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INJURY DURING HURRICANE SANDY RESCUE OPERATIONS DID NOT RESULT FROM AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW.

The Third Department, over a two-justice dissent, determined petitioner police officer was not injured in an “accident” within the meaning of the Retirement and Social Security Law, and therefore was not entitled to accidental disability retirement benefits. The officer was injured during Hurricane Sandy when he entered an unstable house to rescue people inside:

For the purposes of Retirement and Social Security Law § 363, an injury that results from “a risk of the work performed” is not an accident … . Consistent with this principle, this Court has long recognized that police officers face many substantial risks in the regular course of their duties that are inherent to the work that they perform… .

According to petitioner, he was considered a first responder to emergency calls and had a duty to assist injured persons. The Uniform Police Officer Job Description that governed petitioner's job confirmed petitioner's testimony to the extent that it dictated that his professional responsibilities included “[a]ssist[ing] any injured persons.” Petitioner acknowledged that, due to the hurricane, his supervisors had impressed upon him that his professional duty extended to responding to emergency calls involving life and limb. Petitioner explained that he answered a call regarding occupants of a house who were trapped due to a tree falling onto and through the home. Petitioner acknowledged that, when he arrived, the home was not a stable structure and debris was still falling, but he explained that he had to go in to help the trapped occupants. Petitioner was thereafter injured while throwing debris off of the trapped occupants and while holding up debris that continued to fall during that rescue effort. Accordingly, a reasonable conclusion to draw from the record is that the threat that compelled petitioner's response as a police officer and first responder — the dangerous condition in the home — was the same threat that ultimately caused petitioner's injuries. Matter of Kelly v DiNapoli, 2016 NY Slip Op 02132, 3rd Dept 3-24-16

RETIREMENT AND SOCIAL SECURITY LAW (POLICE OFFICERS INJURY DURING HURRICANE SANDY RESCUE OPERATIONS DID NOT RESULT FROM AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW)/POLICE OFFICERS (INJURY DURING HURRICANE SANDY RESCUE OPERATIONS DID NOT RESULT FROM AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW)

IN PLEADING GUILTY TO A LESSER CRIME, DEFENDANT ADMITTED AN ACTION WHICH NEGATED AN ELEMENT OF THE CRIME TO WHICH HE PLED, MOTION TO WITHDRAW PLEA SHOULD HAVE BEEN GRANTED.

The Third Department reversed County Court finding that defendant should have been allowed to withdraw his guilty plea on the ground it was not knowingly and voluntarily entered. Although plaintiff was pleading to a lesser crime, during the plea colloquy County Court elicited an admission to an act which negated an element of the crime defendant was pleading to. Defendant pled to a rape where the victim was unable to consent. However, in the plea colloquy defendant admitted the victim demonstrated she did not consent:

Where, as here, a defendant pleads to a lesser crime as part of a plea bargain, the court is not required to engage in a factual recitation in order to establish the elements of the crime … , and, in fact, “under such circumstances defendants can even plead guilty to crimes that do not exist” … . In this instance, although not required to do so, County Court nevertheless sought to elicit the details of the crime from defendant prior to accepting his plea and led him in a factual recitation. The questions posed by the court during the allocution appeared to be designed to elicit from defendant facts supporting the elements of rape in the third degree, a crime which had been charged in the indictment, but was to be dismissed as part of the plea to rape in the second degree; notably, rape in the third degree includes the element that the victim's “words and acts” demonstrated that he or she did not consent to sexual intercourse with the defendant (Penal Law § 130.05 [2] [d]; see Penal Law § 130.25). In response to the court's inquiries, defendant admitted that he had engaged in nonconsensual sexual intercourse with the victim and that the intercourse was nonconsensual because the victim had “indicated to [him], by words or actions, that she did not wish to engage in sexual intercourse with [him].” This factual recitation was inconsistent with the crime to which he was pleading and, in fact, negated an element of that crime, namely that the victim be “incapable of consent by reason of being mentally disabled or mentally incapacitated” (Penal Law § 130.30 [2] … ).

