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Flight Crew Member Deemed an Employee of a Service Which Provides Flight Crews for Corporate Clients

The Third Department determined claimant, who worked for Stecher Aviation Services, which provides flight crews for corporate clients, was an employee, not an independent contractor:

Here, the record reflects that Stecher Aviation reviews and evaluates the resume of a prospective crew member and other required certifications in deciding whether to add the crew member to its database. Once accepted, the crew member must sign a contract that requires him or her to take instructions directly from the client, prohibits substituting a third party to fulfill the assignment and requires the submission of an invoice by a specified time in order to be paid for services and reimbursed for expenses. Although a crew member may reject an assignment and can work for competitors, Stecher Aviation reviews its database and selects the crew member whom it deems qualified to perform the services required by its client, and the work hours and location are determined by the needs of the client. The crew member does not negotiate the rate of pay, as such rate is already set between Stecher Aviation and the client’s flight department. Stecher Aviation handles the billing for the services provided and, after deducting its commission, pays the crew member. Additionally, Stecher Aviation finds replacements for a crew member who cancels an assignment and fields complaints about a crew member’s performance; crew members also are covered under Stecher Aviation’s workers’ compensation insurance policy. Finally, Stecher Aviation’s sole business is providing crew members for its clients. Matter of Stecher Aviation Servs., Inc. (Commissioner of Labor), 2015 NY Slip Op 06743, 2nd Dept 9-3-15

 

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Fraud Does Not Require Proof of a “Nefarious Motive”—Fact that Respondent Knew that the Spouses of Three Signatories Signed the Petition on the Signatories’ Behalf Invalidated the Petition, Despite the Fact that There Were a Sufficient Number of Valid Signatures

The Third Department invalidated the designating petition because the respondent, Hammond, admitted he witnessed the signatures of the three people who were the spouses of the person purportedly signing the petition.  The petition included 38 signatures, 30 more than the eight required to receive the party designation. Hammond thought having the three spouses sign was proper. The court noted that the signatures were fraudulent, despite the absence of an intent to defraud, and Hammond’s knowledge of the fraud required invalidation:

A court will invalidate a designating petition where the challenger establishes, by clear and convincing evidence, “that the entire petition is permeated with fraud or that the candidate participated in, or can be charged with knowledge of, fraudulent activity” … . Where a candidate is involved in the fraud, the challenger need not show that the fraud permeated the entire petition …, and “the petition may be invalidated even if it contains a sufficient number of valid signatures independent of those fraudulently procured” … . * * *

Fraud … does not require proof of a “nefarious motive” … . Inasmuch as Hammond participated in the fraud, and regardless of the fact that the designating petition contained a sufficient number of signatures independent of the three signatures that were fraudulently obtained, we invalidate respondents’ designating petition and strike their names from the ballot … . Matter of Mattice v Hammond, 2015 NY Slip Op 06637, 3rd Dept 8-20-15

 

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Failure to Administer Oath to Two Signatories Invalidated Petition—When Oath Required Under the Election Law Explained

The Third Department determined that the failure to administer the oath required by the Election Law to two signatories invalidated the designating petition. The court explained when the oath is required under the Election Law, and when it is sufficient to merely witness a signature:

The Election Law provides a much simpler process for a local party member to obtain petition support for a potential candidate than for an individual of either another political party or from outside the relevant political subdivision. A local party member may obtain petition signatures and affirm with a simple statement that the signatories “subscribed the same in my presence on the dates above indicated and identified himself or herself to be the individual who signed this sheet” (Election Law § 6-132 [2]). Where the petition is obtained by an individual other than a statutorily authorized local party member, however, the petition may be approved by a notary public or commissioner of deeds, but it is further required that each individual signatory be “duly sworn” (Election Law § 6-132 [3]).

