You are here: / Third Department

Tag Archive for: Third Department

Grandmother Had Standing to Request Visitation/Visitation Properly Granted

The Third Department affirmed Family Court’s determination that grandmother had standing to petition for visitation with the child (Dakota) and that such visitation was in the best interests of the child. With respect to the standing criteria, the Third Department wrote:

Family Court correctly determined that petitioner established standing to petition for visitation with Dakota. When a child’s parents are living, a grandparent who seeks visitation with his or her grandchild must establish that “conditions exist which equity would see fit to intervene” (Domestic Relations Law § 72 [1]) in order to obtain standing … . The grandparent “must establish a sufficient existing relationship with [his or her] grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court’s intervention” … .  In the latter situation, the grandparent’s “effort is measured against what [he or she] could reasonably have done under the circumstances”… . Matter of Rubel v Wilson, 511985, 3rd Dept 11-21-13

 

,

Resentencing to a Term of Imprisonment with a Maximum Greater than the Initial Sentence Violates Double Jeopardy Principles

The Third Department determined resentencing defendant to a term of imprisonment with a maximum greater than the initial sentence violated double jeopardy principles:

County Court violated double jeopardy principles when it imposed on defendant an aggregate sentence with a maximum of more than 10 years in prison.  “[T]he key to double jeopardy analysis of a sentence increase is whether the defendant had a legitimate expectation in the finality of his [or her] original sentence” … .  A court violates double jeopardy principles if it subjects a defendant to a greater maximum sentence upon resentencing after the original agreed-upon sentence has been determined to be illegal … .  At the time of resentencing, defendant had served two years of his 10-year prison sentence … .   As defendant had a reasonable expectation of finality in the maximum term of his prison sentence, namely that he would serve no more than 10 years in prison, imposing a maximum prison term greater than 10 years would run afoul of the double jeopardy clause … . Thus, we modify the resentence to an aggregate maximum of 10 years in prison.  People v DePerno, 105100, 3rd Dept 11-21-13

 

,

Revocation of Parole Based Upon Uncharged Assault Okay/Presence of Assault Victim at Revocation Hearing Excused

The Third Department determined petitioner’s parole was properly revoked even though the victim of the uncharged assault which triggered the revocation did not testify at the hearing:

Petitioner argues that he improperly was denied the opportunity to confront and cross-examine the victim.  While a “strong preference” for confrontation and cross-examination exists in parole revocation proceedings, the victim’s absence nevertheless may be excused “upon a specific finding of good cause” (…see Executive Law § 259-i [3] [f] [v]…).  Here, the victim refused to testify and could not be located despite extensive efforts by parole officials to do so.  Accordingly, the Administrative Law Judge properly excused her absence and considered other evidence regarding the assault … . Contrary to petitioner’s assertion, the fact the he was not indicted for any crimes stemming from the underlying assault did “not preclude a revocation of parole for the same conduct”… . Matter of Coston v NYS Division of Parole, 515013, 3rd Dept 11-21-13

 

,

Sentencing Court’s Reference to a Fine for Driving While Intoxicated as “Mandatory” Required Remittal for Resentencing

The Third Department noted that imposition of both a fine and imprisonment for Driving While Intoxicated is discretionary.  County Court’s indication that the fine was “mandatory” required remittal for resentencing.  People v Olmstead, 105214, 3rd Dept 11-21-13

 

,

Suppression Hearing Should Have Been Held to Determine Whether Property Seized by Use of Excessive Force (Taser)

After determining defendant’s request to represent himself at trial was properly granted, the Third Department noted that a suppression hearing should have been held to determine whether excessive force (taser) was used to retrieve a bag of cocaine from defendant’s mouth:

As for the cocaine recovered from defendant’s mouth after he was tased more than once, defendant raised a question as to whether that evidence was seized from him through the use of excessive force, which requires an analysis “under the Fourth Amendment’s ‘objective reasonableness’ standard” .. .  Defendant’s affirmation described his version of the arrest and search, and his motion papers asserted that use of a taser constituted excessive force under the circumstances.  The People failed to substantively respond to this argument.  As the motion papers raised a factual dispute concerning the use of a taser and whether it might be considered excessive force, giving rise to a potentially unreasonable search and seizure that may require suppression of the evidence, a hearing was required… . People v Atkinson, 105126, 3rd Dept 11-21-13

 

,

Defendant Entitled to New Counsel After Defense Attorney Took a Position Adverse to Defendant’s Pro Se Motion to Withdraw Guilty Plea

The Third Department determined defendant should have been provided with new counsel after defense counsel took a position adverse to defendant’s pro se motion to withdraw his guilty plea:

We agree with defendant’s contention that he should have been assigned new counsel to pursue his motion to withdraw the guilty plea because his counsel was essentially called as a witness against him.  While defense counsel is not required to support a pro se motion to withdraw a guilty plea, counsel “may not take a position . . . that is adverse to the defendant” … .  Doing so creates an actual conflict of interest that requires the trial court to assign a new attorney to represent the defendant on the motion … .

