You are here: / Third Department

Tag Archive for: Third Department

Criteria for Payment from Special Fund Explained

In finding there was insufficient evidence to determine if claimant was entitled to be paid workers’ compensation benefits from the Special Fund (for previously closed cases), the Third Department wrote:

“Worker’s Compensation Law § 25-a provides for the transfer of liability 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'” … .  “Advance payments that are made voluntarily, in recognition of an employer’s liability, are payments of compensation” for purposes of Workers’ Compensation Law § 25-a … .  Thus, even where the requisite time periods have elapsed, if a claimant has – during the relevant time period – received advance payment of benefits in the form of full wages for the performance of light or limited duty work, liability is not appropriately shifted due to those advance payments … .  Here, the record contains numerous progress reports from claimant’s chiropractor indicating that she has been working for the employer since November 2004 with restrictions. Inasmuch as the record does not contain an affidavit or testimony of claimant or any other evidence regarding whether claimant was performing light or limited duties and, if so, whether she received full wages, we find that the Board’s decision is not supported by substantial evidence and the matter must be remitted for further development of the record… . Matter of Capodagli…, 516177, 3rd Dept 9-19-13

 

Inability to Find Sufficient Childcare Was “Good Cause” for Leaving Employment

In affirming the Unemployment Insurance Appeal Board’s determination claimant had good cause for leaving her employment, the Third Department wrote:

“Whether a claimant has good cause to leave his or her employment is a factual determination to be made by the Board, and its decision will not be disturbed when supported by substantial evidence” … . Claimant offered multiple reasons that she was dissatisfied with her employment, but the record supports the Board’s conclusion that the impetus for her resignation was an inability to arrange appropriate childcare despite having made sufficient efforts in that regard.  We find that substantial evidence supports the Board’s determination that, under all of the circumstances presented here, claimant had good cause to leave her employment… . Matter of Cottone…, 516338, 3rd Dept 9-19-13

 

Claimant Who Provided Computer-Training for Company’s Clients Properly Found to Be Employee of Company

In affirming the Unemployment Insurance Appeal Board’s determination claimant was an employee of a company (Eden Technologies) which provides computer-training personnel to clients, the Third Department wrote:

The existence of an employer-employee relationship is a factual determination for the Board to resolve and its determination will not be disturbed if supported by substantial evidence … .  This Court has held that “‘an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create an employment relationship'” … . In this case, there is proof that Eden sought, interviewed and selected claimant to perform services at the request of a client. On a weekly basis, claimant was required to submit time sheets provided by Eden, including information about what services were provided.  Eden then paid claimant directly on a biweekly basis at a set hourly rate and billed the client separately. Additionally, certain restrictions were placed upon claimant’s provision of services to Eden’s clients and other entities during her employment and for one year following separation.  Thus, although there is evidence that could support a different result, we find substantial evidence to support the Board’s decision… . Matter of Lamar…, 516039, 3rd Dept 9-19-13

 

Salesman Properly Found to Be an Employee

In affirming the Unemployment Insurance Appeal Board’s conclusion that claimant was an employee of Village Wine, the Third Department wrote:

Claimant was a salesperson for Village Wine Imports Ltd., a wine importer and distributor.  Substantial evidence supports the Unemployment Insurance Appeal Board’s conclusion that claimant and those similarly situated were Village Wine’s employees and not independent contractors.  Village Wine set claimant’s commission rate, paid him a draw on his commission for a period of time, and reimbursed his travel and telephone expenses. Claimant was also trained by Village Wine, which assisted his sales efforts by providing product samples and business cards bearing the company name.  Village Wine also set the price, terms and conditions for all sales, gave claimant sales leads, required him to obtain approval for sales, and handled all shipping and invoicing matters.  While evidence in the record could support a contrary result, the Board was free to determine from the above that Village Wine exercised sufficient control over claimant to establish an employer-employee relationship… . Matter of Miciletto…, 515852, 3rd Dept 9-19-13

 

Hearing Officer’s Factual Misconduct Findings Cannot Be Ignored

In reversing the Unemployment Insurance Appeal Board’s grant of unemployment benefits to the claimant, the Third Department explained that the hearing officer’s factual findings of disqualifying misconduct cannot be ignored:

While the Board was free to make “independent additional factual findings” and draw its own independent conclusion as to whether claimant’s behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the Hearing Officer’s “factual findings regarding claimant’s conduct and his conclusion” that claimant had been insubordinate … .  Despite the fact that “the question of claimant’s conduct leading to his termination necessarily had to be considered” in making that assessment, the Board here inexplicably failed to consider whether claimant’s actions … constituted disqualifying misconduct… . Matter of Winters…, 515809, 3rd Dept 9-19-13

 

Misspellings Did Not Render Signatures Invalid

The Third Department affirmed Supreme Court’s ruling that misspellings in the petition did not create confusion about the party and person referred to and, therefore, the relevant signatures were valid:

…[T]he term “Democratic” appears on various sheets of the petition as “Demoratic,” “Demotatic” and “Demacatic.”  These minor misspellings, however, would not tend to confuse the signatories as to the political party involved and nothing in the record indicates an intent to do so … .  Similarly, although petitioner’s last name is spelled on one sheet of the petition as “Mannaurino” and on another as “Mannano,” there has been no showing of any intention to mislead or confuse, nor is there any evidence that the inaccuracy would or did tend to mislead signatories as to the identity of the candidate… .  Matter of Mannarino v Goodbee, 517215, 3rd Dept 8-15-13

 

