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Courts Do Not Defer to an Agency’s Construction of a Statute—Workers’ Compensation Board’s Determination, Based Upon the Construction of Workers’ Compensation Law 25, Reversed

In the context of a “conciliation process” pursuant to Workers’ Compensation Law 25, the Third Department explained the court’s role in reviewing the determination of an agency when statutory construction is the sole issue. Unlike the factual determinations of an agency, to which courts must defer, no such deference is afforded an agency’s construction of a statute. Reversing the Workers’ Compensation Board, the Third Department held that the statute unambiguously entitled claimant to a penalty imposed upon the employer for failure to timely make compensation payments:

Where, as here, the issue is one of pure statutory construction, no deference need be accorded to the Board’s interpretation of the statutory framework … . As to our construction of Workers’ Compensation Law § 25, “the text of a statute is the best evidence of legislative intent and, where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” … . Further, the provisions within that statute must be “construed together unless a contrary legislative intent is expressed, and courts must harmonize the related provisions in a way that renders them compatible” … .

Turning to the relevant statutory provisions, Workers’ Compensation Law § 25 has two mechanisms for penalizing employers or workers’ compensation carriers who fail to make timely payment of compensation following a decision. The first provides that, “[i]f the employer or its insurance carrier shall fail to make payments of compensation according to the terms of the award within [10] days . . ., there shall be imposed a penalty equal to [20%] of the unpaid compensation which shall be paid to the injured worker or his or her dependents” (Workers’ Compensation Law § 25 [3] [f]). The second provides that, if payment is not made within 10 days of a proposed conciliation decision becoming final, “the chair [of the Board] shall impose . . . a fine of [$500] for failure to live up to the terms of the decision upon verification that payment has not been timely made” (Workers’ Compensation Law § 25 [2-b] [h]; see 12 NYCRR 312.5 [i]).

The statutory scheme unambiguously entitles claimant to the penalty described in Workers’ Compensation Law § 25 (3) (f). Matter of Liberius v New York City Health & Hosps. Corp., 2015 NY Slip Op 04706, 3rd Dept 6-4-15

 

Good, Fact-Based Analysis of the Requirements for Adverse Possession

Reversing Supreme Court’s grant of summary judgment to the plaintiffs on their adverse-possession claim, the Third Department determined a question of fact had been raised about whether plaintiffs’ use of the disputed land was with the defendants’ permission, which would defeat the “hostility” element of adverse possession.  The Third Department offered a detailed fact-based analysis which provides an excellent lesson on the law of adverse possession. The court noted, on the issue of exclusivity, the claim that defendants occasionally maintained the disputed property during the plaintiffs’ absence was not enough to raise a question of fact about the plaintiffs’ exclusive use of the property:

To establish their claim for adverse possession, plaintiffs are required to prove by clear and convincing evidence that their possession of the disputed property “[was] hostile and under a claim of right, actual, open and notorious, exclusive and continuous for the statutory period of 10 years” … . Additionally, where, as here, the adverse possession claim is not based upon a written instrument, the party asserting the claim “must establish that the land was ‘usually cultivated or improved’ or ‘protected by a substantial inclosure'” … .

As for [defendant’s] alleged maintenance of the disputed property during plaintiffs’ absences, “exclusivity is not defeated even if the true owner makes occasional forays onto the property . . .. [A]ll that is required is possession consistent with the nature of the property so as to indicate exclusive ownership” (1-5 Warren’s Weed, New York Real Property § 5.33 [2015]). In our view, plaintiffs’ exclusive, regular use and maintenance of the disputed property during their periods of occupation were consistent with the seasonal nature of their property. The occasional maintenance that defendants allegedly performed or directed during plaintiffs’ absences — which was performed without plaintiffs’ knowledge and did not interfere in any way with plaintiffs’ possession or use of the disputed property — was insufficient to meet defendants’ prima facie burden to establish that plaintiffs’ use of the property was not exclusive … . Bergmann v Spallane, 2015 NY Slip Op 04713, 3rd Dept 6-4-15

 

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Statutory Prohibition of Court Review of Civil Service Commission’s Determination (Where the Employee Elects to Appeal to the Commission Before Seeking Judicial Review) Does Not Apply When Constitutional Rights Are Implicated or Where the Agency Has Acted Illegally or In Excess of Its Jurisdiction

