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241 (6) Cause of Action Improperly Dismissed—Plaintiff Tripped on Piece of Metal Protruding from Stair

The Third Department determined Supreme Court should not have dismissed plaintiff’s Labor Law 241 (6) claim against the general contractor (Glenman).  Plaintiff tripped and fell down a stairwell when his shoe was punctured by a piece of metal protruding from a stair:

Supreme Court improvidently dismissed plaintiff’s Labor Law § 241 (6) claim against Glenman. Notably, “Labor Law § 241 (6), by its very terms, imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed” … . “To establish a claim under Labor Law § 241 (6), [a] plaintiff must allege that [the] defendant[] violated a rule or regulation promulgated by the Commissioner of Labor that sets forth a specific standard of conduct” … . “[O]nce it has been alleged that a concrete specification of [such a rule or regulation] has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff’s injury” … .

Here, plaintiff relies upon 12 NYCRR 23-1.7 (e) (1), which provides:”(e) Tripping and other hazards.(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.” This regulation appropriately “mandat[es] compliance with concrete specifications” as required to state a claim under Labor Law § 241 (6) … .  Marshall v Glenman Indus & Commercial Contr Corp, 20-14 NY Slip Op 02987, 3rd Dept 5-1-14

 

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Preservation by Objection Not Required When Defendant First Learns of Post-Release Supervision Moments Before Sentencing

In a full-fledged opinion by Justice Egan, the Third Department vacated defendant's plea to a probation violation because no mention of a period of post-release supervision was made until moments before sentencing.  The court determined there was no need to preserve the error by objection because the defendant had so little time between notification of the post-release supervision and sentencing:

…[W]hether preservation is necessary hinges upon whether the defendant “had ample opportunity to object after the initial [reference to postrelease supervision] was made and before sentence was formally imposed” … . Thus, where “the court first mention[s] postrelease supervision only moments before imposing the sentence,” thereby depriving the defendant of a meaningful opportunity to weigh his or her options at that stage of the proceeding, preservation is not required … .

Although we are mindful that the matter before us concerns a plea of guilty to a violation of probation — as opposed to a plea of guilty to a crime — the analysis employed by the Court of Appeals …is equally applicable here. As noted previously, County Court made no mention of postrelease supervision during the course of defendant's plea colloquy …, nor does the record indicate that defendant otherwise was made aware — prior to entering her plea to the probation violation — that postrelease supervision would be a component of her sentence … . Rather, the need to impose a period of postrelease supervision was first raised at sentencing — quite literally moments before defendant's sentence actually was imposed … . Under these circumstances, preservation was not required, and County Court's failure to apprise defendant that postrelease supervision would be a component of her sentence mandates reversal. People v Bolivar, 2014 NY Slip Op 02980, 3rd Dept 5-1-14

 

Substantive Issue Raised by Petitioner Had Not Been Addressed in a Prior Proceeding Which Had Been Dismissed—Current Proceeding Therefore Not Barred by Doctrine of Collateral Estoppel

The Third Department determined a former teacher’s challenge to the recall of another former teacher was not barred by collateral estoppel.  The challenge was based upon the claim that the petitioner had greater seniority than the recalled teacher.  A prior challenge by petitioner to the recall of a different teacher had been dismissed, but the seniority issue had not been addressed in that prior proceeding:

In order for collateral estoppel to apply, there must be an identity of a decisive issue between the present and prior proceedings which was necessarily decided in the prior proceeding, and the party who will be estopped must have been afforded a full and fair opportunity to litigate the issue in the prior proceeding … . “Whether to apply collateral estoppel in a particular case depends on general notions of fairness involving a practical inquiry into the realities of the litigation” … . Here, while petitioner raises an identical issue in this proceeding, namely, whether she is entitled to more seniority credit than the Board gave her, that issue has never been decided. Rather, the earlier proceeding was dismissed as time-barred. Because the issue of whether petitioner is entitled to more seniority has not been decided, it is not barred by collateral estoppel … . Matter of Bubel v Board of Educ of the Saugerties Cent Sch Dist, 2014 NY Slip Op 02999, 3rd Dept 5-1-14

 

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Precise Dates of Abuse Need Not Be Proven in a Family Court Act Article 10 Proceeding/Exclusion of Respondent from Proceedings During Child’s Testimony Was Proper

The Third Department affirmed the child abuse/severe abuse/neglect findings against respondent and noted that the precise dates of the abuse need not be proven in a Family Court Act Article 10 proceeding.  The Third Department further determined that the exclusion of the respondent during one of the children’s (Aleria’s) testimony, while allowing the respondent’s attorney to be present, was a proper exercise of discretion:

…[E]vidence of the exact dates that the abuse and/or neglect occurred is not required in order for petitioner to sustain its applicable burdens of proof in Family Ct Act article 10 proceedings (see Family Ct Act § 1046 [b] [i], [ii]). Rather, a child’s ability to recall details — including, among other things, dates and times — goes to the credibility and weight given to the child’s disclosures. In this regard, “Family Court’s findings are entitled to great deference especially where the critical evidence is testimonial, in light of the court’s ability to assess the witnesses’ credibility, and should generally not be disturbed absent a conclusion that they lack a sound and substantial basis in the record” … . The record before us contains corroborated allegations of horrendous, repeated acts of sexual and physical abuse perpetrated by respondent against his children and stepdaughter and, thus, we see no reason to depart from Family Court’s finding that the allegations of severe abuse, abuse, neglect and derivative abuse and neglect were sufficiently proven.

Nor do we find that Family Court abused its discretion when it excluded respondent from the courtroom during Aleria’s testimony. Although respondent is entitled to due process, he does not have an absolute right to be present at all stages of this civil proceeding … . “As such, in the context of a Family Ct Act article 10 proceeding, this Court has concluded that, ‘[i]n balancing the due process right of the accused with the mental and emotional well-being of the child, a court may . . . exclude the respondent during the child’s testimony but allow his [or her] attorney to be present and question the child'” … . Accordingly, after having properly balanced respondent’s interests with the impact of his presence in the courtroom on Aleria’s emotional state and well-being, Family Court’s decision to permit her to testify outside of respondent’s presence was an appropriate exercise of discretion. Matter of Aleria KK. (Ralph MM.), 2015 NY Slip Op 03590, 3rd Dept 4-30-15

 

Defendant’s Statement Was Made In Response to the Functional Equivalent of a Question Designed to Elicit an Incriminatory Response and Should Have Been Suppressed

The Third Department determined a statement made by the defendant after he had been arrested and was being transported to the police station was not “spontaneous” (as County Court found) and should have been suppressed. At the arrest scene one of defendant’s “associates” indicated defendant might have drugs in his anal cavity.  In the police car, an officer said to the defendant that he hoped defendant did not have any more drugs on him and the defendant said he probably did.  During a subsequent search drugs were found in defendant’s anal cavity. Although defendant’s statement indicating he probably had more drugs on him should have been suppressed because it was made in response to a police statement designed to elicit an incriminating response, the drugs themselves were not subject to suppression.  The Third Department determined the search which turned up the drugs was not triggered by the statement:

The admissibility of a statement made by a defendant in custody depends on whether it was “the product of ‘express questioning or its functional equivalent'” … . The operative question is whether, in context, “the officer should have known that his statement was ‘reasonably likely to evoke an incriminating response from the suspect'” … . In our view, County Court erred in concluding that the inculpatory statement was admissible because it was simply a spontaneous response to a declaration by [the officer]. For a statement to be spontaneous, it must be self-generated without “inducement, provocation, encouragement or acquiescense, no matter how subtly employed” … . Coming on the heels of [the officer’s] explanation that defendant would be searched as part of the booking process, and having been informed by the passenger that defendant may have hidden additional drugs on his person, we find [the officer’s] statement to be the functional equivalent of a question intended to elicit an incriminating response … . Since defendant was in custody and had not been given Miranda warnings, the statement should have been suppressed as involuntary. People v George, 2015 NY Slip Op 03574, 3rd Dept 4-30-15

