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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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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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Out-of-Possession Landlord and Lessee Are Not “United In Interest” Such that the Lessee Could Be Added to the Complaint After the Statute of Limitations Had Run (Relation-Back Doctrine)

The Third Department determined Supreme Court, in a snow-ice slip and fall case, properly denied plaintiff’s motion to amend the complaint, after the statute of limitations had run, to add the lessee of the property (Albany Medical Center Hospital [AMCH]) as a defendant. The defendant out-of-possession landlord demonstrated, under the terms of the lease, AMCH had the responsibility for maintaining the property in a safe condition. Because the out-of-possession landlord and AMCH were not “united in interest,” the relation-back doctrine did not apply:

… [T]he relation back doctrine permits a plaintiff to amend the complaint to add a defendant even though the statute of limitations had expired at the time of amendment so long as three requirements are met: “(1) both claims must arise out of the same occurrence, (2) [the] defendant and [the new party] were united in interest, and by reason of that relationship can be charged with notice of the institution of the action such that it will not be prejudiced in maintaining a defense on the merits, and (3) [the new party] knew or should have known that, but for a mistake by [the] plaintiff as to the identity of the proper party, the action would have been brought against it as well ” … . While there is no dispute that the first prong of this test is satisfied under these circumstances, we agree with Supreme Court that defendant and AMCH do not share unity of interest inasmuch as they cannot be said to “stand or fall together” … . “Indeed, unless the original defendant and new party are vicariously liable for the acts of the other[,] there is no unity of interest between them” … . McLaughlin v 22 New Scotland Ave., LLC, 2015 NY Slip Op 07883, 3rd Dept 10-29-15

 

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Finding that Claimant’s Absenteeism Was Not Disqualifying Misconduct Was Supported by Substantial Evidence; Courts’ Review Powers in this Context Explained

The Third Department determined the board’s finding that claimant’s absenteeism did not amount to disqualifying misconduct (because it was related to his diabetes) was supported by substantial evidence. The court also explained its review powers in this context:

While continued absenteeism, despite previous warnings, may rise to the level of misconduct disqualifying an employee from receiving unemployment insurance benefits …, “termination of employment attributable to symptoms of a diagnosed medical condition will not constitute disqualifying misconduct”… .  Whether an absence is justified so as to remove it from disqualifying misconduct is a factual question for the Board to resolve, and its resolution of this issue will not be disturbed if supported by substantial evidence … .

Here, claimant testified that he suffers from type 1 diabetes and that he experienced a diabetic episode, consisting of shakiness, nausea and headaches, that caused his absence on August 8, 2013. He submitted medical documentation confirming his diabetic condition and indicating that it is being treated but has been “difficult to control.” Although the employer was aware that he was a diabetic, claimant admittedly failed to inform his superiors that he was experiencing health problems related to his diabetes or that this was the cause of his August 8, 2013 absence. The Board, as the final arbiter of factual issues and credibility, was free to credit claimant’s testimony concerning the reason for his absence and was not bound by the contrary conclusion reached by the ALJ … . Pursuant to our limited review, “this Court may not weigh conflicting evidence or substitute its own judgment, and if, as here, the findings turn on the credibility of witnesses, we may not substitute our perceptions for those of the agency” … . Under these circumstances, substantial evidence supports the Board’s determination that claimant’s loss of employment was not due to disqualifying misconduct … . Matter of Suchocki (St. Joseph’s R.C. Church–Commissioner of Labor), 2015 NY Slip Op 07899, 3rd Dept 10-29-15

 

Instructor at Community College Entitled to Unemployment Benefits, No Reasonable Assurance of Continued Employment

The Third Department determined claimant, an adjunct instructor at a community college, was properly awarded unemployment insurance benefits because he did not receive reasonable assurance of continued employment during the following term:

Labor Law § 590 (10) precludes a professional employed by an educational institution from receiving unemployment insurance benefits during the period between two successive academic terms if the educational institution has provided the professional with a reasonable assurance of continued employment … . A “reasonable assurance,” in turn, is a representation by the educational institution “that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period” … . This is a factual question for the Board to resolve and its determination in this regard will be upheld if supported by substantial evidence … .

Here, although the department chair mentioned that claimant could teach potentially four courses during the spring 2014 semester, which exceeded the number that he taught during the fall 2013 semester, this was never confirmed during any subsequent conversations nor in the letter sent to claimant. Significantly, the letter did not specify the details of the spring 2014 semester teaching assignment and conditioned claimant’s further employment upon “enrollment and/or budget constraints.” In cases where educational institutions have failed to set forth the terms or conditions of continued employment or have made such employment contingent upon certain conditions, courts have found that a reasonable assurance was lacking … . Matter of Upham (Dutchess Community Coll.–Commissioner of Labor), 2015 NY Slip Op 07898, 3rd Dept 10-29-15

 

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Past Recollection Recorded and Hearsay Inadmissible at Trial Properly Considered in Opposition to Defendant’s Summary Judgment Motion

The Third Department determined a statement made by defendant’s employee [Mackey] near the time of plaintiff’s slip and fall was admissible as past recollection recorded and was properly considered in opposition to defendant’s summary judgment motion. In addition, hearsay which would not be admissible at trial was sufficiently corroborated to be considered in opposition to defendant’s motion for summary judgment. Defendant’s motion was properly denied:

… “[T]he requirements for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his [or her] knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information” … . Here, Mackey testified that, beyond being upset that her cousin was hurt, she was unable to remember the particulars of the event, but she did recall filling out and signing a document recording her memories at the time. In this document, Mackey averred that she watched plaintiff fall by the Coinstar machine in an area that had been checked by the front-end maintenance crew approximately one hour prior to the incident. In the blank space next to the words “Condition at the time of last check prior to accident:” Mackey wrote, “ice machine is always leaking.” Mackey recalled completing this document within days of the incident and explained that the form did not help to refresh her recollection of the events. On this basis, we agree with Supreme Court’s ruling that Mackey’s written statement was admissible as a past recollection recorded and, as such, properly considered in the context of defendant’s motion for summary judgment …

Further, in keeping with the principles that, “[t]o grant summary judgment, it must clearly appear that no material and triable issue of fact is presented” … and such motion should be denied if there is any doubt as to the existence of such issues …, we likewise find no error in Supreme Court’s consideration of Mackey’s oral statement, notwithstanding its likely inadmissibility at trial. With that said, however, we acknowledge that, although “hearsay evidence that is inadmissible at trial may be sufficient to defeat a motion for summary judgment, there must be some additional competent evidence to support the motion or an excuse for the failure to present proof in admissible form” … . Zupan v Price Chopper Operating Co., Inc., 2015 NY Slip Op 07893, 3rd Dept 10-29-15

 

Work for Which Claimant Was Not Paid Did Not Disqualify Her from Unemployment Insurance Benefits

The Third Department determined unemployment insurance benefits should not have been denied claimant.  Claimant cared for a coworker’s child but was not paid for doing so. The board’s finding that claimant’s lack of employment was not “total” was not, therefore, supported by substantial evidence:

Resolution of this case turns on whether claimant’s activities in caring for her coworker’s child without compensation while she was laid off constitute a lack of total unemployment rendering her ineligible to receive unemployment insurance benefits. Labor Law § 591 (1) limits eligibility for benefits to those claimants who are “totally unemployed” … , which has been defined as “the total lack of any employment on any day” … . In this context, the term employment contemplates that a claimant will potentially receive some type of monetary payment or future benefit in exchange for services rendered… .

Here, it is undisputed that claimant did not receive any compensation for caring for her coworker’s son and there is no evidence in the record that she was likely to obtain a future financial benefit for doing so. Consequently, we must conclude that the Board’s finding that claimant’s activities in this regard amounted to a lack of total unemployment is not supported by substantial evidence … . Matter of Connerton (Thousand Is. Cent. Sch. Dist.–Commissioner of Labor), 2015 NY Slip Op 07892, 3rd Dept 10-29-15

 

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Plaintiff’s Allegations of a Hostile Work Environment and Retaliation Were Not Sufficient As a Matter of Law

The Third Department determined that plaintiff’s action against her employer (UPS) alleging sexual harassment, rising to the level of a hostile work environment, and retaliation for complaining about it, was properly dismissed. Although the complaint alleged several instances of crude and improper language and physical contact, the allegations did not, as a matter of law, describe a “hostile work environment.” Nor were the allegations of retaliation sufficient as a matter of law:

A party alleging the existence of a sexually hostile work environment must demonstrate that “‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment'” … . To determine whether a hostile work environment exists, we must consider “all the circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance'” … . The test is both subjective and objective; that is, a plaintiff must demonstrate that the conditions of his or her employment were altered as a result of the conduct he or she perceived to be abusive and that the conduct created an environment that a reasonable person would find to be hostile or abusive … . * * *

A valid claim for retaliation under the Human Rights Law exists where a party demonstrates “that (1) [he or] she has engaged in protected activity, (2) [his or] her employer was aware that [he or] she participated in such activity, (3) [he or] she suffered an adverse employment action based upon [his or] her activity, and (4) there is a causal connection between the protected activity and the adverse action”… . Minckler v United Parcel Serv., Inc., 2015 NY Slip Op 07882, 3rd Dept 10-29-15

 

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