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Newspaper Carriers Were Employees Despite Reference to Them as Independent Contractors In Employment Agreement

The Third Department affirmed the Appeal Board's determination that claimant newspaper-carrier was an employee, not an independent contractor. and therefore was entitled to unemployment insurance benefits, despite the “independent contractor” language in the contract:

“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. . . [B]oard, 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 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 [although] control over the means is the more important factor to be considered” … .

The evidence provided ample support for the Board's finding that [the employer] exercised control over significant aspects of the carriers' work and the means used to achieve timely and proper deliveries, and the Board's determination that the carriers were its employees is consistent with prior cases involving essentially similar facts … . … “[a] different finding is not compelled by the existence of a written agreement that identifies claimant as an independent contractor” … . Matter of Isaacs…, 2015 NY Slip Op 01215, 3rd Dept 2-11-15

 

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Teacher at a Community College Entitled to Unemployment Insurance Benefits—Teacher Was Offered Employment in the Next School Year But the Hours Were Drastically Reduced—Therefore the Teacher Did Not Receive “Reasonable Assurance of Continued Employment” within the Meaning of Labor Law 590(10)

The Third Department determined claimant, who taught at a community college, did not receive “reasonable assurance of continued employment” during the next school year and therefore was eligible for unemployment insurance benefits.  Claimant had been offered employment for less than a third of the hours he had worked in the past school year:

Labor Law § 590 (10) precludes professionals employed by educational institutions from receiving unemployment insurance benefits for periods between two successive academic years when the employer has provided them with a reasonable assurance of continued employment … . “A reasonable assurance . . . has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period” … . Whether a claimant received a reasonable assurance of employment is a question of fact for the Board to resolve and its findings in this regard will be upheld if supported by substantial evidence … .

Here, claimant worked 150 hours during the 2010-2011 academic year, but was only offered 45 hours during the 2011-2012 academic year, limited to the 2011 fall semester. The employer did not specify any hours for the 2012 spring semester either in its reappointment letter or notice advising claimant of his assignment, and claimant was offered significantly fewer hours during the 2011 fall semester than he had worked during the 2010 fall semester. Matter of Rosenbaum …, 2015 NY Slip OP 00926, 3rd Dept 2-5-15


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Even Where Probable Cause for Arrest Exists, a Search Can Not Be Justified as a Search Incident to Arrest Unless the Searching Officer(s) Intended to Arrest Based Upon the Existing Probable Cause—Here the Officers Did Not Intend to Arrest the Defendant for Littering and the Search Was Therefore Not a Valid Search Incident to Arrest

The Third Department determined the search of defendant's backpack was illegal and suppressed the weapon found. Although the defendant had discarded a cup while the officers were watching him, providing grounds for arrest for littering, the officers did not intend to arrest the defendant for littering and in fact did not charge the defendant with littering.  Therefore the search of the backpack could not be justified as a search incident to arrest:

Based on the recent Court of Appeals decision in People v Reid (__ NY3d __ 2014, 2014 NY Slip Op 08759 [2014]), which holds that there must be either an actual or intended arrest for the offense justifying the search, we now reverse.

It is well recognized that the police may search the person or area within the immediate control of any individual who is lawfully placed under arrest … . The warrantless search incident to arrest advances the twin objectives of ensuring the safety of law enforcement and the prevention of evidence tampering or destruction by a suspect. It is not particularly significant whether a search precedes an arrest or vice versa, so long as the two events occur in a nearly contemporaneous manner… . Based on Reid, however, it is now clear that the police must either make an arrest or intend to make an arrest at the time of the search in order for the search to be considered lawful … . The intent to arrest for the offense justifying the search must be present even if a defendant is ultimately arrested for a different offense … .