Here, [respondent] was gathering signatures on multiple party lines, and at issue are three lines in which she was not a duly registered party member. At the hearing, in addition to testimony from signatories that no oath or affirmation as to the truth of their statements was elicited prior to signing the petitions, [respondent] herself clearly acknowledged in her testimony that she had neither administered an oath to any signatory on the challenged petitions, nor had she asked any of them to swear or affirm to tell the truth before signing. This is contrary to her attestation as a commissioner of deeds, which appears on the face of each sheet of the challenged designating petitions, as required pursuant to Election Law § 6-132 (3). As respondent argues, case law has established that not all of the formalities of an oath need be observed … . Nonetheless, we are constrained to find that the evidence did not support a finding of substantial compliance with the statutory requirements. Accordingly, the signatures collected by [respondent] are rendered invalid… . Matter of Mertz v Bradshaw, 2015 NY Slip Op 06639, 3rd Dept 8-20-15

 

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Failure to Meet One-Year Residency Requirement Invalidated Designating Petition

The Third Department affirmed the invalidation of petitioner’s designating petition because petitioner had not lived in the relevant district for one year, as required by the Albany County Charter. The court held the residency requirement did not violate due process:

… [B]y conceding that the address listed on his designating petition is outside the 9th Legislative District and that he did not, in fact, live in that district, petitioner failed to demonstrate that he satisfied the residency requirements and, consequently, did not meet his burden of demonstrating the validity of his designating petition … .

… [W]e find that the one-year durational residency requirement imposes a reasonable, nondiscriminatory restriction on prospective candidates and voters that is supported by a rational basis … . Matter of Scavo v Albany County Bd. of Elections, 2015 NY Slip Op 06640, 3rd Dept 8-20-15

 

Address Errors Rendered Designating Petition Invalid—Petitioner Not Entitled to “Opportunity to Ballot”

The Third Department determined that errors in indicating the correct address of signatories invalidated the designating petition, Because such errors are not deemed merely “technical” errors under the Election Law, the petitioner’s request for an “opportunity to ballot” was properly denied:

Pursuant to Election Law § 6-130, “[t]he sheets of a designating petition must set forth in every instance the name of the signer, his or her residence address, town or city (except in the city of New York, the county), and the date when the signature is affixed.” Strict compliance with Election Law § 6-130 is mandated, as its requirements constitute “a matter of substance and not of form”… . * * *

… [T]he discretional remedy of an opportunity to ballot should be granted “only where the defects which require invalidation of a designating petition are technical in nature and do not call into serious question the existence of adequate support among eligible voters” … . Here, we find that Supreme Court did not abuse its discretion in concluding that the opportunity to ballot remedy is not appropriate in light of the fact that the defects at issue have been held to be substantive and not technical in nature … . Matter of Canary v New York State Bd. of Elections, 2015 NY Slip Op 06638, 3rd Dept 8-20-15

 

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Fact that Notary Public Did Not Administer an Oath to the Signatories on the Designating Petition Did Not Invalidate the Petition

The Third Department determined the signatures on the candidate-designating petition were valid, despite the respondent’s, Sira’s, admission that no oath was administered to the signatories which Sira signed as a notary public. The court noted that, under the Election Law, Sira could have merely witnessed the signatures, without signing as a notary public. Because there was no evidence the signatures were fraudulent in any way, the petition was deemed valid:

“A designating petition will be invalidated if the challenger shows, by clear and convincing evidence, that the entire petition is permeated with fraud or that the candidate participated in, or can be charged with knowledge of, fraudulent activity” … . Here, although Sira herself attested to 307 signatures on her designating petition as a notary public, which included an affirmation that the signatories had sworn that their statements were true, she admitted at the hearing that she had not administered an oath to the signatories or obtained a statement as to the truth of the matter to which they subscribed as required by Election Law § 6-132 (3) … . Sira concedes that those 307 signatures are therefore invalid. However, we are unconvinced that Sira’s actions amounted to fraud warranting invalidation of the entire designating petition. Notably, as a registered member of the Republican Party living in Fulton County, Sira was not required to attest to the signatures on her petition as a notary public; rather, Sira could have attested as a witness to the signatures, requiring only an affirmation that the signatories identified themselves as the individuals who signed the petition and that they signed the petition in the presence of the witness (see Election Law § 6-132 [2]). Significantly, there is no evidence that Sira did not witness the signatures she attested to or that the signatures were not authentic. Thus, in our view, it has not been established by clear and convincing evidence that, under these circumstances, invalidation of Sira’s entire designating petition is warranted on this basis… . Matter of Vincent v Sira, 2015 NY Slip Op 06636, 3rd Dept 8-20-15

