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Defendant, a County Sheriff, May Not Have Had the Authority to Order the Plaintiff to Leave the Airport/Questions of Fact Raised About Whether Defendant Had Probable Cause to Arrest Plaintiff for Trespass and Disorderly Conduct/Questions of Fact Raised About Whether Excessive Force Was Used and Whether Plaintiff Was Subjected to Retaliation for the Use of Protected Speech

The Third Department determined Supreme Court properly denied defendant’s motion for summary judgment on plaintiff’s “false arrest” cause of action, and Supreme Court erred in granting the defendant’s motion for summary judgment on plaintiff’s “excessive force” and “retaliation for the use of protected speech” causes of action. The lawsuit stemmed from plaintiff’s being told by airport personnel that her daughter had not arrived as expected because she missed a connecting flight.  Plaintiff became upset when she couldn’t learn more about the status of her daughter.  Defendant, a county sheriff, came on the scene, ordered plaintiff to leave the airport, and, when plaintiff refused, arrested her for trespass and disorderly conduct. The Third Department determined there were questions of fact about whether defendant had probable cause to arrest plaintiff, as well as whether excessive force was used and whether the defendant acted in retaliation for protected speech. With respect to the trespass arrest, the court noted that defendant may not have had the authority to order plaintiff to leave the airport:

In assessing whether defendant met his initial burden of establishing that he had arguable probable cause to arrest plaintiff for trespass, proof of defendant’s authority to issue the blanket order directing plaintiff to leave the public facility must be examined. This is so because the “right to exclude ‘has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights'” … and, unless otherwise authorized, police do not have the inherent and general rights of a property owner (see e.g. US Const 4th Amend). The record demonstrates that, on the day in question, defendant was a county employee working in the county airport, a public facility. In support of his motion, defendant provided no proof that he was either prescribed by law or directed by the Tompkins County legislature to exercise any authority to lawfully order a citizen to leave this public property (see County Law § 650…). Nor did defendant’s proffer demonstrate that he was asked to remove plaintiff from the airport property by someone with the authority to do so … . Therefore, defendant did not establish as a matter of law that he had arguable probable cause to arrest plaintiff for criminal trespass because issues of fact exist as to whether, at the time of arrest, it was reasonable for defendant to believe that plaintiff was disobeying a lawful order … . Brown v Hoffman, 2014 NY Slip Op 08099, 3rd Dept 11-20-14

 

Persons Who Deliver Gannett Newspapers Are Employees Entitled to Unemployment Insurance Benefits Notwithstanding the “Independent Contractor” Designation in the Operating Agreements

The Third Department affirmed the unemployment insurance appeal board’s determination that the claimants, who delivered Gannett’s newspapers, were employees entitled to unemployment insurance benefits, notwithstanding the “independent contractor” designation in the operating agreements:

Whether an employer-employee relationship exists “is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence” … . “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” … . Here, while there is evidence to support a contrary outcome …, we find that the record contains substantial proof to support the Board’s finding that Gannett exercised control over claimants’ work. Gannett assigned claimants specific routes within predetermined delivery areas, required proof of a driver’s license and vehicle insurance where a vehicle was used to make deliveries and, while claimants were permitted to use a substitute carrier to fulfill delivery duties, they were required by contract to provide Gannett with proof that the substitute had a driver’s license and insurance if a vehicle would be used to complete deliveries. Additional contractual provisions included, among other things, requirements that claimants remove unsold publications from newspaper racks, ensure that racks were properly maintained, reserve publications of vacationing customers and create and maintain accurate circulation records that could be turned over, upon notice, to Gannett. Further, Gannett controlled other aspects of claimants’ activities, including directives to not insert or attach “foreign matter on, into or with copies of any publication, nor insert copies of any publication into or with copies of any other publication” without receiving Gannett’s approval. Notwithstanding the existence of evidence in the record that could weigh in favor of a finding that claimants were independent contractors, including that the operating agreements expressly designated claimants as independent contractors, in light of the indicia of control that Gannett had over claimants, we find that substantial evidence supports the Board’s decisions in these matters… . Matter of Armison…, 2014 NY Slip Op 08079, 3rd Dept 11-20-14

 

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Claimant Excluded from Eligibility for Unemployment Insurance Benefits by Labor Law 565 (Re: Major Policymaking or Advisory Positions)

The Third Department upheld the Unemployment Insurance Board’s determination that claimant was not entitled to unemployment insurance benefits by virtue of a statutory exclusion (Labor Law 565) for persons holding a major nontenured policymaking or advisory position:

For purposes of determining a claimant’s eligibility for unemployment insurance benefits, Labor Law § 565 (2) (e) excludes from employment “services rendered for a governmental entity by . . . a person in a major nontenured policymaking or advisory position.” Whether this exclusion applies presents a mixed question of law and fact, and the Board’s determination in this regard will be upheld if it has a rational basis … .

