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Claimant’s PTSD Linked to 6-Day Stint at the Site of the Collapse of the World Trade Center

The Third Department affirmed the Worker’s Compensation Board’s findings that claimant’s post-traumatic stress disorder (PTSD), for which claimant first sought treatment in 2010, was related to his 6-day stint at the site of the collapse of the World Trade Center in 2001.  The court explained the broad applicability of the relevant statutes (Workers’ Compensation Law article 8-A) and the criteria for a full Board review (newly discovered evidence or a material change in condition):

At the World Trade Center site, claimant engaged in “perimeter containment” and “transports.” He testified that he “help[ed] control who came and left the . . . site,” escorted people to the site and brought them materials, equipment and personnel. Based on this evidence, the Board reasoned that claimant’s activity constituted participation in World Trade Center rescue, recovery or cleanup operations pursuant to Workers’ Compensation Law article 8-A. Generally, the Board requires that the “claimant directly participate in or otherwise have some tangible connection to the rescue, recovery or cleanup operations”…; its reasoning here is consistent with prior Board decisions addressing this issue … . Claimant’s uncontroverted testimony indicated that he supplied direct support and assistance to first responders engaged in rescue and recovery efforts at ground zero; thus, the Board’s determination that Workers’ Compensation Law article 8-A applies is supported by substantial evidence and will not be disturbed … . Matter of Regan v City of Hornell Police Dept, 2015 NY Slip Op 00407, 3rd Dept 1-15-15

 

“Total Industrial Disability” Finding Affirmed—Partially Disabled Claimant Was Deemed Unable to Find Work Based Upon His Age, Education and Work History

The Third Department determined claimant, who had a marked permanent partial disability, was properly found to “totally industrially disabled” because his disability, coupled with his age, limited education and other factors, made it impossible for claimant to find work:

“A claimant who has a permanent partial disability may nonetheless be classified as totally industrially disabled where the limitations imposed by the work-related disability, coupled with other factors, such as limited educational background and work history, render the claimant incapable of gainful employment” … . Whether a claimant suffers from a total industrial disability is “a question of fact for the Board to resolve and its determination will not be disturbed if supported by substantial evidence” … . Matter of Rose v Roundpoint Constr, 2015 NY Slip Op 00421, 3rd Dept 1-15-15

 

Wrong Valuation Date Did Not Require Striking of Appraisal Report/Presumption of the Validity of the Town’s Assessment Rebutted by Appraisal Report

The Third Department determined Supreme Court properly considered petitioner’s appraisal, despite the wrong valuation date, and properly reduced the tax assessment. The Third Department explained the criteria for striking an appraisal (not met here) and the proof required to rebut the presumption of the validity of the town’s assessment (proof-requirement met here):

…[P]etitioner’s appraiser erred in initially using a valuation date of March 1, 2011 rather than July 1, 2010 in his report. Nevertheless, Supreme Court was not required to strike the report.

An appraisal report may be stricken for use of an incorrect valuation date if the use of the correct date would have resulted in a different estimated valuation … . In that regard, this Court has held that an appraisal report need not be stricken if the appraiser credibly testifies that the “report would not have differed” if the correct valuation date had been used … . We explained that a six-month difference was a “minor deviation in valuation dates” that caused “no prejudice to [the] respondents . . . so as to warrant striking [the] report” … . Here, petitioner’s appraiser testified that the change in the valuation date did not result in a different final value. Petitioner’s appraisal “report was supported by ascertainable and verifiable data” and, thus, “any questions regarding the propriety of [the] assessment would affect only the weight accorded to the appraisal by the court and did not undermine the validity of the entire appraisal” … .

