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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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ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE.

The Third Department determined an order precluding a party from introducing evidence at trial was appealable in this case. However, under the facts, the order was properly granted. With respect to the appealability of the motion in limine, the court wrote:

As a threshold matter, an order ruling on a motion in limine is generally not appealable as of right or by permission “since an order[] made in advance of trial which merely determined the admissibility of evidence is an unappealable advisory ruling” … . “However, an order that limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party, is appealable” … . The order appealed from here, rather than “merely limit[ing] the production of certain evidence as immaterial to damages,” restricted plaintiffs' ability to prove and recover damages … and it is, therefore, appealable … . Calabrese Bakeries, Inc. v Rockland Bakery, Inc., 2016 NY Slip Op 03772, 3rd Dept 5-12-16

APPEALS (ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE)/EVIDENCE (APPEALS, ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE)/IN LIMINE, MOTION (APPEALS, ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE)

TUTORS WERE EMPLOYEES OF TUTORING CENTER.

The Third Department determined claimant tutors were employees of Island Tutoring Center which provided tutors to school districts, private schools and private parties, despite the “independent contractor” contract designation:

… [T]he record establishes that ITC advertises for tutors to provide tutoring services to its clients. Potential tutors, including [claimant] Ritch, were interviewed and screened by ITC's owner, Steven Thode, who would review a prospective tutor's résumé and list of references. If a prospective tutor was offered employment, he or she would typically sign a contract, as Bianco did, identifying that tutor as an independent contractor. That contract provided that employment was contingent upon a favorable reference and fingerprint check and verification of employment eligibility. Although the tutors were permitted to work for other tutoring companies, the contract also included a provision prohibiting the tutors from soliciting ITC's clients or students.

When clients contacted ITC to request tutoring services, ITC would select a tutor from its database and inform that tutor of the area of study or subject to be instructed and the number of tutoring hours required. Although tutors were free to decline assignments, ITC did not permit tutors to provide their own substitutes after accepting an assignment. Following provision of the services, ITC required tutors to fill out time sheets and its session report forms in order to receive payment. As to payment, ITC paid its tutors prior to receiving payment from its clients, reimbursed tutors for certain expenses and loaned tutors teaching materials from its library when necessary. ITC also fielded its clients' complaints and feedback concerning the performance of its tutors and could remove tutors from assignments if there was a negative complaint. Matter of Ritch (Island Tutoring Ctr., Inc.–Commissioner of Labor), 2016 NY Slip Op 03569, 3rd Dept 5-5-16

UNEMPLOYMENT INSURANCE (TUTORS WERE EMPLOYEES OF TUTORING CENTER)/TUTORS (UNEMPLOYMENT INSURANCE, TUTORS WERE EMPLOYEES OF TUTORING CENTER)

CLASSICAL FLAUTIST NOT AN EMPLOYEE.

The Third Department, reversing the Unemployment Insurance Appeal Board, determined that claimant, a professional classical flautist, was not an employee of the Syracuse Society for New Music (SNM) and was therefore not entitled to unemployment insurance benefits:

Here, claimant was retained only occasionally and sporadically by SNM to perform classical music with an orchestra at various venues. She was paid at a set rate of $300 for each concert. Claimant was not required to sign a written contract, was permitted to accept or reject any assignments offered, maintained other employment while performing for SNM and suffered no restrictions of any sort whatsoever upon her ability to perform for other organizations … . She had never missed a performance, but testified that if she had hypothetically needed to be absent, it would be her ethical responsibility to attempt to obtain her own replacement. The treasurer of SNM testified that, assuming circumstances prevented claimant from attending a performance, “it would be a collaboration” to obtain a substitute, although SNM would not generally ask a musician to provide his or her own substitute.

SNM did not provide claimant with equipment; the testimony revealed that, although “somebody on the board” may occasionally have brought a box of music stand lights, SNM owned no assets, the musicians provided their own instruments and music stands, and SNM merely acted as a “facilitator” in locating equipment already present at the venue … . Claimant was not required to wear a uniform or dress in any particular manner … . Although volunteers associated with SNM would set up the stage and seating, the musicians themselves ultimately made the decision on how to position themselves for a performance. Although the greater portion of the necessary practice for the performances was performed wholly at claimant's discretion, there were necessarily scheduled rehearsals and defined performance date … .