 

Hearing Officer’s Failure to Determine Why Three Witnesses Called by the Petitioner Purportedly Refused to Testify Required Annulment and Expungement of the Disciplinary Determination

The Third Department annulled the disciplinary determination, finding that the hearing officer deprived the petitioner of his right to call witnesses by failing to investigate the witnesses’ purported refusal to testify:

Although petitioner requested that his employee assistant interview three inmate witnesses who worked in the library, the record reflects no effort by the employee assistant to interview the potential witnesses or to report the results of those efforts to petitioner. When this issue was raised at the hearing and petitioner inquired about those witnesses, the Hearing Officer adjourned the hearing in order for the employee assistant to ascertain the witnesses’ willingness to testify. Thereafter, the Hearing Officer denied the requested witnesses based upon the employee assistant’s report that all three witnesses refused to testify. No inquiry was made by the Hearing Officer as to the reasons for those witnesses’ refusal, no witness refusal forms were provided, and petitioner’s employee assistant was not called to testify regarding the circumstances as to why the witnesses refused to testify. Accordingly, the Hearing Officer deprived petitioner of his right to call witnesses and the matter must be expunged.. . Matter of Gross v Prack, 2015 NY Slip Op 03595, 3rd Dept 4-30-15

 

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Juvenile Delinquency Adjudications Can Not Be Considered in the Criminal History Categories of a Risk Assessment Instrument (RAI)—However the Adjudications Can Be Considered When Deciding Whether to Depart from the Recommended Risk Level

The Third Department, in a full-fledged opinion by Justice Rose, indicated its prior rulings should not be followed and determined that juvenile delinquency adjudications may not be considered under risk factors 8 and 9 (criminal history) for the purpose of assessing points in the risk assessment instrument (RAI). However the adjudications may be considered in determining whether to depart from the recommended risk level:

Relying on People v Campbell (98 AD3d 5 [2d Dept 2012], lv denied 20 NY3d 853 [2012]), defendant contended that Family Ct Act § 381.2 (1) precluded the use of the juvenile delinquency adjudication and, without the 30 points for criminal history, defendant would be presumptively classified as a risk level I sex offender. County Court, citing our previous decisions in People v Pride (37 AD3d 957 [2007], lv denied 8 NY3d 812 [2007]) and People v Dort (18 AD3d 23 [2005], lv denied 4 NY3d 885 [2005]), denied defendant’s challenge to the 30-point assessment and classified defendant as a risk level II sex offender. Defendant appeals.

We reverse. We agree with the holding of People v Campbell (supra) that the Board “exceeded its authority by adopting that portion of the [Sex Offender Registration Act] Guidelines which includes juvenile delinquency adjudications in its definition of crimes for the purpose of determining a sex offender’s criminal history” (id. at 12; see Family Ct Act § 380.1 [1]…). Contrary to the People’s argument, the fact that the points at issue in Campbell were assessed under risk factor 8 of the RAI does not require a different conclusion because both risk factor 8 and risk factor 9 fall within the criminal history category of the RAI. To the extent that our prior decisions suggest that juvenile delinquency adjudications may be considered crimes for purposes of the RAI, we note that the conflict between the Guidelines and the Family Ct Act was not raised in those cases and they should no longer be followed. Our ruling is limited, however, to precluding the use of juvenile delinquency adjudications to assess points for criminal history under the RAI, and we do not hold that the facts underlying a juvenile delinquency adjudication may not be considered when determining whether to depart from the recommended risk level … . People v Shaffer, 2015 NY Slip Op 03586, 3rd Dept 4-30-15

 

Limousine Driver Properly Found to Be an Employee

The Third Department determined claimant was an employee of SUK, a limousine service, and therefore was entitled to unemployment insurance benefits.  The court noted that the Unemployment Insurance Appeal Board (Board) need not distinguish every arguably similar case it has previously decided:

“An employer-employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results,” with control over the latter being more important … .

