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UNCLE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN NEGLECT PROCEEDINGS.

The Third Department, reversing Family Court, determined uncle should have been allowed to intervene in neglect proceedings to seek custody of the children who had been removed from the home:

There is no question that the uncle is authorized to seek intervention under the statute; he is one of the enumerated relatives permitted to pursue such relief, and both respondent and the child's father (among others) consented to his appearance in the proceeding. Nor does Family Ct Act § 1035 (f) limit the right of intervention to only the fact-finding and dispositional hearings held on a pending Family Ct Act article 10 neglect petition. Quite the contrary, it broadly permits a qualified relative seeking temporary or permanent custody of the child to participate “in all phases of dispositional proceedings” (Family Ct Act § 1035 [f] [emphasis added]). Furthermore, a permanency hearing is plainly dispositional in nature. A dispositional hearing is defined as “a hearing to determine what order of disposition should be made” (Family Ct Act § 1045), and Family Ct Act § 1089 (d) provides that, “[a]t the conclusion of each permanency hearing, the court shall . . . determine and issue its findings, and enter an order of disposition in writing.” Family Court seemed to acknowledge all of this, but reasoned that intervention was not permitted because the dispositional phase of the proceeding terminated upon completion of the dispositional hearing concerning the article 10 petition and the issuance of an order pursuant to Family Ct Act § 1052 (a). This was error. Matter of Demetria FF. (Tracy GG.), 2016 NY Slip Op 04499, 3rd Dept 6-9-16

FAMILY LAW (UNCLE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN NEGLECT PROCEEDINGS)/NEGLECT (UNCLE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN NEGLECT PROCEEDINGS)/CUSTODY UNCLE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN NEGLECT PROCEEDINGS)

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COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR.

The Third Department, in a full-fledged opinion by Justice Devine, determined the Commissioner of Labor had the authority to mandate a minimum wage ($15 an hour) for certain fast food workers in New York:

The Commissioner is authorized to make the assessment as to whether the minimum wage should be increased for employees in specific occupations, does so with help from an agency having special competence in the area and a wage board tasked with investigating the relevant questions as set forth by the Legislature, and thereafter issues a wage order setting a minimum wage in a specific occupation if such would further the policy objectives delineated by statute. The Commissioner complied with that procedure, and the fact that the Legislature failed to agree on an increase in the statutory minimum wage in the leadup to the issuance of the wage order in no way reflects dispute or confusion as to the longstanding authority of the Commissioner to set a minimum wage for employees in a given occupation … . Matter of National Rest. Assn. v Commissioner of Labor, 2016 NY Slip Op 04498, 3rd Dept 6-9-16

EMPLOYMENT LAW (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)/LABOR LAW (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)/MINIMUM WAGE (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)/FAST FOOD WORKERS (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)

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PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL.

The Third Department, reversing the conviction, determined preclusion of defendant’s medical evidence in this driving while intoxicated case was an abuse of discretion and the prosecutor’s cross-examination defendant and summation were improper:

“Preclusion of evidence is a severe sanction, not to be employed unless any potential prejudice arising from the failure to disclose cannot be cured by a lesser sanction” … . … Here, County Court’s own inquiry readily identified measures to alleviate any prejudice to the People … . Since a less drastic remedy was readily available, we conclude that the outright preclusion of this evidence was an abuse of discretion. …

… During cross-examination, the prosecutor utilized documentation provided by the defense to question defendant as to his winning an Iron Man … and his being recommended for enrollment in the US Army Ranger School … . Certainly this questioning was an accurate portrayal of defendant’s physical fitness prior to being injured during his military service and fair game to a point as to whether defendant was capable of performing the field sobriety tests. The portrayal, however, disregards defendant’s actual medical condition as shown in the precluded medical records. This discrepancy came to a head during summation, where the prosecutor stated, “I just didn’t really know what to make” of defendant’s claimed impairments. She continued, “I’m surprised” given defendant’s Iron Man award, and concluded, “I don’t understand what happened . . . when he couldn’t perform a standardized field sobriety test. It just doesn’t make any sense to me.”

A prosecutor may not, even during summation, express his or her personal opinion challenging the veracity of the evidence … . To express personal surprise as to defendant’s claim of incapacity, while in possession of defendant’s medical records, was disingenuous and improper.  People v O’Brien, 2016 NY Slip Op 04471. 3rd Dept 6-9-16

CRIMINAL LAW (PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)/ATTORNEYS (CRIMINAL LAW, IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)/PROSECUTORIAL MISCONDUCT (PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)

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MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING.

The Third Department determined defendant's motion to vacate his conviction on ineffective assistance grounds should not have been denied without a hearing:

To establish entitlement to a hearing, a defendant must demonstrate that “non-record facts set forth in [a] CPL article 440 motion . . . are material and [that], if established, they would entitle him [or her] to relief” … . Defendant's most significant sworn allegation is that counsel failed to watch the entire recording of his interview with law enforcement — or to read the entire transcript of that interview — prior to waiving any challenge to its admissibility and making assurances to the jury during opening remarks as to the contents of that recording. Notably, defendant's father also submitted a sworn statement suggesting that counsel may not have been familiar with the contents of the recorded police interview. Further, defendant made factual allegations concerning the circumstances surrounding that interview that would, if credited, support a finding that it was, at least in part, a custodial interrogation, which is relevant because a strategic decision whether to seek suppression would have required being sufficiently familiar with the contents of that recording … . Defendant also alleged a number of specific deficiencies in counsel's assistance during the plea bargaining and trial stages which, if credited, may entitle him to relief … , including that counsel failed to timely convey a plea offer … . Defendant further avers that counsel made unqualified assurances regarding a favorable outcome if he went to trial and made specific assurances concerning the sentence that would be imposed if he were convicted after trial. In regard to counsel's pretrial actions, defendant averred that, but for counsel's false assurances and inadequate representation, he would have accepted a plea deal. Taken as a whole, we find that defendant provided sufficient sworn, material statements in support of his motion that, if credited, would establish that he received less than meaningful representation … . People v Sposito, 2016 NY Slip Op 04467, 3rd Dept 6-9-16

CRIMINAL LAW (MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)/ATTORNEYS (CRIMINAL LAW, MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)/VACATE CONVICTION, MOTION TO (MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)

FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED.