Here, claimant’s position had three primary functions: (1) to investigate patterns of discrimination involving violations of the Human Rights Law appropriate for filing an administrative complaint by DHR, (2) to oversee the prosecution of complaints brought on behalf of individuals, and (3) to evaluate DHR’s [Division of Human Rights’] issuance of exemptions for certain housing providers. In addition, claimant was a member of the stimulus oversight team responsible for ensuring that stimulus funds were distributed in a nondiscriminatory manner. In performing his duties, claimant reported directly to the Commissioner of Human Rights, had meetings with the Commissioner on a variety of matters and made recommendations on the implementation of agency policies. In addition, he represented the DHR in its dealings with other agencies while a member of the stimulus oversight team and devised a system for gathering accurate information concerning expenditures made in connection therewith. Although claimant did not independently establish agency policy, he was involved in the process and his advice was solicited by the Commissioner. Under these circumstances, there is a rational basis for the Board’s decision that claimant held a major nontenured policymaking or advisory position excluded under Labor Law § 565 (2) (e) … . Matter of Birnbaum…, 2014 NY Slip Op 07719, 3rd Dept 11-13-14

 

Retroactive Suspension of Child Support Payments Based On Interference With Payor’s Parental Rights Proper

In a lengthy and complex decision which addressed the proper allocation of marital and separate property, including the application of credits for the contribution of separate property to marital assets, the Third Department determined that child support payments can be suspended retroactively based upon interference with the payor’s parental relationship.  In a concurring decision, two justices expressed their concern that the availability of retroactive suspension of child support would lead to self-help, i.e., the unilateral suspension of payments without a court order.  To avoid that circumstance, the concurring justices suggested that child support payments be made to an escrow account pending a decision on the application to cease the payments (as was done in this case).  From the concurring decision:

While we agree with the result reached by the majority, we are compelled to voice our concerns regarding the practical effect of, and policy considerations surrounding, the retroactive suspension of a noncustodial parent’s obligation to pay child support. According to the longstanding jurisprudence of this Court, in certain circumstances, such as here, in which a custodial parent interferes with the parental rights of the noncustodial parent, a court may suspend the noncustodial parent’s child support obligation retroactive to the date an application for such suspension was made … . While we interpret the relevant statutes as prohibiting the child support payor from unilaterally discontinuing his or her payments during the pendency of a suspension application in the absence of a court order permitting such action, we are concerned that our previous decisions — and, to a certain extent, the majority decision here — which apply a suspension of child support retroactively, could actually promote such self-help. We, therefore, write separately to advocate for clarification and/or a modification of our precedent on this issue. * * *

…[W]e are of the view that a retroactive suspension of child support payments is appropriate only where, as here, the child support payor has, with court authorization, either paid child support into an escrow account or has obtained a temporary court order suspending payments during the pendency of the suspension application. In our opinion, requiring that child support payments be made in escrow is preferable, as it ensures that the noncustodial parent fulfills his or her child support obligations if the case is ultimately decided in favor of the custodial parent, while also making certain that the financial support is readily available for court-directed withdrawals, if necessary, for the custodial parent to meet the needs of the children … . If, on the other hand, the noncustodial parent prevails, a subsequent suspension of child support can truly be retroactive and allow for the return of monies paid into the escrow account without violating the public policy against recoupment and without encouraging the accrual of arrears. Whitaker v Case, 2014 NY Slip Op 07707, 3rd Dept 11-13-14

 

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Transmission Line from Hydroelectric Power Facility in Canada to Queens Properly Approved

The Third Department determined that the NYS Public Service Commission properly issued a certificate of environmental compatibility and public need (EC & PN) for an electric power transmission line running from a hydroelectric power facility in Canada to Queens.  After the issuance of the EC & PN, the petitioners sought a rehearing pursuant to Public Service Law 22.  The Commission denied the petition on the ground it had been filed and served one day late.  The Third Department held that the failure to timely file was nonprejudicial “law office failure” which should have been excused pursuant to CPLR 2005 and went on to review the Commission’s grant of the EC & PN on the merits, including the economic feasibility of the plan, the public need for the hydropower-produced electricity (reduced carbon emissions),  and the effects of the transmission line on the environment:

We begin by recognizing that, as parties to the proceedings at the agency level, petitioners have standing … . The criteria for authorizing the construction and operation of a major utility transmission facility are set forth in Public Service Law § 126. Under this statute, the Commission may not grant a certificate approving an electric transmission project unless it finds and determines (1) the need for the facility, (2) whether the facility will achieve the minimum adverse environmental impacts, (3) whether the facility will be located underground and comport with the state’s long-range plan to expand the electric power grid, (4) that there has been conformance with applicable state and local laws and regulations, and (5) that the facility promotes the public interest, convenience and necessity (see Public Service Law § 126 [1] [a]-[d], [f], [g]). This project involves the placement of a high voltage, direct current transmission line extending from the Canadian border to a converter station in Queens and, from there, a high voltage, alternating current transmission line to the Rainey Substation. The line will be placed underwater in Lake Champlain and the Hudson River and underground in the upland segments. * * *

Petitioners contend that the Commission failed to adequately consider the potential harm to aquatic species, including the endangered shortnose and atlantic sturgeon, posed by the placement of cables underwater. The plan requires the underwater cables to be buried at least six feet beneath the lake/river bottom, except in areas of utility crossings and hard rock. In these areas, the cable will be covered by concrete mats. The specific risks emanate from the use of the concrete mats as well as magnetic and electromagnetic field impact. The record supports the Commission’s determination that any risk has been minimized by the placement of the cable route utilizing existing habitat information designed to avoid significant coastal fish and wildlife habitat areas designated by the Department of State (see 19 NYCRR part 602) and the exclusion zones identified by the parties in the joint proposal. There is also expert record evidence supporting the Commission’s conclusion that the magnetic fields’ impact on sturgeon and other aquatic species would be minimal. Further, we agree with the Commission’s observation that the July 5, 2011 letter from the Army Corps of Engineers addressing the cable route under Lake Champlain and the Hudson River was a preliminary assessment. Moreover, the certificate is conditioned on the applicants’ procurement of a construction permit from the Army Corps of Engineers, which has jurisdiction over these navigable waterways, prior to commencing construction.  Matter of Entergy Nuclear Power Mktg LLC v New York State Pub Serv Comm, 2014 NY Slip Op 07711, 3rd Dept 11-13-14

 

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Real Estate Broker Not an Employee of Commercial Real Estate Firm

The Third Department upheld the Unemployment Insurance Appeal Board’s determination that claimant, a real estate broker, was not an employee of a commercial real estate firm (Optimal):

It is well settled that the existence of an employment relationship is a factual issue for the Board to decide and its determination will be upheld if supported by substantial evidence … . The pertinent inquiry is whether the purported employer exercised control over the results produced or the means used to achieve those results, with control over the latter being more important … .

Evidence was presented that claimant was paid a commission of 60% of the brokerage fee collected by Optimal, which she negotiated with Optimal’s senior managing director. Moreover, claimant did not have an established work schedule or work location, independently maintained her own real estate license, carried her own business cards and was permitted to and did receive commissions on referrals from other parties. Notably, she was not required to report to anyone at Optimal nor was she required to accept leads that Optimal sent to her. In view of the foregoing, while we are unable to conclude, as a matter of law that no employment relationship exists (see Labor Law § 511 [19]), substantial evidence supports the Board’s finding that Optimal did not exercise sufficient control over claimant’s work to be deemed her employer … . Matter of Spielberger…, 2014 Slip Op 07564, 3rd Dept 11-6-14

 

Unexcused Late Disclaimer of Coverage Invalid and Unenforceable

The Third Department determined the insurer’s disclaimer of coverage was invalid and uneforceable because it was inexcusably late.  The court noted that a “reservation of rights letter” does not constitute a disclaimer:

An insurer’s decision to disclaim liability insurance coverage must be given to the insured, in writing, as soon as is reasonably practicable, “failing which the disclaimer or denial will be ineffective” (… see Insurance Law § 3420 [d] [2]…). While the timeliness of an insurer’s notice of disclaimer generally raises an issue of fact for a jury to decide, where, as here, the basis for a disclaimer “was or should have been readily apparent before the onset of the delay,” the delay will be found to be unreasonable as a matter of law … . “Reasonableness of delay is measured from the time when the insurer learns of sufficient facts upon which to base the disclaimer” … . * * *

Even after receiving the attorney’s summary, which ostensibly equipped it with sufficient facts to issue a written disclaimer, plaintiff instead sent defendant a reservation of rights letter, which does not serve as “a substitute for the required notice of disclaimer” … . Vermont Mut Ins Co v Mowery Constr Inc, 2014 NY Slip Op 07537, 3rd Dept 11-6-14

