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Approval of an MRI Within Seven Years of Closure of Claimant’s Case Effectively Reopened the Case—Transfer to the Special Fund for Closed Cases Was Error

The Third Department determined the fact that an MRI had been approved demonstrated that the claimant’s case had not been closed for the requisite seven years. Liability therefore was not shifted to the Special Fund for closed cases:

Pursuant to Workers’ Compensation Law § 25-a, the Special Fund becomes liable for claims that are reopened more than seven years from the date of the injury and three years after the last payment of compensation … . There is no dispute that this case was initially closed as of June 20, 2005. In its amended decision, the Board determined that the case was first reopened in April 2012 when the MRI was requested, but closed once that application was approved. Finding that the case was again reopened when surgery was requested on June 26, 2012, the Board determined that the requisite seven-year time period had passed, shifting liability to the Special Fund.

This sequence calls into question whether the case was “truly closed” when the MRI request was approved. We have previously recognized that a “decision authorizing [an] MRI [does] not constitute a true closing of the case as [the] claimant’s future treatment depended upon the results of the MRI and, thus, further action was contemplated although not planned at that time” … . The same holds true here. As such, we conclude that the Board erred in concluding that the case was closed when the MRI was authorized. Correspondingly, since the case was reopened when the MRI was requested in April 2012, within the statutory seven-year period, liability does not shift to the Special Fund. Matter of Bank v Village of Tuckahoe, 2015 NY Slip Op 04894, 3rd Dept 6-11-15

 

Even When the Injured Worker, Who Had Received Workers’ Compensation Benefits, Successfully Sues His Employer (As Opposed to a “Stranger”) for His Injuries, the Workers’ Compensation Carrier Has a Lien Against the Recovery Pursuant to Workers’ Compensation Law 29(1)

The Third Department noted that, even though the worker who had received workers’ compensation benefits successfully sued his employer (as opposed to a third party) for his injuries, the workers’ compensation carrier still had a lien against the recovery (Workers’ Compensation Law 29(1)):

“When a claimant obtains recovery in a civil action for the same injuries that were the predicate for workers’ compensation benefits, the carrier has a lien against any recovery (see Workers’ Compensation Law § 29 [1]), even where the action is brought against an employer” … . Indeed, as the Court of Appeals has recently reaffirmed, “‘[Workers’ Compensation Law § ] 29, read in its entirety and in context, clearly reveals a legislative design to provide for reimbursement of the compensation carrier whenever a recovery is obtained in tort for the same injury that was a predicate for the payment of compensation benefits'” … . The Court reasoned that “[i]t would be unreasonable to read the statute as mandating a different result merely because the recovery came out of the pockets of a coemployee [or the employer] and not from the resources of a stranger” … . Ronkese v Tilcon N.Y., Inc., 2015 NY Slip Op 04908, 3rd Dept 6-11-15

 

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No Interlocutory Appeal Lies from a Pre-Trial Ruling on the Admissibility of Evidence Which Did Not Limit the Scope of the Issues or Theories of Liability to Be Tried

Defendant was intoxicated when her vehicle collided with plaintiff’s decedent’s vehicle.  Plaintiff, the administrator of decedent’s estate, sought to introduce expert testimony demonstrating that, based upon defendant’s blood-alcohol content six hours after the accident, she would have been visibly intoxicated and had a higher blood-alcohol content when she was served at defendant tavern.  The tavern moved to preclude the expert testimony and, after a Frye hearing, the court granted the motion.  The Third Department determined the court’s ruling on the evidentiary issue did not limit the scope of the issues or theories of liability to be tried and was not, therefore, appealable as of right or by permission. Appeal would have to wait until the trial is concluded:

It is well settled that “an order which merely determines the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . Supreme Court precluded plaintiff from offering an expert opinion as to “the extrapolated blood alcohol content [and] the physiological condition” of [defendant] while she was at the tavern, crediting the testimony of [the tavern’s] expert that such an opinion could not be reliably drawn from the available proof. Regardless of whether Supreme Court abused its discretion in making that determination, it was plainly an evidentiary ruling that did not “limit[] the scope of the issues or the theories of liability to be tried” … . Indeed, counsel for plaintiff acknowledged at oral argument that the preclusion of the proffered expert evidence is not fatal to his claims and that a trial will occur even if the evidence is not allowed. Appellate review thus must wait until after trial, when the relevance of the evidence and the effect of the evidentiary ruling may be properly assessed … . Hurtado v Williams, 2015 NY Slip Op 04912, 3rd Dept 6-11-15

 

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Tax Payments Made Voluntarily Cannot Be Recovered Under a Mistake of Law Theory/Supreme Court Should Not Raise a “Non-Subject-Matter-Jurisdiction” Defense Sua Sponte

The Third Department determined Supreme Court properly denied petitioner’s request for a refund of real estate taxes paid re: optic cable installations located on private rights-of-way because petitioner had not protested the tax payments and made them voluntarily.  In addition, the court noted that the court should not have raised the statute of limitations defense sua sponte because the defense did not implicate subject matter jurisdiction:

… [U]nless subject matter jurisdiction is implicated, a court should not raise an issue sua sponte when a party is prejudiced by its inability to respond … . Here, because respondent Essex County failed to raise the statute of limitations as an affirmative defense in a pre-answer motion to dismiss or in its answer (see CPLR 3211 [a] [5]; [e]; 7804 [f]), it was improper for Supreme Court to raise it sua sponte … . * * *

… [W]e find no reason to disturb Supreme Court’s partial denial of the petition on the ground that petitioner failed to demonstrate that it paid the taxes involuntarily. To recover payments made under a mistake of law, as in the present case … , a taxpayer is required to show that the payments were made involuntarily … . This requirement ensures that governmental entities have notice that they may need to provide for tax refunds … . Here, petitioner fully paid all of the relevant taxes and offered no proof that it did so under protest or that such payments were otherwise involuntary … . Indeed, petitioner did nothing to indicate that its payments were involuntary until nearly 18 months after the final contested tax bill was paid, when petitioner submitted its RPTL 556-b correction applications … . Matter of Level 3 Communications, LLC v Essex County, 2015 NY Slip Op 04899, 3rd Dept 6-11-15

 

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Although a Prima Facie Case of Abuse and Neglect Was Made Out, Father’s Expert Provided Persuasive Evidence the Child’s Injuries Were Not the Result of Abuse—The Abuse and Neglect Findings Were Not, Therefore, Supported by a Preponderance of the Evidence

The Third Department, in a full-fledged opinion by Justice McCarthy, reversed Family Court’s finding that father abused and neglected his infant daughter (Nora).  The trial was essentially a “battle of experts” [Patno was the Department of Social Service’s expert; Scheller was father’s expert]. The Third Department determined the Department of Social Services had made out a prima facie case of abuse and neglect (expert testimony that Nora’s physical condition was caused by shaking) but, under a weight of the evidence analysis, father’s expert provided the best explanation for Nora’s injuries—an explanation which did not implicate father.  The court noted that father did not exhibit any characteristics associated with an abusive parent and father’s expert’s “testimony, which was consistent with conclusions of Nora’s treating physicians and her medical records in crucial respects, offered a reasonable and persuasive account of how Nora’s symptoms — and lack thereof — better supported his … diagnosis:”