The Third Department determined, despite a statutory provision prohibiting judicial review when the employee elects to appeal to the Civil Service Commission before seeking judicial review, the courts have the power to review the agency’s determination when the agency has acted in excess of its jurisdiction. Here the petitioner asserted her employment was terminated based on charges brought after the statute of limitations on those charges had passed. The Third Department agreed.  Although there is an exception to the application of the one-year statute of limitations when the charges constitute crimes, here the allegations of misconduct did not include the requisite mens rea for the crime of official misconduct (intent to gain a benefit and knowledge the conduct was unauthorized).  Therefore the one-year statute of limitations applied. With respect to the power to review the agency’s determination, the Third Department wrote:

Civil Service Law § 76 (3) provides that where, as here, an employee has elected to appeal to respondent before seeking judicial review, “[t]he decision of [respondent] shall be final and conclusive, and not subject to further review in any court” (see also Civil Service Law § 76 [1]). Such explicit statutory language ordinarily bars further appellate review … . However, statutory preclusion of all judicial review of the decisions rendered by an administrative agency in every circumstance would constitute a grant of unlimited and potentially arbitrary power too great for the law to countenance … . Thus, even when proscribed by statute, judicial review is mandated when constitutional rights are implicated by an administrative decision or “when the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction”… . Matter of De Guzman v State of New York Civ. Serv. Commn., 2015 NY Slip Op 04712, 3rd Dept 6-4-15

 

Individuals with Disabilities Education Act (IDEA) Does Not Confer a Private Right of Action Upon Local School Districts to Challenge IDEA-Related Rulings by the State Education Department (SED)

The Third Department, in a full-fledged opinion by Justice Peters, determined the Individuals with Disabilities Education Act (IDEA) did not give local educational agencies (LEA’s) (here a local school district) a private right of action to challenge a ruling by the State Education Department (SED) .  Here the SED found that the LEA’s dispute resolution practices violated state laws and regulations promulgated in accordance with the IDEA and ordered corrective measures. The LEA then challenged the SED’s rulings in an Article 78 action. The Third Department noted that the IDEA does not expressly confer a right of private action on LEA’s in this context and therefore whether such a right exists depends upon congressional intent. Because the IDEA confers a private right of action upon a specialized class, i.e., “any party aggrieved” by IDEA-related administrative proceedings which involve due process afforded a particular child, it follows that Congress did not intend to confer such a right upon LEA’s:

… Congress created procedural safeguards to ensure that students with disabilities receive a free appropriate public education and, in doing so, expressly granted a private right of action to “any party aggrieved” by an SEA’s administrative findings or decision resolving a due process complaint challenging “any matter relating to the identification, evaluation or educational placement of [a particular] child, or the provision of a free appropriate public education to such child” (20 USC § 1415 [b] [6] [A]; [f], [g], [i] [2] [A]; see also Education Law § 4404; 8 NYCRR 200.5 [i], [j], [k], [l])[FN2]. Since the IDEA includes an express right of action in favor of a specific class of persons, it is logical to assume that, had Congress intended to bestow upon LEAs a right of action to challenge an SEA’s regulatory and enforcement actions, it would have expressly done so … .

Further evidence of a lack of Congressional intent can be found in the hierarchal regulatory and enforcement structure created by the IDEA, which requires the federal Secretary of Education to monitor the states’ implementation of IDEA mandates and imposes upon the states corresponding regulatory and enforcement responsibilities over LEAs (see 20 USC § 1412 [a] [11]; § 1416 [a] [3]; 34 CFR 300.600, 300.603). The delegation of regulatory and enforcement power to the Secretary of Education and the states, but not to LEAs, suggests that Congress specifically intended to deny LEAs a right of action to challenge an SEA’s compliance with the IDEA … . Moreover, it would be inconsistent for Congress to implicitly create this right of action, as doing so would divest the Secretary of Education and the states of their regulatory and enforcement authority and would transfer that power to the Judiciary … . Matter of East Ramapo Cent. Sch. Dist. v King, 2015 NY Slip Op 04703, 3rd Dept 6-4-15

 

Injury Caused by an Unsecured Scaffolding Component Which Fell Approximately Two-Feet, Striking Plaintiff, Was Not the Type of Elevation-Related Risk Which Is Covered by Labor Law 240 (1)

Plaintiff was injured when a component of scaffolding fell about two-feet and struck him.  The Third Department determined the incident was not the result of a circumstance covered by Labor Law 240 (1) (the absence of statutorily-required safety equipment), even though the incident was “gravity-related.”  However, the Labor Law 246 (1) cause of action, alleging a violation of a provision of the Industrial Code, and the Labor Law 200 cause of action against the general contractor which supervised and controlled the work, should not have been dismissed. With respect ot the Labor Law 240 (1) cause of action, the court explained:

