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Slip and Fall in Employee Parking Area Was Compensable

The Third Department determined that a slip and fall in an employee parking area can be compensable under Workers’ Compensation.  The Board’s finding that the injury was compensable in this case was affirmed:

As a general rule, “accidents that occur in public areas away from the workplace and outside of work hours are not compensable” … .  However, “by making arrangements for employee parking, [an employer] may be found to have extended its premises to the area of the approved parking facility so that an accident that occurs therein may be found to have arisen within the precincts of the claimant’s employment, rendering it compensable.  This is particularly true where the claimant is injured on the way to work and in such physical proximity to his or her worksite as to establish a relationship between the accident and the employment”… .

Here, claimant testified that following the approval of her application to park in the subject lot, she was given a hang tag to display in her vehicle’s window and a parking fee was deducted from her biweekly paycheck … .  Although a portion of the parking lot occasionally was set aside for vendors participating in events at the nearby Times Union Center, the lot was not – to the best of claimant’s knowledge – open to the public during the work week.  Finally, claimant described the route traveled from the surface lot to her building and testified that “[e]veryone” who parked in the vicinity of the lot “usually [took the] same route into [the employer’s] building”… .  Matter of Stratton v NYS Comptroller…, 514766, 3rd Dept 12-12-13

 

Application for a Full Board Review Must Be Considered by a Panel of At Least Three Members of the Workers’ Compensation Board

The Third Department noted that an application for a full Board review must be considered by a panel of at least three members of the Workers’ Compensation Board:

Applications for Board review are to be considered by a panel of at least three members and may not be decided by the chair, or any other single member of the Board, alone (see Workers’ Compensation Law §§ 23, 142 [2]…).  The record before us provides no indication that the application for reconsideration and/or full Board review was considered by a three-member panel.  Rather, the decision appears to have been made solely by the chair “on behalf of the Board.”  Accordingly, this matter must be remitted to the Board for proper consideration of the application by a panel of the Board consisting of not less than three members… . Matter of Scalo v CD Perry & Sons Inc…, 514342, 3rd Dept 12-12-13

 

Cy Pres Doctrine Properly Applied to Distribute Gifts to the Hospital Which Had Taken Over the Duties of the Named Hospital

The Third Department determined Surrogate’s Court had properly exercised its cy pres power by distributing decedents’ charitable gifts to a hospital (Ellis Hospital) which had taken over the duties of the named hospital (St. Clare’s Hospital):

The relevant gifts were all undisputedly charitable in nature and, for cy pres relief, it was further necessary that the instruments establishing the gifts revealed a general charitable intent and that circumstances had changed rendering impracticable or impossible strict compliance with the terms of the gift instruments … .  * * * Here, the gift instruments, in which the donors also made various other charitable dispositions, revealed a general charitable intent.  With regard to the gifts in question, the intent was to benefit a hospital.  At the time the pertinent gift instruments were executed, St. Clare’s Hospital operated as a hospital and gifts to the Foundation went exclusively to St. Clare’s Hospital.  The stipulated facts reveal that the Foundation has stopped providing any charitable grants.  Its previous sole beneficiary, St. Clare’s Hospital, ceased operating as a hospital, modified its corporate name and changed its corporate function to promoting health and well-being.  Ellis Hospital assumed all responsibility for the hospital and related healthcare services previously provided by St. Clare’s Hospital. Matter of Lally, 516107, 3rd Dept 12-12-13

 

Question of Fact About Resort Owner’s Duty to Maintain Walkways in Winter Despite Claim the Resort Was Closed in the Winter Months

The Third Department determined the claim that a resort was closed in the winter did not relieve the property owner from the duty to maintain the walkways during the winter months.  Plaintiff slipped and fell on a snow-covered walkway.  Condominiums at the resort were accessible year-round:

…[I]t is well settled that “a landowner has a duty to exercise reasonable care in maintaining his [or her] own property in a reasonably safe condition under the circumstances” … .  The nature and scope of a landowner’s duty and the persons to whom such duty is owed are determined by consideration of, among other things, “the likelihood of injury to another from a dangerous condition on the property, . . . the burden of avoiding the risk [as well as] the foreseeability of a potential plaintiff’s presence on the property” … .  “Although a jury determines whether and to what extent a particular duty was breached, it is for the court first to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally” … .