…. [T]he uncontested evidence showed that Nora did not suffer external trauma …, broken bones or neck injuries …, and she had a one-sided retinal hemorrhage … . Further, the father, a professional pediatric nurse, exhibited none of the characteristics thought to be diagnostically predictive of a perpetrator of abusive head trauma …, and he consistently denied that he mishandled Nora … . The single characteristic that Nora was fussy — while perhaps almost always present in victims of abusive head trauma — fails to meaningfully support Patno’s diagnosis over Scheller’s diagnosis, given the vast number of fussy infants who are never physically abused. Further, while Patno testified that abusive head trauma from shaking often results in a triad of symptoms that include subdural hematoma, retinal hemorrhaging and brain swelling …, the medical evidence uniformly established that Nora did not suffer from brain swelling. Additionally, Scheller and Adamo — petitioner’s witness — were substantially in agreement that Nora’s single-sided retinal hemorrhaging could be the specific result of the subdural hematoma, rather than a direct result of any potential trauma. Patno failed to offer any explanation regarding the merits of such a theory or even an opinion as to whether she believed that such one-sided retinal hemorrhaging was the direct result of shaking … . Accordingly, given Patno’s lack of specificity regarding the one-sided retinal hemorrhage, it is unclear whether she believed that evidence of a fussy infant who had suffered a subdural hematoma was, by itself, sufficient to diagnose abusive head trauma. Matter of Natalie AA. (Kyle AA.), 2015 NY Slip Op 04889, 3rd Dept 6-11-15

 

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Plaintiff Not Competent When Release Was Signed/Statute of Limitations Tolled by Plaintiff’s Mental Disability

The Third Department determined Supreme Court properly concluded the release signed by the plaintiff was not enforceable, because the plaintiff was not competent at the time it was signed, and the statute of limitations was tolled by plaintiff’s mental disability. Plaintiff suffered a brain injury when he was struck by a car in 1991. A few months later plaintiff signed a release provided by an insurance adjuster in return for $5000.  The case languished for years and Supreme Court denied defendant’s motion for summary judgment dismissing the case in 2014. The court explained the relevant law:

With respect to the release signed by plaintiff, “the burden of proving incompetence rests upon the party asserting incapacity to enter into an agreement [and], to prevail, plaintiff was required to establish that [his] ‘mind was so affected as to render [him] wholly and absolutely incompetent to comprehend and understand the nature of the transaction'” … . The incapacity must be shown to exist at the time the pertinent document was executed … . Regarding the statute of limitations issue, the toll for “insanity” provided by CPLR 208 is narrowly interpreted, the concept of insanity is “equated with unsoundness of mind” … and encompasses “only those individuals who are unable to protect their legal rights because of an over-all inability to function in society” … . The mental incapacity must exist at or be caused by the accident and continue during the relevant time … . Lynch v Carlozzi, 2015 NY Slip Op 04893, 3rd Dept 6-11-15

 

Resignation in the Face of Immediate Termination Constituted Termination by Final Agency Action (Reviewable by a Court)

The Third Department upheld the determination of the Division of State Police Hearing Board and the termination of the petitioner (a State Trooper). The fact that petitioner had resigned did not deprive the court of its review power, despite the resulting absence of a “final agency determination.”  The petitioner had been shown the superintendent’s termination determination and was told he would be terminated if he did not immediately resign.  Petitioner resigned. The Third Department held that resignation under such a circumstance is effectively a termination by a final agency action and is therefore reveiwable by a court:

… [W]e consider respondents’ argument that, since petitioner resigned, there was no final agency action over which the Court has jurisdiction. Although a resignation “would ordinarily be beyond our review, exceptions exist where . . . the resignation was allegedly ineffective and involuntary” … . It is undisputed that the Superintendent had signed a written decision terminating petitioner’s employment. Significantly, the document was handed to petitioner and he was then told that he had 10 minutes to accept an “option” of resigning. Under the narrow circumstances, petitioner was effectively terminated by a final agency action when he was handed the signed termination document. Matter of Lyons v Superintendent of State Police, Joseph D’Amico, 2015 NY Slip Op 04892, 3rd Dept 6-11-15

 

Dry-Cleaning Chemical, PERC, Is Not “Petroleum” Within the Meaning of the Navigation Law—Plaintiff’s Suit for Clean-Up of PERC Under the Navigation Law Properly Dismissed

