The Third Department noted that revocation of Empire Zone Program certifications cannot be applied retroactively pursuant to James Sq Assoc LP v Mullen, 21 NY3d 233 [2013]. Matter of Bond, Schoeneck & King PLLC v NY Dept of Economic Development…, 514812, 3rd Dept 10-17-13
The Third Department, in a disciplinary action by SUNY Cortland, determined the alleged victim of harassment was not the complainant in the disciplinary proceeding and therefore the alleged victim need not testify in the proceeding. The court, however, determined the school’s failure to set forth detailed factual findings in its disciplinary determination violated the student’s due process rights. The matter was sent back for those factual findings, after which the student could pursue administrative remedies:
We reject petitioner’s contention that the Hearing Panel failed to substantially adhere to its rules and regulations published in the Code … . Although petitioner correctly notes that the Code requires the “complainant” to present his or her own case, the “complainant” is defined as “any person or persons who have filed disciplinary charges against a student.” Here, the complainant was SUNY Cortland’s Director of Judicial Affairs. Thus, petitioner’s contention that the Hearing Panel did not comply with the Code because the victim did not present the case is unavailing. Furthermore, as the victim was not called as a witness by either side and nothing in the Code establishes that the victim is a party to a disciplinary proceeding, we find that the Hearing Panel substantially complied with its rule requiring it to afford petitioner the opportunity to question all parties. …
We do agree, however, that petitioner was denied due process because the Hearing Panel failed to set forth detailed factual findings in its disciplinary determination. In a disciplinary proceeding at a public institution of higher education, due process entitles a student accused of misconduct to “a statement detailing the factual findings and the evidence relied upon by the decision-maker in reaching the determination of guilt” … . Recognized as one of the “‘rudimentary elements of fair play'” in this context …, “[s]uch a statement is necessary to permit the student to effectively challenge the determination in administrative appeals and in the courts and to ensure that the decision was based on evidence in the record”… . Matter of Boyd v SUNY Cortland, 514925, 3rd Dept 10-17-13
The Third Department confirmed the comptroller’s determination that the injuries suffered by a police officer were not the result of “accidents” and therefore did not justify the award of accidental disability retirement benefits. The officer slipped on a wet metal-encased curb while directing traffic and was subsequently injured again when a suspect he was chasing resisted arrest. The Third Department wrote:
Initially, we note that petitioner has the burden of demonstrating that he is entitled to receive accidental disability retirement benefits, and the Comptroller’s determination will be upheld if supported by substantial evidence … . In order to qualify as an accident, the precipitating event must be “a sudden, fortuitous mischance that is unexpected, out of the ordinary and injurious in impact” … . Notably, an injury will not be considered accidental if it “‘results from an expected or foreseeable event arising during the performance of routine employment duties'” … . Matter of Rodriques v DiNapoli, 515935, 3rd Dept 10-3-13
The Third Department affirmed the board’s determination that retroactive transfer of liability to the Special Fund to a time within seven years of the underlying injury was proper:
Pursuant to Workers’ Compensation Law § 25-a, liability is transferred to the Special Fund “when an application to reopen a closed case is made more than seven years from the date of injury and more than three years after the last payment of compensation” (…see Workers’ Compensation Law § 25-a [1]). Here, there is no dispute that these conditions have been met and the only issue before us is whether the Board properly transferred liability to the Special Fund retroactively to a period of time prior to the lapse of seven years following claimant’s injury.
While the retroactive transfer of liability to the Special Fund is limited to no longer than two years prior to the date of the application to reopen (see Workers’ Compensation Law § 25-a [1-a]…), there is no statutory requirement that there be a seven year lapse from the date of a claimant’s injury prior to the date of a retroactive transfer of liability (see Workers’ Compensation Law § 25-a [1-a]). Accordingly, we conclude that the Board’s determination, that Workers’ Compensation Law § 25-a does not preclude a retroactive transfer of liability to the Special Fund to a time period within seven years of the underlying injury, is not unreasonable, irrational or inconsistent with the purpose of the statute …, and the Board has set forth sufficient reasons for no longer following any prior decisions to the contrary. Canfora v Goldman Sachs…, 515529, 3rd Dept 10-3-13
The Third Department affirmed the decision of the Unemployment Insurance Appeal Board finding that claimant, a math tutor, was an independent contractor, not an employee:
Although claimant maintains that he was erroneously considered an independent contractor in connection with earnings received from tutoring services through TestQuest, Inc. and that such funds should be utilized as covered employment to establish his claim, we cannot agree. As noted earlier, TestQuest, Inc. tutors such as claimant were deemed by this Court to be independent contractors (Matter of Leazard [TestQuest, Inc.–Commissioner of Labor], 74 AD3d at 1415-1416), which decision is conclusive and binding upon all such persons employed by TestQuest, Inc. (see Labor Law § 620 [1] [b]). As such, those earnings cannot qualify for inclusion as remuneration in the base periods… . Matter of Tkachyshyn…, 516210. 3rd Dept 9-26-13
The College Network (TCN) sells educational materials for personal study from home to obtain college credits through testing. Claimant was retained by TCN to promote and selling the materials. After claimant stopped working for TCN he filed a claim for unemployment insurance. The Unemployment Insurance Appeal Board upheld the decision that claimant was an employee entitled to unemployment insurance. The Third Department affirmed:
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 predominant consideration in making this inquiry is evidence of the alleged employer’s control over the results produced or the means used to achieve those results, with the latter being more important” … . Here, there is ample evidence that TCN exercised control over many aspects of the program advisors’ work.
