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After Hours Off-Premises Fight With Co-Employee Can Constitute Disqualifying Misconduct

The Third Department determined that a fight with a co-employee after hours at a bar could constitute disqualifying misconduct if the fight was connected with claimant’s employment.  Because the Board, which granted unemployment benefits, based its determination on where the fight occurred, the matter was remitted:

“Fighting with a coworker, regardless of who initiates the confrontation, has been held to constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits” … . Claimant, moreover, was aware that the employer considered fighting to be a major infraction and that it could result in his termination. It is true that the fight occurred at a bar outside of work hours but, in that regard, a claimant is disqualified from receiving benefits whenever his or her misconduct occurs “in connection with” his or her employment (Labor Law § 593 [3]…). Claimant was accordingly obliged, “even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him and . . . he may be denied unemployment benefits as a result of misconduct in connection with his work if he fails to live up to this obligation” … . Therefore, the relevant question is not where or when the attack occurred, but whether it was connected to claimant’s employment … . Inasmuch as “the Board failed to address this relevant issue, its decision must be reversed and the matter remitted for further development of the record” … . Matter of Moniz (Nucor Steel Auburn, Inc.–Commissioner of Labor), 2015 NY Slip Op 02534, 3rd Dept 3-26-15

 

Psychological Injury Stemming from Witnessing the Aftermath of a Suicide Deemed Compensable

The Third Department determined claimant was properly awarded benefits for psychological injury stemming from witnessing the aftermath of a suicide:

Psychological injuries caused by witnessing the aftermath of a suicide have been held to be compensable where “the claimant was an active participant in the tragedy,” as opposed to a bystander … . The facts here are not in significant dispute. On March 31, 2006, a patient leapt from a window at the facility where claimant worked and impaled himself on picnic tables outside of claimant’s office. Claimant was one of the first workers to reach the scene and, despite her lack of medical training, was directed by her supervisor to retrieve an oxygen tank for the patient. Claimant did so, but began to feel anxious and hyperventilate and “lost it” altogether after she was ordered by facility officials not to speak to investigators about her prior interactions with the patient. Therefore, substantial evidence exists for the Board’s finding that claimant was indeed an active participant in the events surrounding the suicide … . The Board was further free to, and did, credit medical evidence indicating that claimant developed disabling depression, anxiety and posttraumatic stress disorder as a result of the incident … Matter of Demperio v Onondaga County, 2015 NY Slip Op 02533, 3rd Dept 3-26-15

 

Arbitrator Exceeded Her Powers to Modify an Award and Failed to Make a “Final and Definite” Award

The Third Department determined the arbitrator had exceeded her authority when she did not merely correct a miscalculation, but rather made new findings when modifying an award.  The court further determined that the arbitrator initially did not make a “final and definite” award when she failed to take into account a stipulation between the parties:

…[T]he arbitrator’s modification of the original award exceeded the narrow grounds set forth in CPLR 7511 (c). A review of the modified award reveals that the arbitrator did not simply correct a “miscalculation of figures . . . in the [original] award” (CPLR 7511 [c] [1]) but, rather, made new factual findings as to the applicability of the parties’ apparent stipulation relative to petitioner’s counterclaim and its corresponding impact upon the moneys awarded, i.e., the arbitrator impermissibly revisited the merits of the parties’ dispute. Under these circumstances, the modified award was properly vacated … .

We also are persuaded that Supreme Court properly vacated the original arbitration award and remanded the matter to the arbitrator for a rehearing (see CPLR 7511 [d]). CPLR 7511 (b) (1) (iii) permits a court to vacate an arbitration award if the court finds that a party’s rights were prejudiced because the arbitrator, in making such an award, either “exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.” Although we find no basis upon which to conclude that the arbitrator exceeded her authority in rendering the initial award, we agree with Supreme Court that, by failing to address the existence and/or content of the parties’ purported stipulation, ascertain whether the contested funds were in fact withheld by petitioner prior to the start of the arbitration and assess the corresponding impact, if any, upon petitioner’s counterclaim, the arbitrator “so imperfectly executed” her powers that “a final and definite award” was not in fact made (CPLR 7511 [b] [1] [iii]). Matter of Delaney Group, Inc. (Holmgren Enters., Inc.), 2015 NY Slip Op 02174, 3rd Dept 3-19-15

 

Drivers Transporting Patients to a Physical Therapy Facility Are Employees Not Independent Contractors

The Third Department determined drivers for Agewell, a physical therapy center, (bringing patients to the facility) were employees, not independent contractors:

Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion” … . An employment relationship will be found “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 means [being] the more important factor'” … . In contrast, “[i]ncidental control over the results produced,” such as supplying form contracts, requiring periodic reports and attendance at meetings, giving instruction on what to wear or how to make a presentation, “without further indicia of control over the means employed to achieve the results[,] will not constitute substantial evidence of an employer-employee relationship” … .

