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Employer Was Not Prejudiced by Claimant’s Failure to Give Timely Notice of the Accident, Claim Allowed

The Third Department determined the claimant’s failure to provide timely notice of the accident did not bar his claim:

Failure to provide timely written notice of an accident to an employer pursuant to Workers’ Compensation Law § 18 generally bars the claim “unless the Board excuses that failure on the ground that notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced” … . Here, although claimant did not provide written notice of the January 2, 2012 accident to the employer, he filed his claim for benefits based upon that accident with the Workers’ Compensation Board on January 31, 2012. On February 6, 2012, the Board provided its Notice of Case Assembly to the employer, which informed the employer of the claim, the date of the accident and that claimant was alleging injuries to his head, neck and back. Notably, the record reflects that claimant received prompt medical attention, including MRIs of his lumbar and cervical spine in February 2012. Under these circumstances, substantial evidence supports the decision of the Board that the short delay between the expiration of the 30-day notice period and the employer receiving notice of the claim did not prejudice the employer so as to prevent it from properly investigating the claim … . Matter of Lopadchak v R.W. Express LLC, 2015 NY Slip Op 08490, 3rd Dept 11-19-15

 

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Questioning by Police and Caseworker Violated Defendant’s Right to Counsel, Failure to Suppress Statements Was Not Harmless Error

The Third Department reversed defendant’s conviction (for murder of mother, stepfather and stepbrother) because defendant’s “yeah probably” response to the question whether he wanted a lawyer was deemed an unequivocal request for a lawyer. A public defender, who represented defendant in a prior case, had sent a letter to the district attorney indicating he was aware of the murders and that he didn’t want defendant questioned in his absence. The police who questioned defendant did not tell defendant about the letter. The court determined that the letter did not cause the right to counsel to attach because it did not state the public defender was representing defendant on the murders. However, given the interrogating officers’ knowledge of the letter, they should have asked defendant directly whether he wanted the public defender’s representation. In addition, a child protective caseworker’s (MacNeil’s) subsequent questioning of the defendant violated his right to counsel because the caseworker was deemed an agent of the police:

… [T]he People contend that defendant’s statement — namely, “Yeah, probably” — did not unequivocally invoke his right to counsel. We disagree. The word “probably” is defined as “very likely” or “almost certainly” (Merriam—Webster Online Dictionary, http://www.MerriamWebster.com/dictionary/probably). It is difficult to conceive of circumstances where “probably” would mean “no,” particularly here, where the police knew that defendant was currently represented, albeit on unrelated charges, and also knew that counsel was so clearly attempting to protect his current client’s constitutional rights. Defendant’s demeanor and tone when saying “Yeah, probably” was his simple expression, in everyday language, that he was not competent or capable to deal with the officers’ questioning. Thus, based on the particular circumstances herein, a reasonable police officer would have understood that defendant’s statement was a request for counsel, requiring questioning without representation to cease .. . * * *

As it cannot be said that there is no reasonable possibility that the admission of defendant’s statements at trial affected the jury’s verdict, County Court committed reversible error in failing to suppress defendant’s statements to the officers… . * * *

MacNeil acknowledged that she works closely with the police in these types of investigations and that, to the best of her recollection, Hamilton [a police officer who had questioned defendant] was present in the room as she was speaking with defendant. Based on the foregoing, we find that MacNeil was acting as an agent of law enforcement and, therefore, her questioning also infringed upon defendant’s right to counsel. Thus, as the product of interrogation by a public servant engaged in law enforcement activity, defendant’s statements to MacNeil were involuntary and should have been suppressed … . People v Slocum, 2015 NY Slip Op 08203, 3rd Dept 11-12-15

 

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Reversible Error to Admit Hearsay Statements Made by the Victim Four Years After the Alleged Incident Under the “Prompt Outcry” Exception to the Hearsay Rule

The Third Department ordered a new trial in a sexual assault case because hearsay testimony about what the victim said four years after the alleged assault was admitted under the “prompt outcry” exception to the hearsay rule (without any substantive explanation for the delay):

