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
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
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
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
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
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
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
In an action brought pursuant to General Municipal Law section 4 for an order directing a summary investigation into the financial affairs of the respondents (village, fire department and water board), the Third Department determined the respondents could not appeal Supreme Court’s ordering of the investigation. The petitioners alleged the tax, water and sewer moneys collected may have been corruptly and/or unlawfully expended. The petitioners’ only avenue for court review is an Article 78 prohibition proceeding:
This appeal must be dismissed as there is no appeal as of right from Supreme Court’s order in this statutory special proceeding directing a summary investigation (see CPLR 5701 [a]; see also CPLR art 4…). Although certain respondents contend, seemingly persuasively, that Supreme Court is not authorized by General Municipal Law § 4 to direct an investigation against them as they are not a “village” or “town,” this Court cannot grant their requested relief in the absence of an appealable order. We note that respondents could have moved in Supreme Court to dismiss on this ground within the time allowed for an answer; having properly raised this defense as an objection in point of law in their answer, respondents are entitled to pursue summary dismissal of this special proceeding in that court, in the first instance (see CPLR 404 [a]; see also CPLR 7804 [f]; Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 7804:7 at 673-675). At this juncture, those claims could only be addressed by this Court in a special proceeding pursuant to CPLR article 78 in the nature of prohibition, instituted in this Court (see CPLR 506 [b] [1]; 7803 [2]…). Matter of Village of Victory…, 515205, 3rd Dept 11-7-13
In finding that the term “collapse” in a home insurance policy included a four-inch drop in the floors caused by insect damage, the Third Department explained:
An insurance policy must be interpreted to give clear and unambiguous provisions their plain and ordinary meaning… . However, “[t]he policy must, of course, be construed in favor of the insured, and ambiguities, if any, are to be resolved in the insured’s favor and against the insurer” … . The policy at issue here specifically covers “physical loss to covered property involving collapse of a building or any part of a building” …, but only if such collapse is caused by, among other things, “hidden insect or vermin damage.” While the policy does not define what constitutes a collapse, it provides that a “[c]ollapse does not include settling, cracking, shrinking, bulging or expansion.” In this regard, we have held that the term collapse “involves an element of suddenness, a falling in, and total or near total destruction” … . However, “the clear modern trend is to hold that collapse coverage provisions [–] which define collapse as not including cracking and settling – provide coverage if there is substantial impairment of the structural integrity of the building or any part of a building” … . Wangerin v New York Central Mutual Fire Insurance Company, 515723, 3rd Dept 11-7-13
The Third Department applied a balancing test to determine whether petitioner’s Freedom of Information Law (FOIL) request for the names and addresses of employees should be granted. The petitioner, a union employee, wished to communicate with the employees to ensure that nonunion contractors comply with the prevailing wage law (Labor Law 220). The court affirmed the denial of petitioner’s request:
“FOIL is based on a presumption of access to [government] records, and an agency . . . carries the burden of demonstrating that [an] exemption applies to [a] FOIL request” … . The personal privacy exemption (see Public Officers Law § 87 [2] [b]) incorporates a nonexhaustive list of categories of information that falls within the exemption (see Public Officers Law § 89 [2] [b] [i]-[vii]). Where, as here, none of the categories applies specifically, the issue of whether there is an “unwarranted invasion” of privacy is decided “by balancing the privacy interests at stake against the public interest in disclosure of the information” … . * * *
An unwarranted invasion of personal privacy has been characterized as that which “‘would be offensive and objectionable to a reasonable [person] of ordinary sensibilities'” … . Petitioner’s union desires names and home addresses so that it can contact employees of the nonunion contractor to find out if they were paid as reported by their employer. The scenario of nonunion employees of a nongovernment employer being contacted at their homes by someone from a union who knows their names, their home addresses, the amount of money they reportedly earn, and who wants to talk about that income would be, to most reasonable people, offensive and objectionable. A significant privacy interest is implicated… . Matter of Massaro v NYS Thruway Authority, 516113, 3rd Dept 11-7-13
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