The Third Department determined the failure to grant defendant's for cause challenge to a juror required reversal:

During the course of jury selection, prospective juror No. 15 expressed concern regarding a potential witness's prior criminal “track record.” After initially indicating that he might be influenced “greatly” by a witness's criminal record, County Court explained to prospective juror No. 15 — and the rest of the panel — that the jury could take into consideration a witness's prior criminal conviction in assessing whether the jury believed the testimony offered by that witness. When asked by County Court whether he could follow the court's instruction on that point, prospective juror No. 15 replied, “Oh, yes, yes.” Upon further inquiry by defense counsel, however, prospective juror No. 15 explained that if he were to learn that defendant [*5]previously had engaged in the same or similar offenses as those charged in the indictment, he “might be swayed” by what he would view “as a continuous track record.” When asked how such knowledge would affect his thinking, prospective juror No. 15 replied, “Negatively.” Defense counsel then inquired, “Negatively towards?,” in response to which prospective juror No. 15 stated, “Guilty.” When defense counsel asked, “Just by virtue of a [prior] record?,” the prospective juror replied, “Yes, of a continuous criminal record, yes.” Other than County Court's general inquiry as to the panel's ability to follow the law as charged by the court, no further questioning of this juror occurred and no unequivocal assurances of impartiality were elicited. People v Cuevas, 2016 NY Slip Op 04468, 3rd Dept 6-9-16

CRIMINAL LAW (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED)/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED)/FOR CAUSE JUROR CHALLENGE (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED)

POLICY MEMORANDUM FROM NEW YORK STATE HEALTH INSURANCE PROGRAM AMOUNTED TO A RULE OR REGULATION WHICH MUST BE FILED WITH THE DEPARTMENT OF STATE; BECAUSE IT WAS NEVER FILED THE FOUR-MONTH STATUTE OF LIMITATIONS TO CONTEST THE POLICY NEVER STARTED TO RUN.

The Third Department determined the four month statute of limitations for challenging a policy announced by the New York State Health Insurance Plan (NYSHIP) never started to run because the policy memorandum amount to a rule or regulation which was never filed with the Department of State:

Here, the policy memorandum broadly and invariably affects “that segment of the ‘general public’ over which” the State respondents have authority, inasmuch as it applies to all individuals eligible for NYSHIP coverage who seek to participate in the health insurance buyout program … . Furthermore, the pronouncement that all those who decline their own NYSHIP coverage are now ineligible for the buyout program if their alternative coverage — e.g., through a spouse — is also a NYSHIP plan, clearly reflects “a firm, rigid, unqualified standard or policy” that effectively “carves out a course of conduct for the future” … . Consequently, we find that the policy memorandum constitutes a “rule or regulation” within the meaning of NY Constitution, article IV, § 8 and Executive Law § 102 (1) (a). As such, it is invalid and without effect until it is filed with the Department of State … . Matter of Plainview-Old Bethpage Congress of Teachers v New York State Health Ins. Plan, 2016 NY Slip Op 04473, 3rd Dept 6-9-16

 

CIVIL PROCEDURE (POLICY MEMORANDUM FROM NEW YORK STATE HEALTH INSURANCE PROGRAM AMOUNTED TO A RULE OR REGULATION WHICH MUST BE FILED WITH THE DEPARTMENT OF STATE, BECAUSE IT WAS NEVER THE FILED FOUR-MONTH STATUTE OF LIMITATIONS TO CONTEST THE POLICY NEVER STARTED TO RUN)/EMPLOYMENT LAW (POLICY MEMORANDUM FROM NEW YORK STATE HEALTH INSURANCE PROGRAM AMOUNTED TO A RULE OR REGULATION WHICH MUST BE FILED WITH THE DEPARTMENT OF STATE, BECAUSE IT WAS NEVER THE FILED FOUR-MONTH STATUTE OF LIMITATIONS TO CONTEST THE POLICY NEVER STARTED TO RUN)

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LINK BETWEEN HEART ATTACK AND WORK NOT ESTABLISHED BY SUBSTANTIAL EVIDENCE.

The Third Department, reversing the Workers' Compensation Board, found there was insufficient evidence linking claimant's heart attack (myocardial infarction) to his work:

While the Board is entitled to resolve conflicting medical opinions, there must be “medical opinion evidence regarding the probability of a causal relationship supported by a rational basis; a general expression of possibility will not suffice” … . Here, because the testimony of claimant's treating cardiologist expressed merely the possibility that the physical activities in which claimant engaged could have caused his myocardial infarction, such testimony falls short of the required degree of medical proof. As a result, the Board's determination based upon that testimony lacked a rational basis and was not supported by substantial evidence … . Matter of Hartigan v Albany County Sheriff's Dept., 2016 NY Slip Op 04280, 3rd Dept 6-2-16

WORKERS' COMPENSATION (LINK BETWEEN HEART ATTACK AND WORK NOT ESTABLISHED BY SUBSTANTIAL EVIDENCE)/EVIDENCE (WORKERS' COMPENSATION, LINK BETWEEN HEART ATTACK AND WORK NOT ESTABLISHED BY SUBSTANTIAL EVIDENCE)

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)

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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)

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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)

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