The Third Department determined the Navigation Law did not confer upon plaintiff a private right of action to sue for clean-up of PERC, a chemical used in dry cleaning.  Plaintiff is the owner of a shopping plaza and sued the estate of the owner a of dry cleaning business that was located in the plaza after PERC was found in the soil. The Navigation Law provides a private right of action to sue for the clean-up of “petroleum.” Although PERC is derived from petroleum, the court held PERC does not constitute petroleum within the meaning of the Navigation Law:

Essentially, plaintiff argues that this finding that PERC is petroleum derived is sufficient to support imposition of liability under the Navigation Law. This would constitute a novel expansion of the law; plaintiff does not cite to, nor can we find, any case in which PERC has been deemed to constitute petroleum under the Navigation Law. At least two other courts have come to the opposite conclusion, finding that PERC does not constitute petroleum under the Navigation Law … . As defendant argues, the vast and diverse range of products and substances derived from petroleum — many of which pose none of the same dangers as petroleum itself — would make a per se rule imposing liability for the discharge of any petroleum-derived substance unworkable. Accordingly, we find no error in Supreme Court’s determination that PERC is not petroleum as defined under Navigation Law article 12 … . Fairview Plaza, Inc. v Estate of Peter J. Rigos, 2015 NY Slip Op 04901, 3rd Dept 6-11-15

 

Industrial Code Provision Which Prohibits Allowing an Employee to Use an “Elevated Working Surface Which Is In a Slippery Condition” Does Not Apply to Snow Removal/The Injury—a Slip and Fall While Shoveling Snow—Was Caused by “An Integral Part of the Work”

Plaintiff was directed to remove snow from the work site and slipped and fell in the process. The Third Department affirmed the dismissal of plaintiff’s Labor Law 241(6) cause of action because the cited industrial code provision (12 NYCRR 23-1.7 (d)) did not apply to the work plaintiff was assigned. The industrial code prohibited allowing an employee to use an “elevated working surface which is in a slippery condition.” However, where the injury is caused by “an integral part of the work” being performed (here, removal of the slippery condition) that industrial code provision does not apply:

… [P]laintiff cites 12 NYCRR 23-1.7 (d), which prohibits an employer from allowing an employee to use an “elevated working surface which is in a slippery condition.” However, when the injury is caused by “an integral part of the work” being performed, 12 NYCRR 23.1-7 does not apply … . In other words, liability does not attach when the injury is caused by the “‘very condition [a plaintiff] was charged with removing'” … . … Here, plaintiff was injured due to the condition that he was specifically charged with removing … , Barros v Bette & Cring, LLC, 2015 NY Slip Op 04910, 3rd Dept 6-11-15

 

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Townhouse Residents, Members of a Community Homeowners’ Association, Entered an Implied Contract to Pay a Proportionate Share of the Fees for Authorized and Necessary Services in Connection with the Maintenance of the Townhouse Facilities

The Third Department affirmed Supreme Court’s ruling that defendants (townhouse residents) had entered an implied contract to pay a proportionate share of the full cost of maintaining the facilities. The defendants had refused to pay membership fees after a dispute with other residents arose.  The Third Department, applying the “business judgment rule,” determined the fees assessed by the plaintiffs were for authorized and necessary services provided by the plaintiff:

… [T]he Court of Appeals has made clear that an implied contract for a community homeowners’ association “includes the obligation to pay a proportionate share of the full cost of maintaining . . . facilities and services, not merely the reasonable value of those actually used by any particular resident” … . We review plaintiff’s action in undertaking such expenditures under the business judgment rule, which, in the absence of “claims of fraud, self-dealing, unconscionability, or other misconduct,” is limited to an inquiry of “whether the action was authorized and whether it was taken in good faith and in furtherance of the legitimate interests of the corporation” … . Bluff Point Townhouse Owners Assn., Inc. v Kapsokefalos, 2015 NY Slip Op 04905, 3rd Dept 6-11-15

 

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