 

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Where the State Is a Potential Joint Tortfeasor Which Cannot Be Joined In the Supreme Court Action with the Other Defendant (Because the State Must Be Sued in the Court of Claims), the Jury in the Supreme Court Trial Should Be Allowed, If Appropriate, to Apportion Damages Between the Defendant and the State

Plaintiff was injured when a tree limb fell and struck her car while she was driving on a state highway. Plaintiff sued both the defendant (the property owner) and the state. However, the state could be sued only in the Court of Claims, so two separate actions were brought against the two potential tortfeasors. The Third Department, in a case of first impression, in a full-fledged opinion by Justice McCarthy, over a partial dissent, determined that evidence of both the defendant’s and the state’s liability could be presented in the Supreme Court trial and the jury should, if appropriate, be allowed to apportion damages between the defendant and the state:

“Under CPLR article 16, a joint tortfeasor whose culpability is 50% or less is not jointly liable for all of [a] plaintiff’s noneconomic damages, but severally liable for its proportionate share” … . The provision was promulgated as a modification of the common-law theory of joint and several liability, the purpose of which was to “remedy the inequities created by joint and several liability on low-fault, ‘deep pocket’ defendants” … . However, where potential tortfeasors are not joined in an action, the culpability of a nonparty tortfeasor may be imposed upon the named defendant if the plaintiff can show that he or she is unable to obtain jurisdiction over the nonparty tortfeasor (see CPLR 1601 [1]). Here, plaintiffs do not face a jurisdictional limitation in impleading the State as a codefendant, but instead cannot do so due to the doctrine of sovereign immunity … . Plaintiffs’ only recourse against the State is to pursue an action in the Court of Claims (see Court of Claims Act §§ 8, 9). Likewise, if defendant is found liable in Supreme Court, it could seek indemnification from the State relative to its share of actual culpability as an additional claimant in the subsequent Court of Claims action … .

CPLR 1601 (1) is silent in regard to whether the State’s proportionate share of liability should be considered in calculating a defendant’s culpability in an action like the one at bar, and we have never decided the issue. * * *

Although we recognize the possibility of inconsistent verdicts as to the apportionment of fault in Supreme Court and in the Court of Claims, we note that this risk arises regardless of whether or not the jury is entitled to apportion liability between defendant and the State … . Given the statutory purpose of CPLR 1601 (1) to “limit[] a joint tortfeasor’s liability for noneconomic losses to its proportionate share, provided that it is 50% or less at fault” …, we find that juries in this scenario should be given the option to, if appropriate, apportion fault between defendant and the State. Artibee v Home Place Corp., 2015 NY Slip Op 06556, 3rd Dept 8-13-15

 

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Sexual Harassment Findings Affirmed

The Third Department affirmed the State Division of Human Rights’ (SDHR’s) determination that respondent corrections officer had been subjected to sexual harassment (creating a hostile work environment) and was entitled to economic and noneconomic damages. The court noted that its review powers were “narrow” and were confined to whether the Commissioner of Human Rights’ rulings were rational in light of the evidence. The court further noted that the Commissioner should not have offset the award based upon past and future workers’ compensation benefits, and the commissioner should have considered respondent’s loss of pension benefits. In explaining its review criteria, the court wrote:

When reviewing a determination made by the Commissioner in a matter such as this one, our purview is “extremely narrow” and must focus not on whether we would have reached the same result as did the Commissioner, but instead on whether the Commissioner’s determination was rational in light of the evidence presented … . Such deference is due given SDHR’s expertise in evaluating discrimination claims … . A violation of Executive Law § 296 based on a hostile work environment must be supported by proof that the “workplace [was so] permeated [by a] discriminatory” atmosphere that it “alter[ed] the conditions of the [complainant’s] employment” … . “Where, as here, there is a finding of a hostile work environment as a result of sexual harassment, the evidence in the record must establish the pertinent elements, including proof that the discriminatory conduct occurred due to the complainant’s gender”… . Matter of Rensselaer County Sheriff’s Dept. v New York State Div. of Human Rights, 2015 NY Slip Op 06551, 3rd Dept 8-13-15

