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Community College Retaliated Against Union for Its Advocacy

The Third Department upheld Supreme Court’s finding that a community college (petitioner) retaliated against the union (NIEU) in violation of the Civil Service Law by refusing to hire union employees for second jobs (for which union members received overtime pay). The court explained the relevant analytical criteria:

To prove its claim that petitioner [community college] engaged in an improper practice, NIEU was required to establish that it was engaged in activities protected by the Taylor Law (see Civil Service Law § 200 et seq.), that petitioner knew of these activities, and that it took the challenged action because of the activities … . “If the charging party proves a prima facie case of improper motivation, the burden of persuasion shifts to the party charged to establish that its actions were motivated by legitimate business reasons” … . Here, the parties agree that NIEU’s advocacy on the overtime issue was a protected activity and that petitioner was aware of NIEU’s advocacy. Their dispute focuses on whether petitioner’s decision to stop hiring NIEU members for second jobs was improperly motivated. Matter of Hudson Val. Community Coll. v New York State Pub. Empl. Relations Bd., 2015 NY Slip Op 07731, 3rd Dept 10-22-15

 

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Elderly Patient’s Fall from an Examining Table Implicated a Duty of Care Which Takes Into Account Patient’s Infirmities/Elderly and Infirm Patient’s Fall from Examining Table Sounds in Medical Malpractice, Not Ordinary Negligence

The Third Department, in a full-fledged opinion by Justice Garry, determined a new trial was necessary in a case stemming from 81-year-old plaintiff’s decedent’s fall from an examining table in a doctor’s office. The Third Department found that the trial judge fashioned a jury instruction which erroneously included premises liability principles and erroneously failed to take into account the particular infirmities of plaintiff’s decedent. In addition the trial court erroneously determined the case sounded in negligence, as opposed to medical malpractice:

Recovery in a premises liability action is predicated on “ownership, occupancy, control or special use of [a] property” where a dangerous or defective condition exists … . Here, decedent neither alleged that [defendant’s] liability arose from its ownership of dangerous or defective premises nor that any defects or dangerous conditions existed … . Instead, decedent asserted that [defendant] was liable for the acts and omissions of its employees in failing to recognize the need for, or provide decedent with, adequate assistance and supervision — an analysis unrelated to the physical condition of the medical office or the legal principles underlying premises liability. Supreme Court’s attempt to combine the two concepts resulted in an instruction that improperly advised the jury that decedent was required to prove that the premises were unsafe. Moreover, the instruction confusingly directed the jury to evaluate the actions of the medical assistant twice, first by determining whether her actions were “reasonably safe” and then — without clarifying the distinction, if there is one — whether those same actions were negligent.

The modified instruction further misstated the threshold issue of the applicable duty of care. “Although the existence of a duty is a question of law to be determined by the courts, the factfinder must be instructed on the nature and scope of such duty so as to ascertain any breach thereof” … . The modified instruction used the language of PJI 2:90 to charge the jury that “[t]he possessor of a building has a duty to use reasonable care to keep the premises in a reasonably safe condition for the protection of all persons whose presence is reasonably foreseeable,” followed by new language advising the jury that “[a] facility also has a duty to exercise ordinary and reasonable care to ensure that no unnecessary harm befalls a patient.” The first of the two statements pertains to premises liability and, as previously discussed, is inapplicable here. The second statement, although not inapplicable to a negligence analysis, is incomplete. It is well settled that a medical facility used by persons who may be ill, disabled or otherwise vulnerable “ha[s] a duty to exercise reasonable care and diligence in safeguarding a patient, based in part on the capacity of the patient to provide for his [or her] own safety” … . “The degree of reasonable care is measured by the physical and mental infirmities of the patient[] as the [facility’s] officials and employees know them” … . * * *

The assessment of a patient’s risk of falling as a result of his or her medical condition, and the patient’s consequent need for assistance, protective equipment or supervision, are medical determinations that sound in malpractice … . Likewise, whether Horizon breached applicable standards of care for medical offices in supervising and assisting decedent in view of her medical condition “necessitates a comparison to the standard of care customarily exercised by [comparable medical facilities] . . . [that] cannot be determined without a full appreciation and understanding of the operational demands and practices of [such facilities]” and raises issues of malpractice rather than negligence … .