Labor Law § 240 (1) “imposes absolute liability on building owners and contractors whose failure to ‘provide proper protection to workers employed on a construction site’ proximately causes injury to a worker” … . The statute is intended to provide “extraordinary protections [applicable] only to a narrow class of dangers. More specifically, [the statute] relates only to special hazards presenting elevation-related risks” … . Accordingly, “section 240 (1) does not automatically apply simply because an object fell and injured a worker; ‘[a] plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute'” … . Where, as here, an injury is caused by a falling object, liability “depends on whether the injured worker’s task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against” … . An elevation-related risk arises only where there is a “physically significant elevation differential” … . In order to determine whether a height differential is physically significant, we must consider “the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent” … . Without a significant elevation differential, Labor Law § 240 (1) does not apply, even if the injury is caused by the application of gravity on an object … .

Here, “tak[ing] into account the practical differences between the usual and ordinary dangers of a construction site, and . . . the extraordinary elevation risks envisioned by [the statute],” as we must …, we find that plaintiff’s injury, caused by the tipping frame or scaffold component (see 12 NYCRR 23-1.4), did not fall within the scope of Labor Law § 240 (1). Our conclusion remains even if we accept it to be true that the frame was part of a scaffold that was in the process of being assembled or dismantled … . The record indicates that, at most, the crossbar of the frame, which was upright but not connected to any other component or supporting any planking, was two feet above plaintiff’s head. In our view, the facts do not present a physically significant height differential and, while plaintiff was exposed to a general workplace hazard, he was not exposed to an elevation-related risk within the ambit of Labor Law § 240 (1) … . As such, this cause of action should be dismissed. Christiansen v Bonacio Constr., Inc., 2015 NY Slip Op 04700, 3rd Dept 6-4-15

 

Dismissal of a Summary Judgment Motion as “Premature” Requires an Evidentiary Showing that Material Information Is In the Exclusive Possession and Control of the Moving Party

In the course of a decision concerning an easement and land ownership, the Third Department explained the proof requirements for a claim that a summary judgment motion should be dismissed as “premature.” The essence of the “premature” argument is that material facts are within the exclusive knowledge and possession of the moving party. The argument, to succeed, must be supported by an evidentiary showing. Here defendant argued that plaintiff failed to respond to certain discovery demands, but did not take the next step and demonstrate how the failure to respond deprived him of material information in plaintiff’s exclusive possession:

… [T]here was no basis to deny plaintiff’s summary judgment motion as premature. “Although a motion for summary judgment may be opposed with the claim that facts essential to justify opposition may exist but that such material facts are within the exclusive knowledge and possession of the moving party, the party opposing the motion must make an evidentiary showing to support that conclusion” … . Defendant pointed out that plaintiff failed to respond to certain discovery demands, but did not take the essential next step and show that her failure to do so deprived him of material information in her exclusive possession … . Bailey v Dimick, 2015 NY Slip Op 04704, 3rd Dept 6-4-15

 

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Elements of a Defective Design Cause of Action Described

The Third Department determined questions of fact had been raised about whether a machine was defectively designed. Plaintiff was injured when he attempted to make adjustments while the machine was running.  There was evidence the adjustments could have been made safely using another access point. The court provided a good explanation of the elements of a defective-design cause of action:

Liability for a defectively designed product “attaches when the product, as designed, presents an unreasonable risk of harm to the user” … . A successful cause of action for defective design exists where a plaintiff is able to establish “that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury” … . To demonstrate a product was not “reasonably safe,” the injured party must demonstrate both that there was a substantial likelihood of harm and that “it was feasible to design the product in a safer manner” .. . A claim may be defeated where a defendant demonstrates that the product’s “utility outweighs its risks [because] the product has been designed so that the risks are reduced to the greatest extent possible while retaining the product’s inherent usefulness at an acceptable cost” … . This “risk-utility analysis” requires consideration of “‘(1) the product’s utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product’s potential danger that can reasonably be attributed to the injured user, and (7) the manufacturer’s ability to spread the cost of any safety-related design changes'” … . Generally, the risk/utility analysis presents a factual question for a jury … . Barclay v Techno-Design, Inc., 2015 NY Slip Op 04708, 3rd Dept 6-4-15

 

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Absence of Privity Between Beneficiary of an Estate and the Attorneys Who Represented the Estate in Medical Malpractice and Wrongful Death Actions Precluded Legal Malpractice Action by Beneficiary