In Reid, the defendant was pulled over by a police officer after he was observed driving erratically. Based on the defendant's disheveled appearance and odd responses to questions, the officer ordered him out of the car, searched his person, and uncovered a knife in his pocket. Although it was undisputed that the officer's observations gave him probable cause to arrest the defendant for driving while intoxicated, the officer testified at the suppression hearing that he had no intention of arresting the defendant at the time he was initially stopped and searched. The officer also explained that it was not until discovery of the knife that he decided to arrest the defendant. In declining to uphold the search as incident to the defendant's arrest, the Court of Appeals observed that “but for the search,” the arrest “would never have taken place (2014 NY Slip Op 08759, *6),” concluding that it was irrelevant that an arrest for DWI could have been made prior to the search. The Court explained that the search must be “incident to an actual arrest, not just probable cause that might have led to an arrest, but did not” (2014 NY Slip Op 08759, *4). This necessarily requires that, at the time the search is undertaken, an arrest has either been made or the officer has already formulated the intent to effectuate an arrest.

While in this case the officers had probable cause to arrest defendant for littering (see Administrative Code of the City of New York § 16-118…]), defendant was not arrested for that offense. Nor did either of the officers testify at the suppression hearing that they harbored any intent to arrest defendant until they discovered the gun. According to officer Arslanbeck, it was only after they discovered a weapon in defendant's backpack that a decision to arrest him was made. Without an actual arrest or the formulation of an intent to arrest defendant for littering prior to frisking his bag, the search cannot be justified as having been incident to defendant's arrest … . People v Magnum, 2015 NY Slip Op 00796, 1st Dept 2-3-15


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Proof Requirements for an Employment-Discrimination Action (Executive Law 296) Explained

In finding that the employer demonstrated a non-discriminatory reason for firing the plaintiff, the Third Department explained the employment-discrimination proof requirements and analytical criteria under the Human Rights Law (Executive Law 296 (1)(a)):

To support a prima facie case of discrimination under the Human Rights Law (see Executive Law § 296 [1] [a]), a plaintiff must establish: “(1) that he [or she] is a member of the class protected by the statute; (2) that he [or she] was actively or constructive discharged; (3) that he [or she] was qualified to hold the position from which he [or she] was terminated; and (4) that the discharge occurred under circumstances giving rise to an inference of . . . discrimination” … . Assuming that low threshold is met, “[t]he burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision” … . If, in turn, the employer proffers the required nondiscriminatory reasons, “the plaintiff can avoid summary judgment by proving that the employer’s stated reasons were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason” … . “Notably, a challenge by a discharged employee to the correctness of an employer’s decision does not, without more, give rise to the inference that the employee’s discharge was due to . . . discrimination” … . Stated another way, “[i]t is not enough for the plaintiff to show that the employer made an unwise business decision, or an unnecessary personnel move. Nor is it enough to show that the employer acted arbitrarily or with ill will. These facts, even if demonstrated, do not necessarily show that [discrimination] was a motivating factor. [A] [p]laintiff cannot meet his [or her] burden of proving pretext simply by refuting or questioning the defendant[‘s] articulated reason” for terminating the plaintiff’s employment … . Miranda v ESA Hudson Val Inc, 2015 NY Slip Op 00670, 3rd Dept 1-29-15

 

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Appellate Court Defers to Agency Interpretation of a Statute When Specialized Knowledge Required

The Third Department affirmed the State Budget Director’s determination that state employees normally not entitled to overtime pay are eligible for overtime pay if they worked more than 47.5 hours in a week as a result of Hurricane Sandy.  Petitioners sought overtime pay for those who worked more than 40 hours per week.  The Third Department explained when an appellate court must defer to the statutory interpretation made by a state agency (the court so deferred here):

Initially, we must determine whether the Budget Director’s interpretation of Civil Service Law § 134 (6) is entitled to deference. This Court will defer to the governmental agency responsible for the administration of a statute when interpretation of the language at issue requires the agency’s expertise in the matters covered by the statute, but will accord no such deference when “the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent” … . Although the Civil Service Law provides that the “workweek for basic annual salary” for employees who are eligible for overtime shall not exceed 40 hours (Civil Service Law § 134 [1]), overtime-ineligible employees are expressly excluded from the coverage of that section, and nothing else in the legislation defines the phrase “normal workweek” as used in Civil Service Law § 134 (6) for such employees or prescribes the number of hours contained in such a workweek. Under these circumstances, in our view, the number of hours in the “normal workweek” of an overtime-ineligible state employee necessarily implicates the Budget Director’s specialized knowledge of state employment practices and “involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom” … . Accordingly, this Court will defer to the Budget Director’s determination and uphold it if it is not irrational or unreasonable … . Matter of Kent v Cuomo, 2015 NY Slip Op 00680, 3rd Dept 1-29-15

