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Failure to Record Testimony Relied Upon by Hearing Officer Required Annulment

The failure to record testimony which was relied upon by the hearing officer in a disciplinary determination required annulment.  Matter of Tolliver v Fischer, 514866, 3rd Dept, 4-18-13

 

Failure to Make Sufficient Effort to Transport Injured Inmate to His Hearing Required Annulment

In annulling a disciplinary determination, the Third Department ruled the inmate’s statement to the escort officer that he had injured his foot and could not put on a shoe (to walk to the disciplinary hearing) did not constitute a refusal to attend the hearing:

“[A]n inmate has a fundamental right to be present at his or her disciplinary hearing, unless he or she waives such right or refuses to attend”  …. Here, instead of “transporting petitioner to the hearing by  wheelchair, stretcher or other appropriate conveyance  or arranging to have medical personnel examine petitioner or otherwise developing a record on the issue of petitioner’s physical ability to walk” … – or even exploring the possibility of allowing petitioner to leave his SHU cell with only one shoe – the Hearing Officer summarily accepted the  escort  officer’s characterization of  petitioner’s conduct  as a blatant refusal to attend the hearing … .Under these circumstances, the record does not support the finding that petitioner “willfully refused”… .  Matter of Brooks v James, 514707, 3rd Dept, 4-18-13

 

Failure to Make Sufficient Effort to Have Inmate’s Witness Testify Required a New Hearing

The Third Department ordered a new disciplinary hearing where insufficient efforts were made to procure the testimony of a witness requested by the inmate:

When  petitioner requested that a fellow inmate  testify at the  disciplinary  hearing,  the Hearing  Officer merely  noted  that the witness had informed petitioner’s employee assistant that he refused  to  testify. Such a notation by the Hearing Officer, without any attempt to determine the reason for the witness’s refusal, is not a sufficient basis upon which to deny petitioner’s right to call the witness … Matter of Dickerson v Fischer, 514685, 3rd Dept, 4-18-13

 

 

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Termination of Deputy Sheriff by Sheriff after Hearing Officer Recommended Suspension Upheld

In up holding the termination of petitioner, a deputy sheriff correction officer, after a disciplinary hearing officer recommended only suspension, the Third Department wrote:

Here, petitioner was found to have caused an injury to a defenseless, handcuffed inmate over whose custody petitioner was in charge. The Sheriff noted that his decision to terminate petitioner’s employment was based, in large measure, upon the fact that, as a correction officer, petitioner was required to handle the most difficult and sometimes dangerous individuals and that “[d]isrespect and brutality of prisoners cannot and will not be tolerated.” Even if there is mitigating evidence that could support a different result –  such  as petitioner’s otherwise unblemished record of service during his 10 years as a correction officer – we may not substitute our judgment for that of the Sheriff ….Considering petitioner’s position as a correction officer and a Sheriff’s Emergency Response Team member and the serious nature of petitioner’s misconduct – an assault of a handcuffed inmate who petitioner was supervising at the time – as well as petitioner’s failure to take responsibility for his actions, the decision to terminate his employment  does not shock our sense of fairness … .  Matter of Knox v VanBlarcum…, 515471, 3rd Dept, 4-11-13

 

 

“Out-of-Title” Work Did Not Warrant Higher Pay

Petitioner was a sergeant at Butler Alcohol and Substance Abuse Correctional Facility and he alleged he was assigned as shift supervisor, requiring him to perform the work of a correction lieutenant.  In upholding a determination that petitioner’s “out-of-title” work did not entitle him to more pay, the Third Department noted:

While Civil Service Law § 61 (2) seemingly provides an “unqualified prohibition against nonemergency out-of-title work,1 case law has made the standard somewhat more flexible based on practicality” ….   “Not all additional duties constitute out-of-title work but, instead, the question is whether the new duties are appropriate to petitioner[‘s] title[] and/or  are similar in nature to, or a reasonable outgrowth of, the duties listed in petitioner[‘s] job specifications” … . “‘[A]n employee’s performance of overlapping functions of an absent supervisor has not been found to establish a violation of Civil Service Law § 61 (2) where such functions were substantially similar to those detailed in his or her job description'” … .  Matter of New York State Correctional Officers … v Governor’s Office of Employee Relations, et al, 515409, 515410, 3rd Dept, 4-11-13

 

 

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Late Notice of Settlement of Negligence Action to Workers’ Compensation Carrier Did Not Preclude Court-Approval of Settlement Pursuant to Workers’ Compensation Law

Plaintiff was struck by a car driven by defendant while she was taking a walk during a layover between work assignments for her employer.  She filed for workers’ compensation benefits.  And she sued the driver in a negligence action.  While the workers’ compensation proceeding was progressing plaintiff settled with the driver’s carrier.  Upon notice to the employer’s workers’ compensation carrier, the carrier refused to approve the settlement. Plaintiff then moved for court-approval of the settlement pursuant to the Workers’ Compensation Law.  Supreme Court granted the motion and the Third Department affirmed, noting:

When,  as here, court approval of a  settlement is not sought within three months of the date of settlement, a  plaintiff seeking a nunc pro tunc order must establish the reasonableness of the settlement, the lack of any  fault or neglect in applying for approval and the lack of any prejudice to the carrier … .   These determinations are directed to the discretion of the court … . Lindberg, et al, v Ross, et al, 515373, 3rd Dept 4-11-13

TRAFFIC ACCIDENTS

Injury to Officer Who Was Pursuing a Suspect Not an “Accident”

In finding that injury to a police officer was not the result of an “accident” within the meaning of the Retirement and Social Security Law, the Third Department wrote:

Here, petitioner was performing his regular police duties chasing a suspect within his authorized patrol area at the time he was injured. As we have recognized, the “pursuit of suspects is an ordinary employment duty of a police officer” … .  Petitioner’s pursuit took him through a wooded area to the edge of a ravine where he stopped because he recognized the danger of falling into it. Nevertheless, he stood too close to the edge, the edge gave way under his weight and he fell into the ravine in a manner that he reasonably could have anticipated… .  Matter Roth v DiNapoli, 515078, 3rd Dept, 4-11-13

 

Contacts Insufficient for Long-Arm Jurisdiction

The Third Department upheld the trial court’s determination that plaintiff’s business-related contacts with out-of-state defendants were insufficient to confer New York jurisdiction over them:

Plaintiff entered into a three-month agreement with defendant Yodle, Inc. to conduct an Internet advertising campaign for his divorce document preparation business. Three weeks after agreeing to the terms of the contract, plaintiff emailed defendant Brad Leitch, a Yodle employee who lives and works in North Carolina, and stated that he could not afford to proceed due to unanticipated personal expenses. Relying on the terms of the contract, Yodle refused to refund plaintiff any money and continued the advertising campaign until – just before the end of the three-month term – plaintiff commenced this action seeking to recover damages for, among other things, fraud and breach of contract.

* * *Initially, we cannot agree with plaintiff’s contention that Supreme Court erred in determining that it lacked jurisdiction over Leitch and Long [another Yodle employee who lives and works in Arizona]. Given the nature of their work on plaintiff’s Internet advertising campaign and his limited contact with them via telephone and email, their conduct “did not amount to a purposeful invocation of the privileges of conducting business in New York” so as to confer personal jurisdiction under CPLR 302 (a) (1) … . Collins … v Yodle, Inc…, 514827, 3rd Dept 4-11-13

 

 

Connection of Illness to Work at Trade Center Not Demonstrated

The Third Department upheld the denial of World Trade Center Accidental Disability benefits to a policeman who claimed a 12-hour stint looking for survivors exacerbated his pre-existing condition (ulcerative colitis).  The court determined the statutory presumption had been rebutted by the respondent and the petitioner failed to present sufficient evidence linking his condition to his work at the World Trade Center. Matter of Cardino v NY State and Local Retirement System, 514782, 3rd Dept 4-11-13

 

 

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Notice of Tax Foreclosure Proceeding Deemed Sufficient

In finding that the notice requirements in a tax foreclosure proceeding had been met, the Third Department wrote:

Tax foreclosure proceedings enjoy a presumption of regularity, such that “[t]he tax debtor has the burden of affirmatively establishing a jurisdictional defect or invalidity in [such] proceedings” … .  In a tax foreclosure proceeding, each property owner is entitled to personal notice of the proceeding (see RPTL 1125 [1] [a]), which “shall be sent to each . . . party both by certified mail and ordinary first class mail” (RPTL 1125 [1] [b] [i]). Such “notice shall be deemed received unless both the certified mailing and the ordinary first class mailing are returned by the United States postal service within forty-five days after being mailed” … .Here, while the notice sent by certified mail to the Bayonne address was returned, there is no question that the notice sent by ordinary first class mail to respondent … at that address was not returned. Therefore, such notice was deemed received by respondent (see RPTL 1125 [1] [b] [i]…) . Matter of Foreclosure … 514737, 3rd Dept, 4-11-13

 

 

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