Notably, TCN established the program advisors’ sales territory and provided them with sales leads as well as product knowledge training. Although the program advisors could pursue these leads or develop their own, they were paid commissions based upon percentages set by TCN depending on the manner in which the sale was generated. The program advisors were required to report to TCN the results of company-generated leads and were only allowed to use advertisements and promotional materials approved by TCN. TCN provided program advisors with company email addresses and business cards, and reimbursed them for the expenses of attending some training. Notably, at times, regional sales managers accompanied the program advisors on sales calls to ensure they were providing customers with accurate information. In addition, TCN maintained a corporate calendar by which it would schedule appointments for the program advisors depending upon their availability. Significantly, the program advisors were expected to contact nine customers within a 90-day period, and TCN retained the right to terminate them if they were underperforming. TCN also prohibited the program advisors from working for competitors for a two-year period. Matter of Smith…, 515773, 3rd Dept 9-26-13
The Third Department determined that, for purposes of assessing unemployment insurance contributions, musicians on tour were employees of, not independent contractors for, Columbia Artists Management, but the workers who loaded and unloaded the equipment used by the musicians were independent contractors, not employees:
… [T]here are a number of factors that establish that Columbia retained control over important aspects of the musicians’ work. Specifically, Columbia paid the musicians a flat fee per week for the duration of the tour as well as the costs of transportation, lodging and miscellaneous expenses, supplied them with sheet music on occasion and prohibited them from taking on engagements that conflicted with the tour. Most significantly, under the written contracts, Columbia retained the right to ensure the artistic quality of the show by insisting that a performance be changed if it found it to be inappropriate. In addition to retaining broad overall control over the musicians’ performances, Columbia retained the right to dismiss any musician for drug or alcohol abuse. In view of this, we conclude that substantial evidence supports the Board’s finding of an employer-employee relationship between Columbia and the musicians … .
We reach a different conclusion, however, with respect to the loaders. There is nothing in the record to indicate that Columbia exerted any type of control over either the means or the results of the work of these individuals. All communications involved in retaining the loaders occurred through the union representative at the venue, who dictated the terms of payment as well as the number of loaders needed. The Columbia representative present at the time the trucks were unloaded was there solely for the purpose of paying the loaders and provided no equipment or instruction to assist them in performing their work. Matter of Columbia Artists Management LLC…, 515768, 3rd Dept 9-26-13
The Third Department determined County Court had the authority to amend the amount of restitution initially ordered at sentencing. However, the change required giving the defendant the right to withdraw the guilty plea:
Notably, “in the normal course of events, the People must ‘advise the court at or before the time of sentencing that the victim seeks restitution . . . and the amount of restitution . . . sought’ (Penal Law § 60.27 [1]), and the trial court must determine the amount of restitution at the time of sentencing” … . Nevertheless, “the court’s continuing jurisdiction to impose restitution has been recognized where the claim for restitution is raised at or prior to sentencing and the modification or correction of the sentence occurs within a reasonable time thereafter” … .
Here, we do not find the delay between defendant’s September 2009 sentencing and the modification of the restitution order in September 2010 following a hearing unreasonable given the various factors presented by this case … . “Nonetheless, [a] sentencing court may not impose a more severe sentence than one bargained for without providing [the] defendant the opportunity to withdraw his [or her] plea” … . Thus, in light of the fact that the amended restitution amount unquestionably exceeds the total amount to which defendant agreed at the time of her plea and she seeks, among other things, vacatur of that plea herein, we deem it appropriate to remit the matter for the purpose of allowing defendant the opportunity to either accept the enhanced restitution amount or withdraw her plea… . People v Mahar, 103960, 3rd Dept 9-26-13
The Third Department annulled a determination that was based upon hearsay which had not been assessed for reliability:
While hearsay evidence may constitute substantial evidence to support a determination of guilt, it must be sufficiently detailed to allow the Hearing Officer to independently assess its reliability and credibility … . The basis for the charges here were written and oral statements by inmates implicating petitioner as the thief. There is no indication, however, that those statements were independently reviewed by the Hearing Officer, who based his determination solely upon the misbehavior report and testimony of the correction lieutenant who authored it. Matter of Carrasquillo…, 515970, 3rd Dept 9-19-13
The Third Department reversed a determination of guilt because the petitioner was removed from the hearing without sufficient justification:
“An inmate has a fundamental right to be present during a prison disciplinary hearing unless he or she is excluded for reasons of institutional safety or correctional goals” … . Petitioner here was first warned that he could be removed from the hearing after he attempted to suggest questions for a witness he had requested who claimed to have been threatened and refused to testify. The Hearing Officer then invited petitioner to explain his defense, namely, that the author of the misbehavior report had set him up after they had sexual contact. Petitioner referred to the officer by her first name, prompting the Hearing Officer to direct him to refrain from doing so. Petitioner then attempted to explain – despite the Hearing Officer’s repeated interruptions – that the officer “told me to call her” by her first name and that such was “the only way” he could accurately describe what had occurred. Instead of allowing petitioner to explain further or present his account of events, however, the Hearing Officer abruptly cut petitioner off and removed him from the hearing. Even if petitioner’s conduct could legitimately be viewed as indecorous or disrespectful, “our review of the record reveals no evidence that [it] rose to the level of disruption that justified his exclusion from the proceedings”… . Matter of Watson v Fischer, 515197, 3rd Dept 9-19-13
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