Here, the evidence presented at the hearing demonstrated that Agewell set the driver’s schedules, determining the order in which multiple clients would be picked up, and required the drivers to sign in and out. Drivers typically used Agewell’s vehicles with the company logo on them and its credit card when putting gas into the vehicles, but were reimbursed if they used their own vehicles. Claimant further testified that shirts and jackets with the company logo were provided and that he typically wore them, along with a name tag. Agewell also fielded complaints from clients and provided feedback to the drivers on their performance. Drivers were allowed to pursue their own business interests and many did, including claimant. Notwithstanding the existence of evidence in the record to support a contrary conclusion, the foregoing constitutes substantial evidence to support the Board’s conclusion that the control retained by Agewell was more than incidental and sufficient to establish that claimant was its employee and not an independent contractor … . Matter of McAlevey (Agewell Physical Therapy & Wellness, P.C.–Commissioner of Labor), 2015 NY Slip Op 02179, 3rd Dept 3-19-15

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Sufficient Factual Allegations of Malpractice Not Made/Denial of Motion to Reargue Appealable as of Right Because the Merits Were Dealt with By the Motion Court

The Third Department, in affirming the dismissal of a legal malpractice complaint, determined that the fact that the motion court dealt with the merits of a motion to reargue while denying it rendered the denial appealable as of right:

As a general proposition, “no appeal lies from the denial of a motion to reargue” … . Where, however, the court actually addresses the merits of the moving party’s motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied … . Accordingly, Supreme Court’s April 2013 order is appealable as of right (see CPLR 5701 [a] [2] [viii]…). * * *

To survive defendants’ motion to dismiss, it was incumbent upon plaintiff to, among other things, “plead specific factual allegations establishing that but for counsel’s deficient representation, there would have been a more favorable outcome to the underlying matter” … , i.e., an earlier — and successful — award of partial summary judgment on the issue of liability. This plaintiff failed to do. Rodriguez v Jacoby & Meyers, LLP, 2015 NY Slip Op 02151, 3rd Dept 3-19-15

 

 

Claimant Was an Employee of a Cleaning and Janitorial Service

The Third Department determined claimant was an employee of a cleaning and janitorial service, Shield Cleaners:

“Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion” … . An employment relationship will be found “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 means [being] the more important factor'” … . In contrast, “[i]ncidental control over the results produced,” such as supplying form contracts, requiring periodic reports and attendance at meetings, giving instruction on what to wear or how to make a presentation, “without further indicia of control over the means employed to achieve the results[,] will not constitute substantial evidence of an employer-employee relationship” … .

Here, claimant testified that Shield Cleaning contacted her with assignments and told her how long to spend at each assignment, and that she was required to accept unless she was performing another assignment or could produce documentation, such as a doctor’s note, to show why she was not at work. Shield Cleaning worked out the requirements in advance and memorialized the agreements with the client in writing. Claimant was paid by the hour, required to submit time sheets, had a certain percentage of her paycheck deducted as insurance and agreed in writing not to solicit any of Shield Cleaning’s clients as her own. She was also provided with supplies to perform her work and a t-shirt with the company’s logo and telephone number on it. Claimant was paid regardless of whether the client paid, and any complaints about the work were directed to Shield Cleaning, rather than claimant. Notwithstanding the existence of evidence in the record to support a contrary conclusion, the foregoing constitutes substantial evidence to support the Board’s conclusion that the control retained by Shield Cleaning was more than incidental and sufficient to establish that claimant was its employee and not an independent contractor … . Matter of Dwightmoore (Lawrence M. Fanfair–Commissioner of Labor), 2015 NY Slip Op 02182, 3rd Dept 3-19-15

 

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Criteria for Presentation of Exculpatory Evidence to the Grand Jury Explained (Not Met Here)

The Third Department explained the prosecutor’s obligations re: the presentation of exculpatory evidence to the grand jury. [The decision also includes good discussions the criteria re: (1) shackling defendant during pre-trial hearings, (2) the court’s discretion to deny defendant’s request to call a witness (the victim) at the Wade hearing, and (3) serious prosecutorial misconduct, which are worth reading, although reversible error was not found.]:

With respect to the issue of exculpatory evidence, “[t]he People generally enjoy wide discretion in presenting their case to the [g]rand [j]ury and are not obligated to search for evidence favorable to the defense or to present all evidence in their possession that is favorable to the accused even though such information undeniably would allow the [g]rand [j]ury to make a more informed determination. . . . [Nor] do the People have the same obligation of disclosure at the [g]rand [j]ury stage as they have at the trial stage” … . Here, the exculpatory evidence cited by defendant “bore principally upon the victim’s credibility and, as such, was more appropriately reserved for presentation to the petit jury than to the [g]rand [j]ury” … . People v Goldston, 2015 NY Slip Op 02146, 3rd Dept 3-19-15

 

Question of Fact Whether Nonowner Occupied and Controlled Premises Where Plaintiff Fell

The Third Department determined there were questions of fact whether a nonowner of a premises, 68 Weibel Avenue, occupied and controlled the premises such that a duty to use reasonable care re: the condition of the premises arose. The owner of the property (third-party defendant) is the father of two sisters who operate defendant business across the street at 75 Weibel Avenue.  There was testimony that defendant business also occupied and controlled the area where plaintiff slipped on ice at 68 Weibel Avenue:

A nonowner who occupies or controls premises has a duty to exercise reasonable care regarding the condition of the premises … . The boundaries of occupancy and extent of control are typically addressed in a written agreement, and may also be established or modified by a course of conduct … . The absence of a written agreement creates a situation ripe for factual issues regarding relevant rights and responsibilities to the premises … .