Here, defendant claimed that defense counsel coerced him into entering the guilty plea by failing to communicate with him, telling him that he did not want to represent him and that he had to take the offer “or that’s it.”  Defendant claimed that he was unprepared for any pretrial proceedings based on the lack of communication and felt that he had to take the plea to “get away” from counsel and avoid having to go to trial with him.  Defense counsel specifically refuted defendant’s assertions and, in response to County Court’s questioning, provided detailed information as to the discussions he had with defendant about the case and his options.  In response, defendant claimed that counsel’s statements were untruthful.  Given that defense counsel took a position adverse to defendant’s claim of coercion, County Court should have assigned new counsel to pursue defendant’s motion to withdraw his plea… . People v Zaorski, 103901, 3rd Dept 11-21-13

 

Stroke Not Work-Related

The Third Department affirmed the determination that claimant’s stroke was not work-related:

Inasmuch as it is undisputed that claimant’s stroke occurred while he was at work, he was entitled to the statutory presumption that his stroke arose out of and in the course of his employment (see Workers’ Compensation Law § 21… ). The employer, however, may rebut that presumption with substantial evidence to the contrary … . Here, the employer’s medical expert opined that claimant’s stroke was not related to his employment, but was directly related to certain preexisting conditions, including cerebral vascular disease, hypertension, diabetes, hypercholesterolemia and a prior transient ischemic attack, which combined to put claimant “at extreme risk for a stroke.”Claimant’s medical expert, although unaware of certain of claimant’s preexisting conditions that he testified may be predisposing factors for a stroke, concluded that claimant’s stroke was caused by job related exertion and fatigue. * * *Inasmuch as the Board is vested with the authority to credit the opinion of one medical expert over another …, its determination that there was no causal relationship between claimant’s stroke and his employment is supported by substantial evidence and will not be disturbed. Matter of Pengal v Chloe Foods Corporation…, 513003, 3rd Dept 11-14-13

 

, ,

Causes of Action Stated Against County for Allowing Public Traffic During Paving Operation and Violation of Regulation Requiring Truck-Brake Maintenance

The Third Department determined plaintiff had stated causes of action sounding in negligence and a violation of Labor Law 241(6).  Plaintiff was driving a truck hauling asphalt to a county roadway paving operation (which had been contracted out to a private company–Graymont) when the truck’s brakes failed. Plaintiff was seriously injured when, after avoiding public traffic, he jumped from the truck which continued on over an embankment. The court upheld the negligence claim against the county which was based upon the county’s permitting public traffic on the road during construction.  The court further determined the county was entitled to summary judgment on its indemnification action against the private construction company (Graymont—based upon the county’s contract with the company). And the court upheld the Labor Law 241(6) claim, finding the regulation requiring truck-brake maintenance supported the cause of action:

Plaintiff alleges that the County violated 12 NYCRR 23-9.7 (a),  which provides that “[t]he brakes of every motor truck shall be so maintained that such truck with full load may be securely held on any grade that may be encountered in normal use on the job.”  While the County does not dispute that this provision is sufficiently specific to form the basis for liability under Labor Law § 241 (6), it argues that the regulation is not applicable to the circumstances here.  Mindful that “[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” …, we cannot agree.  Although the regulation speaks in terms of the ability of the brakes to “h[o]ld” the construction vehicle, the purpose of the regulation is to ensure proper functioning of a truck’s brakes on any terrain or grade normally encountered.  Thus, we find that the language of the regulation addresses not only the ability of a truck’s brakes to hold a stopped truck in place, but also the ability of the brakes to bring a moving vehicle to a stop. Duffina v County of Essex…, 515346, 3rd Dept 11-14-13

 

Home Attendant for Elderly Injured Walking from One Client’s Home to Another Was Covered by Workers’ Compensation

The Third Department affirmed the determination that a home attendant for the elderly, who was injured walking from one client’s home to another client’s home, was entitled to workers’ compensation:

While “injuries sustained during travel to and from the place of employment” are generally not compensable under the Workers’ Compensation Law, an outside employee “who does not have a fixed worksite[] may be compensated for injuries sustained in the course of” work-related travel … .  The employer and carrier contend that claimant was not an outside employee, but “[t]he distinguishing feature of outside employees is that they do not work at a fixed location and are required to travel between work locations” … .  The employer here assigned claimant to care for two clients in different locations and, thus, substantial evidence supports the Board’s determination that she “became an outside employee when [s]he left” one work site and proceeded to another… . Matter of Bedmark v Caring Professionals Inc…, 515870, 3rd Dept 11-7-13

 

,

Collective Bargaining Agreement Subsequently Made Retroactive to Cover Period When it Had Expired Did Not Include Firefighters Hired During the Period the Agreement Had Expired

The Third Department affirmed Supreme Court’s determination that newly hired firefighters [hired January 9, 2010] were not eligible, pursuant to a collective bargaining agreement (CBA), for participation in a retirement plan to which they need not contribute a portion of their salary.  The collective bargaining agreement which would have allowed participation in the noncontributory program had expired at the time the firefighters were hired and was made effective retroactively when it was subsequently signed:

Petitioners’ reliance on the continued effect of the terms of the 2008-2009 CBA is unavailing in light of the recent decisions of the Court of Appeals expressly rejecting the application of the Triborough Amendment to the tier 5 retirement legislation … .  Accordingly, the expired 2008-2009 CBA cannot be considered to have been “in effect” on January 9, 2010 for the purpose of permitting the new hires to qualify for the statutory exception (see L 2009, ch 504, Part A, § 8).

Nor are we persuaded that the 2009-2013 CBA can be considered to be retroactively “in effect” on January 9, 2010, as it was not executed until seven months later in August 2010.  At that time, newly hired firefighters were required by law to contribute to the retirement system (see Retirement and Social Security Law §§ 1201, 1204) and, as a result, the Union and NFTA [Niagara Frontier Transportation Authority] were prohibited from agreeing to a noncontributory retirement plan (see Civil Service Law § 201 [4]; Retirement and Social Security Law § 470).  Moreover, while the Union and NFTA were able to retroactively bind each other to the terms of the 2009-2013 CBA, they were unable to bind third parties such as the Comptroller … . Matter of Buffalo Niagara Airport Firefighters Association v DiNapoli, 515811, 3rd Dept 11-7-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy