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CRISIS COUNSELOR WAS AN EMPLOYEE.

The Third Department determined a counselor (called a “specialist”) who worked for Crisis Care Network (CCN), a provider of crisis intervention services to employers which have experienced tragedies, was an employee entitled to unemployment insurance benefits. CCN contracts with an employer's designated employee assistance program (EAP):

… [A]fter contracting with an EAP, CCN recruits specialists from its self-created database and screens them to ensure that they have the qualifications required by the EAP. If a specialist has the proper qualifications, CCN offers that individual the assignment at a set hourly rate of pay. If accepted, as in claimant's case, the parties enter into a written agreement governing that particular assignment and CCN informs the specialist, based upon instructions from the EAP, of the date, time and location that the specialist is to report. While on assignment, the specialist must represent that he or she is from the EAP and is not permitted to solicit clients, although there is no prohibition against a specialist otherwise engaging in private practice or working for CCN's competitors. Except in very limited circumstances, CCN pays specialists within 45 days after services are rendered upon the submission of the proper paper work by the specialist regardless of whether it has yet been paid by the EAP, and CCN also provides reimbursement for travel expenses. CCN also provides voluntary training. If a specialist is unable to report to an assignment, he or she must notify CCN and cannot select a replacement. Furthermore, CCN provides specialists with informational handouts to be used on assignments, as well as professional guidelines that are based upon the expectations of the EAP, and the specialists must provide reports summarizing the counseling sessions per the requirements of the EAP. Matter of Torres (Crisis Care Network, Inc.–Commissioner of Labor), 2016 NY Slip Op 01710, 3rd Dept 3-10-16

UNEMPLOYMENT INSURANCE (CRISIS COUNSELOR WAS AN EMPLOYEE)

PROMOTIONAL SALES MODEL WAS AN EMPLOYEE.

The Third Department determined claimant, a promotional sales model who distributed samples of products and free merchandise for the clients of Preston, was an employee of Preston entitled to unemployment insurance benefits:

Here, Preston directed potential promotional sales models to fill out an application and to provide references. Preston established the pay rates, paid claimant directly regardless of whether a client paid Preston and, at times, reimbursed claimant for certain travel or incidental expenses. Preston determined the time, date and location of the promotional events, as well as the particular products that claimant would be required to distribute at the events … . Prior to a promotional event, Preston's managers instructed claimant to dress appropriately … and not to distribute products at the events that were not being promoted. The managers also explained what was expected of her at the event and informed her of what she should say at the events about the clients' products. If claimant could not report for a scheduled event or complete her shift, she was expected to contact a manager at Preston. Following an event, she was expected to fill out a Preston “recap form” summarizing her time spent at and information about the event, and she was required to submit the form to a manager at Preston. While claimant could and did work for other companies, she did not maintain her own business for promotional sales marketing. On occasion, Preston would contact its clients to review and critique claimant's work at the promotional events, and Preston directly handled clients' complaints … . Matter of Waggoneer (Preston Leasing Corp.–Commissioner of Labor), 2016 NY Slip Op 01707, 3rd Dept 3-10-16

UNEMPLOYMENT INSURANCE (PROMOTIONAL SALES MODEL WAS AN EMPLOYEE)

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FRAUD CAUSE OF ACTION PROPERLY DISMISSED BECAUSE (1) IT WAS DUPLICATIVE OF THE BREACH OF CONTRACT CAUSE OF ACTION AND (2) PLAINTIFF, AS A SOPHISTICATED BUSINESS ENTITY, COULD NOT ARGUE IT RELIED ON ORAL REPRESENTATIONS WHICH CONTRADICTED THE WRITTEN CONTRACT; STRICT REQUIREMENTS FOR ATTACHMENT NOT MET.

The Third Department, affirming Supreme Court, determined plaintiff’s fraud cause of action was properly dismissed because (1) it was duplicative of the breach of contract cause of action, and (2), plaintiff, a sophisticated business entity,  could not be heard to rely upon alleged oral representations which contradicted the written contract.  In addition, the Third Department determined the requirements for attachment pursuant to CPLR 6201 (3) were not met by plaintiff. There was insufficient proof defendant was secreting assets of frustrate a potential judgment:

A cause of action for fraud does not exist where the alleged fraudulent act is premised upon a breach of a contractual obligation … . * * * … [A] sophisticated business entity cannot justifiably rely on oral representations when it thereafter enters into a contract containing terms that directly contradict those oral representations … . Accordingly, plaintiff’s fraud cause of action is subject to dismissal, either as duplicative of the contract cause of action or, in the alternative, based on plaintiff’s own allegations that it relied on oral representations that were contradicted by the terms of the contract that it thereafter entered into. Northeast United Corp. v Lewis, 2016 NY Slip Op 01713, 3rd Dept 3-10-16

