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Cell Phone In Possession of Inmate Met the Definition of “Dangerous Contraband” in the Context of a “Promoting Prison Contraband” Charge

The Third Department, in a full-fledged opinion by Justice Egan, determined that a cell phone constituted “dangerous contraband” within the meaning of “promoting prison contraband in the first degree.”  The testimony of the supervising superintendent about the protections put in place concerning the recording and restrictions on inmate phone calls were sufficient to demonstrate the cell phone met the definition of “dangerous contraband:”

In this regard, the Court of Appeals has instructed that “the test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security” … . Notably, “the distinction between contraband and dangerous contraband” does not turn upon “whether an item is legal or illegal outside of prison . . . [as] [i]t is obvious that an item, such as a razor, may be perfectly legal outside prison and yet constitute dangerous contraband when introduced into that unpredictable environment” … . Similarly, as our case law makes clear, the item in question need not be inherently dangerous in order to qualify as dangerous contraband. Indeed, although weapons are perhaps the most commonly recognized source of dangerous contraband in a prison setting … , courts have — applying the Finley test — reached the very same conclusion with respect to other items made, obtained or possessed by prison inmates, including illegal quantities of drugs …, a disposable Bic lighter …  and hand-drawn maps or knotted links of wire that could be used to facilitate an escape …. Although the majority in Finley did not expressly address this issue, Judge Pigott opined in his concurrence/dissent that, “[i]f the contraband at issue is not inherently dangerous . . . , the People must present specific, competent proof from which the trier of fact may infer that use of the contraband could potentially create a dangerous situation inside the facility” … . As a cell phone admittedly is not an inherently dangerous item, the question is whether the People adduced sufficient proof to establish the cell phone’s potential to be used in such a pernicious manner as to elevate it to the level of dangerous contraband. People v Green, 2014 NY Slip Op 03303, 3rd Dept 5-8-14

 

Police Officer’s Convictions for “Criminal Diversion” (Obtaining Another’s Prescription Medication), and “Official Misconduct” Not Supported by Legally Sufficient Evidence

The Third Department reversed defendant’s convictions for criminal diversion and official misconduct because the offenses were not supported by legally sufficient evidence.  The defendant, a police officer, was accused of obtaining someone’s prescription drugs in exchange for something of pecuniary value (criminal diversion).  She was also accused of flashing her badge to a pharmacist and asking the pharmacist to hurry up with a prescription drug (official misconduct).  The Third Department determined the “criminal diversion” charge was not supported by evidence the drug involved (a muscle relaxant) was a “prescription medication.”  And, in the absence of evidence the defendant knew that flashing her badge constituted an unauthorized exercise of her official functions, there was not sufficient evidence to support the “official misconduct” charge. People v Barnes, 2014 NY Slip Op 03310, 3rd Dept 5-8-14

 

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Division of Parole’s Mistake Which Resulted in the Incarceration of the Claimant Was Privileged—Claimant’s Action for False Imprisonment Properly Dismissed

The Third Department, in a full-fledged opinion by Justice Peters, determined a mistake made by the Division of Parole, which resulted in claimant’s prosecution and imprisonment for a violation of parole at a time when his parole had been terminated, was privileged.  Therefore, the claimant’s action for false imprisonment was properly dismissed:

To establish a claim of false imprisonment, claimant must demonstrate, among other things, that the confinement was not privileged … . “To that end, it is settled that ‘[a]n otherwise unlawful detention is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction or parole authorities'” … . Here, there is no dispute that claimant’s confinement was pursuant to parole violation warrants that were valid on their face. Yet, according to claimant, because his sentence should have terminated by law on March 10, 2005, the Division acted without jurisdiction when it commenced the April 2005 parole revocation proceeding, revoked his parole and thereafter subjected him to various periods of incarceration.

“‘There is a distinction between acts performed in excess of jurisdiction and acts performed in the clear absence of any jurisdiction over the subject matter. The former is privileged, the latter is not'” … .

While the [Division of Parole’s] ….interpretation of Executive Law former § 259-j (3-a) may well have been mistaken, any such “error in judgment neither negates nor defeats defendant’s claim of privilege” … . The statute vested the Division with the authority to grant a termination of sentence under certain described circumstances, and interpreting the provisions that implement such power is a legitimate part of the Division’s function .. . The Division made a reasoned judgment …[which] was neither inconsistent with nor contrary to extant judicial authority … . Thus, at most, the Division “acted in excess of its jurisdiction, not in the complete absence [thereof], and its conduct therefore was privileged”… . Marsh v State of New York, 2014 NY Slip Op 03320, 3rd Dept 5-8-14

 

Unexplained Collapse of Worker on the Job Properly Presumed to Arise Out of Employment

The Third Department determined the worker’s death was compensable.  The worker, who had an enlarged heart, collapsed on the job and later died. There was evidence that the heart arrhythmia which may have caused death may have been work-related:

“‘Unexplained or unwitnessed accidents which occur in the course of employment are presumed, pursuant to Workers’ Compensation Law § 21 (1), to arise out of such employment'” … . In order to rebut the presumption, the employer was required to come forward with substantial evidence demonstrating that decedent’s death was not work-related … .