Similarly lacking in merit is respondents’ argument that petitioner did not overcome the presumptive validity of the tax assessment. Inasmuch as “a rebuttable presumption of validity attaches to the valuation of property made by the taxing authority” …, a petitioner “[i]n an RPTL article 7 tax certiorari proceeding . . . challenging the accuracy of an assessment bears the initial burden of coming forward with substantial evidence that the property was overvalued by the assessor” … . “Substantial evidence is a minimal threshold standard that simply ‘requires that [a] petitioner demonstrate the existence of a valid and credible dispute regarding valuation . . .'” … . A taxpayer most often meets this burden through submission of “a detailed, competent appraisal based on standard, accepted appraisal techniques and prepared by a qualified appraiser” … . Matter of Gran Dev LLC v Town of Davenport Bd of Assessors, 2015 NY Slip Op 00424, 3rd Dept 1-15-15

 

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Question of Fact About Whether ATV Driven with Owner’s Permission Based Upon Owner’s Restrictions on Use of the ATV

The Third Department determined a question of fact had been raised about whether an all terrain vehicle (ATV) was being operated with the owner’s consent at the time of a collision (a requirement for vicarious liability–Vehicle and Traffic Law 2411).  The owner claimed only his grandson had permission to operate the ATV and operation of the ATV on a public highway was not permitted by him.  The accident occurred when the ATV was driven by someone other than the owner’s grandson (with the grandson’s permission) on a public highway.  The grandson was driving an ATV which had just been damaged in an accident and they were using the public highway to return to the off-road trails:

Although [the owner] and his grandson both confirm that the restrictions regarding where the ATV could be operated had been imposed, when the “the disavowals are arguably suspect, as where there is evidence suggesting implausibility, collusion or implied permission, the issue of consent should go to a jury” … . Here, the testimony of [the owner] is self-interested and his grandson–who is not a party–has no interest of his own in contradicting his grandfather’s position. Under these circumstances, we are persuaded that the grandson’s alleged directions and assurances to [the driver of the ATV] could imply, when viewed in the light most favorable to plaintiffs, [the owner’s] restrictions were flexible and had been lifted under the circumstances. Accordingly, the issue of implied permission should be determined by a jury … .

Sepsi v Watson, 2015 NY Slip Op 00414, 3rd Dept 1-15-15

 

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Grassy Area Where Plaintiff Fell Was Not Part of a Highway or a Sidewalk–Prior Written Notice of the Defect (to the Town) Not Required

The Third Department determined the town’s requirement that it be provided with written notice of a defect before the town can be held liable for a related slip and fall did not apply to the grassy area where plaintiff fell:

Where, as here, a municipality has enacted a prior written notice provision (see Code of the Town of Clifton Park § 176-1 [A]), “a plaintiff may not bring a civil action against [the] municipality for damages as the result of an injury sustained by reason of a defective street, highway, bridge, culvert, sidewalk or crosswalk unless prior written notice of the allegedly defective condition has been given” … . Hence, in order to prevail upon its motion for summary judgment dismissing the complaint, the Town was required to establish as a matter of law that the grassy area in question constituted — insofar as is relevant here — either a highway, a sidewalk or a site that serves the same “functional purpose” as a highway or sidewalk… .

To be sure, a highway “encompasses the associated shoulders, guardrails, embankments, retaining walls and culverts” (…see Highway Law § 2 [4]…). As relevant here, whether the land adjacent to a highway is paved or otherwise improved does not determine its status as a shoulder; rather, the inquiry is whether the area in question creates “a general right of passage for the traveling public” … . Here, the Town failed to establish that the grassy area where plaintiff fell was designed or intended to provide a general right of passage; further, it is readily apparent from the photographs contained in the record on appeal that the grassy area where plaintiff’s accident occurred is too far removed from the edge of Old Route 146 to be considered an adjacent shoulder or to otherwise fall within the definition of a highway … .

We reach a similar conclusion with respect to whether the grassy area may be deemed to fall within the definition of a sidewalk. In this regard, “a grass strip between the sidewalk and the pavement of the road [indeed] is part of the sidewalk” … . Here, however, the grassy area depicted in the relevant photographs does not lie between a sidewalk and a roadway and, contrary to the Town’s contention, the mere fact that plaintiff and her son were traversing the grassy area to access the nearby parking lot (owned by Northway 9 Associates) does not render this area the functional equivalent of a sidewalk … . Cieszynski v Town of Clifton Park, 2015 NY Slip Op 00423, 3rd Dept 1-15-15

 

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Only Out-of-Pocket Damages Allowed in Fraud Action (Re: a Real Estate Purchase Agreement)

