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Employer Policy Re: Firing of Employees Injured in Preventable Accidents Was Discriminatory

The Third Department determined a policy which required probationary employees injured in a preventable accident to be fired, but did not require the firing of uninjured probationary employees who were observed working unsafely, improperly served to dissuade injured employees from seeking Workers’ Compensation:

Workers’ Compensation Law § 120 prohibits an employer from discriminating against  an  employee  because  that employee  either claimed or attempted  to claim workers’ compensation  benefits….  In enacting Workers’ Compensation Law § 120, the Legislature intended “to insure that a claimant [could] exercise his [or her] rights under the [Workers’] Compensation Law  . . . without fear that doing so [might] endanger the continuity of [his or her] employment… .

…[T]he policy …has a discernible impact upon probationary employees who are injured in work-related accidents, i.e., employees who  potentially could seek workers’ compensation  benefits.    The policy  effectively categorizes probationary employees into two groups: those who violate safety rules but are not injured, and those who violate safety rules and  are injured – with only the latter group automatically forfeiting their right to work  for the employer….   Such a policy dissuades those probationary employees who are injured in the course of their employment and wish to remain employed from reporting their injury and pursuing workers’ compensation benefits, which, in turn, runs counter to the Legislature’s intended purpose of insuring that employees  can exercise  their rights under  the  compensation  statutes  “without fear that doing  so may  endanger  the continuity of [their] employment”… .  Matter of Rodriguez v C& S Wholesale Grocers, Inc, 516124, 3rd Dept 7-3-13

 

Disability Pre-dated Work at World Trade Center—Worker Entitled to Workers’ Compensation

In reversing a decision of the Workers’ Compensation Board which ruled the employer was not entitled to reimbursement from the Special Disability Fund on the ground that the employee’s lung disease was solely related to work at the World Trade Center, the Third Department wrote:

[The treating doctor] repeatedly expressed  his  opinion  that claimant’s interstitial lung disease was  related to both his exposure at the WTC site and certain exposures throughout his career with the employer, which included exposure to asbestos. …Thus, although reimbursement pursuant to Workers’ Compensation Law § 15 (8) (d) may be denied when a work-related injury is the sole  cause  of  a  permanent  disability…, there is no medical evidence present here to support the Board’s conclusion that claimant’s disability was solely caused by his WTC  site exposure and, therefore, the Fund was inappropriately discharged… . Matter of Surianello, 515055, 3rd Dept 7-3-13

 

Employee’s Use of Personal Checking Account Did Not Amount to Misconduct

The Third Department reversed the Unemployment Insurance Appeal Board’s denial of benefits finding that, although the practice of depositing money in the employee’s bank account for reimbursement to her and others for out of pocket expenses violated company policy, it did not amount to misconduct:

Even  where  an  employee  has been  fired for legitimate reasons, the “behavior may  fall short of misconduct and, therefore, he  or she  may  still be  entitled to receive benefits”….   Although a knowing violation of an employer’s established policies that has a detrimental effect on  the employer’s interests can  constitute disqualifying  misconduct  …, we find that claimant’s misconduct  in this case did not rise to a disqualifying    level.    While we do not quarrel with the Board’s finding that claimant violated the employer’s established policies, which  provided a basis for terminating her employment, the hearing testimony reveals that claimant’s actions were  in keeping  with a longstanding practice that was at least partially condoned by her former supervisor and were necessary because claimant did not have  check  writing authority… . Matter of Lopresti, 516109, 3rd Dept 7-3-13

 

Employer’s Late Request for a Hearing Could Not Be Excused

In affirming the Unemployment Insurance Appeal Board’s ruling that an employer’s request for a hearing was untimely, the Third Department noted there was no provision allowing an extension of time:

“Pursuant to Labor Law § 620 (2), an employer has 30 days from the mailing or personal delivery of a contested determination  to  request a  hearing”….  The employer acknowledged receiving the determination, but was unsure of the date of such receipt. Pursuant to the unrebutted presumption found in 12 NYCRR 461.2, the determination was deemed mailed on January 12, 2009 and received by the employer within five days thereafter. Although the employer contends that the admittedly late written request for a hearing was due to law office failure, “the statutory time period in which to request a hearing is to be strictly construed, and the statute contains no  provision permitting an extension of time in which an employer can request a hearing”… . Matter of Agarwal, 515007, 3rd Dept 7-3-13

 

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Participation in Program Can Be Delayed Until Close to Release Date

In affirming Supreme Court, in the face to the inmate’s request that he be placed in the sex offender counseling and treatment program (SOCTP) in 2015, the Third Department determined  the inmate’s participation in the program could be delayed until 2023, 36 months before his conditional release date:

An inmate’s evaluation by a case review team  under  Mental  Hygiene  Law  §  10.05 is triggered by notice to the Office of Mental  Health that the inmate  is “nearing anticipated release,” which is to be provided at least 120 days prior to such  “anticipated release” (Mental Hygiene  Law  §  10.05 [b]). In accordance with the foregoing, DOCCS has developed guidelines for administering sex offender treatment programs throughout the state. The guidelines recognize the need to allocate limited resources and provide that inmates shall be placed in sex offender treatment programs “as they get closer to their release date.”  Matter of Wakefield, 515002, 3rd Dept 7-3-13

 

Parole Board Should Have Used Risk Assessment Instrument

The Third Department determined an inmate was entitled to a new hearing on his request for discretionary parole release because the Board did not use the required written procedure for risk assessment:

[The inmate argued] the Board improperly failed to utilize a “COMPAS Risk and Needs Assessment” instrument in connection with the relevant amendments to Executive Law § 259-c (4), which became effective October 1, 2011 (see L 2011, ch 62, § 49 [f]). Significantly, Executive Law § 259-c (4) requires that the Board “establish written procedures for its use in making parole decisions as required by law,” and the Board acknowledges  that the statute requires it to incorporate risk and needs principles into its decision-making process. According to the record, the Board was trained in the use of the COMPAS instrument prior to petitioner’s hearing. Moreover, the Board acknowledges that it has used the COMPAS instrument since February 2012 and will use it for petitioner’s next appearance. Under these circumstances, we find no justification for the Board’s failure to use the COMPAS instrument at petitioner’s October  2011  hearing. Matter of Garfield, 515986, 3rd Dept 7-3-13

 

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Criteria for Review of Planning Board’s SEQRA Determination and Zoning Board’s Granting a Variance

In upholding the approval of a site plan, the Third Department determined the planning board met the requirements of the State Environmental Quality Review Act (SEQRA) and zoning board properly granted a height variance. In explaining the criteria for both reviews, the Third Department wrote:

“‘Judicial review of an agency determination under SEQRA is limited to whether the [lead] agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination’….   “While judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to ‘weigh the desirability of any action or [to] choose among alternatives'”….  The lead agency’s determination will only be annulled if it is arbitrary, capricious or unsupported  by  the evidence (see CPLR  7803  [3];…).     * * *

The [zoning board’s] determination to grant the variance is also valid.  In determining whether to grant a variance, the local zoning board must “‘engage in a balancing test, weighing the proposed  benefit to [the applicant] against the possible detriment to the health, safety and welfare of the community, as well as consider the five statutory factors enumerated in Town Law § 267-b (3)'”….  “Local zoning boards have broad discretion in considering applications for variances, and  judicial review is limited to determinating whether the action taken by the board was illegal, arbitrary or an abuse of discretion”….  Matter of Schaller, 515824, 3rd Dept 7-3-13

 

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Collective Bargaining Agreement Unambiguous—Lifetime Health Benefits Mandated

In concluding the collective bargaining agreement (CBA) unambiguously provided lifetime health insurance coverage to the petitioners pursuant to the CBA in effect upon their retirement, the Third Department wrote:

A  written agreement that is clear and complete on its face must  be  enforced  according  to the  plain meaning  of its terms  …Extrinsic evidence may  be considered to discern the  parties’ intent only  if the  contract is ambiguous,  which  is a question of law for the court to resolve…. In  determining  whether  an  ambiguity  exists, “‘[t]he court  should examine  the  entire contract and  consider the relation of the parties and the circumstances under which it was executed. Particular words  should be  considered, not as if isolated from the context, but in the light of the obligation as a whole  and the intention of the parties as manifested thereby'”… . Pursuant to the CBAs in effect at the time each petitioner retired, an employee who had completed 10 years of service was entitled to health insurance coverage  “in retirement.”    In order to receive that coverage at a rate of 100% per individual and 75% per dependent, the only requirement was that the individual “retire during the term of the contract.”    Matter of Warner, 516038, 3rd Dept 7-3-13

 

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Evidence of Pornography Allowed as Molineux Evidence to Show Intent

In affirming the defendant’s conviction for sexual offenses against a young child, the Third Department determined the trial court properly allowed “Molineux” evidence about pornography found on and/or searched for on defendant’s computer. Among the reasons for letting the evidence of pornography in evidence was to demonstrate defendant’s intent.  The Third Department wrote:

While  intent can  often be inferred from the sexual act itself…, here, defendant claimed to the police investigator and the CPS caseworker that much  of the sexual contact and the child’s knowledge occurred accidentally. The foregoing  was,  thus, admissible  to  prove  that defendant’s  charged  sexual contact  was not accidental or mistaken but, rather, was intentional and sexual … and motivated by his unusual sexual interest in young children. Supreme Court carefully considered  the  prejudicial  effect  of  the  evidence, limited or excluded much  of it, including the actual images and videos, and provided numerous contemporaneous and appropriate limiting  instructions. We  cannot conclude that the court abused its discretion in finding that the  probative  value  of the admitted evidence outweighed the potential for undue prejudice… People v Sorrell, 103426, 3rd Dept 7-3-13

 

Jury Was Given Written Copies of Portions of Jury Instructions; Judge’s Responses to Subsequent Requests for Jury Instructions and Testimony Read-Back Required Reversal

The Third Department reversed defendant’s conviction on two grounds.  First, the trial judge’s response to the jury’s request for jury instructions (written copies of portions of the jury instructions had already been given to the jury) was not “meaningful” and required reversal in the absence of an objection.  And second, the read-back of testimony requested by the jury did not match the request and did not include crucial cross-examination:

As it was unclear from the jury’s note whether the jury simply was seeking the portion of the written charge previously promised by County Court or some other unidentified portion of the charge  (or even  the  charge  in its entirety), it was  incumbent upon County Court to explore this inquiry with the jury and clarify the  nature of the  jury’s request or, at the  very least, ascertain whether its response to the jury’s request was satisfactory….Although defense counsel did not object to the manner in which County Court  responded  to the  jury’s inquiry, County  Court  failed “to provide  a  meaningful response  to the  jury” and, in so  doing, failed to fulfill its “core responsibility” in this regard  ….    Accordingly, no objection was required to preserve this issue for appellate review… . * * *

Although CPL 310.30 affords a trial court a certain degree of latitude in responding to a jury request for additional information, the court’s response must be meaningful … . Additionally, “[a] request for a reading of testimony generally is presumed to include cross-examination which impeaches the testimony to be read back, and any such testimony should be read to the jury unless the jury indicates otherwise”… .  People v Clark, 105237, 3rd Dept 7-3-13

 

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