Whether a complaint is sufficiently prompt so as to fall within the exception is not a matter of precision and depends upon the facts of a given case … . That being said, “courts traditionally have required the complaint to be made ‘at the first suitable opportunity'” …, and “[a]ny significant delay must be adequately explained” … . Here, the victim did not disclose the abuse until 2011, four years after she and her sister were placed in the custody of her father and the abuse had ended. The victim testified that she waited so long to disclose the abuse because defendant had threatened to kill her if she told anyone, but that threat was made during a supervised visit between the victim and defendant. The visitation had ceased well before the disclosures were made, and the victim had neither seen nor spoken to defendant since 2009. We are left, in other words, with disclosures that were made four years after the abuse ended and over two years after the victim last interacted with defendant … .

The People suggest that this prolonged delay can be attributed to the facts that the victim had sustained psychological trauma and suffered from a mild neurological impairment. Research indeed “suggest[s] that withholding a complaint may not be unusual,” but that fact is not dispositive in assessing whether a complaint was made promptly … . To hold otherwise would run against the very purpose of the exception, namely, to address “the tendency of some jurors to doubt the victim in the absence of” a prompt complaint of abuse … . As for the victim’s neurological condition, it suffices to say that no proof in the record suggests that it would have compelled her to remain silent for such a long period of time. Thus, given the absence of any adequate explanation for the victim’s prolonged delay in disclosing the abuse, her disclosures cannot be described as prompt outcries, and the hearsay testimony regarding them should not have been admitted into evidence … . Inasmuch as the evidence of guilt in this case was not overwhelming — indeed, the verdict hinged on the question of whether the victim was credible — we cannot say that the erroneous admission of this bolstering hearsay was harmless … . People v Stone, 2015 NY Slip Op 08205, 3rd Dept 11-12-15

 

Payment of Rent Does Not Waive the Tenant’s Right to Recover Rent Paid Based Upon the Landlord’s Breach of the Covenant of Quiet Enjoyment

The Third Department noted that the tenant’s paying of rent did not waive the tenant’s right to recover rent payments made during the time an elevator was not yet installed. The lease agreement called for the installation of an elevator by March and it was not installed until November. The tenant was entitled to a return of the rent paid before the elevator was functioning based upon the landlord’s breach of the covenant of quiet enjoyment:

The case law makes clear that a tenant’s “payment of all required rent is a condition precedent to the maintenance of . . . an action” for breach of the covenant of quiet enjoyment … . Hence, plaintiff’s payment of rent during the months in question cannot be deemed to be a waiver of its rights under this portion of the lease. City of Troy, N.Y. v 1776 Sixth Ave., Troy, LLC, 2015 NY Slip Op 08236, 3rd Dept 11-12-15

 

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Transfer of Assets to Qualify for Medicaid Constituted a Breach of the Defendants’ Contract with Plaintiff Continuing Care Retirement Community

The Third Department, in a full-fledged opinion by Justice Lynch, determined the defendants’ (the Yezzis’) transfer of funds in order to qualify for Medicaid constituted a breach of the contract with the plaintiff (GSV), a continuing care retirement community (CCRC), as well as a fraudulent transfer under the Debtor-Creditor Law:

… [T]he essence of the CCRC financial model requires a tradeoff between the resident and the facility, in which the resident must disclose and spend his or her assets for the services provided, while the facility must continue to provide those services for the duration of the resident’s lifetime even after private funds are exhausted and Medicaid becomes the only source of payment. With this long-term commitment, the facility necessarily must evaluate the financial feasibility of accepting a resident in the first instance.

Pertinent here, the contract provided that the Yezzis could “not transfer assets represented as available in [their] application to be a [r]esident of [GSV] for less than fair market value, unless the transfer [would] not impair [their] ability to pay [their] financial obligations to [GSV].” The contract further required the Yezzis to “make every reasonable effort to meet [their] financial obligations” to GSV and prohibited them from making “any transfers or gifts after actual occupancy, which would substantially impair [their] ability or the ability of [their] estate to satisfy [their] financial obligations to [GSV].” Further, the contract specifies that the financial information disclosed with their application was “a material part of this [contract], . . . [that was] incorporated as a part of this [contract].” Although, as defendants correctly contend, the contract does not affirmatively state that the Yezzis must expend the private resources identified with their application, it does expressly preclude the transfer of such resources without fair consideration.

Given the long-term nature of the contract, which expressly embraced the prospect of nursing facility care, we agree with Supreme Court that the admission agreement is supplemental to, and does not supercede, the contract. We recognize that, under the admission agreement, the Yezzis were required to “pay for, or arrange to have paid for by Medicaid, . . . all services provided by [GSV]” (emphasis added). We are not, however, persuaded by defendants’ interpretation that this disjunctive provision required plaintiff to accept Medicaid as an alternative payment source. Construed together, the contract and admission agreement are actually compatible in that the CCRC financial model anticipates that, upon depletion of a resident’s personal resources, Medicaid will be the ultimate source of payment — and plaintiff is contractually obligated to accept Medicaid while continuing to provide the same services. Consistently, addendum X to the admission agreement specifies that, “[i]t is the responsibility of residents, and those who assist them, to use the residents’ assets and income to pay the costs associated with their residency and health care.” Good Shepherd Vil. at Endwell, Inc. v Yezzi, 2015 NY Slip Op 08031, 3rd Dept 11-5-15

 

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Audit Procedures, Disclosure of Which Could Impede Investigations, Are Exempt from Disclosure

The Third Department noted that documents reflecting audit procedures used by the Department of Education are exempt from a FOIL request if they would facilitate attempts to circumvent the law, even though the documents were not directly related to law enforcement proceedings:

“FOIL is based on a presumption of access to the records, and an agency . . . carries the burden of demonstrating that the exemption applies to the FOIL request” … . The Department here relied upon Public Officers Law § 87 (2) (e) in providing redacted records and, specifically, a provision that exempts records from disclosure that “are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings” (Public Officers Law § 87 [2] [e] [i]). Respondents asserted that the redactions were necessary because disclosure of the unredacted documents would reveal auditing techniques that would enable the providers of preschool special education programs to conceal their financial misdeeds more effectively.

The Department was directed to prepare the audit guidelines in the wake of audits conducted by the Comptroller that “found a pattern of mismanagement, waste and even fraud by numerous private providers of preschool special education” … . Those audits resulted in criminal investigations and the referral of “numerous” certified public accountants to the Department for disciplinary proceedings, and there is no reason to doubt that audits conducted under the guidance of the Department are also aimed at uncovering financial malfeasance. As such, while the guidelines and related documents did not arise from a specific law enforcement investigation, they were nevertheless compiled with law enforcement purposes in mind, and are exempt from disclosure if their release would enable individuals to “frustrate pending or prospective investigations or to use that information to impede a prosecution” … . Matter of Madeiros v New York State Educ. Dept., 2015 NY Slip Op 08028, 3rd Dept 11-5-15

 

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Claimant Who Cannot Afford Child Care Is Unavailable for Work and Is Not Entitled to Unemployment Insurance Benefits

The Third Department determined the claimant, who stopped working to care for her child, was not “available for work” under the Labor Law and was not, therefore, entitled to unemployment insurance benefits:

Pursuant to Labor Law § 591 (2), a claimant will not be deemed eligible to receive unemployment insurance benefits if he or she is “not ready, willing and able to work in his [or her] usual employment or in any other for which he [or she] is reasonably fitted by training and experience.” A claimant who is unable to work due to the lack of child-care arrangements may be considered to be unavailable for work for purposes of receiving unemployment insurance benefits … . Here, it is undisputed that claimant left her job to care for her son and she testified that, after she did so, her mother-in-law moved away and her husband took a job with long hours that precluded her from relying upon them for childcare. She further stated that she could not afford to put her son in day care and that he could not be placed in a Head Start program until he was three years old. In view of the foregoing, substantial evidence supports the Board’s finding that claimant was ineligible to receive benefits because she was unavailable for work. Matter of Peek (Commissioner of Labor), 2015 NY Slip Op 08029, 3rd Dept 11-5-15

 

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Finding by Workers’ Compensation Board that Corrections Officer’s Condition Was Work-Related Did Not Automatically Entitle Officer to Disability Benefits Under General Municipal Law 207-c

In upholding the county’s determination petitioner (a corrections officer) was not entitled to disability benefits under General Municipal Law 207-c., the Third Department noted that the finding by the Workers’ Compensation Board that petitioner’s condition was work-related did not, under the doctrine of collateral estoppel, automatically entitle the petitioner to disability benefits:

Contrary to petitioner’s initial contention, it is settled law that “a determination by the Workers’ Compensation Board that an injury is work-related” does not, “by operation of collateral estoppel, automatically entitle an injured employee to General Municipal Law § 207-c benefits” … . Accordingly, the Board’s determination did not collaterally estop [the county] from denying petitioner’s application for General Municipal Law § 207-c benefits.

Further, substantial evidence supports the determination denying petitioner benefits. Pursuant to General Municipal Law § 207-c, correction officers are entitled to benefits when they are injured “in the performance of [their] duties” … , so long as they can establish the existence of a “‘direct causal relationship between job duties and the resulting illness or injury'” … . This Court will uphold a determination regarding a correction officer’s eligibility for benefits if such decision is supported by substantial evidence … , i.e., “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact, [which] is ‘less than a preponderance of the evidence'” … . Notably, credibility determinations are within the sole province of the Hearing Officer … . Matter of Jackson v Barber, 2015 NY Slip Op 08025, 3rd Dept 11-5-15

 

Sidewalk Dropoff Was a Trivial Defect

The Third Department determined the sidewalk defect which allegedly caused plaintiff to fall was trivial and, therefore, not actionable:

“An owner will not be liable . . . for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, which may cause a pedestrian [to] merely stumble, stub his [or her] toes, or trip over a raised projection” … . * * *

There is no set point at which a height differential on a sidewalk will rise above the level of triviality and become a dangerous condition … . Instead, “[w]hether 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” … .

… Photographs confirm that the sidewalk dropped off in the area where claimant fell, which the former grounds manager at the university suggested may have been due to a layer of asphalt “hav[ing] peeled away in that section.” No complaints had been made about the dropoff, however, and neither the groundskeeper who cared for the area nor the grounds manager recalled noticing it before claimant was injured. There were also no actual measurements of the depth of the dropoff, and the grounds manager reviewed photographs of the condition and opined that the depth was “much less” than the two inches that claimant believed it to be. Our review of those photographs leads us to agree with the assessment of the grounds manager that the dropoff was a minimal one. Thus, the facts and circumstances established at trial support the determination of the Court of Claims that the dropoff was simply too trivial to be actionable … . Medina v State of New York, 2015 NY Slip Op 08019, 3rd Dept 11-5-15

 

Umpire Assumed the Risk of Being Struck by a Bat Thrown by Batter

The Third Department determined that an umpire assumed the risk of being struck by a bat thrown by a batter as he ran toward first base. Had the bat been thrown intentionally or recklessly the assumption of the risk doctrine would not apply. There was no admissible evidence the bat was thrown recklessly (in anger):

Under the primary assumption of risk doctrine, a participant, including an umpire, in a sport such as softball “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . Such risks include getting hit with a ball or a bat during a baseball game, particularly for an experienced participant … . That said, “participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others” … .

… [W]e find unpersuasive plaintiffs’ claim that getting hit with a bat is not an inherent risk in a slow pitch, 65-year-old and older softball game. Neither the age of the players nor the velocity of the pitch negates the readily apparent risk of a batter releasing the bat after a swing. The record shows that [plaintiff] has extensive experience as an umpire and no claim is made that defendant intentionally threw the bat at him. The issue distills to whether defendant recklessly threw the bat, creating a risk “‘over and above the usual dangers that are inherent in the sport'” … . Morrisey v Haskell, 2015 NY Slip Op 08021, 3rd Dept 11-5-15

 

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