a best interests inquiry and Family Court determines that joint legal custody is not feasible, it is “'incumbent upon Family Court to determine a custodial arrangement based upon the best interests of the child[ren] despite the absence' of a petition definitively seeking sole custody” … . Matter of Engelhart v Bowman, 2016 NY Slip Op 04294, 3rd Dept 6-2-16

FAMILY LAW (DISMISSAL WITHOUT A HEARING OF PETITION TO MODIFY CUSTODY ARRANGEMENT WAS ERROR)/CUSTODY (DISMISSAL WITHOUT A HEARING OF PETITION TO MODIFY CUSTODY ARRANGEMENT WAS ERROR)

DISLOYAL OR FAITHLESS PERFORMANCE OF EMPLOYMENT DUTIES (FAITHLESS SERVANT DOCTRINE) ENTITLED EMPLOYER TO THE RETURN OF COMPENSATION PAID TO THE EMPLOYEE DURING THE PERIOD OF THE THEFT.

The Third Department, in a full-fledged opinion by Justice Peters, determined plaintiff-employer was entitled to summary judgment on both liability and damages in this “disloyal or faithless performance of employment duties” case. Defendant-employee stole $50,000 from his employer. The employer sought recovery of the compensation paid to the employee over the six-year period of the theft and relief from the obligation to provide health insurance. Supreme Court granted summary judgment on liability but ruled the employee's otherwise unblemished career raised a question of fact about damages. The Third Department held Supreme Court's damages ruling was error:

New York law with respect to the disloyal or faithless performance of employment duties has developed for well over a century. Firmly rooted in this state's jurisprudence is the principle that “an employee is to be loyal to his [or her] employer and is 'prohibited from acting in any manner inconsistent with his [or her] agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his [or her] duties'” … . Under what is commonly referred to as the faithless servant doctrine, “[o]ne who owes a duty of fidelity to a principal and who is faithless in the performance of his [or her] services is generally disentitled to recover his [or her] compensation, whether commissions or salary” … . Thus, where an employee “engage[s] in repeated acts of disloyalty, complete and permanent forfeiture of compensation, deferred or otherwise, is warranted” … . * * *

The Court of Appeals has made clear that forfeiture of compensation is required even when some or all of “the services were beneficial to the principal or [when] the principal suffered no provable damage as a result of the breach of fidelity by the agent” … . City of Binghamton v Whalen, 2016 NY Slip Op 04289, 3rd Dept 6-2-16

EMPLOYMENT LAW (DISLOYAL OR FAITHLESS PERFORMANCE OF EMPLOYMENT DUTIES ENTITLED EMPLOYER TO THE RETURN OF COMPENSATION PAID TO THE EMPLOYEE DURING THE PERIOD OF THE THEFT)/DISLOYAL OR FAITHLESS PERFORMANCE (EMPLOYMENT LAW, DISLOYAL OR FAITHLESS PERFORMANCE OF EMPLOYMENT DUTIES ENTITLED EMPLOYER TO THE RETURN OF COMPENSATION PAID TO THE EMPLOYEE DURING THE PERIOD OF THE THEFT)/FAITHLESS SERVANT DOCTRINE (DISLOYAL OR FAITHLESS PERFORMANCE OF EMPLOYMENT DUTIES ENTITLED EMPLOYER TO THE RETURN OF COMPENSATION PAID TO THE EMPLOYEE DURING THE PERIOD OF THE THEFT)

,

PROSECUTOR’S SUMMATION SHIFTED THE BURDEN OF PROOF, CONVICTION REVERSED IN THE INTEREST OF JUSTICE.

The Third Department reversed defendant's conviction in the interest of justice because of prosecutorial misconduct in summation:

Counsel is afforded wide latitude during summations, but when a prosecutor's remarks are so egregious such that they deprive a defendant of a fair trial, reversal is warranted … . During his summation, the prosecutor remarked that defendant failed to provide an “innocent explanation” for his actions or that it was necessary for him to do so. Indeed, a recurring and substantial theme in the prosecutor's summation was defendant's inability to provide an innocent explanation for his conduct following the incident giving rise to the charges against him or for the presence of incriminating evidence at the crime scene. We agree with defendant that these comments improperly shifted the burden of proof from the People to defendant … . People v Rupnarine, 2016 NY Slip Op 04257, 3rd Dept 6-2-16

CRIMINAL LAW (PROSECUTOR'S SUMMATION SHIFTED THE BURDEN OF PROOF, CONVICTION REVERSED IN THE INTEREST OF JUSTICE)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR'S SUMMATION SHIFTED THE BURDEN OF PROOF, CONVICTION REVERSED IN THE INTEREST OF JUSTICE)/PROSECUTORIAL MISCONDUCT (PROSECUTOR'S SUMMATION SHIFTED THE BURDEN OF PROOF, CONVICTION REVERSED IN THE INTEREST OF JUSTICE)

,

CONSPIRACY TO SELL A CONTROLLED SUBSTANCE NOT PROVEN; PROOF REQUIREMENTS FOR SALE OF A CONTROLLED SUBSTANCE BASED PRIMARILY ON INTERCEPTED PHONE CONVERSATIONS AND TEXT MESSAGES EXPLAINED.

The Third Department determined the evidence was not sufficient to support defendant's conviction of conspiracy in the second degree in this drug-sale case. In addition, the Third Department explained the proof required for criminal sale of a controlled substance where the evidence is primarily recorded phone calls and text messages:

“A person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A felony be performed, he [or she] agrees with one or more persons to engage in or cause the performance of such conduct” (Penal Law § 105.15). Notably, “[a] person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy” (Penal Law § 105.20 …).

At the joint trial, the People sought to convict [co-defendant] Wright of [criminal sale of a controlled substance second degree] based solely upon recorded telephone conversations between [Wright and defendant], in which Wright allegedly agreed to sell heroin to defendant. However, during those conversations, defendant equivocated as to how much heroin he sought to buy, and none of the heroin from the transaction was recovered by police. As a result, the People failed to independently establish that the weight of the heroin sold exceeded the statutory threshold … and, in turn, they failed to prove an alleged overt act by defendant or Wright in support of the conspiracy charge … . * * *

Where, as here, the People primarily rely on intercepted telephone conversations as evidence of a sale of drugs (see Penal Law §§ 220.00 [1]; 220.39 [1]), all that [is required] is the production of “some additional evidence establishing the existence of [the drug in question] to support [defendant's] convictions for [its sale]” … . People v Cochran, 2016 NY Slip Op 04255, 3rd Dept 6-2-16

CRIMINAL LAW (CONSPIRACY TO SELL A CONTROLLED SUBSTANCE NOT PROVEN; PROOF REQUIREMENTS FOR SALE OF A CONTROLLED SUBSTANCE BASED PRIMARILY ON INTERCEPTED PHONE CONVERSATIONS AND TEXT MESSAGES EXPLAINED)/EVIDENCE (CRIMINAL LAW, CONSPIRACY TO SELL A CONTROLLED SUBSTANCE NOT PROVEN; PROOF REQUIREMENTS FOR SALE OF A CONTROLLED SUBSTANCE BASED PRIMARILY ON INTERCEPTED PHONE CONVERSATIONS AND TEXT MESSAGES EXPLAINED)/CONSPIRACY (CONSPIRACY TO SELL A CONTROLLED SUBSTANCE NOT PROVEN)/CONTROLLED SUBSTANCE (CONSPIRACY TO SELL A CONTROLLED SUBSTANCE NOT PROVEN; PROOF REQUIREMENTS FOR SALE OF A CONTROLLED SUBSTANCE BASED PRIMARILY ON INTERCEPTED PHONE CONVERSATIONS AND TEXT MESSAGES EXPLAINED)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy