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PLAINTIFF’S STATEMENT COUPLED WITH HER AFFIDAVIT RAISED A QUESTION OF FACT ABOUT THE CAUSE OF HER FALL.

The Third Department, reversing Supreme Court, determined plaintiff's (Costello's) statement in this slip and fall case, coupled with her affidavit in opposition to defendant's motion to dismiss, created a question of fact about the cause of her fall:

We reject defendant's argument that Costello will be unable to demonstrate proximate cause in this matter because she was unable, or perhaps unwilling, to immediately ascertain the cause of her fall. Defendant asserts that Costello was equivocal about the cause, based upon her statement that she “believe[d]” that the flooring was bowed. Even assuming that Costello's use, on one occasion, of what might be characterized as a mere figure of speech may be read as an expression of uncertainty about the cause of her fall, her affidavit clarifies any ambiguity. In her affidavit, Costello asserted that the “wood floor . . . was bowed and did not provide [her] with a proper walking surface.” Read together with the testimony of the two nonparty witnesses regarding the uneven, grooved state of the floor, there is adequate record proof to “render other causes [of her fall] sufficiently remote such that the jury [could] base its verdict on logical inferences drawn from the evidence, not merely on speculation” Costello v Pizzeria Uno of Albany, Inc., 2016 NY Slip Op 04087, 3rd Dept 5-26-16

NEGLIGENCE (PLAINTIFF'S STATEMENT COUPLED WITH HER AFFIDAVIT RAISED A QUESTION OF FACT ABOUT THE CAUSE OF HER FALL)/SLIP AND FALL (PLAINTIFF'S STATEMENT COUPLED WITH HER AFFIDAVIT RAISED A QUESTION OF FACT ABOUT THE CAUSE OF HER FALL)

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MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS.

The Third Department determined the village mayor did not have the authority to ignore the ruling of a hearing officer who found petitioner, a former firefighter, was entitled to General Municipal Law 207-a benefits based upon an on-the-job injury. When the mayor appointed the hearing officer, there was no indication the hearing officer's finding was merely advisory:

Based on the record, we conclude that Supreme Court's initial finding that the Village was not bound by the Hearing Officer's determination was in error. First, and contrary to respondents' argument, without any statutory or negotiated prohibition or direction, the Village was authorized to delegate its decision-making authority to the Hearing Officer … .  Second, that the Mayor did, in fact, appoint the Hearing Officer to make a final determination and not a recommendation is apparent from the record before us. Neither the 2010 nor the 2012 appointment was in any way qualified so as to limit the respective Hearing Officers to an advisory role.  Matter of McKay v Village of Endicott, 2016 NY Slip Op 04085, 3rd Dept 5-26-16

MUNICIPAL LAW (MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)/EMPLOYMENT LAW (GENERAL MUNICIPAL LAW, FIREFIGHTERS, MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)/GENERAL MUNICIPAL LAW (FIREFIGHTERS, MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)/FIREFIGHTERS (GENERAL MUNICIPAL LAW, MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)

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EXECUTOR-STATUS (PRIOR TO DEATH) AND FAMILIAL RELATIONSHIP DO NOT CREATE A FIDUCIARY RELATIONSHIP, EQUITABLE ESTOPPEL SHOULD NOT HAVE BEEN INVOKED TO SAVE A TIME-BARRED CLAIM.

The Third Department, over a two-justice dissent, determined the doctrine of equitable estoppel should not have been invoked to save a time-barred claim to real property. The real property was the subject of a 1977 will which placed the property in trust for decedent's children and named defendant executor. In 1988 the property was conveyed to the defendant, but the will was never amended. Supreme Court denied defendant's motion to dismiss, finding that defendant's executor-status and familial ties created a fiduciary relationship, requiring defendant to notify plaintiffs of the 1988 transfer. The Third Department held the appointment as executor did not create a fiduciary relationship (prior to death), and the familial relationship, as well, did not create a fiduciary relationship. Therefore, the Third Department ruled, the defendant was not barred, by equitable estoppel, from asserting the statute of limitations defense:

Supreme Court recognized that “concealment without actual misrepresentation may form the basis for invocation of the doctrine [of equitable estoppel] if 'there was a fiduciary relationship which gave [the] defendant an obligation to inform [the] plaintiff of facts underlying the claim'” … . Here, the court found that plaintiffs had sufficiently alleged that defendant owed them a fiduciary duty to disclose the conveyance when it occurred in 1988 because of her nomination as executor-trustee in the 1977 will, as well as their familial relationship.

We note, however, that the existence of a familial relationship does not equate to a fiduciary relationship for equitable estoppel purposes … . Nor does the mere fact that a will has nominated an executor, in and of itself, create a fiduciary relationship between the nominee and the will's beneficiaries. Indeed, because of the ambulatory nature of a will, a nominated executor is prohibited from acting in a fiduciary capacity until the testator dies … . Similarly, “a testamentary trust cannot become effective prior to the testator's death” … . Picard v Fish, 2016 NY Slip Op 04086, 3rd Dept 5-26-16

CIVIL PROCEDURE (EXECUTOR-STATUS (PRIOR TO DEATH) AND FAMILIAL RELATIONSHIP DO NOT CREATE A FIDUCIARY RELATIONSHIP, EQUITABLE ESTOPPEL SHOULD NOT HAVE BEEN INVOKED TO BAR A TIME-BARRED CLAIM)/EQUITABLE ESTOPPEL (EXECUTOR-STATUS (PRIOR TO DEATH) AND FAMILIAL RELATIONSHIP DO NOT CREATE A FIDUCIARY RELATIONSHIP, EQUITABLE ESTOPPEL SHOULD NOT HAVE BEEN INVOKED TO BAR A TIME-BARRED CLAIM)/TRUSTS AND ESTATES (EXECUTOR-STATUS (PRIOR TO DEATH) AND FAMILIAL RELATIONSHIP DO NOT CREATE A FIDUCIARY RELATIONSHIP, EQUITABLE ESTOPPEL SHOULD NOT HAVE BEEN INVOKED TO BAR A TIME-BARRED CLAIM)

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WHERE THE COLLECTIVE BARGAINING AGREEMENT (CBA) IS AMBIGUOUS ABOUT ITS APPLICABILITY TO AN ACTION AGAINST A COVERED PUBLIC EMPLOYEE, WHETHER THE CBA GOVERNS MUST BE DETERMINED BY THE ARBITRATOR.

The Third Department, over a two-justice dissent, determined Supreme Court should have compelled arbitration of the dismissal of a probationary employee (Woods). The court deemed the collective bargaining agreement (CBA) ambiguous about whether the dismissal of a probationary employee constituted “discipline” within the meaning of the CBA. Therefore it should have been left to the arbitrator to decide whether the CBA governs the dismissal:

Contrary to respondents' interpretation, we do not find that the cited provision of the CBA unambiguously excludes Woods from its coverage. Indeed, it can be read to wholly supplant the referenced provisions of the Civil Service Law and to require a demonstration of “just cause” to discipline any employee in the bargaining unit. While the dissent has concluded that Woods was not disciplined, it is for an arbitrator to interpret and apply the CBA, and we do not have authority to consider the merits of the argument … . Since the CBA provision is ambiguous, an arbitrator must decide whether it governs Woods' dismissal from service, and Supreme Court should have granted the petition to compel arbitration … . Matter of Woods v State Univ. of N.Y., 2016 NY Slip Op 04084, 3rd Dept 5-26-16

ARBITRATION (WHERE THE COLLECTIVE BARGAINING AGREEMENT (CBA) IS AMBIGUOUS ABOUT ITS APPLICABILITY TO AN ACTION AGAINST A COVERED EMPLOYEE, WHETHER THE CBA GOVERNS MUST BE DETERMINED BY THE ARBITRATOR)/EMPLOYMENT LAW (PUBLIC EMPLOYEES, ARBITRATION, WHERE THE COLLECTIVE BARGAINING AGREEMENT (CBA) IS AMBIGUOUS ABOUT ITS APPLICABILITY TO AN ACTION AGAINST A COVERED EMPLOYEE, WHETHER THE CBA GOVERNS MUST BE DETERMINED BY THE ARBITRATOR)/UNIONS (PUBLIC EMPLOYEES, ARBITRATION, WHERE THE COLLECTIVE BARGAINING AGREEMENT (CBA) IS AMBIGUOUS ABOUT ITS APPLICABILITY TO AN ACTION AGAINST A COVERED EMPLOYEE, WHETHER THE CBA GOVERNS MUST BE DETERMINED BY THE ARBITRATOR)/PUBLIC EMPLOYEES (ARBITRATION, WHERE THE COLLECTIVE BARGAINING AGREEMENT (CBA) IS AMBIGUOUS ABOUT ITS APPLICABILITY TO AN ACTION AGAINST A COVERED EMPLOYEE, WHETHER THE CBA GOVERNS MUST BE DETERMINED BY THE ARBITRATOR)/COLLECTIVE BARGAINING AGREEMENT (ARBITRATION, WHERE THE COLLECTIVE BARGAINING AGREEMENT (CBA) IS AMBIGUOUS ABOUT ITS APPLICABILITY TO AN ACTION AGAINST A COVERED EMPLOYEE, WHETHER THE CBA GOVERNS MUST BE DETERMINED BY THE ARBITRATOR)

INJURY IN FALL IN EMPLOYER’S PARKING LAW AROSE FROM EMPLOYMENT.

The Third Department determined injury from a trip and fall in the employer's parking lot was covered under the Workers' Compensation Law:

“To be compensable under the Workers' Compensation Law, an injury must have arisen both out of and in the course of a claimant's employment” … . Moreover, “[w]hile on the employer's premises, going to or coming from work is generally considered an incident of the employment” … .

Here, the record reveals that claimant tripped and fell in the employer's parking lot as she was preparing to leave at the end of her shift. Thus, there is substantial evidence in the record to support the Board's determination that claimant's injury arose out of and in the course of her employment … . Matter of Swartz v Absolut Ctr. for Nursing & Rehab, 2016 NY Slip Op 03937, 3rd Dept 5-19-16

WORKERS' COMPENSATION LAW (INJURY IN FALL IN EMPLOYER'S PARKING LAW AROSE FROM EMPLOYMENT)

COURT OF CLAIMS LACKS JURISDICTION WHERE MONEY DAMAGES ARE MERELY INCIDENTAL TO THE CLAIM.

The Third Department determined a prisoner's lawsuit alleging false imprisonment based upon mistakes in sentencing was properly dismissed because the Court of Claims lacked jurisdiction:

“While jurisdiction reposes in the Court of Claims where the essential nature of the claim against defendant is to recover money, it does not lie where monetary relief is incidental to the primary claim” … . Here, we agree with the Court of Claims that it lacks subject matter jurisdiction on claimant's false imprisonment claim, inasmuch as his primary argument is that he is currently being confined unlawfully due to errors in resentencing and that any claim for related damages is incidental to this primary argument. Therefore, the claim for false imprisonment was properly dismissed for lack of jurisdiction. Jackson v State of New York, 2016 NY Slip Op 03938, 3rd Dept 5-19-16

CIVIL PROCEDURE (COURT OF CLAIMS LACKS JURISDICTION WHERE MONEY DAMAGES ARE MERELY INCIDENTAL TO THE CLAIM)/COURT OF CLAIMS (COURT OF CLAIMS LACKS JURISDICTION WHERE MONEY DAMAGES ARE MERELY INCIDENTAL TO THE CLAIM)

STATUTE REQUIRING TIMELY NOTICE OF THE ACCIDENT DID NOT REQUIRE NOTICE OF ALL THE INJURIES STEMMING FROM THE ACCIDENT.

The Third Department determined the statute requiring notice of an accident did not require notice of all the injuries. Here the self-insured employer was timely notified of the accident and claimant's knee injury but was not notified of other injuries stemming from the accident until a year later:

Workers' Compensation Law § 18 provides, in relevant part, that written “[n]otice of an injury . . . for which compensation is payable . . . shall be given to the employer within thirty days after the accident causing the injury.” The same provision also provides that the Board may excuse late notice upon certain grounds, including “that the employer, or his or its agents . . . had knowledge of the accident.” Here, the self-insured employer was provided with notice of the accident and claimant's resulting left knee injury within the statutory 30-day period, but was unaware of claimant's other injuries until nearly a year later when she filed her C-3 claim. The self-insured employer contends that this Court should construe the statutory phrase “had knowledge of the accident” to mean “had knowledge of the injury,” and, as a result, conclude that claimant's late notice for the additional injuries is inexcusable pursuant to Workers' Compensation Law § 18. We reject the self-insured employer's interpretation of Workers' Compensation Law § 18, as it contravenes two foundational rules of statutory construction. Matter of Logan v New York City Health & Hosp. Corp., 2016 NY Slip Op 03776, 3rd Dept 5-12-16

WORKERS' COMPENSATION LAW (STATUTE REQUIRING TIMELY NOTICE OF THE ACCIDENT DID NOT REQUIRE NOTICE OF ALL THE INJURIES STEMMING FROM THE ACCIDENT)

POSSESSION OF MARIJUANA CONSTITUTED DISQUALIFYING MISCONDUCT.

