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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

 

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

 

For Each Year the Business Investment Exemption from Real Property Tax Law Is Sought, a Separate Application Must Be Made

The Third Department determined Supreme Court erred when it ruled petitioner, the owner of commercial real property, did not need to apply for a business investment property tax exemption (Real Property Tax Law [RPTL] 485-b) each year for which the exemption is sought.  Supreme Court had granted the exemption for several years based upon one application:

We are mindful that an RPTL 485-b exemption may be obtained upon a single application … . The separate point here, however, is that property owners must preserve their right to relief through annual challenges to the assessment pending a determination of the original assessment challenge. Since petitioner failed to do so here, Supreme Court lacked jurisdiction to direct the District to refund payments made based on the 2009 through 2011 assessments … . Matter of Highbridge Broadway LLC v Assessor of the City of Schenectady, 2015 NY Slip Op 00682, 3rd Dept 1-29-15 

 

 

Interest Paid In Advance Should Not Be Deducted from the Face Amount of the Loan When Determining Interest Rate—Law of Usury Does Not Apply to Interest After the Maturity of the Note (Late Payments)

The Third Department explained the law of usury as it related to interest paid in advance and interest after maturity of the note (late charges):

The defense of usury requires clear and convincing evidence of a loan given with the intent to take interest in excess of the legal rate … . As relevant here, a loan is usurious if the annual interest rate exceeds 16% (see General Obligations Law § 5-501 [1]; Banking Law § 14-a [1]). Defendant bases his claim of usury on his advanced interest payment, claiming that the annual interest rate should be calculated by dividing the total annual interest, $18,750, by the total received at closing, $115,625, resulting in an annual interest rate of 16.2%. However, the Court of Appeals has held that “interest on the whole amount of principal agreed to be paid at maturity, not exceeding the legal rate, may be taken in advance” … . Thus, under the traditional method of computation as set forth in Band, the prepaid interest is not deducted from the face amount of the loan and defendant was charged a legal rate of 15% interest … . Defendant’s contention that the late charges incurred after the default should also be included in the calculation of interest is unavailing, because “[t]he defense of usury does not apply where the terms of a promissory note impose a rate of interest in excess of the statutory maximum only after maturity of the note” … . Martell v Drake, 2015 NY Slip Op 00685, 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

 

Responsibility for Payments for a 1999 Claim (Which Was Reopened After 13 Years) Shifted from the Workers’ Compensation Carrier to the Special Fund—Rationale for the Special Fund Explained—Payments Made by Carrier Re: a 2005 Claim Were Not Partially Attributable to the 1999 Claim—Therefore the Carrier Was No Longer Responsible for Payments Re: the 1999 Claim

The Third Department determined payments made by the employer re: a 2005 claim were not partially attributable to a 1999 claim. Therefore, any “new” payments re: the 1999 claim were the responsibility of the Special Fund, not the Workers’ Compensation carrier:

Workers’ Compensation Law § 25-a (1) provides, in relevant part, that “when an application for compensation is made by an employee . . . after a lapse of seven years from the date of the injury . . . and also a lapse of three years from the date of the last payment of compensation, . . . if an award is made it shall be against the special fund” … . “The purpose of [the statute] is to save employers and insurance carriers from liability . . . for stale claims of injured employees” … . Here, the 1999 claim was reopened in 2012, approximately 13 years after the December 3, 1999 injury and 12 years after the September 27, 2000 closing of the case. The Special Fund, however, asserts that the carrier continued to make payments on the 2005 claim that it knew were partially attributable to injuries sustained by claimant in connection with the 1999 claim and that, consequently, three years did not pass from the date of the last payment of compensation, thereby precluding liability from shifting under Workers’ Compensation Law § 25-a. We note that “[p]ayments that are made voluntarily, and in recognition of the employer’s liability, are considered advance compensation and will prevent the transfer of liability to the Special Fund” … . Significantly, “whether an advance payment of compensation has been made is a factual question for the Board to resolve, and its determination in this regard, if supported by substantial evidence in the record as a whole, will not be disturbed” … .

Upon reviewing the record, substantial evidence supports the Board’s finding that the carrier did not make an advance payment of compensation. There is no indication that the carrier knowingly made payments on the 2005 claim that were partially to compensate claimant for injuries sustained in connection with the 1999 claim. Matter of Wetterau v Canada Dry, 2015 NY Slip Op 00672, 3rd Dept 1-29-15

 

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Pulling Into Traffic Without Activating Lights and Siren Did Not Constitute Reckless Disregard for the Safety of Others

The Third Department determined the vehicle accident was not the result of “reckless disregard for the safety of others” (vehicle and Traffic Law 1104) on the part of a police officer responding to an emergency.  Apparently the officer (Derkowski) had just began a pursuit and was pulling into traffic without his lights or siren activated when the collision occurred:

Derkowski intended to pursue a fleeing suspect in his patrol car, a pursuit that gained additional urgency when he spotted the suspect driving north on Lafayette Street (cf. Muniz v City of Schenectady, 38 AD3d at 991). Prior to turning onto the street in order to follow the suspect, Derkowski looked in both directions to ensure that no traffic was coming. His view of the southbound lane was obscured, however, by several illegally parked vehicles. Derkowski then turned left onto the street and collided with plaintiff. Derkowski did not activate his emergency lights or siren prior to turning, and plaintiff testified that it did not appear that Derkowski had his headlights on. Inasmuch as the pursuit had just commenced and Derkowski checked for oncoming traffic before turning, his failure to have lights and sirens on constituted nothing more than “a momentary lapse in judgment not rising to the level of ‘reckless disregard for the safety of others'” … . Rouse-Harris v City of Schenectady Police Dept, 2015 NY Slip Op 00591, 3rd Dept 1-22-15

 

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