Here, there was no written agreement between defendant and third-party defendant regarding the premises. Defendant and third-party defendant had a close familial relationship, and it does not appear from the record that there was even an oral agreement specifically delineating their rights and responsibilities. In light of the absence of any agreement, defendant’s conduct regarding the premises is particularly pertinent. Plaintiff testified that, although defendant had a retail store across the road at 75 Weibel Avenue, he was directed by defendant to make deliveries at the 68 Weibel Avenue shop. He recalled that an owner or an employee of defendant was always present at such address when he made a delivery. While there were other businesses that used the parking lot at 68 Weibel Avenue, plaintiff stated that there were never vehicles directly in front of defendant’s shop other than a vehicle of an employee/owner of defendant. He parked at such location in front of the shop when making deliveries and was so parked on the date of his accident. A freestanding sign for defendant’s business was located outside the building at 68 Weibel Avenue and in the vicinity where plaintiff parked. We agree with Supreme Court that, under the circumstances, there are triable issues of fact as to whether defendant exercised control over the pertinent part of the 68 Weibel Avenue premises. Contreras v Randi’s Enter., LLC, 2015 NY Slip Op 02165, 3rd Dept 3-19-15

 

Transportation-Contract Bidding Requirement that the Carrier Have an “Out of Service” Rate Less than that Required by the State Was Not Preempted by State Law/The Requirement Was Not Anti-Competitive Merely Because It Excluded Petitioner from Consideration—Analytical Criteria Discussed

The Third Department determined the county’s requirement that carriers bidding for a county transportation contract must have an “out of service rate” of less than 15% was not preempted by state law (which allows a 25% out of service rate) and was not “anti-competitive” because the requirement excluded petitioner from consideration.  The court explained the relevant analytical criteria:

Preemption applies where there is “express conflict between local and [s]tate law” or “where the [s]tate has evidenced its intent to occupy the field” … . In the Transportation Law, the Legislature has indicated an intention for the state “to regulate transportation by motor carriers,” for both safety and economic reasons (Transportation Law § 137; see Transportation Law § 140 [2]…), and granted exclusive jurisdiction over safety regulations for motor carriers to the Commissioner of Transportation (see Transportation Law § 140 [8]), thereby preempting the field of safety regulations for motor carriers. Although the County’s RFB specification of an out of service rate exceeded the inspection pass rate in DOT [Department of Transportation] regulations, which provide that a motor carrier’s authority to carry passengers within the state may be suspended or revoked for an out of service rate of 25% or more (see 17 NYCRR 720.32 [a] [2]; see also Transportation Law §§ 145 [1]; 156 [2]), preemption does not apply under the circumstances here. * * *

General Municipal Law § 103 (1) requires that municipalities award purchase contracts above a certain monetary threshold to the “lowest responsible bidder” to protect the public’s finances and prevent corruption or favoritism in the awarding of public contracts … . Municipalities are permitted to include bid specifications that may be more favorable to some bidders over others, as long as the public interest is served and the specifications are not intended to ensure that one particular bidder be awarded the contract … . Including specifications in a request for bids often has the effect of disqualifying some potential bidders who cannot meet those specifications, but this reality does not invalidate those specifications. If a challenged specification is not facially anticompetitive, courts apply “ordinary rational basis review” in assessing its validity … . A petitioner bears the burden of demonstrating that the inclusion of the challenged specifications, and the ultimate award of the contract, was the product of actual impropriety, unfair dealing or statutory violation … . …

The County’s bid specification requiring an out of service rate of less than 15% is not facially anticompetitive, as that standard does not, in and of itself, guarantee the award of the contract to a particular bidder … . The bid specification here, requiring a safety rating higher than the minimum allowed by DOT for a motor carrier to continue operating within the state, does have some rational basis rooted in the public interest, namely, attempting to assure the safety of children being transported under the County’s care. Matter of Blueline Commuter, Inc. v Montgomery County, 2015 NY Slip Op 519277, 3rd Dept 3-12-15

 

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Criteria for Strip and Cavity Search Met

The Third Department determined the circumstances justified a strip search and a visual cavity search of the defendant. The court explained the relevant criteria:

…[T]he principles governing strip searches and body cavity examinations are set forth in People v Hall (10 NY3d 303 [2008], cert denied 555 US 938 [2008]). Insofar as is relevant here, “a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner. To advance to . . . a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee [has] secreted evidence inside a body cavity and the [ensuing] visual inspection must be conducted reasonably” … . Although the police cannot routinely subject all drug arrestees to visual cavity inspections, the police are permitted — in the context of formulating the particularized factual basis required for such inspections — “to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person”… . People v Cogdell, 2015 NY Slip Op 106031, 3rd Dept 3-12-15

 

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