Opportunity to Ballot Should Not Have Been Allowed—Criteria Explained

The Third Department reversed Supreme Court’s granting of the opportunity to ballot where the designating petition did not have the required number of valid signatures and there was no evidence of the reason(s) some of the signatures were deemed invalid (no hearing was held).  The Third Department explained the procedure for determining whether the opportunity to ballot should be granted:

“The ‘opportunity to ballot’ remedy . . . was designed to give effect to the intention manifested by qualified party members to nominate some candidate, where that intention would otherwise be thwarted by the presence of technical, but fatal defects in designating petitions, leaving the political party without a designated candidate for a given office”… .  The case law makes clear, however, that this discretionary remedy …”was not intended to be a generally available substitute for the petition process set forth in article 6 of the Election Law” … .  Accordingly, a court should grant an opportunity to ballot “only where the defects which require invalidation of a designating petition are technical in nature and do not call into serious question the existence of adequate support among eligible voters” ….  Such a determination, in turn, typically occurs following a hearing, at which the specific reasons for invalidating the affected signatures may be established … .  Notably, a challenge directed to an individual’s eligibility to sign a candidate’s designating petition in th e first instance implicates a substantive – as opposed to technical – defect … .  Matter of Roberts v Work…, 517208, 3rd Dept 8-15-13

 

“Technical Irregularities” Did Not Preclude Allowing Opportunity to Ballot

The Third Department applied the concept of “technical irregularities” to signatures rendered invalid by problems with two subscribing witnesses.  In spite of the invalidation of the signatures, because there was no fraud and no indication the voters were not entitled to sign the petition, the opportunity to ballot was properly allowed:

The record establishes that one of the subscribing witnesses, a commissioner of deeds, failed to inform any of “the signers that, by signing the petition, they affirmed the truth of the matter to which they subscribed” … . While the signatures collected by him were rendered invalid as a result, under the circumstances presented here his failure constituted nothing more than a “technical irregularity”… .The second subscribing witness, Horan, mistakenly executed the statement intended for a notary public or commissioner of deeds rather than that meant for party members.  While Horan is in fact a notary public, he did not identify himself as such in the witness statement (see Election Law § 6-132…).  The signatures that Horan witnessed were rendered invalid as a result, but his failure to indicate his position was a technical defect that did “not call into serious question the existence of adequate support among eligible voters” … .  Absent any indication that fraud was involved or that the voters who signed the invalid pages were not entitled to sign the petition, Supreme Court properly directed an opportunity to ballot for the offices… .  Matter of Hall v Dussault…, 517199, 3rd Dept 8-15-13

 

,

Burden Upon Police to Determine Whether Defendant Represented by Counsel Explained

In affirming the denial of a motion to vacate a conviction after a hearing (over a substantial dissent), the Third Department explained the burden upon the police to determine whether a defendant is represented by counsel before questioning him. In this case the question was whether defendant’s attorney, who represented defendant in a robbery case resolved by a cooperation agreement and who initially was involved a homicide case in 2003, was still representing the defendant in the homicide case when the defendant was questioned about it in 2006:

Although [defendant’s attorney] clearly participated in the homicide investigation in 2003 and the police were well aware that he had entered into it as defendant’s counsel, the parties agree that there was a genuine lack of clarity …surrounding the question of whether that representation was limited to the cooperation agreement and had terminated once defendant was sentenced in the robbery case.

It is well settled that where, as here, there is any ambiguity as to whether the defendant is represented by counsel, the burden rests squarely on the police to resolve that ambiguity prior to questioning … .  Here, before questioning defendant in 2006, [the police] met with [defendant’s attorney], who told them unequivocally that he no longer represented defendant.  Inasmuch as the police fulfilled their obligation to resolve the ambiguity by determining that [the attorney’s] representation of defendant had terminated prior to questioning him, County Court did not err in concluding that defendant’s right to counsel had not been violated … .  People v McLean, 104691, 3rd Dept, 8-8-13

 

Sentence for Which Merit Time Allowance Is Not Available Did Not Preclude Application for Resentencing Under Drug Law Reform Act

The Third Department, over a dissent, declined to follow the 2nd Department in its application of CPL 440.46 (Drug Law Reform Act).   The defendant was eligible to apply for resentencing based upon his offense, but, under the sentence defendant was serving at the time of his application for resentencing, he was not entitled to a merit time allowance pursuant to the Correction Law.  The Third Department determined defendant was eligible to apply for resentencing:

Although defendant, having been sentenced pursuant to his drug offense convictions as a persistent felony offender, is serving a sentence that would preclude him from earning merit time pursuant to Correction Law § 803 (see Correction Law § 803 [1] [d] [ii]; Penal Law § 70.10 [2]), he was not convicted of an “offense for which a merit time allowance is not available” (CPL 440.46 [5] [a] [ii] [emphasis added]; see Penal Law §§ 10.00 [1]; 220.39).  This distinction is significant.  The Penal Law states:

“‘Offense’ means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same” (Penal Law § 10.00 [1]).

Defendant’s offense and his sentence are thus two separate components that we decline to conflate for purposes of depriving an otherwise eligible person of the benefits of the remedial legislation that we are tasked with interpreting here.  To the extent that the [2nd] Department held to the contrary in People v Gregory (80 AD3d 624 [2011], lv denied 17 NY3d 806 [2011]), we decline to follow that case.  Accordingly, we find that defendant is eligible to apply for resentencing pursuant to the Drug Law Reform Act of 2009, and County Court erred in denying defendant’s motion.  People v Coleman, 104851, 3rd Dept 8-1-13

 

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