The Third Department determined claimant's criminal conviction disqualified him from receiving unemployment insurance benefits. Claimant had been a service aide for the developmentally disabled for 25 years and pled guilty to possession of marijuana:

Criminal convictions arising from conduct occurring outside the workplace have been found to constitute disqualifying misconduct where they demonstrate a breach of the standards of behavior to be reasonably expected by an employer in light of the nature of the employment involved … . Significantly, claimant's job responsibilities included, among other things, dispensing medications to developmentally disabled individuals. Given the environment in which claimant worked, it was reasonable for the employer to expect that claimant would not illegally use or possess controlled substances. Clearly, claimant's criminal conduct posed a risk to the employer's mission and was detrimental to its interests. Therefore, we find that substantial evidence supports the Board's finding that claimant engaged in disqualifying misconduct … . Matter of Hall (Commissioner of Labor), 2016 NY Slip Op 03797, 3rd Dept 5-12-16

UNEMPLOYMENT INSURANCE (POSSESSION OF MARIJUANA CONSTITUTED DISQUALIFYING MISCONDUCT)

 DISPUTED BOUNDARY PROVEN THROUGH DOCTRINE OF PRACTICAL LOCATION.

The Third Department determined the disputed boundary line was established by the doctrine of practical location:

Under … doctrine [of practical location], “the practical location of a boundary line and an acquiescence of the parties therein for a period of more than the statutory period governing adverse possession is conclusive of the location of the boundary line” … . Moreover, “application of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is definitely and equally known, understood and settled” … .

Here, defendant submitted plaintiff's deposition testimony in support of his motion. Plaintiff had lived continuously upon his property for approximately 23 years, and he acknowledged that, during that time, the occupiers of defendant's parcel had used the strip to access a garage in the rear of their property, and neither plaintiff nor his parents had ever attempted to prevent them from doing so. Plaintiff further acknowledged that there was previously a line of grass running between the two parcels that created the appearance of two separate driveways, and that the remnants of that line were still visible as a triangular patch or “point” of grass. Defendant also submitted an affidavit from a neighbor who had lived across the street for approximately 50 years. This neighbor confirmed that there had been a line of grass that ran between the parties' parcels, and that it had appeared that the occupants had always agreed that their respective driveways were on either side of that line. Finally, plaintiff submitted the affidavit of defendant's immediate predecessor in interest, who had lived on the property for approximately 40 years and had later rented it to tenants. This witness stated that, throughout his involvement with the property, the occupants of the two parcels had always mutually agreed that the boundary line was located along the line of grass bisecting the parcels' driveways. His affidavit included an aerial photograph portraying the boundary as a line extending along the remaining triangular strip of grass. Lounsbury v Yeomans, 2016 NY Slip Op 03798, 3rd Dept 5-12-16

REAL PROPERTY (DISPUTED BOUNDARY PROVEN THROUGH DOCTRINE OF PRACTICAL LOCATION)/PRACTICAL LOCATION, DOCTRIN OF, (DISPUTED BOUNDARY PROVEN THROUGH DOCTRINE OF PRACTICAL LOCATION)

PISTOL PERMIT PROPERLY REVOKED BY FAMILY COURT.

The Third Department determined Family Court properly revoked petitioner's pistol permit:

Here, the evidence included the report of a police investigator who interviewed both petitioner and his former spouse regarding the 2008 domestic dispute. The former spouse recounted that, during a heated dispute over the status of their marriage, petitioner punched several holes in the wall, removed his pistol from a drawer in his bedroom, began to load it and told her that “he was going to give her something to call the police about.” Contrary to petitioner's claim, respondent was entitled to rely on the hearsay statements contained in the report … . Although petitioner denied threatening his former spouse and testified that he was merely packing the gun with the rest of his belongings in an effort to leave the marital home, respondent expressly found the former spouse's account to be more credible, and we defer to such credibility determinations … . Accordingly, we find no abuse of discretion in respondent's determination that petitioner handled his pistol in an irresponsible manner and that revocation of his permit was therefore justified … . Matter of Schmitt v Connolly, 2016 NY Slip Op 03775, 3rd Dept 5-12-6

PISTOL PERMITS (PISTOL PERMIT PROPERLY REVOKED BY FAMILY COURT)

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