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Statutory Provision that the Gaming Commission “Shall” Render a Determination Within 30 Days After a Hearing Is “Directory” Not “Mandatory”—A Late Determination Will Not Be Annulled Absent Prejudice

The Third Department determined Supreme Court erred when it annulled the suspension of petitioner’s license to train and own horses because the NYS Gaming Commission did not render a determination within 30 days of the hearing as required by Racing, Pari-Mutuel Wagering and Breeding Law 321.  The Third Department determined the 30-day time-limit was not mandatory and petitioner could only seek relief for a violation of section 321 if he could show prejudice related to the delay:

Racing, Pari-Mutuel Wagering and Breeding Law § 321 provides that, when respondent suspends a harness racing participant’s license, the licensee may demand a hearing and, “[w]ithin thirty days after the conclusion of such hearing, [respondent] shall make a final order in writing.” The use of “shall” is not conclusive, however, inasmuch as the statute does not impose any limitation on respondent’s power to act or provide for any consequences for the failure to comply with the time limit … . Nor has petitioner cited any legislative history, and we are not aware of any, suggesting that the 30-day provision in the statute was intended to be mandatory. Rather, at the time this provision was enacted, similar language in the Alcoholic Beverage Control Law had been judicially determined to be directory … , yet the Legislature imposed no additional language limiting respondent’s power to act when it later enacted Racing, Pari-Mutuel Wagering and Breeding Law § 321.

Where, as here, an agency fails to follow a procedural provision that is merely directory, the subsequent determination should only be judicially annulled when the challenger can “show that substantial prejudice resulted from the agency’s noncompliance” … . Matter of Pena v New York State Gaming Commn., 2015 NY Slip Op 02821, 3rd Dept 4-2-15

 

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Misinformation from Defense Counsel, Prosecutor and Judge Re: Defendant’s Eligibility for Shock Incarceration Warranted Vacation of Guilty Plea In Spite of Appeal Waiver/Overnight Guest Has Standing to Contest Search of Residence

The Third Department, over a dissent, determined that misinformation from the judge, prosecutor and defense counsel about defendant’s eligibility for the shock incarceration program justified the vacation his guilty plea, despite an appeal waiver. In addition, the court determined defendant was entitled to a hearing on whether he had standing to contest the search of another’s mobile home.  The owner of the mobile home (Orrego) had supplied an affidavit stating defendant was an overnight guest, a status the provided standing to contest the search:

Given the mistake by all involved in the plea proceeding, and counsel’s failure to provide meaningful representation on this issue, we agree with defendant’s contention that his motion to withdraw his guilty plea should have been granted. * * *

… [A] trial court is not obligated to conduct a suppression hearing “unless the accused alleges facts that, if true, demonstrate standing to challenge the search or seizure” … . Pertinent here, “an overnight guest has an expectation of privacy in the host’s home” and, thus, standing to contest a search of that home … . In our view, the facts set forth in the Orrego affidavit necessitated, at a minimum, that a hearing be held to determine whether defendant had standing to contest the search… . People v Wiggins, 2015 NY Slip Op 02517, 3rd Dept 3-26-15

 

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

 

“Clearly Specious” Reason for Fellow Inmate’s Refusal to Testify Warranted Further Inquiry

The Third Department determined the hearing officer was obligated to inquire into an inmate’s (Douglas’) refusal to testify at petitioner’s hearing because the reason for the refusal was obviously specious:

As a general rule, “no violation of the right to call witnesses will be found when there was no prior assent to testify, but the reason for the refusal appears in the record” … . Further inquiry is nonetheless required, however, where the reason given by the witness for refusing to testify is “clearly specious” … . Here, Douglas’ claim to have no relevant knowledge is belied by the record evidence, which demonstrates that he was aware of the interactions between petitioner and the officer and, moreover, suggests that he was involved in the conspiracy against the officer. Therefore, because the hearing evidence “cast[] doubt on the authenticity of the reasons given” for Douglas’ refusal to testify, the Hearing Officer erred in accepting his alleged lack of knowledge at face value and conducting no additional inquiry … . Inasmuch as the determination is otherwise supported by substantial evidence and the Hearing Officer articulated “a good-faith reason for the denial [of Douglas as a witness] . . ., this amounts to a regulatory violation requiring that the matter be remitted for a new hearing” … . Matter of Jackson v Prack, 2015 NY Slip Op 02527, 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

 

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

 

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