Expert testimony is a necessary part of a malpractice action, as the plaintiff is required to establish the relevant professional standard of care … . This case hinges upon a malpractice standard. Martuscello v Jensen, 2015 NY Slip Op 07711, 3rd Dept 10-22-15

 

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“For Cause” Challenge to Juror Who Socialized with District Attorney Should Have Been Granted—Concept of “Implied Bias” Explained

The Third Department determined a new trial was necessary because of the denial of a “for cause” challenge to a juror who socialized with the district attorney (the case was tried by an assistant district attorney). The court explained the concept of “implied bias” which is not easily “cured:”

A statement by a potential juror suggesting a possible bias can be cured, and the juror not excused, if the juror “provide[s] ‘unequivocal assurance that [he or she] can set aside any bias and render an impartial verdict based on the evidence'” … . However, where, as here, the challenge for cause involves a juror’s relationship with a trial participant, a so-called “implied bias” may be implicated which “requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect [his or] her ability to be fair and impartial” … . Of course, “[n]ot all relationships . . . require disqualification . . . [and] [t]he frequency of contact and nature of the parties’ relationship are to be considered in determining whether disqualification is necessary” … . As a practical matter, “the trial court should lean toward disqualifying a prospective juror of dubious impartiality” … .

Here, during voir dire, juror no. 3372 stated that her family was “good friends” with the family of the District Attorney. She added that she socialized with the District Attorney, including having him and his wife as dinner guests at her home, and she and her husband had dined as guests at the District Attorney’s home. County Court nonetheless denied defendant’s challenge for cause as to such juror. People v Bedard, 2015 NY Slip Op 07703, 3rd Dept 10-22-15

 

Flawed Procedure Following “Batson” Challenges to the Prosecution’s Exclusion of Two Nonwhite Jurors Required Reversal

The Third Department determined reversal and a new trial were necessary because of flaws in the procedure used following the “Batson” challenge of the prosecution’s peremptory challenges to two nonwhite members of the jury panel.  The judge denied the Batson challenges. The Third Department explained the correct procedure and the flawed procedure actually used:

A Batson challenge implicates a three-step process in which, “[a]t step one, ‘the moving party bears the burden of establishing a prima facie case of discrimination in the exercise of peremptory challenges'” … . “Once a prima facie showing of discrimination is made, the nonmovant must come forward with a race-neutral explanation for each challenged peremptory — step two” … . The explanation at step two is “not required to be ‘persuasive, or even plausible’; as long as the reasons for the challenges are ‘facially neutral,’ even ‘ill-founded’ reasons will suffice” … , and determining whether the step two explanation is adequate is “a question of law” … . If the nonmoving party provides an adequate explanation, “the burden then shifts back, at step three, to the moving party to persuade the court that reasons are merely a pretext for intentional discrimination” … . This step is a factual issue in which the trial court has broad discretion in determining credibility … .

Initially, we note that the Batson application, made before the end of jury selection, was timely … and any issue regarding the sufficiency of defendant’s step one showing is now moot since the People offered step two race neutral reasons for the challenged peremptory challenges … . The reasons offered by the People included, as to juror No. 19, that the father of her children had been prosecuted by the Schenectady County District Attorney’s office for robbery and “presumably” was in prison. Regarding juror No. 127, the People explained in some detail that there were jurors after her that they preferred to use to fill the twelfth and final seat. Although these reasons were facially race-neutral satisfying the People’s step two burden, defendant points out that the People’s statement regarding juror No. 19 had significant factual errors embellishing on her actual comment, and also that the People did not challenge a white juror whose sister had “been in and out of trouble for years, felonies, in trouble with the law.” As such, there were important factual issues implicating credibility that needed to be resolved at step three. However, as conceded by the People in their brief on appeal, County Court ruled on the Batson application at the conclusion of step two.

The improper compressing of a Batson inquiry does not necessarily mandate reversal, as the movant must preserve the issue as to whether a meaningful step three inquiry occurred … . Indeed, whatever procedural problems may exist in a Batson inquiry, the overriding concern is that a properly preserved question regarding the ultimate issue of discrimination is meaningfully addressed … . Here, defendant sufficiently preserved the issue and the ultimate issue was not adequately addressed. After the People offered their race neutral reasons as to the second relevant juror, defendant began to respond and urged that the record was not complete. County Court stated that the record was complete and summarily denied defendant’s Batson challenge. “[T]he court did not appear to give any consideration to pretext, nor was the basis of its ruling reflected in the record”… . People v Grafton, 2015 NY Slip Op 07701, 3rd Dept 10-22-15

 

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Hearsay Alone Will Not Support Revocation of Probation/Failure to Pay Restitution Will Not Support Revocation of Probation If Due to an Inability to Pay

In reversing the judgment revoking defendant’s probation, the Third Department noted that hearsay alone cannot be the basis for revocation and failure to pay restitution will only support revocation if defendant has the ability to pay:

It is settled that, “in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay” … . “If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority” … . If, on the other hand, “the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment” … .