 

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Four-Month Statute of Limitations Starts Running When Administrative Agency’s Policy Change Is “Readily Ascertainable,” Not When Notice of the Policy Change Is Actually Received

The Third Department explained when the four-month statute of limitations begins to run when the triggering event is a policy memorandum issued by an administrative agency:

…[B]oth the statute and case law make clear that the statute of limitations period for a CPLR article 78 proceeding begins to run when “the determination to be reviewed becomes final and binding upon the petitioner” (CPLR 217 [1]…). Such determination, in turn, “becomes ‘final and binding’ when two requirements are met: completeness (finality) of the determination and exhaustion of administrative remedies. First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party” … . In the context of quasi-legislative determinations such as the one at issue here, actual notice of the challenged determination is not required in order to start the statute of limitations clock; rather, the statute of limitations begins to run once the administrative agency’s “definitive position on the issue [becomes] readily ascertainable” to the complaining party … . Matter of School Adm’rs Assn of NY State v New York State Department of Civ Serv, 2015 NY Slip Op 00676, 3rd Dept 1-29-15

 

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Revocation of Pistol Permit Upheld Despite Petitioner’s Acquittal on Related Criminal Charges—No Formal Revocation Hearing Is Required

In affirming the revocation of a pistol permit, the Third Department explained the criteria for review.  Here the petitioner had displayed a weapon during an altercation with a neighbor and had been acquitted of the related menacing charges.  The Third Department noted that no formal revocation hearing is required as long as petitioner has notice of the charges and an opportunity to respond:

There is no question that “[r]espondent [the judge who revoked the permit] is vested with broad discretion in determining whether to revoke a pistol permit and may do so for any good cause, including a finding that the petitioner lack[s] the essential temperament or character which should be present in one entrusted with a dangerous instrument. . . , or that he or she does not possess the maturity, prudence, carefulness, good character, temperament, demeanor and judgment necessary to have a pistol permit” … . No formal revocation hearing is required, and due process will be satisfied where the petitioner has been provided with notice of the charges and afforded an adequate opportunity to respond thereto … . Upon review, “respondent’s resolution of factual issues and credibility assessments are accorded deference, and the determination will not be disturbed absent an abuse of discretion or a showing that [such determination] was made in an arbitrary and capricious manner” … . Matter of DeAngelo v Burns, 2015 NY Slip Op 00669, 3rd Dept 1-29-15

 

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Penalty of Reasonable Attorney’s Fees Properly Assessed Against Claimant’s Attorney for Making Baseless Requests for a Change of Venue

The Third Department determined that the penalty of reasonable attorney’s fees was appropriate where claimant’s counsel made several baseless requests for a change of venue:

We have repeatedly upheld the imposition of a penalty of reasonable counsel fees pursuant to Workers’ Compensation Law § 114—a (3) (ii) when, as here, the record contains substantial evidence that a venue request was made without a reasonable basis … . The record reflects that there was no legitimate basis for seeking the venue change and the Board had previously rejected several similarly-worded venue change requests by counsel. Under these circumstances, the Board did not exceed its authority in assessing a penalty against counsel based upon the filings of the request to change venue and the appeal to the Board without reasonable grounds (see Workers’ Compensation Law § 114-a [3] [ii]; see also Workers’ Compensation Law §§ 23, 142), and its decision will not be disturbed … . Matter of Estwick v Risk Mgt Planning, 2015 NY Slip Op 00686, 3rd Dept 1-29-15

 

Construction Manager Did Not Have the Contractual Authority to Control the Manner In Which Work Was Done and In Fact Did Not Control the Manner In Which Work Was Done—Labor Law 240 (1) and 200 Causes of Action Properly Dismissed

The Third Department determined Supreme Court properly dismissed Labor Law 240 (1) and 200 causes of action against the construction manager because the construction manager (Sano-Rubin) did not possess the contractual authority to control, and in fact did not control, the manner in which the work was done.  The court explained the analytical criteria:

At the time of plaintiff’s injury, Sano-Rubin was serving as the construction manager for various construction projects occurring throughout the school district pursuant to a contract it had entered into with the school district. Plaintiff initially contends that there are factual issues as to whether Sano-Rubin’s role renders it a statutory defendant under Labor Law § 240 (1), which “imposes liability only on contractors, owners or their agents” … . Under this provision, a party that is operating as a construction manager is not deemed a statutory agent unless that party has “the authority to direct, supervise or control the work which brought about the injury” … . “The key criterion in ascertaining Labor Law § 240 (1) liability is not whether the party charged with the violation actually exercised control over the work, but rather whether [that party] had the right to do so” … . Similarly, under Labor Law § 200, which codifies the common-law duty of care as between owners, general contractors and their agents, the imposition of liability requires a showing that the defendant possessed the authority to direct or control the activity resulting in injury … .

Sano-Rubin’s contract with the school district provided that Sano-Rubin “shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the [w]ork of each of the [c]ontractors” and further, that if Sano-Rubin “observes any safety program or action at the site which it believes is improper or in violation of applicable law or rules, it shall immediately advise the [o]wner.” This contract was submitted upon the cross motion, together with proof of the implementation of these contractual limitations on Sano-Rubin’s authority … , These submissions were sufficient to establish its prima facie right to judgment as a matter of law… . Larkin v Sano-Rubin Constr Co Inc, 2015 NY Slip Op 00672, 3rd Dept 1-29-15

 

Employer’s Claim for Reimbursement from the Special Disability Fund for Death Benefits Paid Re: an Employee Who Died from Dust Disease Time-Barred—Even Though the Injury to the Employee Predated the Last Date for Such Claims, the Death Occurred After the Statutory Cut-Off Date

The Third Department determined the employer’s claim for reimbursement for death benefits paid on behalf of an employee who died from dust disease was time-barred.  Pursuant to Workers’ Compensation Law 15, new claims for reimbursement from the Special Disability Fund can not be made after July 1, 2010.  Even though the injury to the employee predated 2010, his death in 2011 required the filing of a “new” claim re: the death benefits (which cannot accrue until death):

Where, as here, an employee is disabled due to a dust disease, Workers’ Compensation Law § 15 (8) (ee) provides that an “employer . . . or carrier shall . . . be reimbursed from the special disability fund . . . for all compensation and medical benefits subsequent to those payable for the first . . . [260] weeks of disability for claims where the date of accident or date of disablement occurred on or after August [1, 1994].” Likewise, if an employee has died due to a dust disease, the statute provides that an “employer or . . . carrier shall be reimbursed from the special disability fund . . . for all death benefits payable in excess of . . . [260] weeks for claims where the date of accident or date of disablement occurred on or after August [1, 1994]” (Workers’ Compensation Law § 15 [8] [ee]). Such reimbursement is expressly subject to the limitations contained in Workers’ Compensation Law § 15 (8) (h) (2) (A), which “bars claims based upon dates of disablement or accident after July 1, 2007” … . That subdivision further expressly provides, as here dispositive, that “[n]o carrier or employer . . . may file a claim for reimbursement from the special disability fund after July [1, 2010] and no written submission or evidence in support of such a claim may be submitted after that date”… . Given the “clear and unambiguous” terms of the reimbursement limitations provision of section 15 (8) (h) (2) (A), this Court has given effect to the plain meaning of the language employed … by recognizing that the provision bars “all new claims after July 1, 2010” … .

We reject the employer’s argument that its claimed entitlement to reimbursement from the Special Disability Fund is not a “new” claim, on the premise that it relates back to the original disablement in 1999 thereby establishing its right to reimbursement for a death occurring after July 1, 2010. In this regard, a claim for reimbursement for death benefits is “separate and distinct” from the original claim for reimbursement for disability benefits … . That is, “[t]he right to death benefits does not accrue prior to death” and death, while not a new injury or accident, results in a “new claim” for purposes of death benefits reimbursement… . Matter of Connolly v Consolidated Edison, 2015 NY Slip Op 00673, 3rd Dept 1-29-14

 

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