Here, the record establishes that SUK assigned jobs to claimant and fielded complaints from its customers. Additionally, SUK imposed numerous restrictions upon claimant, including prohibiting him from working with its competitors, imposing detailed rules as to acceptable work dress and behavior and requiring him to drive a specific type of car. SUK also set the rate collected from the passengers and handled all voucher billing. … …[T]he Board need not “explicitly distinguish in its written decisions each and every arguably similar case that it previously has decided” and, hence, was not required to address the distinguishable cases relied upon by SUK … . Matter of June-Il Kim (Suk Inc.–Commissioner of Labor)\, 2015 NY Slip Op 03438, 3rd Dept 4-23-15

 

Unemployment Insurance Appeal Board Has Jurisdiction Over Employment Within Federal Enclaves (Here Navy Ships at Sea)

The Third Department determined that the Unemployment Insurance Appeal Board (Board) had jurisdiction over employment within so-called federal enclaves.  Here claimant was employed by a company which sold cars to Navy personnel stationed on ships at sea.  The company, Priority Assist, argued the Board did not have jurisdiction over the employment at issue.  The court relied on a US Supreme Court case which indicated the exclusive jurisdiction of the United States could be modified by statute, and the federal statute which state employment on federal propery was not exempt from state unemployment compensation law:

Priority Assist initially asserts that claimant and others similarly situated performed work in federal enclaves — i.e., lands purchased by the federal government, with state consent, “for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings” — and that the Board accordingly lacked jurisdiction to hold it liable for unemployment insurance contributions (US Const, art I, § 8, cl 17). Even assuming that United States Navy vessels that have never been part of a state constitute federal enclaves, “exclusive jurisdiction over [such an] area . . . remains with the United States, except as modified by statute” (Howard v Commissioners of Sinking Fund of City of Louisville, 344 US 624, 627 [1953] [emphasis added]). Inasmuch as federal law provides that “[n]o person shall be relieved from compliance with a [s]tate unemployment compensation law on the ground that services were performed on land or premises owned, held, or possessed by the United States,” the Board retained jurisdiction here (26 USC § 3305 [d]). Matter of Pickton (Priority Assist Inc.–Commissioner of Labor), 2015 NY Slip Op 03437, 3rd Dept 4-23-15

 

Claimant Delivery Driver Was an Employee of Partsfleet Despite Fact that Claimant Was Paid by Another Company (SCI) With Which Partsfleet Had a Contract

The Third Department determined the employer, Partsfleet, exercised sufficient control over the claimant, a delivery driver, to support the finding that the driver was an employee, even though the employer had a contract with another company, SCI, which issued claimant’s paycheck. SCI had no involvement with the duties performed by the claimant. “Claimant was retained as a delivery driver following a short interview with a Partsfleet representative and a check of his motor vehicle record. Partsfleet trained him on the operation of a scanner used to schedule and track customer deliveries, and briefed him on the requirements of the customers. The delivery schedule was set by Partsfleet based upon customer requests, and it monitored deliveries via the scanner. Claimant was paid based on the particular delivery route that he had completed at a rate that Partsfleet set with its customer, and claimant was paid if he completed the route regardless of whether the customer paid Partsfleet. Claimant worked out of a warehouse that belonged to one of Partfleet’s customers and that is where he left his completed route sheets, which were then collected by a Partsfleet representative. Any problems with deliveries were generally handled by a Partsfleet representative. Although claimant could work for other companies and find replacements if he could not work a particular route, the replacements had to be approved by Partsfleet. The foregoing establishes that Partsfleet maintained control over important aspects of claimant’s work as was necessary to insure that its customers’ needs were satisfied…” Matter of Watson (Commissioner of Labor), 2015 NY Slip Op 03224, 3rd Dept 4-16-15

 

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