Here, there was neither an adequate inquiry into defendant’s ability to pay nor a determination that his failure to pay was willful … . Accordingly, the matter must be remitted for further proceedings to determine whether defendant’s failure to make the required monthly restitution payments was willful and, if so, whether such failure, standing alone, serves as a valid basis for revocation of his probation and the imposition of a sentence of incarceration … . People v Songa, 2015 NY Slip Op 07704, 3rd Dept 10-22-15

 

Broken Sentence Promise Required Vacatur of the Guilty Plea

The Third Department determined defendant’s guilty plea was induced by County Court’s promise to impose a sentence of shock incarceration. At sentencing, County Court refused to order shock incarceration. Because the plea was induced by the broken promise, the plea was not knowing and voluntary. The fact that neither the People nor County Court could guarantee defendant’s participation in the shock incarceration program was deemed irrelevant:

We start with the principle that a trial court always “retains discretion in fixing an appropriate sentence up until the time of sentencing” … . However, when the court wishes to depart from a promised sentence, it must either honor the promise or give the defendant the opportunity to withdraw the guilty plea … . Accordingly, “[a] guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … .

Here, prior to defendant’s guilty plea, County Court indicated its belief that defendant was eligible for shock incarceration and then unequivocally promised that it “would order him into it.” When defendant specifically asked if shock incarceration was guaranteed, the court stated that it “would order it absolutely” and that a failure on the part of prison authorities to admit him would “defy an order of the [c]ourt.” Furthermore, defense counsel stated that he was recommending that defendant accept the plea agreement “especially with a shock commitment.” Thus, regardless of the fact that “neither County Court nor the People possessed the authority to guarantee [defendant’s] participation” in the shock incarceration program … , the record reflects that defendant, in accepting the plea, relied upon County Court’s promise to do exactly that. Consequently, we find that defendant’s plea was not knowing, voluntary and intelligent, and that, because County Court’s promise to defendant cannot be honored as a matter of law, he is entitled to vacatur of his guilty plea … . People v Muhammad, 2015 NY Slip Op 07702, 3rd Dept 10-22-15

 

Where There Is Permanent Partial Disability, the Benefits Are Calculated Based Upon the Difference Between the Pre-Disability Earnings and the Actual Earnings During the Period of Disability

The Third Department determined the Board correctly calculated the benefits for a nurse who could no longer work as a nurse due to an allergic reaction to hand sanitizer (permanent partial disability). She found work as a part-time cashier at $8 an hour. She had earned over $2000 per week as a nurse. The Board awarded her benefits of $600 per week for 500 weeks. The Third Department held the Board correctly used the difference between her nursing salary and her earnings as a cashier earnings during the period of disability as the basis for the award. The court explained the analytical criteria:

Workers’ Compensation Law § 15 (3) (w) provides that the compensation rate for injured employees who have permanent partial disabilities that are not subject to schedule awards is based upon “the difference between the injured employee’s average weekly wages and his or her wage-earning capacity thereafter in the same employment or otherwise” … . Workers’ Compensation Law § 15 (5-a) further provides that the wage- earning capacity of an injured employee with a partial disability “shall be determined by his [or her] actual earnings” while disabled … . Notably, the Court of Appeals has recognized that “where actual earnings during the period of the disability are established, wage[-]earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more or less during such disability period” … .

