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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)

HEARING OFFICER IMPROPERLY LIMITED THE NUMBER OF WITNESS PETITIONER COULD CALL, NEW HEARING REQUIRED.

The Third Department determined the hearing officer improperly limited the number of witnesses petitioner could call for the hearing. a new hearing was required:

Prior to the hearing, petitioner gave his assistant a list of 13 potential inmate witnesses who might testify. At the hearing, it appears that he wished to have some of these witnesses testify, but the content of their proposed testimony was never ascertained by the Hearing Officer. Instead, the Hearing Officer limited the number of witnesses to three, stating that he was not going to allow redundant testimony. Significantly, however, the Hearing Officer never explained the reason that the testimony would be redundant and this is not clear from the record. Under these circumstances, we find that the denial of the remaining inmate witnesses was error… . Matter of Payton v Annucci, 2016 NY Slip Op 03791, 3rd Dept 5-12-16

DISCIPLINARY  HEARINGS (INMATES) (HEARING OFFICER IMPROPERLY LIMITED THE NUMBER OF WITNESS PETITIONER COULD CALL, NEW HEARING REQUIRED)

HEARING OFFICER DID NOT MAKE AN ADEQUATE EFFORT TO FIND WITNESSES, NEW HEARING REQUIRED.

The Third Department determined the hearing officer's failure to make an adequate attempt to locate the witnesses petitioner wanted to testify at the hearing required a new hearing:

At the hearing, petitioner requested the testimony of two fellow inmates. He did not know the inmates' names, but identified them by their nicknames and each of the cell blocks in which they were housed. Although the Hearing Officer made a phone call in an effort to locate one of these inmates, he made no effort to locate the other one, stating that petitioner did not provide him with enough information. Although petitioner's description of the requested witnesses was limited, in our view it was sufficiently detailed in that an attempt to locate them would not have been overly burdensome. Accordingly, the Hearing Officer's failure to make a reasonable effort to locate the inmates violated petitioner's right to call witnesses … . * * *

Given that the Hearing Officer articulated a good-faith reason for denying the witnesses and for his lack of effort in locating them, we find that petitioner's regulatory right to call witnesses was violated and not his constitutional right, and remittal for a new hearing is the proper remedy… . Matter of Allaway v Prack, 2016 NY Slip Op 03777, 3rd Dept 5-12-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER DID NOT MAKE AN ADEQUATE EFFORT TO FIND WITNESSES, NEW HEARING REQUIRED)

FAILURE TO INSTRUCT SPECTATORS TO REMOVE OR COVER UP T-SHIRTS MEMORIALIZING THE MURDER VICTIM WAS HARMLESS ERROR.

The Third Department determined County Court's failure to address T-shirts memorializing the murder victim worn by trial spectators was error, but the error was harmless:

… [W]e find that County Court's failure to instruct the spectators to remove or cover up their T-shirts was error, but the court was attentive to the courtroom environment and interacted with the spectators in an authoritative yet sensitive manner. In addition, there is no evidence that the spectators who wore the T-shirts called attention to themselves during the trial, nor did the photograph or letters “R.I.P.” convey anything other than remembrance of the victim. Consequently, we conclude that their conduct was not so egregious as to require reversal. We also find that the proof of defendant's guilt was so overwhelming that there was no reasonable possibility that this error might have contributed to his conviction … . People v Jones, 2016 NY Slip Op 03770, 3rd Dept 5-12-16

CRIMINAL LAW (FAILURE TO INSTRUCT SPECTATORS TO REMOVE OR COVER UP T-SHIRTS MEMORIALIZING THE MURDER VICTIM WAS HARMLESS ERROR)/T-SHIRTS MEMORIALIZING MURDER VICTIM (CRIMINAL TRIAL. FAILURE TO INSTRUCT SPECTATORS TO REMOVE OR COVER UP T-SHIRTS MEMORIALIZING THE MURDER VICTIM WAS HARMLESS ERROR)

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