Viewed in context, we do not find that the requirements that claimant rehearse and perform specific pieces of music on set dates at set venues demonstrates meaningful control. Matter of Greene (Syracuse Socy. for New Music, Inc.–Commissioner of Labor), 2016 NY Slip Op 03567, 3rd Dept 5-5-16

UNEMPLOYMENT INSURANCE (CLASSICAL FLAUTIST NOT AN EMPLOYEE)/MUSICIANS (UNEMPLOYMENT INSURANCE, CLASSICAL FLAUTIST NOT AN EMPLOYEE)

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DEFENDANT BUILDING OWNER NOT ENTITLED TO SUMMARY JUDGMENT IN TOXIC TORT (MOLD EXPOSURE) ACTION ON STATUTE OF LIMITATIONS GROUNDS.

The Third Department, reversing Supreme Court, determined defendant was not entitled to summary judgment dismissing plaintiff's toxic tort action on statute of limitations grounds. Plaintiff alleged injury caused by mold in a building owned by defendant:

… [D]efendant was required to show, at a minimum, that plaintiff's alleged exposure to a toxic substance did not occur within three years of the commencement of the action … . If defendant exposed or continued to expose plaintiff to a toxic substance within three years of the commencement of the action, plaintiff could not have discovered any resulting injuries from such exposure at a time that would be barred by CPLR 214-c (2). Given that a plaintiff cannot discover the injurious effects of exposure to a toxic substance prior to that exposure occurring, and considering defendant's concession that plaintiff continued to be exposed to the mold at a time less than three years prior to the commencement of the action, defendant is not entitled to summary judgment dismissing the complaint on statute of limitations grounds.

Turning to the allegedly injurious exposure taking place more than three years prior to the commencement of the action, we find that defendant did not prove as a matter of law that plaintiff should have discovered his allergy and asthma conditions at a time that is barred by CPLR 214-c (2). Although plaintiff exhibited some symptoms, including skin and eye irritation and tightness in the throat, in the spring and summer of 2002, plaintiff also explained that such symptoms ceased when he would leave the building at the end of his shifts. Further, plaintiff averred that he did not seek medical treatment for these symptoms, miss work as a result of the symptoms or file a workers' compensation claim until late October 2002. Viewing the evidence in the light most favorable to plaintiff, the symptoms that plaintiff exhibited more than three years prior to the commencement of the action were too intermittent and inconsequential to trigger the running of the statute of limitations pursuant to CPLR 214-c (2) … . Malone v Court W. Developers, Inc., 2016 NY Slip Op 03571, 3rd Dept 5-5-16

NEGLIGENCE (DEFENDANT BUILDING OWNER NOT ENTITLED TO SUMMARY JUDGMENT IN TOXIC TORT (MOLD EXPOSURE) ACTION ON STATUTE OF LIMITATIONS GROUNDS)/TOXIC TORTS (DEFENDANT BUILDING OWNER NOT ENTITLED TO SUMMARY JUDGMENT IN TOXIC TORT (MOLD EXPOSURE) ACTION ON STATUTE OF LIMITATIONS GROUNDS)/MOLD (TOXIC TORTS, DEFENDANT BUILDING OWNER NOT ENTITLED TO SUMMARY JUDGMENT IN TOXIC TORT (MOLD EXPOSURE) ACTION ON STATUTE OF LIMITATIONS GROUNDS)/CIVIL PROCEDURE (TOXIC TORTS DEFENDANT BUILDING OWNER NOT ENTITLED TO SUMMARY JUDGMENT IN TOXIC TORT (MOLD EXPOSURE) ACTION ON STATUTE OF LIMITATIONS GROUNDS)/STATUTE OF LIMITATIONS (TOXIC TORTS DEFENDANT BUILDING OWNER NOT ENTITLED TO SUMMARY JUDGMENT IN TOXIC TORT (MOLD EXPOSURE) ACTION ON STATUTE OF LIMITATIONS GROUNDS)

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