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Teacher’s Refusing to Agree to One Year Extension of Probationary Period Did Not Constitute Disqualifying Misconduct

The Third Department reversed the Unemployment Insurance Appeal Board and determined that a teacher’s refusing to sign an agreement that would have extended her probationary period was not disqualifying misconduct:

Refusing to comply with an employer’s reasonable directive to sign a document can constitute insubordination and, thus, disqualifying misconduct … . This is not a situation, however, in which claimant was asked, and refused, to sign a document that was necessary to the operation of the employer’s business … . Under the Education Law, where a teacher has been on probationary status for three years, the employer must either grant the teacher tenure, terminate the employment or agree to an extension of the probationary term (see Education Law § 2573 [1]; … see also Education Law §§ 2509 [1]; 3012 [1]; 3014 [1]). Here, the employer chose not to grant claimant tenure and, instead, offered her an extension of probation. As opposed to refusing to perform a job duty, claimant merely declined to enter into a new contract with the employer on its proffered terms … . Although claimant’s refusal to sign the extension agreement could possibly be classified as her voluntarily leaving employment without good cause while the employer was offering continuing work, which would be a basis for denying unemployment insurance benefits …, the employer did not assert that claimant quit. Matter of Jackson, 2014 NY Slip Op 06237, 2nd Dept 9-18-14

 

“Contract Attorney” Properly Determined to Be an Employe

The Third Department determined an attorney who was hired by a firm as a “contract attorney” was entitled to unemployment benefits:

“[I]t is well settled that the existence of an employer-employee relationship is a factual issue for the Board to decide and its determination will not be disturbed if supported by substantial evidence” … . Inasmuch as the work at issue here involved professional services that generally do not lend themselves to close supervision or control of the details of the work, the pertinent inquiry is whether the employer has retained “overall control,” and “substantial evidence of control over important aspects of the services performed other than results or means is sufficient to establish an employer-employee relationship” … . In that regard, West hired claimant after an interview and based upon his analytical expertise acquired during a federal clerkship. West set his rate of pay at $100 an hour or on a per project basis, and provided him with a parking pass, office, desk, computer, receptionist, a firm email address and information technology support. Two attorneys supervised him, gave him instructions on how to perform his tasks, told him to ask permission before pursuing new legal issues, reviewed his work and made revisions. He was also covered under West’s malpractice insurance. In our view, the foregoing constitutes substantial evidence to support the Board’s decision that claimant was an employee of West, even if evidence exists to support a contrary conclusion… . Matter of Lavalley, 2014 NY Slip Op 06232, 3rd Dept 9-18-14

 

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Failure to Subpoena Witness Required Reversal

The Third Department reversed the Unemployment Insurance Appeal Board because the putative employer, Brody, was entitled to call the claimant as a witness in a proceeding to determine whether Brody was required to make further unemployment insurance contributions. Claimant had done work for Brody and had subsequently applied for and was granted unemployment insurance benefits. Brody asked that claimant be subpoenaed to testify but the administrative law judge (ALJ) denied the request:

Brody was entitled to call claimant as a witness and, moreover, had the right to request that the ALJ issue a subpoena to compel her attendance (see Labor Law § 622 [1]; 12 NYCRR 461.4 [c]…). Claimant plainly had relevant testimony to offer as to whether an employer-employee relationship existed between her and Brody. The ALJ nevertheless declined to issue the requested subpoena, pointing out that counsel for Brody could have subpoenaed claimant directly. The failure to either issue a subpoena or to adjourn the proceedings so that counsel could do so constituted an abuse of discretion under the circumstances of this case and, thus, “we believe that the proper course is to reverse the Board’s decision and remit this matter for further proceedings”… . Matter of Philip…, 2014 Slip Op 06129, 3rd Dept 9-11-14

 

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Hearsay Deemed Insufficient to Support Determination

The Third Department annulled the disciplinary determination because the hearsay information upon which it was based was deemed insufficient:

“While hearsay evidence in the form of confidential information may provide substantial evidence to support a determination of guilt, the information must be sufficiently detailed to allow the Hearing Officer to make an independent assessment to determine its reliability and credibility” … . Notably, where the Hearing Officer obtains such information through the testimony of a correction officer who has interviewed a confidential informant, the questioning must be thorough and specific, to allow an adequate basis to gauge the informant’s knowledge and reliability … . The Hearing Officer may not base his or her conclusion solely upon the correction officer’s assessment of the confidential informant’s truthfulness … .

Here, the captain who prepared the misbehavior report stated that an inmate he spoke with identified petitioner as the individual who told other inmates in the mosque not to participate in the ILC election process. He stated that another inmate, who he apparently did not interview, gave a note to another correction official that similarly implicated petitioner. The correction official who received the note testified that he received several confidential letters from inmates indicating that petitioner was a major participant in the scheme to force inmates to boycott the ILC election process. He stated that he personally interviewed three inmates and, without revealing their identities to the Hearing Officer, related the information that they disclosed to him.

A number of deficiencies with the in camera interview lead us to conclude that it did not provide an adequate basis for the Hearing Officer to independently assess the credibility and reliability of the confidential information. First, the captain did not provide any testimony to establish whether the inmate he interviewed had previously provided credible information to him or other officials, and he admitted that he did not even know the inmate who gave the note to the other correction official. Similarly, the correction official who interviewed the three unidentified inmates did not articulate the bases for finding their statements to be believable. Significantly, none of the letters or notes written by inmates allegedly implicating petitioner were admitted into evidence … . Further, the statements of the inmates interviewed by the two officials lacked adequate specificity to establish petitioner’s status as a leader of the boycott, or his act of threatening violence … . Given these deficiencies, and as the confidential information was instrumental to the finding of guilt, we conclude that the determination is not supported by substantial evidence and must be annulled … . Matter of Muller v Fischer, 2014 NY Slip Op 06024, 3rd Dept 9-4-14

 

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SORA Point Assessments Affirmed Over Two-Justice Dissent Arguing the Proof of Online Sexual Conduct Was Insufficient, the Evidence of “Grooming” the Victims Was Insufficient, and the Social Immaturity of the Defendant Should Have Been Considered as a Mitigating Factor

The Third Department, over a two-justice dissent, determined that the points assessed by County Court in a SORA proceeding were appropriate.  The charges were based entirely upon online communication between the defendant and three underage girls.  The decision is notable for the extensive dissent which found the evidence defendant had masturbated during online communication through a webcam, and the evidence that the defendant engaged in “grooming” the victims was insufficient, and further found that certain mitigating factors, including that defendant functioned socially at the level of a young teenager, should have been considered:

FROM THE DISSENT:

Here, the record lacks clear and convincing proof of prohibited sexual conduct with the third victim referenced in the indictment — as to whom defendant pleaded guilty to endangering the welfare of a child and aggravated harassment in the second degree. During the plea allocution, defendant admitted that he had engaged in conversations of a sexual nature with this victim, and the victim testified before the grand jury that defendant had contacted her by webcam video, during which time he touched himself in the area of his genitals, over his clothing. There was no physical sexual contact between the two at any time. As defendant argues, the grand jury testimony included too little factual detail to constitute clear and convincing evidence that he was masturbating. Although this might be inferred, it was not clearly revealed; viewed objectively, the testimony demonstrates nothing more than a brief swipe of defendant’s hand in his genital region, accompanied by innuendo. Our precedent establishes a significantly higher standard of misconduct … .

We further find that the record supports defendant’s contention that he was improperly assessed 20 points under risk factor 7 because his conduct was not “directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006]). The majority accepts County Court’s finding that defendant and the victims were not “strangers,” but that defendant had engaged in “grooming” behavior; we disagree. An example of grooming behavior provided in the guidelines is that of a scout leader who chose the position in order to gain access to his victims (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006]). As defendant argues, the record does not establish this type of calculated behavior on his part, nor was there a showing of emotional manipulation, undue influence or other customary indicia of grooming conduct. People v Izzo, 2014 NY 05679, 3rd Dept 8-7-14

 

Costs Properly Assessed Against Carrier for Instituting Proceedings Without Reasonable Ground

The Third Department affirmed the Workers’ Compensation Board’s assessment of costs against the carrier for instituting proceedings without reasonable ground:

Workers’ Compensation Law § 114-a (3) (i) permits the Board to assess costs against a party who has “instituted or continued [a proceeding before the Board] without reasonable ground.” Here, the carrier previously had been warned that counsel’s failure to respond to its request for an updated work search history — standing alone — would be insufficient to reopen the underlying claim and, more to the point, was apprised “in very clear terms of the requirements for [the] supporting evidence necessary to reopen this claim on the question of whether . . . claimant ha[d] voluntarily removed herself from or [wa]s no longer attached to the labor market.” Despite that express directive, the carrier nonetheless made a second request to reopen premised solely upon counsel’s failure to respond to the carrier’s request for additional information. Under these circumstances, we discern no abuse of discretion in the Board’s decision to assess costs against the carrier … . Matter of Bailey v Achieve Rehab & Nursing, 2014 NY Slip Op 05475, 3rd Dept 7-24-14

 

Tutors Are Employees Entitled to Unemployment Insurance

The Third Department affirmed the Unemployment Insurance Appeals Board' determination that tutors were employees of “Ivy League” entitled to unemployment insurance:

This Court previously has held that “an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create and employment relationship” … . Here, there is no question that Ivy League screened, interviewed and conducted a criminal background check with respect to prospective tutors, paid the tutors affiliated with it an agreed-upon hourly rate based upon documentation submitted by the tutors and matched individual clients with the tutor that it deemed best suited for that particular client's needs. Additionally, pursuant to the terms of the written agreement governing Ivy League's relationship with each individual tutor, Ivy League restricted the tutor's solicitation of Ivy League's clients — both during the period of time encompassed by the particular contract and for three years thereafter. Matter of Ivy League Tutoring Connection Inc…, 2014 NY Slip Op 05481, 3rd Dept 7-24-14

 

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People Failed to Demonstrate Seizure of Heroin from Defendant’s Impounded Vehicle Was Pursuant to a Standard Inventory Search—Heroin Should Have Been Suppressed

The Third Department, over a dissent, determined that heroin seized from inside defendant’s vehicle after a stop for speeding should have been suppressed.  The defendant was arrested at the scene of the stop based upon an outstanding warrant. The People failed to demonstrate the heroin was found pursuant to a standard inventory search of the impounded vehicle:

Following a lawful arrest of the driver of a vehicle, “the police may impound the car, and conduct an inventory search, where they act pursuant to ‘reasonable police regulations relating to inventory procedures administered in good faith'” … . To this end, “courts have insisted that an inventory search be conducted according to a familiar routine procedure and that the procedure meet two standards of reasonableness” … . Specifically, the procedures must be “designed to meet the legitimate objectives of the search while limiting the discretion of the officer in the field” … .

Here, the transcript of the … suppression hearing fails to support a determination that the conduct of the police was reasonable. Although not fatal to their argument against suppression …, the People failed to offer a copy of the State Police procedure manual into evidence. Additionally, the People also failed to ask any substantive questions of their witnesses so as to otherwise establish (1) that the State Police had a standardized procedure, (2) that such procedure was reasonable, and (3) that it was followed here. People v Leonard, 2014 NY Slip Op 05468, 3rd Dept 7-24-14

 

Parole Board’s Role and Court’s Review Role Explained in Depth

The Third Department, in an extensive and detailed decision, over a dissent, determined petitioner had been properly denied parole, despite his extraordinary achievements in prison, including his earning bachelor’s and master’s degrees.  The petitioner was convicted of felony murder in connection with the death of a police officer:

[T]he record establishes that the Board acknowledged petitioner’s extensive rehabilitative success along with the additional statutory factors, but placed greater emphasis on the seriousness of petitioner’s crime in its determination that release would be incompatible with the welfare of society and so deprecate the seriousness of the crime as to undermine respect for the law, as it is “entitled” to do … . We are thus constrained to affirm — to do otherwise is to implicitly overrule the decades of our well-settled jurisprudence set forth above … . Matter of Hamilton v New York State Div of Parole, 2014 NY Slip Op 05487, 3rd Dept 7-24-14

 

No Contest Clause Was Not Triggered by Offering Will for Probate or Questioning Actions of Named Executor(s)

The Third Department, in a full-fledged opinion by Justice Peters, over a dissent, determined that a no contest clause in a will was not triggered by offering the will for probate and was not triggered by questioning the actions of the named executors.  The beneficiary of a 2006 will, who had been excluded from the 2011 will, sought to probate the 2006 will.  The petitioners then sought probate of the 2011 will when the executors failed to do so. The beneficiary of the 2006 will argued that the no contest clause in the 2011 will had thereby been triggered:

While enforceable, no contest clauses are disfavored and must be strictly construed … . The no contest provision at issue provides for revocation of a beneficiary’s interest if the beneficiary “contest[s] the probate or validity of [the] Will or any provision thereof, or . . . institute[s] . . . any proceeding to . . . prevent any provision [of the Will] from being carried out in accordance with its terms.” Here, petitioners did not contest the validity of the will or any of its provisions by seeking to admit the will to probate … . Rather, given that [the beneficiary of the 2006 will who had been excluded as a beneficiary from the 2011 will] had already offered the 2006 will for probate nearly two months earlier, they reasonably undertook to probate the 2011 will themselves after the nominated executor and successor executor thereunder failed to do so.

To the extent that petitioners sought letters of administration, we cannot conclude that, by including the no contest clause in his will, decedent intended to preclude a beneficiary from challenging or otherwise questioning the conduct of a fiduciary. Matter of Prevratil, 2014 NY Slip Op 05478, 3rd Dept 7-24-14

 

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