The Third Department determined the plaintiff-beneficiary of an estate represented by defendants-attorneys in medical malpractice and wrongful death actions could not bring a legal malpractice action against the attorneys (based upon the medical malpractice and wrongful death actions) because no attorney-client relationship existed. Absent fraud or collusion, the absence of privity between the beneficiary and the attorneys precluded the legal malpractice action:

There is no question that a legal malpractice claim requires — in the first instance — “the existence of an attorney-client relationship” … . Plaintiff does not contend, and the record does not otherwise reflect, that he had a contractual relationship with defendants. Rather, plaintiff argues that because defendants represented [plaintiff’s mother] in her capacity as the administrator of decedent’s estate in both the medical malpractice and wrongful death actions and plaintiff, in turn, is a beneficiary of decedent’s estate, it necessarily follows that defendants were duty bound to represent plaintiff’s best interests in the context of those two actions. The flaw in plaintiff’s argument on this point is that “[i]n New York, a third party, without privity, cannot maintain a claim against an attorney in professional negligence, absent fraud, collusion, malicious acts or other special circumstances” … . Although a limited exception has been carved out with respect to an action brought by the personal representative of an estate, “strict privity remains a bar against beneficiaries’ and other third-party individuals’ estate planning malpractice claims absent fraud or other circumstances” … . Sutch v Sutch-Lenz, 2015 NY Slip Op 04692, 3rd Dept 6-4-15

 

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Length of Probationary Term for New County Employees Is Arbitrable Under the Two-Prong Test

Reversing Supreme Court, the Third Department determined the grievance concerning the length of the probationary period for new employees was arbitrable. The union contended the county had imposed a longer period of probation on a new employee than the 26 weeks allowed by the collective bargaining agreement (CBA). The county civil service commission, prior to the execution of the CBA, had adopted a resolution describing the period of probation for new employees as ranging from 8 to 52 to weeks. The Third Department determined there was no statutory, constitutional or public policy prohibition to arbitration of the grievance. And the broad arbitration clause in the CBA covered the grievance at issue:

The threshold determination of whether a dispute is arbitrable is well settled. Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance. If no prohibition exists, we then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement. If there is a prohibition, our inquiry ends and an arbitrator cannot act” … .

To be sure, “[w]hen a county civil service commission, possessing the requisite authority, promulgates a rule establishing the length of a probationary term of service, that rule has the effect of law”… , and the public employer and the union cannot negotiate a contrary provision in a CBA. Here, however, the CBA executed by the County and the Union long after the Commission modified the probationary term is not inconsistent with the new Commission rule, as the probationary term negotiated by the parties falls squarely within the range promulgated by the Commission. Therefore, we discern no statutory or public policy bar to arbitration of the grievance in the first instance … . Hence, we are satisfied that the parties may in fact arbitrate the underlying dispute. As to the second inquiry, i.e., whether the parties actually agreed to arbitrate this particular dispute, we note that the parties’ CBA contains a broad arbitration clause, which encompasses “any claimed violation, misrepresentation or improper application” of the CBA. In light of such language, we similarly are persuaded that the Union’s grievance falls within the scope of disputes that the parties agreed to submit to arbitration … . Matter of County of Greene (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Greene County Unit 7000, Greene County Local 820), 2015 NY Slip Op 04709, 3rd Dept 6-4-15

 

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Defendant Would Not Admit to the Commission of Certain Elements of the Offense to Which He Pled Guilty—Vacation of Plea as Involuntary Was Required, Despite Lack of Preservation and a Waiver of Appeal

The Third Department determined defendant’s guilty plea must be vacated, despite a failure to preserve the error and a waiver of appeal. During the plea allocution, defendant denied elements of the offense to which he was pleading guilty (strangulation in the second degree). Defendant denied that the victim experienced a loss of consciousness or any injury, and denied he had the intent to impede the breathing of the victim.  The guilty plea, therefore, was not knowing, intelligent and voluntary (constituting an exception to the “preservation of error” requirement):

Although defendant’s challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal …, it is unpreserved for our review in the absence of an appropriate postallocution motion … . Upon reviewing the record, however, we are persuaded that the narrow exception to the preservation requirement has been triggered here, as defendant made numerous statements during the course of the plea colloquy that negated essential elements of the crime, thereby calling into question the voluntariness of his plea … . * * *

Simply put, defendant’s responses to the questions posed during the plea colloquy negated more than one element of the charged crime, thereby casting doubt upon his guilt. Inasmuch as further inquiry by County Court neither resolved that doubt nor otherwise established that the resulting plea was knowing, intelligent and voluntary … , it should not have been accepted by the court and must now be vacated … . People v Mcmillan, 2015 NY Slip Op 04680, 3rd Dept 6-4-15

 

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