The employer relies on the autopsy report and an independent medical report by Stephen Nash, a cardiologist who reviewed the records on the employer’s behalf. Nash opined that decedent’s death was caused by a cardiac arrhythmia superimposed on the underlying condition of his enlarged heart. Nash attributed evidence of decedent’s lack of sleep as a contributory factor, but did not rule out decedent’s work as playing a role in his death. Although decedent’s coworkers witnessed the accident and the autopsy report lists the enlarged heart as the cause of death, the Board appropriately invoked the presumption of compensability inasmuch as “the cause of decedent’s fatal arrhythmia remains unexplained” … . Matter of Estate of Moody v Quality Structures Inc, 2014 NY Slip Op 03313, 3rd Dept 5-8-14

 

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Attorney Discharged without Cause Entitled to Fee as an Account Stated

The Third Department determined an attorney had been discharged without cause and was entitled to a charging lien and a retaining lien.  The client had signed a retainer agreement and had not expressed any objection to the detailed itemized bill submitted by the attorney.  The amount of the bill was therefore deemed an account stated.  In explaining the options available to an attorney who has been discharged without cause, the court wrote:

…[A]n attorney who has been discharged without cause may pursue the following cumulative remedies: (1) a charging lien, (2) a retaining lien, and/or (3) a plenary action in quantum meruit … . A charging lien is a statutory remedy — codified in Judiciary Law § 475 — that grants the attorney “a security interest in the favorable result of [the] litigation” … . A retaining lien, on the other hand, permits the discharged attorney to retain the contents of the client’s file until such time as the attorney has been paid or “the client has otherwise posted adequate security ensuring [the] payment [there]of” … . With respect to either lien, a hearing may be required to determine the amount of compensation due and owing to the discharged attorney. Here, however, we have no quarrel with Supreme Court’s finding that the firm was entitled to an award of $10,884.14 based upon an account stated. Roe v Roe, 2014 NY Slip 03317, 3rd Dept 5-8-14

 

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“Agreement to Agree” Insufficient to Sever a Joint Tenancy

The Third Department noted that a joint tenancy with right of survivorship can be severed by written agreement, but determined the email correspondence, which evinced the parties’ intent to sever the joint tenancy, did not accomplish the severance because material terms, including price, were not addressed: “Real Property Law § 240-c (3) (a) allows for the severance of a joint tenancy “pursuant to a written agreement of all joint tenants.” However, “a contract must be definite in its material terms in order to be enforceable” … . For this reason, an agreement to agree, where such terms are left to future negotiations, is unenforceable …”. Matter of Wyman (Riddle), 2015 NY Slip Op 03908, 3rd Dept 5-7-15

 

“Mystery Shopper” Not an Employee

The Third Department determined claimant, a mystery shopper, was not an employee entitled to unemployment benefits because the employer, Confero, exercised minimal control over claimant’s work:

Here, claimant testified that, when a new mystery shopping event became available, he was notified via email by a scheduling company and then was able to view the assignment on Confero’s website. Claimant had the liberty of choosing what assignments, if any, he wanted to perform and, after he accepted an assignment, Confero did not even require that claimant perform the assignment himself. Rather, claimant had the discretion to send a substitute in his place so long as he provided notification to the scheduling company to ensure that the substitute was not overexposed at a given location. Although each assignment came with certain tasks that claimant had to perform, the manner in which he performed those tasks was fully within his discretion. Significantly, Confero did not require that claimant perform any minimum number of assignments, request that he seek permission for time off or set forth a particular work schedule. According to Confero’s president, claimant was free to work as little or as much as he wanted. For each assignment that he completed, claimant was paid a nonnegotiable fixed fee that was set by Confero’s client. Further evidencing a lack of control, Confero did not provide claimant with any training, supply him with any equipment or require him to attend any meetings, and it fully permitted him to work for competing companies, which he did regularly. Matter of Chan (Confero Consulting Assoc., Inc.–Commissioner of Labor), 2015 NY Slip Op 03890, 3rd Dept 5-7-15

 

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Jury’s Finding that the Defendant Was Negligent but that the Negligence Was Not the Proximate Cause of the Accident Was Against the Weight of the Evidence—Motion to Set Aside the Verdict Should Have Been Granted—New Trial Ordered

The Third Department determined Supreme Court should have granted plaintiff’s motion to set aside the verdict.  Plaintiff was injured when her bicycle struck a recessed manhole cover.  Defendant construction company had placed barrels in the roadway to create a pedestrian walkway.  The placement of barrels served to direct users of the walkway toward the recessed manhole. The jury found the placement of the barrels negligent but further found that negligence was not the proximate cause of the accident.  The verdict was against the weight of the evidence because the only reason the placement of the barrels would be deemed negligent is that the barrels diverted traffic toward the recessed manhole:

“A jury’s finding that a party was at fault but that [such] fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . Further, we view the evidence in the light most favorable to the nonmoving party, defendant, and afford deference to the jury’s credibility determinations … . A “plaintiff’s own conduct may be a superceding cause which severs the causal connection between [the] defendant’s negligence and the injury [when] a plaintiff’s negligence [is] more than mere contributory negligence, which would be relevant in apportioning culpable conduct” … .

