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Sales Rep Was an Employee Entitled to Unemployment Insurance Benefits

The Third Department determined a cellular phone sales representative was an employee entitled to unemployment insurance benefits:

Whether an employer-employee relationship exists within the meaning of the unemployment insurance law “is a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence” … . “While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important” …. .

… The record establishes that Cellular Sales precluded sales representatives from selling competing products and its products outside of the “territory” absent its prior written consent, suggested, and in certain instances required, that products be sold at a minimum price, set sales goals for the sales representatives to attain and provided a script that sales representatives were to “[s]tick to . . . on every customer opportunity” regarding a certain cellular phone. In addition, Cellular Sales specified a certain dress code and provided that any sales representative not meeting such dress code in its store would be “address[ed]” by a leader. Cellular Sales also required sales representatives to, among other things, complete certain mandatory training that it paid for, to “strictly comply” with its directives regarding use, disclosure and application of marketing information and to know and follow certain “procedures for the market.” …[T]he record establishes that Cellular Sales dictated the number of sales representatives that would work in the store on a given day, provided each sales representative with a Cellular Sales email address and business cards, required, for a certain period of time, that sales representatives send customers thank you cards that it provided and supplied the sales representatives with products for demonstrations. The record also indicates that Cellular Sales reprimanded sales representatives regarding tardiness, held mandatory meetings, required sale representatives who chose to work in the store to submit their availability and requests for days off and, once a shift was assigned, required a sales representative to secure coverage if he or she could not work on the assigned shift. Matter of Pratt (Cellular Sales of N.Y., LLC–Commissioner of Labor), 2015 NY Slip Op 04549, 3rd Dept 5-28-15

 

Customer Service Representative Working from Home Properly Determined to Be an Employee

The Third Department determined there was substantial evidence to support the finding claimant was an employee of PRF.  Claimant worked from home booking reservations at off-site parking facilities near airports:

Although claimant and other representatives worked from home and were required to provide their own Internet service, PRF furnished them with special phones that utilized the voice over Internet protocol necessary to assist customers. In addition, PRF provided training on use of the phones as well as the services that it provided to its customers. Although PRF did not establish set hours and allowed the representatives to hold other jobs, it set up a schedule online that the representatives completed by selecting the hours that they wished to work, and PRF emailed them their final schedules. Claimant and the other representatives submitted invoices for hours worked that PRF would, in turn, check against their work schedules. Notably, PRF was able to monitor the representatives while they were assisting customers to verify that they were working and to ensure quality service. Moreover, PRF handled customer complaints and took corrective action where necessary. Matter of Aussicker (Park Ride Fly USA–Commissioner of Labor), 2015 NY Slip Op 04376, 3rd Dept 5-21-15

 

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Parol Evidence Demonstrated What Appeared to Be a Contract Was Not—There Was No Meeting of the Minds Re: the Consideration for the Contract

The Third Department, over a dissent, reversing Supreme Court, determined extrinsic evidence should have been considered on the issue whether a contract was ever formed, i.e., whether there was a “meeting of the minds.” Based upon that extrinsic evidence, the breach of contract complaint was dismissed by the Third Department. The defendant argued that the contract was premised upon the understanding plaintiff would execute a power of attorney, which plaintiff refused to do. The parol evidence, emails, demonstrated that defendant agreed to the terms of the contract in return for the power of attorney executed by the plaintiff.  The power of attorney was the consideration for the contract. Therefore, the parol evidence demonstrated no contract was ever formed:

In order “‘[t]o create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms’ and consideration” … . Defendant is not arguing that a valid agreement between the parties included an unstated commitment by plaintiff to execute the power of attorney; instead, she is asserting that she proposed an agreement upon that understanding, but that there was never a meeting of the minds on the issue sufficient to give rise to a valid agreement. Accordingly, she was entitled to use parol evidence “to show that what appears to be a contractual obligation is, in fact, no obligation at all”… . Libasci v Singares, 2015 NY Slip Op 04357, 3rd Dept 5-21-15

 

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Driver of Street Sweeper Which Struck Plaintiff’s Car Entitled to Statutory Immunity

