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Retroactive Transfer of Liability to Special Fund Proper

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

 

Math Tutor Was an Independent Contractor, Not an Employee

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

 

Claimant Who Sold Educational Materials Was an Employee

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

 

Tour Musicians Were Employees of Columbia Artists Management; Workers Who Loaded and Unloaded Equipment Were Not Employees

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

 

Sentencing Court Could Amend Restitution Amount But First Must Give Defendant Opportunity to Withdraw Guilty Plea

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

 

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Hearsay Not Assessed for Reliability—Determination Annulled

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

 

Insufficient Justification for Removing Inmate from Hearing

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

 

Hearing Conducted in Absence of Inmate Okay Due to Inmate’s Assaultive and Menacing Conduct

The Third Department affirmed a guilty determination even though the hearing was conducted in the inmate’s absence.  The inmate had a history of assaults and menacing conduct:

It is well settled that an inmate has a fundamental right to be present at a disciplinary hearing, unless “he or she refuses to attend, or is excluded for reasons of institutional safety or correctional goals” (7 NYCRR 254.6 [a] [2]…). When an inmate is denied the right to be present at a hearing, there must be a factual basis in the record supporting the Hearing Officer’s decision … .  Here, the Hearing Officer set forth on the record his reasons for excluding petitioner from the hearing, including petitioner’s menacing conduct at a hearing earlier that same day, which he personally witnessed,  as well as petitioner’s multiple assaults on staff during the past several months.  Based upon these incidents, the Hearing Officer could reasonably conclude that petitioner’s presence at the hearing would jeopardize institutional safety and correctional goals.  Matter of Barnes v Prack, 514889, 3rd Dept 9-19-13

 

Statements Made In Plea Allocution Negated Guilt

The Third Department vacated defendant’s plea to forgery because, during the plea allocution, the defendant indicated he signed his own name on the credit card receipts.  Signing one’s own name cannot constitute forgery:

Although defendant waived his right to appeal and did not preserve his challenge to the voluntariness of his plea by moving to withdraw his plea or vacate the judgment of conviction, the narrow exception to the preservation rule is triggered because he made a statement during the allocution that cast doubt upon his guilt … .  During the allocution, defendant admitted to purchasing several items at various stores using a credit card that did not belong to him. When asked whether he had signed the credit card receipts using the name of the person to whom the card had been issued, defendant informed County Court that he did not know whose name was on the card and that he had signed the receipts in his own name.  * * *

Here, defendant’s signing of his own name to the credit card receipts would render him both the actual and ostensible maker of the instrument, and the making of the instrument would not constitute a forgery … .  Accordingly, defendant’s statement that he signed his own name to the receipts implicated the voluntariness of his guilty plea to forgery in the second degree, requiring further inquiry from County Court.  As the court failed to conduct such an inquiry, defendant’s plea must be vacated and the matter remitted to County Court.  People v Morehouse, 104770, 3rd Dept 9-19-13

 

Imposition of Fine After Promise No Fine Would Be Imposed Required Vacation of Guilty Plea

The Third Department vacated defendant’s sentence because County Court promised the sentence would not include a fine, but County Court imposed a fine because a fine was required by law.  The court wrote:

Defendant pleaded guilty to an indictment charging him with two counts of aggravated unlicensed operation of a motor vehicle in the first degree.  County Court agreed, in return, to sentence him to an aggregate jail term of one year with no fines.  While County Court sentenced defendant to the contemplated jail term, it further imposed a fine of $1,000 on each count.  Defendant now appeals.

County Court promised defendant that his sentence would not include a fine, but such sentence would have been illegal (see Vehicle and Traffic Law § 511 [3] [b]…). The legal sentence that County Court imposed was inconsistent with that promise.  Although defendant failed to preserve this issue by moving to withdraw the plea or vacate the judgment of conviction, the sentence must nevertheless “be vacated, and the matter remitted . . . to afford . . . defendant the opportunity to accept the sentence that was actually imposed, or permit him to withdraw his plea of guilty”… .  People v Faulcon, 104625, 3rd Dept 9-19-13

 

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