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Insurance Agent Was an Employee, Not an Independent Contractor

The Third Department determined claimant, an insurance agent, was an employee of Aaron Casey Insurance, not an independent contractor, and, therefore, was entitled to unemployment insurance benefits:

Whether an employee-employer relationship exists “is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record” … . “While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important” … .

… [C]laimant was required to work a minimum of 30 hours per week, per a schedule set by Aaron Casey Insurance, and needed permission to take time off. In addition to servicing customers outside the office, claimant was responsible for performing in-office work, including answering phones and servicing walk-in customers. Claimant was paid an hourly wage plus commissions and was reimbursed for the costs associated with obtaining his insurance license. Additionally, claimant was provided training and was required to report back regarding sales leads, his work was reviewed by Aaron Casey Insurance and he had a sales quota and faced termination if it was not met. In our view, the foregoing is more than sufficient to support the Board’s finding of an employment relationship, notwithstanding the existence of other proof that could support a contrary conclusion … . Matter of Fahrson…, 2015 NY Slip Op 01515, 3rd Dept 2-19-15

 

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Department of Environmental Conservation’s Finding that the Owners of Land on Either Side of a Creek Also Owned a Dam Across the Creek, and Therefore Were Responsible for Making the Dam Safe, Was Not Supported by Substantial Evidence—Dam Had Been Conveyed to the City in Condemnation Proceeding

The Third Department determined that the Department of Environmental Conservation’s (DEC’s) finding that the owners of parcels of land bordering a creek also owned the dam spanning the creek between the parcels, and therefore the landowners were responsible for the work necessary to make the dam safe, was not supported by substantial evidence. The Third Department concluded the land under the water where the dam was located had been transferred to the City of Hudson in a condemnation proceeding:

We recognize that a riparian owner’s right to the natural flow of water along its land is properly classified as real property, equally with the land … . As such, a party could acquire an interest in the water flow separate and distinct from the land under the water … . The controlling point here, however, is that the “real estate” acquired in the condemnation, in conjunction with the indenture and agreement, is as defined under the WSA [Water Supply Act]. The comprehensive statutory definition for “real estate” embraces both the water and the “lands under water.” Because the [DEC] considered only the “rights” that the City acquired by the condemnation and not the “property,” the ALJ’s conclusion that petitioners own the dam is not supported by substantial evidence in the record. Berger v New York State Dept of Envtl Conservation, 2015 NY Slip Op 01496, 3rd Dept 2-19-15

 

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Relatively Low Degree of Corroboration Required to Admit Child’s Out-of-Court Statements Re: Abuse or Neglect

The Third Department, in a custody proceeding, explained the level of corroboration required to render a child’s out-of-court statements admissible:

Both the mother and the attorney for the children contend that the testimony of the father’s psychiatrist … concerning the older child’s out-of-court statements are inadmissible hearsay. We disagree. A child’s out-of-court statements are admissible in a custody dispute if the statements relate to abuse or neglect, provided that such statements are corroborated by other evidence … . “The degree of corroboration required is relatively low” … , and the hearing court “is accorded considerable discretion in determining whether there is sufficient corroboration” … . Heather B v Daniel B, 2015 NY Slip Op 01506, 3rd Dept 2-19-15

 

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Municipal Action Re: a Mining Permit Not Ripe for Review

In finding that the issue was not ripe for review, the Third Department explained the relevant analytical criteria:

A municipal action is ripe for judicial review if it “impose[s] an obligation, den[ies] a right or fix[es] some legal relationship as a consummation of the administrative process” … . Such a determination requires a “pragmatic evaluation of whether the decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury” … .

* * * … [A]ny harm to petitioner at this stage is merely speculative, may be ameliorated by further proceedings and is insufficient to warrant judicial review… . Matter of Troy Sand & Gravel Co Inc v Town of Nassau, 2015 NY Slip Op 01517, 3rd Dept 2-19-15

 

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Town, In Reviewing a Special Use Permit Application Under Its Zoning Regulations after the State Environmental Quality Review Act (SEQRA) Environmental Impact Statement (EIS) Process Is Complete, Must Rely on the SEQRA Findings and Cannot Make Further Environmental Impact Findings

In a mining-permit matter, the Third Department determined that, once a final Environmental Impact Statement (EIS) is approved after the State Environmental Quality Review Act (SEQRA) process is finished, the town (the lead agency) does not have the power to make further environmental-impact findings beyond those in the SEQRA record.  However, the town retains the power to do an independent review of the application for a special use permit under its zoning regulations:

…[A]lthough the Town is bound by DEC’s [Department of Environmental Conservation’s] SEQRA findings and it may not repeat the SEQRA process, it nevertheless retains the authority to make an independent review of plaintiffs’ application for a special use permit in accord with the standards and criteria set forth in its applicable zoning regulation … . That regulation provides that the Town may consider, among other things, the “health, safety, welfare, comfort and convenience of the public,” including “the environmental impact” of the proposed quarry (Local Law No. 2 [1986] of Town of Nassau art VI [A]). However, … the Town’s independent review [does not include] the ability to now gather additional environmental impact information beyond the full SEQRA record. Rather, in conducting its own jurisdictional review of the environmental impact of the project, the Town is required by the overall policy goals of SEQRA and the specific regulations governing findings made by “involved agencies” to rely on the fully developed SEQRA record in making the findings that will provide a rationale for its zoning determinations. Troy Sand & Gravel Co Inc v Town of Nassau, 2015 NY Slip Op 01511, 3rd Dept 2-19-15

 

Claimant Entitled to Partial Disability Benefits for a Back Injury Until the Relationship Between the Back Injury and Claimant’s Inability to Work Was Raised for the First Time at the Hearing—Claimant Had Stopped Working After an Unrelated Knee Injury

The Third Department determined the claimant was entitled to benefits re: his partial disability (for a back injury) up until the time the Special Fund raised, at the hearing, the requirement that claimant demonstrate his attachment to the labor market, i.e., the requirement that claimant demonstrate his inability to work was the result of the back injury.  Claimant had stopped working because of an unrelated injury to his knee and the Special Fund argued he was not entitled to any benefits for the back injury:

… [A]bsent a finding of involuntary retirement, claimants with a partial disability have “an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions” … . As the Special Fund concedes, however, the Board has previously held that awards should be continued until the carrier has raised the issue of labor market attachment, thereby allowing for development of the record on the issue … . The Special Fund does not challenge the principle set forth in the Board's prior decisions, but argues that they are distinguishable. We disagree. The award sought herein was for lost time prior to the date of the hearing, when the Special Fund raised the issue of attachment to the labor market for the first time. The award of benefits for that period was therefore entirely consistent with the Board's prior precedent. Matter of Scott v Rochester City Sch Dist, 2015 NY Slip Op 01219, 3rd Dept 2-11-15

 

Claimant Demonstrated His Partial Disability Prevented Him from Finding Work

The Third Department affirmed the Appeal Board's finding that claimant had demonstrated he was unable to find work due to his partial disability and was therefore entitled to benefits:

“Where a claimant has a permanent partial disability but there has been no finding of involuntary retirement, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions,” and the Board's determination in that regard will be upheld if supported by substantial evidence … . Here, the Board concluded that claimant credibly testified and provided corroborating documentary evidence that he actively participated in a job location service and engaged in an independent job search within his medical restrictions, thereby demonstrating attachment to the labor market … . The Board noted that, although jobs were available, when claimant advised prospective employers of his disability, he was told that no positions were available that would accommodate his medical restrictions … . Contrary to the employer's argument, the fact that claimant limited that search to jobs within the field that he had worked for nearly 50 years provides no basis to disturb the Board's decision … . Matter of Cole v Consolidated Edison Co of NY Inc, 2015 NY Slip Op 01220, 3rd Dept 2-11-15

 

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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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Defendant’s Verbal Abuse of His Lawyer Did Not Constitute a Waiver of His Right to Counsel—Criteria for Valid Waiver Explained

The Third Department determined the defendant did not, by his disruptive behavior and his telling his lawyer she was fired, waive his right to counsel:

Defendant’s “conduct unambiguously indicate[d] a defiance of the processes of law and . . . disrupt[ed] the [hearing] after all parties [were] assembled and ready to proceed,” and he arguably thereby forfeited his right to be present at the hearing … . Nevertheless, he did not validly waive his right to counsel. “For such a waiver to be effective, the trial court must be satisfied that,” among other things, “it has been made competently, intelligently and voluntarily” … . Thus, the court must undertake a “searching inquiry . . . when a defendant [seeks to] waive[] the right to counsel in favor of self-representation[,] aimed at [e]nsuring that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel” … . Here, Supreme Court did not make any attempt to apprise defendant of the risks inherent in proceeding pro se or the importance of counsel’s role, and there is no indication on the record before us that defendant “acted with full knowledge and appreciation of the panoply of constitutional protections that would be adversely affected by counsel’s inability to participate” … . Indeed, defendant stated that he did not wish to represent himself. Inasmuch as the court “did not make the requisite searching inquiry to [e]nsure that defendant was aware of the drawbacks of self-representation before allowing him to go down that path” … . People v Middlemiss, 2015 NY Slip Op 01208, 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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