The Third Department determined the driver of a street sweeper was engaged in highway work (re: Vehicle and Traffic Law 1103) at the time the sweeper collided with plaintiff’s vehicle.  Therefore the “reckless disregard for the safety of others” standard of care applied to the sweeper driver. The driver was working on a highway and had to make several passes to clean up spilled gravel.  Because it was a divided highway, the sweeper driver had to make a u-turn and return on the opposite side of highway to make another pass.  The immunity afforded by Vehicle and Traffic Law 1103 applies only when actual work on the highway is being done, not when a worker is driving to or from the work site. The Third Department held that the statutory immunity was available here, even though the accident did not occur as the sweeper was engaged, because the driver was forced to use a circuitous route to complete the assigned task:

With exceptions not applicable here, the safety rules and regulations set forth in the Vehicle and Traffic Law do “not apply to persons . . . while actually engaged in work on a highway nor . . . to hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway but shall apply to such persons and vehicles when traveling to or from such hazardous operation” (Vehicle and Traffic Law § 1103 [b]…). If the person is “actually engaged” in work or a hazardous operation, the applicable standard of care is “reckless disregard for the safety of others,” but the exception does not apply where the person is traveling to or from the hazardous operation … . Matsch v Chemung County Dept. of Pub. Works, 2015 NY Slip Op 04374, 3rd Dept 5-21-15

 

Documents Relevant to a Civil Investigation by the Department of Taxation and Finance Were Not Protected from FOIL Disclosure by a Statute which Specifically Relates to Criminal Investigations

The Third Department affirmed Supreme Court’s determination that documents which were pertinent to a civil, as opposed to a criminal, investigation, were not shielded from disclosure by Public Officers Law 87(2)(e)(iv).  The petitioners were notified they were subject to an “interrogation” by the Department of Taxation and Finance about job-related expense deductions. Under a FOIL request, the petitioners sought documents which included “interrogation” questions.  Because Public Officers Law 87(2)(e)(iv) protects such documents from disclosure only if they are part of a criminal investigation, Supreme Court properly held the documents should be disclosed:

“Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant, unless the requested documents fall within one of the exemptions set forth in Public Officers Law § 87 (2)” … . In this regard, “[e]xemptions are narrowly construed, with the agency that seeks to prevent disclosure bearing the burden of demonstrating that the requested material falls squarely within an exemption by articulating a particularized and specific justification for denying access” … .

Here, in denying access to the 68 pages of proposed interrogation questions, respondents relied exclusively upon Public Officers Law § 87 (2) (e) (iv), which exempts from disclosure “records or portions thereof that . . . reveal criminal investigative techniques or procedures, except routine techniques and procedures.” The statute — on its face — references criminal investigative techniques or procedures, and prevailing case law suggests that this exemption applies only to a FOIL request that, at the very least, has its genesis in an underlying criminal investigation or prosecution … . Matter of Aurigemma v New York State Dept. of Taxation & Fin., 2015 NY Slip Op 04356, 3rd Dept 5-21-15

 

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Town Planning Board’s Approval of the Installation of Wind Turbines Should Not Have Been Reversed—Board Properly Considered All the Factors Mandated by the Land Use Ordinance and Supreme Court Did Not Have the Authority to Substitute Its Judgment for the Board’s

The Third Department, reversing Supreme Court, determined that the town planning board had properly issued a special use permit for the installation of wind turbines. The court noted that the burden of proof on the owner for seeking a special exception (special use permit) is lower than the burden for seeking a variance.  The court held that all of the analytical factors mandated by the land use ordinance had been properly considered by the board and Supreme Court did not have the authority to substitute its own judgment for the board’s:

The Land Use Ordinance permits specified uses in the area where the project is to be built and allows “[a]ll other uses” for which a special use permit is obtained. Contrary to petitioners’ assertion, while the project is not allowed as of right in the district, the fact that it is “permitted . . . is ‘tantamount to a legislative finding that [it] is in harmony with the general zoning plan and will not adversely affect the neighborhood'” … . As such, “the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a variance, [with] the former only being required to show compliance with any legislatively imposed conditions on an otherwise permitted use” … . The determination of the Board that those conditions had been met here will be upheld if it “has a rational basis and is supported by substantial evidence in the record” … .