 

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Proof of Inability to Control Sexual Behavior (Over and Above Proof of Antisocial Personality Disorder [ASPD]), Deemed Sufficient to Justify Confinement as a Dangerous Sex Offender

After the Court of Appeals determined that Antisocial Personality Disorder (ASPD) was not a sufficient ground for a finding of a “mental abnormality” requiring confinement pursuant to the Mental Hygiene Law, Supreme Court vacated its prior adjudication that respondent was a dangerous sex offender requiring confinement. The Third Department, in a full-fledged opinion by Justice Devine, over a two-justice dissent, reversed Supreme Court and reinstated the confinement. The majority concluded there was sufficient evidence of mental disorders (over and above ASPD) which rendered respondent unable to control his sexual behavior. The dissenters found the evidence insufficient. Both the majority and the dissent went through the evidence in detail. The majority explained the general analytical criteria:

In order “[t]o demonstrate that respondent is a dangerous sex offender requiring civil confinement, petitioner was required to prove ‘by clear and convincing evidence that . . . respondent has a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control [his] behavior, that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility'” … . Respondent takes issue with the finding that he suffered from a mental abnormality, i.e., “a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him . . . to the commission of conduct constituting a sex offense and that results in [his] having serious difficulty in controlling such conduct” (Mental Hygiene Law § 10.03 [i]…).

Substantive due process requires that evidence of a mental abnormality reflect a “serious difficulty in controlling behavior” that, “when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, . . . [is] sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him [or her] to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case” … . As such, “the New York statutory structure does not run afoul of substantive due process because it requires [petitioner] to prove that the individual is dangerous, and the dangerousness must be coupled with a mental abnormality, which — by definition — incorporates the additional requirement that the offender have serious difficulty with behavioral control” … . The Court of Appeals has determined that a diagnosis of ASPD, without more, does not meet that requirement, as it “establishes only a general tendency toward criminality, and has no necessary relationship to a difficulty in controlling one’s sexual behavior” … . Matter of State of New York v Richard TT., 2015 NY Slip Op 06557, 3rd Dept 8-13-15

 

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Department of Motor Vehicles Did Not Exceed Its Powers In Promulgating Regulations Re: Lifetime Revocation of Driver’s Licenses, Five-Year Stay of Relicensure, and Subsequent Five-Year Restricted License/Ignition Interlock Period for Alcohol-Related Convictions

The Third Department, in a full-fledged opinion by Justice Peters, over a two-justice dissent, determined that petitioner’s challenges to Department of Motor Vehicles’ (DMV’S) regulations re: (1) the lifetime revocation of a driver’s license for alcohol-related convictions, (2) the five-year stay of relicensure for persons with three alcohol-related convictions, and (3) the subsequent five-year period with the imposition of a restricted license and installation of ignition interlock device, were properly dismissed as nonjusticiable (petitioner not yet affected by any of them). The court went on to determine the DMV, by promulgating these regulations, did not encroach upon the powers of the legislature. The dissenters argued that some of the challenges were justiciable and the DMV in fact exceeded its powers by mandating a five-year stay of relicensure for anyone with three alcohol-related convictions within a 25-year lookback, as well as the subsequent five-year period allowing only a restricted license with the installation of an ignition interlock device. The majority explained the general principles for analyzing whether an agency has exceeded its powers:

To determine whether an administrative agency has usurped the power of the Legislature, courts must consider whether the agency: (1) “operat[ed] outside of its proper sphere of authority” by balancing competing social concerns in reliance “solely on [its] own ideas of sound public policy”; (2) engaged in typical, “interstitial” rulemaking or “wrote on a clean slate, creating its own comprehensive set of rules without the benefit of legislative guidance”; (3) “acted in an area in which the Legislature has repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions”; and (4) applied its “special expertise or technical competence” to develop the challenged regulations (Boreali v Axelrod, 71 NY2d at 12-14 …).  Matter of Acevedo v New York State Dept. of Motor Vehs., 2015 NY Slip Op 06467, 3rd Dept 8-6-15

 

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