 

Employer Took Responsibility for Transporting Claimant Home After Cancellation of Work Due to a Storm—Injury During Ride Home Compensable

The Third Department affirmed the Workers’ Compensation Board’s determination that plaintiff was injured on the job.  A snowstorm forced the cancellation of work and the employer took responsibility for getting the claimant home.  Because the van used to transport claimant had no seats, claimant injured her spine during the trip:

Generally, travel to and from the place of employment is not considered to be within the scope of employment and, thus, injuries sustained during that period are not compensable … . However, an exception arises when the employer takes responsibility for transporting employees, particularly where the employer is in exclusive control of the means of conveyance … . The key determination in establishing compensability is whether there is “some nexus between the accident and the employment” … . Here, it is undisputed that the employer furnished the van for transportation, one of claimant’s supervisors was the driver and, further, claimant’s injuries were sustained during the course of that transportation while she was still on the clock and being paid. Inasmuch as the employer took responsibility for the inherent risks of transporting its employees from the work site and had exclusive control of the conveyance, we find no reason to disturb the Board’s determination that claimant’s injury arose out of and in the course of her employment … . Matter of Noboa v International Shoppes Inc, 2014 NY Slip Op 07540, 3rd Dept 11-6-14

 

Where an Injured Worker Remains Attached to the Work Force After Injury, the Measure of Benefits Is the Difference Between Actual Earnings Before and After Injury and Cannot Be Based On Evidence of What the Worker Could Be Earning

The Third Department determined that the Workers’ Compensation Board correctly calculated the benefits to which claimant was entitled based upon her actual earnings in her new job in a delicatessen, as opposed to the amount her employer argued she was capable of earning.  Claimant was a nurse’s aid who injured her back while working in a nursing home:

Following a hearing, a Workers’ Compensation Law Judge determined that she had a permanent partial disability and calculated her weekly compensation rate — i.e., two thirds of the difference between what her average weekly wage would be absent injury and her current wage-earning capacity (see Workers’ Compensation Law § 15 [3] [w]), as measured by her degree of disability. Upon claimant’s application for review, the Workers’ Compensation Board increased claimant’s degree of disability and concluded that her wage loss benefits should be based upon her actual reduced earnings from the delicatessen where she now works, as opposed to her degree of disability, and adjusted her weekly awards accordingly. …

“[B]efore awarding wage replacement benefits in a nonschedule permanent partial disability case,” the Board must determine “whether a claimant has maintained a sufficient attachment to the labor market” … — i.e., that the claimant’s “reduced earning capacity is due to the disability, not . . . factors unrelated to the disability” (id. [internal quotation marks and citations omitted]), such as “‘age, [or] general economic conditions'” … . Once it is determined that a claimant’s reduced earning capacity remains involuntary and related to his or her permanent partial disability, “[t]he wage earning capacity of an injured employee . . . shall be determined by his [or her] actual earnings” while disabled (Workers’ Compensation Law § 15 [5-a]…). In that regard, the Court of Appeals has repeatedly explained that, for claimants who have demonstrated that they remained attached to the labor market, “where actual earnings during the period of the disability are established, wage earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more or less during such disability period”… . Matter of Gioia v Cattaraugus County Nursing Home, 2014 NY Slip Op 07535, 3rd Dept 11-6-14

 

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Odor of Burnt Marijuana Provided Probable Cause to Search Defendant and Vehicle

The Third Department determined that, upon a valid traffic stop, the odor of burnt marijuana detected by officers Denise and Knoetgen provided probable cause for the search of the vehicle and its occupants:

As for the propriety of the … pat down and/or search of defendant, “it is well established that [t]he odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search a vehicle and its occupants” … . Here, both Denise and Knoetgen testified that they smelled burnt marihuana emanating from defendant’s clothing and the vehicle in which he was riding. Even accepting that Denise’s experience in detecting this distinctive odor was not sufficiently developed at the suppression hearing, we are satisfied that Knoetgen, as a drug recognition expert and a K-9 drug detection officer, possessed the requisite training and experience to do so. Further, and as noted previously, Knoetgen testified that the driver of the vehicle admitted that he and defendant had smoked marihuana prior to being pulled over for the underlying traffic violation … . As the circumstances presented and the observations made by the troopers provided probable cause for Knoetgen’s pat down/search of defendant, we discern no basis upon which to suppress the drugs subsequently seized from defendant’s pant leg. People v Rasul, 2014 NY Slip Op 07378, 3rd Dept 10-30-14

 

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