The parties do not dispute upon this appeal, and we agree with Supreme Court, that the Board’s findings with regard to six of the eight conditions enumerated in the Land Use Ordinance are supported by substantial evidence. The first of the remaining two conditions requires that the “[l]ocation, use and size of structure, nature and intensity of operations involved, size of site in relation to it, and location of site with respect to existing or future streets giving access, are such that it will be in harmony with orderly development of the district.” The second requires that the “[l]ocation, nature and height of buildings, walls, fences and signs will not discourage the appropriate development and use of adjacent land and buildings or impair their value.”

With regard to those two conditions, the wind turbines are almost 500 feet tall when the rotor blades are fully vertical [FN2]. Notwithstanding their size, the Board pointed out that the turbines are located in an area where high-voltage electric transmission lines have already altered the landscape, and noted that other factors minimized the impact of the project upon the viewshed. The project will have minimal impact upon traffic after construction is completed and, given the economic benefits that will accrue to participating landowners, the Board found that it would help to preserve existing uses of the surrounding properties. Moreover, the Board cited a study in the record finding that property values would not be impacted by the project. The Board also pointed to proof that the applicant had entered into setback agreements with nonparticipating landowners who resided within 2,000 feet of the turbines, further ensuring that the project would not impair the use of nearby parcels or development in the zoning district. Supreme Court pointed to conflicting evidence submitted by petitioners with regard to both conditions but, even if that evidence was properly considered, “a court may not substitute its own judgment” where substantial evidence supports the determination of the Board … . Matter of Frigault v Town of Richfield Planning Bd., 2015 NY Slip Op 04355, 3rd Dept 5-21-15

 

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Insanity Acquittee Not Entitled to Blanket Sealing of Record of a Recommitment Proceeding But Is Entitled to Sealing of His Clinical Record

The Third Department determined respondent, who is subject to Criminal Procedure Law 330.20 based on his acquittal of criminal charges by reason of mental disease or defect, was not entitled to a blanket sealing of the record of a recommitment proceeding pursuant to Mental Hygiene Law 9.31 (F), but was entitled to the sealing of his clinical record pursuant to Mental Hygiene Law 33.13:

Here, respondent was subject to CPL 330.20 based upon his acquittal of criminal charges by reason of mental disease or defect. A lack of responsibility for criminal conduct by reason of mental disease or defect is an affirmative defense that a defendant must raise and prove by a preponderance of the evidence (see Penal Law §§ 25.00 [2]; 40.15). By avoiding criminal penalties and becoming subject to CPL 330.20, “this places insanity acquittees in a significantly different posture than involuntarily committed civil patients” …, and “rational differences between procedures for commitment and release applicable to defendants found not responsible and persons involuntarily committed under the Mental Hygiene Law are justifiable” … . In light of this distinction, we agree with Supreme Court that the blanket sealing of the record that is specifically applicable to the involuntarily admission of civil patients under Mental Hygiene Law § 9.31 (f) is not applicable to respondent … .

We reach a different conclusion, however, regarding defendant’s clinical record. Pursuant to Mental Hygiene Law § 33.13, a clinical record for each patient or client shall be kept containing “information on all matters relating to the admission, legal status, care, and treatment of the patient or client and shall include all pertinent documents relating to the patient or client” (Mental Hygiene Law § 33.13 [a]) and “such information about patients or clients . . . shall not be a public record,” subject to certain exceptions (Mental Hygiene Law § 33.13 [c]). Although Supreme Court ruled that respondent’s clinical treatment records, related hospital records and unrelated medical records must be sealed, it is unclear if other information intended to be included in his clinical record under Mental Hygiene Law § 33.13 (a) would be made public. In our view, respondent is entitled to the full protection of Mental Hygiene Law § 33.13, and all information contained in his clinical record, as defined in Mental Hygiene Law § 33.13 (a), shall not be made public, subject to the statutory exceptions (see Mental Hygiene Law § 33.13 [c]). Matter of John Z. (John Z.), 2015 NY Slip Op 04361, 3rd Dept 5-21-15

