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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

 

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

 

One Incident Where Young Children Were Left Alone Overnight Not Enough to Support a Neglect Finding/No Showing of Imminent, as Opposed to Merely Possible, Danger of Impairment to the Children

The Third Department reversed Family Court and determined a single incident of mother’s leaving young children (9 and 3) home alone overnight was not enough to support a neglect finding.  The court explained the proof requirements in some depth:

To satisfy its burden on the neglect petition, petitioner had to prove by a preponderance of the evidence that respondent’s failure “to exercise a minimum degree of care” in providing proper supervision or guardianship resulted in the children’s “physical, mental or emotional condition” being impaired or placed “in imminent danger of becoming impaired” (Family Ct Act § 1012 [f] [i]; see Family Ct Act § 1046 [b] [i]…). There are two prongs: actual or imminent danger, and failure to exercise a minimum degree of care … . The Legislature’s requirement of actual or imminent danger of impairment prevents state intrusion into private family life in the absence of “serious harm or potential harm to the child, not just . . . what might be deemed undesirable parental behavior” … . “Imminent danger, however, must be near or impending, not merely possible” … . * * *

…[T]he record does not indicate that petitioner established the first prong, that the three youngest children were in imminent danger of impairment, when respondent left them alone overnight. One police officer testified that the children were visibly upset when he first arrived at the house. That testimony is too vague to establish impairment of mental or emotional condition, and the record does not contain any expert opinion to that effect … . Even if that testimony was sufficient to show some impairment, it is unclear if the children were upset because of respondent’s actions in leaving them alone … . Leaving young children home alone overnight cannot be condoned, and such behavior satisfies the second prong of neglect in that respondent failed to exercise a minimum degree of care, did not provide proper supervision and her actions fell below what a reasonable and prudent parent would do in those circumstances. Nevertheless, one incident of this improper and irresponsible behavior does not qualify as neglect without a showing of imminent—rather than merely possible—danger of impairment to the children … . Matter of Javan W, 2015 NY Slip Op 00577, 3rd Dept 1-22-15

 

Safety Regulation Asserted to Be the Basis of the Labor Law 241 (6) Cause of Action Did Not Apply to the Defect Which Caused the Injury

The Third Department determined plaintiff’s injury from his use of a utility knife did not entitle him to recovery pursuant to Labor Law 241 (6).  The safety regulation alleged to have been violated prohibited a contractor from supplying tools with split or loose handles.  The problem with the utility knife was a loose locking mechanism.  The court refused to stretch the meaning of “loose or split handles” to include a loose locking mechanism:

Plaintiffs allege in their bill of particulars that defendant violated 12 NYCRR 23-1.10 (a), which states, in pertinent part, that unpowered hand tools with “[s]plit or loose tool handles shall not be used.” Notably, this regulatory provision does not merely impose a general duty to keep unpowered hand tools in a “safe,” “proper” or “adequate” condition …, nor does it proscribe the usage of hand tools with “unsafe” or “defective” handles, but, rather, specifically prohibits the use of hand tools with “[s]plit or loose . . . handles.”

Having determined that plaintiffs have asserted a violation of a regulatory provision that “‘sets forth a specific standard of conduct'” for general contractors and owners …, thereby providing a predicate basis for a claim under Labor Law § 241 (6), we are left to decide whether the regulation applies to the facts presented in this case [FN2]. Plaintiff explained during his examination before trial that, while he was cutting a piece of plastic with a utility knife, the locking mechanism that secures the retractable blade was loose, causing the blade to break in half and cut plaintiff’s wrist. Whether the dysfunctional locking mechanism can fairly be considered to be a “[s]plit or loose tool handle[]” is a question of law to be decided by the courts … . A fair reading of the regulation upon which plaintiffs rely, however, does not compel us to conclude that the looseness of the locking mechanism — an internal component of the knife and not a visible or functional part of the handle itself — was what the Commissioner of Labor had contemplated in his promulgation of 12 NYCRR 23-1.10 (a) … . We are well aware that the Industrial Code “should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” … . However, while the regulation sets forth a strict prohibition against using tools that have loose or split handles, it makes no mention whatsoever of the locking mechanism found within a hand tool, and we are thus constrained to determine that it is inapplicable. Boots v Bette & Cring LLC, 2015 NY Slip Op 00588, 3rd Dept 1-22-15

 

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Question of Fact Whether Out-of-Possession Landlord Created the Dangerous Condition Which Caused Gas Escaping from a Propane Tank to Ignite/Question of Fact Whether the Injured Employee’s Negligent Act (the Employee, Against the Direction of His Supervisor, Brought a Partially-Filled Propane Tank Inside the Building) Was Foreseeable

The Third Department determined a question of fact had been raised about the out-of-possession landlord’s liability for an accident which ignited gas from a propane tank.  The landlord had converted the building where the accident occurred for the operation of a propane tank refinishing business.  The business was continued by the tenant.  An expert concluded that there were several ignition sources within the building, installed by the landlord, which could have ignited the gas.  Therefore, there was a question of fact whether the out-of-possession landlord had created the dangerous condition.  In response to the argument that the negligence of injured employee (who brought a propane tank which still had gas in it into the building) was the sole proximate cause of the accident, the Third Department determined there was a question of fact about whether bringing such a partially filled tank inside the building (something employees were directed not to do) was foreseeable:

… [I]t is well established that, generally, “once possession has been transferred to a tenant, an out-of-possession landlord will not be held responsible for dangerous conditions existing upon leased premises” … . Exceptions to the general rule do exist, including situations where the landlord retains control over the leased premises, has agreed to repair or maintain the premises or “has affirmatively created the dangerous condition” … .

… [Landlord and tenant-employer] assert that the reckless conduct of [tenant’s] employees was the sole proximate cause of the explosion and that defendant cannot be held liable to plaintiffs merely because it allegedly furnished the condition that allowed for the accident. In order to sever the causal connection in this matter, it must be demonstrated that the employees’ actions were “extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from … defendant’s conduct” … . Certainly, the act of the [tenant’s] new employee of bringing a tank that was not marked as empty into the building –against the direct instructions of his supervisor–was negligent. Nonetheless, defendant and third-party defendant have failed to show that such conduct was unforeseeable, thereby “sever[ing] any causal link between [defendant’s] negligence and [decedent’s] injuries” … . Miller v Genoa AG Ctr Inc, 2015 NY Slip Op 00586, 3rd Dept 1-22-15

 

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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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