The Third Department affirmed a judgment in favor of the plaintiffs stemming in large part from the fraudulent representation (re: a property information sheet) that a septic system, which failed, was “new.” The court noted the out-of-pocket rule for damages based upon fraud (lost profits/rents, etc. not recoverable):

[D]efendants’ realtor prepared a property information sheet — to be given to prospective buyers — bearing the notation, “Septic system totally new — le[a]ch field totally replaced — new 5000 gallon holding tank,” as well as the general qualification that “all information [was] deemed reliable but not guaranteed.” …[P]laintiffs … entered into a purchase and sale contract for the property. The contract, which reflected a purchase price of $545,000 and indicated that the buildings on the premises would be sold “as is,” also contained a waivable septic system contingency. Plaintiffs ultimately did not avail themselves of this contingency–a decision purportedly based, in part, upon plaintiffs’ belief that the property contained a new septic system. * * *

…[T]he case law makes clear that where, as here, a cause of action for fraud has been asserted, “[t]he true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong or what is known as the ‘out-of-pocket’ rule. . . . Damages are to be calculated to compensate plaintiffs for what they lost because of the fraud, not to compensate them for what they might have gained. Under the out-of-pocket rule, there can be no recovery of profits which would have been realized in the absence of fraud” … . Revell v Guido, 2015 NY Slip Op 00411, 3rd Dept 1-15-15

 

Children’s Attorney Entitled to Cross-Examine Petitioner’s Witnesses Despite Taking a Position Similar to Petitioner’s

The Third Department determined the children’s attorney was entitled to ask leading questions in the cross-examination of petitioner’s witnesses, even though the the attorney for the children had taken a position similar to petitioner’s.  The similar positions did not convert petitioner’s witnesses to witnesses for the children:

…[W]e reject respondent’s contention that Family Court erred by denying her request to require the attorney for the children to cross-examine petitioner’s witnesses before respondent’s cross-examination, or by permitting the attorney for the children to ask leading questions during cross-examination. Both of these claims are premised on respondent’s incorrect view that petitioner’s witnesses effectively became witnesses for the attorney for the children when she agreed with petitioner’s position. The duty of an attorney for the child is to represent the child and advocate for his or her position (see Family Ct Act § 241…). Contrary to respondent’s claim, the fact that here the exercise of this duty resulted in a position similar to that of petitioner did not effectively convert the two parties into one entity. Accordingly, the attorney for the children was entitled to ask leading questions while cross-examining petitioner’s witnesses (see Jerome Prince, Richardson on Evidence § 6-230 at 376 [Farrell 11th ed 1995]). Matter of Aniya L, 2015 NY Slip Op 00410, 3rd Dept 1-15-15

 

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Claimant’s Imprisonment for a Month After His Release Date Was Not Privileged

The Third Department affirmed the Court of Claims, finding that claimant’s confinement was not privileged.  Claimant had completed his sentence at the time of sentencing but he was held for a month:

…[I]n order to succeed on a claim of false imprisonment or unlawful confinement, claimant was required to show “that (1) defendant intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the confinement, and (4) such confinement was not otherwise privileged”… . The first three elements have undoubtedly been satisfied and, accordingly, the question distills to whether claimant’s confinement by DOCCS [Department of Corrections and Community Supervision] was privileged. The facts leading up to his detention are not in dispute and, after reviewing them, we agree with the Court of Claims that the confinement was not privileged.

Claimant was sentenced to a prison term as the result of his conviction and, “where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged” … . That being said, DOCCS was “‘conclusively bound’ by the terms of the sentence and commitment order,” which unambiguously directed that claimant be released after 1½ years of confinement … . DOCCS continued to confine claimant after that period had ended and, given the absence of any order that required it to do so, its actions were not privileged … . Miller v State of New York, 2015 NY Slip Op 00408, 3rd Dept 1-15-15

 

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Waterway Bordered by Private Land Deemed “Navigable-in-Fact”—Owners of the Land Cannot Prohibit Public Use of the Waterway

The Third Department, in a full-fledged opinion by Justice Garry, over a two-justice dissent, determined that a waterway bordered by private land in the Adirondacks was “navigable-in-fact” and the owners of the land (plaintiffs) bordering the waterway could not prohibit public use of the waterway.  The waterway was deemed “navigable-in-fact” even though a portion of it consisted of rapids which required canoeists to carry their canoes on a privately-owned path along the rapids:

Pursuant to the common law, a waterway on private property that is not navigable-in-fact is owned by the adjacent landowners, but a waterway that is navigable-in-fact “is considered a public highway, notwithstanding the fact that its banks and bed are in private hands” … . The State cannot alienate the right of the public to travel on a navigable-in-fact waterway by transferring title in its bed and banks to a private owner … . As riparian owners never obtain ownership interests in the waters of navigable-in-fact waterways, a judicial determination that the public has the right of navigation does not result in a taking for public use without compensation … . Accordingly, the import of a judicial determination that a waterway is navigable-in-fact is that it has always been open to the public in that character, even though the riparian owners may not have believed it to be, and no trespass was committed by a traveler who navigated upon it before a court ruled upon its navigability. * * *

…[W]here, as here, the State has no sovereign or proprietary ownership interest in the land and the waterway in question passes through private property, its navigability-in-fact is determined by a common law examination of “evidence of [the waterway’s] actual practical use or evidence of capacity for practical use” … . Historically, this analysis turned on whether the waterway had the capacity to be used for commercial transportation; the public was deemed to have the right to travel on “every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition fit for market, the products of the forests or mines, or of the tillage of the soil upon its banks” … . More recently, the Court of Appeals clarified that commercial use is not the only relevant factor, and that a waterway’s capacity for recreational use is also significant in determining its navigability. “[W]hile the purpose or type of use remains important, of paramount concern is the capacity of the river for transport, whether for trade or travel” … . The Court of Appeals stated that this holding neither altered nor enlarged the applicable common-law analysis and was “in line with the traditional test of navigability, that is, whether a river has a practical utility for trade or travel” … .

Accordingly, the Waterway’s navigability-in-fact must be determined based upon its utility for travel or trade as revealed by the testimony, affidavits, maps, photographs, historical records and other evidence in the voluminous record. * * *

The Waterway’s narrow, shallow character does not preclude such a finding, as a stream that can carry only small boats may nevertheless be navigable-in-fact … . Likewise, neither the portage around the relatively short Mud Pond rapids nor the presence in the Waterway of other incidental obstacles such as beaver dams and fallen trees renders the Waterway nonnavigable, as “occasional natural obstructions do not destroy the navigability of a [waterway]” … . On the contrary, the presence of such occasional obstructions in a navigable-in-fact waterway gives rise to a public right to circumvent them by “mak[ing] use, when absolutely necessary, of the bed and banks, including the right to portage on riparian lands” … . Friends of Thayer Lake LLC v Brown, 2015 NY Slip Op 00420, 3rd Dept 1-15-15

 

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Police Properly Entered the Apartment (Warrantless Entry) With the Consent of a “Lease Enforcement Officer” Who Believed the Apartment Was Occupied by “Squatters”

Police Properly Entered the Apartment (Warrantless Entry) With the Consent of a “Lease Enforcement Officer” Who Believed the Apartment Was Occupied by “Squatters”

The Third Department determined the police properly made a warrantless entry of the apartment where defendant [Anderson] was staying based upon the consent of a “lease enforcement officer” who believed the apartment was occupied by “squatters.”  The motion to suppress the weapon found near the defendant was, therefore, properly denied:

…John Downey, a lease enforcement officer, informed a police detective that he believed that Anderson’s apartment was vacant and that tenants frequently abandoned their units in the apartment building without providing notice. Downey further explained that he was authorized to enter apartments in order to ensure that they are secure and not occupied by squatters. Downey averred that he provided law enforcement officers with a key to the apartment because he was concerned that someone other than Anderson may have been staying there. When law enforcement arrived at the apartment and knocked on the door, there was no response and no noise was detected from inside the residence. Although it became obvious to the officers, after having entered the apartment, that it was not vacant, inasmuch as an objective view of the evidence adequately demonstrated that the police reasonably relied in good faith upon Downey’s apparent authority to allow entry into the apartment, County Court properly found that the warrantless entry –and resulting seizure of the gun that was in plain view–was not illegal… . People v Edwards, 2015 NY Slip Op 3rd Dept 1-15-15

 

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