 

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Seasonal Residents Properly Deemed “Residents” of a Town for Election Purposes

The Third Department, in a full-fledged opinion by Justice Peters, determined that seasonal residents of a condominium were properly deemed “residents” of the town where the condominium is located for voting purposes under the Election Law. The court noted that, under the Election Law, a voter may have two residences and choose one of them for election purposes. The Election Law requires only that the voter have legitimate, significant and continuing attachments to the residence and there be no “aura of sham:”

The [County Election] Board’s determination upholding the voter registrations at issue constituted presumptive evidence of the … voters’ residence for voting purposes; thus, petitioner was saddled with the weighty burden of proffering sufficient evidence to overcome that presumption (see Election Law § 5-104 [2]…). The Election Law defines “residence” as “that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return” (Election Law § 1-104 [22]…). As the courts of this state have repeatedly explained, the Election Law “does not preclude a person from having two residences and choosing one for election purposes provided he or she has ‘legitimate, significant and continuing attachments’ to that residence” … . “The crucial [factor in the] determination [of] whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent, coupled with physical presence ‘without any aura of sham'” … . Matter of Maas v Gaebel, 2015 NY Slip Op 04353, 3rd Dept 5-21-15

 

Claimant Did Not Demonstrate a Compelling Reason to Close His Business—Unemployment Insurance Benefits Denied

The Third Department determined a business owner who voluntarily closed his business was not entitled to unemployment insurance benefits because a compelling reason for the closure was not demonstrated:

“When a claimant closes an operating business, the issue of whether he or she is qualified to receive benefits turns upon whether there was a compelling reason to close the business” … . Here, claimant testified that, beginning in 2009, his business began to decline and that, between 2009 and 2012, there was a 50% drop-off of catering contracts. The corporation’s tax returns reflect, however, gross receipts of $297,167 in 2009, with a net income of $2,522, gross receipts of $281,397 in 2010, with a net income of $4,997, and gross receipts of $279,755 in 2011, with a net income of $764. Claimant’s individual tax returns reveal that he was paid a moderate salary in each of these three years. At the time he closed the business at the end of August 2012, claimant estimated corporate gross receipts of $220,970 for the year to date, with a net income of $26,620, after payment of claimant’s salary, in a sum that was lower than the prior years, but was not an extreme departure from his prior earnings. Although the decline in business had required claimant to reduce personnel, there was no proof that the business was otherwise unable to meet its financial obligations. Claimant owned the building where he ran the business, and there was no mortgage; the premises were rented to the business for favorable tax treatment. Although claimant testified that, at the time he closed the business he had no bookings for October 2012 to December 2012, he also testified that his business was seasonal and that this was generally a slow time. In our view, the record thus establishes that this was a viable business, and the Board’s decision is supported by substantial evidence … . Matter of O’Connell (Commissioner of Labor), 2015 NY Slip Op 04176, 3rd Dept 5-14-15

 

Alterations to Easement Okay—They Did Not Interfere With the Easement-Holder’s Right of Passage

The Third Department determined the alterations made to an ingress and egress easement along a private road, including the installation of a gate, were not actionable because they did not interfere with the easement holder’s right of passage:

It is well settled that “[t]he extent and nature of an easement must be determined by the language contained in the grant, aided where necessary by any circumstances tending to manifest the intent of the parties” … . Here, the easement specifically granted plaintiff and defendants the right of “ingress and egress and for electric, gas, water, sewer and similar services over, under and along [the] farm road” on the McLean property. Importantly then, “[a] right of way along a private road belonging to another person does not give the [easement holder] a right that the road shall be in no respect altered or the width decreased, for his [or her] right . . . is merely a right to pass with the convenience to which he [or she] has been accustomed” … . In the absence of a demonstrated intent to provide otherwise, an easement of ingress and egress may be narrowed, covered, gated or fenced off, “‘so long as the easement holder’s right of passage is not impaired'”… . Boice v Hirschbihl, 2015 NY Slip Op 04191, 3rd Dept 5-14-15

 

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