CONTRACT LAW (SOPHISTICATED BUSINESS ENTITY CAN NOT ARGUE IT RELIED ON ORAL MISREPRESENTATIONS WHICH CONTRADICTED THE WRITTEN CONTRACT)/FRAUD (FRAUD CAUSE OF ACTION PROPERLY DISMISSED AS DUPLICATIVE OF BREACH OF CONTRACT CAUSE OF ACTION AND BECAUSE PLAINTIFF, A SOPHISTICATED BUSINESS ENTITY, COULD NOT BE HEARID TO HAVE RELIED UPON ORAL MISREPRESENTATIONS WHICH CONTRADICTED THE WRITTEN CONTRACT)/ATTACHMENT (STRICT REQUIREMENTS FOR ATTACHMENT PURSUANT TO CPLR 6201 (3) NOT MET)/CIVIL PROCEDURE (STRICT REQUIREMENTS FOR ATTACHMENT PURSUANT TO CPLR 6201 (3) NOT MET)

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MOTHER FAILED TO FIRST USE LESS DRASTIC CHILD-SUPPORT ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED.

The Third Department determined mother’s motion to hold father in civil contempt for alleged failure to pay child support and related expenses was properly denied. Mother did not first attempt to enforce the relevant provisions of the stipulation with a less drastic mechanism:

In matrimonial actions, Domestic Relations Law § 245 grants the court authority to punish a party for civil contempt pursuant to Judiciary Law § 756 where the party defaults “in paying any sum of money” required by a judgment or order, “and it appears presumptively, to the satisfaction of the court, that payment cannot be enforced” pursuant to the enforcement mechanisms provided in Domestic Relations Law §§ 243 and 244 and CPLR 5241 and 5242. “A civil contempt motion in a [matrimonial] action should be denied where the movant fails to make a showing pursuant to section 245 that resort to other, less drastic enforcement mechanisms had been exhausted or would be ineffectual'” … . Here, the mother did not attempt to utilize any less drastic enforcement mechanism before moving to hold the father in contempt, and failed to demonstrate that resort to a less drastic enforcement mechanism would be ineffectual. Contrary to the mother’s contention, the fact that the child care, medical care, and extracurricular activity expenses she sought payment of were not for a sum certain did not prevent her from seeking to fix any arrears due for those expenses and enforcing the father’s payment obligations through less drastic means. Rhodes v Rhodes, 2016 NY Slip Op 01657, 2nd Dept 3-9-16

FAMILY LAW (CHILD SUPPORT, MOTHER FAILED TO FIRST USE LESS DRASTIC ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED)/CHILD SUPPORT (MOTHER FAILED TO FIRST USE LESS DRASTIC ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED/CONTEMPT, CIVIL (CHILD SUPPORT, MOTHER FAILED TO FIRST USE LESS DRASTIC ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED)

PETITION SEEKING DISCOVERY BASED UPON THE ALLEGATION RESPONDENT HELD ASSETS OF THE ESTATE PROPERLY DENIED, PETITIONERS DID NOT MEET THEIR INITIAL BURDEN.

After carefully considering all the allegations (not summarized here), the Third Department determined the petitioners (children of the decedent) did not meet their burden of showing respondent (another child of the decedent who had lived with decedent) held any property which was an asset of the estate. The petition seeking discovery pursuant to Surrogate's Court Procedure Act (SCPA) 2103 was therefore properly denied:

SCPA 2103 establishes a discovery procedure by which a fiduciary can identify and recover estate assets held by a third party … . The fiduciary bears the burden to prove that property held by a respondent is an estate asset; only when that obligation has been satisfied does the burden shift to the respondent to prove the proper disposition of the disputed property. We agree with Surrogate's Court that petitioners did not satisfy this initial burden and failed to establish grounds for further inquiry. Dwyer v Valachovic, 2016 NY Slip Op 01542, 3rd Dept 3-3-16

TRUSTS AND ESTATES (PETITIONERS DID NOT DEMONSTRATE RESPONDENT HELD ASSETS OF THE ESTATE, PETITION FOR DISCOVERY PURSUANT TO SCPA 2103 PROPERLY DENIED)/SURROGATE'S COURT PROCEDURE ACT (PETITIONERS DID NOT DEMONSTRATE RESPONDENT HELD ASSETS OF THE ESTATE, PETITION FOR DISCOVERY PURSUANT TO SCPA 2103 PROPERLY DENIED)

SIDEWALK DEFECT TOO TRIVIAL TO BE ACTIONABLE.