In order to satisfy its burden on summary judgment, defendant was required to present evidence conclusively establishing that its duty to use reasonable care did not extend to plaintiff.  We reject defendant’s argument that it was not required to maintain the walkway on which plaintiff fell because the resort was closed to the public during the winter months.  It is undisputed that there was no gate or other apparatus blocking the public’s access to the resort and, apart from a sign posted on the main hotel door, there was no notice that either the resort property resort, generally, or the subject walkway, in particular, was closed to the public at the time of plaintiff’s accident. Significantly, the condominiums located on the resort property were accessible year-round, with no limitation on visitors.  It is also uncontroverted that defendant did not inspect the walkway in question.  In our view, defendant failed to establish as a matter of law that plaintiff’s use of the path was not reasonably foreseeable… . Drake v Sagbolt LLC, 516967, 3rd Dept 12-12-13

 

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Snow Removal Contractor May Be Liable to Plaintiff in Slip and Fall Action/Question of Fact Whether Failure to Use Low-Temperature Salt Created a Dangerous Condition

The Third Department determined there was a question of fact whether a contractor hired to clear snow and ice created a dangerous condition by not using salt designed for low temperatures:

While a snow removal contractor is generally not liable to injured persons who were not parties to the contract …, plaintiffs argue the recognized exception that extends a duty to noncontracting third parties where the contractor fails to exercise reasonable care in the performance of duties such that he or she “‘launche[s] a force or instrument of harm'” … .

In opposition to the motion for summary judgment, plaintiffs submitted affidavits from experts who opined that, among other things, [defendant’s] application of plain, untreated rock salt to the parking lot on the morning in question was negligent because temperatures, which were below 20 degrees Fahrenheit, were too cold for plain rock salt to be effective.  According to plaintiffs’ experts, by using untreated salt instead of treated, low temperature salt, [defendant] caused snow shoveled from the sidewalk to the parking lot … to melt and then quickly refreeze, creating a layer of ice beneath the snow. There is no dispute that [defendant] had the option of using untreated or treated salt pursuant to the contract and that he had both kinds available.  There was also evidence that [defendant] was aware that snow would be shoveled from the sidewalk onto the parking lot, and [a witness] testified that he had observed salt in the area where plaintiff fell.  This evidence sufficiently raises a question of fact as to whether [defendant] “‘negligently create[d] or exacerbate[d] a dangerous condition'” by using untreated salt, resulting in the formation of the ice on which plaintiff allegedly slipped… .  Belmonte v Guilderland Associates LLC…, 516830, 3rd Dept 12-12-13

 

Foreclosure On Both Junior and Senior Mortgages May Result in Unjust Enrichment If the Two Obligations Amount to More than the Fair Market Value

The Third Department explained the “unjust enrichment” issues raised when a party holds two mortgages on the same property, forecloses on the junior mortgage, purchases the property at the foreclosure sale, and then sues on the senior mortgage:

Where, as here, a holder of two mortgages forecloses on the junior mortgage and purchases the property, the question of whether the senior obligation is recoverable is a matter of equity dependent upon the facts and circumstances of the case (see Restatement [Third] of Property § 8.5, Comment c [2]…).  When the sale price and the outstanding amount owed on the senior obligation together equal the fair market value of the property, the land is considered to satisfy the debt.  In that case, equity will prevent the mortgagee from suing on the senior obligation and thus receiving a windfall (see Restatement [Third] of Property § 8.5, Comment c [2]…).

If, however, the fair market value of the property is less than the sum of the two obligations, “the mortgagor would be unjustly enriched if the mortgagee is prevented from recovering on the senior obligation” (Restatement [Third] of Property § 8.5, Comment c [2]).  In such a situation “the mortgagee may recover on the senior obligation only the amount by which the sum of the junior and senior obligations exceed the fair market value of the land” (Restatement [Third] of Property § 8.5, Comment c [2]). Here, neither party submitted proof as to the fair market value of the property, and Supreme Court thus had no basis to determine the amount recoverable on the senior note.  We remit for that purpose.  TD Bank NA… v Dunbar Tower LLC, 516770, 3rd Dept 12-12-13

 

Itemization of Mechanic’s Lien Not Necessary/Contract Adequately Apprised Owner of Lienor’s Claim

The Third Department determined that plaintiff was not required to provide an itemized list of labor and materials to substantiate its claim under the Lien Law (mechanic’s lien).  The lienor need only supply an itemized list when itemization is necessary to apprise the owner of the details of the lienor’s claim.  Here there was a construction contract which plaintiff alleged was performed in full. Itemization would therefore be “superfluous:”

Lien Law § 38 states that a lienor “shall, on demand in writing, deliver to the owner or contractor making such demand a statement in writing which shall set forth the items of labor and/or material and the value thereof which make up the amount for which he [or she] claims a lien, and which shall also set forth the terms of the contract under which such items were furnished.”  While that language “appears to confer an unrestricted right to an itemization of labor and materials, such is not the case” … .  Itemization is instead required only when it is necessary “to apprise the owner of the details of the lienor’s claim” … .