* * * The only theory presented at trial as to why such placement was negligent, as indicated in the jury instructions, was that it diverted traffic toward a dangerous recessed manhole cover. Given that the uncontested evidence was that plaintiff was diverted in just such a manner, no fair interpretation of the evidence “would support the conclusion that [plaintiff’s] conduct was so extraordinary or unforeseeable as to make it unreasonable to hold defendant[] responsible for the resulting damages” … . Therefore, Supreme Court erred in denying plaintiff’s motion to set aside the verdict. Durrans v Harrison & Burrowes Bridge Constructors, Inc., 2015 NY Slip Op 03896, 3rd Dept 5-7-15

 

UInstructor at a Not-for-Profit Theater Company Was an Employee, Not an Independent Contractor

The Third Department determined a playwrighting instructor at  a not-for-profit theater company, Primary Stages Company, was an employee entitled to unemployment insurance benefits:

We note that, for purposes of our review, we consider instructors and teachers to be professionals … . Accordingly, in deciding if such individuals are employees, the pertinent inquiry is “whether the purported employer retains control of important aspects of the services performed” … .

Here, Primary Stages utilized an informal process in retaining claimant, as it was familiar with her through her affiliation with a writers’ group and simply inquired if she was interested in teaching writing classes. Claimant responded in the affirmative and entered into a written agreement with Primary Stages under which she was paid a flat fee of $1,900 per class. Primary Stages furnished the classroom and also provided a teaching assistant. Although claimant retained the discretion to set the course curriculum, claimant and Primary Stages worked together to establish the class schedule that Primary Stages then distributed to prospective students. Primary Stages was responsible for providing all school facilities and a teaching assistant, finding students to fill the classes and collecting their tuition. The school cancelled classes if there was low enrollment, in which case the instructor would not be paid. If claimant could not teach a class, she needed to notify Primary Stages and, if she or other instructors were unable to complete a course assignment, Primary Stages would find a replacement whose selection was often based upon the recommendation of the instructor. Furthermore, Primary Stages circulated an evaluation form to students for feedback on the instructor at the end of the course and, if the evaluation was unsatisfactory, it would not rehire that instructor. Matter of Wilner (Primary Stages Co. Inc.–Commissioner of Labor), 2015 NY Slip Op 03902, 3rd Dept 5-7-15

 

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Motion to Dismiss In Which Documentary Evidence Was Submitted—Court’s Role Is to Determine Whether Plaintiff Has a Cause of Action, Not Whether Plaintiff Has Stated a Cause of Action—Although the Complaint Alleged Interference With a Competitive Bidding Process Involving Public Entities, the Case Fit an Exception to the Rule that Competitive Bidding Issues Be Determined in an Article 78 Proceeding—It Was Alleged a Private Party (Defendant) Interfered with the Competitive Bidding Process

Reversing Supreme Court, the Third Department determined plaintiff had adequately pled a cause of action for tortious interference with contract. The plaintiff alleged that defendant subverted a bidding process for the installation of artificial turf at state and local schools. Usually competitive bidding cases are brought in an Article 78 proceeding against the relevant public entity. This case fit an exception to that rule because it was brought against a private party working with the public entities. There was also some question whether the proceeding was a motion to dismiss for failure to state a cause of action or a motion for summary judgment.  Because documentary evidence was submitted, the court’s role was to determine whether the plaintiff has a cause of action, not whether plaintiff has stated one:

…[S]ince the motion (made shortly after serving the answer and before disclosure) argued an absence of any legal viability of the alleged causes of action, Supreme Court did not err in treating the motion as a narrowly framed post-answer CPLR 3211 (a) (7) ground asserted in a summary judgment motion … . When dismissal is sought for failure to state a cause of action and, as here, plaintiff submits affidavits, “a court may freely consider [those] affidavits . . . and ‘the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one'” … .

Turning to the merits of the motion, “the laws requiring competitive bidding were designed to benefit taxpayers rather than corporate bidders and, thus, should be construed and administered with sole reference to the public interest” … . Therefore, the remedy for an alleged violation of the competitive bidding statutes typically involves a timely CPLR article 78 proceeding challenging the bidding process … . However, a narrow exception to the limited remedy may exist where a plaintiff does not seek relief from the public entity, but brings an action against someone working on behalf of the public entity in the competitive bidding process who allegedly engaged in egregious conduct unknown to the public entity aimed at intentionally subverting a fair process … . Allegations of restricting competition to artificial turf manufactured by A-Turf could be part of a cognizable claim under the narrow exception … . Chenango Contr., Inc. v Hughes Assoc., 2015 NY Slip Op 03903, 3rd Dept 5-7-15

 

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