The Third Department determined defendant's motion for summary judgment in a slip and fall case was properly granted.  Defendant's demonstrated the defect in the sidewalk was trivial and the plaintiff's expert did not identify any relevant code, standard, or accepted-practice violation:

A property owner “'may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his [or her] toes, or trip over a raised projection'” … . “Whether a defect is so trivial to preclude liability depends on the particular facts of each case and requires consideration of such relevant factors as the dimensions of the alleged defect and the circumstances surrounding the injury, including the width, depth, elevation, irregularity, and appearance of the defect as well as the time, place and circumstances of the injury” … .

* * * Photographs of the portion of the sidewalk at issue demonstrate that it is relatively smooth and show only a slight height differential between the adjacent slabs of concrete, which were of different shades. Such evidence satisfied defendant's initial burden of making a prima facie showing that any alleged defect in the sidewalk was too trivial to be actionable … . Chirumbolo v 78 Exch. St., LLC, 2016 NY Slip Op 01537, 3rd Dept 3-3-16

NEGLIGENCE (SIDEWALK DEFECT TRIVIAL)/SLIP AND FALL (SIDEWALK DEFECT TRIVIAL)/TRIVIAL DEFECT (SIDEWALK DEFECT TOO TRIVIAL TO BE ACTIONABLE)

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PUBLIC EMPLOYEE FAILED TO DEMONSTRATE ELIMINATION OF POSITION WAS DONE IN BAD FAITH; NEGLIGENT VIOLATION OF OPEN MEETINGS LAW DID NOT INVALIDATE TOWN’S ACTIONS.

The Third Department determined the petitioner did not demonstrate the elimination of his position with the parks maintenance department was done in bad faith or to circumvent the Civil Service Law. The Third Department concluded the town violated the Open Meetings Law when it eliminated petitioner’s position, but the nature of the violation (mere negligence) did not warrant invalidating the town’s actions:

“[A] public employer may, in the absence of bad faith, collusion or fraud, abolish positions for purposes of economy or efficiency” … . Respondent explained through the affidavits of its Supervisor and a member of its Town Board that because its parks maintenance department consisted of only petitioner and one part-time laborer, it could achieve greater economy and efficiency by abolishing the supervisory position in favor of hiring additional laborers. Petitioner’s managerial duties were shifted to the Supervisor and two full-time and one part-time laborer positions were created at an overall cost savings.

The burden was then on petitioner to demonstrate that his position was eliminated in bad faith or as a subterfuge to circumvent his rights under the Civil Service Law … . However, the mere reassignment of duties, in and of itself, does not constitute proof of bad faith … . Nor is there any indication in the record of any personal or political animosities that would suggest some deceitful purpose of ousting and replacing petitioner. Rather, petitioner’s conclusory and unsupported assertions fail to refute the Town Board’s showing that its actions were part of a good faith effort to reorganize a municipal department for the purposes of reducing costs and increasing efficiency … .

* * * “[T]he record does not suggest that the [Town Board’s] failure to comply with the precise requirements of the Open Meetings Law was anything more than mere negligence,” which does not constitute good cause to invalidate the Town Board’s otherwise permissible actions … . Matter of Cutler v Town of Mamakating, 2016 NY Slip Op 01543, 3rd Dept 3-3-16

MUNICIPAL LAW (ELIMINATION OF PUBLIC EMPLOYEE’S POSITION NOT DONE IN BAD FAITH)/EMPLOYMENT LAW (ELIMINATION OF PUBLIC EMPLOYEE’S POSITION NOT DONE IN BAD FAITH)/OPEN MEETINGS LAW (NEGLIGENT VIOLATION OF OPEN MEETINGS LAW DID NOT INVALIDATE TOWN’S ACTIONS)

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MOTHER ENTITLED TO HEARING ON HER PRO SE PETITION TO MODIFY A CUSTODY AWARD; FATHER SHOULD NOT HAVE BEEN GIVEN COMPLETE CONTROL OVER MOTHER’S VISITATION; ATTORNEY SHOULD HAVE BEEN APPOINTED FOR THE CHILDREN.