Turning to the case at hand, plaintiff asserts that it performed the 2011 construction contract in full, and its claim with regard to that contract “is based on an express contract for a specific sum” … .  Defendants do not dispute that they were fully aware of the terms of that contract and, indeed, they attached a copy of the written contract to their answer. Associated Building Services Inc v Pentecostal Faith Church, 516897, 3rd Dept 12-12-13

 

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Garagekeeper’s Lien Ineffective Against Owner of Leased Vehicle/Lessee Did Not Have Apparent Authority to Consent to Vehicle Repair and Storage on Owner’s Behalf

A leased vehicle was damaged by hail and the lessee brought the car to respondent’s garage for repairs.  When no one picked up the car or paid for the repairs, the garage served a garagekeeper’s lien on the owner (lessor) of the vehicle.  The Third Department determined the lien was not effective against the owner, who never consented to the repairs or storage of the vehicle, and the lessee did not have apparent authority to consent on the owner’s behalf:

Supreme Court properly held that respondent failed to establish the validity of its garagekeeper’s lien.  A garage owner is entitled to such a lien if he or she establishes that the garage is duly registered as a repair shop as required by statute, is the bailee of a motor vehicle, performed garage services or storage with the vehicle owner’s consent, and the parties had agreed upon a price or – absent such agreement – the charges were reasonable … .  The dispositive issue here is whether respondent provided repair services and storage with the owner’s consent.  It is undisputed that respondent never had any communication with petitioner, the title owner, until well after the repairs were performed.  …

While a lessee may be considered an owner for purposes of Lien Law § 184 if he or she has apparent authority …, “[a]pparent authority will only be found where words or conduct of the principal – not the agent – are communicated to a third party, which give rise to a reasonable belief and appearance that the agent possesses authority to enter into the specific transaction at issue” … .  Respondent does not indicate that it undertook any steps to determine the scope of the [lessee’s]  authority… .  Petitioner’s actions in allowing [lessee] to register the vehicle in New Jersey and … to obtain insurance on the vehicle do not constitute permission to enter into a transaction that would allow a lien to attach to the vehicle.  Respondent does not point to any other words or actions of petitioner…that could create a reasonable belief that [the lessee] had authority to enter into a transaction as an owner, so as to permit the creation of a garagekeeper’s lien.  Matter of Daimler Trust…v SG Autobody LLC, 516792, 3rd Dept 12-12-13

 

 

Court Erred In Applying the “15% Increase in Income” Criteria for Support Modification to an Order Which Predated the 2010 Effective Date of the “15% Increase” Statutory Amendment/the 2008 Order Was Incorporated But Not Merged Into a 2012 Judgment

The Third Department determined Family Court erred in modifying child support based upon the father’s income having increased by 15%.  The 2008 child support order at issue pre-dated the 2010 effective date of the “15% increase” statutory amendment and the order was not merged with the 2012 judgment of divorce:

Family Court erred in finding that child support should be modified based on a 15% change in the father’s income.  Family Ct Act § 451 (2) (b) (ii) allows a court to modify an order of child support, without requiring a party to allege or demonstrate a substantial change in circumstances, where either party’s gross income has changed by 15% or more since the order was entered or modified.  When that provision was added to the statute through a 2010 amendment, however, the Legislature provided that “if the child support order incorporated without merging a valid agreement or stipulation of the parties, the amendments [to section 451] shall only apply if the incorporated agreement or stipulation was executed on or after [October 13, 2010]” (L 2010, ch 182, § 13).  The 2008 order was based upon the parties’ agreement, incorporated into the 2012 judgment of divorce and entered prior to the effective date of the statute’s 2010 amendments.  Accordingly, the amendments did not apply to a modification of this order, and Family Court should not have relied on the father’s 15% increase in income as the basis for modification.

For agreements executed prior to the effective date of the amendments to Family Ct Act § 451, the standard for modifying an order based on the parties’ agreement is whether the petitioning party has demonstrated “an unanticipated and unreasonable change in circumstances” or that the children’s needs are not being met … .  The mother’s generalized testimony that the costs of food, health care and clothing for the children had increased, as had the father’s income, was insufficient to meet her burden under that standard … .  Matter of Zibell v Zibell, 516324, 3rd Dept 12-12-13

 

No Employer-Employee Relationship—Agency Places Waiters and Bartenders with Clients for Catered Functions

The Third Department reversed the appeal board and determined waiters and bartenders placed with clients for catered functions by John Lack Associates, LLC, were not John Lack employees:

Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence … .  “[S]uch a relationship will be found to exist where the employer exercises control over the results produced or the means used to achieve those results, with the latter being more important”… .

John Lack provides its clients with individuals fitting the client’s requirements for each particular event.  The agency neither interviews nor screens the workers, other than to ensure that they have the necessary uniform and equipment.  However, the workers generally provide their own uniform and equipment. Although the client may provide a uniform on occasion, John Lack does not.  After being retained by a client, John Lack contacts individuals from its lists and explains the details and requirements of the available job.  The individual is free to refuse a job and may do so, for example, if the pay rate offered is unacceptable.  Notably, most of the waiters and bartenders accept work from other placement agencies.  If the worker accepts the job offered by John Lack, the agency directs him or her to report to a representative of the client at the event.  However, it is the client that instructs, controls and supervises the worker at the event.  In this regard, the client explains the rules of conduct to the worker and, if a worker’s performance is not satisfactory, the client will instruct the individual to leave or fire him or her from the job.  There is no indication in the record that John Lack provides workers with any training.  Matter of John Lack Associates, LLC …, 516638, 3rd Dept 12-5-13

 

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