County Court failed to conduct any further inquiry prior to accepting the plea in order “to ensure that defendant underst[ood] the nature of the charge and that the plea [was] intelligently entered” … . People v Banks, 2016 NY Slip Op 02127, 3rd Dept 3-24-16

CRIMINAL LAW (IN PLEADING GUILTY TO A LESSER CRIME, DEFENDANT ADMITTED AN ACTION WHICH NEGATED AN ELEMENT OF THE CRIME TO WHICH HE PLED, MOTION TO WITHDRAW PLEA SHOULD HAVE BEEN GRANTED)/ GUILTY PLEA (IN PLEADING GUILTY TO A LESSER CRIME, DEFENDANT ADMITTED AN ACTION WHICH NEGATED AN ELEMENT OF THE CRIME TO WHICH HE PLED, MOTION TO WITHDRAW PLEA SHOULD HAVE BEEN GRANTED)

STATUTORY PRESUMPTION THAT UNWITNESSED ACCIDENT AROSE FROM EMPLOYMENT DID NOT CREATE A PRESUMPTION THE ACCIDENT HAD HAPPENED, DENIAL OF CLAIM AFFIRMED.

The Third Department determined there was insufficient evidence to support claimant's allegation he was injured in an accident which no one witnesses and for which claimant did not seek immediate attention medical attention. The court noted that the presumption that unwitnessed accidents arose from employment did not create a presumption that an accident had happened:

… Workers' Compensation Law § 21, “which affords a presumption that an unwitnessed or unexplained workplace accident arose out of the injured person's employment, . . . cannot be utilized to demonstrate that an accident occurred in the first place”… . Matter of Siennikov v Professional Grade Constr., Inc., 2016 NY Slip Op 01889, 3rd Dept 3-17-16

WORKERS' COMPENSATION (STATUTORY PRESUMPTION INJURY AROSE FROM EMPLOYMENT DID NOT CREATED A PRESUMPTION THE ACCIDENT HAD HAPPENED)

CARRIER’S INABILITY TO CONDUCT AN INDEPENDENT MEDICAL EXAMINATION OF CLAIMANT WARRANTED SUSPENSION OF COMPENSATION PAYMENTS.

The Third Department determined the carrier's inability to conduct an independent medical examination (IME) of claimant, ostensibly due to claimant's medical restrictions, warranted suspending claimant's compensation payments:

… [W]e note that “refusal by the claimant to submit to [an IME] at such time or times as may reasonably be necessary in the opinion of the [B]oard, shall bar the claimant from recovering compensation for any period during which he or she has refused to submit to such examination” (Workers' Compensation Law § 13-a [4] [b]). Whether suspending compensation payments on account of a claimant's attempt to frustrate a carrier's right to engage in an IME is a question of fact for the Board to resolve … . Here, there are opposing views as to why claimant did not submit to an IME. It was within the Board's purview to credit the carrier's assertion that it has engaged in extraordinary efforts to schedule the IME … and that such efforts were thwarted by claimant's perpetual requests and demands of rescheduling and relocating the IME … . As such, we find that substantial evidence supports the Board's finding that claimant frustrated the carrier's right to engage an independent consultant by unreasonably refusing to attend an IME so as to warrant suspension of her benefits (see Workers' Compensation Law § 13-a [4] [b]…). Matter of Duncan v John Wiley & Sons, Inc., 2016 NY Slip Op 01881, erd Dept 3-17-16

WORKERS' COMPENSATION LAW (CARRIER'S INABILITY TO CONDUCT AN INDEPENDENT MEDICAL EXAMINATION OF CLAIMANT WARRANTED SUSPENSION OF COMPENSATION PAYMENTS)/INDEPENDENT MEDICAL EXAMINATION (IME) (WORKERS' COMPENSATION, CARRIER'S INABILITY TO CONDUCT AN INDEPENDENT MEDICAL EXAMINATION OF CLAIMANT WARRANTED SUSPENSION OF COMPENSATION PAYMENTS)

NEWSPAPER CARRIER WAS AN EMPLOYEE ENTITLED TO BENEFITS.