The Third Department, reversing Family Court, determined mother was entitled to a hearing on her pro se petition to modify the award of custody to father. The Third Department also noted that the court should not have delegated to father complete authority to control visitation with mother, and the court should have appointed an attorney for the children. With respect to the need for a custody-modification hearing and the visitation issue, the Third Department wrote:

As the party seeking to modify an existing custodial arrangement, the mother was required to demonstrate, as a threshold, that “there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the children” … . The mother's petition, filed pro se, “should be construed liberally when considering whether she sufficiently alleged a change in circumstances” …, and she should be accorded “the benefit of every favorable inference” … . “While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing, generally an evidentiary hearing is necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the [children's] best interests” … . * * *

With regard to the mother's request for visitation, there is a “presumption that visitation with the noncustodial parent is in the chil[ren]'s best interests” … and, “unless visitation is inimical to the [children's] welfare, Family Court is required to structure a schedule which results in frequent and regular access by the noncustodial parent” … . The record before us contains virtually no factual background information and, as such, does not disclose whether the denial of all visitation to the mother “was based [up]on compelling reasons” or if “visitation would be detrimental or harmful to the child[ren]'s welfare” … . While we express no opinion on the propriety of such visitation, we also note that the court should not have delegated to the father complete authority to determine whether there should be any visitation between the mother and children and under what conditions such contact should occur and, upon remittal, there must be a determination in this regard … . Matter of Harrell v Fox, 2016 NY Slip Op 01534, 3rd Dept 3-3-16

FAMILY LAW (MOTHER ENTITLED TO HEARING ON PRO SE PETITION TO MODIFY CUSTODY)/FAMILY LAW (FATHER SHOULD NOT HAVE BEEN GIVEN COMPLETE CONTROL OVER VISITATION WITH MOTHER)/FAMILY LAW (ATTORNEY SHOULD HAVE BEEN APPOINTED FOR CHILDREN IN MODIFICATION OF CUSTODY PROCEEDING)/CUSTODY (MOTHER ENTITLED TO HEARING ON PRO SE PETITION TO MODIFY CUSTODY)/VISITATION (FATHER SHOULD NOT HAVE BEEN GIVEN COMPLETE CONTROL OVER VISITATION WITH MOTHER)

HEARING OFFICER DID NOT ADDRESS PETITIONER’S MENTAL HEALTH STATUS, DETERMINATION ANNULLED.

The Third Department annulled the disciplinary determination because the hearing officer made no effort to ascertain the testimony of a mental health clinician or therapist (outside the presence of petitioner) after the therapist called by the petitioner refused to testify:

 

…[P]etitioner’s mental health status was at issue and the Hearing Officer erred in not taking testimony from Office of Mental Health (hereinafter OMH) personnel regarding petitioner’s mental condition (see 7 NYCRR 254.6 [c]). Although a therapist from OMH that petitioner had requested refused to testify, the Hearing Officer was obligated to interview, out of petitioner’s presence, an OMH clinician “as may be available” concerning petitioner’s mental condition (7 NYCRR 254.6 [c] [3]…). Here, the Hearing Officer made no effort to ascertain the testimony of the therapist, or any other clinician at OMH, outside the presence of petitioner. Under the circumstances presented herein, the proper remedy for the Hearing Officer’s failure to satisfy his obligations under 7 NYCRR 254.6 (b) is a new hearing to address petitioner’s mental health status… . Matter of Howard v Prack, 2016 NY Slip Op 01538, 3rd Dept 3-3-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER FAILED TO CONSIDER MEDICAL EVIDENCE SUPPORTING PETITIONER’S DEFENSE, DETERMINATION EXPUNGED)

DENIAL OF PETITIONER’S REQUEST FOR TWO CORRECTIONAL-STAFF WITNESSES WAS ERROR, DETERMINATION ANNULLED.

The Third Department annulled the disciplinary determination because the hearing officer improperly denied petitioner’s request to call two witness who on the staff of the correctional facility and were trained in the identification of gang-related materials. Petitioner was charged possession of gang-related materials (photographs):

… [T]he Hearing Officer improperly denied petitioner’s request to call two witnesses, who were correctional facility staff trained at identifying gang-related materials, to support his claim that the pictures did not depict any gang-related signs. As petitioner sought such testimony in order to refute a correction officer’s testimony that the gestures in the pictures depict gang signs, the Hearing Officer erred in finding that such testimony would be redundant. Given that the Hearing Officer put forth a good faith reason for the denial, this violated petitioner’s regulatory right to call witnesses and the proper remedy is to remit the matter for a new hearing … . Matter of Williams v Annucci, 2016 NY Slip Op 01535, 3rd Dept 3-3-16

DISCIPLINARY HEARINGS (INMATES) (DENIAL OF REQUEST FOR STAFF WITNESSES REQUIRED ANNULMENT)

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