Vocational and functional considerations, such as a claimant’s age, education, training, experience, restrictions and related factors, are appropriately taken into account with respect to loss of wage-earning capacity only as they are relevant to the duration of a claimant’s permanent partial disability benefits … . Matter of Baczuk v Good Samaritan Hosp., 2015 NY Slip Op 07313, 3rd Dept 10-8-15

 

Sales Rep Who Worked from Home Was an Employee

The Third Department upheld the board’s determination that claimant, who worked from home as a sales representative for DaVinci, was an employee entitled to benefits:

Here, claimant knew DaVinci’s principal through prior business dealings and obtained the job after submitting a resume, but did not go through a formal hiring procedure. Through negotiation, the principal agreed to pay her $4,000 per month, plus health insurance, and to reimburse her for business-related expenses. Her compensation was initially supposed to be a draw on commission, but turned out to be a salary that she was paid every other week regardless of sales. Although claimant worked from home, she provided the principal with weekly activity reports, maintained regular contact by phone and email, and received specific instructions on products, pricing, delivery and clients. In addition, claimant contacted clients who she had dealings with in the past, but also claimant followed up on leads directed to her by the principal and met with him at conventions and product demonstrations. Notably, the principal provided claimant with a three dimensional television and other equipment needed to conduct her sales activities, as well as training on how to operate the equipment. In view of the foregoing, and notwithstanding the evidence that would support a contrary conclusion, substantial evidence supports the Board’s finding that an employment relationship existed between claimant and DaVinci… . Matter of Gluck (Davinci 3D Corp.–Commissioner of Labor), 2015 NY Slip Op 07320, 3rd Dept 10-8-15

 

Slip and Fall on Ice Not an “Accident” Within Meaning of Retirement and Social Security Law

The Third Department confirmed the comptroller’s finding that petitioner, who worked for a town public safety department, was not entitled to enhanced disability benefits based upon a slip and fall on ice.  The incident did not constitute an “accident” within the meaning of the Retirement and Social Security Law:

As defined for purposes of the Retirement and Social Security Law, an unexpected and unfortunate incident does not constitute an accident, so as to support an award of benefits, “where the injury results from an expected or foreseeable event arising during the performance of routine employment duties'” … . Significantly, the burden is on the party seeking benefits to establish that the incident causing his or her injury was an accident … .

Here, petitioner testified that the night before the incident there was an ice storm, and he left for work early the following morning to allow him time to navigate the icy road conditions. He stated that he spoke to his supervisor while en route and arrived in the parking lot about 10 minutes prior to his regularly scheduled shift. As he exited his vehicle, he took a few steps and then slipped and fell in the parking lot. While he was on the ground, he saw that he was lying on ice, and water was running down the middle. Based upon petitioner’s testimony describing the occurrence and his awareness of the hazardous conditions created by the ice storm, he should have reasonably anticipated that the parking lot would be slippery when he exited his vehicle. Accordingly, as the precipitating event was entirely foreseeable, substantial evidence supports the Comptroller’s finding that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law and, thus, that petitioner was not entitled to enhanced benefits… . Matter of Begley v DiNapoli, 2015 NY Slip Op 07323, 3rd Dept 10-8-15

 

Corrections Officer Not Entitled to Performance of Duty Disability Benefits Based Upon Injury Stemming from Aiding an Inmate Who Was Having a Seizure

The Third Department determined a corrections officer was not entitled to “performance of duty” disability benefits based upon injury aiding an inmate who had a seizure. The court found that the “performance of duty” disability provision pertained only to injury caused by a violent inmate:

Retirement and Social Security Law § 507-b (a) provides for performance of duty disability retirement benefits to correction officers employed by the Department of Corrections and Community Supervision who are unable to perform their job duties “as the natural and proximate result of an injury, sustained in the performance or discharge of [their] duties by, or as a natural and proximate result of, an act of an inmate.” The statute does not specifically define an “act of an inmate.” The legislative history, however, reveals that “the statute was clearly intended to compensate correction officers who, because of the risks created by their ‘daily contact with certain persons who are dangerous [and] profoundly antisocial’ . . . become permanently disabled” … . In accordance with this intent, courts have construed the language to require that the injuries be caused by direct interaction with an inmate in order to qualify for benefits under the statute … .

Petitioner contends that she had direct interaction with the inmate while she was lowering him to the floor during his seizure. However, in analogous circumstances where a correction officer was injured while assisting an incapacitated inmate during a medical emergency, we held that the “inmate was not engaged in any act that was a proximate cause of petitioner’s. . . injury” (Matter of Esposito v Hevesi, 30 AD3d 667, 668 [2006]). Given the absence of any affirmative act on the part of the inmate here, we perceive no meaningful distinction to be drawn between this case and Matter of Esposito v Hevesi (supra) … . Matter of Laurino v DiNapoli, 2015 NY Slip Op 07327, 3rd Dept 10-8-15

 

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