The Third Department determined claimant, who delivered newspapers for CFHI using her own car, was an employee entitled to unemployment benefits. Claimant ended her contract because of problems with her car:

Here, claimant responded to a newspaper advertisement soliciting motor route carriers and was retained by CFHI after meeting with its district manager. Claimant signed an independent contractor distributor agreement that (1) assigned her specific routes, (2) required her to furnish her own vehicle with proof of insurance, (3) set forth specific rates governing her compensation, (4) required her to deliver newspapers in a dry condition by specified times, (5) imposed a penalty upon her if CFHI had to make a delivery due to a subscriber complaint, and (6) provided for termination of the contract by CFHI in the event that claimant received more than 10 subscriber complaints. Although no formal training was provided by CFHI, its district manager reviewed a checklist with claimant containing detailed information that she needed to know to perform her duties. In addition, CFHI provided claimant with optional property damage and personal injury insurance for purchase through an independent carrier, made available supplies, such as rain bags and rubber bands, for claimant to purchase, prohibited claimant from placing any inserts or other materials in the newspapers to be delivered and fielded customer complaints before referring them to claimant. As in many of the other newspaper delivery carrier cases, the record as a whole contains substantial evidence to support the conclusion that CFHI retained a sufficient indicia of control over the performance of claimant's duties to establish the existence of an employment relationship … . Matter of Rosenfelder (Community First Holdings, Inc.–Commissioner of Labor), 2016 NY Slip Op 01888, 3rd Dept 3-17-16

UNEMPLOYMENT INSURANCE (NEWSPAPER CARRIER WAS AN EMPLOYEE ENTITLED TO BENEFITS)

CLAIMANT DID NOT PROVOKE HER DISCHARGE AND IS THEREFORE ENTITLED TO BENEFITS.

The Third Department determined claimant was entitled to unemployment insurance benefits because attempted in good faith to comply with the residency requirement for her position with the city and therefore did not provoke her discharge:

“Provoked discharge . . . is a narrowly drawn legal fiction designed to apply where an employee voluntarily engages in conduct which transgresses a legitimate known obligation and leaves the employer no choice but to discharge him [or her]” … . “Whether [a] claimant's actions constituted a voluntary leaving of employment without good cause by provoking his [or her] discharge is a factual determination for the [B]oard” … . Here, claimant's testimony established that she began living with her cousin in an apartment in New York City in an attempt to comply with the employer's residency requirements, as well as to accommodate her school schedule. Although claimant also spent time with her husband in an apartment outside New York City, the employer acknowledged that an individual could maintain more than one residence, even if one was outside New York City, and still be in compliance with the residency requirement. Claimant pays her cousin money to live in the apartment and to help offset expenses, and she receives mail at that address, including bank account and credit card statements. Claimant also pays New York City income taxes. Moreover, claimant testified that, because she did not fully understand the residency requirement, she inquired to both her supervisor and the employer's personnel department as to whether she was considered to be in compliance with the necessary requirement; however, those inquiries went unanswered. Under these circumstances, substantial evidence supports the Board's finding that claimant did not voluntarily engage in conduct that transgressed the employer's mandate so as to find that she provoked her discharge … . Matter of Rosseychuk (City of New York–Commissioner of Labor), 2016 NY Slip Op 01885, 3rd Dept 3-17-16

UNEMPLOYMENT INSURANCE (CLAIMANT DID NOT PROVOKE HER DISCHARGE)

PART-TIME BOOKKEEPER WAS AN EMPLOYEE

The Third Department determined claimant, a part-time bookkeeper for AIS, was an employee entitled to unemployment insurance benefits:

Here, claimant responded to a job advertisement placed by AIS, submitted a resume and was interviewed by AIS’s office manager. She was hired at an agreed-upon hourly wage and performed her duties at AIS, where she shared an office with the clinical director and was provided with a computer, bookkeeping software, an email account and a key to the office. Although she was not required to work a set schedule, claimant testified that she was expected to work a total of 24 hours per week. She was also expected to notify AIS of the specific hours that she would be working each week and submit documentation detailing her hours, which had to be reviewed and approved by the clinical director in order to receive payment. She was paid by means of a biweekly paycheck, although payroll taxes were not deducted. In addition, she was required to attend staff meetings when they dealt with business-related matters, and she interacted with both AIS personnel as well as its outside certified public accountant regarding such matters. In our view, the foregoing illustrates that AIS retained sufficient control over claimant’s work to be considered her employer… . Matter of Stewart (American Inst. for Stuttering–Commissioner of Labor), 2016 NY Slip Op 01720, 3rd Dept 3-10-16

UNEMPLOYMENT INSURANCE (PART-TIME BOOKKEEPER WAS AN EMPLOYEE)

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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